53 Agric. Dec. 1357 Treasurer of the United States, and forwarded to Tejal Mehta, Esq., Office of the General Counsel, Room 2014, South Building, United States Department of Agriculture, Washington, D.C. 20250-1417, within 30 days from the date of service of this Order on Respondent. 2. Respondent Johnny E. Lewis is assessed a civil penalty of $2,000, which shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to Tejal Mehta, Esq., Office of the General Counsel, Room 2014, South Building, United States Department of Agriculture, Washington, D.C. 20250-1417, within 30 days from the date of service of this Order on Respondent. 3. Respondent Jerry M. Morrison and Respondent Johnny E. Lewis are each disqualified for 1 year from showing, exhibiting, or entering any horse, directly or indirectly, through any agent, employee, or other device, and from judging, managing, or otherwise participating in any horse show, horse exhibition, horse sale or auction. The provisions of this disqualification order as to each Respondent shall become effective on the 30th day after service of this Order on said Respondent. In re Bill Young, 53 Agric. Dec. APPENDIX A (Aug. 31, 1994). [Not published herein. - Editor] APPENDIX B Excerpt from In re Eldon Stamper, 42 Agric. Dec. 20, 44-63 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992). [Not published herein. - Editor] In re: TRACY RENEE HAMPTON, CHARLES WESLEY HAMPTON, AND DENNIS HAROLD JONES. HPA Docket No. 93-7. Decision and Order as to Dennis Harold Jones filed November 23, 1994. Horse soring Horse owner Disqualification order Preponderance of Civil penalty The Judicial Officer reversed the Decision by Judge Kane (ALJ), which dismissed the Complaint on the ground that Respondent Jones was not the owner of a horse when it was entered while sore. The Judicial Officer held that Respondent Jones was the owner, assessed a civil penalty of $2,000, and disqualified Respondent Jones for 1 year from showing, exhibiting, or entering any horse, and from judging, managing, or otherwise participating in any horse show. Respondent Jones' Answer admits ownership of the horse when it was entered. It was error for the ALJ to amend Respondent's Answer, after the hearing record was closed, to deny a fact (ownership) previously admitted in the Answer. Furthermore, the ALJ permitted Respondent's statements at the hearing to be an amendment to his Answer, but all of his statements at the hearing admitted ownership. The undisputed evidence shows preliminary negotiations for the sale or trade of the horse, which were never consummated. Respondent Jones is responsible for allowing the entry of the horse while sore, notwithstanding the facts that he permitted the prospective buyer to have possession of the horse for several weeks prior to the show, he permitted the prospective buyer to elevate the horse's forelimbs to see how it would do in a Big Lick competition, and he permitted the prospective buyer to enter the horse in a show. Where the parties intend not to be bound unless the price be fixed or agreed, and it is not fixed or agreed, there is no contract. The holding in In re Charles Sims, in which the parents of a minor child were held responsible as de facto owners, rather than the minor child, who was the de jure owner, is not relevant here. Burton v. USDA is not applied outside of the Eighth Circuit, but, nonetheless, the Burton criteria are not met here by Respondent. Tejal Mehta, for Complainant. Respondent, Pro se. Initial decision issued by Paul Kane, Administrative Law Judge. This is a disciplinary administrative proceeding under the Horse Protection Act of 1970, as amended (15 U.S.C. § 1821 et seq.). On August 27, 1993, Administrative Law Judge Paul Kane (ALJ) filed an Initial Decision and Order in which (1) he noted that on April 7, 1993, Respondents Tracy Reneé Hampton and Charles Wesley Hampton signed a Consent Order concerning the Complaint filed December 11, 1992, alleging that the Respondents Hampton were trainers of a horse, "Velvet Holiday," which horse was entered on April 20, 1991, for the purpose of showing or exhibiting, at a horse show, while the horse was sore; and, in which (2) he found that Respondent Dennis Harold Jones was no longer the owner of "Velvet Holiday" and thus could not be held to have allowed the entry of the horse as discussed in, and in the manner of, (1) above; and, in which (3) he dismissed the Complaint against Respondent Jones, with prejudice. On November 12, 1993, Complainant appealed to the Judicial Officer, to whom final administrative authority to decide the Department's cases subject. 53 Agric. Dec. 1357 to 5 U.S.C. §§ 556 and 557 has been delegated (7 C.F.R. § 2.35).* Respondent filed a Reply on December 7, 1993. On July 14, 1994, the case was referred to the Judicial Officer for decision. I disagree with the ALJ that Respondent Jones was not proven the owner of "Velvet Holiday." Based upon a careful consideration of the record in this case, I am assessing a $2,000 civil penalty against Respondent Dennis Harold Jones and imposing a 1-year disqualification order based on the violation as to "Velvet Holiday." For convenience in drafting, the Initial Decision and Order is adopted--as modified--as the final Decision and Order, with deletions shown by dots, additions shown by brackets, and with trivial changes not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusions. ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION This decision is promulgated pursuant to the Administrative Procedure Act, Pub. L. 89-554, September 6, 1966, 80 Stat. 384, as amended,' the Rules of Practice governing proceedings under the Horse Protection Act, 9 C.F.R. §§ 12.1-.10 (1993), and the Rules of Practice of the Department of Agriculture Governing Formal Adjudicatory Administrative Proceedings, 7 C.F.R. §§ 1.130-.151 (1993). The Administrator of the Animal and Plant Health Inspection Service of the Department of Agriculture, by complaint filed December 11, 1992, alleges that the trainers, Tracy Reneé Hampton and Charles Wesley Hampton, entered a horse into an exhibition on April 20, 1991, while it was sore, and further alleges that the owner, Dennis Harold Jones allowed the entry, of a horse, into an exhibition on April 20, 1991, while the horse was sore, in 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). 'Particular reference is made to 5 U.S.C.A. §§ 554, 557 (West 1977 and Supp. 1993). [Unofficial codifications of statutes are cited herein.] [Brackets by the ALJ.] violation of the Horse Protection Act, Pub. L. 91-540, December 9, 1970, 84 Stat. 1404, as amended2 (hereinafter the "Act"). The Administrator seeks the imposition of civil penalties and the disqualification of respondents from participation in the horse industry for a period of time, sanctions which were entered against Tracy Reneé Hampton and Charles Wesley Hampton by consent order filed on April 7, 1993. By answer filed January 4, 1993, and amended April 15, 1993, Mr. Jones denies the essential allegations of the complaint. A public hearing was held on April 15, 1993, in Longview, Texas, before the undersigned. Proposed findings, and briefs were subsequently filed by counsel to the Department and by Mr. Jones'. To the extent indicated the proposals are adopted herein. All other proposed findings, conclusions or arguments are rejected as irrelevant or lacking legal or evidentiary bases. As used herein, "Tr." refers to the transcript of the public hearing. "CX" refers to the numbered exhibits offered by complaint counsel. The interests of the Department are represented by Bradley Flynn, Esq., and Tejal Mehta, Esq., Washington, D.C. Mr. Jones was not assisted by counsel. Upon consideration of all matters of record, the following Findings of Fact and Conclusions of Law are reached. As a result thereof, there is entered an order... [assessing a $2,000 civil penalty, and a 1-year disqualification] as to Dennis Harold Jones.["] Statute[] The following statutory provisions are applicable to this case: [The statutory provisions set forth below are from the United States Code, rather than from the unofficial version quoted by the ALJ, and include additional sections not quoted by the ALJ. The ALJ's footnotes 4, 5, 6, 7, and 8 are 215 U.S.C.A. § 1821 et seq. (West 1982 and Supp. 1992). 'Mr. Jones attached an affidavit to his brief. This document was apparently executed by Mr. Hampton on June 15, 1993. No consideration is given to this document or the facts expressed thereon as such was not offered as evidence at the hearing. 5 U.S.C.A. §§ 554(c), 556(c)(3), (d), (e), 557(b) (West 1977 and Supp. 1993). [ "The ALJ's omitted portion reads, "dismissing the complaint with prejudice as to Dennis Harold Jones."] 53 Agric. Dec. 1357 omitted]. [Section 2(3)(D) of the Act (15 U.S.C. § 1821(3)(D)) provides: As used in this chapter unless the context otherwise requires: (3) that The term "sore" when used to describe a horse means (A) an irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse, (B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse, (C) any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or (D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such an application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given.] [Section 5(2) of the Act (15 U.S.C. § 1824(2)) provides: The following conduct is prohibited: (2) The (A) showing or exhibiting, in any horse show or horse exhibition, of any horse which is sore, (B) entering for the purpose of showing or exhibiting in any horse show or horse exhibition, any horse which is sore, (C) selling, auctioning, or offering for sale, in |