This is a disciplinary proceeding under the Animal Welfare Act, as amended (Act), 7 U.S.C. s 2131 et seq., and the Regulations issued thereunder, 9 C.F.R. s 1.1 et seq., instituted by a Complaint filed on March 6, 1991, by the Administrator, Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture (USDA). The Complaint alleges that Respondents wilfully violated the Act and regulations by operating as an animal exhibitor without a license and by failing to comply with the standards issued under the Act relating to the care of exhibited animals. The Complaint alleges that Respondents exhibited a leopard, two baboons and two jaguars at the Respondents' auto parts business (owned and operated by the individual Respondent) without a license, and that an inspection on August 15, 1989, revealed that they failed to provide proper enclosures for the animals, to provide shade, to dispose of waste, to store food properly, and to keep the premises clean and sanitary.
On July 17, 1992, Administrative Law Judge James W. Hunt (ALJ) issued an Initial Decision and Order dismissing the Complaint on the ground that the activities of Respondents are neither in nor affect interstate commerce and, *172 therefore, they are not subject to the Act. On September 24, 1992, Complainant appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FN1] Complainant seeks a $5,000 civil penalty, a 1-year disqualification from becoming licensed, and a cease and desist order.
**2 Based upon a careful consideration of the record, I agree with Complainant's views, except those relating to the allegations in the Complaint that Respondents' facilities were not sound and in good repair on August 15, 1989 ( III(A)), and the allegations that the premises were not clean and in good repair on August 15, 1989 ( III(D)). I am assessing civil penalties of $4,000.
Findings of Fact
1. Respondent Ronnie Faircloth is an individual whose address is Route 5, Box 518, Goldsboro, North Carolina 27530.
2. Respondent JR's Auto & Parts, Inc., is a corporation whose address is Route 5, [FN2] Box 518, Goldsboro, North Carolina 27530, which is about 80 miles from the nearest State line. It is owned and controlled by Respondent Ronnie Faircloth. It is a business that sells salvaged parts from old or wrecked cars in Goldsboro, North Carolina. Most, if not all, of the used auto parts sold by Respondents were originally manufactured outside of North Carolina. Their customers buy them to use on or in cars and trucks which are likely to be used in interstate travel. Respondents have a toll-free "800" telephone number so that customers can call without incurring long-distance telephone charges. Respondents accept national credit cards to finance the purchase of their auto parts.
*173 3. In 1987, Respondents acquired two jaguars, one leopard, and two baboons from another North Carolina businessman as part of a car buying deal. According to Respondent Faircloth, he told the owner of the animals, ".I'll buy all your cars you got if you throw the cats in with it.' And that's how I obtained the cats and the monkeys" (Tr. 187). He also said that the former owner was not taking proper care of the animals, which were all about 2 years old at the time of the transaction (Tr. 187 89). The record does not indicate where the animals originally came from.
Respondent Faircloth took the animals to his car lot near Goldsboro where he put the leopard in a cage next to the building where he has his office. The jaguars were placed in a cage nearby, while the baboons were put in a cage, with a camper top as a roof, about 40 feet further back on the lot. All the cages are behind a chain link fence enclosing the lot. The fence, in turn, is about 40 feet from the road, with a dirt driveway/parking lot between the road and the fence. Although some of the animals were moved during the relevant time period, the animals were generally visible from the parking lot, and some or all of the animals were also generally visible from the road.
4. Respondent Faircloth testified that the animals are his "personal pets," and that he has a veterinarian looking after them. He said he keeps them where he does because he spends about 90 percent of his time at the lot and wants his "pets" near him (Tr. 63, 181). He also has a sign on each side of the gate leading into the lot where the cages are located, one stating "No One Allowed Beyond This Point," and the other stating "Keep Out - Authorized Personnel Only" (RX-1). Respondents do not advertise that they have the animals at the car lot.
**3 5. The ALJ found as facts, not challenged on appeal, the following (Initial Decision at 4):
Photographs of the property (CX-[2, 3, 5, 15,] and RX-1) confirm that the cages can be seen from the road and parking lot, but also show that it would take someone with exceptionally sharp vision to see one of the animals from a moving car. There are no road signs or handbills advertising to the public that there are exotic animals on the property and there is no evidence that Faircloth charges his customers to look at the animals. (Tr. 179.)
Nevertheless, there is some indication that Faircloth might receive some economic benefit from having the animals on his lot. He admitted that word about his animals would tend to spread by word-of-mouth (Tr. *174 182) and he apparently agreed with one of the USDA investigators that the animals could attract people. (Tr. 34, [140, 164, 171, 182 83].) It is therefore conceivable that the presence of the animals might influence some customers looking for used auto parts to go to J. R.'s rather than to one of J. R.'s competitors so that they could see the animals while buying a car part.
6. On March 18, 1988, Respondent Faircloth filed an application for an APHIS license to exhibit one leopard, two jaguars, and two baboons (CX 1), although he did not believe that he was required to obtain a license as an exhibitor (Tr. 28). The license was never issued because Respondents were never in compliance with the regulations and standards. Respondent Faircloth was advised by APHIS in April of 1988 (Tr. 13 14) that his operation was in violation of the standards, and that he was exhibiting without a license (Tr. 24). He was told what needed to be done to meet the minimum requirements of the standards (Tr. 24). On November 30, 1988, APHIS employees took pictures of Respondents' violations of the standards, and discussed the violations of the standards with Respondent Faircloth (Tr. 97 108, 133 41). In February of 1989, APHIS employees met with Respondent Faircloth and gave him a written warning and an oral explanation of his violations of the standards and failure to have a license (Tr. 26 30, 141 42). On or about July 21, 1989, an APHIS employee again met with Respondent Faircloth and discussed his violations (Tr. 31 36). On August 15, 1989, APHIS employees found that Respondents were not meeting the minimum standards and discussed with Respondent Faircloth what corrections were necessary. In particular, on August 15, 1989, the jaguars and leopard were not provided with access to shelter from inclement weather, and the primary enclosures for the leopard and baboons were not kept clean and sanitized (Tr. 112 13, 143 49; CX 2-7). On March 18, 1991, APHIS employees again determined that Respondents were not meeting the minimum standards for licensing, and advised the shop foreman what needed to be done (Tr. 45 49; CX 11).
The ALJ held that Respondents are not an exhibitor, as defined in the Act, because the "economic benefit to Faircloth from exhibiting the animals to the public is not much more than de minimis, if it is even that," and "he is neither in nor affects interstate commerce" (Initial Decision at 5).
**4 Section 2(h) of the Act defines "exhibitor" as follows (7 U.S.C. s 2132(h)):
*175 The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not. . . .
Section 2(c) of the Act defines "commerce" as follows (7 U.S.C. s 2132(c)):
The term "commerce" means trade, traffic, transportation or other commerce --
(1) between a place in a State and any place outside such State, or between points within the same State but through any place outside thereof, or within any territory, possession or the District of Columbia;
(2) which affects trade, traffic, transportation, or other commerce described in paragraph (1).
I hold that Respondents are an "exhibitor," as defined in the Act, for the reasons set forth in In re Good, 49 Agric. Dec. 156 (1990), attached as an Appendix to this decision. In Good, the owner and operator of a lodge in Sugarloaf Key, Florida, was held to be an exhibitor of a dolphin, which was at the lodge when he purchased it, because he continued to keep the dolphin on his premises where it could be seen by his guests. Although there are some differences between the circumstances in Good and the circumstances in the present case, the situations are close enough that I believe that Good is applicable here. In addition, Complainant's brief on appeal cites additional relevant cases with respect to this issue.
As to Respondents' violations, Complainant need only prevail by a preponderance of the evidence. [FN3]
Respondents admittedly did not have a license to operate as an exhibitor, *176 and, therefore, they wilfully violated section 4 of the Act (7 U.S.C. s 2134) [FN4] and section 2.1 of the regulations (9 C.F.R. s 2.1). [FN5]
With respect to the allegations in paragraphs III(A) and (D) of the Complaint, I find that there is insufficient evidence to prove that on August 15, 1989, Respondents' "facility was not structurally sound and maintained in good repair to protect the animals (jaguars and leopard) from injury and to contain them (9 C.F.R. s 3.125(a))," and Respondents' "premises were not kept clean and in good repair and free of accumulation of trash (9 C.F.R. ss 3.81(c) and 3.131(c))." Accordingly, I am dismissing those paragraphs of the Complaint.
Paragraph III(B) of the Complaint alleges that on August 15, 1989, "[a]nimals (jaguars and leopard) kept outdoors were not provided with access to shelter from inclement weather (9 C.F.R. s 3.127(b))." [FN6] I find adequate *177 evidence to support that allegation (Tr. 146; CX 3, 5 7), particularly when the evidence relating to August 15, 1989, is read in conjunction with similar evidence relating to other dates (e.g., Tr. 15, 53, 107 08, 136).
**5 Paragraph III(C) of the Complaint alleges that on August 15, 1989, "[p]rimary enclosures for animals (baboons, jaguars, and leopard) were not kept clean and sanitized as required (9 C.F.R. ss 3.81(a) and (b) and 3.131(a) and (b))." [FN7] I find sufficient evidence to support this allegation (Tr. 146 47), *178 particularly when the evidence relating to August 15, 1989, is read in connection with evidence as to the same subject matter on other dates (e.g., Tr. 15 16, 48 50, 53, 57 58, 105 07, 136 38).
As to the appropriate sanction, the Act provides (7 U.S.C. s 2149(b)):
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.
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, No. 91 70169 (9th Cir. Apr. 23, 1993) (unpublished)), as follows:
It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435 62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the 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 *179 officials charged with the responsibility for achieving the congressional purpose.
Complainant requests civil penalties of $5,000, but two of the alleged violations were not proven, and Respondents' animal exhibition is comparatively small. On the other hand, Respondents continually exhibited animals without a license over a long period of time, during which their premises and activities were never brought into compliance with the regulations and standards. Respondent Faircloth was repeatedly advised what needed to be done in order to achieve compliance and obtain a license, and he was told that if he did not want to be subject to the licensing requirements, he could keep his animals in a location where they were not being exhibited to the public. Considering all of the circumstances, I believe that civil penalties of $4,000 are appropriate, together with a cease and desist order and a 1-year disqualification order.
**6 For the foregoing reasons, the following Order should be issued.
1. Respondents, Ronnie Faircloth and JR's Auto & Parts, Inc., their 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) failing to maintain their primary enclosures for animals in a clean and sanitary condition;
(b) failing to provide animals kept outdoors with shelter from inclement weather; and
(c) engaging in any activity for which a license is required under the Act and regulations without being licensed as required.
2. Respondents are jointly and severally assessed a civil penalty of $4,000, to be paid no later than 120 days after service of this Order, by certified check or money order, made payable to the Treasurer of the United States, and forwarded to Colleen A. Carroll, United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250 1400.
3. Respondents are disqualified for a period of 1 year from becoming licensed under the Act and the regulations.
The cease and desist provisions of this Order shall become effective on the *180 day after service of this Order on Respondents.
In re Good, 49 Agric. Dec. 156 (1990).
FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN2 Some of the testimony refers to Route 5 as if it were a State route number. However, Route 5 is a postal route number.
FN3 See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n.5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).
FN4 § 2134. Valid license for dealers and exhibitors required
No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to by or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.
FN5 § 2.1 Requirements and application.
(a)(1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempted from the licensing requirements under paragraph (a)(3) of this section, must have a valid license.
(d) A license will be issued to any applicant, except as provided in §§ 2.10 and 2.11, when the applicant:
(1) Has met the requirements of this section and of §§ 2.2 and 2.3 [which require the applicant to be in compliance with, and agree to comply with, the regulations and standards].
These provisions were published August 31, 1989 (54 Fed. Reg. 36,147 (1989)). Different provisions were previously in effect.
FN6 It is provided in 9 C.F.R. § 3.127(b) (1989):
(b) Shelter from inclement weather. Natural or artificial shelter appropriate to the local climatic conditions for the species concerned shall be provided for all animals kept outdoors to afford them protection and to prevent discomfort to such animals. Individual animals shall be acclimated before they are exposed to the extremes of the individual climate.
FN7 It is provided in 9 C.F.R. §§ 3.81(a), .81(b), .131(a), .131(b):
§§ 3.81 Sanitation.
(a) Cleaning of primary enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the nonhuman primates contained therein and to reduce disease hazards and odors. When hosing or flushing methods are used for this purpose, measures shall be taken to prevent animals confined in such enclosures from being wetted involuntarily.
(b) Sanitization of enclosures. . . .
(2) Primary enclosures for nonhuman primates shall be sanitized often enough to prevent an accumulation of debris or excreta, or a disease hazard: Provided, however, That such enclosures shall be sanitized at least once every 2 weeks in the manner provided in paragraph (b)(3) of this section.
(3) Cages, rooms and hard surfaced pens or runs shall be sanitized either by washing them with hot water (180o F.) and soap or detergent, as in a mechanical cage washer, or by washing all soiled surfaces with a detergent solution followed by a safe and effective disinfectant, or by cleaning all soiled surfaces with live steam. Pens or runs using gravel, sand, or dirt, shall be sanitized by removing the soiled gravel, sand, or dirt and replacing it as necessary. . . . .
§ 3.131 Sanitation
(a) Cleaning of enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the animals contained therein and to minimize disease hazards and to reduce odors. When enclosures are cleaned by hosing or flushing, adequate measures shall be taken to protect the animals confined in such enclosures from being directly sprayed with the stream of water or wetted involuntarily.
(b) Sanitation of enclosures. Subsequent to the presence of an animal with an infectious or transmissible disease, cages, rooms, and hard- surfaced pens or runs shall be sanitized either by washing them with hot water (180 F. at source) and soap or detergent, as in a mechanical washer, or by washing all soiled surfaces with a detergent solution followed by a safe and effective disinfectant, or by cleaning all soiled surfaces with saturated live steam under pressure. Pens or runs using gravel, sand, or dirt, shall be sanitized when necessary as directed by the attending veterinarian.