Government never delineated the specific violations in its complaint, and that they were thus unable to show which of the violations fell within applicable exceptions to the requirement. The Toneys do not suggest that they ever asked the Government to be more specific. Given that they do not actually deny the violations in their brief, we uphold this finding. The Judicial Officer concluded, mainly from the Toneys' original notebook records, that they had altered records, principally by changing acquisition dates in their notebooks and then entering those dates on the USDA forms after the 1990 inspection. The Toneys argue that this conclusion "doesn't make any sense" because they would not have provided the notebook records to the USDA if they contained damaging information. Instead, they would have provided only the records onto which they had transposed the notebook information. There are many reasons, however, why they might have still chosen to provide the records, including a desire to create the impression of full disclosure, or a feeling that the USDA would eventually have asked for those records anyway. This kind of argument is insufficient to upset the evidence of alteration in the notebook that the Judicial Officer sets forth in his scrupulous opinion, and it was fully within his discretion to reject it. Finally, the Judicial Officer found that petitioners ran afoul of federal regulations governing dealer identification of animals on the premises 9 C.F.R. $ 2.50,2.53. The Toneys concede the violations but argue that because these violations were unusual and because past inspections had not uncovered similar violations, the violations were not willful. The mere fact that the Toneys had not violated these regulations in the past does not mean the violations at issue here were not willful. We thus uphold the Judicial Officer's Decision except as to the findings that the Toneys falsely received dogs from the Trenton pound and that they falsely claimed to have received dogs from Mr. Hughes. Accordingly, we remand so that the Judicial Officer can recalculate the sanction without considering these violations. III. The Size of the Sanction The ALJ ordered and the Judicial Officer affirmed the imposition of a $200,000 fine and permanent revocation of the Toneys' license. Because their decisions may have been based on violations that we have found to be unsubstantiated, we remand for a recalculation of the sanction. We remand so that the ALJ can determine the sanction based exclusively upon substantiated violations. 55 Agric. Dec. 775 IV. The Request for Leave to Adduce Additional Evidence The Toneys argue that the Judicial Officer erred in not reopening the hearing to allow the introduction of three 1990 inspection reports which state that their records were in compliance with applicable regulations. They fail to state a good reason why they could not have introduced this evidence at the original hearing, as a federal regulation requires. 7 C.F.R.§ 1.146(a)(2). The fact that counsel was unaware of the reports is insufficient to justify reopening the hearing if the Toneys themselves knew about them, and there is nothing in the record or briefs to suggest that they did not. Moreover, we have no reason to dispute the Judicial Officer's conclusion that if received, "[the reports'] weight would be infinitesimal." J.O. Dec 107. The Toneys also seek leave to adduce additional evidence to add information they received through a Freedom of Information Act request. Again, though they received the information after the hearing, they fail to explain why they could not have requested the information in time to present it at the hearing. We deny their request. V. Conclusion The Toneys repeatedly point out that there is no evidence that they have dealt in stolen dogs, and no one has argued to the contrary. The Animal Welfare Act does not penalize only those who steal dogs or who purchase stolen dogs. It also penalizes those who violate the regulations that are designated to make dog stealing more difficult. It may seem unfair to the Toneys that they are being punished when they have not helped to steal any dogs, but that does not change the fact that they repeatedly, and, in some cases, flagrantly violated the law. The law may or may not be overly harsh, but it is our job uphold it. Thus, with the exceptions noted above, we uphold the Judicial Officer's decision and remand for recalculation of the sanction. We also deny the Toneys' Request for Leave to Adduce Additional Evidence. 784 DEPARTMENTAL DECISIONS In re: RONALD G. WACKERLA. AWA Docket No. 95-0026. Decision and Order filed July 19, 1996. Operating as a dealer without a license - "Dealer" defined - Finding of wilfulness not required Complainant's requested penalty too high - Cease and desist order - Civil penalty. Judge Bernstein imposed a cease and desist order and assessed a civil penalty of $7,000 upon Respondent for operating as a dealer without being licensed. In selling approximately 120 dogs and cats for resale as pets, Respondent operated as a dealer. There is no requirement that the Secretary prove that the violations were wilful to either assess a civil penalty or issue a cease and desist order. Judge Bernstein determined after reviewing recent decisions and the criteria set forth in the statute that Complainant's requested penalty of $13,000 was too high. Sharlene A. Deskins, for Complainant. Bruce L. Hart, Cozad, NE, for Respondent. Decision and Order issued by Edwin S. Bernstein, Administrative Law Judge. This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.) ("the Act") instituted by a Complaint filed on April 11, 1995, by the Acting Administrator, Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA"). The Complaint alleged that Respondent willfully violated the Act and its regulations by operating as a dealer without being licensed. Respondent denied the Complaint's material allegations in a timely Answer. A hearing was held on May 15, 1996, in Lincoln, Nebraska. Complainant was represented by Sharlene A. Deskins, Esq., Office of the General Counsel, USDA. Respondent was represented by Bruce L. Hart, Esq., Cozad, Nebraska. Complainant filed proposed findings of fact, conclusions of law and a brief on June 28, 1996. Respondent filed a two-page written argument on June 28, 1996. All 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. Complainant's exhibits are referred to as "CX"; Respondent's exhibits are referred to as "RX"; and the hearing transcript is referred to as "Tr." 55 Agric. Dec. 784 Findings of Fact 1. Respondent Ronald G. Wackerla is an individual who has done business as RGW Kennels and RGW Cattery and whose address is Box 335, Oconto, Nebraska 68860 (Answer, ¶ 1). 2. Respondent has never held a license under the Animal Welfare Act (Tr. 53). 3. Until June 1992, Respondent sold dogs and cats in commerce (Answer, 13). Between February 6, 1991 and March 28, 1992, Respondent sold dogs through an arrangement with Roland and Terry Anderson. Respondent and the Andersons shipped dogs to Valley Pet in Phoenix, Arizona. Valley Pet also used the name Great Western Pet Supply. Valley Pet or Great Western Pet Supply sent payments to Roland and Terry Anderson or their firm, Countryside Kennel. In turn, Countryside Kennel sent checks paying for these dogs to Respondent (Tr. 43-50; CX-3, 4). Between March 9, 1991 and June 18, 1992, Respondent also sold dogs to American Kennels in New York City and to Bay Pet Center in Friendswood, Texas, and Respondent sold cats to Fabulous Felines in New York City (CX-4-10). 4. In 1991, before Respondent sold the dogs and cats, Respondent inquired as to what he needed to do to become licensed (Tr. 50). In February 1992, Respondent requested information as to how he could obtain a license. 5. Respondent rents the farm that he works from his mother (Tr. 58). He owns 35 head of cattle. He also works as a part-time bartender. His total annual income is $9,000 to $10,000 a year (Tr. 63). Conclusion of Law Respondent operated as a dealer as defined in the Act and regulations without being licensed from February 6, 1991 until June 18, 1992, in violation of section 4 of the Act (7 U.S.C. § 2132) and section 2.1 of the regulations (9 C.F.R. § 2.1) and Respondent sold or offered for sale in commerce approximately 120 dogs and cats for resale use as pets. Discussion In selling approximately 120 dogs and cats for resale as pets between February 6, 1991 and June 18, 1992, Respondent operated as a dealer as that term is defined. Section 2(f) of the Act defines dealer as follows: The term "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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes... Section 4 of the Act (7 U.S.C. § 2134) states: 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 buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animal 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. Section 2.1 of the regulations (9 C.F.R. § 2.1) has a similar requirement. It states: (a)(1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempt from the licensing requirements of the paragraph (a)(3) of this section, must have a valid license. The evidence is clear that Respondent was never licensed under the Act. Thus, in acting as a dealer without having a valid license, Respondent violated section 4 of the Act and section 2.1 of the regulations. There is evidence that Respondent knew that he needed to be licensed. Terry Anderson testified that before the sales Respondent was attempting to determine what he needed to do to obtain a license (Tr. 50). In addition, Respondent admitted that in February 1992, after most of these sales had been completed, that he requested information as to how he could obtain a license (Tr. 55), and Respondent obtained a prelicensing packet from APHIS on March 10, 1992 (CX-11). Respondent's attorney argues in his post-hearing written argument that Complainant has failed to prove wilfulness and, therefore, this proceeding should be dismissed. However, as the Judicial Officer has recently reiterated, "there is no requirement that the Secretary prove that the violations were wilful in order to assess either a civil penalty or issue a cease and desist order |