CHAPTER 54–TRANSPORTATION, SALE, AND HANDLING

OF CERTAIN ANIMALS

§ 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.

§ 2132. Definitions

When used in this chapter—

. . . .

(h) The term “exhibitor” means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not[.]

....

§ 2134. Valid license for dealers and exhibitors required

No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

. . . .

§ 2143. Standards and certification process for humane handling, care, treatment, and transportation of animals

(a)Promulgation of standards, rules, regulations, and orders; requirements; research facilities; State authority

(1) The Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.

. . . .

....

§ 2145. Consultation and cooperation with Federal, State, and local governmental bodies by Secretary of Agriculture

. . . .

(b) The Secretary is authorized to cooperate with the officials of the various States or political subdivisions thereof in carrying out the purposes of this chapter and of any State, local, or municipal legislation or ordinance on the same subject.

....

§ 2149. Violations by licensees

(a)Temporary license suspension; notice and hearing; revocation

If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person’s license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

(b)Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

(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 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(h), 2134, 2143(a)(1), (a)(8), 2145(b), 2149(a)-(c), 2151.

28 U.S.C.:

TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE

....

PART VI—PARTICULAR PROCEEDINGS

....

CHAPTER 163—FINES, PENALTIES AND FORFEITURES

§ 2461. Mode of recovery

....

Federal Civil Penalties Inflation Adjustment

short title

Section 1. This Act may be cited as the “Federal Civil Penalties Inflation Adjustment Act of 1990"

findings and purpose

Sec. 2. (a) Findings.–The Congress finds that–

(1) the power of Federal agencies to impose civil monetary penalties for violations of Federal law and regulations plays an important role in deterring violations and furthering the policy goals embodied in such laws and regulations;

(2) the impact of many civil monetary penalties has been and is diminished due to the effect of inflation;

(3) by reducing the impact of civil monetary penalties, inflation has weakened the deterrent effect of such penalties; and

(4) the Federal Government does not maintain comprehensive, detailed accounting of the efforts of Federal agencies to assess and collect civil monetary penalties.

(b) Purpose–The purpose of this Act is to establish a mechanism that shall–

(1) allow for regular adjustment for inflation of civil monetary penalties;

(2) maintain the deterrent effect of civil monetary penalties and promote compliance with the law; and

(3) improve the collection by the Federal Government of civil monetary penalties.

definitions

Sec. 3. For purposes of this Act, the term–

(1) “agency” means an Executive agency as defined under section 105 of title 5, United States Code, and includes the United States Postal Service;

(2) “civil monetary penalty” means any penalty, fine, or other sanction that–

(A)(i) is for a specific monetary amount as provided by Federal law; or

(ii) has a maximum amount provided for by Federal law; and

(B) is assessed or enforced by an agency pursuant to Federal law; and

(C) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts; and

(3) “Consumer Price Index” means the Consumer Price Index for all-urban consumers published by the Department of Labor.

civil monetary penalty inflation

adjustment reports

Sec. 4. The head of each agency shall, not later than 180 days after the date of enactment of the Debt Collection Improvement Act of 1996 [Apr.26, 1996], and at least once every 4 years thereafter–

(1) by regulation adjust each civil monetary penalty provided by law within the jurisdiction of the Federal agency, except for any penalty (including any addition to tax and additional amount) under the Internal Revenue Code of 1986 [26U.S.C. 1 et seq. ], the Tariff Act of 1930 [19 U.S.C. 1202 et seq. ], the Occupational Safety and Health Act of 1970 [20 U.S.C. 651 et seq. ], or the Social Security Act [42 U.S.C. 301 et seq. ], by the inflation adjustment described under section 5 of this Act [bracketed material in original]; and

(2) publish each such regulation in the Federal Register.

cost-of-living adjustments of civil

monetary penalties

Sec. 5. (a) Adjustment.–The inflation adjustment under section 4 shall be determined by increasing the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment. Any increase determined under this subsection shall be rounded to the nearest–

(1) multiple of $10 in the case of penalties less than or equal to $100;

(2) multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;

(3) multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;

(4) multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;

(5) multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and

(6) multiple of $25,000 in the case of penalties greater than $200,000.

(b) Definition.–For purposes of subsection (a), the term “cost-of-living adjustment” means the percentage (if any) for each civil monetary penalty by which–

(1) the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds

(2) the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.

annual report

Sec. 6. Any increase under this Act in a civil monetary penalty shall apply only to violations which occur after the date the increase takes effect.

Limitation on Initial Adjustment.–The first adjustment of a civil monetary penalty ...may not exceed 10 percent of such penalty.

28U.S.C. § 2461 note (Supp. V 1999).

7 C.F.R.:

TITLE 7—AGRICULTURE

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE

....

PART 3—DEBT MANAGEMENT

....

Subpart E—Adjusted Civil Monetary Penalties

§ 3.91 Adjusted civil monetary penalties.

(a) In general . The Secretary will adjust the civil monetary penalties, listed in paragraph (b), to take account of inflation at least once every 4years as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. No. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. No. 104-134).

(b) Penalties –....

....

(2) Animal and Plant Health Inspection Service ....

....

(v) Civil penalty for a violation of Animal Welfare Act, codified at 7U.S.C. 2149(b), has a maximum of $2,750[.]

7 C.F.R. § 3.91(a), (b)(2)(v).

9 C.F.R.:

TITLE 9—ANIMALS AND ANIMAL PRODUCTS

INSPECTION SERVICE,

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.

. . . .

Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not.

. . . .

PART 2—REGULATIONS

Subpart A—Licensing

....

§ 2.10 Licensees whose licenses have been suspended or revoked.

....

(c) Any person whose license has been suspended or revoked shall not buy, sell, transport, exhibit, or deliver for transportation, any animal during the period of suspension or revocation.

....

Subpart I—Miscellaneous

....

§ 2.131 Handling of animals.

....

(b)(1) During public exhibition, any animal must be handled so there is minimal risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public so as to assure the safety of animals and the public.

....

(c)(1) Animals shall be exhibited only for periods of time and under conditions consistent with their good health and well-being.

(2) A responsible, knowledgeable, and readily identifiable employee or attendant must be present at all times during periods of public contact.

(3) During public exhibition, dangerous animals such as lions, tigers, wolves, bears, or elephants must be under the direct control and supervision of a knowledgeable and experienced animal handler.

9C.F.R. §§ 1.1; 2.10(c), .131(b)(1), (c)(1)-(3).

STATEMENT OF THE CASE

Respondent Diana Cziraky is licensed by the Animal and Plant Health Inspection Service to operate as an exhibitor under the Animal Welfare Act. Respondent Diana Cziraky holds Animal Welfare Act license number 31-C-0123. (Compl.¶ 4; Answer; CX3, CX4.) Respondent Diana Cziraky is the founder and director of Respondent The Siberian Tiger Foundation and the president of Respondent Tiger Lady LLC (CX 43). The Siberian Tiger Foundation, also referred to as The International Siberian Tiger Foundation, is an Ohio corporation. The Siberian Tiger Foundation’s place of business is 22143Deal Road, Gambier, Ohio43022, where it exhibits lions and Siberian tigers to the public. (CX71). The Siberian Tiger Foundation’s promotional material describes Siberian tigers as animals that are threatened with extinction in the wild. The material states that, to preserve Siberian tigers, The Siberian Tiger Foundation exhibits them to the public as an educational endeavor to make the public aware of this threat. (CX37).

The Siberian Tiger Foundation, operated by its founder, Respondent Diana Cziraky, offers interested members of the public the opportunity to have what it calls “close encounters” with its lions and tigers and the opportunity to enter into a training program to become animal trainers. The Siberian Tiger Foundation has five Siberian tigers and three lions ranging in age from 9 months to 6 years. The mature tigers weigh from 650 to 800pounds. (Tr.183; CX42). Respondent Diana Cziraky has raised the animals since they were cubs and said they are “trained, but not tame” (Tr.929-30, 934). She testified that she has not had formal animal training but has learned about lions and tigers by reading books, talking to other animal handlers, and attending programs sponsored by the American Zoological Association and through over 10years of actual experience with the animals (Tr.991-92).

A person becomes a trainee by paying $2,500 and entering into an agreement with The Siberian Tiger Foundation. The agreement provides that the trainee will receive “hands-on training” in such matters as feeding, training, and raising lions and tigers. The agreement further provides:

Trainee understands and verifies by signing below that there are inherent risks associated with exotic cats (specifically Lions and Tigers) and that any and all injuries or illnesses resulting from the contact of, or association with these animals is unintentional by [The Siberian Tiger Foundation]. Trainee assumes full responsibility for any accidents, injuries or related incidents that may occur to themselves, the cats, or others while training with the exotic cats.

CX6.

Train ees are also personally told to expect “some minor cuts and bruises.” As part of the “hands-on” phase of their training, trainees work with handlers who accompany persons entering the animal compound to have close encounters with the cats. After 500hours of training, the trainee receives a certificate and, generally, after 1,000hours of training, Respondents consider the trainee fully trained in animal behavior and control. The Siberian Tiger Foundation has not kept records of the number of persons it has certified. (Tr.126-27, 720-21, 986-90, 1001).

Members of the public desiring a close encounter pay $35 and sign a liability waiver. Close encounters provide persons with the opportunity to have physical contact with Respondents’ cats. The liability waiver provides:

I understand that entering into the compound with Lions and Tigers is VERY DANGEROUS and that I can be injured in many different ways by the lions or tigers themselves or just by falling down. I may also suffer damage to my clothing, camera equipment, or any other personal items that I bring in with me. Although many others have entered the compound without harm, it does not mean that I may not be injured. I hold The Siberian Tiger Foundation and its agents blameless and I accept ALL responsibility for anything that may happen to me.

CX32.

During the time material to this proceeding, Respondents permitted parents to sign liability waivers on behalf of their children, thereby allowing children to have close encounters with Respondents’ animals (Tr.36, 113, 227, 232-34).

Before members of the public are allowed in the compound, they are given a lecture on proper behavior during the close encounter, such as following the directions of handlers, not turning their backs to the animals, keeping their heads higher than the cat’s head, not making sudden movements, not pulling away if “mouthed” by a lion or tiger, and backing away slowly after the close encounter. Respondent Diana Cziraky testified that each day before close encounters begin, she visits with each animal and that she evaluates adults and children to determine whether they are good candidates for close encounters. She said she can tell whether a lion or tiger is in the mood to be viewed by the public. If not, she keeps the animal out of the compound where the close encounters will take place. She also limits close encounters to 3 hours a day. (Tr.21-23, 227-29, 252-56, 388, 592, 608, 622-24, 719).

During the time material to this proceeding, Respondents allowed groups of up to 20people at a time in the compound, an outdoor area surrounded by a high wire fence. During close encounters, Respondents chained most of the animals to the fence near wooden wire spools which, from photographs, appear to be 3 to 4 feet high. The animals were apparently allowed to recline on the ground or on the spools during the close encounters. (Tr.24, 121, 135; CX13).

As people enter the compound, they walk through a disinfectant to prevent diseases from being tracked into the compound. Those persons in the group desiring a close encounter are generally taken, one at a time by the handlers, to a chained lion or tiger and allowed to approach and touch or pet the animal. Generally, to maintain control over the animal, one handler stands near the animal’s head. This handler is to keep his or her “eye on what is going on.” Often, another handler is stationed on the animal’s other side and stands on the chain during the encounter. Respondent DianaCziraky testified that with these controls one handler can distract the animal and slow it down if it makes a sudden movement to give the other handler enough time to move the person having a close encounter with the animal the few feet to a safe area beyond the length of the animal’s chain. After a close encounter, the person having the close encounter is to back away from the animal. A handler’s other means of control is a vinegar spray bottle. The vinegar stings the cat’s eyes but does not cause permanent injury. (Tr.121, 130-32, 135-37, 300-02, 592-94, 716-17, 794, 817, 936-38, 941, 987).

Respondent Diana Cziraky testified that the animals are declawed and that three of the tigers have been defanged. She said that tigers have short attention spans and that she can control the animals with just voice commands or a rap on the nose. Over 12,000 persons have visited The Siberian Tiger Foundation to have close encounters. (Tr.931, 993, 1016-17).

Respondent Diana Cziraky said the Regulations are vague and that when she contacted the Animal and Plant Health Inspection Service for interpretation of the Regulations, she received different answers. She stated: “I think it’s probably up to the inspector at the time to decide whether it should be this way or that way because it’s not very defined.” (Tr.1032).

The Siberian Tiger Foundation has been inspected since 1997 by Animal and Plant Health Inspection Service employees. A number of witnesses testified that Respondents’ facility was clean and that Respondents’ animals appeared healthy, well-fed, and clean. Prior to the violations alleged in the Complaint, Respondents had not been cited for any violation of the Animal Welfare Act, the Regulations, or the Standards. (Tr.40-43, 101-02, 249-51, 305-08, 517-18, 575, 639-41, 660-61, 665-66, 683; CX106).

On February 28, 2000, Terry Aston was in an encounter group of four people. A lion put its paw around her foot and when she tried to pull away the lion “nipped” her on the back of the leg but without breaking the skin. Terry Aston said she was aware that lions and tigers are dangerous animals and that the encounter constituted a risk, but she also stated the animals are “such a wonderful thing to see, that you don’t have any regard for anything. You just want to get in there and touch them.” The nip did not deter her. She later returned to The Siberian Tiger Foundation and entered its program to become a trainer. (Tr.356-58, 361, 388-90).

In April 2000, Gayle Channell took her 12-year-old daughter to The Siberian Tiger Foundation to have an encounter. A tiger bit the girl on the foot but quickly let go when a handler hit the tiger on the nose. (Tr.623-25; CX104).

On April29, 2000, Gayle DeLeon took her daughter, Lauren DeLeon, to The Siberian Tiger Foundation where a tiger bit the girl’s shoe and bit even harder when sprayed with vinegar before releasing the shoe. Lauren suffered two puncture wounds on her foot which were treated at The Siberian Tiger Foundation and later at a hospital. (Tr.233-38; CX75). Gayle DeLeon also said she saw a 5-year-old boy in the compound petting a tiger. When the tiger stood up, the tiger frightened the boy who “took off running towards the lioness. The [boy’s] Grandmother stopped the boy, turning him in another direction running towards another tiger. She grabbed him again and stopped him. He was screaming all this time. All the animals were up and watching him.” (CX75 at 2-3).

Brittany Sly, a 10-year-old, liked tigers. On July14, 2000, her father, Robert Sly, took her to The Siberian Tiger Foundation. Though he knew tigers were dangerous, he thought “it would be a special treat for her to be able to touch one.” (Tr.21). Brittany was in an encounter group of four which was accompanied by three attendants. Robert Sly testified that, when he saw Brittany bend down to pet the tiger’s paw, the cat “stood up and came down with his mouth on my daughter’s head, on Brittany’s head ...and drove her to the ground and started moving her around -- with him [sic] mouth on her head -- kind of like shaking her.” (Tr.28). The attendants got wrapped in the tiger’s chain but managed to make the tiger release the girl by hitting the tiger on the nose. After calming down and receiving treatment for the bites, Brittany was taken back into the compound by her father to pet another tiger because, he said, of her “love for tigers.” (Tr.20-21, 28-33, 44).

On October 21, 2000, Robert Newman took his 10-year-old son, Ethan, to The Siberian Tiger Foundation. It was Ethan’s fourth visit. Robert Newman said Ethan was interested in tigers and “learned to read by reading Calvin and Hobbs cartoons. So, you can see how much he is interested in tigers.” Robert Newman said he was aware that tigers are predators but believed that an encounter with tigers at The Siberian Tiger Foundation was “a low level of risk.” (Tr.202, 217, 224, 227-29).

When Ethan encountered the tiger, she moved “relatively quickly” and grabbed his leg with her mouth. Ethan stood still as directed, but then the “tiger bit down and [Ethan] said that it hurt and then she bit down harder and he started to scream that it really hurt and at that point, he really started to scream quite loudly and was obviously in serious pain.” The tiger let go when the handler hit her on the nose. The wound required 50 stitches. (Tr.205-06, 208-09, 211).

Jessica Lee, 19, was present at the time Ethan was bitten. She observed the incident. As it was taking place, Jessica Lee said she “backed up apparently into the range of a male lion -- just on his chain. So, he just knocked me over and pounced on me and had me flat on the ground and was trying to bite my back. And did manage to -- not really sink his teeth in, but I had a bite.” The lion released her after being sprayed with vinegar. (Tr.594).

On October28, 2000, a person named Jason Adelsberger was reported to have been bitten at The Siberian Tiger Foundation (Tr.91, 552; CX39, CX40).

On October 29, 2000, Tonya Ware, who was enrolled in the animal trainer program, was working with another handler while a man was having a close encounter with a tiger. When the tiger made a quick move, Tonya Ware told the man to step back. As she turned her head to see if the man had backed up, the tiger bit her foot. Tonya Ware remained quiet and did not try to pull away, but the tiger continued to bite her foot despite being sprayed with vinegar and being hit on the nose. The tiger finally released her, but not before Tonya Ware had eight wounds in her foot. Tonya Ware was treated by a doctor, but did not require hospitalization or stitches for the wounds. Tonya Ware said she knew that even trained tigers were dangerous and that she was at risk working with the animals when she entered the trainer program but did so because of her fascination and compassion for the animals. (Tr.138-41, 150, 153, 162-64; CX5, CX6, CX51).

In the meantime, on September 12, 2000, Carl LaLonde, a senior Animal and Plant Health Inspection Service investigator, instituted an investigation of The Siberian Tiger Foundation, and on November24, 2000, served a notice of a 10-day suspension of Respondent Diana Cziraky’s Animal Welfare Act license (Tr.518, 524-25; CX64, CX67). The explanation accompanying the notice states:

I. The current method of exhibition at this facility, allowing the public direct contact with adult dangerous animals such as lions and tigers has resulted in bites and other injuries to individual members of the public. Therefore, this method is not compliant with Title 9 Code of Federal Regulations, Subchapter A, Animal welfare:

Section 2.131(b)(1) which indicates that animals should be exhibited so that there is minimal risk of harm to the public and the animals being exhibited. We have received information that several bites have occurred during the past 8months.

Section 2.131((b)(1) which indicates that there should be sufficient distance and/or barriers between the animals and the general viewing public to assure the safety of the animals and the public. Many people are in the cage at one time.

Section 2.131(c)(3) which indicates that during public exhibition, animals should be under direct control of experienced handlers. The handlers are apparently unable to prevent these adverse interactions from occurring.

II. The following conditions of exhibition are in compliance with Section2.131.

Dangerous animals in direct contact with the public for such activities as photographic sessions or “petting” must be:

Less than six months of age, and

Less than seventy-five pounds in weight and

Collared, and

On a leash not longer than 18inches in length

Members of the public not engaging in direct contact with the animals at the time must be kept away from the exhibit animals by a barrier.

The handlers, as well as the license holder, should meet the requirements for knowledge and experience for direct public contact venues as explained in the “Dear Applicant” letter. A copy of the letter should be left with the license holder.

III. Any methods or conditions for direct contact exhibition other than those listed in II above should be approved by Animal Care prior to exhibition.