57-Agric. Dec. 297 device, and from judging, managing, or otherwise participating in any horse show, horse exhibition, or horse sale or auction (Initial Decision and Order at 12). On March 11, 1998, Respondents appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). On the same day, Respondents filed a motion requesting "the Judicial Officer to hold in abeyance any further proceedings in this case until a requested investigation by the Secretary of Agriculture is completed, or, in the alternative, to dismiss." (Motion to Hold in Abeyance.) On April 17, 1998, Complainant filed Complainant's Opposition to the Respondents' Notice of Appeal and Appellate Brief of Respondents [hereinafter Complainant's Response], and on April 21, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for a ruling on Respondents' Motion to Hold in Abeyance" and a decision. Based upon a careful consideration of the record in this proceeding, I have adopted the 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. Complainant's exhibits are designated by the letters "CX" and transcript references are designated "Tr." Applicable Statutory Provisions 15 U.S.C.: TITLE 15-COMMERCE AND TRADE "The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)). "I am filing a Ruling Denying Motion to Hold in Abeyance simultaneous with the filing of this Decision and Order. In re Jack Stepp, 57 Agric. Dec. · _____ (May 6, 1998) (Ruling Denying Motion to Hold in Abeyance). CHAPTER 44-PROTECTION OF HORSES § 1821. Definitions As used in this chapter unless the context otherwise requires: (3) The term "sore" when used to describe a horse means that- (B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse, (C) any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or (D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such an application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given. § 1824. Unlawful acts The following conduct is prohibited: (2) The (A) showing or exhibiting, in any horse show or horse exhibition, of any horse which is sore, (B) entering for the purpose of showing or exhibiting in any horse show or horse exhibition, any horse 57 Agric. Dec. 297 which is sore, (C) selling, auctioning, or offering for sale, in any horse sale or auction, any horse which is sore, and (D) allowing any activity described in clause (A), (B), or (C) respecting a horse which is sore by the owner of such horse. § 1825. Violations and penalties (b) Civil penalties; review and enforcement (1) Any person who violates section 1824 of this title shall be liable to the United States for a civil penalty of not more than $2,000 for each violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing before the Secretary with respect to such violation. The amount of such civil penalty shall be assessed by the Secretary by written order. In determining the amount of such penalty, the Secretary shall take into account all factors relevant to such determination, including the nature, circumstances, extent, and gravity of the prohibited conduct and, with respect to the person found to have engaged in such conduct, the degree of culpability, any history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice may require. (c) Disqualification of offenders; orders; civil penalties applicable; enforcement procedures In addition to any fine, imprisonment, or civil penalty authorized under this section, any person who was convicted under subsection (a) of this section or who paid a civil penalty assessed under subsection (b) of this section or is subject to a final order under such subsection 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 for a period of not less than one year for the first violation and not less than five years for any subsequent violation. (d) Production of witnesses and books, papers, and documents; depositions; fees; presumptions; jurisdiction (5) In any civil or criminal action to enforce this chapter or any regulation under this chapter a horse shall be presumed to be a horse which is sore if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs. 15 U.S.C. §§ 1821(3), 1824(2), 1825(b)(1), (c), (d)(5). ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER (AS MODIFIED) ... Statement of the Case Respondents... admit that [Mr. Stepp was the trainer of Honey's Threat; that Mr. Reinhart] was the owner of Honey's Threat; and that [Mr. Stepp entered Honey's Threat, as Entry No. 362, in Class No. 15,] at the Wartrace Horse Show at Wartrace, Tennessee, on August 3, 1991 [(Reinhart's Answer ¶ I(C)-(D); Stepp's Answer ¶ I(C)-(D)). [Footnote 1 omitted.] Respondents] deny that Honey's Threat was sore [when he was entered in the Wartrace Horse Show (Reinhart's Answer ¶ II(A)-(B); Stepp's Answer ¶ II(A)-(B))]. Mr. Stepp testified that sometime between 9 and 10 p.m. on August 3, [1991,] before Honey's Threat was [to be] exhibited, Honey's Threat was examined by two Animal and Plant Health Inspection Service [hereinafter APHIS] veterinarians, Dr. Ronald Zaidlicz and Dr. Hugh Hendricks. They examined between 15 and 20 horses at the [Wartrace Horse S]how and "wrote up" five. (Tr. 103, 155, 160[61].) Neither Dr. Zaidlicz nor Dr. Hendricks could remember his inspection of Honey's Threat, but [Dr. Zaidlicz and Dr. Hendricks each] prepared [an] affidavit containing the results of [his] examination [(CX 3, 4)]. [In his affidavit, Dr. Zaidlicz described the horse that he examined as a 3-yearold dark bay stallion named "Honey's Threat" and stated, as follows]: 57 Agric. Dec. 297 I then examined the horse and upon digital palpation using light to moderate pressure the horse exhibited pain when both forepasterns were examined, the horse was also reluctant to walk freely. When I examined the horse it was also reluctant to stand on only one foot, the horse also exhibited scars and was not in compliance with the SCAR RULE. Upon digital palpation of the left forepastern the horse exhibited definite pain responses on the anterior, anterior lateral, anterior medial, posterior, posterior medial and posterior lateral surfaces of the forepastern. Upon digital palpation of the right forepastern the horse exhibited definite pain responses on the anterior, anterior medial, anterior lateral, posterior, posterior medial, and posterior lateral surfaces of the forepastern. The horse would exhibit pain by withdrawing the affected limb, tensing the flank and abdominal muscles, raising the head, and shifting weight to the rear. The pain responses were consistent and repeatable each time the areas noted on APHIS FORM 7077 were palpated. After my examination Dr. Hendricks and I conferred and were in full agreement that the horse met the criteria to be called a "sore" horse as defined by the Horse Protection Act. Dr. Hendricks and I agreed that this horse was "sore" and a "bad image" horse. CX 4. Dr. Zaidlicz identified the horse's custodian as Jack Stepp who testified that he had held Honey's Threat while [the horse] was examined by Dr. Zaidlicz (Tr. [175-176). Dr. Zaidlicz [originally stated in his affidavit that] the horse's exhibitor number,[***] which is the number assigned by the show's management when a horse is entered in a show, was "148" (CX 4; Tr. 122). Dr. Zaidlicz said the [exhibitor] number is used for identification purposes at the show and is placed on the saddle and the rider's back, but that he [(Dr. Zaidlicz)] also relies on an investigator to obtain the [exhibitor] number and that sometimes wrong information is obtained (Tr. 70[-72], 74-75 . . .). However, [lines are drawn through one reference to exhibitor number] "148" in Dr. Zaidlicz' affidavit and the number "362" is written [above the number "148" (CX 4)]. A second reference to "[e]xhibitor [number] 148" in [Dr. Zaidlicz'] affidavit is not changed [(CX 4)]. Dr. Zaidlicz did not initial the change [in his affidavit (CX 4)] and testified that he had not made the change[, as follows: [ ***The record reveals that the terms "exhibition number" and "entry number" have a meaning identical to that of "exhibitor number."] |