Case Details

Navigation

Full Site Search

Loading...

The navigation select boxes below will direct you to the selected page when you hit enter.

Topical Explanations

Primary Legal Materials

Select by Subject

Select by Species

Select Administrative Topic


World Law

Secondary Legal Materials

Great Apes and the Law

Great Apes and the Law

Maps of State Laws

Map of USA
Share |
United States Department of Agriculture (U.S.D.A.)

In re: MARILYN SHEPHERD
United States
57 Agric. Dec. 242 (1998)


Case Details
Printable Version
Summary:   Recommendations of administrative officials charged with responsibility for achieving congressional purpose of Animal Welfare Act are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials.

Judge Initial Decision issued by James W. Hunt, Administrative Law Judge. Decision and Order issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

   The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on September 24, 1996.

    *2 The Complaint alleges that Marilyn Shepherd [hereinafter Respondent] willfully violated the Animal Welfare Act and the Regulations and Standards by failing to properly identify animals and by failing to comply with the Regulations and Standards relating to the care and housing of animals. On October 17, 1996, Respondent filed an Answer denying the material allegations of the Complaint, and on October 24, 1996, Respondent filed a Supplemental Answer, requesting a hearing.

   Administrative Law Judge James W. Hunt [hereinafter ALJ] presided over a hearing on July 16, 1997, in Springfield, Missouri. Sharlene Deskins, Esq., Office of the General Counsel, United States Department of Agriculture [hereinafter USDA], represented Complainant. Respondent represented herself. On September 10, 1997, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, Order and Brief in Support Thereof [hereinafter Complainant's Brief]. On September 15, 1997, Respondent filed a Brief [hereinafter Respondent's Brief]. On October 8, 1997, Respondent filed a response to Complainant's Brief [hereinafter Respondent's Response].

   On October 30, 1997, the ALJ issued a Decision and Order [hereinafter Initial Decision and Order] assessing Respondent a civil penalty of $600 and ordering Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards.

   On December 1, 1997, Respondent appealed to, and requested oral argument before, the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in USDA's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FN1] On January 14, 1998, Complainant filed Complainant's Appeal Petition, Brief in Support of Its Appeal Petition and Opposition to the Respondent's Appeal Petition [hereinafter Complainant's Appeal Petition], in which Complainant opposes Respondent's request for oral argument. Oral argument, which the Judicial Officer may grant, limit, or refuse (7 C.F.R. § 1.145(d)), is refused, since the issues have been well briefed, and no useful purpose would be served by oral argument. On March 24, 1998, Respondent filed a response to Complainant's Appeal [hereinafter Respondent's Reply]. On March 26, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for decision.

   Based upon a careful consideration of the record in this proceeding, I agree with the ALJ that Respondent violated [FN2] the Animal Welfare Act and the Regulations and Standards, as alleged in paragraphs II(3); III(1)-(3), (5)- (6), (9)-(11); IV(1)-(2), (4); V(1), (3); VI(B)(1)-(3); VII; and VIII(A), (B), (C) of the Complaint. Therefore, pursuant to the Rules of Practice (7 C.F.R. § 1.145(i)), I am adopting the Initial Decision and Order as the final Decision and Order, with deletions shown by dots, changes or additions shown by brackets, and trivial changes not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law.

    *3 Complainant's exhibits are referred to as "CX"; Respondent's exhibits are referred to as "RX"; and the hearing transcript is referred to as "Tr."

APPLICABLE STATUTORY PROVISIONS, REGULATIONS, AND STANDARDS

   7 U.S.C.:

TITLE 7--AGRICULTURE

   . . . .

CHAPTER 54--TRANSPORTATION, SALE, AND HANDLING OF CERTAIN ANIMALS

   § 2131. Congressional statement of policy

   The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order--

   (1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

   (2) to assure the humane treatment of animals during transportation in commerce; and

   (3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

   The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use.

   § 2132. Definitions

   When used in this chapter--

   . . . .

   (f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes. . . .

   . . . .

   § 2141. Marking and identification of animals

   All animals delivered for transportation, transported, purchased, or sold, in commerce, by a dealer or exhibitor shall be marked or identified at such time and in such humane manner as the Secretary may prescribe: Provided, That only live dogs and cats need be so marked or identified by a research facility.

   . . . .

   § 2149. Violations by licensees

   (a) Temporary license suspension; notice and hearing; revocation

   If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such li- cense, if such violation is determined to have occurred.

    *4 (b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

   Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such vio- lation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations.

   7 U.S.C. §§ 2131, 2132(f), 2141, 2149(a), (b).

   9 C.F.R.:

TITLE 9--ANIMALS AND ANIMAL PRODUCTS

CHAPTER I--ANIMAL AND PLANT HEALTH INSPECTION SERVICE, DEPARTMENT OF AGRICULTURE

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

   § 1.1 Definitions.

   For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary.

   . . . .

   Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year.

    *5 . . . .

PART 2--REGULATIONS

   . . . .

SUBPART D--ATTENDING VETERINARIAN AND ADEQUATE VETERINARY CARE

   § 2.40 Attending veterinarian and adequate veterinary care (dealers and exhibitors).

   (a) Each dealer or exhibitor shall have an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with this section.

   (1) Each dealer and exhibitor shall employ an attending veterinarian under formal arrangements. In the case of a part-time attending veterinarian or consultant arrangements, the formal arrangements shall include a written program of veterinary care and regularly scheduled visits to the premises of the dealer or exhibitor; and

   (2) Each dealer and exhibitor shall assure that the attending veterinarian has appropriate authority to ensure the provision of adequate veterinary care and to oversee the adequacy of other aspects of animal care and use.

   (b) Each dealer or exhibitor shall establish and maintain programs of adequate veterinary care that include:

   (1) The availability of appropriate facilities, personnel, equipment, and services to comply with the provisions of this subchapter;

   (2) The use of appropriate methods to prevent, control, diagnose, and treat diseases and injuries, and the availability of emergency, weekend, and holiday care;

   (3) Daily observation of all animals to assess their health and well-being; Provided, however, That daily observation of animals may be accomplished by someone other than the attending veterinarian; and Provided, further, That a mechanism of direct and frequent communication is required so that timely and accurate information on problems of animal health, behavior, and well-being is conveyed to the attending veterinarian;

   (4) Adequate guidance to personnel involved in the care and use of animals regarding handling, immobilization, anesthesia, analgesia, tranquilization, and euthanasia; and

   (5) Adequate pre-procedural and post- procedural care in accordance with established veterinary medical and nursing procedures.

 

SUBPART E--IDENTIFICATION OF ANIMALS

 

   § 2.50 Time and method of identification.

   (a) A class "A" dealer (breeder) shall identify all live dogs and cats on the premises as follows:

   (1) All live dogs and cats held on the premises, purchased, or otherwise acquired, sold or otherwise disposed of, or removed from the premises for delivery to a research facility or exhibitor or to another dealer, or for sale, through an auction sale or to any person for use as a pet, shall be identified by an official tag of the type described in § 2.51 affixed to the animal's neck by means of a collar made of material generally considered acceptable to pet owners as a means of identifying their pet dogs or cats [footnote omitted], or shall be identified by a distinctive and legible tattoo marking acceptable to and approved by the Administrator.

   (2) Live puppies or kittens, less than 16 weeks of age, shall be identified by:

    *6 (i) An official tag as described in § 2.51;

   (ii) A distinctive and legible tattoo marking approved by the Administrator; or

   (iii) A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

   (b) A class "B" dealer shall identify all live dogs and cats under his or her control or on his or her premises as follows:

   (1) When live dogs or cats are held, purchased, or otherwise acquired, they shall be immediately identified:

   (i) By affixing to the animal's neck an official tag as set forth in § 2.51 by means of a collar made of material generally acceptable to pet owners as a means of identifying their pet dogs or cats [footnote omitted]; or

   (ii) By a distinctive and legible tattoo marking approved by the Administrator.

   (2) If any live dog or cat is already identified by an official tag or tattoo which has been applied by another dealer or exhibitor, the dealer or exhibitor who purchases or otherwise acquires the animal may continue identifying the dog or cat by the previous identification number, or may replace the previous tag with his own official tag or approved tattoo. In either case, the class B dealer or class C exhibitor shall correctly list all old and new official tag numbers or tattoos in his or her records of purchase which shall be maintained in accordance with §§ 2.75 and 2.77. Any new official tag or tattoo number shall be used on all records of any subsequent sales by the dealer or exhibitor, of any dog or cat.

   (3) Live puppies or kittens less than 16 weeks of age, shall be identified by:

   (i) An official tag as described in § 2.51;

   (ii) A distinctive and legible tattoo marking approved by the Administrator; or

   (iii) A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

   . . . .

   (d) Unweaned puppies or kittens need not be individually identified as required by paragraphs (a) and (b) of this section while they are maintained as a litter with their dam in the same primary enclosure, provided the dam has been individually identified.

   . . . .

SUBPART H--COMPLIANCE WITH STANDARDS AND HOLDING PERIOD

   § 2.100 Compliance with standards.

   (a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals.

   . . . .

PART 3--STANDARDS

   SUBPART A--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF DOGS AND CATS [Footnote omitted]

FACILITIES AND OPERATING STANDARDS

   § 3.1 Housing facilities, general.

   (a) Structure; construction. Housing facilities for dogs and cats must be designed and constructed so that they are structurally sound. They must be kept in good repair, and they must protect the animals from injury, contain the animals securely, and restrict other animals from entering.

    *7 . . . .

   (c) Surfaces--(1) General requirements. The surfaces of housing facilities-- including houses, dens, and other furniture-type fixtures and objects within the facility--must be constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn or soiled. Interior surfaces and any surfaces that come in contact with dogs or cats must:

   (i) Be free of excessive rust that prevents the required cleaning and sanitization, or that affects the structural strength of the surface[.]

   . . . .

   (2) Maintenance and replacement of surfaces. All surfaces must be maintained on a regular basis. Surfaces of housing facilities--including houses, dens, and other furniture-type fixtures and objects within the facility--that cannot be readily cleaned and sanitized, must be replaced when worn or soiled.

   . . . .

   (f) Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal, and disposal of animal and food wastes, bedding, debris, garbage, water, other fluids and wastes, and dead animals, in a manner that minimizes contamination and disease risks. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and the animals stay dry. Disposal and drainage systems must minimize vermin and pest infestation, insects, odors, and disease hazards. All drains must be properly constructed, installed, and maintained. If closed drainage systems are used, they must be equipped with traps and prevent the backflow of gases and the backup of sewage onto the floor. If the facility uses sump or settlement ponds, or other similar systems for drainage and animal waste disposal, the system must be located far enough away from the animal area of the housing facility to prevent odors, diseases, pests, and vermin infestation. Standing puddles of water in animal enclosures must be drained or mopped up so that the animals stay dry. Trash containers in housing facilities and in food storage and food preparation areas must be leakproof and must have tightly fitted lids on them at all times. Dead animals, animal parts, and animal waste must not be kept in food storage or food preparation areas, food freezers, food refrigerators, or animal areas.

   . . . .

   § 3.3 Sheltered housing facilities.

   . . . .

   (e) Surfaces. (1) The following areas in sheltered housing facilities must be impervious to moisture:

   (i) Indoor floor areas in contact with the animals[.]

   . . . .

   § 3.4 Outdoor housing facilities.

   . . . .

   (b) Shelter from the elements. Outdoor facilities for dogs or cats must include one or more shelter structures that are accessible to each animal in each outdoor facility, and that are large enough to allow each animal in the shelter structure to sit, stand, and lie in a normal manner, and to turn about freely. In addition to the shelter structures, one or more separate outside areas of shade must be provided, large enough to contain all the animals at one time and protect them from the direct rays of the sun. Shelters in outdoor facili- ties for dogs or cats must contain a roof, four sides, and a floor, and must:

    *8 (1) Provide the dogs and cats with adequate protection and shelter from the cold and heat;

   (2) Provide the dogs and cats with protection from the direct rays of the sun and the direct effect of wind, rain, or snow;

   (3) Be provided with a wind break and rain break at the entrance; and

   (4) Contain clean, dry, bedding material if the ambient temperature is below 50 ° F (10 ° C). Additional clean, dry bedding is required when the temperature is 35 ° F (1.7 ° C) or lower.

   (c) Construction. Building surfaces in contact with animals in outdoor housing facilities must be impervious to moisture. Metal barrels, cars, refrigerators or freezers, and the like must not be used as shelter structures. The floors of outdoor housing facilities may be of compacted earth, absorbent bedding, sand, gravel, or grass, and must be replaced if there are any prevalent odors, diseases, insects, pests, or vermin. All surfaces must be maintained on a regular basis. Surfaces of outdoor housing facilities--including houses, dens, etc.--that cannot be readily cleaned and sanitized, must be replaced when worn or soiled.

   . . . .

   § 3.6 Primary enclosures.

   Primary enclosures for dogs and cats must meet the following minimum requirements:

   (a) General requirements.

   (1) Primary enclosures must be designed and constructed of suitable materials so that they are structurally sound. The primary enclosures must be kept in good repair.

   (2) Primary enclosures must be constructed and maintained so that they:

   (i) Have no sharp points or edges that could injure the dogs and cats;

   (ii) Protect the dogs and cats from injury;

   . . . .

   (iv) Keep other animals from entering the enclosure;

   . . . .

   (xi) Provide sufficient space to allow each dog and cat to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner.

   . . . .

ANIMAL HEALTH AND HUSBANDRY STANDARDS

   . . . .

   § 3.8 Exercise for dogs.

   Dealers, exhibitors, and research facilities must develop, document, and follow an appropriate plan to provide dogs with the opportunity for exercise. In addition, the plan must be approved by the attending veterinarian. The plan must include written standard procedures to be followed in providing the opportunity for exercise. The plan must be made available to APHIS upon request, and, in the case of research facilities, to officials of any pertinent funding Federal agency. . . .

   . . . .

   § 3.9 Feeding.

   . . . .

   (b) Food receptacles must be used for dogs and cats, must be readily accessible to all dogs and cats, and must be located so as to minimize contamination by excreta and pests, and be protected from rain and snow. Feeding pans must either be made of a durable material that can be easily cleaned and sanitized or be disposable. If the food receptacles are not disposable, they must be kept clean and must be sanitized in accordance with § 3.11(b) of this subpart. Sanitization is achieved by using one of the methods described in § 3.11(b)(3) of this subpart. If the food receptacles are disposable, they must be discarded after one use. Self-feeders may be used for the feeding of dry food. If self-feeders are used, they must be kept clean and must be sanitized in accordance with § 3.11(b) of this subpart. Measures must be taken to ensure that there is no molding, deterioration, and caking of feed.

    *9 § 3.10 Watering.

   If potable water is not continually available to the dogs and cats, it must be offered to the dogs and cats as often as necessary to ensure their health and well- being, but not less than twice daily for at least 1 hour each time, unless restricted by the attending veterinarian. Water receptacles must be kept clean and sanitized in accordance with § 3.11(b) of this subpart, and before being used to water a different dog or cat or social grouping of dogs or cats.

   § 3.11 Cleaning, sanitization, housekeeping, and pest control.

   (a) Cleaning of primary enclosures. Ex- creta and food waste must be removed from primary enclosures daily, and from under primary enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent soiling of the dogs or cats contained in the primary enclosures, and to reduce disease hazards, insects, pests and odors. When steam or water is used to clean the primary enclosure, whether by hosing, flushing, or other methods, dogs and cats must be removed, unless the enclosure is large enough to ensure the animals would not be harmed, wetted, or distressed in the process. Standing water must be removed from the primary enclosure and animals in other primary enclosures must be protected from being contaminated with water and other wastes during the cleaning. The pans under primary enclosures with grill-type floors and the ground areas under raised runs with wire or slatted floors must be cleaned as often as necessary to prevent accumulation of feces and food waste and to reduce disease haz- ards [,] pests, insects[,] and odors.

   (b) Sanitization of primary enclosures and food and water receptacles. (1) Used primary enclosures and food and water receptacles must be cleaned and sanitized in accordance with this section before they can be used to house, feed, or water another dog or cat, or social grouping of dogs or cats.

   (2) Used primary enclosures and food and water receptacles for dogs and cats must be sanitized at least once every 2 weeks using one of the methods prescribed in paragraph (b)(3) of this section, and more often if necessary to prevent an accumulation of dirt, debris, food waste, excreta, and other disease hazards.

   (3) Hard surfaces of primary enclosures and food and water receptacles must be sanitized using one of the following methods:

   f(i) Live steam under pressure;

   (ii) Washing with hot water (at least 180 ° F (82.2 ° C)) and soap or detergent, as with a mechanical cage washer; or

   (iii) Washing all soiled surfaces with appropriate detergent solutions and disinfectants, or by using a combination detergent/disinfectant product that accomplishes the same purpose, with a thorough cleaning of the surfaces to remove organic material, so as to remove all organic material and mineral buildup, and to provide sanitization followed by a clean water rinse.

   (4) Pens, runs, and outdoor housing areas using material that cannot be sanitized using the methods provided in paragraph (b)(3) of this section, such as gravel, sand, grass, earth, or absorbent bedding, must be sanitized by removing the contaminated material as necessary to prevent odors, diseases, pests, insects, and vermin infestation.

    *10 (c) Housekeeping for premises. Premises where housing facilities are located, including buildings and surrounding grounds, must be kept clean and in good repair to protect the animals from injury, to facilitate the husbandry practices required in this subpart, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin. Premises must be kept free of accumulations of trash, junk, waste products, and discarded matter. Weeds, grasses, and bushes must be controlled so as to facilitate cleaning of the premises and pest control, and to protect the health and well-being of the animals.

   9 C.F.R. §§ 1.1; 2.40, .50(a), (b), (d), .100(a); 3.1(a), (c)(1)(i), (c)(2), (f), .3(e)(1)(i), .4(b), (c), .6(a)(1), (a)(2)(i), (a)(2)(ii), (a)(2)(iv), (a)(2)(xi), .8, .9(b), .10, .11(a), (b), (c).

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER

(AS MODIFIED)

   . . . .

Statement of Facts

   Respondent . . . has, since [January 20,] 1990[,] owned and operated a kennel in Ava, Missouri, which her father had started [(Tr. 211)]. Respondent has about 200 adult breeding dogs [(Tr. 213)] and a varying number of puppies [(CX 1 at 1, item 9 (60 puppies); CX 2 at 1, item 9 (30 puppies); CX 4 at 1, item 9 (84 puppies); CX 6 at 1, item 9 (61 puppies); CX 7 at 1, item 9 (16 puppies); CX 8 at 1, item 9 (39 puppies); CX 9 at 1, item 9 (55 puppies); and CX 10 at 1, item 9 (24 puppies))]. She sells the dogs mostly to brokers [(Tr. 212)]. Respondent was licensed by [the Animal and Plant Health Inspection Service [hereinafter APHIS]] as a dealer until June 1997, when her [class B] license [] expired [and] APHIS refused to re-license her [(Tr. 212, 217)].

   Respondent is assisted in the overall operation of the kennel by Ronnie Williams [(Tr. 62, 179-80)] and has two full- time and several part-time workers [(Tr. 283)]. At approximately the center of the kennel is a mobile home that Respondent converted into an animal shelter where dogs with puppies are kept [(Tr. 279)]. The shelter is lined with fiberglass that is washable and impervious to moisture [(Tr. 279)]. The shelter has 25 separate pens with doors leading to outside runs [(Tr. 279)]. The runs in the front of the shelter are concrete, while the runs in the back, where the puppies are kept, are elevated with wire mesh to keep the puppies clean and dry [(Tr. 279-80)]. Respondent also has about 40 outdoor doghouses [(Tr. 213)]. Respondent, who says that she wants her dogs to be "happy and healthy" with room to run, provides them with runs that are 150 feet long and 50 feet wide (Tr. 226).

   The pens are separated by a 6-foot chain link fence [(Tr. 280)] and an electric fence to restrain the dogs [(Tr. 50-53)]. The electric fence, which her father had installed [(Tr. 230)], has one wire 6 inches off the ground with a second wire about 2 feet above ground level [(Tr. 51-52)]. The entire facility is surrounded by a "field" fence [(Tr. 227, 230)]. In addition to the kennel dogs, Respondent also owns, as personal pets, another six dogs that are free to roam the area [(Tr. 230-31)].

    *11 Until 1994, Respondent was inspected by APHIS inspectors about once a year [(Tr. 33, 213)]. These inspections revealed no significant problems with Respondent's compliance with the Animal Welfare Act, except for [a failure to properly identify dogs] in 1992 [(Tr. 213-14, 278). Respondent] then began tattooing her dogs to identify them individually because of problems [Respondent] encountered when [Respondent] had used tags for that purpose, i.e., dogs losing their tags [(Tr. 214-15). Respondent] tattooed a four-digit identification in a dog's ear, but, when APHIS required a five-digit code, [Respondent] found that it would not fit in the ear of a small dog or puppy. [Respondent] had to buy new and more expensive electric tattooing equipment to put the tattoo on a dog's flank. (Tr. 217-18.)

   In March 1994, the regional APHIS office [in Ft. Worth, Texas,] received a call from an animal [rights] activist, [most likely] named Jim Swaine, who accused Respondent of not providing food and water to her animals [(Tr. 12-13, 19-20)]. APHIS' policy is to conduct an inspection when[ever] it receives a complaint. [APHIS officials] refer to such inspections as "complaint driven." (Tr. 20, 125-26.)

   APHIS inspector Joe Johnston conducted [a "complaint driven"] inspection [on March 2, 1994 (CX 1)]. Inspector Johnston had inspected Respondent's kennel in the past and said that he had found "nothing really unusual" at these inspections: "Nothing just -- Sometimes she would -- It seemed like to me sometimes she would have a violation or two or -- and then she would correct them." [(Tr. 28.)] As for the complaint-driven inspection [inspector] Joe Johnston conducted on March 2, 1994, he testified that he found no basis for Mr. Swaine's claim that the animals were not receiving food and water. Overall, he said, the facility was a "fairly good kennel." [(Tr. 13.)] He nevertheless proceeded to inspect "every pen, [every] run, [every] dog[. . . ." (Tr. 16.)] He found that one dog was emaciated and that another had a prolapsed uterus and that both needed a "vet's" attention; that one doghouse was in poor repair; and that 12 dogs, although individually identified, did not have a kennel identification [(Respondent's USDA-assigned license number "MOBAD")]. (Tr. 13 [-14], 28-29; [CX 1].) Jim Swaine, the [animal rights] activist, called [inspector] Johnston at his home several times thereafter to complain about Respondent's kennel[; and Mr. Swaine called inspector Gauthier in California, while inspector Gauthier was on assignment out of his normal territory, the territory encompassing Respondent's kennel, to complain about Respondent's kennel]. (Tr. [22-]23[, 124-25].)

   Respondent testified that she had recently purchased the emaciated dog in that condition and had assumed that the condition was due to the dog being "wormy" which, in the majority of instances, is the cause of the emaciation. [Respondent testified that emaciation ] . . . can usually be corrected by worming the emaciated dog. However, when the dog did not [gain] weight after being wormed, Respondent had the dog [examined] by her veterinarian who found that the dog's condition was caused by a liver disease. Respondent had the dog euthanized. (Tr. 218- 19.)

    *12 As for the dog with the prolapsed uterus, Respondent's veterinarian, Dr. J. A. Schmidt, testified that dogs with a prolapsed uterus are often seen in the breeding industry and that the condition occurs in some dogs when they are pregnant or in heat and that the condition resolves itself. The treatment he prescribes in the meantime is to keep the dog clean and safe from injury by other dogs. (Tr. 154-55.)

   Respondent testified that she was aware of the dog's condition at the time of the inspection and was following Dr. Schmidt's advice to keep the dog clean and safe. She also said that the veterinarian told her that the dog would have the problem every time the dog went into heat. Rather than have the dog destroyed, Respondent found a "good home" for the dog whose new owner agreed to have her spayed. (Tr. 219-21.)

   A follow-up inspection was conducted a month later, on April 1, 1994, by APHIS inspector Jim Gauthier. . . . Inspector Gauthier [found no new violations and] found that the deficient items that inspector Johnston had reported had been corrected, except that identification tags had not been put on the dogs. (CX 2 [at 2]; Tr. 36-37, 42.)

   Inspector Gauthier conducted another inspection on August 30, 1994 [(Tr. 42)]. He was accompanied by a state inspector [(Tr. 43). Inspector Gauthier] noted on his inspection report that [Respondent's failure] to provide kennel identification was to be corrected by September 16, [1994 (Tr. 44; CX 4 at 2)]. He also found that the treatment being provided to a bull mastiff for a skin problem was not working [(Tr. 45-46; CX 4)]. Inspector Gauthier's inspection report states that he found that two doghouses had loose windbreaks while another three did not have windbreaks; that two [doghouses] had no floors; that three [doghouses] had loose or broken wires; and that a "few" water pans were turning green (CX 4).

   Inspector Gauthier testified that he remembered that the bull mastiff had dry, rough skin. As for the other violations at the kennel, he said they were "typical" for that type of facility:

   [Respondent Marilyn Shepherd] has wooden dog houses. Any time you have wooden dog houses with the number of dogs that Marilyn has, you're going to get wood rot and you're going to have dry rot, you're going to have dogs chewing on them. They are typical wooden house problems that come with using wooden dog houses and you can't get away from it unless you get away from the wooden dog houses.

   Tr. 46.

   Respondent admitted that:

   You know, as Mr. Gauthier testified, any time you use a wooden dog house, it's just a matter of constant maintenance. You just have to watch them. It's virtually impossible to have every scratch painted at every second. I mean, while I'm painting one house, the dog's over there chewing the wood off another one.

   Tr. 222-23. Ronnie Williams testified that in 30 minutes a dog can "chew plumb through a two by six if he gets in the mood to chew" and that one bulldog chewed all the way through a windbreak in one morning (Tr. 197).

    *13 As for cleaning the water pans, Respondent testified that she has the water pans rinsed [with fresh water and refilled with fresh water] every day (Tr. 224). Ronnie Williams, who helps Respondent operate the kennel, testified that, although the water pans are disinfected every 1 to 2 weeks with a chlorine solution, algae can form overnight in the summer, but that it is not harmful to dogs, and that a dog's water pan is going to look dirty just as soon as a dog with dirt on its muzzle puts it in a water pan to drink (Tr. 178).

   As for the bull mastiff with the skin problem, Respondent testified that the dog had been examined by her veterinarian and that she had called him about the care for the dog (Tr. 224-25). The veterinarian, Dr. Schmidt, testified that there can be several causes for a dog's skin problem and that the condition can sometimes take months to heal. He said that a person could not tell whether the condition had improved just by looking at it once in the course of its treatment. (Tr. 151-52, 172.)

   Inspector Gauthier conducted another inspection on September 19, 1994 (Tr. 50). However, no inspection report was presented concerning the results of that inspection.

   Inspector Gauthier's next inspection was on March 27, 1995 [(CX 6)]. The inspection report states that two doghouses needed windbreaks and that the water receptacles needed to be cleaned [(CX 6 at 2, item 7, III, #23, #35)]. It also states that the electric fence needed to be changed to protect the dogs from outside animals (CX 6 [at 2, item 7, III, #29]).

   The electric fence had not been previously cited as a non-compliant matter by either inspector Gauthier or inspector Johnston at any of the inspections that they had conducted of the facility over almost a 5-year period. Bruce Mammeli, an APHIS supervisor, claimed that he was unaware of the electric fence until he visited Respondent's facility in the fall of 1994. [(Tr. 140.)] He decided that it did not meet APHIS' requirements for a primary enclosure because he did not believe that the fence would keep large dogs in and predators out. He advised [Respondent] to request a variance. (Tr. 140-142.) The request was denied in a letter from APHIS, dated May 19, 1995, which states in part:

   An electric fence, such as yours is not structurally sound, as the standards for primary enclosures require. Also there have been instances of animals escaping and or being electrocuted in facilities that have utilized electric fences for the primary enclosure. . . .

   The use of electric fences as primary enclosures and or perimeter fences does not comply with the standards, and has never been allowed under the AWA. Electric fences used in conjunction with a proper primary enclosure or perimeter fence, such as at the top or close to the bottom of the primary enclosure fence, may be permissible if properly constructed and operated. The use of electric fences as the sole restraining device has never been approved and does not provide proper protection and restraint for the animals. Therefore the request for a variance is denied.[ [FN3]]

    *14 RX 4.

   Respondent challenged APHIS' determination with a letter from the manufacturer of the fence who said that millions of its U/L [Underwriters Laboratories] approved fences had been sold for 50 years "without one single instance of injury to anyone" and had been used "worldwide for every conceivable application, from controlling livestock on farms, controlling wild animals in city zoos, protecting gardens, flower beds from small animals such as dogs, rabbits, raccoons, etc." (RX 1).

   Dr. Schmidt testified that in his experience an electric fence similar to Respondent's two-wire fence protected sheep from coyotes, so "[i]f it keeps predators out, it'll keep dogs in." [(Tr. 148).] He said that U/L [Underwriters Laboratories] certified fences will not harm animals and that they are even recommended by the USDA's Extension Service to protect animals from predators. (Tr. 148-51, 164.)

   [Inspector] Gauthier's next inspection was on June 5, 1995. His inspection report states "[a]ll items are in compliance this inspection." (CX 7 at 2.) However, a complaint that there were dead animals at Respondent's facility prompted another complaint-driven inspection on December 18, 1995 [(CX 8). Inspector] Gauthier did not find any dead animals at the kennel, but did find that Respondent was giving fresh bones to her dogs. [Inspector Gauthier] reported the matter as a violation because he thought [that] there were too many bones, when there should have been only one [bone] per dog, that, while the dogs could be given bones, [residual] bones had to be picked up when [the dogs] were given new bones, and that, although it was December, the bones, "in warmer weather," would be unsanitary because they would cause odors and attract flies and maggots. (Tr. 57, 61, 69.) [Inspector Gauthier's] report states "old bones in units must be picked up - there are way to [sic] many in pens." [(CX 8 at 2, item 7, III, #37.) Inspector Gauthier's] report also states that Respondent was not in compliance with APHIS' standards for animal care because some runs were not cleaned daily, holes of unspecified dimensions were present in five doghouses, wind and weather breaks were missing from three houses, and the electric fence needed a primary fence around it. (CX 8 at 2[, item 7, III, #10, #23, #29, #36].)

   Respondent and Ronnie Williams testified that they fed the dogs bones with fresh meat on them for a period of about 6 months. Respondent and Ronnie Williams said that wood chewing by the dogs decreased when the dogs were given bones to chew on because they are "probably the most natural chew toy that you can give an animal. It keeps the tarter [sic] off their teeth. It gives them something to chew on besides the front of their dog houses. . . ." [(Tr. 196- 97.)] Respondent and Ronnie Williams said that bones with meat are a high source of protein and, for carnivores, such as dogs, bones are superior to commercial dog food made from corn and soybean with the result that the dogs' teeth and gums were healthier, their coats shinier, and they had more milk when they had puppies (Tr. 196, 233).

    *15 Respondent and Ronnie Williams also testified that they gave meat and bones to the dogs in the evening and were careful to give them only [the amount of] meat they could consume in a few hours so that the meat would not deteriorate and become maggot infested. The bones were then picked up in the morning before giving the dogs fresh bones. However, Respondent stopped giving the bones to the dogs because of the inspectors' objections. (Tr. 196-208, 232- 33.) [Respondent testified that] "I saw a lot of benefits, but I got hassled about it so much, I just chucked it in. I said to heck with it." [(Tr. 233.)]

   [Inspector] Gauthier conducted his next inspection on February 15, 1996. His inspection report states that "some outdoor houses have had holes repaired but there are more that are in need of repair"; "one unit with three large dogs only have [sic] one dog house & is not large enough for all animals without discomfort"; "3 calf huts have doorways that need to be smaller to restrict air flow"; "some wind breaks have been repaired but more are in need of repair or replacing"; "fencing around one pen is not in good repair - this unit must be replaced"; "there are broken wires in about half of the outdoor runs"; "all ground runs must be picked up daily"; "old bones in runs have not been picked up"; "wire in indoor housing is rusting & need replacing"; "all trash must be stored in a container with a lid - trash is in feed sack"; "inside building has some raw wood that needs sealing & a few boards that are chewed that need replacing so sealing may be done"; "all items in two small rooms with dogs with pups must be impervious to moisture - old sacks & other items in these rooms must be cleanable or removed"; "two calf huts used for dog houses had holes in floor"; "all outdoor dog houses must have bedding when temp is below 50°>> F, temp today is about 38° F, no bedding"; "four pet taxies are being used as primary housing for mid sized dogs - nowhere close to being large enough"; "no written plan for exercise for dogs in pet taxies"; "a few feed pans are rusty & need replacing"; "a few water pans are rusty and need replacing"; and the electric fence needed a primary fence around it (CX 9).

   Inspector Gauthier testified that the condition of the facility at this inspection was the worst he had seen it [(Tr. 61)], but that nothing "jumps out" of his memory of the inspection except for the kennel appearing neglected, the overcrowding, and that the kennel did not have the "cleanest conditions in the world." [(Tr. 63).] However, he said he also remembered that the dogs all seemed healthy (Tr. 63).

   Respondent admitted that she had "gotten behind" in the general maintenance of the kennel at the time of the February inspection. She said this was caused by her helper, Ronnie Williams, going to the hospital in December and then being "laid up for the next six months and totally unable to do anything. . . ." (Tr. 238.) Inspector Gauthier confirmed that Williams, whom he knew helped Respondent with the kennel's operation and maintenance, had been in the hospital for surgery (Tr. 61).

    *16 As for the references to "calf hutches" in the inspection report, Respondent said this refers to structures for calves made of polyethylene. She said that she began acquiring them to use as outdoor doghouses at the kennel as the answer to all the maintenance problems she had had with wooden houses. She said the calf shelters, although more expensive than wooden doghouses, are easier to clean, impervious to moisture, don't rust, and don't need to be painted and that, according to her reading of APHIS' regulations, they did not need a floor and could be put on compacted earth. (Tr. 223.) Williams also said that the calf shelters had rain and windbreaks, but that inspector Gauthier told him that the shelters had to have smaller entrances, a floor, and additional rain and windbreaks. He said he complied and put floors and windbreaks on the shelters. (Tr. 181-86.)

   Respondent testified that many of the housekeeping problems were due to a renovation taking place at that time at the kennel where the puppies were located. As for the dogs in the pet taxis, she said they had been put there to be cleaned and vaccinated and that they were held there for no more than a day. In regard to the alleged lack of bedding, she said the weather was "wet and nasty" that day and that a worker was in the process of replacing the bedding at the time of the inspection. Respondent said, concerning the citations for untreated or unpainted wood, that she treated all exposed wood surfaces with a clear sealer called Thompson's Water Seal and that one cannot determine whether a surface has been treated with [Thompson's] Water Seal just by looking at it. (Tr. 240-45.) Also, as directed by APHIS inspectors, Respondent put [chicken] wire on the field fence surrounding her facility to make it into a perimeter fence to restrain any dog who might get through the electric fence (Tr. 115).

   Inspector Gauthier, who gave Respondent until March 15[, 1996,] to correct the deficiencies, returned on April 17[, 1996,] for a follow-up inspection. His report states that all the violations identified at the February [15, 1996,] inspection had been corrected except that three doghouses still needed repair. He also found two new non-compliant items, a doghouse whose new top needed to be sealed (which the report indicates was done that day) and outside runs with chicken wire that needed to be repaired or replaced. (CX 10 [at 2-3].) Respondent stated that after the inspection she looked for the doghouses that inspector Gauthier said needed repair, but "I couldn't find any houses anywhere that were in need of any kind of repair and I went through the entire kennel." (Tr. 73.) Inspector Gauthier admitted that Respondent had asked him which houses he was referring to in his report and that he said he could not remember: "I knew that there was -- there [were] three dog houses, but I can't tell you which three. That's my fault. I should have been documenting which pen they were in." (Tr. 75.)

    *17 Inspector Gauthier was accompanied at the inspection by Mark Westrich, an APHIS senior investigator, whose function is to investigate and document violations of the Animal Welfare Act that APHIS considers "habitual in nature." Mr. Westrich then prepared a confidential report that he forwarded to his superiors which in turn resulted in the Complaint being filed by Complainant against Respondent, or, as Mr. Westrich said at the hearing, "caused us to be sitting here at the table today." (Tr. 135.)

Discussion

   [One of t]he principal purpose[s] of the Animal Welfare Act is to ensure the humane care and treatment of animals regulated under the [Animal Welfare] Act (7 U.S.C. § 2131). Section 2.100(a) of the . . . [R]egulations (9 C.F.R. § 2.100(a)) provides that "[e]ach [animal] dealer . . . shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals." Complainant can seek monetary penalties and the suspension or revocation of a dealer's license for a violation of the [Animal Welfare Act or the Regulations and Standards (7 U.S.C. § 2149)]. Complainant has the burden of proving a violation by a preponderance of the evidence. In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993)[, aff'd, 34 F.3d 1301 (7th Cir. 1994)].

   Inspection on March 2, 1994 [(CX 1)]. The Complaint (¶ VIII) alleges that Respondent violated section 2.40 of the [R]egulations (9 C.F.R. § 2.40) on March 2, 1994, by failing to provide veterinary care for animals in need of care; section 2.50 of the [R]egulations (9 C.F.R. § 2.50) by failing to individually identify dogs; and section 3.1(a) of the [S]tandards (9 C.F.R. § 3.1(a)) by failing to maintain . . . housing facilities in good repair.

   Inspector Johnston identified two dogs in need of veterinary care. One had a prolapsed uterus and another . . . was emaciated. Respondent, however, was providing care for the dog with a prolapsed uterus under the directions of her attending veterinarian. She was therefore in compliance with [section 2.40 of the Regulations (9 C.F.R. § 2.40) with respect to] the care of this animal. As for the emaciated dog, [Respondent] . . . violated section 2.40 of the Regulations. . . . [The dog had] a liver disease, rather than worms [as Respondent had assumed, but irrespective of her incorrect assumption,] she should have consulted her veterinarian sooner than she did for the proper treatment for the dog.

   As for identifying the dogs, Respondent, contrary to the Complainant's allegations, had individually identified the dogs. However, she had not provided a kennel identification for [12] dogs. . . . Accordingly, Respondent violated section 2.50 [of the Regulations (9 C.F.R. § 2.50)] on March 2, 1994. . . .

   Respondent also violated section 3.1(a) [of the Standards (9 C.F.R. § 3.1(a))] by not maintaining one doghouse in good repair.

    *18 Inspection on April 1, 1994 [(CX 2)]. The only alleged violation at this inspection (Compl. ¶ VII) was the failure, detected at the March 2, 1994, inspection, to individually identify [12] dogs. [Irrespective of the fact that Complainant had allowed Respondent until April 2, 1994, for correction, the failure to identify 12 dogs on April 1, 1994, is a violation of section 2.50 of the Regulations (9 C.F.R. § 2.50)]. . . .

   Inspection on August 30, 1994 [(CX 4)]. The Complaint (¶ VI) alleges that at this inspection Respondent violated section 2.40 of the [R]egulations [(9 C.F.R. § 2.40)] by failing to provide veterinary care for a dog; section 3.1(a) of the [S]tandards [(9 C.F.R. § 3.1(a))] by not maintaining [housing facilities] in good repair; section 3.4(b) [of the Standards (9 C.F.R. § 3.4(b))] by not providing animals with [housing facilities which adequately protect the animals] from the elements; and section 3.10 [of the Standards (9 C.F.R. § 3.10)] by not keeping water receptacles clean [and sanitized].

   The dog allegedly not receiving veterinary care (a mastiff with dry skin) was under a veterinarian's care. The treating veterinarian testified that a skin condition sometimes takes a long period of time to correct and that a layman could not tell from just one observation whether the treatment was working. Complainant has therefore failed to show by a preponderance of the evidence that the dog was not receiving adequate veterinary care, in violation of section 2.40 [of the Regulations (9 C.F.R. § 2.40)].

   Respondent did not challenge the inspector's findings that some housing facilities needed repair, except to point out that the problem was ongoing and typical for kennels with wooden doghouses. The inspector agreed that the problem was due to the destructive nature of dogs to chew anything made of wood. However, even though maintenance of wooden doghouses is recognized as a common problem, [a number of Respondent's doghouses were not maintained in good repair, so as to protect the animals from injury and provide the animals with adequate protection from the elements, in] violation of sections 3.1(a) and 3.4(b) [of the Standards (9 C.F.R. §§ 3.1(a), .4(b))].

   Respondent argued that, although a water receptacle may have a green coloring and the water may be discolored after a dog puts his or her muzzle in [the water receptacle, green coloring and discoloration do] not make the water unsafe for animals to drink. Respondent also testified that she gives the dogs fresh water daily and follows the Standards for sanitizing the water receptacles. However, the Standard (9 C.F.R. § 3.10) does not refer to whether the water is safe to drink, but whether the receptacle for the water is kept "clean and sanitized in accordance with section 3.11(b) of this subpart . . .". Thus, a [water] receptacle with a green stain from algae is not in compliance [with section 3.10 of the Standards (9 C.F.R. § 3.10)] even though it constitutes no danger to an animal. Respondent therefore violated section 3.10 [of the Standards (9 C.F.R. § 3.10)].

    *19 Inspection on March 27, 1995 [(CX 6)]. The Complaint (¶ V) alleges that Respondent violated section 3.4(b) of the [S]tandards [(9 C.F.R. § 3.4(b))] by not providing animals with [housing facilities which adequately protect the animals] from the elements; section 3.10 [of the Standards (9 C.F.R. § 3.10)] by not keeping water receptacles clean and sanitized; and section 3.6(a)(1) [of the Standards (9 C.F.R. § 3.6(a)(1))] by [failing to provide primary enclosures for dogs that are structurally sound and maintained in good repair].

   Respondent's failure to have a windbreak on [two] doghouse[s] did not provide dogs with adequate protection from the elements and was therefore a violation of section 3.4(b) [of the Standards (9 C.F.R. § 3.4(b))]. The [failure to keep] water receptacle[s clean] was a violation of section 3.10 [of the Standards (9 C.F.R. § 3.10)].

   As for the electric fence, section 3.6(a)(1) [of the Standards (9 C.F.R. § 3.6(a)(1))] provides only that primary enclosures be structurally sound and kept in good repair. . . . Complainant did not show by a preponderance of the evidence . . . that Respondent's electric fence was in poor repair or structurally unsound. . . . [Footnote 2 omitted.]

   Inspection on June 5, 1995 [(CX 7)]. The Complaint does not allege any violations at this inspection and the record does not show any.

   Inspection on December 18, 1995 [(CX 8)]. The Complaint (¶ IV) (which [inadvertently] gives the inspection date as December 16[, 1995,]) alleges that at this inspection Respondent violated section 3.1(a) [of the Standards (9 C.F.R. § 3.1(a))] by not maintaining [housing facilities] in good repair; section 3.4(b) [of the Standards (9 C.F.R. § 3.4(b))] by not providing the animals with [housing facilities which adequately protect the animals] from the elements; section 3.6(a)(1) [of the Standards (9 C.F.R. § 3.6(a)(1))] by not maintaining [primary enclosures for dogs] in good repair; section 3.11(a) [of the Standards (9 C.F.R. § 3.11(a))] by not keeping primary enclosures clean; and [section] 3.11(c) [of the Standards (9 C.F.R. § 3.11(c))] by not keeping the [premises] clean of [residual] bones.

   The record establishes that Respondent violated sections 3.1[(a)], 3.4(b), and 3.11(a) [of the Standards (9 C.F.R. §§ 3.1(a), .4(b), and .11(a))] by failing to keep some runs clean; failing to repair holes in some doghouses; and failing to replace windbreaks on some of the doghouses at the time of the inspection.

   As for the dog bones, section 3.11(c) [of the Standards (9 C.F.R. § 3.11(c))] provides that the premises must be kept free of accumulations of discarded matter and waste products. The inspector suggested that having more than one bone per dog was an excessive accumulation and that old bones were not being removed each day. However, there is no restriction in the Standards on the number of bones a dog can have and Respondent presented more credible evidence than Complainant that [residual] bones were regularly cleaned from the premises. Complainant has therefore failed to prove by a preponderance of the evidence that Respondent violated section 3.11(c) [of the Standards (9 C.F.R. § 3.11(c)). Moreover, Complainant has failed to prove by a preponderance of the evidence that Respondent's electric fence was in poor repair or structurally unsound, in violation of section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1))].

    *20 Inspection on February 15, 1996 [(CX 9)]. The Complaint (¶ III) alleges violations of section 3.1(a) [of the Standards (9 C.F.R. § 3.1(a))] for housing not being structurally sound; section 3.1(c)(1)(i) [of the Standards (9 C.F.R. § 3.1(c)(1)(i))] for excessive rust; section 3.1(f) [of the Standards (9 C.F.R. § 3.1(f))] for improper trash storage; section 3.3(e)(1)(i) [of the Standards (9 C.F.R. § 3.3(e)(1)(i))] for surfaces not being impervious to moisture; section 3.4(b) [of the Standards (9 C.F.R. § 3.4(b))] for [not providing the animals with housing facilities which adequately protect the animals] from the elements; section 3.6(a)(1) [of the Standards (9 C.F.R. § 3.6(a)(1))] for [primary enclosures] not being structurally sound; section 3.6(a)(2)(xi) [of the Standards (9 C.F.R. § 3.6(a)(2)(xi))] for [primary enclosures for dogs which were not constructed so that they provide sufficient] space; section 3.8 [of the Standards (9 C.F.R. § 3.8)] for no exercise plan; section 3.9(b) [of the Standards (9 C.F.R. § 3.9(b))] for unclean food receptacles; section 3.10 [of the Standards (9 C.F.R. § 3.10)] for unclean water receptacles; section 3.11(a) [of the Standards (9 C.F.R. § 3.11(a))] for [primary] enclosures not being clean; and section 3.11(c) [of the Standards (9 C.F.R. § 3.11(c))] for not removing [residual] bones.

   Many of these allegations, which are contained in the findings in inspector Gauthier's inspection report (CX 9), were not refuted by Respondent, such as holes in some structures; excessive rust; a trash container not having a lid; debris not being removed from an area where animals were kept (although this was a temporary occurrence because of the renovation of the kennel); windbreaks in need of repair; inadequate space for three dogs; food and water receptacles not being clean; torn wire in fencing; and inadequate cleaning of dog runs. [Inspector] Gauthier gave Respondent until March 15[, 1996,] to correct these deficiencies. [All of] the deficiencies[, except the repair of three doghouses,] were corrected [by the time of the next inspection]. . . . However [, the subsequent correction of a condition not in compliance with the Regulations and Standards has no bearing on the existence of a violation]. In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992)[, aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2))]. It is therefore found that these [conditions] did not comply with the [S]tandards in sections 3.1(a), 3.1(c)(1)(i), 3.1(f), 3.4(b), 3.6(a)(1), 3.9(b), 3.10, and 3.11(a) [(9 C.F.R. §§ 3.1(a), .1(c)(1)(i), .1(f), .4(b), .6(a)(1), .9(b), .10, .11(a))].

   . . . .

   [The record does not support a finding that the indoor floor areas being remodeled as sheltered housing facilities were not impervious to moisture, in violation of section 3.3(e)(1)(i) of the Standards (9 C.F.R. § 3.3(e)(1)(i)).]

   For reasons discussed [in this Decision and Order, supra,] Complainant has not proven by a preponderance of the evidence that Respondent failed to remove [residual] bones from the [premises, in violation of section 3.11(c) of the Standards (9 C.F.R. § 3.11(c))].

    *21 The absence of bedding [required by section 3.4(b)(4) of the Standards (9 C.F.R. § 3.4(b)(4))] was only temporary due to it being changed at the time of the inspection because of the weather. Respondent therefore did not fail to provide bedding to her animals, in violation of [section 3.4(b)(4)] the Standards [(9 C.F.R. § 3.4(b)(4))].

   The dogs in the pet "taxis" were also being held there only temporarily to be cleaned and vaccinated. As the [pet] taxis were not the animals' primary shelter, [Respondent] did not violate section 3.6[(a)(2)(xi)] of the [S] tandards [(9 C.F.R. § 3.6(a)(2)(xi))] and likewise did not violate section 3.8 [of the Standards (9 C.F.R. § 3.8)] for not providing an exercise plan for these dogs. Cf. In re Otto Berosini, 54 Agric. Dec. 886, 918 (1995).

   [Inspector] Gauthier found that the "calf" huts did not comply with the Standards because the openings were too large and the huts either had no floor or there were holes in the floor. As the huts were obviously designed for an animal larger than most dogs, it was not unreasonable for [inspector] Gauthier to interpret the Standards as requiring that the openings to the huts and the windbreaks on the huts should be modified depending on the size of the dog in order to provide [the dogs] with adequate protection from the elements. Respondent therefore violated section 3.4(b) [of the Standards (9 C.F.R. § 3.4(b))] by not making such modifications to the calf huts before using them as [outdoor] dog shelters.

   . . . .

   Inspection on April 17, 1996 [(CX 10)]. At this inspection, [inspector] Gauthier found that all the violations that he found at the February [15, 1996,] inspection had been corrected, except for repair to three doghouses. He also found two new violations, viz., a need to seal the top of a doghouse (which was accomplished at that time) and a need to repair [or remove] chicken wire on the dog runs.

   The Complaint (¶ II) alleges that this failure to seal the top of the doghouse was a violation of section 3.4(c) [of the Standards (9 C.F.R. § 3.4(c))]; that the torn wire was a violation of section 3.6(a)(1), (a)(2)(i), and (a)(2)(ii) [of the Standards (9 C.F.R. § 3.6(a)(1), (a)(2)(i), (a)(2)(ii))]; and that the failure to repair the doghouses was a violation of section 3.1(a) of the Standards [(9 C.F.R. §3.1(a))].

   Complainant has not shown how [inspector] Gauthier determined that the wood on the roofs needed to be sealed. . . . As this allegation was not proven, there was no violation. However, as Respondent did not refute [inspector] Gauthier's finding that the wire in the dog runs was torn, she violated section 3.6 of the [S]tandards [(9 C.F.R. § 3.6)].

   With respect to the three doghouses allegedly in need of repair, [inspector] Gauthier testified that he could not remember the houses to which he was referring in his report. His report also fails to state specifically the reasons for his finding that the houses were not in compliance with the Standards. Complainant has therefore failed to prove a violation of section 3.1(a) [of the Standards (9 C.F.R. § 3.1(a))].

Sanction

    *22 The [United States Department of Agriculture's] sanction policy, as set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993), is that:

   [T]he sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

   Section [19](b) of the Animal Welfare Act (7 U.S.C. § 2149(b)) also commands, in determining the sanction to impose, that:

   The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. Any such civil penalty may be compromised by the Secretary.

   Complainant recommends a [civil] penalty of $11,000 and a 30-day suspension of Respondent's [Animal Welfare Act] license.

   The relevant circumstances to consider in determining the appropriateness of the penalty are that Respondent, prior to 1994, had no history of violating the Animal Welfare Act except for [failure to properly identify] dogs in 1992 and, when deficiencies were found, she corrected them. There is no evidence that Respondent treated her animals in an inhumane manner. Indeed, at the February 15, 1996, inspection, when the most deficiencies were found, the inspector also found that the dogs were in good health. . . .

   At two of the inspections in the course of frequent inspections over a 2-year period, prompted by unfounded complaints against Respondent . . ., the inspectors found no violations. . . . [A]t the last inspection of [Respondent's] facility in April 1996, [all] the deficiencies found at the previous inspection in February [1996, except for the repair of three doghouses,] had been corrected and only one . . . new [violation] was found. . . .

   Considering all the circumstances, including the gravity . . . of the violations, a civil penalty of [$2,000, a cease and desist order, and a 7-day suspension of Respondent's Animal Welfare Act license, or if Respondent is not licensed, a 7-day disqualification from becoming licensed under the Animal Welfare Act, are] sufficient to achieve the remedial purposes of the [Animal Welfare] Act.

Findings of Fact

   1. Respondent, Marilyn Shepherd, owns and operates a kennel in Ava, Missouri, where she breeds and raises dogs for sale.

   2. Until June 1997, [Respondent] was licensed under the Animal Welfare Act as a . . . dealer.

   3. On March 2, 1994, Respondent [failed to] provide timely veterinary care for a dog in need of care; [failed to] keep a doghouse in good repair; and [failed to] provide kennel identification for [12] of her dogs [(9 C.F.R. §§ 2.40, .50 .100(a); 3.1(a))].

    *23 4. On April 1, 1994, Respondent [failed to] provide kennel identification for [12] of her dogs [(9 C.F.R. § 2.50)].

   5. On August 30, 1994, Respondent [failed to] keep doghouses in good repair; [failed to provide housing facilities for dogs with adequate protection from the elements;] and [failed to] keep water receptacles clean [(9 C.F.R. §§ 2.100(a); 3.1(a), .4(b), .10)].

   6. On March 27, 1995, Respondent [failed to provide] . . . windbreaks on [two] doghouses and [failed to keep water receptacles clean] . . . [(9 C.F.R. §§ 2.100(a); 3.4(b), .10)].

   7. On December 18, 1995, Respondent failed to keep dog runs clean; failed to repair holes in doghouses; [and] failed to replace windbreaks on doghouses . . . [(9 C.F.R. §§ 2.100(a); 3.1(a), .4(b), .11(a))].

   8. On February 15, 1996, Respondent failed to remove excessive rust from surfaces; failed to have a lid on a trash container; failed to repair windbreaks; failed to keep food and water receptacles clean; failed to repair fencing; failed to clean dog runs; and failed to provide proper windbreaks on "calf huts" [(9 C.F.R. §§ 2.100(a); 3.1(a), .1(c)(1)(i), .1(f), .4(b), . 6(a)(1), .9(b), .10, .11(a))].

   9. On April 17, 1996, Respondent failed to repair wire in dog runs [(9 C.F.R. §§ 2.100(a); 3.6(a)(1), (a)(2)(i), (a)(2)(ii))].

Conclusions of Law

   Respondent violated the Animal Welfare Act (7 U.S.C. §§ 2131[-2159]) and the following sections of the Regulations and Standards: 9 C.F.R. §§ 2.40; 2.50; 2.100(a); 3.1(a); 3.1(c)(1)(i); 3.1(f); 3.4(b); 3.6; 3.9(b); 3.10; [and] 3.11(a). . . .

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

   The proponent of an Order has the burden of proof in proceedings conducted under the Administrative Procedure Act (5 U.S.C. § 556(d)), and the standard of proof by which the burden of persuasion is met is the preponderance of the evidence standard. [FN4] The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. [FN5] The ALJ found that Complainant proved 24 of the 31 violations alleged in the Complaint, as follows: paragraphs II(3); III(1)-(3), (5)-(7), (9)-(11); IV(1)- (4); V(1)-(3); VI(B)(1)-(3); VII; and VIII(A), (B), (C). With the exceptions of paragraphs III(7), IV(3), and V(2) of the Complaint, I agree with the ALJ. Also, I find that, although Complainant proved by a preponderance of the evidence the violation alleged in paragraph VII of the Complaint, the circumstances are such that no sanction, except a cease and desist order, shall apply to that violation.

   Both Complainant and Respondent appealed the ALJ's Initial Decision and Order. Complainant raises two issues in Complainant's Appeal Petition.

   First, Complainant contends that: "The ALJ erred in failing to find that Respondent violated [s]ection 3.3(e)(1)(i)." (Complainant's Appeal Petition at 2.)

   I disagree with Complainant. Paragraph III(4) of the Complaint alleges that:

   The surfaces of indoor floor areas of sheltered housing facilities for dogs that were in contact with the animals were not impervious to moisture (9 C.F.R. § 3.3(e)(1)(i)[).]

    *24 The Animal Care Inspection Report completed by inspector Gauthier after the February 15, 1996, inspection of Respondent's facility does indicate that at least one shelter had surfaces that did not comply with "3.3" (CX 9 at 1, item 20). However, the description of the violation in the Animal Care Inspection Report does not indicate, as alleged in paragraph III(4) of the Complaint, that "indoor floor areas . . . were not impervious to moisture," but rather states as follows:

   III. Noncompliant items newly identified

   # 20 Surfaces 3.3e = all items in two small rooms with dogs with pups must be impervious to moisture - old sacks & other items in these rooms must be cleanible [sic] or removed - correct by 3-15-96[.]

   CX 9 at 2.

   Inspector Gauthier testified that he did not recall any specifics regarding the violations cited on CX 9 (Tr. 59, 62-63). Further, Complainant's Appeal Petition does not provide any basis for reversing the ALJ's conclusion that Complainant failed to prove by a preponderance of the evidence that Respondent violated section 3.3(e)(1)(i) of the Standards (9 C.F.R. § 3.3(e)(1)(i)).

   Second, Complainant requests that the language used by the ALJ, in finding that Respondent committed a violation of section 2.50 of the Regulations (9 C.F.R. § 2.50), as alleged in paragraph VIII(B) of the Complaint, be changed to indicate to a reviewing court that Respondent was not granted "an extension of time" to come into compliance with section 2.50 of the Regulations (9 C.F.R. § 2.50) (Complainant's Appeal Petition at 4-5). I agree with Complainant's position that no extension of time to comply with section 2.50 of the Regulations (9 C.F.R. § 2.50) was granted to Respondent at the March 2, 1994, inspection, which is the subject of the allegations in paragraph VIII of the Complaint. Instead, the APHIS inspector states on the March 2, 1994, Animal Care Inspection Report, that Respondent's violation of section 2.50 of the Regulations (9 C.F.R. § 2.50) was to be "corrected" by April 2, 1994 (CX 1 at 2, item 7, III, #45). It is well settled that a correction date does not exculpate a respondent from the violation, and while corrections are to be encouraged and may be taken into account when determining the sanction to be imposed, a correction does not eliminate the fact that a violation occurred and does not provide a basis for dismissal of the alleged violation. [FN6] Complainant's request that I change the language used by the ALJ to indicate that Respondent was not granted an extension of time to comply with section 2.50 of the Regulations (9 C.F.R. § 2.50) is therefore granted.

   Respondent raises nine issues on appeal. First, Respondent restates the arguments supporting Respondent's use of an electric fence as a primary enclosure, which was cited as a violation in paragraphs IV(3) and V(2) of the Complaint (Respondent's Appeal Petition at 1, ¶ 1). Apparently, Respondent's electric fence operated as it is designed to operate, being sound and in good repair. Thus, I do not find that the electric fence, when used as a primary enclosure, necessarily violates section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)), unless unsound or in bad repair. [FN7]

    *25 Second, Respondent argues that the ALJ was in error to find that the openings on the calf huts were too large for dogs because there is no regulation on the size of openings of doghouses (Respondent's Appeal Petition at 1, ¶ 2). I infer that Respondent is appealing the ALJ's conclusion that Respondent violated section 3.4(b) of the Standards (9 C.F.R. § 3.4(b)), as alleged in paragraphs III(5) and V(1) of the Complaint, by failing to provide dogs in outdoor housing facilities with adequate protection from the elements. Respondent argues that new-born calves weigh about the same as larger breed dogs. The ALJ was not persuaded by this argument, and neither am I. As Complainant correctly argues in Complainant's Appeal Petition, the Standards do not require a certain size of opening on doghouses, but windbreaks and rainbreaks are required by 9 C.F.R. § 3.4(b)(3) (Complainant's Appeal Petition at 6).

   Third, Respondent argues that it was a denial of due process for Respondent not to receive a copy of APHIS Senior Investigator Mark Westrich's internal report to APHIS program officials documenting Respondent's violations (Respondent's Appeal Petition at 1, ¶ 3). Respondent argues that denial of access to Mr. Westrich's complaint-driven report interfered with Respondent's ability to defend herself in this disciplinary proceeding. Complainant argues against Respondent's position, pointing out that neither Respondent nor Complainant have the right to discovery in administrative proceedings (Complainant's Appeal Petition at 9-10). Complainant is correct that Respondent has no right to receive Mr. Westrich's report. Discovery is not available under the Rules of Practice. [FN8]

   Fourth, Respondent argues that the Federal Government should be required to remove all the algae from all federally- owned streams, ponds, and rivers where "federally owned wild animals" drink (Respondent's Appeal Petition at 1- 2, ¶ 4). Wild animals on federal land are not relevant to these proceedings.

   Fifth, Respondent argues that she did not fail to provide adequate veterinary care, in violation of section 2.40 of the Regulations (9 C.F.R. § 2.40), as alleged in paragraph VIII(A) of the Complaint, because Respondent insists that she is not guessing, but rather, it is "standard procedure" to first worm any emaciated dog of unknown background, rather than test for liver disease (Respondent's Appeal Petition at 2, ¶ 5). Complainant responds that Respondent does not deny that the dog had liver disease, that Respondent is not a veterinarian, and that the fact that Respondent tried to treat the dog herself is not a reason to overturn the ALJ (Complainant's Appeal Petition at 7). I agree with Complainant.

   Section 2.40 of the Regulations (9 C.F.R. § 2.40) is designed to ensure that sick animals are provided with prompt veterinary care by a veterinarian, not by a layman. These regulated sick animals are not to be treated by laymen through trial and error, while the animals' health suffers.

    *26 Sixth, Respondent argues that she did not fail to keep housing facilities for dogs clean, in violation of (I infer) section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)), as alleged in paragraph III(3) of the Complaint. Respondent states that the reason for the unclean conditions was remodeling of a kitchen, and the "debris" cited by the inspector was not debris, but rather, animal husbandry equipment (Respondent's Appeal Petition at 2, ¶ 6). Complainant proved by a preponderance of the evidence that debris, not animal husbandry equipment, had not been removed from an area where animals were kept. Although this condition was temporary because of the renovation of the kennel, Respondent's failure to remove debris constitutes a violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)), as alleged in paragraph III(3) of the Complaint.

   Respondent also argues that not having a lid on a trash container, as alleged in paragraph III(3) of the Complaint, should not be found to be a violation, because it is the first time Respondent violated that Standard (Respondent's Appeal Petition at 2, ¶ 6). Respondent is not accorded one free violation of the Regulations and Standards by the Animal Welfare Act, by the Regulations and Standards, or by the Rules of Practice. Respondent is required to be in compliance with the Regulations and Standards at all times (9 C.F.R. § 2.100(a)). The violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) in paragraph III(3) of the Complaint is affirmed.

   Seventh, Respondent argues that the ALJ's finding that Respondent committed the violation alleged in paragraph VIII(B) of the Complaint is erroneous and denies Respondent due process, because the Complaint charges failure to identify individual dogs, but the ALJ found failure to provide a kennel identification for some small dogs and puppies (Respondent's Appeal at 2, ¶ 7). The term "kennel identification" is another way of saying the licensee's USDA license number, which is "MOBAD" (Tr. 21). Complainant responds that Respondent is arguing lack of notice of the alleged violation, but that Respondent was provided notice of the Regulation (9 C.F.R. § 2.50), and the particular evidence (CX 1) showing that the violation was for not having a kennel identification number on these particular dogs (Complainant's Appeal Petition at 9). I agree with Complainant. It is well settled that the formalities of court pleading are not applicable in administrative proceedings. [FN9] Additionally, due process is satisfied when the litigant is reasonably apprised of the issues in controversy. It is only necessary that the complainant in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled. [FN10]

   Paragraph VIII(B) of the Complaint fully apprised Respondent that her failure to identify dogs in accordance with section 2.50 of the Regulations (9 C.F.R. § 2.50) was an issue in this proceeding and there has been no showing that Respondent was misled.

    *27 Eighth, Respondent alleges three points: (1) that one of the APHIS inspectors in this case wrote violations based upon non-existent regulations; (2) that there is another kennel 14 miles from Respondent's kennel, which was inspected and "passed" by this same inspector, even though this other kennel has obvious, egregious violations, which situation discriminates against Respondent; and (3) that the Complaint is not based upon actual violations, but rather, is based upon complaints from an animal rights activist (Respondent's Appeal Petition at 2-3, ¶ 8). I reject Respondent's allegations.

   On point one, APHIS inspectors only gather and provide evidence to the fact-finder, which in the first instance is an administrative law judge. Subsequent to an administrative law judge's initial decision and order, either party may appeal to the Secretary, who has, in turn, delegated authority to act as final deciding officer to the Judicial Officer. Thus, the inspector does not decide which regulations a respondent violated; the inspector only provides evidence about alleged violations. The Regulations and Standards, which Respondent is found to have violated, were found by the ALJ and the Judicial Officer and are not "non-existent regulations."

   On point two, Respondent alleges discrimination in enforcement of the Animal Welfare Act. Respondent promises to produce photographs and 30 eyewitnesses to show the alleged violative conditions at another kennel, but even if Respondent produces such evidence, it is nevertheless irrelevant to whether Respondent violated the Animal Welfare Act. Moreover, an examination of the record in this proceeding reveals no evidence that supports Respondent's contention that the Animal Welfare Act is being selectively enforced against her.

   However, even if Respondent could show that she was singled out for a disciplinary action under the Animal Welfare Act, such selection would be lawful so long as the administrative determination to selectively enforce the Animal Welfare Act was not arbitrary. [FN11] Respondent has no right to have the Animal Welfare Act go unenforced against her, even if she is the first individual against whom the Animal Welfare Act is enforced and even if Respondent can demonstrate that she is not as culpable as some others that have not had disciplinary proceedings instituted against them. The Animal Welfare Act does not need to be enforced everywhere to be enforced somewhere; and agency officials have broad discretion in deciding against whom to institute disciplinary proceedings for violations of the Animal Welfare Act.

   Sometimes enforcement of a valid law can be a means of violating constitutional rights by invidious discrimination and courts have, under the doctrine of selective enforcement, dismissed cases or taken other action if a defendant (Respondent in this proceeding) proves that the prosecutor (Complainant in this proceeding) singled out a respondent because of membership in a protected group or exercise of a constitutionally protected right. [FN12]

    *28 The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. [FN13] Respondent bears the burden of proving that she is the target of selective enforcement. One claiming selective enforcement must demonstrate that the enforcement policy had a discriminatory effect and that it was motivated by a discriminatory purpose. [FN14] In order to prove her selective enforcement claim, Respondent must show one of two sets of circumstances. Respondent must show: (1) membership in a protected group; (2) prosecution; (3) that others in a similar situation, not members of the protected group, would not be prosecuted; and (4) that the prosecution was initiated with discriminatory intent. [FN15] Respondent has not shown that she is a member of a protected group, that no disciplinary proceeding would be instituted against others in a similar situation that are not members of the protected group, or that the instant proceeding was initiated with discriminatory intent. In the alternative, Respondent must show: (1) she exercised a protected right; (2) Complainant's stake in the exercise of that protected right; (3) the unreasonableness of Complainant's conduct; and (4) that this disciplinary proceeding was initiated with intent to punish Respondent for exercise of the protected right. [FN16] Respondent has not shown any of these circumstances.

   On point three, activities of animal rights activists, like the activities of Mr. Jim Swaine described in this proceeding, sub judice, have been found to be irrelevant to a determination whether a respondent has violated the Animal Welfare Act and the Regulations and Standards, as alleged in a particular complaint. In re Fred Hodgins, 56 Agric. Dec. 1242, 1360-61 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997). I find that Mr. Swaine's activities are irrelevant here, as well.

   Ninth, Respondent ascribes corruption, blackmail, extortion, and abuse of power to inspectors and investigators for writing violations based upon non-existent regulations (Respondent's Appeal Petition at 3, ¶ 9). There is a presumption of regularity with respect to the official acts of public officers and in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. [FN17] There is no evidence on the record which indicates that the inspectors or investigators who were involved with the inspection of Respondent's facility were engaged in blackmail or extortion or were corrupt or abusing power.

   On March 24, 1998, Respondent filed Respondent's Reply. A careful review of the first 10 pages of Respondent's Reply reveals that Respondent merely reiterates prior arguments on several issues, which have already been examined in this Decision and Order, supra. The remainder of Respondent's Reply addresses the sanction, which is addressed in this Decision and Order, infra.

Sanction

   As to the appropriate sanction, the Animal Welfare Act provides:

    *29 § 2149. Violations by licensees

   (a) Temporary license suspension; notice and hearing; revocation

   If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

   (b) Civil penalties for violation of any section, etc; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

   Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. . . . The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations.

   7 U.S.C. § 2149(a), (b).

   The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3):

   [T]he sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

   The recommendations of administrative officials charged with the responsibility for achieving the congressional purpose of the regulatory statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of the experience gained by administrative officials during their day- to-day supervision of the regulated industry. In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497. However, the recommendation of administrative officials as to the sanction is not controlling, and in appropriate circumstances, the sanction imposed may be considerably less, or different, than that recommended by administrative officials. [FN18]

    *30 Complainant originally sought: (1) a 30-day disqualification from seeking an Animal Welfare Act license, or, if Respondent is licensed at the time an order is issued, a 30- day suspension of Respondent's Animal Welfare Act license; (2) a civil penalty of $11,000; and (3) a cease and desist order (Complainant's Brief at 26). In Complainant's Appeal Petition, Complainant reduces the recommended sanction to a civil penalty of $5,000, a 10-day Animal Welfare Act license suspension, and, although a cease and desist order is not specifically mentioned, I infer from Complainant's proposed order that Complainant still seeks a cease and desist order, as well (Complainant's Appeal Petition at 13-17).

   Complainant argues that the ALJ should not have reduced the recommended $11,000 civil penalty and 30-day license suspension to only a $600 civil penalty, and no suspension, since the ALJ found that the evidence supported about 80 percent of the violations in the Complaint (Complainant's Appeal Petition at 13). Complainant argues that Respondent's facility is large, if Respondent sells approximately 200 dogs annually; that some of the violations are serious because of potential harm to the animals; that Respondent's good faith efforts to correct deficiencies came after citations for the violations; and that Respondent had a warning notice in 1992, even if there are no litigated decisions against Respondent (Complainant's Appeal Petition at 13). Complainant argues that a civil penalty larger than $600, and a suspension, are necessary to ensure Respondent's compliance in the future, deter others from violating the Animal Welfare Act, and fulfill the remedial purposes of the Animal Welfare Act (Complainant's Appeal Petition at 14).

   Complainant's sanction recommendation is well within the range of sanctions in these kinds of cases. The Department consistently imposes significant sanctions for violations of the Animal Welfare Act and the Regulations and Standards. [FN19] The Department in the past has permanently disqualified or revoked dealers' and exhibitors' licenses for the kind of violations that are found in this proceeding. [FN20] As to the civil penalty, the Animal Welfare Act authorizes up to $2,500 per violation per day. "Each violation and each day during which a violation continues shall be a separate offense" (7 U.S.C. § 2149(b)). As stated in In re James Petersen, 53 Agric. Dec. 80, 94 (1994):

   "The sale of each animal constitutes a separate violation." In re Bradshaw, 50 Agric. Dec. 499, 504 (1991). "The purchase or sale of each animal constitutes a separate violation." In re Johnson, 51 Agric. Dec. 209, 212 (1992). See also In re Hickey, 47 Agric. Dec. 840, 848 (1988), aff'd, 878 F.2d 385 (9th Cir. 1989) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 48 Agric. Dec. 107 (1989), in which the false recording of the purchase of each dog was held to be a separate violation and the civil penalty was calculated accordingly.

    *31 Respondent replies that the violations are not serious; that the violations caused no harm to the animals; that a $5,000 civil penalty would put her kennel out of business; that the violations proven cannot support a civil penalty that large; that the recommended sanction would not deter Respondent from future violations because Respondent would not be in business any longer; and that because of Respondent's good faith efforts to comply, Respondent does not deserve to have all Respondent's hard work go for naught (Respondent's Reply at 10-12).

   Although not addressed specifically by the ALJ in the Initial Decision and Order, the Complaint alleges that the violations were willful. An action is willful under the Administrative Procedure Act (5 U.S.C. § 558(c)) if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. [FN21] I find that Respondent's violations were willful.

   I disagree with the ALJ's conclusion in his sanction discussion that the record does not support Complainant's determination that Respondent is a "'habitual' violator" (Initial Decision and Order at 20-21). Respondent has committed repeated violations over many inspections; therefore, the record supports a determination that Respondent is a "habitual violator." Also, I disagree with the ALJ's apparent conclusion that the illness of Respondent's assistant, Ronnie Williams, is relevant to the sanction to be imposed. Respondent "must have enough employees to carry out the level of husbandry practices and care required in [9 C.F.R. §§ 3.1-.19]" (9 C.F.R. § 3.12). Moreover, the gravity of the violations are such that the ALJ's civil penalty of $600 is insufficient to fulfill the remedial purposes of the Animal Welfare Act.

   Respondent sells about 200 dogs annually, for prices between $5 and $400 (Tr. 281). Normally, there are between 200 and 300 dogs and puppies resident at Respondent's kennel (CX 1, 2, 4, 6-10). I find, based on this evidence, that Respondent operates a large facility.

   I agree with the ALJ that there is no evidence that Respondent treated her dogs inhumanely. Corrections were generally promptly made. Moreover, the record does not reveal that there were any injuries emanating from any of the violations. Further, the record reveals that the overwhelming majority of the violations were for minor housekeeping and housing and husbandry infractions. I also find that Respondent exhibited good faith in attempting to achieve and to maintain compliance with the Animal Welfare Act and the Regulations and Standards.

   After examining all relevant circumstances in light of USDA's sanction policy, and taking into account the requirements of 7 U.S.C. § 2149(b), the remedial purposes of the Animal Welfare Act, and the recommendation of the administrative officials, I conclude that a $2,000 civil penalty, a cease and desist order, and a 7-day suspension of Respondent's Animal Welfare Act license, or if Respondent is not licensed, a 7-day disqualification from becoming licensed under the Animal Welfare Act, are appropriate.

    *32 For the foregoing reasons, the following Order should be issued.

Order

   1. Respondent Marilyn Shepherd is assessed a civil penalty of $2,000. The civil penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to:

   Sharlene A. Deskins

   U.S. Department of Agriculture

   Office of the General Counsel

   1400 Independence Ave., SW

   Room 2014 South Building

   Washington, DC 20250-1417

   The certified check or money order shall be forwarded to, and received by, Sharlene A. Deskins, within 120 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 96-0084.

   2. Respondent, her agents and employees, successors and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and in particular, shall cease and desist from:

   (a) Failing to provide adequate veterinary care to animals in need of veterinary care;

   (b) Failing to individually identify dogs;

   (c) Failing to maintain for dogs housing facilities that are structurally sound and in good repair in order to protect the dogs from injury;

   (d) Failing to keep housing facilities surfaces free of excessive rust;

   (e) Failing to provide for the regular and frequent collection, removal, and disposal of animal and food wastes, bedding, debris, garbage, water, and other fluids and wastes, in a manner that minimizes contamination and disease risks;

   (f) Failing to provide and maintain outdoor housing facilities which protect dogs from the elements;

   (g) Failing to provide structurally sound primary enclosures;

   (h) Failing to keep primary enclosures in good repair;

   (i) Failing to construct and maintain primary enclosures free of sharp points or edges that could injure dogs;

   (j) Failing to keep primary enclosures for dogs clean;

   (k) Failing to keep food receptacles clean and sanitized; and

   (l) Failing to keep water receptacles clean and sanitized.

   The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent.

   3. (a) If Respondent is licensed under the Animal Welfare Act when this Order is issued, Respondent's Animal Welfare Act license is suspended for a period of 7 days, and continuing thereafter, until Respondent demonstrates to the Animal and Plant Health Inspection Service that Respondent is in full compliance with the Animal Welfare Act, the Regulations and Standards issued under the Animal Welfare Act, and this Order, including payment of the civil penalty assessed in this Order. When Respondent demonstrates to the Animal and Plant Health Inspection Service that she has satisfied the conditions in this paragraph of this Order, a Supplemental Order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension of Respondent's Animal Welfare Act license after the expiration of the 7-day license suspension period. The Animal Welfare Act license suspension provisions in this Order shall become effective on the 65th day after service of this Order on Respondent.

    *33 (b) If Respondent is not licensed under the Animal Welfare Act when this Order is issued, Respondent is disqualified from becoming licensed under the Animal Welfare Act for 7 days. The disqualification period shall continue until the civil penalty assessed in this Order is paid. The Animal Welfare Act license disqualification provisions in this Order shall become effective on the day after service of this Order on Respondent.

FN1. The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)).

FN2. The ALJ did not find that Respondent's violations of the Animal Welfare Act and the Regulations and Standards were willful. As discussed in this Decision and Order, infra, I find that Respondent's violations were willful.

FN3. Two years after this letter, on May 6, 1997, [USDA stated] that perimeter fences for dogs are not required by the [Standards]. 62 Fed. Reg. 24,611 (1997).

FN4. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981).

FN5. In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 44 (May 18, 1998); In re C.C. Baird, 57 Agric. Dec. ____, slip op. at 27 (Mar. 20, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 18 n.3 (Jan. 13, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455-56 n.7 (1997); In re Fred Hodgins, 56 Agric. Dec. 1242, 1246-47 n.*** (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), aff'd, No. 97-3414 (3d Cir. May 26, 1998) (unpublished); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Julian J. Toney, 54 Agric. Dec. 923, 971 (1995), aff'd in part, rev'd in part, and remanded, 101 F.3d 1236 (8th Cir. 1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), aff'd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

FN6. In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 38-39 (May 18, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1456 n.8 (1997), appeal docketed, No. 98-3100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1316 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 466 (1997), aff'd, No. 97-3414 (3d Cir. May 26, 1998) (unpublished); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 272-73 (1997) (Order Denying Pet. for Recons.); In re John Walker, 56 Agric. Dec. 350, 367 (1997); In re Mary Meyers, 56 Agric. Dec. 322, 348 (1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 254 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)).

FN7. I note that it appears that Respondent's use of the electric fence may violate section 3.6(a)(2)(iii) and (iv) of the Standards because Respondent's electric fence may not "[c]ontain the dogs . . . securely" and "[k]eep other animals from entering the enclosure." (9 C.F.R. § 3.6(a)(2)(iii), (iv).) However, the Complaint does not allege that Respondent violated section 3.6(a)(2)(iii) and (iv) of the Standards (9 C.F.R. § 3.6(a)(2)(iii), (iv)).

FN8. In re Fred Hodgins, 56 Agric. Dec. 1242, 1301 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Simone Fruit Co., 53 Agric. Dec. 537 (1994) (Ruling on Certified Question); In re A.P. Holt (Decision as to Richard Polch & Merrie Polch), 52 Agric. Dec. 233, 242 (1993), aff'd per curiam, 32 F.3d 569, 1994 WL 390510 (6th Cir. 1994) (citation limited under 6th Circuit Rule 24); In re Lincoln Meat Co., 48 Agric. Dec. 166 (1989); In re SEMA, Inc., 49 Agric. Dec. 176, 186-87 (1990); In re Blackfoot Livestock Comm'n Co., 45 Agric. Dec. 590, 616 (1986), aff'd, 810 F.2d 916 (9th Cir. 1987); In re Beef Nebraska, Inc., 44 Agric. Dec. 2786, 2834 (1985), aff'd, 807 F.2d 712 (8th Cir. 1986); In re Gilardi Truck & Transp., Inc., 43 Agric. Dec. 118, 143-45 (1984); In re Miguel A. Machado (Decision as to Respondent Cozzi) (Remand Order), 42 Agric. Dec. 820, 832-33 (1983), final decision, 42 Agric. Dec. 1454 (1983), aff'd, 749 F.2d 36 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21).

FN9. Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940); NLRB v. Int'l Bros. of Elec. Workers, Local Union 112, 827 F.2d 530, 534 (9th Cir. 1987); Citizens State Bank of Marshfield v. FDIC, 751 F.2d 209, 213 (8th Cir. 1984); Consolidated Gas Supply Corp. v. FERC, 611 F.2d 951, 959 n.7 (4th Cir. 1979); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 262 (D.C. Cir. 1979); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454 (7th Cir. 1943).

FN10. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Rapp v. United States Dep't of Treasury, 52 F.3d 1510, 1519-20 (10th Cir. 1995); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358, 1365 (10th Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); Intercontinental Industries, Inc. v. American Stock Exchange, 452 F.2d 935, 941 (5th Cir. 1971), cert. denied, 409 U.S. 842 (1972); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Publishers Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 15 (May 13, 1998) (Order Denying Pet. for Recons.); In re Fred Hodgins, 56 Agric. Dec. 1242, 1323 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 200 n.9 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 132 (1996); In re James Joseph Hickey, Jr., 53 Agric. Dec. 1087, 1097-98 (1994); In re James Petersen, 53 Agric. Dec. 80, 92 (1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53 (b)(2)); In re SSG Boswell, II, 49 Agric. Dec. 210, 212 (1990); In re Floyd Stanley White, 47 Agric. Dec. 229, 264-65 (1988), aff'd per curiam, 865 F.2d 262, 1988 WL 133292 (6th Cir. 1988); In re Dr. John H. Collins, 46 Agric. Dec. 217, 233- 32 (1987); In re H & J Brokerage, 45 Agric. Dec. 1154, 1197-98 (1986); In re Dane O. Petty, 43 Agric. Dec. 1406, 1434 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re Sterling Colorado Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (Ruling on Certified Questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re A.S. Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).

FN11. See FTC v. Universal-Rundle Corp., 387 U.S. 244, 251-52 (1967); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413-14 (1958) (per curiam); In re C.C. Baird, 57 Agric. Dec. ___, slip op. at 53 (Mar. 20, 1998); In re Allred's Produce, 56 Agric. Dec. 1884, 1908 (1997), appeal docketed, No. 98- 60187 (5th Cir. Apr. 3, 1998); In re American Fruit Purveyors, Inc., 38 Agric. Dec. 1372, 1385 (1979), aff'd per curiam, 630 F.2d 370 (5th Cir. 1980), cert. denied, 450 U.S. 997 (1981).

FN12. Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir.), cert. denied, 117 S.Ct. 296 (1996).

FN13. Oyler v. Boles, 368 U.S. 448, 456 (1962); Snowden v. Hughes, 321 U.S. 1, 8 (1944).

FN14. United States v. Armstrong, 517 U.S. 456, 465 (1996); United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982).

FN15. See Futernick v. Sumpter Township, 78 F.3d 1051, 1056 n.7 (6th Cir.), cert. denied, 117 S.Ct. 296 (1996).

FN16. Id.

FN17. See United States v. Mezzanatto, 513 U.S. 196, 210 (1995) (stating that the fact that there is potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing plea negotiation; the great majority of prosecutors are faithful to their duties and absent clear evidence to the contrary, courts presume that public officers properly discharge their duties); INS v. Miranda, 459 U.S. 14, 18 (1982) (per curiam) (stating that although the length of time to process the application is long, absent evidence to the contrary, the court cannot find that the delay was unwarranted); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (stating that a presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties); Sunday Lake Iron Co. v. Wakefield TP, 247 U.S. 350 (1918) (stating that the good faith of taxing officers and the validity of their actions are presumed; when assailed, the burden of proof is on the complaining party); Chaney v. United States, 406 F.2d 809, 813 (5th Cir.) (stating that the presumption that the local selective service board considered appellant's request for reopening in accordance with 32 C.F.R. § 1625.2 is a strong presumption that is only overcome by clear and convincing evidence), cert. denied, 396 U.S. 867 (1969); Lawson Milk Co. v. Freeman, 358 F.2d 647, 649 (6th Cir. 1966) (stating that without a showing that the action of the Secretary of Agriculture was arbitrary, his action is presumed to be valid); Donaldson v. United States, 264 F.2d 804, 807 (6th Cir. 1959) (stating that the presumption of regularity supports official acts of public officers and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their duties); Panno v. United States, 203 F.2d 504, 509 (9th Cir. 1953) (stating that a presumption of regularity attaches to official acts of the Secretary of Agriculture in the exercise of his congressionally delegated duties); Reines v. Woods, 192 F.2d 83, 85 (Emer. Ct. App. 1951) (stating that the presumption of regularity which attaches to official acts can be overcome only by clear evidence to the contrary); NLRB v. Bibb Mfg. Co., 188 F.2d 825, 827 (5th Cir. 1951) (holding that duly appointed police officers are presumed to discharge their duties lawfully and that presumption may only be overcome by clear and convincing evidence); Woods v. Tate, 171 F.2d 511, 513 (5th Cir. 1948) (concluding that an order of the Acting Rent Director, Office of Price Administration, is presumably valid and genuine in the absence of proof or testimony to the contrary); Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 381-82 (9th Cir.) (stating that the presumption of regularity applies to methods used by government chemists and analysts and to the care and absence of tampering on the part of postal employees), cert. denied, 335 U.S. 853 (1948); Laughlin v. Cummings, 105 F.2d 71, 73 (D.C. Cir. 1939) (stating that there is a strong presumption that public officers exercise their duties in accordance with law); In re Auvil Fruit Co., 56 Agric. Dec. 1045, 1079 (1997) (stating that without a showing that the official acts of the Secretary of Agriculture are arbitrary, his actions are presumed to be valid); In re Midway Farms, Inc., 56 Agric. Dec. 102, 115-16 (1997) (stating that it was error to give credence to petitioner's unsubstantiated accusations that Agricultural Marketing Service inspectors are not trustworthy with respect to official acts because, in the absence of clear evidence to the contrary, there is a presumption of regularity in the discharge of official duties of federal officers); In re Kim Bennett, 55 Agric. Dec. 176, 210-11 (1996) (stating that instead of presuming that USDA attorneys and investigators warped the viewpoint of USDA veterinary medical officers, the court should have presumed that training of USDA veterinary medical officers was proper because there is a presumption of regularity with respect to official acts of public officers); In re C.I. Ferrie, 54 Agric. Dec. 1033, 1053 (1995) (stating that use of USDA employees in connection with a referendum on the continuance of the Dairy Promotion and Research Order does not taint the referendum process, even if petitioners show that some USDA employees would lose their jobs upon defeat of the Dairy Promotion and Research Order, because a presumption of regularity exists with respect to official acts of public officers); In re Mil-Key Farm, Inc., 54 Agric. Dec. 26, 55 (1995) (stating that without a showing that the official acts of the Secretary of Agriculture are arbitrary, his actions are presumed to be valid); In re Hershey Chocolate U.S.A., 53 Agric. Dec. 17, 55 (1994) (stating that without a showing that the official acts of the Secretary are arbitrary, his actions are presumed to be valid), aff'd, No. 1:CV-94-945 (M.D. Pa. Feb. 3, 1995); In re King Meat Co., 40 Agric. Dec. 1468, 1494 (1981) (stating that there is a presumption of regularity with respect to the issuance of instructions as to grading methods and procedures by the Chief of the Meat Grading Branch, Food Safety and Quality Service, USDA), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), remanded, No. CV 81-6485 (C.D. Cal. Mar. 25, 1983) (to consider newly discovered evidence), order on remand, 42 Agric. Dec. 726 (1983), aff'd, No. CV 81-6485 (C.D. Cal. Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1361 (1978) (rejecting respondent's theory that USDA shell egg graders switched cases of eggs to discredit respondent, in view of the presumption of regularity supporting acts of public officials), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).

FN18. In re C.C. Baird, 57 Agric. Dec.___, slip op. at 61-62 (Mar. 20, 1998); In re Scamcorp, Inc., 57 Agric. Dec. ___, slip op. at 62-63 (Jan. 29, 1998); In re Allred's Produce, 56 Agric. Dec. 1884, 1918-19 (1997), appeal docketed, No. 98-60187 (5th Cir. Apr. 3, 1998); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 953 (1997) (Order Denying Pet. for Recons.); In re William E. Hatcher, 41 Agric. Dec. 662, 669 (1982); In re Sol Salins, Inc., 37 Agric. Dec. 1699, 1735 (1978); In re Braxton Worsley, 33 Agric. Dec. 1547, 1568 (1974).

FN19. See, e.g., In re John D. Davenport, 57 Agric. Dec. ___ (May 18, 1998) (imposing a $200,000 civil penalty, permanent revocation of respondent's license, and permanent disqualification from obtaining a license for 103 violations of the Animal Welfare Act and the Regulations and Standards); In re C.C. Baird, 57 Agric. Dec.___ (Mar. 20, 1998) (imposing a $9,250 civil penalty and a 14-day suspension for 23 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Peter A. Lang, 57 Agric. Dec. ___ (Jan. 13, 1998) (imposing a $1,500 civil penalty for one violation of the Regulations); In re Samuel Zimmerman, 56 Agric. Dec. 1419 (1997) (imposing a $7,500 civil penalty and a 40-day suspension for 15 violations of the Animal Welfare Act and the Regulations and Standards), appeal docketed, No. 98- 3100 (3d Cir. Feb. 19, 1998); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (imposing a $3,000 civil penalty and permanent disqualification from obtaining a license for three violations of the Animal Welfare Act and the Regulations); In re Dora Hampton, 56 Agric. Dec. 1634 (1997) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards) (Modified Order); In re Fred Hodgins, 56 Agric. Dec. 1242 (1997) (imposing a $13,500 civil penalty and a 14-day license suspension for 54 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act, the Regulations, and the Standards) (Decision and Order on Remand); In re David M. Zimmerman, 56 Agric. Dec. 433 (1997) (imposing a $51,250 civil penalty and a 60-day license suspension for 75 violations of the Animal Welfare Act, the Regulations, and the Standards), aff'd, No. 97-3414 (3d Cir. May 26, 1998) (unpublished); In re Patrick D. Hoctor, 56 Agric. Dec. 416 (1997) (imposing a $1,000 civil penalty and a 15-day license suspension for eight violations of the Animal Welfare Act, the Regulations, and the Standards) (Order Lifting Stay Order and Decision and Order); In re John Walker, 56 Agric. Dec. 350 (1997) (imposing a $5,000 civil penalty and a 30-day license suspension for 10 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Mary Meyers, 56 Agric. Dec. 322 (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from becoming licensed under the Animal Welfare Act for 32 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from becoming licensed under the Animal Welfare Act for one violation of the Regulations and one violation of the cease and desist provisions of a Consent Decision); In re Big Bear Farm, Inc., 55 Agric. Dec. 107 (1996) (imposing a $6,750 civil penalty and 45-day license suspension for 36 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Ronald D. DeBruin, 54 Agric. Dec. 876 (1995) (imposing a $5,000 civil penalty and 30- day license suspension for 21 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60- day license suspension for numerous violations on four different dates over a 13-month period); In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986) (imposing a $15,300 civil penalty and license revocation for numerous violations of the Regulations and the Standards); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and license revocation for 10 violations of the Regulations and a previously issued cease and desist order), appeal dismissed, 786 F.2d 1168 (8th Cir.)(Table), cert. denied, 476 U.S. 1108 (1986).

FN20. See, e.g., In re John D. Davenport, 57 Agric. Dec. ___ (May 18, 1998) (imposing a $200,000 civil penalty, permanent revocation of respondent's license, and permanent disqualification from obtaining a license for 103 violations of the Animal Welfare Act and the Regulations and Standards); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (imposing a $3,000 civil penalty and permanent disqualification from obtaining a license for three violations of the Animal Welfare Act and the Regulations); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and license revocation for 10 violations of the Regulations and a previously issued cease and desist order), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

FN21. Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777- 78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.) cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 39 (May 18, 1998); In re C.C. Baird, 57 Agric. Dec.___, slip op. at 48 (Mar. 20, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 31 (Jan. 13, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1454 n.4 (1997), appeal docketed, No. 98-3100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1352 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), aff'd, No. 97-3414 (3d Cir. May 26, 1998); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255- 56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) (".Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent."); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, .willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is .intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize .conduct marked by careless disregard whether or not one has the right so to act."')

FNThe United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. United States Dep't of Agric., 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78- 79 (10th Cir. 1965). Even under this more stringent definition, Respondent's violations would still be found willful.

Top of Page
Share |