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Burkholder v. Dep't of Agriculture

February 8, 2010


The opinion of the court was delivered by: President Judge Leadbetter

Argued: December 7, 2009



Aaron Burkholder, t/d/b/a Burkholder Farm Kennel (Burkholder) petitions for review of the May 15, 2009 adjudication and final order of the Secretary of the Department of Agriculture that affirmed the decision of the Department's Bureau of Dog Law Enforcement (Bureau) to refuse to approve Burkholder's 2009 kennel license application pursuant to Section 211(a) of the Dog Law (the Law).*fn1 Also before us for disposition is the Bureau's application for summary relief.*fn2

On December 30, 2008, Burkholder sent the Bureau an application for a 2009 commercial kennel class license permitting fifty-one to one hundred dogs of any age during a calendar year. The Bureau received the application and a check for $200 on January 2, 2009. On February 5, 2009, the Bureau sent Burkholder a kennel license refusal order, noting that its personnel had inspected the kennel on nine occasions and found numerous serious violations of the Law and its regulations. Burkholder appealed the refusal order on February 12. The Bureau then sent him a notice of operating under suspension of kennel license and a letter scheduling an administrative hearing for March 24, 2009.

Prior to taking testimony at the hearing, the parties stipulated that Burkholder had entered pleas of guilty in the Court of Common Pleas of Berks County to four violations of Section 207(b) of the Law, 3 P.S. § 459-207(b), failure to maintain the kennel in a sanitary and humane condition in compliance with regulations. Those violations included failure to provide adequate shelters for dogs kept outdoors; failure to keep buildings and grounds of kennels clean and in good repair; failure to maintain indoor and outdoor housing facilities for dogs in a manner to protect them from injury and to contain the dogs; and failure to provide ample lighting by natural or artificial means in indoor housing facilities. 7 Pa. Code §§ 21.24(b), 21.29(c), 21.21(a) and 21.27. Thereafter, the Bureau presented the testimony of the three inspectors who had conducted the nine inspections between May 9 and September 8, 2008. The first inspector, Ms. Donmoyer, testified that she inspected the kennel in response to its inclusion in a feature by Oprah Winfrey dealing with puppy-mills and that she also visited the other Pennsylvania kennels that were featured. In summary, the inspectors testified that their inspections revealed numerous violations of the Law and its regulations.

Burkholder testified that even though he has had a kennel license since 2002, he has been breeding dogs since 1974. In general, he acknowledged that it was his responsibility to be in compliance with the regulations. He stated his belief that there were two things that he had to do following Ms. Donmoyer's initial inspection, but that he could not remember them. He believed that the first thing he did to rectify the unsatisfactory conditions was to repair the wire on the cages. He further testified that he needed help two to three times per week cleaning the kennel, but that he did not always watch the cleaning take place. Finally, he testified that he was unable to correct the water resistance problems and some of the cleaning issues noted in the May 9th inspection before the May 23, 2008 inspection.

On May 15, 2009, the Secretary affirmed the Bureau's decision to refuse to approve Burkholder's application. In so ruling, the Secretary noted that, pursuant to Section 211(a)(3) and (4) of the Law, 3 P.S. § 459-211(a)(3) and (4), he has the power to revoke or refuse to issue a kennel license for any one or more of the following reasons: "the person holding or applying for a license has failed to comply with this act [or] the person holding or applying for a license has failed to comply with any regulation promulgated under this act." In the present case, the Secretary set forth the following specific reasons in support of the refusal:

Over a number of months, the photographic evidence revealed metal strand flooring which was not coated with vinyl and not kept in good repair. Jagged metal edges posed a danger to the dogs. Further, the size of the mesh did not prevent dogs' feet from passing through the openings. It took the kennel many months to make the necessary corrections.

The photographs of this dirty, cobweb ridden, fly-infested and debris-strewn kennel are prima facie evidence of a violation of 7 Pa. Code § 21.29(c), which requires that "[t]he buildings and grounds of kennels shall be maintained, kept clean and in good repair to protect the animal from injury and to facilitate practices required by [the regulations]. Kennels shall have an effective program that controls ingress by insects. . . ."

Secretary's Adjudication at 26.

In addition, the Secretary opined that the parties' stipulation regarding Burkholder's pleas of guilty would have constituted sufficient grounds for the license refusal. He noted, however, that there were additional grounds such as the overwhelming evidence of Burkholder's failure to comply over a number of months with the regulations concerning maintenance. In that regard, the Secretary determined that the Bureau properly assessed and evaluated the six factors to be taken into consideration in determining whether to revoke or to refuse a kennel license: the gravity of the violations, the number of current or past violations, the potential effect of the violation on the health or welfare of the dogs, whether the kennel has been warned previously to correct the violation, whether the violation resulted in a criminal conviction and the length of time that has elapsed between the violations. Section 211(a.1)(1)-(6) of the Law, 3 P.S. § 459-211(a.1)(1)-(6).

Moreover, the Secretary rejected Burkholder's contention that, due to the lack of any written standard, he had no notice as to the difference between a dog warden issuing him a warning as opposed to a citation. In that regard, the Secretary noted:

Whether Burkholder received a warning or a citation, he was unquestionably on notice that he was not in compliance with the regulations. The Secretary firmly believes that it is the responsibility of the kennel owner/operator to understand the standards for maintaining a proper kennel and to comply with those standards. As such, a kennel operator/owner ...

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