61 Agric. Dec. 25 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. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. 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. (c) Appeal of final order by aggrieved person; limitations; exclusive jurisdiction of United States Courts of Appeals Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, aggrieved by a final order of the Secretary issued pursuant to this section may, within 60 days after entry of such an order, seek review of such order in the appropriate United States Court of Appeals in accordance with the provisions of sections 2341, 2343 through 2350 of title 28, and such court shall have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of the Secretary's order. § 2151. Rules and regulations The Secretary is authorized to promulgate such rules, regulations, and orders as he may deem necessary in order to effectuate the purposes of this chapter. 7 U.S.C. §§ 2131, 2132(f), 2134, 2149(a)-(c), 2151. 9 C.F.R.: TITLE 9-ANIMALS AND ANIMAL PRODUCTS CHAPTER I-ANIMAL AND PLANT HEALTH DEPARTMENT OF AGRICULTURE SUBCHAPTER A-ANIMAL WELFARE PART 1-DEFINITION OF TERMS § 1.1 Definitions. For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary. Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. PART 2-REGULATIONS SUBPART A-LICENSING § 2.1 Requirements and application. (a)(1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempted from the licensing requirements under paragraph (a)(3) of this section, must have a valid license. A person must be 18 years of age or older to obtain a license. A person seeking a license shall apply on a form which will be furnished by the APHIS, REAC Sector Supervisor in 61 Agric. Dec. 25 the State in which that person operates or intends to operate. The applicant shall provide the information requested on the application form, including a valid mailing address through which the licensee or applicant can be reached at all times, and a valid premises address where the animals, animal facilities, equipment, and records may be inspected for compliance. The applicant shall file the completed application form with the APHIS, REAC Sector Supervisor. 9 C.F.R. §§ 1.1, 2.1(a)(1) (1998).* STATEMENT OF THE CASE Introduction Respondents Steven Bourk and Carmella Bourk failed to file an answer within the time prescribed in section 1.136(a) of the Rules of Practice (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 in section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)) shall be deemed, for purposes of the proceeding, an admission of the allegations in the complaint. Further, pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), the failure to file an answer constitutes a waiver of hearing. Accordingly, the material allegations in the Complaint are adopted as Findings of Fact. This Decision and Order as to Steven Bourk and Carmella Bourk is issued pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). Findings of Fact 1. Respondent Steven Bourk is an individual whose mailing address is 1904 Verendrye Drive, Ft. Pierre, South Dakota 57532. 2. Respondent Carmella Bourk is an individual whose mailing address is 1904 Verendrye Drive, Ft. Pierre, South Dakota 57532. 3. From July 28, 1992, through December 11, 1998, Respondent Steven Bourk operated as a dealer as defined in the Animal Welfare Act and the "During the period material to this proceeding, section 2.1(a)(1) of the Regulations (9 C.F.R. § 2.1(a)(1) (1998)) was amended by removing the term "APHIS, REAC Sector Supervisor" both times it appears and adding in its place the term “AC Regional Director" (63 Fed. Reg. 62,925-27 (Nov. 10, 1998)). This November 10, 1998, amendment of section 2.1(a)(1) of the Regulations (9 C.F.R. § 2.1(a)(1) (1998)) has no bearing on the disposition of this proceeding. Regulations without being licensed. Respondent Steven Bourk sold, in commerce, approximately 98 dogs for resale, for use as pets or for exhibition. 4. From January 23, 1995, through September 2, 1998, Respondent Carmella Bourk operated as a dealer as defined in the Animal Welfare Act and the Regulations without being licensed. Respondent Carmella Bourk sold, in commerce, approximately 31 dogs for resale, for use as pets or for exhibition. Conclusions of Law 1. The Secretary of Agriculture has jurisdiction in this matter. 2. From July 28, 1992, through December 11, 1998, Respondent Steven Bourk 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). 3. From January 23, 1995, through September 2, 1998, Respondent Carmella Bourk 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). Respondents Steven Bourk's and Carmella Bourk's Appeal Petitions Respondents Steven Bourk and Carmella Bourk raise six issues in Respondent Carmella Bourk's letter filed July 6, 2001 [hereinafter Carmella Bourk's Appeal Petition], and Respondent Steven Bourk's letter filed September 10, 2001 [hereinafter Steven Bourk's Appeal Petition]. First, Respondent Carmella Bourk asks: "Why does my daughter's name still appear on these forms when she received a letter stating that the charges against her have been dropped?" (Carmella Bourk's Appeal Pet. at first unnumbered page.) Respondent Carmella Bourk does not identify the person who she asserts is her daughter, does not identify the "forms" on which her daughter's name appears, and does not identify the "letter stating that the charges against her [daughter] have been dropped[.]" However, based on the limited record before me, I infer the person who Respondent Carmella Bourk asserts is her daughter is Respondent Donya Bourk; I infer the "letter stating that the charges against [Respondent Donya Bourk] have been dropped" referenced by Respondent Carmella Bourk is either Complainant's Notice of Withdrawal of Complaint Without Prejudice as to Donya Bourk or the Chief ALJ's Order Withdrawing Complaint as to Donya Bourk; and I infer Respondent Carmella Bourk asserts the Chief ALJ erroneously concluded that Respondent Donya Bourk willfully violated the Animal Welfare Act and the Regulations and imposed sanctions against Respondent Donya Bourk. On March 15, 2001, Complainant filed a Notice of Withdrawal of Complaint Without Prejudice as to Donya Bourk giving notice of Complainant's 61 Agric. Dec. 25 withdrawal of the Complaint as to Respondent Donya Bourk. On March 20, 2001, the Chief ALJ filed an Order Withdrawing Complaint as to Donya Bourk stating: On March 15, 2001, Complainant filed a "Notice of Withdrawal of Complaint Without Prejudice as to Donya Bourk." The complaint against Respondent Donya Bourk, filed herein on October 17, 2000, is withdrawn without prejudice. Notwithstanding Complainant's March 15, 2001, Notice of Withdrawal of Complaint Without Prejudice as to Donya Bourk and the Chief ALJ's March 20, 2001, Order Withdrawing Complaint as to Donya Bourk, the Chief ALJ issued an Initial Decision and Order on June 15, 2001, in which he: (1) found that from September 6, 1997, through March 5, 1999, Respondent Donya Bourk operated as a dealer as defined in the Animal Welfare Act and the Regulations without an Animal Welfare Act license; (2) found that Respondent Donya Bourk sold, in commerce, approximately 72 dogs for resale, for use as pets or for exhibition; (3) concluded that Respondent Donya Bourk willfully violated section 4 of the Animal Welfare Act (“7 U.S.C. § 134") and “subsection" 2.1 of the Regulations (9 C.F.R. § 2.1);7 (4) ordered Respondent Donya Bourk to cease and desist from violating the Animal Welfare Act, the Regulations, and the Standards; (5) assessed Respondent Donya Bourk a $7,500 civil penalty; and (6) disqualified Respondent Donya Bourk from obtaining an Animal Welfare Act license for 30 days (Initial Decision and Order at 3-4). In light of Complainant's March 15, 2001, Notice of Withdrawal of Complaint Without Prejudice as to Donya Bourk and the Chief ALJ's March 20, 2001, Order Withdrawing Complaint as to Donya Bourk, I am perplexed by the Chief ALJ's June 15, 2001, Initial Decision and Order in which the Chief ALJ concluded that Respondent Donya Bourk violated the Animal Welfare Act and the Regulations and imposed sanctions against Respondent Donya Bourk. Moreover, I am perplexed by Complainant's failure to appeal the Chief ALJ's Initial Decision and Order as it relates to Respondent Donya Bourk. The Chief ALJ erroneously indicates that section 4 of the Animal Welfare Act is codified in the United States Code at "7 U.S.C. § 134" (Initial Decision and Order at 2-3). Section 4 of the Animal Welfare Act is codified in the United States Code at 7 U.S.C. § 2134. I find the Chief ALJ's incorrect references to "7 U.S.C. § 134" harmless error. The Chief ALJ erroneously refers to section 2.1 of the Regulations (9 C.F.R. § 2.1) as “subsection" 2.1 of the Regulations (9 C.F.R. § 2.1) (Initial Decision and Order at 2-3). I find the Chief ALJ's erroneous references to "subsection" 2.1 of the Regulations (9 C.F.R. § 2.1) harmless error. |