relative humidity must be maintained at a level that ensures the health and well-being of the dogs or cats housed therein, in accordance with the directions of the attending veterinarian and generally accepted professional and husbandry practices. 3.4 Outdoor housing facilities. .... (b) Shelter from the elements. Outdoor facilities for dogs or cats must include one or more shelter structures that are accessible to each animal in each outdoor facility, and that are large enough to allow each animal in the shelter structure to sit, stand, and lie in a normal manner, and to turn about freely. In addition to the shelter structures, one or more separate outside areas of shade must be provided, large enough to contain all the animals at one time and protect them from the direct rays of the sun. Shelters in outdoor facilities for dogs or cats must contain a roof, four sides, and a floor, and must: (1) Provide the dogs and cats with adequate protection and shelter from the cold and heat; (2) Provide the dogs and cats with protection from the direct rays of the sun and the direct effect of wind, rain, or snow; (3) Be provided with a wind break and rain break at the entrance; and (4) Contain clean, dry, bedding material if the ambient temperature is below 50 °F (10°C). Additional clean, dry bedding is required when the temperature is 35 °F (1.7 °C) or lower. (c) Construction. Building surfaces in contact with animals in outdoor housing facilities must be impervious to moisture. Metal barrels, cars, refrigerators or freezers, and the like must not be used as shelter structures. The floors of outdoor housing facilities may be of compacted earth, absorbent bedding, sand, gravel, or grass, and must be replaced if there are any prevalent odors, diseases, insects, pests, or vermin. All surfaces must be maintained on a regular basis. Surfaces of outdoor housing facilities-including houses, dens, etc.-that cannot be readily cleaned and sanitized, must be replaced when worn or soiled. § 3.6 Primary enclosures. 62 Agric. Dec. 452 Primary enclosures for dogs and cats must meet the following minimum requirements: (a) General requirements. (1) Primary enclosures must be designed and constructed of suitable materials so that they are structurally sound. The primary enclosures must be kept in good repair. (2) Primary enclosures must be constructed and maintained so that they: (I) Have no sharp points or edges that could injure the dogs and cats; (ii) Protect the dogs and cats from injury; (iii) Contain the dogs and cats securely; (iv) Keep other animals from entering the enclosure; (v) Enable the dogs and cats to remain dry and clean; (vi) Provide shelter and protection from extreme temperature and weather conditions that may uncomfortable or hazardous to all dogs and cats; (vii) Provide sufficient shade to shelter all dogs and cats housed in the primary enclosure at one time; (viii) Provide all dogs and cats with easy and convenient access to clean food and water; (ix) Enable all surfaces in contact with the dogs and cats to be readily cleaned and sanitized in accordance with §3.11(b) of this subpart, or be replaced when worn or soiled; (x) Have floors that are constructed in a manner that protects the dogs' and cats' feet and legs from injury, and that, if of mesh or slatted construction, do not allow the dogs' or cats' feet to pass through any openings in the floor; (xi) Provide sufficient space to allow each dog and cat to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner; and (xii) Primary enclosures constructed on or after February 20, 1998 and floors replaced on or after that date, must comply with the requirements in this paragraph (a)(2). On or after January 21, 2000, all primary enclosures must be in compliance with the requirements in this paragraph (a)(2). If the suspended floor of a primary enclosure is constructed of metal strands, the strands must either be greater than 1% of an inch in diameter (9 gauge) or coated with a material such as plastic or fiberglass. The suspended floor of any primary enclosure must be strong enough so that the floor does not sag or bend between the structural supports. .... ANIMAL HEALTH AND HUSBANDRY STANDARDS § 3.11 Cleaning, sanitization, housekeeping, and pest control. (a) Cleaning of primary enclosures. Excreta and food waste must be removed from primary enclosures daily, and from under primary enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent soiling of the dogs or cats contained in the primary enclosures, and to reduce disease hazards, insects, pests and odors. When steam or water is used to clean the primary enclosure, whether by hosing, flushing, or other methods, dogs and cats must be removed, unless the enclosure is large enough to ensure the animals would not be harmed, wetted, or distressed in the process. Standing water must be removed from the primary enclosure and animals in other primary enclosures must be protected from being contaminated with water and other wastes during the cleaning. The pans under primary enclosures with grill-type floors and the ground areas under raised runs with mesh or slatted floors must be cleaned as often as necessary to prevent accumulation of feces and food waste and to reduce disease hazards pests, insects and odors. (b) Sanitization of primary enclosures and food and water receptacles. (1) Used primary enclosures and food and water receptacles must be cleaned and sanitized in accordance with this section before they can be used to house, feed, or water another dog or cat, or social grouping of dogs or cats. (2) Used primary enclosures and food and water receptacles for dogs and cats must be sanitized at least once every 2 weeks using one of the methods prescribed in paragraph (b)(3) of this section, and more often if necessary to prevent an accumulation of dirt, debris, food waste, excreta, and other disease hazards. (3) Hard surfaces of primary enclosures and food and water receptacles must be sanitized using one of the following methods: (I) Live steam under pressure; (ii) Washing with hot water (at least 180 °F (82.2 °C)) and soap or 62 Agric. Dec. 452 detergent, as with a mechanical cage washer; or (iii) Washing all soiled surfaces with appropriate detergent solutions and disinfectants, or by using a combination detergent/disinfectant product that accomplishes the same purpose, with a thorough cleaning of the surfaces to remove organic material, so as to remove all organic material and mineral buildup, and to provide sanitization followed by a clean water rinse. (4) Pens, runs, and outdoor housing areas using material that cannot be sanitized using the methods provided in paragraph (b)(3) of this section, such as gravel, sand, grass, earth, or absorbent bedding, must be sanitized by removing the contaminated material as necessary to prevent odors, diseases, pests, insects, and vermin infestation. (c) Housekeeping for premises. Premises where housing facilities are located, including buildings and surrounding grounds, must be kept clean and in good repair to protect the animals from injury, to facilitate the husbandry practices required in this subpart, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin. Premises must be kept free of accumulations of trash, junk, waste products, and discarded matter. Weeds, grasses, and bushes must be controlled so as to facilitate cleaning of the premises and pest control, and to protect the health and well-being of the animals. (d) Pest control. An effective program for the control of insects, external parasites affecting dogs and cats, and birds and mammals that are pests, must be established and maintained so as to promote the health and well-being of the animals and reduce contamination by pests in animal areas. 9 C.F.R. §§ 1.1; 2.40, .50(a)-(b), .100(a), .126; 3.1(f), .2(b), .4(b)-(c), .6(a)(1)-(2), .11 (footnotes omitted). ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER Statement of the Case Respondent Wanda McQuary and Respondent Randall Jones failed to file answers within the time prescribed in section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). Section 1.136(c) of the Rules of Practice (7 C.F.R. § 1.136(c)) provides that the failure to file an answer within the time provided in section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)) and the failure to deny or otherwise respond to an allegation of the Complaint shall be deemed, for purposes of the proceeding, an admission of the allegations in the complaint. Further, pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), the failure to file an answer constitutes a waiver of hearing. Accordingly, the material allegations in the Complaint are adopted as Findings of Fact. This Decision and Order as to Wanda McQuary and Randall Jones is issued pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). Findings of Fact 1. Respondent Wanda McQuary and Respondent Randall Jones are individuals with a business mailing address of 565 County Road 131, Black Rock, Arkansas 72455. 2. Respondent Wanda McQuary and Respondent Randall Jones are, and at all times material to this proceeding were, operating as dealers as defined in the Animal Welfare Act and the Regulations. 3. On September 13, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to animals in need of care. 4. On September 13, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 11 of the Animal Welfare Act (7 U.S.C. § 2141) and section 2.50 of the Regulations (9 C.F.R. § 2.50) by failing to individually identify dogs. 5. On September 13, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 16 of the Animal Welfare Act (7 U.S.C. § 2146) and section 2.126 of the Regulations (9 C.F.R. § 2.126) by failing to have the records of animals on hand, a program of veterinary care, and sales records located at Respondents' premises. 6. On September 13, 2001, Respondent Wanda McQuary and Randall Jones willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified in Findings of Fact 6(a)-6(e): (a) Housing facilities were not equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and animals stay dry (9 C.F.R. § 3.1(f)); (b) Surfaces of outdoor housing facilities for dogs were not maintained on a regular basis (9 C.F.R. § 3.4(c)); |