The Hearing Clerk is requested to show the addresses to which the copies were mailed, and the mailing dates. In re: SCOTT A. DURIS. Filed September 5, 2001. Motion to Dismiss. James D. Holt, for Complainant. Respondent, Pro se. Order issued by James W. Hunt, Administrative Law Judge. Complainant's motion to dismiss the complaint is granted. The complaint as to Respondent, Scott A. Duris, is dismissed. In re: MARY E. TORRES DEMUNOZ. A.Q. Docket No. 01-0003. Order Dismissing Complaint. Filed September 10, 2001. 60 Agric. Dec. 647 James Booth, for Complainant. Respondent, Pro se. Order issued by James W. Hunt, Administrative Law Judge. Complainant's motions to Withdraw Proposed Default Decision and Order and to Dismiss Complaint are granted. Accordingly, the Complaint filed on February 22, 2001, is dismissed. In re: KARL MITCHELL, AN INDIVIDUAL; AND ALL ACTING ANIMALS, A SOLE PROPRIETORSHIP OR UNINCORPORATED ASSOCIATION. AWA Docket No. 01-0016. Order Granting Complainant's Petition for Reconsideration. Filed August 8, 2001. Petition for reconsideration - Animal welfare - Inflation adjustment - Dog defined - Cat defined - Present defined – Presumption of regularity – Civil penalty - Cease and desist order - License revocation. The Judicial Officer granted Complainant's petition for reconsideration and increased the civil penalty assessed against Respondents in In re Karl Mitchell, 60 Agric. 91 (2001). The Judicial Officer concluded that, when he assessed Respondents a $15,250 civil penalty, he erroneously failed to take into account the regulations issued under the Federal Civil Penalties Inflation Adjustment Act, as amended (28 U.S.C. § 2461 note (Supp. V 1999)) (7 C.F.R. § 3.91). Pursuant to the regulations, the Secretary of Agriculture increased the maximum civil penalty that may be assessed under section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)) for each violation of the Animal Welfare Act and the regulations and standards issued under the Animal Welfare Act by 10 percent from $2,500 to $2,750 (7 C.F.R. § 3.91(b)(2)(v)). Accordingly, the Judicial Officer increased the civil penalty which he assessed against Respondents by 10 percent from $15,250 to $16,775. Colleen A. Carroll, for Complainant. J. Oscar Shaw, for Respondents. Initial decision issued by Dorothea A. Baker, Administrative Law Judge. PROCEDURAL HISTORY The Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a Complaint on December 6, 2000. Complainant instituted the proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice]. Complainant alleges that, during the period April 11, 2000, through December 4, 2000, Karl Mitchell and All Acting Animals [hereinafter Respondents] willfully violated the Animal Welfare Act and the Regulations and Standards (Compl. ¶¶3-12). On January 5, 2001, the Hearing Clerk served each Respondent with the Complaint, the Rules of Practice, and a service letter dated December 7, 2000.2 Respondents failed to answer the Complaint within 20 days after service as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). On February 13, 2001, the Hearing Clerk sent a letter to Respondents informing them that Respondents' answer to the Complaint had not been received within the time required by the Rules of Practice.3 On February 14, 2001, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Complainant filed a Motion for Adoption of Proposed Decision and Order [hereinafter Motion for Default Decision] and a proposed Decision and Order By Reason of Admission of Facts [hereinafter Proposed Default Decision]. The Hearing Clerk served Respondents with Complainant's Motion for Default Decision and Complainant's Proposed Default Decision on March 8, 2001.* 2The Hearing Clerk sent each Respondent the Complaint, the Rules of Practice, and the December 7, 2000, service letter by certified mail (See Domestic Return Receipt for Article Number 4579 5131 and Domestic Return Receipt for Article Number 4579 5155). The United States Postal Service marked each envelope containing the Complaint, the Rules ofPractice, and the December 7, 2000, service letter "unclaimed" and returned the mailings to the Hearing Clerk. On January 5, 2001, in accordance with section 1.147(c)(1) of the Rules of Practice (7 C.F.R. § 1.147(c)(1)), the Hearing Clerk remailed the Complaint, the Rules of Practice, and the December 7, 2000, service letter to each Respondent by ordinary mail (See two memoranda dated January 5, 2001, from “TMFisher"). 'See letter dated February 13, 2001, from Lawuan Waring, Acting Hearing Clerk, to Karl Mitchell and All Acting Animals. *See Domestic Return Receipt for Article Number 4579 3922 signed by Respondent Karl Mitchell. The Hearing Clerk sent Respondent All Acting Animals Complainant's Motionfor Default Decision and Complainant's Proposed Default Decision by certified mail (See Certified Mail Receipt 4579 3915). However, the record does not establish that anyone signed the Domestic Return Receipt for Article Number 4579 3915. Respondent Karl Mitchell is an owner or sole proprietor of Respondent All Acting Animals. Respondent Karl Mitchell and Respondent All Acting Animals have the same mailing (continued...) 60 Agric. Dec. 647 Respondents failed to file objections to Complainant's Motion for Default Decision and Complainant's Proposed Default Decision within 20 days after service as required by section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). On April 11, 2001, Respondents filed a Motion for Leave to File Late Answer to Complaint, an Answer to Complaint and Affirmative Defenses, and a Response to Motion for Adoption of Proposed Decision and Order. On April 25, 2001, Administrative Law Judge Dorothea A. Baker [hereinafter the ALJ] filed an Order Granting Complainant's Motion for Adoption of Proposed Decision and Order filed February 14, 2001, and a Decision and Order by Reason of Admission of Facts [hereinafter Initial Decision and Order]. The ALJ: (1) concluded that Respondent Karl Mitchell is an owner or sole proprietor of Respondent All Acting Animals; (2) concluded that, at all times material to this proceeding, Respondents operated as exhibitors as defined in the Animal Welfare Act under Animal Welfare Act license number 88-C-0076; (3) concluded that Respondents violated the Animal Welfare Act and the Regulations and Standards as alleged in the Complaint; (4) directed Respondents to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; (5) assessed Respondents jointly and severally a $27,500 civil penalty; and (6) revoked Respondents' Animal Welfare Act license (Initial Decision and Order at 8-15). On May 15, 2001, Respondents appealed to the Judicial Officer. On May 21, 2001, Complainant filed a response to Respondents' appeal petition. On May 23, 2001, the Hearing Clerk transmitted the record of the proceeding to the Judicial Officer for decision. On June 13, 2001, I issued a Decision and Order: (1) concluding that Respondents committed 45 willful violations of the Animal Welfare Act and the Regulations and Standards; (2) ordering Respondents to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; (3) assessing Respondents, jointly and severally, a $15,250 civil penalty; and (4) revoking Respondents' Animal Welfare Act license. In re Karl Mitchell, 60 Agric. Dec. 91, 106-14, 132-32 (2001). On July 3, 2001, Complainant filed Complainant's Petition for Reconsideration of Decision of the Judicial Officer [hereinafter Petition for Reconsideration]. On July 23, 2001, Respondents filed Respondents Response to Complainant's Petition *(...continued) address. Respondent Karl Mitchell and Respondent All Acting Animals operate as Animal Welfare Act exhibitors under the same Animal Welfare Act license (Animal Welfare Act license number 88-C-0076). Under these circumstances, I concluded that service of Complainant's Motion for Default Decision and Complainant's Proposed Default Decision on Respondent Karl Mitchell also constitutes service on Respondent All Acting Animals. In re Karl Mitchell, 60 Agric. Dec. 91, 93 n.3, 106 (2001). for Reconsideration of Decision of the Judicial Officer [hereinafter Response to Petition for Reconsideration]. On July 25, 2001, the Hearing Clerk transmitted the record of the proceeding to the Judicial Officer for reconsideration of the June 13, 2001, Decision and Order. APPLICABLE STATUTORY AND REGULATORY PROVISIONS 7 U.S.C.: TITLE 7-AGRICULTURE CHAPTER 54-TRANSPORTATION, SALE, AND HANDLING § 2131. Congressional statement of policy The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order— (1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment; (2) to assure the humane treatment of animals during transportation in commerce; and (3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen. The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use. |