E 62 Agric. Dec. 580 appropriate and necessary for the purpose of determining compliance with the Act and regulations. Such inspection may include, but is not limited to, visual examination of a horse and records, actual physical examination of a horse including touching, rubbing, palpating and observation of vital signs, and the use of any diagnostic device or instrument, and may require the removal of any shoe, pad, action device, or any other equipment, substance or paraphernalia from the horse when deemed necessary by the person conducting such inspection. 9 C.F.R. § 11.1. ADMINISTRATIVE LAW JUDGE'S Decision Summary In this Decision and Order, I determine the act of being the scheduled rider, who is to show a horse, is an act of entering the horse to be shown or exhibited in a horse show, within the meaning of 15 U.S.C. § 1824(2)(B); however, I do not conclude the scheduled rider of Ebony's Bad Bubba, Betty Corlew, entered Ebony's Bad Bubba in the 32nd Annual National Walking Horse Trainers Show in violation of 15 U.S.C. § 1824(2)(B) because that violation was not alleged in the Amended Complaint. I determine an individual who controls the corporate owner of a horse can be liable for a violation of 15 U.S.C. § 1824(2)(D). I determine Bowtie Stables, LLC, James L. Corlew, Sr., Betty Corlew, and B.A. Dorsey violated the Horse Protection Act, even if they were unaware that Ebony's Bad Bubba was sore. I determine the assessment of the usually-imposed $2,200 civil penalty against each Respondent is appropriate. Further, while disqualification is discretionary, I determine the usual practice of imposing the minimum 1 year disqualification period for the first violation of the Horse Protection Act is appropriate as to each Respondent. Discussion The first issue is whether Ebony's Bad Bubba was entered to be shown or exhibited in the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, on March 22, 2000. If so, the second issue is whether Ebony's Bad Bubba was sore at the time. Complainant need merely prove the case by a preponderance of the evidence. If Complainant can prove the horse was sore, Complainant need not prove who sored the horse or how the horse was sored. Complainant need not even prove that any of the Respondents knew the horse was sore. The remaining issues concern Betty Corlew. Did she enter Ebony's Bad Bubba in the 32nd Annual National Walking Horse Trainers Show to be shown or exhibited? Was she Ebony's Bad Bubba's owner or co-owner? First issue: Was Ebony's Bad Bubba entered to be shown or exhibited in the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, on March 22, 2000? Respondents claim Ebony's Bad Bubba's entry was never completed; therefore, he was not entered.' I find to the contrary, that Ebony's Bad Bubba was entered. During the pre-show inspection, two designated qualified persons [hereinafter DQPs],2 Robert (Bob) Flynn and Mark Thomas, inspected Ebony's Bad Bubba (CX 3, CX 4). The DQPs agreed on an "Exam Score" of seven points; prepared and issued Ticket No. 21878 to Ebony's Bad Bubba's trainer, B.A. Dorsey; and prevented the horse from competing in the 32nd Annual National Walking Horse Trainers Show (CX 2-CX 5). Ebony's Bad Bubba was "disqualified" or "excused," based on the seven-point score. I find Ebony's Bad Bubba was entered to be shown or exhibited, even though, based on the pre-show inspection, he was disqualified or excused from competing. A finding of soreness made during 'Complainant alleges and Respondents admit James L. Corlew, Sr., and B.A. Dorsey entered Ebony's Bad Bubba in the 32nd Annual National Walking Horse Trainers Show and Bowtie Stables, LLC, and Betty Corlew allowed James L. Corlew, Sr., and B.A. Dorsey to enter Ebony's Bad Bubba in the 32nd Annual National Walking Horse Trainers Show (Amended Compl. ¶¶ 5-6; Answer to Amended Compl. ¶2). Moreover, each individual Respondent states in an affidavit that Ebony's Bad Bubba was entered in the 32nd Annual National Walking Horse Trainers Show on March 22, 2000 (CX 9, CX 10, CX 11). Therefore, I find Respondents' contention that Ebony's Bad Bubba was not entered in the 32nd Annual National Walking Horse Trainers Show perplexing. Nonetheless, I address the entry of Ebony's Bad Bubba in the 32nd Annual National Walking Horse Trainers Show. 'A designated qualified person or DQP is an individual appointed by the management of a horse show and trained under a United States Department of Agriculture-sponsored program to inspect horses for compliance with the Horse Protection Act (15 U.S.C. § 1823; 9 C.F.R. §§ 11.1, .7). 62 Agric. Dec. 580 pre-show inspection has consistently been a sufficient basis upon which to find that a violation of "entering a horse while sore" has occurred.3 Second issue: Was Ebony's Bad Bubba sore at the time of the pre-show inspections? Relying on palpation results from Ebony's Bad Bubba's front feet, Dr. Lynn P. Bourgeois and Dr. David C. Smith, Animal and Plant Health Inspection Service veterinary medical officers, each found the horse had been sored in both front feet. Based upon their pre-show inspections of Ebony's Bad Bubba on March 22, 2000, I find Ebony's Bad Bubba was sore. Drs. Bourgeois and Smith opined that the horse was sored by overuse of action devices or other mechanical means or by chemical means. Because of the specific location of the painful areas, they testified they could reasonably expect that Ebony's Bad Bubba would have been in physical pain if he had been exhibited on March 22, 2000. Both veterinarians concluded that the horse's pain was not due to accidental causes. Before detailing the findings by the Animal and Plant Health Inspection Service veterinary medical officers, I now mention evidence presented by Mr. Lonnie Messick, an official at the 32nd Annual National Walking Horse Trainers Show, and additional findings by the DQPs. Mr. Messick was subpoenaed by Respondents to bring a copy of a videotape recorded at the 32nd Annual National Walking Horse Trainers Show (Tr. 244). The tape was marked as RX 2 and was viewed at the hearing. Mr. Messick testified that exhibitors should have been aware that the inspections of their horses were videotaped. He said he has a sign outside the inspection area that states the horses are video and audio taped during inspection, and he normally holds pre-show conferences in which he discusses, among other things, the videotaping of the inspection of horses. (Tr. 308-09.) Mr. Messick also testified about the DQP inspection of horses. He said very few horses receive a score of nine, occasionally a horse receives a score of eight, and a score of seven is not given very often (Tr. 284-85). Mr. Messick was asked if a score of seven indicates a horse is sore. Mr. Messick answered: In March of 2000 a score of seven would have been a penalty of eight months and a $600 fine from the National Horse Show 'In re William Dwaine Elliott (Decision as to William Dwaine Elliott), 51 Agric. Dec. 334 (1992), aff'd, 990 F.2d 140 (4th Cir.), cert. denied, 510 U.S. 867 (1993). Commission. A Horse Protection violation at that time, normally individuals would have received for a horse in violation of a sore horse, would have been anywhere from eight months to a year plus some fine. Now that's just from the experience that I've had. Your VMOS will have to answer that question as to what the penalty is for a sore horse from USDA. Tr. 286. Mr. Messick also testified "the reason we have two examination sheets is our procedure is any score of seven or above requires two DQPs to inspect that horse and they have to agree that that horse is a seven or greater before it would receive that score." (Tr. 300.) He said the DQPs and Animal and Plant Health Inspection Service veterinary medical officers are jointly trained by the United States Department of Agriculture to conduct horse inspections (Tr. 304). DQP Robert Flynn determined Ebony's Bad Bubba presented at the pre-show inspection with the following indicators (CX 3): Locomotion (2 points): Gait, slow around cone putting a lot of weight on his back end. Physical examination (3 points): Palpation, Very strong reaction in both Appearance (2 points): feet-hind & front. Tucking of Flanks, Flexing Abdominal DQP Mark Thomas determined Ebony's Bad Bubba presented at the preshow inspection with the following indicators (CX 4): Locomotion (2 points): Stance, Gait, Freedom of Movement 62 Agric. Dec. 580 tight rein. Physical examination (3 points): Palpation, Reacted to palpation on both front feet down the center and around both sides on both front feet and also in both pockets on both feet Appearance (2 points): Tucking of Flanks, Flexing Abdominal Muscles, Rocking Forward or Standing on Toes, Rear Limbs, Stayed tensed in his abdominal muscles, tucked flanks during palpation. Rocked back and forth during palpation. Dr. Bourgeois inspected Ebony's Bad Bubba after the DQPs had completed their inspections. Dr. Bourgeois testified as to his knowledge, training, and experience in the field of horse inspections. He is a doctor of veterinary medicine with 20 years of experience as to the Horse Protection Act (Tr. 162-63). Dr. Bourgeois had no specific recollection of Ebony's Bad Bubba and his inspection (Tr. 163-64). Dr. Bourgeois stated that the Xs on APHIS Form 7077 (CX 6) were his marks (Tr. 167). Upon review of his affidavit (CX 7) and review of his marks on APHIS Form 7077 (CX 6), Dr. Bourgeois opined that Ebony's Bad Bubba was sored and that the "[soring was] concurrent [sic] with chemical soring or working with chains" (Tr. 168). He stated he and Dr. Smith discussed their findings with each other at the pre-show inspection before coming to a conclusion that Ebony's Bad Bubba was sored (Tr. 167). Both of the United States Department of Agriculture veterinary medical officers observed Ebony's Bad Bubba's reaction to palpation when he was being inspected by the DQPs (CX 7, CX 8). Dr. Bourgeois explained that the proper procedure for palpating a horse is that "we palpate that area at least three times. If you get a reproducible, repeatable response in that one area, that is considered enough to call a hard [sic] sore" (Tr. 173). The APHIS Form 7077 completed by Drs. Bourgeois and Smith shows that they agreed on 12 out of 16 locations where palpation resulted in pain responses (CX 6). Dr. Smith inspected Ebony's Bad Bubba after both DQPs and Dr. Bourgeois had inspected the horse. Dr. Smith testified as to his |