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Eckhart v. Dep't of Agriculture

November 15, 2010

DERBE ECKHART (D/B/A ALMOST HEAVEN KENNELS, LLC), PETITIONER
v.
DEPARTMENT OF AGRICULTURE, RESPONDENT



The opinion of the court was delivered by: Judge Brobson

Submitted: June 18, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Derbe Eckhart (d/b/a/ Almost Heaven Kennels, LLC) (Petitioner) petitions for review of a January 14, 2010 final order and adjudication of the Secretary of the Pennsylvania Department of Agriculture (Department), affirming two administrative penalties assessed against Petitioner for violations of the Commonwealth Dog Law.*fn1 We affirm.

In January 2009, Petitioner submitted two applications to the Department's Bureau of Dog Law Enforcement (Bureau). One application sought to renew License No. 2520 to operate a boarding kennel, which the Department had revoked in 2008. The other application similarly sought to renew commercial kennel License No. 2521, which the Department also had revoked in 2008.*fn2

(Supplemental Certified Record (Supp. C.R.), Ex. A.)

By Kennel License Refusal Order (the Refusal Order) dated January 30, 2009, the Bureau refused both of Petitioner's applications. In support of its refusal, the Bureau cited eleven violations of regulatory provisions, numerous convictions related to animal cruelty (ranging from 1986 through 1993), and pending charges for cruelty to animals. The Bureau concluded that the regulatory violations and the cruelty to animal convictions and charges indicated that Petitioner had not been rehabilitated.*fn3 The Refusal Order, once effective, required Petitioner to, in part, immediately cease and desist operating a kennel, acquire no additional dogs nor increase the number of dogs by any means, and divest of all dogs over twenty-five (25) within ten (10) days of the effective date of the order. The Refusal Order would become effective ten (10) days following receipt, absent a request for a hearing. The Refusal Order was accompanied by a Notice of Kennel License Refusal Order (the Notice) for posting on the kennel premises.

On February 3, 2009, Petitioner appealed the Bureau's Refusal Order. A hearing officer conducted a hearing on February 19, 2009, and, thereafter, the matter was submitted to the Secretary, along with post-hearing briefs, for disposition.

During the pendency of the appeal from the Refusal Order, the Department issued a Revision to Notice of Operating Under Suspension of Kennel License (the Revised Notice) to Petitioner on February 23, 2009. This Revised Notice, which also required posting, advised Petitioner, in relevant part, that Section 211(c)(2) of the Dog Law, 3 P.S. § 459-211(c)(2), regards as "operating under suspension" operators of kennels whose licenses the Department has revoked or refused and who timely file a request for administrative appeal. (R.R., Vol. II, Item K.) The Revised Notice also directed Petitioner to comply with the provisions of the earlier Notice. (Id.) At the time of receipt of the Revised Notice, Petitioner had a total of 357 dogs at the kennel, with 263 of those dogs over three months of age and ninety-four (94) puppies (i.e., dogs under the age of three (3) months). (R.R., Vol. I, Item 9, pp. 53-54.)

Paragraph 6(I) of the Revised Notice directed Petitioner that he must "immediately cease and desist from operating a kennel, including boarding, buying, exchanging, selling, offering for sale, giving away or in any way transferring dogs." (R.R., Vol. II, Item K.) The Revised Notice, however, provided that paragraph 6(I) would not be enforced while the administrative appeal of Petitioner's 2009 kennel license revocation or refusal is pending. (Id.) Paragraph 6(II) of the Revised Notice prohibited Petitioner from acquiring any additional dogs or increasing the number of dogs in the kennel by any means, including breeding. (Id.) This prohibition did "not apply to an acquisition or increase by birth of puppies from a mother which, at the time of revocation or refusal was on the property, pregnant and owned by the kennel or the kennel owner." (Id.)

On April 23, 2009, a state dog warden inspected Petitioner's kennel after receiving a complaint. (R.R. Vol. I, Item 9, pp. 24-25.) During the April 23, 2009, inspection of Petitioner's kennel, Petitioner admitted that he brought from New York thirty approximately thirty (30) additional dogs without health certificates. (R.R. Vol. I, Item 9, pp. 24-26.)

On May 5, 2009, the Secretary affirmed the Bureau's Refusal Order. (R.R., Vol. II, Item M.) The Secretary's final order provided, in part:

A. [Petitioner] shall immediately comply with all of ...


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