55 Agric. Dec. 1066

Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture. This complaint alleges that on or about July 25, 1995, respondent moved an equine infectious anemia reactor horse from Wisconsin to Minnesota, in violation of 9 C.F.R. § 75.4(b) because the horse was moved unaccompanied by a certificate, as required.

The respondent failed to file an answer within the time prescribed in 7 C.F.R. § 1.136(a). Section 1.136(c) of the Rules of Practice (7 C.F.R. § 1.136(c)) provides that the failure to file an answer within the time provided under 7 C.F.R.§ 1.136(a) shall be deemed an admission of the allegations in the complaint. Further, the failure to file an answer constitutes a waiver of hearing. (7 C.F.R. § 1.139). Accordingly, the material allegations in the complaint are adopted and set forth in this Default Decision and Order as the Findings of Fact, and this Decision is issued pursuant to section 1.139 of the Rules of Practice applicable to this proceeding. (7 C.F.R. § 1.139).

Findings of Fact

1. Dennis Proell is an individual whose mailing address is 8979 Hwy 2, Brookston, Minnesota 55711.

2. On or about July 25, 1995, respondent moved an equine infection anemia reactor horse from Wisconsin to Minnesota, unaccompanied by a certificate, as required.

Conclusion

By reason of the Findings of Fact set forth above, the respondent has violated the Act and the regulations issued under the Act (9 C.F.R. § 75.4(b). Therefore, the following Order is issued.

Order

Respondent Dennis Proell, is hereby assessed a civil penalty of five hundred dollars ($500.00)'. This penalty shall be payable to the "Treasurer

'The respondent has failed to file an answer within the prescribed time, and, under the Rules of Practice applicable to this proceeding, the Department is not required to hold a hearing. Therefore, the civil penalty requested is reduced by one-half in accordance with the Judicial Officer's Decision in In re: Bobo, 49 Agric. Dec. 849 (1990).

of the United States" by certified check or money order, and shall be forwarded within thirty (30) days from the effective date of this Order to:

United States Department of Agriculture

APHIS Field Servicing Office

Accounting Section

P.O. Box 3334

Minneapolis, Minnesota 55403

Respondent shall indicate on the certified check or money order that payment is in reference to A.Q. Docket No. 96-06.

This order shall have the same force and effect as if entered after a full hearing and shall be final and effective thirty five (35) days after service of this Default Decision and Order upon respondent, unless there is an appeal to the Judicial Officer pursuant to 7 C.F.R. § 1.145 of the Rules of Practice.

[This Decision and Order became final July 22, 1996.-Editor]

55 Agric. Dec. 1069

ANIMAL WELFARE ACT

In re: CHARLES E. LOHNES, BEVERLY A. LOHNES and VERMONT VIEW ANIMAL PARK.

AWA Docket No. 96-0007.

Decision and Order filed July 23, 1996.

Failure to file an answer - Failure to construct and maintain facilities in structurally sound manner and good repair - Failure to provide outdoor animal with adequate shelter from inclement weather - Failure to keep food and water receptacles clean and sanitized - Failure to maintain primary enclosure in clean and sanitary condition - Failure to keep premises clean and in good repair and free of accumulations of trash - Failure to control weeds, grass and bushes - Failure to establish and maintain programs of disease control and prevention, euthanasia, and adequate veterinary care Cease and desist order - Civil penalty - License disqualification.

James Booth, for Complainant.

Respondent, pro se.

Decision and Order issued by Victor W. Palmer, Chief Administrative Law Judge.

Preliminary Statement

This proceeding was instituted under the Animal Welfare Act (Act), as amended (7 U.S.C. § 2131 et seq.), by a complaint by the acting Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, filed on November 30, 1995, alleging that the respondents willfully violated the Act.

Copies of the complaint and the Rules of Practice governing proceedings under the Act, 7 C.F.R. §§ 1.130-1.151,were sent to respondents Charles E. Lohnes, Beverly A. Lohnes, and Vermont View Animal Park, by the Hearing Clerk by certified mail on December 1, 1995, and was returned unclaimed. Pursuant to section 1.147(b), copies of the complaint and the Rules of Practice governing proceedings under the Act were served upon respondents by the Hearing Clerk by regular mail on January 3, 1996. Respondents were informed in the letter of service that an answer should be filed pursuant to the Rules of Practice and that failure to answer any allegation in the complaint would constitute an admission of that allegation.

Section 1.136(c) of the Rules of Practice (7 C.F.R. § 1.136(c)) provides that the failure to file an answer within the time provided under 7 C.F.R. § 1.136(a) shall be deemed an admission of the allegations in the complaint. Further, the failure to file an answer constitutes a waiver of hearing (7 C.F.R.

s we failed to file an answer within the time the material facts alleged in the complaint e to file an answer. Accordingly, the are adopted and set forth in this Default gs of Fact, and this Decision is issued

of Practice applicable to this proceeding ܚ ܫ ܂

Findings of Fact

1.

Beverly A. Lohnes are individuals doing Sma Park, a partnership in which they are Neuans maing address is RD 2 - Box 73-A, Hoosick

rem, the respondents, doing business as the , were sperating as an exhibitor as defined in the

me licensed and annually thereafter, they ane regulations and standards issued gu comply with them.

S inspected the respondents' facility and aces of section 2.100(a) of the regulations (9 us specified below:

ng were not stored so as to adequately molding, or contamination by vermin

e not provided with adequate shelter -$5.127(b));

kept clean and free of accumulations of

-bit hoense through out the entire time period of complaint and up until April 3, 1996. On March 13, bbs heense (No. 21-C-067, expiration date: 11/01/96) in the presence of a New York State police officer veterinary care for a male African lion in extreme refter. The surrender of their license was effective on

55 Agric. Dec. 1069

d. Substances that are toxic to nonhuman primates were stored in food storage areas (9 C.F.R. § 3.75(e)); and

e. The respondent failed to develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of one nonhuman primate (9 C.F.R. § 3.81).

5. On May 5, 1993, APHIS inspected respondents' premises and found that the respondents had failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care, in willful violation of section 2.40 of the regulations (9 C.F.R. § 2.40).

6. On May 5, 1993, APHIS inspected the respondents' facility and found the following willful violations of section 2.100(a) of the regulations (9 C.F.R. § 2.100(a) and the standards specified below:

a. Supplies of food were not stored so as to adequately protect them against deterioration, molding, or contamination by vermin (9 C.F.R. §§ 3.50(c) and 3.125(c));

b. Housing facilities for rabbits and other animals were not structurally sound and maintained in good repair so as to protect the animals from injury, to contain the animals, and to restrict the entrance of other animals (9 C.F.R. §§ 3.53(a)(1) and 3.125(a));

c. Food receptacles for rabbits and other animals were not kept clean and sanitized (9 C.F.R. §§ 3.54 and 3.129(b));

d. Water receptacles were not kept clean and sanitary (9 C.F.R. §§ 3.55 and 3.130); and

e. Primary enclosures were not kept clean, as required (9 C.F.R. §§ 3.56(a) and 3.131(a)).

7. On July 21, 1993, APHIS inspected the respondents' facility and found the following willful violation of section 2.100(a) of the regulations (9 C.F.R. $ 2.100(a) and the standard specified as follows: Housing facilities for nonhuman primates were not structurally sound and maintained in good repair so as to protect the animals from injury, to contain the animals securely, and to restrict the entrance of other animals (9 C.F.R. § 3.75(a)).

8. On September 29 1993, APHIS inspected respondents' premises and found that the respondents had failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care, in willful violation of section 2.40 of the regulations (9 C.F.R. § 2.40).