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Conclusions

1. The Secretary has jurisdiction in this matter.

2. By reason of the facts set forth in the Findings of Fact above, the respondents have violated the Act, as well as the regulations and standards promulgated under the Act.

3. The following Order is authorized by the Act and warranted under the circumstances.

Order

1. Respondents, their agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from:

(a) Failing to provide proper veterinary care to animals;

(b) Failing to establish and maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

(c) Failing to individually identify animals, as required;

(d) Failing to maintain records of the acquisition, disposition, description, and identification of animals, as required.

(e) Failing to maintain housing facilities for animals so that they are structurally sound and in good repair in order to protect the animals from injury, contain them securely, and restrict other animals from entering;

(1) Failing to provide for the regular and frequent collection, removal, and disposal of animal and food wastes and dead animals, in a manner that minimizes contamination and disease risks;

(g) Failing to construct and maintain indoor and sheltered housing facilities for animals so that they are adequately ventilated;

and

(h)

(i)

Failing to provide animals with adequate shelter from the elements;

Failing to provide a suitable method for the rapid elimination of excess water and wastes from housing facilities for animals.

2. The respondents are assessed a civil penalty of $8,800, which shall be paid by a certified check or money order made payable to the Treasurer of United States.

3. The respondents' license is revoked and the respondents are permanently disqualified from becoming licensed under the Act and

regulations.

62 Agric. Dec. 717

The provisions of this Order shall become effective on the first day after service of this decision on the respondents.

Pursuant to the Rules of Practice, this decision becomes final without further proceedings 35 days after service as provided in section 1.142 and 1.145 of the Rules of Practice, 7 C.F.R. §§ 1.142 and 1.145. Copies of this decision shall be served upon the parties.

[This Decision and Order became final September 9, 2003. - Editor]

In re: BELINDA ATHERTON d/b/a BEL-KAY KENNEL.

AWA Docket. No. 03-0005.

Decision and Order.

Filed August 13, 2003.

AWA-Default.

Bernadette R. Juarez, for Complainant.

Respondent, Pro se.

Decision and Order issued by Marc R. Hillson, Administrative Law Judge.

Preliminary Statement

This proceeding was instituted under the Animal Welfare Act ("Act"), as amended (7 U.S.C. § 2131 et seq.), by a complaint filed by the Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, alleging that the respondent wilfully violated the Act and the regulations issued thereunder (9 C.F.R. § 1.1 et seq.).

The Hearing Clerk served on respondent Belinda Atherton, by certified mail, return receipt requested, copies of the complaint and the Rules of Practice governing proceedings under the Act (7 C.F.R. §§ 1.130-1.151). Said respondent was informed in the accompanying letter of service that an answer should be filed pursuant to the Rules of Practice and that failure to answer any allegation in the complaint would constitute an admission of that allegation. The respondent has failed to file an answer within the time prescribed in the Rules of Practice, and the material facts alleged in the complaint, which are admitted by said respondent's failure to file an answer, are adopted and set forth herein as Findings of Fact. This Decision and Order, therefore, is issued pursuant to section 1.139 of the Rules of Practice, 7 C.F.R. § 1.139.

Findings of Fact

1. Belinda Atherton, doing business as Bel-Kay Kennel, hereinafter referred to as respondent, is an individual whose address is 589 Harmon Road, Saginaw, Texas 76177.

2. The respondent, at all times material hereto, was operating as a dealer as defined in the Act and the regulations.

3. Between approximately November 1, 2000, through March 6, 2001, respondent operated as a dealer, as defined in the Animal Welfare Act and the regulations, without being licensed, and sold, in commerce, 28 dogs for resale use as pets. The sale of each dog constitutes a separate violation of the Animal Welfare Act and regulations.

Conclusions of Law

1. The Secretary has jurisdiction in this matter.

2. Respondent was a dealer, as defined in the Animal Welfare Act and the regulations, who, from approximately November 1, 2000, through March 6, 2001, willfully violated section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the regulations (9 C.F.R. § 2.1) by selling 28 dogs in commerce, for resale use as pets, without being licensed. The sale of each dog constitutes a separate violation of the Animal Welfare Act and the regulations. 3. The following Order is authorized by the Act and warranted under the circumstances.

Order

1. Respondent, her agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations issued thereunder, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Act and regulations without being licensed as required.

2. The respondent is assessed a civil penalty of $14,850, which shall be paid by a certified check or money order made payable to the Treasurer of United States.

The provisions of this Order shall become effective on the first day after service of this decision on the respondents.

Pursuant to the Rules of Practice, this decision becomes final without further proceedings 35 days after service as provided in section 1.142 and 1.145 of the Rules of Practice, 7 C.F.R. §§ 1.142 and 1.145. Copies of this decision shall be served upon the parties.

[This Decision and Order became final September 22, 2003. - Editor]

62 Agric. Dec. 717

DEFAULT DECISION

PLANT QUARANTINE ACT

In re: FRANCISCO ROBLES d/b/a LA MEXICANA ENTERPRISES.

P.Q. Docket No. 01-0021.

Decision and Order.

Filed August 26, 2003.

P.Q.-Default.

James A. Booth, for Complainant

Respondent, Pro se.

Decision and Order issued by Jill S. Clifton, Administrative Law Judge.

This is an administrative proceeding for the assessment of a civil penalty for a violations of the regulations governing the importation of fruit from Mexico to the United States (7 C.F.R. § 319.56 et seq.) hereinafter referred to as the regulations, in accordance with the Rules of Practice in 7 C.F.R. §§ 1.130 et seq. and 380.1 et seq.

This proceeding was instituted under the Federal Plant Pest Act, as amended (7 U.S.C. §§ 150aa-150jj), the Plant Quarantine Act, as amended (7 U.S.C. § 151-167)(Acts), and the regulations promulgated under the Acts, by a complaint filed on August 8, 2001, by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture. This complaint alleges that (1) on or about December 6, 1999, the respondent imported approximately four hundred and thirty-seven (437) fresh canes of sugarcane from Mexico into the United States at Jamaica, New York, in violation of 7 C.F.R. § 319.15(a); (2) or or about December 6, 1999, the respondent also imported approximately three (3) boxes of fresh guavas from Mexico into the United States at Jamaica, New York, in violation of 7 C.F.R. § 319.56(c); and (3) on or about December 6, 1999, the respondent also imported approximately three (3) cartons of fresh haw apples (crataegus spp) from Mexico into the United States at Jamaica, New York, in violation of 7 C.F.R. § 319.56(c).

The respondent failed to file an answer within the time prescribed in 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 under 7 C.F.R. § 1.136(a) shall be deemed an admission of the allegations in the complaint. Further, the failure to file an answer constitutes a waiver of

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