Diana Cziraky McCourt Siberian Tiger Foundation

Siberian Tiger Training Scheme

It took the combined efforts of USDA, undercover agents and concerned citizens seven years to shut down Diana McCourt (aka Cziraky) and her Siberian Tiger Foundation. It wasn’t until her landlords, Donnalynn and Christian Laver were able to evict her from the property that Knox County was able to seize the six cats who had been used for years as props in Diana McCourt’s “tiger training” scheme.

Even though McCourt lost her USDA license to operate the tiger-tamer camp in 2000, and permanently in 2006, she still continued to charge people to come into her back yard in Gambier, OH and pet the adult lions and tigers. The cats would often be chained down so that people could touch them or have their photos made with the cats. To make the cats more pliable McCourt had their teeth and claws removed. Despite the abusive violations to their bodies and mobility, the USDA investigation included eight allegations of attacks on visitors in an 8 month period.

In May of 2007 Diana McCourt emailed Carole Baskin asking if she could move her operation to Tampa and bring her cats to Big Cat Rescue. Our response was that her cats were welcome here but her brand of animal abuse was not. By August McCourt had been evicted and Knox County was awarded custody of the four tigers and two lions. HSUS contacted Big Cat Rescue and asked if we could take the cats, but six more big cats increases our annual budget by $45,000.00.

When Sarabi, our lioness died, her half acre enclosure was opened up so that Nikita our only other lioness could have the run of both half acre enclosures. This large enclosure has an open roof and is only suitable for lions because they don’t climb, or very old, declawed tigers, who would be unable to climb. Taking on two lions, age 9 and 13, who have a 20 year life expectancy means a cost of $15,000.00 annually and $150,000.00 in the long run. Lions often end up in canned hunts, especially males who are coveted as wall trophies, so we felt certain our donors would help us rescue these two cats. Our board convened and agreed that the lions would be rescued as soon as we could make travel arrangements for them.

Calling with the good news, that at least the lions would be spared, we were told by the landlord, who has been caring for the cats since evicting Diana McCourt, that the male tiger, Nikita, would be heartbroken that his best friend in the world, Joseph the lion, would be leaving. As the conversation unfolded it appears that for the last 13 years, two tigers and two lions have shared a cage. (Joseph only coming along in the past 9 yrs) Instead of being elated for the lions, we now felt sick that they would be separated from the only pride (albeit tigers) they had ever known. And thinking about how they would feel, of course, led to thinking about how the tigers left behind would feel.

We appealed to our supporters, asking if they would be willing to help us rescue all four cats who have lived together and the response was an overwhelming, “YES!”

On Oct. 19th Big Cat Rescue‘s President Jamie Veronica, VP Cathy Neumann, Operations Manager Scott Lope and Veterinarian Dr. Liz Wynn, DVM flew to Columbus, OH to rendezvous with the International Fund for Animal Welfare (IFAW) staff and a driver and vet tech from the Animal Sanctuary of the United States (ASUS) at the Columbus Zoo at 6 am on the morning of the 20th. From there the entourage drove an hour to the Gambier, OH facility and met with the property owner and the Knox County Animal Control Officer, Rich Reed who had been granted possession of the six cats.

Within just a few hours all of the cats were safely loaded and on the way to Florida where they arrived at 6 am the morning of the 21st. While the weary drivers slept, the Big Cat Rescue team unloaded Nikita, Simba, Sasha and Joseph into their new enclosure, which is a little more than half an acre of lakeside living with high grass, cave like dens and hills from which they can survey their new kingdom.

We let you know that the rescue would cost us $34,000.00* and 294 of you responded. As of 11/16/07 $29,435.00 has been raised to save these four cats. The International Fund for Animal Welfare (IFAW) agreed to help rescue the last two cats and IFAW paid to transport all six cats to their final destinations. That saved us $4,000.00! We are now only $565.00 short of what this rescue will cost us. Thank you everyone who has helped so far! If you haven’t helped yet, keep in mind that your donations are tax deductible and that these cats rely entirely on your generosity.

Will you help provide for Joseph, Sasha, Nikita and Simba?

At our gmartineau@dispatch.com you can make a donation. Click to enable us to provide the first year of care for these wonderful lions and tigers.

See slideshow of photos taken 9/26/07 in Ohio: Siberian Tiger Foundation

6 big cats taken from Ohio owner

Donna J. Miller’s Animals in the News

Monday, November 12, 2007 Donna MillerPlain Dealer Reporter

Six fewer big cats are languishing in cages in Ohio. Two lions and four tigers were whisked away Oct. 19 from Knox County to plush sanctuaries in San Antonio and Tampa.

Too bad the cats were irreparably harmed before they left. Their former owner, Diana McCourt, had their claws and most of their teeth pulled out so she could make money letting people pet and pose with the cats for pictures. The majestic predators can no longer clamber up a tree or shred a carcass, but they will get better care for the rest of their lives. You can see video and more photographs at bigcatrescue.org.

Ohio has plenty of laws that limit keeping native wildlife but virtually none that protect exotic animals and the people they can maim and kill. House Bill 45 would require exotic-animal owners to have sturdy enclosures, fences, warning signs, frequent inspections and liability insurance. The bill stalled soon after it was introduced by Rep. L. George Distel, a Democrat from Conneaut. He wrote the legislation after a 36-year-old Ashtabula County woman was mauled by a 500-pound black bear that escaped from its pen in May 2006.

Since 1993, there have been 44 reported exotic-animal escapes, prompting most cities to outlaw keeping such creatures. Still, about 120 big cats live in Ohio, according to U.S. Department of Agriculture records of owners who exhibit, breed or sell them. Owners who keep exotic animals as “pets” do not need to register and submit to health and safety inspections. That’s the way it will stay without passage of HB 45. At least 25 states prohibit keeping big cats as pets.

“Ohio should join them,” said Beth Preiss of the Humane Society of the United States. “Wild animals belong in the wild.”

Fighting dogs:

The Humane Society of the United States is offering $5,000 rewards for information that collars dogfighters. The national group with deep pockets also has a political arm lobbying hard to increase penalties for animal fighting, which sometimes also involves drugs and weapons trafficking, prostitution and money laundering. The society says that nationwide, more than 250,000 dogs are forced into organized or street-level fights each year to entertain about 140,000 people. Report dog fighting to local police and at humanesociety.org (click on “Campaigns”).

Actress Emily Deschanel of the Fox television drama “Bones” and U.S. Rep. Betty Sutton, a Copley Township Democrat, are working with the Humane Society Legislative Fund to garner support for the Dog Fighting Prohibition Act, Bill 3219. The legislation toughens federal dogfighting penalties and makes it illegal to possess fighting dogs or attend the fights. To help raise money for pro-animal lobbyists and politicians, go to partyanimals.fund.org.

Ohio already outlaws fighting, watching and possessing, while it is not a crime to be a spectator in Georgia and Hawaii. Dogfighting is a felony everywhere but Idaho and Wyoming. New Jersey has the toughest laws in the country – fighting, possessing and watching are third-degree felonies punishable by three to five years in prison and a $15,000 fine. Ohio’s penalties, up to 18 months in prison and $5,000 fines, are ranked the sixth-toughest.

Huge vet bill:

Throw a party! Friends and local businesses are helping Tom Hug, 49, of Vermilion and Dudley, an 18-month-old golden retriever who racked up a $13,000 medical bill after he bolted into the street and was struck Sept. 23 by a car and a motorcycle. He is recovering with four plates in his pelvis. The benefit party begins at 6 p.m. Friday at German’s Villa, 3330 Liberty Ave., Vermilion. Tickets are $20. Donations can be made to the Dinner for Dudley account at any KeyBank branch. The Humane Society of Erie County will get part of the proceeds. Hug said that if he had to co-plan the event again, he would select a different menu. Posters read, “Dinner for Dudley & his Furry Friends. A STEAK FRY.”

Saving furry friends:

Local animal-rights activists and wannabes are meeting over coffee at 7:30 p.m. Wednesdayat Phoenix Coffee on Lee Road in Cleveland Heights. They will be planning a Fur Free Friday demonstration, trading vegan Thanksgiving recipes and making cruelty-free holiday gift lists. Go to animalrights.meetup.com.

Send animal news to Big Cat Rescue fax 216-999-6374; 216-999-4852; 1801 Superior Ave., Cleveland, 44114.

http://www.cleveland.com/living/plaindealer/index.ssf?/base/living-0/1194859898146820.xml&coll=2

Siberian Tiger Foundation is not accredited by The Association of Sanctuaries. Check for yourself to see if they meet the sanctuary standards for an accredited animal refuge.

Knox County assumes care for Diana McCourt’s six lions and tigers

Sunday, August 12, 2007 3:43 AM

By Gail Martineau

THE COLUMBUS DISPATCH

Knox County residents are footing the bill for two lions and four tigers left in legal limbo after their owner was evicted from a Gambier farm in May.

The county took responsibility for the animals’ care this month, county Humane Officer Roger Reed said.

Reed said he didn’t know how long the cats would be wards of the county. Last week, he spent $100 to feed the animals, but county commissioners have allocated up to $1,000 a month in expenses.

The animals were taken from owner Diana McCourt after she was evicted from her Deal Road home and place of business this year. McCourt is appealing the eviction, she said.

Without her cats, McCourt said, she has lost her only source of income, running the Siberian Tiger Conservation Association. The association teaches college students how to handle wild cats. McCourt had allowed the public to view the animals for a fee until federal agriculture officials ordered an end to the practice in 2002 and she surrendered her exhibitor’s license.

“The cats are stranded and they won’t let me feed them or take care of them,” she said.

Since the eviction, the animals have remained at the Gambier farm, which is owned by Donnalynn and Christian Laver of Columbus. The Lavers had been caring for the animals until county officials determined they had no legal obligation to do so. Since May, the Lavers said, they have spent $3,000 on the animals’ care.

The Lavers and county officials are working with the U.S. Department of Agriculture to find a suitable home for the animals.

“Everyone is working together to get the best possible placement for the animals,” Mrs. Laver said. “That may entail moving them together or moving them separately. We have no idea what the situation is going to hold.”

In the meantime, Reed said, the county is prepared to pay for food — 3 to 5 pounds of chicken and ground beef per day for each animal — and medical expenses.

Knox County Commissioner Allen Stockberger said he has not heard any complaints from local residents about the cost.

“It’s not something that the county deals with on a regular basis,” he said. “We will be caring for them until we can find a new home or new owners.”

Dispatch correspondent Jane Hawes contributed to this story.

gmartineau@dispatch.com

http://www.columbusdispatch.com/dispatch/content/local_news/stories/2007/08/12/lionlady.ART_ART_08-12-07_B3_M87JHUV.html

Carole’s Note: I sent the following to the appropriate authorities:

Big Cat Rescue has a half acre enclosure that would be appropriate to house two lions. Diana had asked to move her cats here before the eviction, but she wanted to keep control of them and we are a permanent placement facility and do not condone her brand of animal use. We let her know that the cats were welcome here, but that she is not. If she surrenders ownership, or the state or USDA seizes the lions, with her being unable to retrieve them later, we would be willing to pick them up.

From the Siberian Tiger Conservation Association website:

Nikita: 800 pound male Siberian Tiger, born August 20, 1995. Nikita is our “gentle giant”. He is majestic in his movement and loving with the three cubs Sher-Khan, Ekaterina, and Sierra.
Sher-Khan: Male Siberian Tiger cub born April 19, 2000. Sher-Khan is the half-brother of Nikita, and is following ion his big brother’s footsteps. He is very sweet and lovable. Now Dead.
Ekaterina: Female Siberian Tiger cub born April 24, 2000. Ekaterina wants to be our “circus kitty”. She has a talent for tricks and likes to perform.
Sierra: Female White Bengal Tiger cub born May 3, 2000. Sierra is our “littlest angel” with a halo and powder blue eyes. She likes to travel and loves having her picture taken.
Simba: Female Siberian Tiger born June 8, 1994. Simba is sweet and gentle and is especially loving with physically challenged individuals.
Sasha: African lioness born May 12, 1994. Sasha is the “matriarch”. As the “mother” of the pride, she watches over everybody, even the tigers.
Joseph: African lion born August 19, 1998. Joseph prefers vanilla-bean ice cream over steak; each year he receives a year’s supply as a gift from the Breyer’s company. Joseph loves his lioness, Sasha, and is very protective of her.

USDA shuts down Diana McCourt’s Siberian Tiger Foundation scheme. Download the report HERE

2006

View More Free Videos Online at Veoh.com
Online Videos by Veoh.com

20/20: Lions and Tigers in Your Neighbor’s Backyard?

aired 10/27/06

Description: Lions and tigers and bears, oh my! The most ferocious animals in the wild might be living in your neighbor’s backyard and, as Jay Schadler reports, they could be the star attractions in potentially deadly businesses. Some backyard entrepreneurs are setting up their own facilities where members of the public, sometimes paying hundreds of dollars, can have close encounters with dangerous animals. But just how safe are these businesses that sometimes call themselves animal “sanctuaries,” wildlife parks or even conservation associations?

According to Michelle Thew of the Animal Protection Institute, there are more tigers – up to 10,000 – in private hands in the United States than there are in the wild in India. Once-endangered animals are being bred by the thousands, and in some cases lions and tigers and other wild animals end up in places that experts say could make them potentially lethal to the public. For 11 months, ABC News has been investigating such backyard businesses that charge $200 to brush a tiger’s extremely lethal teeth or $495 to let a 600-pound grizzly bear pluck a marshmallow from your lips. 20/20 also goes undercover to the Siberian Tiger Conservation Association, owned by Diana Mc Court fka Diana Cziraky, who is operating without an exhibitor’s license. What will happen when we confront the owner?

Order a copy of the show for 29.95 HERE

2004

Lions, Tigers & One Visitor Remembers Petting Them

October 12, 2004: I was in an enclosure with three adult tigers. Sher Khan, the largest adult male was lying on top of a shed when I walked up to him and began massaging his head. The 600-pound cat lazily lifted his huge paw and dropped it on my arm, pinning it to the top of shed. He then opened his mouth and yawned, exposing the biggest teeth I had ever seen.

Next, Sher Khan began licking my hand with a coarse-sandpaper tongue.

A few moments later, Tara stepped in and made smoochy sounds before kissing Sher Khan on the face. The animal responded with an affectionate shrug and dropped his paw upon Tara’s head. My wife jumped away, eyes wide. And I swear the tiger smiled at her.

To begin at the beginning: Over that weekend, Tara and I had appeared at the Universal Light Expo in Columbus, Ohio — one of the biggest New Age expos in the world. We each presented a free one-hour workshop in the main auditorium, followed by a two-hour joint workshop for a fee.

As I was leaving the auditorium, a pretty blonde introduced herself as Diana McCourt, and handed me a color flyer on the Siberian Tiger Conservation Association.
“Come out and see my tigers,” she said. “I’m only an hour away.”

I ran into Diana later and a third time at our sales booth run by Gentle Wind Metaphysical Store. She purchased several of our books and CDs. “Are you serious about the invite?” I asked.
“I’ll take your picture with the tigers,” she replied.

Tara and I were conducting a two-evening seminar at Gentle Wind on Monday and Tuesday, leaving our days free. Tuesday morning I called Diana. She gave me driving instructions. We arrived at her home in Gambier, Ohio about noon. I pulled the rental car to the back of the property, where we saw lions and tigers in two huge enclosures.

Diana welcomed us into her home where she was chopping huge bowls of freshly thawed meat in to large chunks. Tara and I would accompany her while she fed the animals. I silently liked this idea, because if the cats were full, they might be less likely to eat us when we entered their domain.

Diana had raised the big cats from tiny babies “that fit in the palm of my hand,” she said. “They grew up sleeping with me.” She explained that her conservation association is a non-profit educational and certified training facility. She trains people to work with the animals. Students feed and groom the cats and even brush their teeth (with chicken-flavored toothpaste). They walk them and train them with voice commands and hand signals. (740-668-9205 or www.sibertiger.com)

Angela Brooks, a college-age woman who had trained with Diana, and Angela’s mother Elaine Melody Thomas arrived. We were introduced, and I realized that Diana wanted a backup trainer with her before taking two strangers into the enclosures. We were told not to turn our backs on the cats. “If they grab your foot or leg, don’t try to pull away. They know the word ‘no,’” Diana explained. “You can bop them on the head with your knuckles.”

At this point, Nikita, an 800 pound male Siberian tiger meandered by. “Oh, yeah. I’m going to punch him out,” I thought, almost laughing out loud.

We entered the first enclosure, taking instructions from Diana. Our first encounter was with Sierra, a female white Bengal tiger with blue eyes. While Tara and Diana were off doing something else, I had watched Sierra stalk a dog that was running around beyond the chain-link fence. But when we entered through double gates, Sierra allowed us to pet her as she relaxed in the afternoon sun.

We also petted Ekaterina, a female Siberian, and then on to Sher Khan — the hand licker and head bopper who lounged on top of the shed.
As we exited the enclosure, I told Diana, “I’d love to find out what you did in past lives to establish your passion for big cats.” I explained that I’d be conducting a group past-life regression at Gentle Wind that evening and invited her to attend.

In the second enclosure, in addition to huge Nikita, the area housed Simba, a female Siberian, Joseph a male African lion, and Sasha, his mate. Sasha ruled the roost, and she was less than welcoming. Elaine was assigned the task of distracting Sasha while we were in the enclosure. So from outside the fence, Elaine sang to the lioness. At one point, the cat growled and charged the fence, coming to her full height as she bounced off the chain link. I assumed Sasha either did not like the song or wanted to intimidate Elaine.

We went on to pet and interact with the two tigers and the male lion. What most surprised me about being with the big cats, I experienced absolutely no fear. Tara claimed that was naive. Yet at home, every time I encounter a rattlesnake, my adrenaline goes through the roof. – Dick Sutphen

2002

Tigers close to public May 6

Robbie Ketcham
Issue date: 5/2/02 Section: News

Federal administrative law judge James W. Hunt approved a final consent decision in the matter of the United States Department of Agriculture versus the Siberian Tiger Conservation Association (STCA) on April 11, closing the Gambier tiger park to the public on May 6 and ending the two-year-old animal negligence case.

“Between January 1, 2001, and August 6, 2001, respondents Diana R. Cziraky, The International Siberian Tiger Foundation and The Siberian Tiger Foundation failed to handle lions and tigers in a manner that does not cause behavioral stress, physical harm or unnecessary discomfort,” reads the eight page settlement decision, to which STCA operator Cziraky, now Diana McCourt, and the USDA both agreed. Additionally, the STCA”failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the public and to the animals and failed to have sufficient distance or barriers between the animal and the public so as to ensure the safety of the public.”

The agreement also states that the STCA operated as an exhibitor without a license between March and August of 2001, failed to allow the animals to rest between performances and “publicly displayed lions and tigers outside of the direct control and supervision of a knowledgeable and experienced handler.”

As a result, McCourt and the STCA have been placed under an 18-month “probation period” beginning May 6. During this time, they cannot apply for an exhibitor’s license and cannot “engage in any activity for which such a license is required.” If this is broken, the STCA will receive a $10,000 fine. McCourt will be allowed to keep the animals on the Gambier property and maintain the STCA as a tiger-handling training facility.

In a voice mail message left with the Collegian on March 20, McCourt said, “We had a board meeting … and the board members decided that we will only host tiger encounters with the public, meaning that the public can call and make an appointment to come up and have a tiger encounter, through [May 6]. After that date, we will no longer be doing tiger encounters with the public. We are continuing operation as an educational and training facility. We can still take students ages 16 and up to train with the big cats.”

McCourt chose to settle, her attorney Richard Rogovin said, because “appeals are very expensive and a lot of work. We will … remain a teaching organization and … still train people who care about the best interest of the animals.”

Controversy surrounding the Foundation first came to be general public knowledge when 10-year-old Ethan Newman and former Kenyon student Jessica Lee ’03 were attacked during one of the “close encounters.” According to Hunt’s original decision, a resulting USDA investigation uncovered eight alleged attacks by the cats over an eight month time period. In revoking McCourt’s license, Hunt cited evidence that because these encounters were known to be dangerous and proper safety precautions were not taken, the Foundation violated the Animal Welfare Act. McCourt appealed the decision to USDA Judicial Officer William Jensen, but he upheld Hunt’s ruling.

In re: THE INTERNATIONAL SIBERIAN TIGER FOUNDATION, AN OHIO CORPORATION; DIANA CZIRAKY, AN INDIVIDUAL; DAVID CZIRAKY, AN INDIVIDUAL; THE SIBERIAN TIGER FOUNDATION, AN UNINCORPORATED ASSOCIATION; AND TIGER LADY, a/k/a TIGER LADY LLC, AN UNINCORPORATED ASSOCIATION.

AWA Docket No. 01-0017.

Decision and Order as to The International Siberian Tiger Foundation, an Ohio corporation; Diana Cziraky, an individual; The Siberian Tiger Foundation, an unincorporated association; and Tiger Lady, a/k/a Tiger Lady LLC, an unincorporated association.

Filed February 15, 2002.

AWA – Exhibition – Handling – Preponderance of the evidence – Public, general viewing – Exhibitors, general public, not included as – Willful – Preemption – Cease and desist order – License revocation.

The Judicial Officer (JO) reversed the Initial Decision issued by Chief Administrative Law Judge James W. Hunt. The JO concluded that Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the animals and the public and failed to have 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, in willful violation of 9 C.F.R. § 2.131(b)(1). The JO also concluded that Respondent Diana Cziraky exhibited animals during a period when her Animal Welfare Act license was suspended, in willful violation of 9 C.F.R. § 2.10(c). The JO stated Complainant proved Respondent Diana Cziraky’s violation of 9 C.F.R. § 2.10(c) and Respondents’ violations of 9 C.F.R. § 2.131(b)(1) by a preponderance of the evidence, which is the standard of proof applicable in administrative proceedings under the Animal Welfare Act. The JO rejected Respondents’ contention that 9 C.F.R. § 2.131(b)(1) does not provide Respondents with adequate notice of the conduct which is required of Respondents. The JO rejected Complainant’s contention that Respondents’ trainees were members of “the public” or “the general viewing public” as those terms are used in 9 C.F.R. § 2.131(b)(1), but agreed with Complainant’s contention that exhibitors exhibiting animals are not members of “the public” or members of “the general viewing public” as those terms are used in 9 C.F.R. § 2.131(b)(1). The JO also held that assumption of the risk of harm by members of the public is not relevant to whether Respondents violated 9 C.F.R. § 2.131(b)(1). The JO rejected Respondents’ contentions that 9 C.F.R. § 2.131(b)(1) exceeds the authority granted to the Secretary of Agriculture under the Animal Welfare Act and that 9 C.F.R. § 2.131(b)(1) interferes with state and local regulations designed to control animals to protect human beings. The JO also stated the Animal Welfare Act does not explicitly or implicitly preempt state or local regulation of animal or public welfare. The JO ordered Respondents to cease and desist violations of the Animal Welfare Act and the regulations issued under the Animal Welfare Act and revoked Respondent Diana Cziraky’s Animal Welfare Act license.

Colleen A. Carroll, for Complainant.

Richard D. Rogovin, Columbus, Ohio, for Respondents.

Initial decision issued by James W. Hunt, Chief Administrative Law Judge.

Decision and Order issued by William G. Jenson, Judicial Officer.

PROCEDURAL HISTORY

Bobby R. Acord, Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a “Complaint” on December 8, 2000. Complainant instituted this proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-2.133) [hereinafter the Regulations]; the standards issued under the Animal Welfare Act (9 C.F.R. §§ 3.1-.142) [hereinafter the Standards]; if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote1 ); document.write( ‘
Close‘ ); document.write( ‘‘ ); } and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice].

Complainant alleges that: (1) on or about March 2000, April 29, 2000, May 14, 2000, June 2000, July 14, 2000, September 2000, October 21, 2000, October 28, 2000, October 29, 2000, and December 2, 2000, the International Siberian Tiger Foundation, Diana Cziraky, The Siberian Tiger Foundation, and Tiger Lady, a/k/a Tiger Lady LLC [hereinafter Respondents], failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the public and failed to have sufficient distance or barriers between the animals and the public so as to ensure the safety of the public, in willful violation of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)); (2) on or about March 2000, April 29, 2000, May 14, 2000, June 2000, July 14, 2000, September 2000, October 21, 2000, October 28, 2000, October 29, 2000, and December 2, 2000, Respondents failed to have a responsible, knowledgeable, and readily identifiable employee or attendant present at all times of public contact with Respondents’ animals, in willful violation of section 2.131(c)(2) of the Regulations (9 C.F.R. § 2.131(c)(2)); (3) on or about March 2000, April 29, 2000, May 14, 2000, June 2000, July 14, 2000, September 2000, October 21, 2000, October 28, 2000, October 29, 2000, and December 2, 2000, Respondents publicly exhibited lions and tigers outside the direct control and supervision of a knowledgeable and experienced animal handler, in willful violation of section 2.131(c)(3) of the Regulations (9 C.F.R. § 2.131(c)(3)); and (4) on at least three occasions between November 25, 2000, and December 2, 2000, while her Animal Welfare Act license (Animal Welfare Act license number 31-C-0123) was suspended, Respondent Diana Cziraky exhibited lions and tigers, in willful violation of section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)) (Compl. ¶¶ 6-9). if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote2 ); document.write( ‘
Close‘ ); document.write( ‘‘ ); } On January 2, 2001, Respondents filed an “Answer” denying the material allegations of the Complaint.

Chief Administrative Law Judge James W. Hunt [hereinafter the Chief ALJ] presided over a hearing in Columbus, Ohio, on February 7, 2001, through February 9, 2001, and on March 13, 2001, through March 15, 2001. Colleen A. Carroll, Office of the General Counsel, United States Department of Agriculture, represented Complainant. Richard D. Rogovin, Bricker & Eckler, LLP, Columbus, Ohio, represented Respondents.

On June 29, 2001, Respondents filed “Respondents’ Post-Hearing Brief.” On July 2, 2001, Complainant filed “Complainant’s Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof” [hereinafter Complainant’s Post-Hearing Brief]. On August 7, 2001, Complainant filed “Complainant’s Reply Brief.”

On August 23, 2001, the Chief ALJ issued a “Decision and Order” [hereinafter Initial Decision and Order]: (1) finding that from on or about February 28, 2000, through October 29, 2000, Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the public and failed to have sufficient distance or barriers or distance and barriers between the animals and the public so as to assure the safety of the public; (2) concluding that from on or about February 28, 2000, through October 29, 2000, Respondents violated the Animal Welfare Act and section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)); and (3) revoking Respondent Diana Cziraky’s Animal Welfare Act license (Animal Welfare Act license number 31-C-0123) (Initial Decision and Order at 23-24).

On September 19, 2001, Respondents appealed to the Judicial Officer. On October 12, 2001, Complainant filed “Complainant’s Petition for Appeal of Decision and Order.” On October 18, 2001, Complainant filed “Complainant’s Response to Respondents’ Petition for Appeal of Decision and Order.” On November 2, 2001, Respondents filed “Respondents’ Response to Complainant’s Petition for Appeal of Decision and Order.” On November 8, 2001, the Hearing Clerk transmitted the record to the Judicial Officer for consideration and decision.

Based upon a careful consideration of the record, I agree with the Chief ALJ’s conclusion that Respondents violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)). However, I also conclude that Respondent Diana Cziraky violated section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)). Further, I disagree with portions of the Chief ALJ’s discussion. Therefore, while I retain much of the Chief ALJ’s Initial Decision and Order, I do not adopt the Chief ALJ’s Initial Decision and Order as the final Decision and Order.

Complainant’s exhibits are designated by “CX.” Transcript references are designated by “Tr.”

APPLICABLE STATUTORY PROVISIONS AND REGULATIONS

7 U.S.C.:

TITLE 7–AGRICULTURE

. . . .

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.

. . . .

(8) Paragraph (1) shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated by the Secretary under paragraph (1).

. . . .

§ 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

Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary’s order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person’s good faith, and the history of previous violations[.]

(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 [26 U.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.

28 U.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 4 years 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 7 U.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

CHAPTER I—ANIMAL AND PLANT HEALTH

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.

9 C.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; CX 3, CX 4.) 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 22143 Deal Road, Gambier, Ohio 43022, where it exhibits lions and Siberian tigers to the public. (CX 71). 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. (CX 37).

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 800 pounds. (Tr. 183; CX 42). 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 10 years 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.

CX 6.

Trainees 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 500 hours of training, the trainee receives a certificate and, generally, after 1,000 hours 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.

CX 32.

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 20 people 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; CX 13).

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 Diana Cziraky 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; CX 106).

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; CX 104).

On April 29, 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; CX 75). 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.” (CX 75 at 2-3).

Brittany Sly, a 10-year-old, liked tigers. On July 14, 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 October 28, 2000, a person named Jason Adelsberger was reported to have been bitten at The Siberian Tiger Foundation (Tr. 91, 552; CX 39, CX 40).

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; CX 5, CX 6, CX 51).

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 November 24, 2000, served a notice of a 10-day suspension of Respondent Diana Cziraky’s Animal Welfare Act license (Tr. 518, 524-25; CX 64, CX 67). 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 8 months.

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 Section 2.131.

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 18 inches 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.

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 (CX 53) 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 December 2, 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 December 2, 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; CX 1, CX 54-CX 62).

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 November 2000 suspension order, the Animal and Plant Health Inspection Service issued another suspension order on December 5, 2000, suspending Respondent Diana Cziraky’s Animal Welfare Act license for 11 days (Tr. 667, 945-49; CX 33).

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 December 2, 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 20 years’ 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 6 months 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 3 years 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 14 years. 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 15 years of age, were allowed by the Columbus Zoo to have an encounter with a Siberian tiger weighing between 300 and 400 pounds. (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 (9 C.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 (9 C.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 at 2-5). Respondents argue that this discomfort, which Respondents contend is momentary, is a necessary disciplinary means of controlling the animal (Respondents’ Post-Hearing Brief at 2).

The purpose of the Animal Welfare Act, as it relates to exhibited animals, is to insure that they are provided humane care and treatment (7 U.S.C. § 2131). The Secretary of Agriculture is specifically authorized to promulgate regulations to govern the humane handling of animals by exhibitors (7 U.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 (9 C.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 (9 C.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 (9 C.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 (9 C.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 von Uhl.

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 (9 C.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 February 28, 2000, through December 2, 2000, show that Respondents were not in compliance with the handling requirements of section 2.131(b)(1) of the Regulations (9 C.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 (9 C.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 (9 C.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 (9 C.F.R. § 2.10(c)) provides exhibitors with adequate notice of the conduct which is prohibited.

Complainant proved by a preponderance of the evidence that on December 2, 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 (9 C.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 (7 U.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 November 24, 2000 (CX 64, CX 67). On December 2, 2000, during the period of suspension, Respondent Diana Cziraky exhibited animals (Tr. 166-67, 169, 177-81, 183-84, 190-94, 305, 629-32; CX 1, CX 49, CX 54-CX 62). 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 (9 C.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 (9 C.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 5 U.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, 930 F.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 (9 C.F.R. § 2.10(c)) would still be found willful.

Section 2.131(c)(2) of the Regulations (9 C.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 (9 C.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 (9 C.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” (CX 6). Further, the record establishes that a trainee must receive a minimum of 500 hours 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 1,000 hours 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 1,000 hours 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 1,000 hours 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 1,000 hours 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 1,000 hours 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 October 21, 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 October 21, 2000, incident involving the injury to Jessica Lee establishes that Respondents did not always place groups in safe areas. Further, on February 28, 2000, Respondents allowed Nikita, a male tiger, to walk around freely during a close encounter (CX 84-CX 90, CX 94-CX 96). 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 (CX 1, CX 59-CX 61, CX 80-CX 88).

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 (CX 13, CX 93-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 at 5).

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 at 5). 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 October 21, 2000; another for October 29, 2000; and the last for October 30, 2000. Further, Respondent Diana Cziraky testified that the students keep the notebooks and bring to her attention any issues of major concern. (CX 46; 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 (9 C.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 (9 C.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 (9 C.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 (9 C.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 (9 C.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” (CX 6). 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 (9 C.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 (9 C.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 (9 C.F.R. § 2.131(b)(1)), is error (Complainant’s Appeal Pet. at 13-14).

The Chief ALJ states section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) prohibits any exhibition where there is human interaction with dangerous animals and, although it could be argued that persons who actually conduct the exhibitions of dangerous animals are not members of the viewing public, section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) does not provide for any exceptions (Initial Decision and Order at 19, 22 n.5).

I disagree with the Chief ALJ’s conclusion that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) prohibits any exhibition where there is human interaction with dangerous animals and the Chief ALJ’s conclusion that persons who exhibit animals fall within the meaning of the term “the public” and the term “the general viewing public” in section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

Section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) clearly does not prohibit the exhibition of dangerous animals. To the contrary, section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) specifically states “during public exhibition” an exhibitor of animals must adhere to certain conditions.

The Regulations do not define the term “the public” or the term “the general viewing public.” However, generally, the term “the public” does not mean all people, as the Chief ALJ suggests. Instead, the term “the public” is often used to distinguish a large group of people from a smaller group of people. For instance, if one were to say “the plumber treats the public fairly,” this statement generally would not be interpreted to indicate how the plumber treats his or her employees, apprentices, or himself or herself. Similarly, the term “the general viewing public” is not always used to mean “all people who view an event or object.” The term “the general viewing public” is often used in a way that excludes those who are presenting the event or object to an audience. For instance, a projectionist in a movie theater and other movie theater employees who happen to see a movie or part of a movie which is being shown to movie theater patrons often would not be considered members of “the general viewing public.” Thus, I find, as commonly used and in order to carry out the purpose of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)), the terms “the public” and “the general viewing public,” as used in section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)), do not include exhibitors. if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote7 ); document.write( ‘
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Ninth, Complainant contends the Chief ALJ erroneously focuses on whether Respondents’ customers voluntarily assumed the risk of injury in interacting with Respondents’ lions and tigers. Complainant argues that assumption of the risk of close encounters with Respondents’ animals is not relevant to the issue of whether Respondents violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) (Complainant’s Appeal Pet. at 14).

I agree with Complainant that Respondents’ customers’ assumption of the risk of close encounters with Respondents’ animals is not relevant to the issue of whether Respondents violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)). Section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) requires that, during public exhibition, animals must be handled so there is minimal risk of harm to the animals and the public. Even if a member of the public acknowledges that there is greater than minimal risk of harm associated with a close encounter with Respondents’ animals and accepts a greater than minimal risk, Respondents are still required by section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) to handle their animals during public exhibition so there is minimal risk of harm to the animals and the public. Further, section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) requires that Respondents provide sufficient distance or barriers or distance and barriers between their animals and the general viewing public so as to assure the safety of the animals and the public. The requirements in section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) are neither negated nor affected in any way by a customer’s acknowledgment and acceptance of the risk of harm associated with a close encounter with Respondents’ animals or by a customer’s waiver of liability. Despite the Chief ALJ’s focus on assumption of the risk, I note the Chief ALJ did not conclude that assumption of the risk by members of the public having close encounters with Respondents’ animals constitutes a defense to Respondents’ violations of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)). I retain some of the Chief ALJ’s discussion concerning Respondents’ customers’ assumption of the risk; however, I do not conclude that Respondents’ customers’ assumption of the risk constitutes a defense to Respondents’ violations of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

Tenth, Complainant contends the Chief ALJ erroneously found that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) effectively bars all direct contact between any person and any dangerous animal (Complainant’s Appeal Pet. at 15-16).

The Chief ALJ states “[i]nterpreted literally, [section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1))] effectively prohibits not only any ‘close encounter’ exhibition but also any other type of exhibition where there is human interaction with dangerous animals” (Initial Decision and Order at 19). The plain language of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) clearly does not prohibit human interaction with dangerous animals during exhibition. As previously discussed, I find, as commonly used and in order to carry out the purpose of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)), the terms “the public” and “the general viewing public,” as used in section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)), do not include exhibitors. Therefore, section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) places no restriction on the interaction between an animal being exhibited and the exhibitor. Consequently, I reject the Chief ALJ’s conclusion that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) effectively prohibits human interaction with dangerous animals.

Eleventh, Complainant contends the Chief ALJ erroneously failed to find that Respondents violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) on December 2, 2000 (Complainant’s Appeal Pet. at 16-17).

The Chief ALJ found that from on or about February 28, 2000, through October 29, 2000, Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the public and failed to have 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, in violation of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) (Initial Decision and Order at 23-24). Complainant alleges Respondents willfully violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) on or about March 2000, April 29, 2000, May 14, 2000, June 2000, July 14, 2000, September 2000, October 21, 2000, October 28, 2000, October 29, 2000, and December 2, 2000 (Compl. ¶ 6).

The record supports the conclusion that on December 2, 2000, Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the animals and to the public and failed to have 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, in willful violation of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)). Dr. Peter Kirsten and Richard Porter testified that they attended a close encounter with Respondents’ animals on December 2, 2000 (Tr. 166-67, 629-30). 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 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; CX 1, CX 54-CX 62). Therefore, I conclude that on December 2, 2000, Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the animals and the public and failed to have 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, in willful violation of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

Twelfth, Complainant contends the Chief ALJ erroneously failed to find that Respondent Diana Cziraky violated section 2.1 of the Regulations (9 C.F.R. § 2.1) by engaging in regulated activities without an Animal Welfare Act license (Complainant’s Appeal Pet. at 17-18).

Complainant did not allege that Respondent Diana Cziraky violated section 2.1 of the Regulations (9 C.F.R. § 2.1) (Compl.). Therefore, I do not find the Chief ALJ erred by failing to conclude that Respondent Diana Cziraky violated section 2.1 of the Regulations (9 C.F.R. § 2.1).

However, Complainant did allege that on at least three occasions between November 25, 2000, and December 2, 2000, while Respondent Diana Cziraky’s Animal Welfare Act license was suspended, Respondent Diana Cziraky exhibited lions and tigers, in willful violation of section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)). The record supports the conclusion that Respondent Diana Cziraky exhibited lions and tigers during the period her Animal Welfare Act license was suspended, in willful violation of section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)).

Specifically, the record establishes that pursuant to section 19(a) of the Animal Welfare Act (7 U.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 November 24, 2000 (CX 64, CX 67). On December 2, 2000, during the period her Animal Welfare Act license was suspended, Respondent Diana Cziraky exhibited animals (Tr. 166-67, 169, 177-81, 183-84, 190-94, 305, 629-32; CX 1, CX 49, CX 54-CX 62). 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 (9 C.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 (9 C.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 reliance on erroneous advice. if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote8 ); document.write( ‘
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RESPONDENTS’ APPEAL PETITION

Respondents raise four issues in Respondents’ Appeal to Judicial Officer [hereinafter Respondents’ Appeal Petition]. First, Respondents contend the Chief ALJ erroneously applied section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) to protect public safety. Respondents contend the application of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) to public safety exceeds the authority granted to the Secretary of Agriculture by Congress and interferes with the historic police power of the states and local governments to regulate the control of animals to protect human beings. Respondents state that nothing in the Animal Welfare Act suggests that Congress intended its protection to extend to human beings or that Congress intended to preempt local regulations designed to protect the public. (Respondents’ Appeal Pet. at 1).

I disagree with Respondents’ contention that the provisions of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) which relate to the risk of harm to the public and the safety of the public exceed the authority granted to the Secretary of Agriculture in the Animal Welfare Act. One of the purposes of the Animal Welfare Act is to insure that animals intended for exhibition are provided humane care and treatment (7 U.S.C. § 2131). The Secretary of Agriculture is specifically authorized to promulgate regulations to govern the humane handling of animals by exhibitors (7 U.S.C. §§ 2143(a)(1), 2151).

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 the tiger for rabies (Tr. 926-27, 949). Thus, section 2.131(b)(1) of the Regulations (9 C.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.

With respect to Respondents’ contention that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) interferes with state or local regulations designed to control animals to protect human beings, Respondents cite no state or local law or regulation with which section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) interferes. Moreover, Respondents cite no state or local law or regulation that is preempted by section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

The Animal Welfare Act does not expressly or impliedly preempt state or local law. if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote9 ); document.write( ‘
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Therefore, I reject Respondents’ contention that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)) interferes with state and local regulation designed to control animals to protect human beings.

Second, Respondents contend the Chief ALJ misconstrued section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) as prohibiting the touching of an exhibited animal, effectively eliminating all petting zoos and other close-encounter exhibitions of animals which might bite or injure members of the public (Respondents’ Appeal Pet. at 1-2).

The Chief ALJ states “[i]nterpreted literally, [section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1))] effectively prohibits not only any ‘close encounter’ exhibition but also any other type of exhibition where there is human interaction with dangerous animals” (Initial Decision and Order at 19). I agree with Respondents’ contention that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) does not prohibit the touching of an exhibited animal or effectively eliminate all close-encounter exhibitions of animals. Therefore, I do not adopt the Chief ALJ’s conclusion that section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) effectively prohibits close-encounter exhibitions.

Third, Respondents contend the Chief ALJ’s Initial Decision and Order directly conflicts with the evidence that Animal and Plant Health Inspection Service inspectors repeatedly found Respondents’ close-encounter method of exhibition in compliance with the Animal Welfare Act. Respondents contend that having approved Respondents’ close-encounter method of exhibition, Complainant cannot now, under due process principles, constitutionally apply the Regulations to end Respondents’ close-encounter method of exhibition. (Respondents’ Appeal Pet. at 2).

Respondents do not cite any evidence that Animal and Plant Health Inspection Service inspectors repeatedly found Respondents’ close-encounter method of exhibition in compliance with the Animal Welfare Act or that Complainant approved Respondents’ close-encounter method of exhibition. The record does not reveal that Animal and Plant Health Inspection Service inspectors viewed any of Respondents’ public exhibitions of animals prior to October 4, 2000. Moreover, the record reveals that Animal and Plant Health Inspection Service inspectors viewed only two public exhibitions of Respondents’ animals, one of which took place on October 4, 2000, the other on December 2, 2000. Complainant alleges that Respondents violated sections 2.10(c) and 2.131(b)(1), (c)(2), and (c)(3) of the Regulations (9 C.F.R. §§ 2.10(c), .131(b)(1), (c)(2)-(3)) on December 2, 2000 (Compl. ¶¶ 6-9). Dr. Markin, the Animal and Plant Health Inspection Service inspector who inspected Respondents’ facility on October 4, 2000, did not cite Respondents for a violation of the Animal Welfare Act or the Regulations, and Complainant does not allege that Respondents violated the Animal Welfare Act or the Regulations on October 4, 2000 (Tr. 665-67, 675-79; CX 106; Compl.). However, a failure to cite Respondents during a routine facility inspection does not constitute “approval” of Respondents’ methods of exhibition on other occasions, as Respondents contend.

Moreover, due process does not prevent Complainant from instituting this proceeding merely because an Animal and Plant Health Inspection Service inspector observed Respondents’ public exhibition of animals on October 4, 2000, and did not cite Respondents for a violation of the Animal Welfare Act or the Regulations based on observations during the October 4, 2000, inspection.

Fourth, Respondents contend the Chief ALJ’s sanction of license revocation was excessive in light of the facts of this case. Respondents state no violations of the Animal Welfare Act that relate to the care and treatment of Respondents’ animals were found and the evidence shows that Respondents voluntarily reduced the risk of close encounters. (Respondents’ Appeal Pet. at 2).

Respondents’ contention that the revocation of Respondent Diana Cziraky’s Animal Welfare Act license is excessive because Respondents did not violate any provisions of the Animal Welfare Act that relate to the care and treatment of their animals, is without merit. The evidence does establish that Respondents’ facility was clean and Respondents’ animals appeared healthy, well-fed, and clean (Tr. 40-43, 101-02, 249-51, 305-08, 639-41, 660-61, 665-66, 683). However, Complainant proved by a preponderance of the evidence that Respondents violated regulations governing the handling of animals, section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)), on seven occasions. if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote11 ); document.write( ‘
Close‘ ); document.write( ‘‘ ); } Handling clearly relates to care and treatment and the record reveals that because of the bites that resulted from Respondents’ close-encounter method of exhibition, Respondents hit their animals, sprayed vinegar on their animals, and occasionally sprayed their animals with a CO2 fire extinguisher.

The record reveals that Respondents have taken steps in an attempt to reduce the risk of harm to the animals and the public associated with close encounters with Respondents’ animals. Specifically, Respondent Diana Cziraky testified that Respondents have increased the minimum age for children to participate in a close encounter from 7 to 16, Respondents no longer allow persons with physical impairments to participate in a close encounter, Respondents no longer allow more than six people in the cage with their animals at any one time, Respondents now require that three handlers accompany each group of six in the cage, Respondents have shortened the control chains on their cats, and Respondents have acquired a tranquilizer gun (Tr. 938-42, 1035). Complainant contends Respondents’ changes to their close-encounter method of exhibition do not reduce the risk of harm to the animals and the public (Complainant’s Response to Respondents’ Pet. for Appeal of Decision at 28-30). However, Dr. Peter Kirsten, a United States Department of Agriculture veterinary medical officer, testified that he was concerned about Respondents’ allowing small and physically compromised persons and large groups of people into Respondents’ animal enclosure (Tr. 170); Richard Porter, a United States Department of Agriculture investigator, found that the chains limiting Respondents’ animals’ range of motion were too long (Tr. 645); and Dr. Ellen Magid, a supervisory animal care specialist for the United States Department of Agriculture, suggested a length of the control chains on dangerous animals that would be “more acceptable” than the length of the control chains Respondents were using (Tr. 667; CX 53). I infer that these United States Department of Agriculture officials mentioned these aspects of Respondents’ close-encounter method of exhibition because they viewed them as deficiencies in the context of risk of harm to the animals and the public. Therefore, I reject Complainant’s contention that Respondents’ changes to their close-encounter method of exhibition do not reduce the risk of harm to Respondents’ animals and the public. Moreover, I find Respondents’ changes in their close-encounter method of exhibition to be a mitigating factor. However, I do not find Respondents’ improvements sufficiently mitigating to warrant reducing the sanction imposed by the Chief ALJ.

The record reveals that Respondents willfully violated section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)) on one occasion and willfully violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) on seven occasions. Respondents’ violations of the Regulations are serious. Respondents’ violations of section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)) resulted in harm to members of the public and more than a minimal risk of harm to Respondents’ animals. Respondents’ violation of section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)) thwarts the Secretary of Agriculture’s ability to obtain compliance with the Animal Welfare Act and the Regulations. I conclude that a cease and desist order and the revocation of Respondent Diana Cziraky’s Animal Welfare Act license are appropriate and necessary to ensure Respondents’ compliance with the Regulations in the future, to deter others from violating the Regulations, and to thereby fulfill the remedial purposes of the Animal Welfare Act. In addition to the cease and desist order and the revocation of Respondent Diana Cziraky’s Animal Welfare Act license, which I impose, Respondents could be assessed a maximum civil penalty of $2,750 for each of Respondents’ eight violations of the Regulations. if( bInlineFloats ) { document.write( ‘‘ ); document.write( WPFootnote12 ); document.write( ‘
Close‘ ); document.write( ‘‘ ); } However, I conclude that a cease and desist order and the revocation of Respondent Diana Cziraky’s Animal Welfare Act license are sufficient to achieve the purposes of the Animal Welfare Act.

FINDINGS OF FACT

1. The International Siberian Tiger Foundation is an Ohio corporation. The International Siberian Tiger Foundation is also known as The Siberian Tiger Foundation. At all times material to this proceeding, The Siberian Tiger Foundation operated as an exhibitor as that term is defined in the Animal Welfare Act and the Regulations.

2. Tiger Lady, also known as Tiger Lady LLC, is an unincorporated association. At all times material to this proceeding, Tiger Lady LLC operated as an exhibitor as that term is defined in the Animal Welfare Act and the Regulations.

3. Respondent Diana Cziraky is an individual. At all times material to this proceeding, Respondent Diana Cziraky operated as an exhibitor as that term is defined in the Animal Welfare Act and the Regulations under Animal Welfare Act license number 31-C-0123. Respondent Diana Cziraky is the founder of, and doing business as, The International Siberian Tiger Foundation, The Siberian Tiger Foundation, and Tiger Lady, also known as Tiger Lady LLC.

4. Respondents’ business address is 22143 Deal Road, Gambier, Ohio 43022.

5. On or about February 28, 2000, April 29, 2000, July 14, 2000, October 21, 2000, October 28, 2000, October 29, 2000 and December 2, 2000, Respondents failed to handle lions and tigers during public exhibition so there was minimal risk of harm to the animals and the public and failed to have 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.

6. Effective November 24, 2000, the Administrator, Animal and Plant Health Inspection Service, acting pursuant to section 19(a) of the Animal Welfare Act (7 U.S.C. § 2149(a)), suspended Respondent Diana Cziraky’s Animal Welfare Act license for a period of 10 days.

7. On December 2, 2000, Respondent Diana Cziraky exhibited animals during the period when her Animal Welfare Act license was suspended.

CONCLUSIONS OF LAW

1. On or about February 28, 2000, April 29, 2000, July 14, 2000, October 21, 2000, October 28, 2000, October 29, 2000, and December 2, 2000, Respondents willfully violated section 2.131(b)(1) of the Regulations (9 C.F.R. § 2.131(b)(1)).

2. On December 2, 2000, Respondent Diana Cziraky willfully violated section 2.10(c) of the Regulations (9 C.F.R. § 2.10(c)).

For the foregoing reasons, the following Order should be issued.

ORDER

1. Respondents, their agents, employees, successors, and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and in particular shall cease and desist from:

a. Handling their animals during public exhibition in a manner that results in more than minimal risk of harm to the animals and the public;

b. Handling their animals during public exhibition without 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; and

c. Exhibiting any animal during a period when Respondent Diana Cziraky’s Animal Welfare Act license is suspended or revoked.

The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondents.

2. Respondent Diana Cziraky’s Animal Welfare Act license (Animal Welfare Act license number 31-C-0123) is revoked, effective 60 days after service of this Order on Respondents.

3. Respondents have the right to seek judicial review of this Order in the appropriate United States Court of Appeals in accordance with 28 U.S.C. §§ 2341, 2343-2350. Such court has exclusive jurisdiction to enjoin, to set aside, to suspend (in whole or in part), or to determine the validity of this Order. Respondents must seek judicial review within 60 days after entry of this Order. 7 U.S.C. § 2149(c). The date of entry of this Order is February 15, 2002.

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Failures & rules

Just a few years ago, most of the animals in urgent need of sanctuary care at any given time came from private individuals. As many animals as ever are coming from exotic petkeepers, but now greater numbers are coming from failed sanctuaries, whose founders gathered more animals than they could raise funds enough or find help enough or secure land enough to look after.

Scarcely a week goes by now that ANIMAL PEOPLE does not hear about a care-for-life animal sanctuary on the verge of closure, and sometimes several.

In the first week of May 2002, for example, Christin Burford of the CARE Foundation in Christmas, Florida, reportedly lost the lease on the site she used for six years to house a black leopard, a tiger, a jaguar, and a puma, as well as many smaller animals.

May 7, 2002 was the deadline date set by the USDA-APHIS for the closure of the Siberian Tiger Conservation Association, near Gambier, Ohio.

The six tigers and two lions belonging to founder Diana Cziraky, 33, now known as Diana McCourt, had reportedly bitten at least 11 people since March 2000.

Failing sanctuaries have usually done something that oversteps the definitions of “sanctuary” and rules for sanctuary operation advocated by The Association of Sanctuaries cofounder Pat Derby and American Sanctuary Association cofounder Carol Asvestas.

Both once exhibited animals to the public, but are now philosophically opposed to any kind of animal exhibition for entertainment. Both believe sanctuaries should not be open to the public other than on guided tours. Both are opposed to breeding animals under any pretext, including the preservation of endangered species, even under the auspices of a U.S. Fish and Wildlife Service species recovery program.

Both emphasize that sanctuaries should not keep animals on property they do not own.

Both are no strangers to just about every kind of trouble a sanctuary can have, and both are still fighting the usual battles.

As if by way of reminder that no good deed goes unpunished, Derby and partner Ed Stewart, cofounders of the Performing Animal Welfare Society, were ready on May 11 to move the first two of their six resident elephants to their new $3.7 million ARK 2000 facility near San Andreas, California. The 2,300-acre site was touted as setting a new standard for sanctuary elephant care. African elephant expert Cynthia Moss flew in from Kenya for the scheduled dedication. But the elephants could not be moved because of a legal dispute with neighbor John Ham.

Derby and Asvestas each wrote much of their personal perspective from dealing with such setbacks into the TAOS and ASA membership criteria. Their rules help to exclude would-be sanctuarians who are likely to get into trouble, but as Andy Davis of the Arkansas Democrat-Gazette pointed out recently, they also exclude everyone claiming to operate a sanctuary in the state of Arkansas.

“The owners of the Riverglen Feline Conservatory and Riddle’s Elephant and Wildlife Sanctuary say they provide refuges for unwanted exotic animals, but none are accredited by TAOS or ASA,” Davis wrote, because all have recent histories of breeding animals.

“If your premise is based on there being too many animals out there with no place to go, then it is counterproductive to breed,” ASA director Vernon Weir told Davis. “When you breed more animals, you are taking away space from the animals who already have no place to go.”

http://www.animalpeoplenews.org/02/7.8/sanctuary7802.html

2001

March 20, 2001

The Honorable Betty D. Montgomery
Attorney General of Ohio
State Office Tower
30 E. Broad St., 17th Floor
Columbus, OH 43215-3428

Dear Ms. Montgomery:

People for the Ethical Treatment of Animals (PETA) is an international nonprofit organization with more than 700,000 members dedicated to the protection of animals. I am writing to request that the attorney general’s office investigate possible fraud by the Siberian Tiger Foundation, operated by Diana Cziraky and located at 22143 Deal Rd. in Gambier, Ohio.

Cziraky operates a backyard animal menagerie that offers “close encounters” with tigers and lions, both adults and cubs. For $35, or $350 for a private session, members of the public are allowed to pet, hug, straddle, and pose with these animals. Cziraky falsely represents that direct physical contact with inherently dangerous and unpredictable animals is safe. This appears to violate Ohio’s Consumer Sales Practices Act, which prohibits deceptive, unfair, and unconscionable sales practices in consumer transactions.

According to the U.S. Department of Agriculture (USDA), animals at this facility have injured more than 11 adults and children since March of last year. Among the incidents was an attack on a 10-year-old boy who was knocked to the ground and bitten on the leg on October 21, 2000. In July 2000, a 10-year-old girl had just bent down to pet a tiger’s paw when the tiger suddenly grabbed her with his paws, drove her to the ground, put his mouth around her head, and began shaking her. On October 29, 2000, a woman was bitten on the ankle on her first day of a $2,500 “animal handler training course” that Cziraky offers. Cziraky herself required seven stitches when she was bitten by one of her lions. Cziraky has asked people who have been bitten by her big cats to report the injury as a dog bite when seeking medical attention.

In June 1999, a similar facility called Bridgeport Nature Center, based in Texas, paid $2,500 to settle charges that it had violated North Dakota’s consumer fraud law by promoting the misrepresentation that it was safe for people to participate in photo sessions with big cats. The charges stemmed from a July 1998 incident in which a 4-month-old tiger cub clawed a 5-year-old boy at the North Dakota State Fair while the child was having his photo taken with the tiger. The boy suffered severe facial cuts and required both plastic surgery and rabies shots.

PETA has documented more than 150 dangerous incidents involving captive big cats since 1990. These incidents have resulted in 39 deaths, including those of eight children; 136 injuries, including 40 to children; and the killing of 56 big cats.

The USDA has charged the Siberian Tiger Foundation with violating the Animal Welfare Act by endangering animals, exhibiting animals without proper supervision, and violating a license suspension. It is possible that the Siberian Tiger Foundation’s USDA exhibitor license will be revoked as a result of these charges. Unfortunately, it appears that Cziraky will simply skirt the consequences of license revocation by obtaining another USDA exhibitor license under a different name. A newly created organization called Siberian Tiger Conservation Association, with Cziraky identified as an “employee,” has applied for a new exhibitor license. Regardless of what this pitiful attraction is called, the fact remains that this is Cziraky’s backyard-she would remain as the operator, and the facility would continue to misrepresent the risk of injury by its animals.

Thank you for giving this matter your consideration. I look forward to your reply. I would be happy to answer questions or supply additional material.

Sincerely,

Debbie Leahy
Research Associate
Research, Investigations & Rescue Department

2000

Jim Rogers (301) 734-8563 jim.d.rogers@usda.gov
Laura Sanchez (301) 734-7255 laura.d.sanchez@usda.gov

USDA CHARGES SIBERIAN TIGER FOUNDATION WITH ANIMAL WELFARE ACT VIOLATIONS

RIVERDALE, Md., Dec. 19, 2000–The U.S. Department of Agriculture recently charged The International Siberian Tiger Foundation, The Siberian Tiger Foundation, Tiger Lady and Tiger Lady LLC, and David and Diana Cziraky, all doing business at 22143 Deal Road, Gambier, Ohio, with violations of the Animal Welfare Act.

“We believe that the Czirakys and their employees failed to maintain control of their animals and that resulted in a number of injuries to the public,” said W. Ron DeHaven, deputy administrator for animal care with USDA’s Animal and Plant Health Inspection Service. “In addition to civil penalties, we are asking, in this case, that Diana Cziraky’s license be suspended or revoked.”

Originally, David and Diana Cziraky were licensed together under AWA license number 31-C-0123. David Cziraky did not include his name on the license renewal and was dropped from the license on Sept. 1.

APHIS investigators found that the Czirakys failed to:

–Handle lions and tigers during public exhibition so there was minimal risk of harm to the public and failed to have sufficient distance or barriers between animals and the viewing public to ensure their safety on or about March, April 29, May 14, June, July 14, September, Oct. 21, 28, and 29, and Dec. 2; and

–Ensure that a responsible, knowledgeable, and readily identifiable employee or attendant was present at all times during periods of public contact with the animals on or about March, April 29, May 14, June, July 14, September, Oct. 21, 28, and 29, and Dec. 2.

In addition, Diana Cziraky exhibited lions and tigers on at least three occasions between Nov. 25 and Dec. 2 while her AWA license was suspended.

“Due to the nature of these charges we believe there is a certain urgency in this case,” DeHaven added. “Therefore, we have filed a motion to set an expedited date for an oral hearing to take place in Columbus, Ohio.”

APHIS inspectors conduct inspections of licensees to ensure compliance with the Act. Any violations that inspectors find can lead to civil penalties and license actions. The AWA requires that regulated individuals and businesses provide animals with care and treatment according to standards established by APHIS. The standards include requirements for recordkeeping, adequate housing, sanitation, food, water, transportation, exercise for dogs, veterinary care, and shelter. The law regulates the care of animals that are sold as pets at the wholesale level, transported in commerce, used for biomedical research, or used for exhibition purposes.

NOTE TO EDITORS: If you would like an interview concerning this or any other AWA related issue please contact Jim Rogers or Laura Sanchez at the numbers listed above.

Diana Ruth Cziraky

Alias: Diana McCourt, International Siberian Tiger Foundation, Siberian Tiger Conservation Association of Columbus, Ohio
Gender: Female
Approximate Age: 34
Date of Birth: Feb 12, 1967
Location: Gambier, OH (US)