This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.). On August 30, 1991, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing a civil penalty of $2,000, *235 and directing Respondents to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from engaging in any activity for which a license is required without holding a valid license.
On October 8, 1991, Respondents 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] The case was referred to the Judicial Officer for decision on November 8, 1991.
Based upon a careful consideration of the record, the Initial Decision and Order is adopted as the final Decision and Order, except that the effective date is changed in view of the appeal, and a few words (shown by dots) are omitted. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
This proceeding was instituted under the Animal Welfare Act ("the Act"), as amended (7 U.S.C. s 2131 et seq.), by a Complaint filed on June 20, 1990, *236 by the Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture ("APHIS"). The Complaint alleged that Terry Lee Harrison and Pamela Sue Harrison ("Respondents") willfully violated the Act . . . by selling or offering to sell animals as pets without a license. Respondents filed a timely Answer in which they denied selling animals for use as pets but acknowledged selling animals as breeders. I presided over a hearing on June 5, 1991, in Lansing, Michigan. Complainant was represented by Sharlene A. Deskins of the Office of the General Counsel, Marketing Division. Respondents appeared pro se.
Complainant filed proposed findings of fact, proposed conclusions of law and a brief on August 1, 1991. Respondents filed their brief on August 26, 1991. The proposed findings, proposed conclusions and arguments have been considered. To the extent indicated they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.
Findings of Fact
1. Respondents Terry Lee Harrison and Pamela Sue Harrison are individuals doing business as Harrison's Pets at the address 9050 Lehring Road, Durand, Michigan 48429. (Tr. 13)
2. Respondents have never been licensed under the Act, although they applied for a license on May 25, 1988. (Tr. 12-13; CX 2)
3. Dr. Lisa Dellar, an APHIS veterinarian medical officer performed a pre-licensing inspection of Respondents' facility on March 21, 1989, and again on April 3, 1989. (Tr. 25) She did not approve Respondents for a license because the facility did not meet the standards in the Act or its regulations. (Tr. 25- 33; CX 4)
**2 4. Dr. Dellar informed Respondents on March 21, 1989, and April 3, 1989, that the sale of animals for use as pets or exhibition without a license violates the Act. (Tr. 26)
5. Respondents advertised in Your Independent Advisor on June 18, 1989, as Harrison's Pets. Their advertisement offers for sale foxes, bobcats, prairie dogs and skunks in the "pets/services" section of classified advertisements. (CX 5)
6. Mr. Thomas Rippy, an investigator for APHIS, visited Respondents on September 26, 1989, and informed Respondents that in order to sell animals at an auction for use as pets or exhibition, a license was required. Mr. Harrison informed Mr. Rippy that he intended to sell his animals for pets at the Lake Odessa Exotic Animal Auction. (Tr. 51, 52)
*237 7. An announcement was made at the Lake Odessa Exotic Animal Auction on October 6, 1989, before the sale, that the sale of animals for pets required a license under the Act. An announcement was also made that animals that are sold only for breeding purposes do not require the seller to have a license. (Tr. 84) Respondent Terry Harrison was present when that announcement was made and Respondent Pamela Sue Harrison was in the vicinity at that time. (Tr. 82)
8. On October 6, 1989, Respondents sold two prairie dogs, two bobcats and at least 19 foxes at the Lake Odessa Exotic Animal Auction. ( Tr. 11)
9. Two of the purchasers of the animals were not residents of the state of Michigan where the sales occurred. (CX 6)
10. Thomas C. Richey purchased foxes from Respondents at the October 6, 1989, Lake Odessa Exotic Animal Auction for use as pets and William J. Miller purchased foxes from Respondents at that auction for use as pets or for exhibition purposes. (Tr. 59)
Conclusions of Law
1. On or about October 6, 1991, Respondents were dealers of animals as that term is defined in the Act at 7 U.S.C. s 2132.
2. Respondents were never licensed as dealers under the Act.
3. On or about October 6, 1991, Respondents violated the Act at 7 U.S.C. s 2134 by selling two bobcats, two prairie dogs, and at least 19 foxes in commerce for use as pets or for exhibit without having a valid license as a dealer.
4. The violations were willful. A willful violation is defined as (one) where the violator either intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978), aff'd sub nom. Arab Stock Yard v. United States, 582 F.2d 39 ((5th Cir.) 1978). Respondents were warned that they needed a license by Dr. Dellar in March and April 1989, by Mr. Rippy in September 1989 and by an announcement at the October 6, 1989 Auction. Despite these warnings, they elected to sell the animals.
5. The evidence does not support Respondents' argument that they sold the animals as breeders and not as pets. In fact, two of Respondents' purchasers confirmed that they purchased the animals as pets. (Tr. 59)
**3 6. Complainant requested a penalty of $2,000 and an order directing Respondents to cease and desist from violating the Act. Respondents *238 presented no evidence about their inability to pay the civil penalty requested.
The Judicial Officer in In re A. P. "Sonny" Holt, et al., 49 Agric. Dec. 853 (1990), determined that a respondent has the obligation to present evidence about its ability to pay a civil penalty. 49 Agric. Dec. at 866. The evidence showed that the size of Respondents' facility was medium. (Tr. 26) The pre-licensing inspection on March 21, 1989, indicated that there were 143 animals on Respondents' premises.
Based upon the evidence presented by Complainant and the failure of Respondents to present any mitigating evidence, I assess a penalty of $2,000 against Respondents, in addition to requiring that Respondents cease and desist from violating the Act.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Respondents contend, in effect, that the evidence does not adequately support the ALJ's findings of fact, but there is more than a preponderance of the evidence, which is all that is required. [FN2] Respondents mistakenly rely on facts set forth in their brief, but the only evidence that can be considered is the evidence in the record of the oral hearing held before the ALJ.
Respondents also contend on appeal that they cannot pay the $2,000 civil penalty, but Respondents offered no evidence at the administrative hearing as to their inability to pay the $2,000 civil penalty recommended by Complainant at the oral hearing (Tr. 70), and Respondents made no argument in their brief filed before the ALJ as to their inability to pay a $2,000 civil penalty. It is too late now for Respondents to make that argument.
For the foregoing reasons, the following Order should be issued.
1. Respondents, their agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from engaging in any activity for which a *239 license is required under the Act and regulations without being licensed.
2. Respondents are jointly and severally assessed a civil penalty of $2,000, which shall be paid by a certified check or money order, made payable to the Treasurer of the United States, and shall be sent, within 60 days after service of this Order on Respondents, to Sharlene A. Deskins, Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington, D.C. 20250 1400.
The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondents.
FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. ss 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 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).