61 Agric. Dec. 301 2.100(a) of the Regulations (9 C.F.R. § 2.100), and section 3.15(a) of the primary conveyance Standards (9 C.F.R. § 3.15(a)). 23. On May 19, 2001, respondent failed to make, keep and maintain full and correct acquisition records concerning each dog, in willful violation of section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)). 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 and Standards. 2. Respondent is assessed a civil penalty of $8,250. 3. Respondent's animal welfare license (number 58-C-488) is revoked. The provisions of this order shall become effective on the first day after this decision becomes final. This decision becomes final without further proceedings 35 days after service as provided in sections 1.142 and 1.145 of the Rules of Practice. Copies of this decision shall be served upon the parties. [This Decision and Order became final June 19, 2002.-Editor] HORSE PROTECTION ACT In re: ALEX R. TAYLOR, a.k.a. RICKY TAYLOR, AN INDIVIDUAL d/b/a JUSTIN TIME STABLES; AND TIM HOLLEY, AN INDIVIDUAL d/b/a TIM HOLLEY STABLES. HPA Docket No. 01-0029. Decision and Order as to Tim Holley d/b/a Tim Holley Stables. HPA-Default - Failure to answer. Colleen Carroll, for Complainant. Respondent, Pro se. Decision and Order issued by James W. Hunt, Administrative Law Judge. This proceeding was instituted under the Horse Protection Act, as amended (15 U.S.C. § 1821 et seq.)(the "Act"), by a complaint filed by the Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, alleging that the respondents violated the Act. The Hearing Clerk served on respondent Tim Holley, d/b/a Tim Holley Stables, by certified mail, return receipt requested, copies of the complaint and the Rules of Practice governing proceedings under the Act (7 C.F.R. §§ 1.1301.151). 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 is issued pursuant to section 1.139 of the Rules of Practice. Section 6(b)(1) of the Horse Protection Act (15 U.S.C. § 1825(b)(1)) authorizes the assessment of a civil penalty of not more than $2,000 for each violation of section 5 of the Horse Protection Act (15 U.S.C. § 1824). However, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. § 2461 note (Supp. V 1999)), the Secretary of Agriculture, by regulation effective September 2, 1997, adjusted the civil monetary penalty that may be assessed under section 6(b)(1) of the Horse Protection Act (15 U.S.C. § 1825(b)(1)) for each violation of section 5 of the Horse Protection Act (15 U.S.C. § 1824) by increasing the maximum civil penalty from $2,000 to $2,200.' The Horse Protection Act also authorizes the disqualification of any person assessed a civil penalty, from showing or exhibiting any horse or judging or managing any horse show, horse exhibition, horse sale, or horse auction. The Horse Protection Act '62 Fed. Reg. 40,924-28 (July 31, 1997); 7 C.F.R. § 3.91(b)(2)(vii). 61 Agric. Dec. 310 provides minimum periods of disqualification of not less than 1 year for a first violation and not less than 5 years for any subsequent violation. 15 U.S.C. § 1825(c). Congress has recognized the seriousness of soring horses. The legislative history of the Horse Protection Act Amendments of 1976 reveals the cruel and inhumane nature of soring horses, the unfair competitive aspects of soring, and the destructive effect of soring on the horse industry, as follows: NEED FOR LEGISLATION The inhumanity of the practice of "soring" horses and its destructive effect upon the horse industry led Congress to pass the Horse Protection Act of 1970 (Public Law 91-540, December 9, 1970). The 1970 law was intended to end the unnecessary, cruel and inhumane practice of soring horses by making unlawful the exhibiting and showing of sored horses and imposing significant penalties for violations of the Act. It was intended to prohibit the showing of sored horses and thereby destroy the incentive of owners and trainers to painfully mistreat their horses. The practice of soring involved the alteration of the gait of a horse by the infliction of pain through the use of devices, substances, and other quick and artificial methods instead of through careful breeding and patient training. A horse may be made sore by applying a blistering agent, such as oil or mustard, to the postern area of a horse's limb, or by using various action or training devices such as heavy chains or "knocker boots" on the horse's limbs. When a horse's front limbs are deliberately made sore, the intense pain suffered by the animal when the forefeet touch the ground causes the animal to quickly lift its feet and thrust them forward. Also, the horse reaches further with its hindfeet in an effort to take weight off its front feet, thereby lessening the pain. The soring of a horse can produce the high-stepping gait of the well-known Tennessee Walking Horse as well as other popular gaited horse breeds. Since the passage of the 1970 act, the bleeding horse has almost disappeared but soring continues almost unabated. Devious soring methods have been developed that cleverly mask visible evidence of soring. In addition the sore area may not necessarily be visible to the naked eye. The practice of soring is not only cruel and inhumane. The practice also results in unfair competition and can ultimately damage the integrity of the breed. A mediocre horse whose high-stepping gait is achieved artificially by soring suffers from pain and inflam[m]ation of its limbs and competes unfairly with a properly and patiently trained sound horse with championship natural ability. Horses that attain championship status are exceptionally valuable as breeding stock, particularly if the champion is a stallion. Consequently, if champions continue to be created by soring, the breed's natural gait abilities cannot be preserved. If the widespread soring of horses is allowed to continue, properly bred and trained "champion" horses would probably diminish significantly in value since it is difficult for them to compete on an equal basis with sored horses. Testimony given before the Subcommittee on Health and the Environment demonstrated conclusively that despite the enactment of the Horse Protection Act of 1970, the practice of soring has continued on a widespread basis. Several witnesses testified that the intended effect of the law was vitiated by a combination of factors, including statutory limitations on enforcement authority, lax enforcement methods, and limited resources available to the Department of Agriculture to carry out the law. H.R. Rep. No. 94-1174, at 4-5 (1976), reprinted in 1976 U.S.C.C.A.N. 1696, 1698-99.The United States Department of Agriculture's 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 the 9th Circuit Rule 36-3), as follows: [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 6(b)(1) of the Horse Protection Act provides that the Secretary of Agriculture shall determine the amount of the civil penalty, as follows: In determining the amount of such penalty, the Secretary shall take into account all factors relevant to such determination, including the nature, circumstances, extent, and gravity of the prohibited conduct and, with respect to the person found to have engaged in such conduct, the degree of culpability, and any history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice may require. 15 U.S.C. § 1825(b)(1). 61 Agric. Dec. 310 In most Horse Protection Act cases, the maximum civil penalty per violation has been warranted.' Effective September 2, 1997, the Secretary of Agriculture adjusted the maximum civil penalty for each violation of section 5 of the Horse Protection Act (15 U.S.C. § 1824) by increasing the maximum civil penalty from $2,000 to $2,200.3 Based on the factors that are required to be considered when determining the amount of the civil penalty to be assessed and the recommendation of administrative officials charged with responsibility for achieving the congressional purpose of the Horse Protection Act, I find no basis for an exception to the United States Department of Agriculture's policy of assessing the maximum civil penalty for each violation of the Horse Protection Act. Therefore, I assess Respondent a $2,200 civil penalty. Section 6(c) of the Horse Protection Act (15 U.S.C. § 1825(c)) provides that any person assessed a civil penalty under section 6(b) of the Horse Protection Act (15 U.S.C. § 1825(b)) may be disqualified from showing or exhibiting any horse, and from judging or managing any horse show, horse exhibition, horse sale, or horse auction for a period of not less than 1 year for the first violation of the Horse Protection Act and for a period of not less than 5 years for any subsequent violation of the Horse Protection Act. The purpose of the Horse Protection Act is to prevent the cruel practice of soring horses. Congress amended the Horse Protection Act in 1976 to enhance the Secretary of Agriculture's ability to end soring of horses. Among the most notable devices to accomplish this end is the authorization for disqualification which Congress specifically added to provide a strong deterrent to violations of the Horse Protection Act by those persons who have the economic means to pay civil penalties as a cost of doing business. See H.R. Rep. No. 94-1174, at 11 2See, e.g., In re Jack Stepp, 57 Agric. Dec. 297 (1998), aff'd, 188 F.3d 508 (Table), 1999 WL 646138 (6th Cir. 1999) (not to be cited as precedent under 6th Circuit Rule 206); In re Carl Edwards & Sons Stables (Decision as to Carl Edwards & Sons Stables, Gary R. Edwards, Larry E. Edwards, and Etta Edwards), 56 Agric. Dec. 529 (1997), aff'd per curiam, 138 F.3d 958 (11th Cir. 1998) (Table), printed in 57 Agric. Dec. 296 (1998); In re Gary R. Edwards (Decision as to Gary R. Edwards, Larry E. Edwards, and Carl Edwards & Sons Stables), 55 Agric. Dec. 892 (1996), dismissed, No. 96-9472 (11th Cir. Aug. 15, 1997); In re John T. Gray (Decision as to Glen Edward Cole), 55 Agric. Dec. 853 (1996); In re Mike Thomas, 55 Agric. Dec. 800 (1996); In re C.M. Oppenheimer (Decision as to C.M. Oppenheimer), 54 Agric. Dec. 221 (1995); In re Eddie C. Tuck (Decision as to Eddie C. Tuck), 53 Agric. Dec. 261 (1994), appeal voluntarily dismissed, No. 94-1887 (4th Cir. Oct. 6, 1994); In re Linda Wagner (Decision as to Roy E. Wagner and Judith E. Rizio), 52 Agric. Dec. 298 (1993), aff'd, 28 F.3d 279 (3a Cir. 1994), reprinted in 53 Agric. Dec. 169 (1994); 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); In re Eldon Stamper, 42 Agric. Dec. 20 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992). 'See note 1. |