57 Agric. Dec. 980

The ALJ misinterpreted the facts surrounding a May 1996 search of the Respondents' facilities that did not form a part of the [C]omplaint.

Complainant's Appeal at 17.

An inspection or search occurring after a complaint is filed and which is not part of an amended complaint is virtually always irrelevant. The May 1996 search of Respondents' facilities forms no part of the Complaint or Amended Complaint; therefore, the May 1996 search is irrelevant to this proceeding.

Complainant's sixth and final argument regarding the sanctions imposed by the ALJ is as follows:

F. The civil penalty against the Respondents should be increased and a disqualification period imposed since the ALJ's sanction determination was based on a misapprehension of the facts.

The ALJ failed to understand the facts and the laws of this case in determining the sanctions. This misapprehension resulted in the ALJ not giving appropriate consideration to the sanction recommendation of the Complainant. The sanctions must be change[d] to be in accordance with the facts of this case.

Complainant's Appeal at 19.

Complainant argues that Respondents committed three extremely serious violations of the Regulations (9 C.F.R. § 2.126) by denying Complainant access to Respondents' facilities on three separate occasions and urges that Respondents be assessed the maximum civil penalty of $2,500 per violation, for a total of $7,500 (Complainant's Appeal at 19). I agree.

Complainant urges that the violations of the Regulations and Standards the ALJ found on January 25, 1996, after Respondents refused inspection on January 17, 1996, be assessed at or near the maximum amount of $2,500, as provided in the Animal Welfare Act (7 U.S.C. § 2149(b)), because the refusal prevented Complainant from finding the violations earlier and could have prevented the inspectors from finding even more serious violations which may have existed on January 17, 1996 (Complainant's Appeal at 19-20). I disagree with Complainant. I am assessing Respondents the maximum civil penalty for their refusal to allow APHIS officials to inspect their business premises. Respondents' refusal to allow inspection is not a basis to assess the maximum civil penalty for each violation of the Regulations and Standards which was found once Respondents allowed inspection. Therefore, I am assessing Respondents a civil penalty of $6,000 for

their violations of 7 U.S.C. §§ 2140 and 2141 and 9 C.F.R. §§ 2.40, 2.50, 2.75, 3.1(e), 3.104(a) and (e), 3.107(a)(1), 3.125(c), 3.126(b), 3.127(c), and 3.131(a) and (c)."

Complainant argues that Respondents should be assessed a civil penalty for negotiating the sale of animals after surrendering their license (Complainant's Appeal at 20). However, I have already concluded that Respondents' negotiation of the trade for a chimpanzee did not constitute a violation of the Animal Welfare Act or the Regulations and Standards. Therefore, Respondents' negotiation for a chimpanzee in October 1996 forms no part of the sanction in this Decision and Order.

Complainant seeks Respondents' disqualification from becoming licensed under the Animal Welfare Act for a period of 2 years, based upon Respondents' refusal to allow APHIS officials to inspect Respondents' place of business and USDA policy (Complainant's Appeal at 21). Since Respondents have a history of refusing inspection (CX 1), and since this proceeding includes three separate violations of section 16(a) of the Animal Welfare Act (7 U.S.C. § 2146(a)) and section 2.126 of the Regulations (9 C.F.R. § 2.126) for refusing to allow inspection, I agree with Complainant that a 2-year disqualification is appropriate.

Sanction

As to the appropriate sanction, the Animal Welfare Act provides:

§ 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.

"As discussed in this Decision and Order, supra, I am not assessing Respondents a civil penalty for their violation of section 3.125(d) of the Standards (9 C.F.R. § 3.125(d)).

(b)

57 Agric. Dec. 980

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. ... 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.

7 U.S.C. § 2149(a), (b).

The Department's current sanction policy is 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):

[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.

The recommendations of administrative officials charged with the responsibility for achieving the congressional purpose of the regulatory statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of the experience gained by administrative officials during their day-to-day supervision of the regulated industry. In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497. However, the recommendation of administrative officials as to the sanction is not controlling, and in appropriate circumstances, the sanction imposed may be considerably less, or different, than that recommended by

administrative officials.12

Complainant originally sought: (1) a 5-year disqualification from applying for an Animal Welfare Act license for all named Respondents jointly and severally; (2) a civil penalty of $36,000; and (3) a cease and desist order (Complainant's Brief at 26-29). In Complainant's Brief, Complainant addresses the sanction criteria in 7 U.S.C. § 2149(b), arguing that Respondents' business is large because it has two locations and Respondents have spent $300,000 on construction at Noah's Ark Zoo (Tr. 455-56); and that Respondents have not acted in good faith because Respondents committed serious violations after receiving warning notices (CX 1, 2, 37) for previous violations in 1993 and 1994 (Complainant's Brief at 23-24).

In Complainant's Appeal, Complainant reduces the recommended sanction to a civil penalty of $22,500, a 2-year disqualification from applying for an Animal Welfare Act license, and, although a cease and desist order is not specifically mentioned, I infer from Complainant's proposed order in Complainant's Brief (Complainant's Brief at 27-28) that Complainant still seeks a cease and desist order, as well (Complainant's Appeal at 21).

Complainant argues that the ALJ's imposition of only a $4,000 civil penalty and no disqualification from applying for an Animal Welfare Act license is based on the ALJ's misapprehension of both the facts and law (Complainant's Appeal at 22). Complainant argues that Respondents' three refusals to allow inspections are extremely serious violations (Complainant's Appeal at 19). Complainant argues that the violations of the Regulations and Standards found by the ALJ are particularly serious and deserving of the maximum civil penalty because of possibly more serious violations not found because of Respondents' refusal to allow inspections (Complainant's Appeal at 21). Complainant argues that the requested civil penalty and disqualification period should fulfill the purposes of the Animal Welfare Act to ensure that animals receive the minimum care required under the Animal Welfare Act and deter others from refusing to allow access (Complainant's Appeal at 21).

Complainant's sanction recommendation is well within the range of sanctions in these kinds of cases. USDA consistently imposes significant sanctions for

12In re Marilyn Shepherd, 57 Agric. Dec. 242, 283 (1998); In re Colonial Produce Enterprises, Inc., 57 Agric. Dec. slip op. at 20 (Mar. 30, 1998); In re C.C. Baird, 57 Agric. Dec. 127, 176-77 (1998); In re Scamcorp, Inc., 57 Agric. Dec. 527, 574 (1998); In re Allred's Produce, 56 Agric. Dec. 1884, 1918-19 (1997), appeal docketed, No. 98-60187 (5th Cir. Apr. 3, 1998); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 953 (1997) (Order Denying Pet. for Recons.); In re William E. Hatcher, 41 Agric. Dec. 662, 669 (1982); In re Sol Salins, Inc., 37 Agric. Dec. 1699, 1735 (1978); In re Braxton Worsley, 33 Agric. Dec. 1547, 1568 (1974).

57 Agric. Dec. 980

violations of the Animal Welfare Act and the Regulations and Standards.13 USDA

See, e.g., In re Marilyn Shepherd, 57 Agric Dec. 242 (1998) (imposing a $2,000 civil penalty and a 7-day suspension for 20 violations of the Animal Welfare Act and the Regulations and Standards); In re John D. Davenport, 57 Agric. Dec. 189 (1998) (imposing a $200,000 civil penalty, permanent revocation of respondent's license, and permanent disqualification from obtaining a license for 103 violations of the Animal Welfare Act and the Regulations and Standards), appeal docketed, No. 98-60463 (5th Cir. July 23, 1998); In re C.C. Baird, 57 Agric. Dec. 127 (1998) (imposing a $9,250 civil penalty and a 14-day suspension for 23 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Peter A. Lang, 57 Agric. Dec. 59 (1998) (imposing a $1,500 civil penalty for one violation of the Regulations), appeal docketed, No. 98-70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419 (1997) (imposing a $7,500 civil penalty and a 40-day suspension for 15 violations of the Animal Welfare Act and the Regulations and Standards), appeal docketed, No. 98-3100 (3d Cir. Feb. 19, 1998); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (imposing a $3,000 civil penalty and permanent disqualification from obtaining a license for three violations of the Animal Welfare Act and the Regulations); In re Dora Hampton, 56 Agric. Dec. 1634 (1997) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards) (Modified Order); In re Fred Hodgins, 56 Agric. Dec. 1242 (1997) (imposing a $13,500 civil penalty and a 14-day license suspension for 54 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act, the Regulations, and the Standards) (Decision and Order on Remand); In re David M. Zimmerman, 56 Agric. Dec. 433 (1997) (imposing a $51,250 civil penalty and a 60-day license suspension for 75 violations of the Animal Welfare Act, the Regulations, and the Standards), aff'd, No. 97-3414 (3d Cir. May 26, 1998) (unpublished); In re Patrick D. Hoctor, 56 Agric. Dec. 416 (1997) (imposing a $1,000 civil penalty and a 15-day license suspension for eight violations of the Animal Welfare Act, the Regulations, and the Standards) (Order Lifting Stay Order and Decision and Order); In re John Walker, 56 Agric. Dec. 350 (1997) (imposing a $5,000 civil penalty and a 30-day license suspension for 10 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Mary Meyers, 56 Agric. Dec. 322 (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from becoming licensed under the Animal Welfare Act for 32 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from becoming licensed under the Animal Welfare Act for one violation of the Regulations and one violation of the cease and desist provisions of a Consent Decision); In re Big Bear Farm, Inc., 55 Agric. Dec. 107 (1996) (imposing a $6,750 civil penalty and 45-day license suspension for 36 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Ronald D. De Bruin, 54 Agric. Dec. 876 (1995) (imposing a $5,000 civil penalty and 30-day license suspension for 21 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60-day license suspension for numerous violations on four different dates over a 13-month period); In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986) (imposing a $15,300 civil penalty and license revocation for numerous violations of the Regulations and the Standards); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and (continued...)