Dogs bred, sold by unlicensed person
Ava, MO (US)Incident Date: Wednesday, Jul 21, 1999
County: Douglas
Disposition: USDA Citation
Person of Interest: Marilyn Eugenia Shepherd
In re: MARILYN SHEPARD d/b/a CEDARCREST KENNEL.
AWA Docket No. 01-0011.
Decision and Order.
Filed August 2, 2002.
AWA � Commerce clause � Intrastate commerce � Jurisdiction, subject matter.
Respondent was found to have operated as a "dealer" in sale of puppies without having obtained a USDA license in violation of the Animal Welfare Act. The Administrative Law Judge (ALJ) held that even though the Respondent operated her wholesale puppy business wholly within Missouri, utilized a Missouri bank, and sold puppies exclusively to a Missouri pet retailer that the USDA had jurisdiction despite the lack of a interstate activity citing a contemporaneous opinion of the Attorney General in the congressional record relating to the statute.
Brian T. Hill for Complainant.
Respondent - Pro se.
Decision and Order by Dorothea A. Baker, Administrative Law Judge.
Preliminary Statement
This is an administrative disciplinary proceeding initiated by a Complaint filed November 16, 2000, pursuant to the Animal Welfare Act, as amended (7 U.S.C. � 2131 et seq.), hereinafter sometimes referred to as the "Act," and the regulations and standards (9 C.F.R. � 1.1 et seq.) issued pursuant to the Act. The Complaint charged the Respondent with having willfully violated, on July 21, 1999 and October 21, 1999, provisions of 9 C.F.R. � 3.1(a); 9 C.F.R. � 3.4(b); 9 C.F.R. � 3.6(a)(2)(x); and 9 C.F.R. � 3.6(a)(1).
In addition, said Complaint alleged that the Respondent, at all times material herein, was operating as a dealer as defined in the Act and the regulations, without having obtained a license, in willful violation of section 4 of the Act (7 U.S.C. � 2134) and section 2.1 of the regulations (9 C.F.R. � 2.1). The Respondent has denied the allegations of the Complaint and has asserted certain affirmative defenses including constitutional issues and lack of jurisdiction by the Secretary.
An oral hearing was held in Springfield, Missouri, on December 12, 2001, before Administrative Law Judge Dorothea A. Baker. Complainant was represented by Brian T. Hill, Esquire, Office of the General Counsel, United States Department of Agriculture. The Respondent appeared pro se. In due course the parties filed briefs and the case was referred for Decision on July 1, 2002.
An evaluation of the entire record and the evidence in this matter shows the preponderance of the evidence fails to show that the Complainant has borne its burden of proof with respect to alleged violations of 9 C.F.R. � 3.1(a); 9 C.F.R. � 3.4(b); 9 C.F.R. � 3.6(a)(2)(x); and 9 C.F.R. � 3.6(a)(1).
However, the Complainant has shown that the Secretary has jurisdiction in this matter and that the Respondent was operating as a dealer, as defined in the Act, without having obtained a license in willful violation of section 4 of the Act and section 2.1 of the regulations. The Complainant seeks a sanction of $26,000.00 and a permanent disqualification of the Respondent from ever obtaining an Animal Welfare Act license. Although sanctions are imposed herein they are not of the magnitude requested by the Complainant.
Discussion
The Respondent is an individual during business as Cedarcrest Kennel and has an address of Route 2, Box 819, Ava, Missouri 65608. At all times material herein the Respondent was operating as a dealer as defined in the Act and the regulations in that, at all times material herein, she sold 284 [The Complaint alleges 284; on brief, Complainant asserts 274 and relies on its Exhibits CX 8 through 12.] dogs to a licensed dealer or dealers from on or about September 16, 1998 through March 15, 2000. She did not have a license to do so. Her principal argument of defense is that the charges against her by the United States Department of Agriculture are invalid because the Secretary lacks jurisdiction; and, that her activities are entirely intrastate and, therefore, not covered by the Act. Respondent contends the animals in question were not distributed nor shipped over State lines by her. It is maintained that because the sales of said animals occurred within the borders of the State of Missouri, such sales did not have a substantial affect upon interstate commerce. It is maintained that the Complainant must show an actual substantial affect or burden upon commerce. The Respondent sold a substantial amount of her animals to a Mr. McMahan an animal broker within the State of Missouri and who was licensed by the State of Missouri. It was he, who after purchase of the animals, sold the animals in interstate commerce. Accordingly, Respondent argues that it was Mr. McMahan who would be responsible for any effects or burdens upon said commerce.
The fact that all of the puppies were bred, born and sold in the State of Missouri and that while Respondent had title, the puppies did not leave Missouri but were sold to an individual within the State of Missouri who subsequently sold over State lines, and who paid for the puppies from a Missouri bank, does not preclude the jurisdiction of the Secretary of Agriculture.
Applying applicable legal principles it is concluded that the Secretary of Agriculture has jurisdiction in this matter and that the Respondent was acting illegally as a dealer without a license. See, Lloyd A. Good, Jr., 49 Agric. Dec. 156 (1990); and, Wickard v. Filburn, 317 U.S. 111 (1942). Shortly after the enactment of the 1976 amendments to the Act, the Secretary made an inquiry on the constitutionality of the Act, as amended, to the Attorney General of the United States regarding the issue of intrastate activities. (See _____ Op. of the Att'y Gen. _____ (Aug. 22nd, 1979) at n.2.
Referring to the Animal Welfare Act, the Attorney General opined that section 2132(c) applied to intrastate activities because
If Congress had used the conjunction "and" between subparagraphs (1) and (2), it would be at least arguable that it would not have succeeded in carrying out its plain intent to expand coverage of the Act to purely intrastate activities that affect interstate commerce. Congress, however, did not use "and" to conjoin subparagraphs (1) and (2) but rather did not use a connective word.
A copy of that referred to opinion is attached to this decision as Attachment A. In continuing to sell animals without a license, the Respondent was in willful violation of a regulatory statute in that Respondent intentionally did an act which was prohibited, irrespective of evil motive or reliance on erroneous advice and she acted with careless disregard of statutory requirements. In re: Arab Stock Yard, Inc., 582 F.2d 39 (5th Cir. 1978).
On June 26, 1998 a Decision and Order were issued which suspended the license of the Respondent as of September 16, 1998. From on or about September 16, 1998, through on or about March 15, 2000, the Respondent sold, in commerce, at least 274 dogs for resale in willful violation of section 4 of the Act (7 U.S.C. � 1234) and 2.1 of the regulations 9 C.F.R. � 2.1. The sale of each animal constitutes a separate violation. Said violations require the imposition of sanctions.
Because it is found, as a matter of law that the Secretary of Agriculture has jurisdiction, the Respondent's arguments relating to alleged constitutional infringements, including the Fourth and Fourteenth Amendments lack legal validity.
When the animal welfare inspectors inspected the Respondent's facility on July 21, 1999 and October 21, 1999, they alleged that they found violations of certain standards set forth in Part 3 of 9 C.F.R.
Said violations related to assertions that the housing facilities for dogs were not structurally sound and maintained in good repair so as to protect the animals from injury as required by 9 C.F.R. � 3.1(a); that the outdoor housing facilities were not provided with adequate protection from the elements, particularly shade, as required by 9 C.F.R. � 3.4(b); that the primary enclosures for dogs were not constructed so that the floors protected the animal's feet and legs from injury, but which allowed their feet to pass through openings in the floor in violation of section 3.6(a)(2)(x); and that the primary enclosures were not structurally sound in violation of section 3.6(a)(1) (9 C.F.R. � 3.6(a)(1)). There is not sufficient, substantial, reliable evidence to sustain the aforesaid allegations of the Complainant that said violations occurred. Accordingly, they are dismissed. The evidence and testimony of the animal care inspectors: Mr. Gauthier and Ms. Feldman, were insufficient to establish by a preponderance of the evidence that Respondent's facility was not in compliance with the requirements of the Act and regulations. There was indication in the record that the superior to these inspectors indicated that he wanted to get the Respondent and to make an example of her. In addition, said animal care inspectors indicated that they would interpret the regulatory provisions as they believed them to be and not as interpreted by others in the Department. The inspectors indicated that they would write the violations according to their own interpretations and that a Judge's interpretation could be incorrect and a misinterpretation.
[Inspector Gauthier, testified, among other things:
A I understand what is written here, but this is a misinterpretation of 3.4. Doghouses had never -- in the 12 years that I have been here, have never beenallowed to have dirt floors in the doghouse. You have to have a floor in thedoghouse.
Q Well, can you read this into the record then, for me, what this judge actuallydid say about the floors?
A He is saying that -- he is reading that the compact earth is -- the compactearth is all right in the outside runs. He misinterpreted the regs.
Q You really need to read that. You're just -- you're telling what yourinterpretation of the judge's interpretation.
A I'm telling you USDA's interpretation of the regs. Section 3.4. Is that -- this is where we're at. Right? The doghouse itself.
Q Right.
A "Shelters and outdoor facilities for dogs and cats must contain a roof, foursides, and a floor." However, Section 3.4(c) goes on to say that the floor of outdoorhousing facility may be of compact earth. A view of this regulatory may -- "I findthat Respondent did not violate the standards by using compacted earth as floor ofthe calf huts."
That was a misinterpretation.
JUDGE BAKER: Did the judicial officer agree with Judge Hunt on that?
MS. SHEPHERD: Yes, he did, (Tr. 30:7-25; 31:1-9).
Close The application of the regulatory requirements is to a certain extent subjective. Inspector Feldman:
Q Does it say anywhere in the regulations on how a gate is to be secured?
A Not specifically how but that it must be secured.
Q But how? Does it say how?
A It doesn't specify how.
Q Then if it's not closed -- if it's closed and is serving its purpose, is it notclosed --
A I don't see how it's serving a purpose if it's not secured.
Q Does the USDA have regulations on how gates --
A No, ma'am.
Q -- should be secured?
A We leave it up to the individual on how they do that.
Q So this gate is --
A But it does not -- but this gate is not --
Q This gate is closed, however.
A This gate is leaning up against the post and the other gate. In that sense, itis closed; however, it is not secured. (Tr. 62:10-25; 63:1-4).
A I do know that the entire gate, the entire opening there was not a secure gateunit. The left-hand side I can say for sure was not attached to the vertical uprightpost at all or to the other gate. I don't recall if the right-hand, larger side wasphysically attached to that wooden fence or not.
Q So it could have been attached from that side and hinged the other direction.
A Possibly. I don't recall. (Tr. 72:10-18).
THE WITNESS:"Two years after this letter, on May 6, 1997, USDA statedperimeter fences for dogs are not required by the Standard 62 Fed Reg 24611, 1997.
BY MS. SHEPHERD:
Q Then in -- if this is -- in that case, then those gates are not actually evenrequired by law according to this regulation. Is that not correct?
A I can't speak to that exactly. No. I don't know.
Q They -- you did write them up as being perimeter gates or gates on theperimeter fence?
A Yes.
Q.So if I don't need a perimeter fence, then the gate is kind of a moot pointanyway, is it not? (Tr. 74:22-25; 75:1-10).
Q .Okay, so the dog could get in and out of this pen, then, without hurtingitself going through this opening?
A.It would seem to. Yes.
Q .But you still have this classified as a too large of an opening?
A.Yes.
Q Why?
A.Because it does not adequately prevent wind and rain from entering thehousing unit.
Q.There -- can you see the windbreak around the opening of that?
A.There is a piece of wood framing the opening. It does not adequatelyprevent wind and rain from entering the housing unit.
Q.Can you tell us approximately what the size of that windbreak is?
A.No, I cannot.
Q Can you tell us what the actual requirements for number of inches that awind- and rainbreak has to be to satisfy USDA regulations?
A.There are no specified written engineering standards on that.
Q.Then how did you determine that this was not sufficient?
A.It's a judgment call. I do not feel that this opening or this framing of woodwould adequately prevent strong wind and rain or any wind and rain from enteringthe enclosure, or entering the housing unit. (Tr. 78:20-25; 79:1-22).
Close Inspector Feldman was described as agitated and furious during one of her inspections. When such inspections are tainted with preconceived ideas, then the outcome cannot be considered a fair evaluation of the circumstances under which the inspections occurred. [Footnotes 1 and 2 are included as endnotes in the original case - Editor.]
____________________
However, in addition to the shortcomings of the evidentiary proof or lack thereof by the Complainant, great weight has been given to the testimony of Dr. Schmidt, an extremely qualified and reliable witness (Tr. 154:5-25; 155; 156:1-2) who went over the alleged violations and showed that none occurred. He also offered his opinion that the Respondent's facility was in compliance and that she was maintaining proper regulatory procedures and requirements.
Dr. Schmidt was present during one of the inspections and his review of the situation has been accorded great weight. Clearly the Complainant has not shown by a preponderance of the evidence that the alleged facility violations occurred. The evidence seems clear that the inspectors were, for whatever reason, going out of their way to find violations. There is a lack of sufficiency of evidence on the part of the Complainant.
Findings of Fact
1. The Respondent is an individual during business as Cedarcrest Kennel whose address is Route 2, Box 819, Ava, Missouri 65608. The Respondent at all times material hereto was operating as a dealer as defined in the Act and the regulations without being licensed in willful violation of section 4 of the Act and section 2.1 of the regulations.
2. On June 26, 1998, a Decision and Order were issued which suspended the license of the Respondent as of September 16, 1998.
3. From on or about September 16, 1998 to on or about March 15, 2000, the Respondent sold in commerce at least 274 dogs for resale for use as pets without being licensed and in willful violation of he Act and the regulations.
4. The Complainant has not sustained its burden of proof with respect to the remaining allegations of the Complaint.
Sanctions
The Respondent is a small operation and has had previous violations of the Act. The record is devoid of any indication as to her ability to pay a monetary penalty.
The Complainant seeks a cease and desist order; the assessment of a civil penalty of $26,000.00; and a permanent disqualification from obtaining a license under the Animal and Welfare Act and the regulations issued under the Act. Said requested sanctions appear to be excessive and not required to carry out the purposes of the Act, namely, as a deterrent to the Respondent and to others. There is no evidence of any harm or inhumane treatment of Respondent's animals. It is recognized that 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 a day-to-day supervision of the regulated industry. In re: Steven Bourk, AWA Docket No. 01-0004, January 4, 2002. In the present case not all the charges were proven and accordingly the sanction should be related to the violations of operating without a license.
For the foregoing reasons it is believed that the following Order will achieve the purposes of the Act and is a fair disposition of the matter.
Order
1. Respondent, her agents and employees, successors and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued thereunder, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Animal Welfare Act and Regulations without being licensed as required.
2. Respondent is accessed a civil penalty of $5,000.00 (Five Thousand Dollars) which shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to Brian T. Hill, Esq., Office of the General Counsel, United States Department of Agriculture, Room 2343, South Building, Washington, DC 20250-1417.
3. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent. Respondent is disqualified from obtaining an Animal Welfare Act license for thirty (30) days and continuing thereafter until she demonstrates to the Animal and Plant Health Inspection Service that she is in full compliance with the Animal Welfare Act, the Regulations, the Standards, and this Order, including the payment of the civil penalty assessed in paragraph 2 of this Order. The disqualification provisions of this Order shall become effective on the day after service of this Order on Respondent.
4. This Decision and Order shall become final and effective thirty-five (35) days after service thereof upon the Respondent unless there is an appeal to the Judicial Officer within thirty (30) days pursuant to the Rules of Practice and Procedure, 7 C.F.R. � 1.145.
Copies hereof shall be served upon the parties. References |
