57 Agric. Dec. 980 Stanley Curtis' "private collection" animals and were located on private property, rather than being on the [Noah's Ark Z]oo's property [(Tr. 20-25; CX 20 at 2-3)]. [Respondents] also contend in their brief that they did not have to allow an inspection because they had canceled their license and were not exhibiting animals at the time of the inspections [(Respondents' Brief at 1-3)]. With respect to whether the animals were being exhibited, Noah's Ark [Zoo] displayed a sign that the public could see, which... could create an inference that animals were being offered for exhibition to the public [(CX 17A, 17B, 40)]. But a sign, in itself, does not necessarily establish that the animals were in fact being exhibited. Complainant's witnesses claimed that [Noah's Ark Z]oo was open to the public [(Tr. 132-33, 611)], but provided no information on which they based this assertion, other than to say that they saw two persons at [Noah's Ark Zoo on January 25, [1996,] who, as it turns out, were there to support [Noah's Ark Zoo, rather than to see the animals being exhibited [(Tr. 276-77, 318-19)]. On the other hand, as early as 1993, Respondents had posted [several] "keep out" sign[s] at the zoo [(CX 29 at 2, item 7, IV, item 51)] and at the time of the January 1996 inspections, the zoo had a "closed today" sign [(Tr. 131-34)] and was still undergoing construction [(Tr. 142). VMO Dr. Guedron and sector supervisor Watkins] also testified that they had not seen signs of the animals being exhibited in January or May 1996 [(Tr. 133-34, 277-78)]. Complainant has thus failed to show by a preponderance of the evidence that Noah's Ark Zoo was exhibiting animals at any time after 1993, and, specifically, did not show that [Noah's Ark Zloo was exhibiting animals [o]n or after January 1996. Since Respondents were not exhibiting animals, [Respondents] were not exhibitors as defined by the [Animal Welfare] Act, and therefore [Respondents] were not required to have a license as exhibitors for their privately-owned animals [o]n or after January 1996. However, when [Respondents]... voluntarily sought an exhibitor's license from APHIS in 1992, they subjected themselves to the Regulations [and Standards] and, until the license was... terminated, had to abide by those Regulations [and Standards], which include [a requirement that licensees allow APHIS officials to inspect] their facility pursuant to 9 C.F.R. § 2.126.... APHIS [officials] not only had the authority to inspect the animals actually on [Noah's Ark Zoo's premises, but also the animals owned by Stanley Curtis who, by his actions (providing animals to the zoo), clearly made [his animals] a part of the licensed Noah's Ark Zoo venture. Section 2.1(a)(2) of the Regulations (9 C.F.R. § 2.1(a)(2)) provides in pertinent part that "[a]ll premises, facilities, or sites where such person operates or keeps animals shall be indicated on the application form or on a separate sheet attached to it." ... [T]his requirement is to identify sites where animals associated with the licensed facility are located so that they can be inspected for compliance with the [Animal Welfare] Act and the Regulations and Standards, which, in this case, would be Stanley Curtis' animals located at the trailer and quonset hut destined for Noah's Ark Zoo. Thus, as long as Noah's Ark Zoo was licensed, whether actually exhibiting animals or not, APHIS [officials were] acting within [their] authority by demanding an inspection of the animals at the trailer and at the quonset hut. [Footnote omitted.] Respondents contend that they had [terminated] their license [(CX 9, 10). VMO Dr.] Guedron, however, had attempted... inspection on January 17, 1996 [(CX 20 at 2)], before [Richard] Lawson requested that the license be [terminated (CX 20 at 2)]. Respondents therefore violated [section 2.126 of] the Regulations (9 C.F.R. § 2.126) [by] failing to allow an inspection on January 17[, 1996,] while Noah's Ark Zoo was still a licensed facility. As for the inspections on January 25 and 26, 1996, Complainant contends that its inspectors could still conduct an inspection at that time because the [termination] did not take effect until January 31[, 1996 (Complainant's Brief at 12-15). Richard] Lawson, however, had followed exactly [section 2.5(a)(2) of] the Regulations [(9 C.F.R. § 2.5(a)(2))] and [VMO Dr.] Guedron's advice to [terminate] the license [(Tr. 24; CX 9, 10, 20 at 2)].... Moreover, even [sector supervisor] Watkins' letter gives January 17[, 1996,] as the cancellation date [(CX 18)]. Accordingly, I find that the license was [terminated] on January 17, 1996, but after [VMO Dr.] Guedron had attempted... inspection. However, even though the license had been [terminated], I further find, on the basis of equitable estoppel, that Respondents' refusal to allow an inspection on January 17, [1996,] before the [termination], should not allow them to conceal what a lawful inspection would have revealed. "Equitable estoppel... precludes a party to a lawsuit, because of some improper conduct on that party's part, from asserting a claim or a defense, regardless of its substantive validity." FDIC v. Roldan Fonseca, 795 F.2d 1102, 1107 (1st Cir. 1986). Because of Respondents' improper conduct [in refusing to allow APHIS officials to inspect their place of business] on January 17, [1996,] they are precluded from claiming that their license had been [terminated] at the time of the inspections on January 25 and 26[, 1996]. The findings of the inspectors on those dates can therefore be considered in determining whether Respondents at that time were complying with the [Animal Welfare Act and the Regulations and S]tandards for the care of animals. The inspectors' findings, for the most part, were not challenged by Respondents. [The inspectors] found that three lions were not being provided veterinary care. Although a later examination by a veterinarian did not reveal any significant problems with the animals, the lack of veterinary care is, nevertheless, a violation of section 2.40 of the [Regulations] (9 C.F.R. § 2.40). 57 Agric. Dec. 980 A broken refrigerator, even if only broken for a day or two, would not allow for the proper storage of perishable food items. It constitutes a violation of the food storage provisions of sections 3.1(e) and 3.125(c) of the Standards [(9 C.F.R. §§ 3.1(e), .125(c))]. However, with respect to the storage of the [cattle] carcass, there was no violation [of section 3.101(d) of the Standards (9 C.F.R. § 3.101(d))] as [the cattle carcass] was destined to be buried at the dump. The failure to properly ventilate the barn constitutes a violation of section 3.126(b) [of the Standards (9 C.F.R. § 3.126(b))]. The polar bears did not have adequate space and water. Although Respondents were constructing what appears to be a spacious enclosure and pool for the bears, this [fact] does not preclude a finding that, as of the date of the inspection, the facilities for these animals did not meet the requirements of section 3.104[(a) and] (e) [of the Standards (9 C.F.R. § 3.104(a), (e))]. The failure to keep the facility clean of standing water, excessive trash, and animal wastes constitutes violations of sections 3.107(a), 3.125(d), 3.127(c), and 3.131(a) and (c) [of the Standards (9 C.F.R. §§ 3.107(a), .125(d), .127(c), .131(a), (c))] even though the construction activities at [Noah's Ark Z]oo accounted for part of these problems. However, [while waste material in the tiger cage] due to a clogged drain [is a] violation [of section 3.125(d) of the Standards (9 C.F.R. § 3.125(d)), I am not assessing Respondents a civil penalty for the violation because John Curtis was cleaning the tiger cage at the time the inspection began and his cleaning was interrupted by the inspection]. Complainant contends that John Curtis' dogs -- his personal pets -- were regulated animals even though not exhibited because they were on the same premises as animals to be exhibited. ... [N]either the [Animal Welfare] Act nor the Regulations [and Standards] prohibit APHIS in these circumstances from... [regulating] personal pets... on an exhibitor's premises.... [Footnote omitted. Considerable] weight is . . . given to . . . APHIS' . interpretation of the Regulations [issued under] the statute [APHIS] enforces. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 84[2-45] (1984). Therefore, since Respondents did not maintain records on John [Curtis'] pets, or provide tags... or... an exercise program, [Respondents] violated [sections 10 and 11 of the Animal Welfare Act (7 U.S.C. §§ 2140, 2141) and] sections 2.50 and 2.75 of the [Regulations (9 C.F.R. §§ 2.50, .75), but, since Complainant failed to allege a lack of an exercise program for dogs in the Complaint, a violation of section 3.8 of the Standards (9 C.F.R. § 3.8) is not found]. Complainant contends that Respondents refused an inspection of the quonset hut on January 25 and 26[, 1996]. John Curtis' conduct constituted a refusal to allow an inspection on January 25[, 1996 (CX 20 at 3); moreover, inspector Groce asked to inspect the site on January 26[, 1996, and John Curtis refused to allow inspection (Tr. 314-15)]. . . . Respondents are also alleged to have been an exhibitor on and after February 1, 1996. As [discussed in this Decision and Order, supra,] Respondents had [terminated] their license and were not exhibiting animals. Respondents, therefore, were not an exhibitor as defined by the Animal Welfare Act on and after February 1, 1996. Finally, [Complainant argues that] Respondents are alleged to have acted as a dealer or exhibitor without having a license in October 1996 when they traded for a chimpanzee [(Complainant's Brief at 25)]. However, Respondents were not exhibiting animals at the time of the acquisition of the chimpanzee [and] had not been an exhibitor for at least the previous 3 years.... Moreover, the record shows that Stanley Curtis had acquired the chimpanzee for John Curtis' use and enjoyment. In these circumstances, Respondents did not violate the Animal Welfare Act or the Regulations and Standards, as they were within the licensing exemption for non-exhibiting animal owners, as provided by section 2.1(a)(3)(viii) of the Regulations (9 C.F.R. § 2.1(a)(3)(viii)).* Sanction The Department's sanction policy, as set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991)[, aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3)], is that: [T]he sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose. Section [19](b) of the Animal Welfare Act also commands, in determining the civil penalty to assess, that: *[Almost at the end of the hearing, Complainant's motion to amend the Complaint to conform to the evidence was granted, in that John Curtis and Stanley Curtis were charged for operating without a license from January 1, 1993, to September 17, 1997 (Tr. 626-29). However, since the animal exchange described by Complainant was not shown to be for compensation or profit, the exchange was exempt under 7 U.S.C. § 2132(f) and 9 C.F.R. §§ 1.1 and 2.1(a)(3)(viii).] 57 Agric. Dec. 980 The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. Any such penalty may be compromised by the Secretary. 7 U.S.C. § 2149(b). Complainant contends that the warning letters sent to Respondents in 1993 [(Tr. 305-06; CX 1)] and 1994 [(Tr. 307; CX 2)] should also be considered in the imposition of a sanction [(Complainant's Brief at 8, ¶ 12)]. The Secretary has held that such warnings can be considered. In re Volpe Vito, Inc., 56 Agric. Dec. 166, 264 (1997)[, appeal docketed, No. 97-3603 (6th Cir. June 13, 1997)]. . Respondents were given a warning in 1993 about a failure to allow an inspection [(CX 1)]. . . . [Respondents were given a warning in 1994 about a failure to provide sufficient space for two lions and a failure to clean food and water receptacles and a cage (CX 2)]. Complainant [originally sought] a [civil] penalty of $36,000 and a 5-year license disqualification [(Complainant's Brief at 26), but later changed its recommendation to a civil penalty of $22,500 and a 2-year license disqualification).] .... ... Respondents' refusal... to allow APHIS [officials] to conduct an inspection at a time when they had the legal authority... to conduct inspections was serious for the reason that it frustrates the purpose of the Animal Welfare Act to insure that regulated animals are given humane care. Findings of Fact 1. [Respondents,] Richard Lawson, Stanley Curtis [(formerly known as Stanley Creighton) (Tr. 440, 504)], and John Curtis (formerly known as John Disken) [(Tr. 447-51)], doing business as Noah's Ark's Zoo, . . . are individuals who direct, manage, and control Noah's Ark Zoo [(Tr. 340; CX 1, 3, 4, 7, 15, 20, 21)]. 2. Richard Lawson [was licensed] as an exhibitor [doing business as] Noah's Ark Zoo until January 17, 1996, when [he terminated] the license... [(CX 4, 18)]. 3. John Curtis refused an inspection of Noah's Ark Zoo by an APHIS inspector on January 17, 1996, before the license was [terminated (CX 20 at 2)]. 4. On January 25, 1996, APHIS officials conducted an inspection of Noah's Ark Zoo [(CX 14)]. They found that three lions were not receiving proper veterinary care [(CX 14 at 4, item 7, IV, item 48)]; three dogs had inadequate |