CX 53.

Ellen Magid, a veterinary medical officer and an Animal and Plant Health Inspection Service supervisory animal care specialist, testified that she had authorized Mr.LaLonde’s investigation and that the explanation accompanying the suspension notice (CX53) was based on a settlement involving another exhibitor. She said the explanation was not intended to be a requirement but only “something to give Ms.Cziraky to help her understand the problems that we were facing and to give her some guidance on how to correct them.” (Tr.660-62, 667, 683-84).

Dr. Peter Kirsten, a United States Department of Agriculture veterinary medical officer, and Richard Porter, a United States Department of Agriculture investigator, went undercover to Respondents’ facility on December2, 2000, during the period when Respondent Diana Cziraky’s Animal Welfare Act license was suspended. Dr. Kirsten and Richard Porter testified that they attended a close encounter with Respondents’ animals on December2, 2000. (Tr. 164-67, 627-30). Dr. Kirsten took photographs and Richard Porter took a video of Respondents’ exhibition of animals that show no distance or barriers between members of the general viewing public and Respondents’ animals and both Dr. Kirsten and Richard Porter each testified without contradiction that there was no distance or barriers between members of the general viewing public and Respondents’ animals (Tr.169, 177-81, 183-84, 190-94, 305, 630-32; CX1, CX54-CX62).

Respondent Diana Cziraky admits that she received the notice of suspension of her Animal Welfare Act license and exhibited animals during the period of suspension, but she states that she exhibited animals during the period of suspension only after being advised by counsel that the notice of suspension was not enforceable, as follows:

[BY MR. ROGOVIN:]

Q.I would like to take you back to your suspension by the USDA.

[BY MS. CZIRAKY:]

A.Okay.

Q.Did you in fact exhibit while under suspension from the USDA?

A.Yes, we did.

Q.Why did you do that?

A.Well, we didn’t at first. It happened on a Friday and I had to wait until I talked to an attorney and the one I talked to is in Akron. His name is Tony -- I have trouble saying his name -- T-S-A-R-O-U or something like that. But the reason I wanted to speak to Tony is that he specializes in laws that pertain to animals and I wasn’t sure what to do or what was going on, so come Monday, we were turning people away. And once people start traveling, we can’t stop. And people come from hours and hours away. So, we were handing out extra gift certificates to use at a later date to compensate for their inconvenience.

I did finally reach Tony on the phone and I talked to him –

Q.What day did you reach him?

A.It would have been on Monday.

Q.The first Monday of your suspension?

A.Yes.

Q.Okay.

A.So, I talked to Tony and I had him on the speaker phone and he said read the letter to me, so I did and he specifically asked me is this paper signed by a judge. I said, no, it is not. Then he asked for it to be faxed over to his office.

Q.Okay.

A.Then I handed it to Jennifer and –

Q.Jennifer Adams?

A.Yes, because she was in the room, so she -- we have two lines, so she faxed it off to his office. He told us to go ahead and continue exhibiting because it was not signed by a judge and it was okay for us to keep running our business.

Q.If he had told you that it was an enforceable order even though it was not signed by a judge, would you have exhibited?

....

THE WITNESS: If he had told us that we should listen to the letter, we would have listened to the letter.

BY MR. ROGOVIN:

Q.And you would have not exhibited?

A.Of course not.

Tr.945-47.

When Respondent Diana Cziraky failed to comply with the November2000 suspension order, the Animal and Plant Health Inspection Service issued another suspension order on December5, 2000, suspending Respondent Diana Cziraky’s Animal Welfare Act license for 11 days (Tr.667, 945-49; CX33).

At the hearing, Complainant presented a series of witnesses for the purposes of showing the dangerous nature of lions and tigers and showing Respondents exhibited lions and tigers without providing the safeguards to the animals and the public required by the Regulations.

Dr. Kirsten has had experience inspecting Animal Welfare Act licensees exhibiting exotic animals. He said that other licensed exhibitors providing close encounters evaluate both the animals and the people for safety and said he was familiar with incidents where animals have had to be “traumatized” after attacks on their handlers, citing one instance where four bears were shot and another where a tiger was sprayed with pepper. Dr.Kirsten testified that tigers are “ambushers” and “opportunistic predators” which would view a small person, a person with an infirmity, or an elderly person as an “opportunity” and that they attack by biting their prey. He visited The Siberian Tiger Foundation on December2, 2000, and expressed the opinion that encounter groups of 10 or 12 persons are too large to supervise, that there did not appear to be any criteria for selecting persons for encounters, that the safe area was not clearly marked, that the chains allowed the animals too much movement, and that a man standing on a tiger’s chain could not have controlled a 400- or 500-pound tiger if the tiger decided to move. (Tr.166-71, 173-74, 176-78, 181-84, 344).

Dan Hunt, assistant director of the Living Collection for the Columbus (Ohio) Zoo, has had over 20years’ experience handling “large cats,” which includes lions and tigers. The Columbus Zoo, which has an Animal Welfare Act license, uses pepper spray to control the animals. He said, because of their genetic makeup, tigers are programmed predators which have killed thousands of persons in India and that even hand-raising an animal does not “unwire that predisposition.” Dan Hunt said their behavior is unpredictable, their disposition can change in a “split second,” and direct contact with the animals is “inherently dangerous.” A tiger, he said, uses a sweeping motion with its paw to knock small game off balance and when a tiger similarly curves its paw around a human, the tiger thinks it “owns that human being.” Dan Hunt said, under some circumstances, the Columbus Zoo will allow persons to pet tiger cubs up to the age of 6months but even that can constitute a risk. Columbus Zoo board members and their guests, including children, have also been allowed to have encounters with animals. Dan Hunt said that he has been attacked by a tiger at the Columbus Zoo and that a woman was injured by a tiger. (Tr.426, 437-39, 457-58, 462, 472, 483-84, 501, 506-08, 514-15, 917-19).

Baron Julius von Uhl, an exhibitor licensed under the Animal Welfare Act, has worked in circuses and shows as a trainer of lions, tigers, and leopards since 1954. He said that tigers are too dangerous to allow people to interact with them. He has seen a trainer killed and knows others who “got chewed up” and even bought the cats that killed their trainer as publicity for his show. Julius von Uhl said that a cat putting its paw around a person’s leg is demonstrating its dominance and places the person at the “mercy of the animal.” Julius von Uhl said a person standing on a lion’s chain cannot control the animal and the chain could wrap around and break the person’s leg if the animal moved. He uses a whip and stick to control the animals with which he interacts but said a trainer has to be dominant and have the respect of the animals. He said it takes 3years to become a trainer. (Tr.392, 400-10, 413-15).

Alicia Hall, a zoologist called by Respondents as a witness, has studied animal behavior. She said tigers and lions are dangerous but curious animals with short attention spans. While they are predators, she said, socialized tigers do not regard humans as prey. As for the risks involved with the encounters at The Siberian Tiger Foundation, Ms.Hall testified, as follows:

[BY MR.ROGOVIN:]

Q.Based on your experience and observations at the Siberian Tiger Foundation, how would you evaluate the risks of people having close encounters with these tigers?

....

[BY MS. HALL:]

THE WITNESS: Inherently, any time any human is around a larger order primate -- or larger order animal, there is a risk. By nature these animals are predators, therefore, they are equipped with equipment to do damage to prey. So, there is an inherent risk.

The question is specifically are risks addressed? It’s a really hard question to answer. I think it’s all a matter of degrees. Like I said, I was a dog groomer. There is not a dog groomer in existence that hasn’t been bit every single day they go to work. You go to work, you get bit. That’s just the rule.

....

THE WITNESS: There is a risk involved and it’s just inherent. It’s not that the risk is any greater because these animals [lions and tigers] are vicious or violent. It’s just they have bigger equipment. So, an accidental touch or an accident [sic] move of the head can inflict a larger wound than an accidental movement of a dog’s head, but I don’t think in a controlled environment like [The Siberian Tiger Foundation’s environment], that the risk of intentional damage or intentional infliction of harm is any greater at all. I don’t think there is a significant risk.

Tr.265-66.

Other witnesses were presented to testify that, because of their interest in or love of tigers and lions, they were willing to assume the risk of being injured just to have the opportunity for an encounter with these animals.

Beth Wismar, for example, a faculty member of the College of Medicine, Ohio State University, with a doctorate in anatomy, has been a volunteer teacher at the Columbus Zoo for 14years. She testified that when she visited The Siberian Tiger Foundation she was aware of the danger when she petted the animals. (Tr.801, 805, 810-11, 813).

Marie Collart, a registered nurse, said that she visited The Siberian Tiger Foundation because of her “life-long interest in the big cats.” She said she was aware of the danger and risk of injury. Her comment on her willingness to have encounters with lions and tigers was that “life has risks.” (Tr.752, 780).

Jane Zickau, a vice president of administrative services, Central Ohio Breathing Association, said she visited The Siberian Tiger Foundation because “I am [a] cat lover and an animal lover” and she knew there was a risk and she accepted the risk. Asked if she would return to The Siberian Tiger Foundation despite the incidents that occurred there, she responded: “As soon as this is over, I will go back. Absolutely.” (Tr.784, 799-800).

Anne Taylor, a municipal court judge and a member of the board of the Columbus Zoo, testified that she is an animal lover and photographer. She said that she has had encounters with grizzly bears and with tigers in China, as well as at The Siberian Tiger Foundation, and that “I think there ought to be a place in the world for people to have this personal, unique encounter with animals, particularly the big cats, which I think are probably the most beautiful animal.” She added that leopards have been allowed to attend board meetings at the Columbus Zoo, that a python was allowed to wrap itself around her neck, and that, as part of the Columbus Zoo’s program to allow board members and contributors to the Columbus Zoo to have “behind the scenes” tours and encounters, Judge Taylor’s niece and nephew, 6 and 15years of age, were allowed by the Columbus Zoo to have an encounter with a Siberian tiger weighing between 300 and 400pounds. (Tr.900-01, 903-05, 917-19).

Since Complainant filed the Complaint, Respondents have improved their safety practices. These improvements include shortening the control chains on the animals, using more handlers during close encounters, making encounter groups smaller, not allowing children under the age of 16 to have close encounters, and acquiring a tranquilizer gun. (Tr.938, 1035).

DISCUSSION

Complainant contends Respondents repeatedly violated the handling provisions of section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) in a manner that placed the public and the exhibited animals at risk of harm.

Respondents argue, inter alia, that there was no violation of the Animal Welfare Act as it relates to the public. Respondents contend that section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) purporting to deal with public safety exceeds the scope of the Animal Welfare Act because the fundamental purpose of the Animal Welfare Act is to insure the humane treatment of animals and that “there is nothing in the Act which even suggests the purpose of protecting the public against animals.” (Respondents’ Post-Hearing Brief at 9). Respondents argue “Congress did not authorize the Secretary to become the general guardian of public safety where animals are concerned. It is not the function of [an administrative proceeding] to rectify each and every perceived threat or actual injury to the public simply because a holder of a license under the Act becomes the subject of publicity and Complainant suffers some embarrassment. There are local courts, laws and remedies for this.” (Respondents’ Post-Hearing Brief at 12-13). As Respondents contend, the historic police power of a state or municipality to regulate animals has not been supplanted by the Animal Welfare Act. DeHart v. Town of Austin , 39 F.3d 718 (7th Cir. 1994).

Complainant counters with the argument that Congress intended that animals be exhibited in a manner that is safe for both animals and the public because the Animal Welfare Act refers to the public concern for animals and that, before there can be an exhibition, animals must be exposed to the public. Complainant further argues the lack of adequate safeguards when animals are exhibited can lead to injuries to the public which, in turn, can result in the animals being subjected to unnecessary discomfort or harm through such means as being hit with a stick, sprayed with a CO2 fire extinguisher, or even being killed. (Complainant’s Post-Hearing Brief at2-5). Respondents argue that this discomfort, which Respondents contend is momentary, is a necessary disciplinary means of controlling the animal (Respondents’ Post-Hearing Brief at2).

The purpose of the Animal Welfare Act, as it relates to exhibited animals, is to insure that they are provided humane care and treatment (7U.S.C. § 2131). The Secretary of Agriculture is specifically authorized to promulgate regulations to govern the humane handling of animals by exhibitors (7U.S.C. §§ 2143(a), 2151). The Regulations deal almost exclusively with the care and treatment of animals. However, section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) also provides that exhibited animals must be handled in a manner that assures not only their safety but also the safety of the public.

Animals that attack or harm members of the public are at risk of being harmed. The record establishes that effective methods of extricating people from the grip of an animal can cause the animal harm and can cause the animal’s death (Tr. 406-07, 409-10, 458-59, 671-72). Even after an animal attacks a person, the animal is at risk of being harmed for revenge or for public safety reasons (Tr.520-21, 671). Respondents often sprayed their animals with vinegar or struck their animals when the animals bit members of the public. Occasionally, Respondents sprayed their animals with CO2 fire extinguishers to stop an attack. (Tr.27, 937-38, 992-93). Respondent Diana Cziraky testified that her first tiger that attacked a small girl was confiscated by the health department and decapitated to test it for rabies (Tr.926-27, 949). Thus, section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)), which requires that, during public exhibition, animals be handled so there is minimal risk of harm to the public, with sufficient distance or barriers or distance and barriers between the animals and the general viewing public so as to assure the safety of the public, is directly related to the humane care and treatment of animals and within the authority granted to the Secretary of Agriculture under the Animal Welfare Act.

Complainant contends the incidents where members of the public were injured were the direct result of Respondents’ failures to handle their animals as required by section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)). Specifically, Complainant alleges Respondents’ following practices led to the incidents where persons were injured and were therefore violations: (a)allowing small children to have direct contact with adult lions and tigers without having adequate barriers or controls; (b)allowing persons to be placed in the position of appearing as prey to the animals; (c)allowing animals to be exhibited to the public without having adequately trained and experienced personnel to control the animals; (d)using chains to tether the animals that were inadequate to prevent the animals from injuring people; (e)using ineffective measures, such as hitting the animals or spraying the animals with vinegar to control the animals; (f)allowing encounter groups that were too large to supervise; and (g)failing to provide a safe distance between the animals and the public (Complainant’s Post-Hearing Brief at 12-31).

Respondents argue the Secretary of Agriculture has not issued standards covering the practices used by Respondents in handling and exhibiting animals. Respondents state the Animal and Plant Health Inspection Service was aware of Respondents’ practices through its inspections of Respondents’ facility and had therefore, in effect, approved them. Respondents contend, therefore, that, in the absence of standards, the practices that they followed must be considered adequate. (Respondents’ Post-Hearing Brief at 1-7).

“In order to satisfy constitutional due process requirements, regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit.” Freeman United Coal Mining Co. v. Federal Mine Safety and Health Review Comm’n , 108 F.3d 358, 362 (D.C. Cir. 1997); “Traditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule.” Satellite Broadcasting Co. v. FCC , 824 F.2d 1, 3 (D.C. Cir. 1987). Section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) specifically requires Respondents to handle animals during public exhibition so there is minimal risk of harm to the animals and the public with sufficient distance or barriers or distance and barriers between the animals and the general viewing public so as to assure the safety of the animals and the public.

The evidence presented by Complainant overwhelmingly establishes that lions and tigers are instinctive and dangerous predators. They can be trained but not tamed. Even when trained, these powerful animals can inflict serious injuries on people as demonstrated not only by the incidents at Respondents’ facility, but also by the incidents referred to at the Columbus Zoo, the incidents involving handlers referred to by Dr.Kirsten, and the incidents involving injuries to trainers referred to by Baron Julius vonUhl.

Respondents’ lions and tigers are simply too large, too strong, too quick, and too unpredictable for a person (or persons) to restrain the animal or for a member of the public in contact with one of the lions or tigers to have the time to move to safety. Respondents’ animals had a history of injuring members of the public and a history of being hit and sprayed with vinegar in order to stop their attacks on members of the public. Nonetheless, Respondents failed to have any distance or barriers between their animals and the general viewing public. I conclude section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) provides Respondents with adequate notice of the manner in which Respondents’ animals are required to be handled during public exhibition. Given the size, quickness, strength, and unpredictability of Respondents’ animals, Respondents should have known that some distance or barrier between Respondents’ animals and the general viewing public is necessary so as to assure the safety of Respondents’ animals and the public.

The incidents that occurred at Respondents’ facility during the period February28, 2000, through December2, 2000, show that Respondents were not in compliance with the handling requirements of section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)). Therefore, by failing to handle animals during public exhibitions so there was minimal risk of harm to the animals and the public and by failing to maintain sufficient distance or barriers or distance and barriers between the animals and the general viewing public so as to assure the safety of the animals and the public, Respondents willfully violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

Section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)) prohibits any person whose Animal Welfare Act license has been suspended from exhibiting any animal during the period of suspension. Respondents do not argue that section 2.10(c) of the Regulations (9C.F.R. §2.10(c)) fails to provide them with adequate notice of the conduct which is prohibited. I conclude that section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)) provides exhibitors with adequate notice of the conduct which is prohibited.