This is a disciplinary proceeding under the Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.) (hereinafter the Act), instituted by a Complaint filed on June 16, 1994, by Lonnie J. King, Acting Administrator of the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture. The Complaint was amended on October 28, 1994.
The Amended Complaint alleges that Jack D. Stowers, doing business as Sugar Creek Kennels, willfully violated the Act, and the regulations and standards issued pursuant thereto (9 C.F.R. § 1.1 et seq.). The Complainant requests a cease and desist order, assessment of civil penalties, and revocation of Respondent's license.
*2 The Acting Administrator of APHIS filed a Complaint on June 16, 1994, which was subsequently amended on October 28, 1994. The Respondent filed an Answer to the Complaint, and an appearance was made by his attorney David Little, on July 12, 1994. Mr. Little successfully moved to withdraw his appearance on November 1, 1994. The Respondent filed an Answer to the Amended Complaint on his own behalf on November 29, 1994. On March 7, 1995, the Respondent requested and was granted additional time to comply with prehearing obligations, in order to obtain counsel.
The hearing was initially scheduled for December 5 and 6, 1995, in Indianapolis, Indiana. On November 17, 1995, a teleconference was held in which it was determined that Respondent had not complied with the order to provide a list of his proposed exhibits and witnesses. On November 21, 1995, Complainant moved to exclude Respondent's witnesses and exhibits, and requested a telephone hearing. Respondent was given until December 1, 1995, to respond, which he did not do. On December 1, 1995, Complainant's motion was granted and a telephone hearing was scheduled for December 15, 1995. On December 5, 1995, Respondent submitted a witness list, and during a teleconference on December 14, 1995, it was decided that a live hearing should be scheduled for February 7 and 8, 1996, in Indianapolis, Indiana. On February 5, 1996, the hearing was rescheduled as the Respondent had again retained David Little as counsel, and Mr. Little needed additional time to prepare. On February 27, 1996, the hearing was again rescheduled to accommodate two of Complainant's witnesses. The hearing was held in Indianapolis on May 2 and 3, 1996.
Complainant obtained three extensions of the briefing schedule and ultimately filed the Complainant's Proposed Finding of Fact and Brief in Support Thereof on August 12, 1996. Respondent then sought and obtained three extensions for the filing of his brief, and thereafter filed it on November 4, 1996. Complainant filed its reply brief on November 22, 1996.
Complainant's brief contained motions to amend the Complaint in order to conform to the proof presented at the hearing by including additional instances of noncompliance. [FN1] A complaint may only be amended upon a showing of good cause. The Complainant did not cite any cause to amend, with the possible exception of "conforming to the proof." With one exception, all of the additional violations occurred after those included in the Amended Complaint filed October 28, 1994; therefore, there may have been good cause to file an amended complaint prior to the hearing. Amending a complaint post-hearing, however, raises due process concerns. The Respondent must be given notice of the allegations against him and an opportunity to contest those allegations. On the other hand, the same formalities as found in court pleadings are not required in administrative proceedings, and errors in the complaint are generally considered to be harmless. Due process requirements are met in an administrative proceeding if the respondent has some opportunity to know and meet the claims against him. In re: Edwards, 52 Agric. Dec. 1365, 1367-1368 (Aug. 24, 1993). Nevertheless, the relaxed standard does not allow the government to ambush the respondent with new claims at the hearing. In re: Carolina Biological Supply Company, 53 Agric. Dec. 96 (Mar. 30, 1994), rejected a post-hearing amendment where the violations to be added occurred at the same time as the violations previously alleged in the complaint, and the respondent was given no notice of the claims prior to the hearing. Under those circumstances there was a failure to show good cause, and the Respondent did not have adequate notice of the allegations. Id., at101.
*3 In accordance with the legal precedents set forth in Carolina Biological, the Complainant's motion to amend the Complaint to include the failure to have health certificates available on March 30, 1993, should be denied as the violation was known to Complainant at the time the complaint was filed. It is less clear whether the subsequent violations should be allowed. They are not completely new allegations as was the case in Carolina Biological. They are instead merely additional instances of previously alleged violations. Also, there is no indication that the subsequent inspection reports were not provided to the Respondent during the prehearing exchange of exhibits. Furthermore, the claims were addressed at the hearing. However, since the Complainant has not adequately explained why the amendments were not made prior to the hearing, the motion is denied. The additional instances will, however, be noted and considered as evidence of Respondent's chronic noncompliance and lack of good faith.
Applicable Statute, Regulations and Standards
The Complaint alleges numerous violations which occurred over a five year period. The regulations and standards [FN2] have been amended over the course of those five years. With one exception, however, all of the relevant provisions have remained the same between the year of the violation and the present. Therefore, all citations to the Code of Federal Regulations (C.F.R.) can be found in the 1996 version, except the standard dealing with primary enclosures for transportation, which is cited below from the 1991 version. [FN3]
Paragraph I of the Complaint incorrectly cites 9 C.F.R. § 3.12 as the standard violated by Respondent's failure to construct and maintain primary enclosures for dogs so that they protect the dogs from injury and contain them securely. The relevant provision is actually § 3.6. Also the Complaint erroneously cites 9 C.F.R. § 2.50, and fails to cite 9 C.F.R. § 2.53 in reference to the identification violations. However, these mistakes constitute harmless error, inasmuch as the Complaint describes the violations sufficiently to make the Respondent aware of the issues. See In re: Edwards, 52 Agric. Dec. 1365, 1367-69 (Aug. 24, 1993); In re: SSG Boswell II, 49 Agric. Dec. 210, 212-14 (Feb. 6, 1990).
7 U.S.C. § 2140
Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe.
9 C.F.R. § 2.75
(a) (1) Each dealer . . . shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning each dog or cat purchased or otherwise in his or her possession or under his or her control, or which is transported, euthanized, sold, or otherwise disposed of by that dealer or exhibitor. The records shall include any offspring born of any animal while in his or her possession or under his or her control.
*4 (i) The name and address of the person from whom a dog or cat was purchased or otherwise acquired whether or not the person is required to be licensed or registered under the Act;
(ii) The USDA license or registration number of the person if he or she is licensed or registered under the Act;
(iii) The vehicle license number and state, and the driver's license number and state of the person if he or she is not licensed or registered under the Act;
(iv) The name and address of the person to whom a dog or cat was sold or given and that person's license or registration number if he or she is licensed or registered under the Act;
(v) The date a dog or cat was acquired or disposed of, including by euthanasia;
(vi) The official USDA tag number or tattoo assigned to a dog or cat under §§ 2.50 and 2.54;
(vii) A description of each dog or cat which shall include:
(A) The species and breed or type;
(B) The sex;
(C) The date of birth or approximate age; and
(D) The color and any distinctive markings;
(viii) The method of transportation including the name of the initial carrier or intermediate handler or, if a privately owned vehicle is used to transport a dog or cat, the name of the owner of the privately owned vehicle.
(ix) The date and method of disposition of a dog or cat, e.g. sale, death, euthanasia, or donation.
7 U.S.C. § 2146
(a) Investigations and inspections
The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer . . . has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer . . . . The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviation from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected. The Secretary shall promulgate such rules and regulations as he deems necessary to permit inspectors to confiscate or destroy in a humane manner any animal found to be suffering as a result of a failure to comply with any provision of the chapter or any regulation or standard issued thereunder if . . . such animal is held by a dealer . . . .
9 C.F.R. § 2.126
(a) each dealer, exhibitor, intermediate handler, or carrier, shall during business hours, allow APHIS officials:
(1) To enter its place of business;
(2) To examine records required to be kept by the Act and the regulations in this part;
(3) To make copies of the records;
(4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter; and
*5 (5) To document, by the taking of photographs and another means, conditions and areas of noncompliance.
7 U.S.C. § 2141
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.
9 C.F.R. § 2.53
Official tags obtained by a dealer . . . shall be applied to dogs or cats in the manner set forth in § 2.50 and in as close to consecutive numerical order as possible. No tag number shall used to identify more than one animal. No tag number shall be repeated within a 5-year period.
7 U.S.C. § 2135
No dealer or exhibitor shall sell or otherwise dispose of any dog or cat within a period of five business days after the acquisition of such animal or within such other period as may be specified by the Secretary[.]
9 C.F.R. §2.101
(a) Any live dog or cat acquired by a dealer .. . shall be held by him or her, under his or her supervision and control, for a period of not less than 5 full days, not including the day of acquisition, after acquiring the animal, excluding time in transit: Provided, however:
(1) That any live dog or cat acquired by a dealer or exhibitor from any private or contract animal pound or shelter shall be held by that dealer or exhibitor under his or her supervision and control for a period of not less than 10 full days, not including the day of acquisition, after acquiring the animal, excluding time in transit.
7 C.F.R. § 2.100
(a) Each 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 and treatment, housing and transportation of animals.
(b) Each carrier shall comply in all respects with the regulations in part 2 and the standards in part 3 of this subchapter setting forth the conditions and requirements for the humane transportation of animals in commerce and their handling care, and treatment in connections therewith.
9 C.F.R. § 3.12 (1-1-91 ed.)
No dealer . . . shall offer for transportation or transport, in commerce any live dog or cat in a primary enclosure which does not conform to the following requirements:
(a) Primary enclosures, such as compartments, transport cages, cartons, or crates used to transport live dogs and cats shall be constructed in such a manner that:
(1) The structural strength of the enclosure shall be sufficient to contain the live dogs and cats and to withstand the normal rigors of transportation;
. . . .
(c) Primary enclosures used to transport live dogs and cats shall be large enough to ensure that each animal contained therein has sufficient space to turnabout freely in a standing position using normal body movements, to stand and sit erect, and to lie in a natural position.
*6 (d) A maximum of one live dog or cat, 6 months or more of age . . . shall be transported in a primary enclosure.
Random source dogs
9 C.F.R. § 2.132
(a) A class "B" dealer may obtain random source dogs and cats only from:
(1) Other dealers who are licensed under the Act and in accordance with the regulations in part 2;
(2) State, county, or city owned and operated animal pounds or shelters; and
(3) A legal entity organized and operated under the laws of the State in which it is located as an animal pound or shelter, such as a humane shelter or contract pound.
(b) A class "B" dealer shall not obtain live random source dogs and cats from individuals who have not bred and raised the dogs and cats on their own premises.
(c) Live nonrandom source dogs may be obtained from persons who have bred and raised the dogs and cats on their own premises, such as hobby breeders.
9 C.F.R. § 2.40
(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 exhibiter 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 exhibiter shall establish and maintain programs of adequate veterinary care that include:
(1) The availability of appropriate facilities, personnel, equipment, and services to comply with 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, tranquilization, and euthanasia; and
(5) Adequate pre-procedural and post-procedural care in accordance with established veterinary medical and nursing procedures.
9 C.F.R. § 2.78
(a) No dealer . . . shall transport in commerce any dog . . . unless . . . the dog . . . is accompanied by a health certificate executed and issued by a licensed veterinarian. The health certificate shall state that:
*7 (1) the licensed veterinarian inspected the dog . . . on a specified date which shall not be more than 10 days prior to the delivery of the dog . . . for transportation; and
(2) when so inspected, the dog . . . appeared to the licensed veterinarian to be free of any infectious disease or physical abnormality which would endanger the animal(s) or other animals or endanger public health.
9 C.F.R. § 2.100
(a) Each 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.
9 C.F.R. § 3.6
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 designed 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;
(iii) Contain the dogs and cats securely;
(iv) Keep other animals from entering the enclosure;
(v) Enable the dogs and cats to remain dry and clean;
. . . .
Findings of Fact
1. Respondent Jack D. Stowers is an individual doing business as Sugar Creek Kennels, and whose address is Rural Route 3, Box 134, Frankfort, Indiana 46041. (Response 18).
2. At all times material herein, Respondent Jack D. Stowers was licensed and operating as a dealer as defined in the Act and the regulations. (Response 18).
3. Dr. Peter R. Kirsten is a veterinary medical officer for the U. S. Department of Agriculture, APHIS, Regulatory Enforcement and Animal Care (REAC), and has been assigned to inspect Sugar Creek Kennels since 1990. (Tr. 225-26).
4. Dr. Kirsten conducted full or partial inspections of the Respondent's facilities on February 20, 1990, June 27, 1990, January 3, 1991, June 10, 1991, March 30, 1993, June 28, 1994, June 29, 1994, June 30, 1994, October 12, 1994, March 14, 1995, and May 18, 1995.
5. On June 17, 1994, Kent Permentier, Senior Investigator for APHIS, REAC in Indiana, delivered a 21 day suspension notice to Mr. Stowers. Mr. Stowers refused to allow an inspection at that time and threatened to harm Dr. Kirsten if he returned to conduct an inspection on a later date. (CX 201).
6. Mr. Stowers purchases dogs for approximately $25 to $40 each. He sells dogs to research facilities for approximately $120 to $130 each. He has handled approximately 10,000 dogs since becoming licensed in 1988. (Tr. 460, 468-69, 485).
Findings on Denial of Inspection
7. Between February 9, 1990 and May 16, 1994, Respondent completed and signed 10 forms indicating various hours when he or an agent would be present for an inspection. At various times Chester Stowers and Cynthia Alexander Stowers were designated as agents. (CX 2, CX 316).
*8 8. On 2 occasions prior to receiving an Hours of Inspection Form from Respondent, Dr. Kirsten attempted to inspect Respondent's facility during normal business hours, but could not because neither the Respondent nor a designated agent was available. (CX 3, CX 4).
9. On 16 occasions between May 1, 1991 and October 26, 1995, Dr. Kirsten attempted to inspect Respondent's facility either during times listed on the Hours of Inspection Forms or by appointment, but could not because neither Respondent nor an agent was available. (CX 8, CX 20, CX 70-72, CX 190-191, CX 193, CX 194, CX 197, CX 199, CX 206, CX 301, CX 305-307).
10. On 11 occasions between February 13, 1990 and May 19, 1995, Dr. Kirsten attempted to inspect Respondent's facility during regular business but not at times indicated on the Hours of Inspection Form, but could not because neither Respondent nor an agent was available. (CX 5-9, CX 12, CX 22, CX 203, CX 299, CX 300, CX 304).
Findings on Recordkeeping and Identification of Animals
11. On February 20, 1990, Respondent failed to have records available for inspection. (CX 311).
12. On June 27, 1990, Respondent failed to have records of disposition available for inspection. (CX 11).
13. On January 3, 1991, Respondent failed to have records of acquisition available for inspection. Some records of disposition were available; however, the records incorrectly identified a female dog as a male hound. (CX 13).
14. On June 10, 1991 Dr. Kirsten conducted a records inspection and found the following discrepancies and omissions (CX 23):
(a) 9 animals appeared twice with different dates of acquisition.
(b) There were discrepancies in the sale dates of 4 animals on the Records of Animals on Hand and the Record of Disposition of Dogs or Cats.
(c) An animal was listed on the Record of Animals on Hand as an alley cat, but on the Record of Disposition of Dogs or Cats as a hound.
(d) 5 tag numbers were used to identify more than one animal, without identifying the date of acquisition for one of them.
(e) 7 animals were listed on the Record of Animals on Hand as having lost their tags, but were also listed as being sold on the disposition records.
(f) 4 animals were listed as having been shot on the Record of Animals on Hand, but as sold on the disposition records.
(g) 1 dog was listed as having been donated to Cindy Alexander on December 18, 1990, but also as having been sold to a research facility on December 19, 1990.
(h) There was no record of acquisition for 11 animals, and no record of disposition for 5 animals.
(i) Tags were used more than once within a five year period.
(j) Tag numbers were not recorded in as consecutive numerical order as possible.
15. On March 30, 1993 Dr. Kirsten conducted a records inspection by appointment and noted the following discrepancies and omissions (CX 192):
(a) 12 tag numbers were used twice, without any record of the acquisition of 5 of the dogs.
*9 (b) 15 animals were listed in the Record of Animals on Hand as having been lost or having lost their tags, and then listed as being sold on the disposition records.
(c) 15 animals were listed as having been sold or rejected for sale, but there were no descriptions, dates of acquisition or records of acquisition for them.
(d) 3 animals were listed as having been sold that had no record of acquisition.
16. On June 28, 1994, Respondent failed to have records available for inspection. (CX 240).
17. On June 30, 1994, Dr. Kirsten conducted a records inspection by appointment. The following discrepancies and omissions were noted (CX 315):
(a) Of the approximately 1,490 animals listed in the records as having been obtained since May 8, 1993, approximately 1,317 had incomplete acquisition information. There were both incomplete addresses and no driver's license number or vehicle license number for the persons from whom 1,162 of the animals were obtained. There were incomplete addresses with respect to 36 animals. There were no driver's license or vehicle license numbers with respect to 119 animals.
(b) There was no record of disposition for 59 animals.
(c) There was no record of acquisition for 4 animals.
(d) 5 animals were listed as having been shot,then later as having been sold.
(e) 8 animals were listed as having been rejected by research facilities, with no record of their future disposition.
(f) 3 animals had incorrect descriptions.
(g) 1 tag number was reissued within a five year period.
(h) Tag numbers were not recorded in as consecutive numerical order as possible.
(h) No pound certificates were available on dogs obtained from pounds.
(i) 15 animals were listed as having lost their tags or as not having a tag, but then 13 of them were listed as sold, 1 was confiscated and 1 was returned to the seller.
(k) 15 tag numbers were assigned to more than 1 animal.
(l) 5 animals were listed as having been sold twice.
18. On October 12, 1994, some recordkeeping violations were corrected. They contained complete addresses and driver's license and vehicle license numbers. However, with respect to 8 dogs there was no record of acquisition. No medical records or pound certificates were available. (CX 298).
19. On March 14, 1995, Respondent's records contained a discrepancy in the acquisition information for 1 dog; and pound certificates that were available did not accompany dogs to the research facilities, and lacked some required information. (CX 302).
20. On May 18, 1995, Respondent failed to have records available for inspection. (CX 240).
Findings on Holding Periods
21. On January 3, 1991, compliance with holding periods could not be verified due to the unavailability of records. (CX 13).
22. On June 10, 1991, a records inspection revealed that Respondent failed to hold 3 animals for the required 5-day holding period. (CX 23).
23. On March 30, 1993, a records inspection revealed that Respondent failed to hold 13 animals for the required 5 or 10-day holding period. (CX 192).
*10 24. On June 28, 1994, compliance with holding periods could not be verified due to the unavailability of records. (CX 240).
Findings on Structural Standards
25. On January 3, 1991, Dr. Kirsten inspected the transportation facilities and found that a dividing wall between two enclosures was broken and several enclosures contained more than one dog. There was not adequate space for the dogs to lift their heads. (CX 13).
26. On June 28, 1994, there was a hole in the floor of one shelter box, and a broken door on another. (CX 240).
27. On October 12, 1994, the interiors of the shelter were not impervious to moisture; the shelter had not been sanitized for 6 weeks; 2 shelter boxes had holes in them; and a bag of dog food was open and stored near a gasoline can. (CX 298).
28. On March 14, 1995, one of the holes in the shelter boxes was repaired, but the other was not. The interior surfaces on the west side of the shelter were sealed, but the east side was still not impervious to moisture. (CX 302).
29. On May 18, 1995, 1 shelter box on the east side had a rotten wall; 1 shelter box was heavily chewed around the door; 1 shelter box had a nail protruding in the doorway; 1 shelter box had a hole chewed in the back with only a board and cement block placed over it. (CX 303).
Findings on Health Certificates for Dogs Transported Interstate
30. On March 30, 1993, Respondent failed to have health certificates available on dogs transported interstate. (CX 192).
31. On June 28, 1994, Respondent failed to have health certificates available for dogs transported interstate. (CX 240).
32. On June 30, 1994, Respondent failed to have health certificates available for dogs transported interstate. (CX 315).
33. On March 14, 1995, Respondent failed to have health certificates available for dogs transported interstate. (CX 302).
34. On October 12, 1994 Respondent failed to have health certificates available for dogs transported interstate. (CX 298).
Findings on Veterinary Care
35. On June 28, 1994, Dr. Kirsten inspected Respondent's facility pursuant to an administrative warrant and found that animals were in need of immediate veterinary care. 4 dogs had purulent ocular and/or nasal discharge. 3 dogs had a cough. 1 dog had cherry eye. 3 dogs were excessively thin. 2 dogs had loose and bloody stools. Mr. Stowers was instructed, in writing and orally through his agent Cindy Stowers, to obtain veterinary diagnosis and treatment for the sick animals within 24 hours. (CX 240).
36. On June 29, 1994 Dr. Kirsten and Mr. Permentier returned and found that the dogs had not been provided with veterinary care. All of the dogs were either sick or had been exposed to contagious disease. All 29 dogs present were confiscated. (CX 244).
37. On October 10, 1994, 2 dogs present were in need of veterinary care. 1 dog had a cough and a gag and the other had a mucous discharge.
Findings on Random Source Dogs
*11 38. Mr. Stowers buys random source dogs from unlicensed individuals who do not breed and raise them on their own premises. (Tr. 462, 509-10).
1. On January 24, 1990, January 31, 1990, May 30, 1990, May 1, 1991, February 18, 1992, February 20, 1992, February 27, 1992, August 6, 1992, September 24, 1992, September 20, 1993, September 30, 1993, March 2, 1994, May 25, 1994, and June 22, 1994, Respondent failed to allow department officials to inspect his facility, in violation of 7 U.S.C. § 2146 and 9 C.F.R§ 2.126.
2. On June 27, 1990, January 3, 1991, June 10, 1991, March 30, 1993, and June 28, 1994, APHIS inspected the Respondent's facility and records, and found that he had failed to maintain complete and accurate records of the acquisition, disposition, and identification of dogs, in violation of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75.
3. On January 3, 1991, June 10, 1991, March 30, 1993, and June 28, 1994, APHIS inspected the Respondent's facility and found that he had failed to identify dogs as required, in violation of 7 U.S.C. § 2141, and 9 C.F.R. §§ 2.50 and 2.53.
4. On January 3, 1991, June 10, 1991, March 30, 1993, and June 28, 1994, APHIS inspected the Respondent's facility and found that he had failed to hold dogs for the required period of time, in violation of 7 U.S.C. § 2135 and 9 C.F.R. § 2.101.
5. On January 3, 1994, APHIS inspected the Respondent's facility and found that he had offered dogs for transportation in enclosures that did not conform to structural strength and space requirements, in violation of 9 C.F.R §§ 2.100 and 3.12 (1991 ed.).
6. On June 28, 1994, APHIS inspected the Respondent's facility and found that he had failed to construct and maintain primary enclosures for dogs so that they protect the dogs from injury and contain them securely, in violation of 9 C.F.R. §§ 2.100 and 3.6.
7. On June 30, 1994, APHIS inspected the Respondent's facility and found that he had failed to deliver health certificates for dogs transported interstate, in violation of 9 C.F.R. § 2.78(a).
8. On June 28 and 29, 1994, APHIS inspected the Respondent's facility and found that he had failed to provided adequate veterinary care to dogs, in violation of 9 C.F.R. § 2.40.
9. Respondent obtained random source dogs from individuals who had not bred and raised the dogs on their own premises, in violation of 9 C.F.R § 2.132(b).
Respondent, for the most part, does not deny Complainant's allegations but rather attempts to excuse the violations by arguing that he is being persecuted for being a class B dealer, that the violations were only slight and that the regulations are too difficult to understand. For example, he cites Dr. Kirsten's repeated inspection attempts as evidence of a "personal vendetta" against him. He complains that Dr. Kirsten was "painstakingly accurate" and would cite the most minor violations. He claims that the regulations are too difficult to understand with only an eighth grade education, and blames the government for not training him. Such excuses do not justify Respondent's noncompliance with the Act and the regulations.
*12 Respondent admits that he failed to keep accurate records of the acquisition and disposition of dogs; improperly identified the animals; did not have health certificates in his possession; and was not present and did not have a representative present for random inspections of his facility. (Respondent's Response Brief 18). He claims, however, that these violations were mere errors and omissions and not willful violations of the Act.
A willful act is one which is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. See In re: Big Bear Farm, 55 Agric. Dec. 107, 137 (Mar. 15, 1996); In re: Lesser, 52 Agric.Dec. 155, 167 (Apr. 28, 1993); In re: Pet Paradise, 51 Agric. Dec. 1047, 1067-70 (Sept. 16, 1992). Respondent's acts were willful. He repeatedly committed violations over a five year period. Such chronic non-compliance at a minimum qualifies as careless disregard of the regulations, and more likely evidences intentional refusal to comply with the regulations.
In any case, willfulness is not required for cease and desist orders or for monetary fines and it is only required for license revocation if the agency has not given the Respondent written notice of the violations and an opportunity to come into compliance with the regulations. 5 U.S.C. § 558(c). See also Big Bear Farm, 55 Agric. Dec., at 140; In re: Delta Airlines, 53 Agric. Dec. 1076, 1084 (Nov. 9, 1994); Pet Paradise, 51 Agric. Dec., at 1067. Mr. Stowers was given a copy of each inspection report which listed the violations and the dates by which the non-compliant standards were to be corrected. He had every opportunity to come into compliance. A showing of willfulness is, therefore, not required.
Respondent repeatedly thwarted efforts by APHIS to inspect his facility. There was consistently no one available at the kennel to facilitate inspections during the times indicated on the Hours of Inspection Forms. Respondent argued that Dr. Kirsten could have inspected the premises without being accompanied. Inspectors, however, cannot enter the property without a warrant unless they are accompanied by the licensee or his agent. Respondent further argues that it is almost impossible for a Class B dealer to have someone present at the facility every day. It may not be possible for Mr. Stowers to personally be on the premises every day, but that is why the regulations allow for the designation of an agent.
Respondent's records consistently lacked information, contained inaccuracies, or were unavailable for inspection. Respondent, having admitted that there were many errors in the records, argues that the regulations are too difficult to understand, particularly in light of his eighth grade education and claimed illiteracy. He believes the government should have offered seminars or other assistance or encouragement. The government, however, is not responsible for training class B dealers, it is responsible for regulating them. Mr. Stowers was provided with copies of the Act and regulations and standards. Inspection reports clearly described the violations and noted the section numbers of the provisions that were violated. Furthermore, each inspection ended with an exit interview where Dr. Kirsten orally informed Mr. Stowers or his agent of what needed to be corrected.
*13 In addition to having inaccurate or incomplete information about the dogs in the records, Respondent also frequently used tag numbers for more than one dog, did not record the tag numbers consecutively, and used tag numbers more than once within five years. Respondent admits that animals were improperly identified but claims that he is still learning the rules. It is very important to properly identify dogs so that APHIS inspectors can adequately trace and prevent the sale of stolen animals. Mr. Stowers has had adequate time to learn the rules in that he has been a dealer since 1988.
Respondent admits that he did not always have health certificates available for dogs transported interstate; but he claims that five violations out of the thousands of dogs that he has handled as a dealer is so minimal that it ought to be overlooked. It is not the case, however, that only 5 dogs out of thousands did not have health certificates available. Rather, during 5 out of 11 inspections Respondent failed to have health certificates available for some or all of the dogs which had been transported interstate.
Respondent does deny failing to provide adequate veterinary care. Although he admits several dogs were sick at the time of the June 28, 1994, inspection, he claims he had treated the dogs by giving them a "modified live virus vaccine." Dr. Kirsten testified that he found a number of dogs in need of immediate veterinary attention; and there was no indication that the attending veterinarian ever saw the animals as the regulations require. Respondent argues that it is unclear what he should have done to appease the government, although Dr. Kirsten told him exactly what to do. The June 28, 1994, inspection report given to Mr. Stowers listed the problems with each dog and instructed Mr. Stowers to "seek veterinary diagnosis and treatment for all of the above by 24 hours or 12:00 noon on 6-29-94." (CX 240). The instructions were clear and Mr. Stowers failed to follow them in violation of the Act and regulations.
Respondent also argues that the government failed to prove that he purchased random source dogs from individuals who did not breed and raise them on their own premises. Respondent, however, testified that: "Some of them guys will raise them on their premises, but a lot of them trade for them." (Tr. 462). He further testified that he suspected that sixty percent of the dogs he buys are not home bred. (Tr. 509-10).
With regard to structural standards Respondent claims that all violations were promptly corrected when brought to his attention. The violations noted on June 28, 1994, were corrected by the next inspection. Violations noted on October 12, 1994 were not completely corrected by the next inspection which was four months after the specified date for compliance. On May 15, 1995, the prior violations had all been corrected, but there were new violations as well. In re: Pet Paradise, 51 Agric. Dec. 1047 (Sept. 16, 1992), dealt with a similar situation of chronic non-compliance and held that the Respondent's willingness to correct was not relevant, and that subsequent correction did not negate the violations. Id., at 1069-1070. See also Big Bear Farm, 55 Agric. Dec. 107, 142 (Mar. 15, 1996).
*14 With respect to holding period violations, Respondent claims that they are merely recordkeeping errors. Even if this claim were accepted as true, it would be meaningless because it merely exchanges one violation for another. Respondent also claims that the 18 violations noted during the June 30, 1994, records inspection are erroneous because the dogs were confiscated by Dr. Kirsten on June 29, 1994, so he did not have the opportunity to hold them for the required time. Although the June 30, 1994, inspection report does not list the tag numbers for the dogs in question, it is unlikely that they were the confiscated dogs. The dogs that were confiscated on June 29, 1994, must have been held for at least 10 days as Respondent had been suspended since June 17, 1994. It is inconsequential in any case because the complaint does not refer to the June 30, 1994, violations.
Respondent contends that the transportation standards that he violated were very technical in nature, and were probably corrected. The Respondent's violations were not minor. The enclosures were overcrowded and the dogs did not have room to lift their heads. These violations directly affected the well-being of the animals. Whether or not the necessary corrections were promptly made is impossible to determine from the record. Dr. Kirsten noted the violations on January 3, 1991 and instructed Mr. Stowers to correct them that same day. The next time the transport enclosures appear to have been inspected by Dr. Kirsten they were in compliance, but that was more than four years later, on March 14, 1995. Furthermore, as previously stated, subsequent corrections do not negate prior violations.
Three of the records violations are dismissed as unsubstantiated. There was no evidence admitted pertaining to the June 3, 1993, and June 21, 1994, allegations. The November 1, 1993, allegation stems from the traceback project in which APHIS investigators attempted to verify the accuracy of Respondent's records by locating the individuals listed as having sold him dogs. The investigators were unable to locate numerous individuals and those whom they found generally denied selling the dogs as shown by Mr. Stowers' records. Although the records may have contained some inaccurate information, the Complainant failed to prove that any of these inaccuracies were the fault of Respondent. Complainant's evidence was unreliable as it consisted primarily of out of court statements, many of which were made by persons who might have reason to provide false information.
On February 13, 1990, February 28, 1990, May 11, 1990, May 16, 1990, May 25, 1990, December 7, 1990, May 29, 1991, and June 21, 1994, Dr. Kirsten attempted to inspect Respondent's facility during hours that Respondent had not indicated that he or an agent would be available. Although the Act and regulations allow inspections at any time during regular business hours, as a courtesy APHIS allows licensees to choose the four hours each day which are most convenient. The form states that a failure to allow inspection during those hours is a violation. A failure to be available for inspection during hours not indicated should, therefore, not be considered a violation.
*15 APHIS has recommended the issuance of a cease and desist order, a $20,000 civil penalty, and the revocation of Mr. Stowers' license. After considering the size of Respondent's business, the seriousness and frequency of the violations, as well as his lack of good faith as evidenced by threats against government officials and his continuous refusal to cooperate, I have determined that the government's recommended sanctions, with an adjustment to the civil penalty, are appropriate. The Act provides that sanctions shall be imposed as follows:
If the Secretary has reason to believe that any person licensed as a dealer . . . has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, . . . 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.
. . .
Any dealer . . . 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.
Respondent, by his own testimony, has a fairly large business. He testified that he has handled 10,000 dogs since 1988, or an average of 1,250 dogs per year. (Tr. 485). He pays between $25 and $40 for each dog (Tr. 468-69), and sells them to research facilities for $120 to $130 per dog, (Tr. 460) for a gross profit of $80 to $105 per dog, or $100,000 to $131,000 per year. This refutes his testimony that he earns only $20,000 to $25,000 per year. (Tr. 492).
The government could have requested $2,500 for each violation and in that I have found that Respondent committed 33 violations, a fine of as much as $82,000 could have been assessed. Furthermore, Mr. Stowers has proven himself unwilling to submit to statutorily required government regulation. His claims of showing good faith are negated by his admitted threats against APHIS inspectors and his routine refusal to allow the inspection of his facility. Considering the extent of Respondent's noncompliance, the $20,000 penalty requested by Complainant is not inappropriate. However, since I have dismissed a number of the allegations, the amount of the fine shall be reduced to $15,000. Further, the revocation of Respondent's license, and the issuance of a cease and desist order as requested by Complainant are appropriate and shall be ordered.
*16 1. Respondent Jack Stowers, doing business as Sugar Creek Kennels, is assessed a civil penalty of $15,000, to be paid within 120 days of service of this order to the Treasurer of the United States, and forwarded to Colleen A. Carroll, United States Department of Agriculture, Office of General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.
2. License Number 32-B-97, issued to Jack Stowers, doing business as Sugar Creek Kennels, under the Animal Welfare Act, is hereby revoked.
3. Respondent, his agents and employees, successors and assigns, directly or indirectly, through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards thereunder, and in particular shall cease and desist from:
(a) interfering with or refusing APHIS inspection of their facilities;
(b) failing to maintain their facilities and records in accordance with the regulations and standards;
(c) failing to provide adequate veterinary care for animals.
Pursuant to the Rules of Practice governing proceedings under this Act, this Decision and Order shall become final and effective without further procedure thirty-five (35) days after service upon the parties unless appealed to the Judicial Officer by a party to the proceeding within thirty (30) days after service, as provided in sections 1.130, 1.142, and 1.145 of the Rules of Practice (7 C.F.R. §§ 1.130,1.142, 1.145).
Copies of this Decision and Order shall be served upon the parties.
[This Decision and Order became final February 6, 1997.--Editor]
FN1 Complainant seeks to include allegations of recordkeeping, health certificate and structure violations noted during inspections on June 30, 1994, October 12, 1994, March 14, 1995, May 18, 1995, and March 30, 1993; as well as failed inspection attempts on January 10, 1995, January 17, 1995, January 31, 1995, May 19, 1995, August 31, 1995, and October 26, 1995.
FN2 The pertinent regulations are 9 C.F.R. §§ 2.40, 2.53, 2.75, 2.78, 2.126, 2.100, 2.101, 2.132. The pertinent standards are 9 C.F.R. §§ 3.6, 3.12.
FN3 A comparable provision is found in the 1996 version at 7 C.F.R. § 3.14.