Complainant proved by a preponderance of the evidence that on December2, 2000, Respondent Diana Cziraky exhibited animals during a period when her Animal Welfare Act license was suspended, in willful violation of section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)). if( bInlineFloats ) { document.write( ' ' ); document.write( WPFootnote3 ); document.write( '
Close ' ); document.write( ' ' ); } Specifically, the record establishes that pursuant to section 19(a) of the Animal Welfare Act (7U.S.C. § 2149(a)), the Administrator, Animal and Plant Health Inspection Service, temporarily suspended Respondent Diana Cziraky’s Animal Welfare Act license for a 10-day period beginning on November24, 2000 (CX64, CX67). On December2, 2000, during the period of suspension, Respondent Diana Cziraky exhibited animals (Tr.166-67, 169, 177-81, 183-84, 190-94, 305, 629-32; CX1, CX49, 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 (Tr.945-47).

Respondent Diana Cziraky’s reliance on erroneous advice is not a defense to her violation of section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)). Moreover, Respondent Diana Cziraky’s reliance on erroneous advice does not negate the willfulness of Respondent Diana Cziraky’s violation of section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)). An action is willful under the Administrative Procedure Act (5 U.S.C. § 558(c)) if a prohibited act is done intentionally, irrespective of evil intent or reliance on erroneous advice, or done with careless disregard of statutory requirements. if( bInlineFloats ) { document.write( ' ' ); document.write( WPFootnote4 ); document.write( '
Close ' ); document.write( ' ' ); } The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word “willfulness,” as that word is used in 5U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States , 930F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. United States Dep’t of Agric. , 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States , 350 F.2d 67, 78-79 (10th Cir. 1965). Appeal in this proceeding does not lie either to the United States Court of Appeals for the Fourth Circuit or to the United States Court of Appeals for the Tenth Circuit. However, even under this more stringent definition, Respondent Diana Cziraky’s violation of section 2.10(c) of the Regulations (9C.F.R. § 2.10(c)) would still be found willful.

Section2.131(c)(2) of the Regulations (9C.F.R. § 2.131(c)(2)) requires that a responsible, knowledgeable, and readily identifiable employee or attendant must be present during periods of public contact with animals, and section 2.131(c)(3) of the Regulations (9C.F.R. § 2.131(c)(3)) requires that, during public exhibition, dangerous animals must be under the direct control and supervision of a knowledgeable and experienced animal handler. Complainant failed to prove by a preponderance of the evidence that Respondents violated section 2.131(c)(2) and (c)(3) of the Regulations (9C.F.R. § 2.131(c)(2), (c)(3)). if( bInlineFloats ) { document.write( ' ' ); document.write( WPFootnote5 ); document.write( '
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COMPLAINANT’S APPEAL PETITION

Complainant raises 12 issues in Complainant’s Petition for Appeal of Decision and Order [hereinafter Complainant’s Appeal Petition]. First, Complainant asserts the record does not support the Chief ALJ’s statement that a person becomes a trainer by paying $2,500 and entering into an agreement with The Siberian Tiger Foundation (Complainant’s Appeal Pet. at 5). The Chief ALJ states “[a] person becomes a trainer by paying $2,500 and entering into an agreement with the Foundation” (Initial Decision and Order at 2). I agree with Complainant that the record does not support the Chief ALJ’s statement. Instead, the record establishes that a person who pays $2,500 and enters into an agreement with The Siberian Tiger Foundation is referred to as a “trainee” and the purpose of the agreement is to train the trainee “in the area of exotic cats and the ownership thereof” (CX6). Further, the record establishes that a trainee must receive a minimum of 500hours of training before losing the status of a trainee (Tr.988-89). Therefore, I do not adopt the Chief ALJ’s statement that a person becomes a trainer by paying $2,500 and entering into an agreement with The Siberian Tiger Foundation. Instead, I find that a person becomes a trainee by paying $2,500 and entering into an agreement with The Siberian Tiger Foundation.

Second, Complainant contends the record does not support the Chief ALJ’s statement that after 1,000hours a trainee is considered fully trained in animal behavior and control. Complainant asserts the Chief ALJ’s statement appears to accept Respondents’ view of what “fully trained” means (Complainant’s Appeal Pet. at 5). The Chief ALJ states:

As part of the “hands on” phase of their training, trainees work with handlers who accompany persons entering the animal compound to have a “close encounter” with the cats. After five hundred hours of training[,] the trainee receives a certificate and after a thousand hours the trainee is considered fully trained in animal behavior and control.

Initial Decision and Order at 3.

The Chief ALJ does not state that he found Respondents’ trainees fully trained in animal behavior and control after 1,000hours of training as Complainant contends. Instead, the Chief ALJ uses the passive voice of the verb “to consider” and does not indicate who considers Respondents’ trainees fully trained in animal behavior and control after 1,000 hours of training. Based on the record, which establishes that Respondents generally consider their trainees fully trained after 1,000hours of training (Tr.720-21, 988-89) and my reading of the Initial Decision and Order, I infer the Chief ALJ found that Respondents consider their trainees fully trained in animal behavior and control after 1,000hours of training. I restate the Chief ALJ’s Initial Decision and Order by eliminating the passive voice of the verb “to consider” and stating that generally Respondents consider a trainee fully trained in animal behavior and control after 1,000hours of training.

Third, Complainant contends the Chief ALJ’s description of Respondents’ close-encounter method of exhibition is error. The Chief ALJ states, as follows:

Large groups are broken down into smaller groups and each group is accompanied by two to four handlers. The group is then stationed in a “safe area” which is beyond the length of the chains attached to each cat. Those persons in the group desiring a “close encounter” are taken one at a time by the handlers to the chained lion or tiger and allowed to approach and touch or pet the animals from behind. Meanwhile, to maintain control over the animal, one handler, a “spotter,” stands near the animal’s head with his/her hand either poised above the head or holding the animal’s collar. The spotter is to keep his/her “eye on what is going on.” The other handler is stationed on the animal’s other side and stands on the chain to keep the chain taut during the encounter.

Initial Decision and Order at 4.

The record does not support the Chief ALJ’s statement that each group of people was accompanied by two to four handlers. Respondent Diana Cziraky admitted that on some occasions Respondents allowed members of the public to have direct contact with lions and tigers with only one handler present (Tr.990).

The record does not support the Chief ALJ’s statement that groups were stationed in “safe areas” which is beyond the length of the control chain attached to each cat. On October21, 2000, Jessica Lee was a member of the public observing another member of the public, Ethan Newman, pet a tiger named Imara. When Imara began biting Ethan Newman, Jessica Lee stepped back, whereupon Joseph, a male lion, knocked Jessica Lee over, pounced on her, bit her, and released her only after his eyes were sprayed with vinegar (Tr.594). An incident such as the October21, 2000, incident involving the injury to Jessica Lee establishes that Respondents did not always place groups in safe areas. Further, on February28, 2000, Respondents allowed Nikita, a male tiger, to walk around freely during a close encounter (CX84-CX90, CX94-CX96). Terry Aston, one of Respondents’ trainees, testified that Nikita was allowed to walk around freely on several occasions, as follows:

[BY MS. CARROLL:]

Q.And how long did you [train]?

[BY MS. ASTON:]

A.March to June was my last. I had moved, so I didn’t go back there. In my training time that I was there, supposedly, my volunteering time as I call it, Nikita walked around freely quite a bit. I mean, we could have a crowd in there of 20 people and if Nikita decided to come of his den, he did and you just herd the people up and we would stand in front of him and Nikita would walk around.

One day in May, they had put up the swimming pool. They have a swimming pool for the animals, but we had to put a big caging around it because Imara, the youngest one, she has a tendency to want to play in there and then use it as a bathroom.

And two of the ladies that were there that day were so scared when Nikita walked out, they went in that enclosure closed the gate and locked themselves in there.

Q.With Imara?

A.No, Imara wasn’t in there. Nobody was in there at that time because it’s very intimidating to some people to have a cat that large just walking free.

Tr.373-74.

I find that during the close encounters in which Respondents allowed Nikita to roam freely, no area could be considered a “safe area” which is beyond the length of the control chain attached to each cat.

The record does not support the Chief ALJ’s statement that close encounters were limited to touching or petting the animals from behind. The evidence reveals that members of the public were often face-to-face with Respondents’ animals (CX1, CX59-CX61, CX80-CX88).

The record does not support the Chief ALJ’s statement that during close encounters the control chain attached to each animal was kept taut by a handler. On a number of occasions, Respondents failed to keep taut the control chain attached to the animal with which a member of the public was having a close encounter or there was no control chain attached to the animal (CX13, CX93-CX 97).

Therefore, I do not adopt the Chief ALJ’s description of Respondents’ close-encounter method of exhibition, and I substantially modify the Chief ALJ’s description of Respondents’ close-encounter method of exhibition.

Fourth, Complainant asserts the Chief ALJ erroneously indicates Respondents had an accessible CO2 fire extinguisher and an available tranquilizer gun on the dates alleged in the Complaint (Complainant’s Appeal Pet. at 8). The Chief ALJ states: “A CO2 fire extinguisher is also accessible. It provides control of the animal by temporarily depriving it of oxygen. A tranquilizer gun is available if necessary” (Initial Decision and Order at5).

I agree with Complainant’s contention that the record establishes that Respondents did not acquire a tranquilizer gun until February or March of 2001 (Tr.938), well after the violations alleged in the Complaint. Further, the record does not establish that a CO2 fire extinguisher was accessible during the entire period covered in the Complaint (Tr.1035). Therefore, I do not adopt the Chief ALJ’s statement that “[a] CO2 fire extinguisher is ...accessible” and “[a] tranquilizer gun is available if necessary” (Initial Decision and Order at5). Instead, I find Respondents made CO2 fire extinguishers more accessible to handlers and acquired a tranquilizer gun after Complainant filed the Complaint.

Fifth, Complainant asserts the Chief ALJ erroneously stated that Respondent Diana Cziraky keeps a daily record of each animal’s behavior and discusses each animal’s behavior with the trainers (Complainant’s Appeal Pet. at 8-9). The Chief ALJ states Respondent Diana Cziraky “keeps a daily record of each animal’s behavior and discusses their behavior with the trainers” (Initial Decision and Order at 5).

The record does not support the Chief ALJ’s statement that Respondent Diana Cziraky keeps a daily record of each animal’s behavior and discusses each animal’s behavior with the trainers. Complainant introduced part of a notebook in which one of Respondents’ students recorded the behavior of one of Respondents’ tigers. The notebook contains three consecutive entries: one for October21, 2000; another for October29, 2000; and the last for October30, 2000. Further, Respondent Diana Cziraky testified that the students keep the notebooks and bring to her attention any issues of major concern. (CX46; Tr. 993-94). Therefore, I do not adopt the Chief ALJ’s statement that Respondent Diana Cziraky keeps a daily record of each animal’s behavior and discusses each animal’s behavior with the trainers.

Sixth, Complainant contends the Chief ALJ erroneously suggests that Complainant’s legal theory is that Respondents were in compliance with section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) until people were bitten by Respondents’ animals (Complainant’s Appeal Pet. at 9-10).

The Chief ALJ states Complainant’s “rationale for alleging a violation in this proceeding is that ...the Foundation was in compliance with section 2.131(b)(1) until people were bitten” (Initial Decision and Order at 19). However, the Chief ALJ also indicates Complainant’s position is that Respondents’ failures to handle their animals so there was 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, constituted violations of section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) (Initial Decision and Order at 9, 15, 17).

Complainant’s filings reveal that Complainant’s rationale for alleging Respondents violated section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) is that during public exhibition, Respondents failed to handle their animals so there was 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 record clearly establishes that Complainant views the bites and other injuries sustained by people who had close encounters with Respondents’ animals as the consequence of Respondents’ violations of the Regulations. I find nothing in Complainant’s filings indicating that Complainant takes the position that Respondents’ animals’ bites constitute violations of the Regulations, and I do not adopt the Chief ALJ’s statement that Complainant’s rationale for alleging a violation in this proceeding is that Respondents were in compliance with section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)) until people were bitten.

Seventh, Complainant contends the Chief ALJ erroneously assumed that Respondents’ “premium customers” who paid $2,500 for exposure to Respondents’ animals were trainers and not members of the public. Complainant contends the record establishes that these “premium customers” were members of the “public” and “the general viewing public” as those terms are used in section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)). (Complainant’s Appeal Pet. at 10-13).

I agree with Complainant that the record does not establish that persons who paid $2,500 for exposure to Respondents’ animals were trainers. Instead, the record establishes that persons who paid $2,500 and entered into training agreements with The Siberian Tiger Foundation were Respondents’ “trainees” (CX6). However, I do not agree with Complainant’s contention that Respondents’ trainees were members of “the public” or members of “the general viewing public.” The Regulations do not define the term “the public” or the term “the general viewing public” as used in section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)), and Complainant did not prove by a preponderance of the evidence that Respondents’ trainees were members of “the public” or members of “the general viewing public” as those terms are used in section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)). if( bInlineFloats ) { document.write( ' ' ); document.write( WPFootnote6 ); document.write( '
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Eighth, Complainant contends the Chief ALJ’s suggestion that, under the Regulations, all dealers, exhibitors, intermediate handlers, and carriers and their bonafide employees are members of “the public” and “the general viewing public” under section 2.131(b)(1) of the Regulations (9C.F.R. § 2.131(b)(1)), is error (Complainant’s Appeal Pet. at 13-14).