57 Agric. Dec. 91 preponderance of the evidence that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). Sixth, Respondent contends that the Complaint was amended after the hearing started depriving him of an adequate opportunity to prepare a defense (Pet. for Recons. at 35-37). I disagree with Respondent's contention that the Complaint was amended. Complainant did address issues at the hearing and in post-hearing submissions that were not part of the Complaint. Further, at the hearing, Complainant expressed an intent to amend the Complaint in order to conform to the proof, but the Chief ALJ advised Complainant that such an amendment would not be allowed (Tr. 339-40). Complainant did not file a timely appeal of the Chief ALJ's ruling on Complainant's incipient motion to amend the Complaint, and the Complaint was never amended. Seventh, Respondent contends it was error for the Chief ALJ to deny admission into evidence of a letter from Robert A. Willems, DVM, to Dr. Mike Staton, dated April 13, 1993 (Pet. for Recons. at 37-38). The Administrative Procedure Act provides, as follows: § 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision (d) ... Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. 5 U.S.C. § 556(d). Section 1.141(h)(1)(iv) of the Rules of Practice provides, as follows: § 1.141 Procedure for hearing. (h) Evidence. (1) In general. (iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely, shall be excluded insofar as practicable. 7 C.F.R. § 1.141(h)(1)(iv). I have reviewed the letter from Dr. Robert A. Willems, dated April 13, 1993 (Pet. for Recons., App. VI) and find that it concerns an incident that occurred more than 1 year prior to the date of the violations alleged in the Complaint and was written more than 1 year prior to the date of the violations alleged in the Complaint. I agree with the Chief ALJ's determination that the letter is irrelevant (Tr. 445-46) and should be excluded. Eighth, Respondent contends that his expertise with respect to handling animals is relevant to the issue of whether he violated section 2.131(a)(1) of the Regulations (9 C.F.R. §2.131(a)(1)). I disagree with Respondent's contention that his expertise is relevant to the issue in this proceeding; viz., whether, on a particular occasion, Respondent violated the Regulations and Standards. Even if I found that Respondent is an experienced handler of exotic animals and generally uses good judgment with respect to the handling of exotic animals, those findings would not affect the outcome of this proceeding. For the foregoing reasons and the reasons set forth in the Decision and Order filed January 13, 1998, In re Peter A. Lang, supra, Respondent's Petition for Reconsideration is denied. Section 1.146(b) of the Rules of Practice (7 C.F.R. § 1.146(b)) provides that the decision of the Judicial Officer shall automatically be stayed pending the determination to grant or deny a timely filed petition for reconsideration. 16 Respondent's Petition for Reconsideration was timely filed and automatically stayed the Decision and Order filed on January 13, 1998. Therefore, since Respondent's Petition for Reconsideration is denied, I hereby lift the automatic 16In re Jerry Goetz, 57 Agric. Dec. slip op. at 23 (Apr. 3, 1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.); In re Allred's Produce, 57 Agric. Dec. slip op. at 4-5 (Feb. 2, 1998) (Order Denying Pet. for Recons.); In re Michael Norinsberg, 57 Agric. Dec. ,slip op. at 10 (Jan. 26, 1998) (Order Denying Pet. for Recons.); In re Tolar Farms, 57 Agric. Dec. slip op. at 20 (Jan. 5, 1998) (Order Denying Pet. for Recons.); In re Samuel Zimmerman, 56 Agric. Dec. 1458, 1467 (1997) (Order Denying Pet. for Recons.); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 957 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 275 (1997) (Order Denying Pet. for Recons.); In re City of Orange, 56 Agric. Dec. 370, 371 (1997) (Order Granting Request to Withdraw Pet. for Recons.); In re Five Star Food Distributors, Inc., 56 Agric. Dec. 898, 901 (1997) (Order Denying Pet. for Recons.); In re Havana Potatoes of New York Corp., 56 Agric. Dec. 1017, 1028 (1997) (Order Denying Pet. for Recons.); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 101 (1997) (Order Denying Pet. for Recons.); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1234 (1996) (Order Denying Pet. for Recons.). 57 Agric. Dec. 111 stay and the Order in the Decision and Order filed January 13, 1998, is reinstated, with allowance for time passed. For the foregoing reasons, the following Order should be issued. Order 1. Respondent, Peter A. Lang, doing business as Safari West, is assessed a civil penalty of $1,500. The penalty shall be paid by certified check or money order, made payable to the "Treasurer of the United States," and forwarded to: Colleen A. Carroll United States Department of Agriculture Office of the General Counsel Room 2014 South Building 1400 Independence Avenue, SW Respondent's payment of the civil penalty shall be forwarded to, and received by, Ms. Carroll within 65 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 96-0002. 2. Respondent, Peter A. Lang, doing business as Safari West, his agents and employees, successors and assigns, directly or indirectly through any corporate or other device shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards, and, in particular, shall cease and desist from failing to handle animals as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent. In re: JAMES HARRELL WHITENER and ELAINE WHITENER, and FRIENDS FOR LIFE, INC. AWA Docket No. 96-0038. Decision and Order filed March 2, 1998. Operating as a dealer without a license - Breeder loans - Donations - Surplus sales - Civil penalty License disqualification - Cease and desist order. Administrative Law Judge James W. Hunt found that Respondents bought, sold, or traded 69 animals without being licensed as a dealer pursuant to the Act. In so doing, Judge Hunt rejected Respondents' arguments that the transactions were excepted under the Act as breeder loans, donations, or sales under conditions approved by APHIS inspectors. Judge Hunt also determined that Respondent Elaine Whitener was involved in the transactions, and rejected her testimony to the contrary as not credible. In considering the appropriate sanction, Judge Hunt found that Respondents acted in bad faith and committed repeated violations, but did not profit from their activities and do not have a large business. As such, Judge Hunt imposed a $10,000 civil penalty, a cease and desist order, and disqualified Respondents from becoming licensed for a period of ten years. Sharlene A. Deskins, for Complainant. Jill Simpson, Rainsville, AL, for Respondents. Decision and Order issued by James W. Hunt, Administrative Law Judge. This disciplinary proceeding was instituted by a Complaint filed on April 10, 1996, by the Administrator, Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture (USDA). The Complaint alleges that Respondents violated the Animal Welfare Act (7 U.S.C. § 2131 et seq.)("AWA" or "Act") and the regulations promulgated pursuant to the Act (9 C.F.R. § 1.1 et seq.) by operating as a dealer without having a license by selling or trading animals in commerce on at least six occasions. A hearing was held in Atlanta, Georgia, on October 22 and 23, 1997. Complainant was represented by Sharlene A. Deskins, Esq. Respondents were represented by Jill Simpson, Esq. Law Section 2134 of the Animal Welfare 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) provide: (a)(1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempted from the 57 Agric. Dec. 111 licensing requirements under paragraph (a)(3) of this section, must have a valid license.... Section 1.1 of the Regulations (9 C.F.R. § 1.1) defines a "dealer" as: [A]ny 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. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. Statement of the Case Respondents James Harrell Whitener and Elaine Whitener, husband and wife, have lived at Route 1, Box 100, Gaylesville, Alabama, for the last three years. They lived before that in Kennesaw, Georgia. James Harrell Whitener will be referred to as "Whitener"; his wife will be referred to as "Elaine." In 1989, Whitener formed Respondent Friends for Life, Inc., a not-for-profit corporation. The stated purpose of the corporation was to help endangered animals. He was president while Elaine Whitener was listed as a director. (CX 40.) Neither James Harrell Whitener nor Elaine Whitener nor Friends for Life had an APHIS license to be an animal exhibitor or dealer at any time relevant to this proceeding. In 1990, Grady McGee, an APHIS licensed dealer, agreed to serve on the board of Friends for Life at Whitener's invitation. McGee, who said he considered Whitener and Friends for Life to be the same, allowed Whitener to use his license to sell animals provided that he was advised of all transactions. McGee also had some animals on "breeder loan" from Whitener. (CX 7.) A breeder loan is an arrangement whereby one person sends an animal for breeding to another animal owner and for the two persons to then "split the babies" between them. (Tr. 243.) |