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determining the amount of the civil penalty to be assessed, but the Act contains no such requirement with respect to the imposition of a disqualification period. (15 U.S.C. § 1825(c).) See In re Joe Fleming, 41 Agric. Dec. 38, 46 (1982), aff'd, 713 F.2d 179 (6th Cir. 1983) (financial effect of a disqualification order on Respondent is not a relevant factor in determining whether to issue a disqualification order under the Act).

While disqualification is discretionary with the Secretary, the imposition of a disqualification period, in addition to the assessment of a civil penalty, has been recommended by administrative officials charged with responsibility for achieving the congressional purpose of the Act and the Judicial Officer has held that disqualification, in addition to the assessment of a civil penalty, is appropriate in almost every Horse Protection Act case, including those cases in which the Respondent is found to have violated the Act for the first time. In re Tracy Renee Hampton, supra (Respondent assessed a $2,000civil penalty and disqualified for 1 year for first violation of the Act); In re Cecil Jordan, supra (Respondent Crawford assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Act); In re Linda Wagner, supra (Respondents assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Act); In re John Allan Calloway, 52 Agric. Dec. 272 (1993) (Respondent assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Act); In re Preach Fleming, 40 Agric. Dec. 1521 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983) (Respondent assessed a civil penalty of $2,000 and disqualified for 1 year for first violation of the Act).

Congress has provided the Department with the tools needed to eliminate the practice of soring Tennessee Walking Horses, but they must be used to be effective. In order to achieve the congressional purpose of the Act, it would seem necessary to impose at least the minimum disqualification provisions of the 1976 amendments on any person who violates 15 U.S.C. § 1824.

There is a possibility that the circumstances in a particular case might justify a departure from this policy. Since it is clear under the 1976 amendments that intent and knowledge are not elements of a violation, there are few circumstances warranting an exception from this policy, but the facts and circumstances of each case must be examined to determine whether an exception to this policy is warranted. An examination of the record in the instant proceeding does not lead me to believe that an exception from the usual practice of imposing the minimum disqualification period for the first violation of the Act, in addition to the assessment of a civil penalty, is warranted.

55 Agric. Dec. 800

The ALJ's Initial Decision and Order disqualified Respondent as follows:

Respondent Mike Thomas is disqualified for one 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 or horse exhibition.

Initial Decision and Order, p. 15.

Section 6(c) of the Act provides, in relevant part, that:

[A]ny person who... is subject to a final order under [15 U.S.C. § 1825(b)] assessing a civil penalty for any violation of any provision of this chapter or any regulation issued under this chapter may be disqualified by order of the Secretary, after notice and an opportunity for a hearing before the Secretary, from showing or exhibiting any horse, judging or managing any horse show, horse exhibition, or horse sale or auction ...

....

15 U.S.C.§ 1825(c).

The Complainant, one of the administrative officials charged with the responsibility for achieving the congressional purpose of the Horse Protection Act requested that the Order issued in this proceeding include a provision disqualifying Respondent from:

(1) showing, exhibiting or entering any horse, or otherwise participating in any horse show or exhibition, and (2) judging or managing any horse show, horse exhibition, horse sale or auction.

Complaint, p. 3.

The ALJ gives no explanation for not disqualifying Respondent from judging, managing, and otherwise participating in any horse sale or auction. (Initial Decision and Order.) Complainant did not appeal the Initial Decision and Order, and in Complainant's Opposition to the Respondent's Appeal Petition and Brief in Support Thereof (hereinafter CORA), states that the Initial Decision and Order should be affirmed. (CORA, p. 3.) While in most circumstances I would include in any disqualification order a disqualification from judging, managing, and otherwise participating in any horse sale or auction, I have not done so in the instant proceeding based upon

Complainant's request that the Initial Decision and Order be affirmed. (CORA, p. 3.)

For the foregoing reasons the following Order should be issued.

V. ORDER

1. Respondent Mike Thomas is 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 or horse exhibition. The provisions of this disqualification order shall become effective on the 30th day after service of this Order on Respondent.

2. Respondent Mike Thomas is assessed a 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: Sharlene A. Deskins, Office of the General Counsel, United States Department of Agriculture, Room 2014-South Building, Washington, D.C. 20250-1417, within 30 days from the date of service of this Order on Respondent.

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Entering sore horse - Preponderance of the evidence - Appeal of credibility determinations Complaint dismissed.

The Judicial Officer affirmed the decision by Administrative Law Judge Paul Kane (ALJ) dismissing the Complaint which alleges that Respondent Jim Singleton entered for the purpose of showing or exhibiting, showed, and allowed the entry and showing of a horse while it was sore, and Respondent Jackie Singleton showed a horse while it was sore. Complainant, as proponent of the Order, bears the burden of proof, and the standard of proof by which the burden of persuasion is met is preponderance of the evidence. Complainant's evidence is not strong enough to justify reversal of the ALJ's findings of fact. However, the Judicial Officer disagreed with most of the Initial Decision and Order and did not adopt it as the final Decision and Order. Even if a party's disagreement with the Judge's decision is based solely upon the Judge's determination as to the credibility of witnesses, the party may appeal to the Judicial Officer in

55 Agric. Dec. 848

accordance with 7 C.F.R. § 1.145(a), and the Judicial Officer can, in appropriate circumstances, reverse a decision by an ALJ even though the ALJ's decision is based on the ALJ's determination as to the credibility of witnesses.

Denise Y. Hansberry, for Complainant.

Jim Singleton and Jackie Singleton, Pro se.

Initial decision issued by Paul Kane, Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.

This case is a disciplinary administrative proceeding instituted pursuant to the Horse Protection Act of 1970, as amended, (15 U.S.C. §§ 1821-1831) (hereinafter the Act), and the Rules of Practice Governing Formal Adjudicatory Administrative Proceedings Instituted by the Secretary, (7 C.F.R. §§ 1.130-.151).

The proceeding was instituted by a Complaint filed on March 30, 1994, by the Acting Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture (hereinafter Complainant). The Complaint alleges that: (1) on June 15, 1991, Respondent Jim Singleton entered for the purpose of showing or exhibiting, showed, and allowed the entry and showing of a horse known as "Lots A Cash" as Entry 402, in Class No. 21, at the Plantation Pleasure Summer Jamboree Horse Show at Murfreesboro, Tennessee, while the horse was sore, in violation of 15 U.S.C. § 1824(2)(A), (B), and (D); and (2) on June 15, 1991, Respondent Jackie Singleton showed a horse known as "Lots A Cash" as Entry No. 402, in Class No. 21, at the Plantation Pleasure Summer Jamboree Horse Show at Murfreesboro, Tennessee, while the horse was sore, in violation of 15 U.S.C. § 1824(2)(A). (Complaint, p. 2.)

On April 18, 1994, Respondents filed an Answer stating:

We are in receipt of the USDA Complaint, HPA Docket No. 94-12. We admit that Jim Singleton is the trainer and owner of the horse known as "Lots a Cash" and that he entered and showed this horse as Entry No. 402, Class No. 21, on June 15, 1991, at the Plantation Pleasure Summer Jamboree Horse Show at Murfreesboro, Tennessee. We further admit that Jackie Singleton was the exhibitor of the horse known as "Lots a Cash", Entry No. 402, Class No. 21, on June 15, 1991, at the Plantation Pleasure Summer Jamboree Horse Show at Murfreesboro, Tennessee. We do not admit to entering for the purpose of showing or exhibiting, showed, and allowed the entry and showing of the horse known as "Lots a Cash" as Entry No. 402, in Class

No. 21, at the Plantation Pleasure Summer Jamboree Horse Show at Murfreesboro, Tennessee, while the horse was sore.

Answer.

A hearing was held on January 27, 1995, in Murfreesboro, Tennessee, before Administrative Law Judge Paul Kane (hereinafter ALJ). Jim Singleton and Jackie Singleton appeared pro se and Denise Y. Hansberry, Office of the General Counsel, United States Department of Agriculture, represented Complainant.

On November 30, 1995, the ALJ filed an Initial Decision and Order dismissing the Complaint with prejudice. On February 2, 1996, Complainant appealed to the Judicial Officer, to whom authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 has been delegated. (7 C.F.R. § 2.35.)' Respondents filed a response to Complainant's appeal on February 28, 1996, and on February 29, 1996, the case was referred to the Judicial Officer for decision.

Based upon a careful consideration of the entire record in this case, I am dismissing the Complaint. Complainant's evidence, when considered in the light of Respondents' evidence, is just barely adequate to sustain Complainant's burden of proof. Had the ALJ found that Respondents

'The position of Judicial Officer was established pursuant to the Act of April 4, 1940, (7 U.S.C. §§ 450c-450g); Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1490 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994, (7 U.S.C. § 6912(a)(1)).

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 Horse Protection Act is preponderance of the evidence. In re Keith Becknell, 54 Agric. Dec. 335,343-44(1995); In re C.M. Oppenheimer (Decision as to C.M. Oppenheimer), 54 Agric. Dec. 221, 245-46 (1995); In re Eddie C. Tuck (Decision as to Eddie C. Tuck), 53 Agric. Dec. 261, 285 (1994), appeal voluntarily dismissed, No. 94-1887 (4th Cir. Oct. 6, 1994); In re William Earl Bobo, 53 Agric. Dec. 176, 197 (1994), aff'd, 52 F.3d 1406 (6th Cir. 1995); In re Jack Kelly, 52 Agric. Dec. 1278, 1286 (1993), appeal dismissed, 38 F.3d 999 (8th Cir. 1994); In re Charles Sims (Decision as to Charles Sims), 52 Agric. Dec. 1243, 1253-54 (1993); In re Paul A. Watlington, 52 Agric. Dec. 1172, 1186-87 (1993); In re Jackie McConnell (Decision as to Jackie McConnell), 52 Agric. Dec. 1156, 1167 (1993), aff'd, 23 F.3d 407, 1994 WL 162761 (6th Cir. 1994), printed in 53 Agric. Dec. 174 (1994); In re A.P. Holt (Decision as to Richard Polch and Merrie Polch), 52 Agric. Dec. 233, 242-43

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