Complaint; (12) Respondents violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) as alleged in paragraphs II(C)(7), III(D)(8), IV(D)(7), V(C)(7), VI(C)(6), VII(C)(4), and VIII(C)(8) of the Complaint; (13) Respondents violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(d) of the Standards (9 C.F.R. § 3.11(d)) as alleged in paragraphs IV(D)(8), VII(C)(6), and VIII(C)(10) of the Complaint; (14) Respondents violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.15 of the Standards (9 C.F.R. § 3.15) as alleged in paragraph IX(B)(10) of the Complaint; and (15) Respondents violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.12 of the Standards (9 C.F.R. § 3.12) as alleged in paragraphs II(C)(8), IV(D)(9), V(C)(8), VI(C)(7), VII(C)(5), VIII(C)(9), and IX(B)(9) of the Complaint (Initial Decision and Order at 59-62).**

Moreover, I find that the ALJ dismissed two violations alleged in the Complaint that Complainant has proven by at least a preponderance of the evidence."" Specifically, I find that Complainant has carried its burden of proof by a preponderance of the evidence that Respondents violated the Animal Welfare Act

"The ALJ did not find that Respondents' violations of the Animal Welfare Act and the Regulations and Standards were willful. As discussed in this Decision and Order, infra pp. 142-45, I find that all of Respondents' violations were willful.

***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. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981). The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. In re David M. Zimmerman, 56 Agric. Dec. slip op. at 39 (June 6, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. slip op. at 4 n.4 (Jan. 13, 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).

56 Agric. Dec. 1242

and the Regulations and Standards as alleged in paragraphs II(C)(9) and VIII(B) of the Complaint.

While Complainant has a prima facie case with respect to the violations alleged in paragraphs II(C)(1), II(C)(4), III(D)(2), IV(D)(5), IV(D)(6), V(C)(5), V(C)(6), VI(C)(4), VI(C)(5), VII(C)(3), VIII(C)(2), VIII(C)(6), IX(B)(2) relating to a violation of section 3.1(c)(1)(i) of the Standards (9 C.F.R. § 3.1(c)(1)(i)), IX(B)(4) relating to a violation of section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)), IX(B)(6), and IX(B)(7) of the Complaint, the record is not quite strong enough to reverse the ALJ. Further, Complainant does not have a prima facie case regarding the violations alleged in paragraphs II(C)(5), V(C)(2), VI(C)(1), VII(C)(1), IX(B)(2) relating to a violation of section 3.2(d) of the Standards (9 C.F.R. § 3.2(d)), IX(B)(4) relating to a violation of 3.1(e) of the Standards (9 C.F.R. § 3.1(e)), and IX(B)(8) relating to a violation of 3.11(c) of the Standards (9 C.F.R. 3.11(c)). Moreover, I find the ALJ erroneously found that Respondents violated the Regulations and Standards as alleged in paragraphs II(C)(2), III(D)(7), III(D)(9), V(C)(3), VI(C)(2), VIII(C)(3), and IX(B)(3) of the Complaint.

Since I agree with most of the ALJ's findings of fact and conclusions of law and much, but not all, of the ALJ's discussion, I have adopted the ALJ's Initial Decision and Order as the final Decision and Order. Additions or changes to the Initial Decision and Order are shown by brackets, deletions are shown by dots, and minor editorial changes are not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
(AS MODIFIED)

Introduction

Congress enacted the Animal Welfare Act in 1966 to achieve three objectives:

The purposes of this bill, as amended, are (1) to protect the owners of dogs and cats from theft of such pets, (2) to prevent the use or sale of stolen dogs or cats for purposes of research or experimentation, and (3) to establish humane standards for the treatment of dogs, cats, and certain other animals... by animal dealers and medical research facilities.

S. Rep. No. 1281, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2635.

Congress gave the Secretary of Agriculture authority "to promulgate humane standards and recordkeeping requirements governing the purchase, handling, or sale of animals, in commerce, by dealers, research facilities, and exhibitors at auction sales and by the operators of such auction sales." 7 U.S.C. § 2142. Pursuant to that authority, the Secretary established [Regulations and] Standards that provide for the proper care of animals held by dealers, research facilities, and exhibitors. See 9 C.F.R. §§ 1.1[-3.142]. The [Animal Welfare] Act requires dealers to be licensed by the Secretary (7 U.S.C. § 2134) and [the Regulations] restrict the issuance of licenses to those who have applied in the prescribed form and manner and have shown that their facilities comply with the [Regulations and] Standards promulgated by the Secretary [(9 C.F.R. § 2.1)].

Background

Respondents Fred and Janice Hodgins own, manage, and control Respondent Hodgins Kennel, Inc. (Tr. 44). (Fred and Janice Hodgins are referred to jointly as "the Hodgins" [in this Decision and Order]. .. .) Tammi Longhi, the Hodgins' daughter, has worked for Respondents for over [10] years as [an employee at] the kennel and overseer of the animals (Tr. 1933-34).' Hodgins Kennel[, Inc.], which began operations in 1960, has been licensed as a Class B dealer under the Animal Welfare Act since its [enactment] in 19662 (Tr. 44-45, 1448-49). When obtaining an annual license, Respondents receive copies of the [Animal Welfare] Act and the Regulations and Standards issued [under the Animal Welfare Act] and agree in writing to comply with them (Tr. 48). As a licensee, Hodgins Kennel, Inc., is subject to periodic inspections by [Animal and Plant Health Inspection Service

'Tammi Longhi is the Respondent in a companion case, In re Tammi Longhi, 56 Agric. Dec. (July 11, 1997). The parties in the instant proceeding and In re Tammi Longhi, supra, agreed that the record in the two cases could be referred to in each case. Transcript and exhibit references to the Longhi case in this Decision [and Order] will be preceded by "Longhi."

2" Class `B' licensee means a person subject to the licensing requirements under [9 C.F.R.] part 2 and meeting the definition of a `dealer' ([9 C.F.R.] § 1.1), and whose business includes the purchase and/or resale of any animal." (9 C.F.R. § 1.1.) "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." (9 C.F.R. § 1.1.)

(hereinafter] APHIS) officials.

56 Agric. Dec. 1242

Hodgins Kennel[, Inc.,] obtains animals (mostly dogs), which have not been adopted and are otherwise to be euthanized, from municipal and county animal shelters (Tr. 1451). After a prescribed waiting period, the kennel sells the animals to research facilities (Tr. 1192[, 1449-50]). The animals usually have unknown histories and typically have been exposed to a variety of pathogens [prior to arrival at Hodgins Kennel, Inc. Many of these dogs] manifest... disease symptoms after their arrival at the kennel (Tr. 1308-09). All animals, whether displaying disease symptoms or not, are placed on a treatment conditioning program as outlined in the "veterinary protocol" developed annually by the facility's attending veterinarian3 (Tr. 53). The veterinary protocol contains vaccination and de-worming schedules, a parasite control regimen, and instructions for administering antibiotics to the animals (Tr. 69-71; RX 1). Despite these precautions, many of the animals still develop upper respiratory diseases, usually "kennel cough," resulting from exposure to diseases prior to being received by [Hodgins] Kennel[, Inc]. The symptoms include coughing, runny nose and eyes, and listlessness.... In a facility the size of Hodgins Kennel[, Inc.,] up to 30 animals can display new symptoms or illnesses each day (Tr. 675-76, [1200-101). Most animals recover as a result of the veterinary protocol program. If not, they are referred to the attending veterinarian for further treatment or [are] euthanized.

After an approximately 6-week treatment and conditioning program, the animals are sold for use in medical research to hospitals and universities throughout the Midwest. The State of Michigan Department of Public Health has an official policy confirming the need for animals in medical research [and urges] municipal and county [governments to facilitate the availability of unclaimed dogs and cats for scientific use (Tr. 1456; RX 35). Generally, when municipal and county governments make unclaimed dogs and cats available for scientific use, they] release the animals to Class B dealers such as Hodgins Kennel[, Inc.,] for later transfer to medical research facilities after a required holding period (Tr. 1456[-57]; RX 35). Animals that are not suitable for treatment or become too ill to participate in the conditioning program are euthanized. Approximately six animals per week are euthanized at Hodgins Kennel, Inc. The decision to euthanize an animal is made solely by Respondents (Tr. 1474-75).

Research facilities, which accept only healthy animals, return unhealthy animals to Respondents and receive either a refund [of the purchase price] or a replacement

'Each year the attending veterinarian provides a detailed veterinary protocol to [the United States Department of Agriculture (hereinafter] USDA) using USDA's format (RX 1).

[with another animal] (Tr. 1192-93, 1452). Mr. Hodgins testified that his animals are rarely rejected by research facilities because of poor health (Tr. 1458-59, 1676). He said it is in Respondents' financial interest to treat illnesses as effectively and quickly as possible. Sick animals are not salable, he said, and costs increase for each day an animal is ill (Tr. 1463-64). Respondents sold 4,795 animals in 1994, [and the gross amount derived from the sale of those animals was] $458,966.65 (CX 3 at 7).

During the time relevant to the Complaint (November 1993-November 1994), Hodgins Kennel[, Inc.,] had two locations: 1) the Lange Road facility, consisting of five buildings and referred to in [APHIS] inspection reports as Site 1; and 2) the Judd Road facility, 4 miles from the Lange Road facility, comprising one large building and referred to in [APHIS] inspection reports as Site 3. The Judd Road facility closed in February 1995 (Tr. [1681]-82). Normally, there are between 225250 dogs and cats at Hodgins Kennel[, Inc.,] on a given day (Tr. [64-]65). At various times relevant to th[e] Complaint, the kennel also housed a few goats, pigs, sheep, rabbits, and calves.

Respondents have two basic types of cages: elevated cages and pens on the floor. Elevated cages have slatted rubberized or plastic floors designed to allow excreta and urine to drain immediately away from the animal housing area. Respondents state that the daily routine is to clean the inside of the cages and pens, wash down the floor and trough area under the cages, and change the wood shavings used in the pens as bedding (Tr. 1509). The areas underneath and outside the pens are also power-washed every 2 weeks (Tr. 1510). Animals are segregated by sex. Four or five animals are housed in one pen (Tr. 1812).

Dr. Kenneth Johnson, the attending veterinarian at Hodgins Kennel[, Inc.,] from 1971-1995, semi-retired and moved to Colorado in 1995. Dr. Henry Vaupel then became the attending veterinarian (Tr. 1166, 1823). Both veterinarians are experienced practitioners in treating animals. Mr. Hodgins testified that an attending veterinarian is normally at [Hodgins] Kennel[, Inc.,] every week to [conduct] a "walk-through" of the kennel or to authorize a health certificate for an animal that is being shipped out of state (Tr. 51). Similarly, Dr. Johnson estimated that the frequency of his visits to Hodgins Kennel[, Inc.,] was [approximately one time per week (Tr. 1173). APHIS inspector Joseph Kovach testified that of the 100 facilities that he inspects, one veterinary visit per week is the best frequency rate he has observed (Tr. 309).

The attending veterinarian issues a bi-monthly report listing the animals by federal identification number and including a diagnosis and the medication prescribed for animals receiving treatment (Tr. 1176-81, 1826). In addition to the