Lapas attēli
PDF
ePub

62 Agric. Dec. 452

[hereinafter Respondents] committed willful violations of the Animal Welfare Act and the Regulations and Standards on September 13, 2001, October 2, 2001, March 26, 2002, and September 26, 2002 (Compl. ¶¶ II-V).

The Hearing Clerk served Respondent Wanda McQuary and Respondent Randall Jones with the Complaint, the Rules of Practice, and a service letter on February 15, 2003.' The Hearing Clerk served Respondent Gary Jackson with the Complaint, the Rules of Practice, and a service letter on February 22, 2003.2 Respondents failed to answer the Complaint within 20 days after service as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). The Hearing Clerk sent Respondents a letter dated April 30, 2003, informing them that an answer to the Complaint had not been received within the time required in the Rules of Practice.

On May 6, 2003, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Complainant filed a "Motion for Adoption of Proposed Decision and Order Upon Admission of Facts by Reason of Default" [hereinafter Motion for Default Decision] and a "Proposed Decision and Order" [hereinafter Proposed Default Decision]. The Hearing Clerk served Respondent Wanda McQuary and Respondent Gary Jackson with Complainant's Motion for Default Decision, Complainant's Proposed Default Decision, and a service letter on May 15, 2003.3 The Hearing Clerk served Respondent Randall Jones with Complainant's Motion for Default Decision, Complainant's Proposed Default Decision, and a service letter on May 17, 2003. Respondents failed to file objections to Complainant's Motion for Default Decision and Complainant's Proposed Default Decision within 20 days after service as required by section 1.139 of the Rules of Practice (7 C.F.R. § 1.139).

On July 21, 2003, pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Administrative Law Judge Marc R. Hillson [hereinafter the

'United States Postal Service Domestic Return Receipts for Article Number 7000 1670 00118982 7401 and Article Number 7000 1670 0011 8982 7425.

'United States Postal Service Track/Confirm - Intranet Item Inquiry for Item Number: 7000 1670 0011 8982 7418.

'United States Postal Service Domestic Return Receipts for Article Number 7001 0360 0000 0304 5357 and Article Number 7001 0360 0000 0304 5364.

"United States Postal Service Domestic Return Receipt for Article Number 7001 0360 0000 0304

ALJ] issued a "Decision and Order Upon Admission of Facts by Reason of Default" [hereinafter Initial Decision and Order]: (1) concluding that Respondents willfully violated the Animal Welfare Act and the Regulations and Standards as alleged in the Complaint; (2) directing Respondents to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; (3) assessing Respondents an $8,800 civil penalty; (4) revoking Respondents' Animal Welfare Act license; and (5) disqualifying Respondents from becoming licensed under the Animal Welfare Act and the Regulations.

Respondent Gary Jackson did not appeal the Initial Decision and Order which the Hearing Clerk served on him on August 4, 2003. In accordance with the terms of the Initial Decision and Order (Initial Decision and Order at 8) and section 1.142 of the Rules of Practice (7 C.F.R. § 1.142), the Initial Decision and Order became final and effective as to Respondent Gary Jackson on September 8, 2003.

On August 20, 2003, Respondent Randall Jones appealed to the Judicial Officer. On August 29, 2003, Complainant filed "Opposition to Motion by Respondent Randal [sic] Jones to Set Aside Default." On September 4, 2003, Respondent Wanda McQuary appealed to the Judicial Officer. On September 17, 2003, Complainant filed "Opposition to Respondent Wanda McQuary's Appeal." On September 24, 2003, the Hearing Clerk transmitted the record to the Judicial Officer for consideration and decision.

Based upon a careful consideration of the record, I agree with the ALJ's Initial Decision and Order; therefore, I adopt, with minor modifications, the Initial Decision and Order as the final Decision and Order as it relates both to Respondent Wanda McQuary and Respondent Randall Jones. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law, as restated.

APPLICABLE STATUTORY AND REGULATORY PROVISIONS

7 U.S.C.:

TITLE 7-AGRICULTURE

'United States Postal Service Domestic Return Receipt for Article Number 7001 0360 0000 0310

62 Agric. Dec. 452

CHAPTER 54-TRANSPORTATION, SALE, AND HANDLING OF CERTAIN ANIMALS

§ 2131. Congressional statement of policy

The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order—

(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use.

§ 2132. Definitions

When used in this chapter

(f) 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, except that this term does not include―

(I) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or

(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year[.]

§ 2141. Marking and identification of animals

All animals delivered for transportation, transported, purchased, or sold, in commerce, by a dealer or exhibitor shall be marked or identified at such time and in such humane manner as the Secretary may prescribe: Provided, That only live dogs and cats need be so marked or identified by a research facility.

§ 2146. Administration and enforcement by Secretary

(a) Investigations and inspections

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale. The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected. The Secretary shall promulgate such rules and regulations as he deems necessary to permit inspectors to confiscate or destroy in a humane manner any animal found to be suffering as a result of a failure to comply with any provision of this chapter or any regulation or standard issued thereunder if (1) such animal is held by a dealer, (2) such animal is held by an exhibitor, (3)

62 Agric. Dec. 452

such animal is held by a research facility and is no longer required by such research facility to carry out the research, test, or experiment for which such animal has been utilized, (4) such animal is held by an operator of an auction sale, or (5) such animal is held by an intermediate handler or a carrier.

§ 2149. Violations by licensees

(a) Temporary license suspension; notice and hearing; revocation

If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

(b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals.

« iepriekšējāTurpināt »