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Date Posted: 00:09:15 11/04/05 Fri
n re: JAMES R. ANDERSON, d/b/a WIZARD OF CL’OZ
AWA Docket No. 02-0017.
Decision and Order.
Filed March 11, 2003.
AWA – Default – Records, inadequate – Veterinary care, inadequate.
Sharlene A. Deskins, Attorney for Complainant.
Respondent, Pro se.
Decision and Order issued by James W. Hunt, Administrative Law Judge.
Preliminary Statement
This proceeding was instituted under the Animal Welfare Act ("Act"), as amended (7 U.S.C. § 2131 et seq.), by a Complaint filed by the Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, alleging that the respondent willfully violated the Act and the regulations issued thereunder (9 C.F.R. § 1.1 et seq.).
Copies of the Complaint and the Rules of Practice governing proceedings under the Act, 7 C.F.R. §§ 1.130-1.151, were served upon respondent by certified mail on May 29, 2002. Respondent was informed in the 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 failed to file an answer addressing the allegations contained in the complaint within the time prescribed in the Rules of Practice. Therefore, the material facts alleged in the Complaint, are admitted as set forth herein by Respondent’s failure to file an answer pursuant to the Rules of Practice, and are adopted as Findings of Fact and Conclusions of Law.
This decision and order, therefore, is issued pursuant to section 1.139 of the Rules of Practice, 7 C.F.R. § 1.139.
Findings of Fact and Conclusions of Law
I
A. James R. Anderson, hereinafter referred to as the respondent, is an individual whose address is 3441 S W 27th Street, Fort Lauderdale, FL 33312.
B. The respondent, at all times material herein, was licensed and operating as a dealer as defined in the Act and the regulations. The respondent operates under the business name of Wizard of Cl’Oz.
C. When the respondent became licensed and annually thereafter, he received copies of the Act and the regulations and standards issued thereunder and agreed in writing to comply with them.
II
On July 9, 1998, APHIS inspected respondent's premises and records and found that the respondent had failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of section 10 of the Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. § 2.75(a)(1)).
III
A. On November 28, 2000, APHIS inspected respondent's premises and records and found that the respondent had failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of section 10 of the Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. § 2.75(a)(1)).
B. On November 28, 2000, APHIS inspected respondent's premises and records and found that the respondent had failed to individually identify at least 13 bengal kittens in willful violation of section 11 of the Act (7 U.S.C. § 2141) and section 2.50 of the regulations (9 C.F.R. § 2.50).
C. On November 28, 2000, APHIS inspected respondent's premises and found that respondent had failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine because the Respondent had no written program for veterinarian care. The Respondent further failed to provide adequate veterinary care by not having a veterinarian examine animals that appeared to be ill. The above stated actions of the Respondent were willful violation of section 2.40 of the regulations (9 C.F.R. § 2.40).
D. On November 28, 2000, APHIS inspected the respondent's facility and found the following willful violations of section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and the standards specified below:
1. Outdoor housing facilities for tamarins were not enclosed by a perimeter fence of sufficient height to keep animals and unauthorized persons out as required in the standards (9 C.F.R. 3.127(d)); and
2. The premises including buildings and surrounding grounds, were not kept in good repair, and clean and free of trash, junk, waste, and discarded matter, in order to protect the animals from injury, and facilitate the required husbandry practices (9 C.F.R § 3.11(c)). The enclosure for a female doberman and her ten puppies contained lawn equipment and other materials.
IV
A. On October 6, 2000, the respondent failed to maintain complete records showing the acquisition, disposition, and identification of at least 9 kittens, in willful violation of section 10 of the Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. § 2.75(a)(1)).
B. On October 6, 2000, the respondent's failed to individually identify at least 9 kittens in willful violation of section 11 of the Act (7 U.S.C. § 2141) and section 2.50 of the regulations (9 C.F.R. § 2.50).
V
A. On or about October 12, 2000, the respondent failed to maintain complete records showing the acquisition, disposition, and identification of kittens, in willful violation of section 10 of the Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. § 2.75(a)(1)).
B. On or about October 12, 2000, the respondent's failed to individually identify at least 4 bengal kittens in willful violation of section 11 of the Act (7 U.S.C. § 2141) and section 2.50 of the regulations (9 C.F.R. § 2.50).
Conclusions
1. The Secretary has jurisdiction in this matter.
2. By reason of the facts set forth in the Findings of Fact above, the respondent has violated the Act and regulations promulgated under the Act.
3. The following Order is authorized by the Act and warranted under the circumstances.
Order
1. Respondent, his 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 issued thereunder, and in particular, shall cease and desist from:
(a) Failing to provide proper veterinary care;
(b) Failing to maintain complete records as required by the regulations;
(c) Failing to identify animals as required by the regulations;
(d) Failing to provide animals with a perimeter fence which is of a sufficient height to keep animals and unauthorized persons out of the respondent’s facility;
(e) Failing to maintain the facilities and enclosures for animals free of equipment, junk or other materials; and
(f) Transporting, selling or offering for sale animals that are less than eight weeks of age.
2. The Respondent is assessed a civil penalty of $4,600 which shall be paid by a certified check or money order made payable to the Treasurer of United States.
3. The Respondent, his agents, partners, employees, successors and assigns, directly or through any corporate or other device are disqualified from applying for a license under the Animal Welfare Act until the civil penalty assessed in this case and any costs associated with collecting the civil penalty are paid in full.
The provisions of this Order shall become effective on the first day after service of this decision on the respondent.
Pursuant to the Rules of Practice, this decision becomes final without further proceedings 35 days after service as provided in section 1.142 and 1.145 of the Rules of Practice, 7 C.F.R. §§ 1.142 and 1.145.
Copies of this decision shall be served upon the parties.
[This Decision and Order became final April 21, 2003.- Editor]
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