Critters Government

John Dollarhite and his $90,000 USDA fine

update There’s an update to the story at the end.

John Dollarhite is a breeder located in Nixa, Missouri. Between April of 2008 and December of 2009, Dollarhite sold 619 animals in 56 separate transactions to two different pet stores. Large volume sales of pets require that the breeder be licensed with the USDA. By being licensed, the facility is periodically inspected by USDA APHIS inspectors to ensure the animals are being adequately cared for. Dollarhite did not get the necessary USDA license, so all of the sales were in violation of USDA APHIS regulations.

Recently, Dollarhite received a letter from the USDA informing him that he has been fined $90,643 for his actions. The letter also stated that if he didn’t pay this fine the matter would be referred to the USDA’s Office of the General Council for litigation. The letter also warned Dollarhate that he could be facing a fine of $10,000 for each infraction of the law.

Various Tea Party-like publications, including Andrew Breitbart’s Big Big Government, and individual web sites, such as Bungalow Bill’s, expressed outrage over the fee being proposed and the “big government” abuse against poor little folk such as Dollarhite. A small protest was held last week, and another one is planned outside the office of Congressmen Billy Long on June 2nd. Both of Missouri’s senators, Claire McCaskill and Roy Blunt, have been pulled into the fracas.

The USDA has been characterized as “federal thugs”, the issuance of the fine has been called unconstitutional, and many claim the Dollarhites civil rights have been violated. Those contesting the fee also contend that, since the breeder’s sales were contained within the state, the USDA has no jurisdiction.

There will always be those who use the term “thug” for any action of the government. And there will always be those who are quick to claim how any action by the government is unconstitutional. However, the Constitution contains provisions for Congress to enact laws, and agencies to enforce the laws. Yes, even acts of commerce that exist solely intrastate. What puzzles me more about the outrage over Dollarhite is that similar high fines have been levied against other breeders in Missouri for the same actions, yet no one protested these actions. A case in point was the USDA action against Marilyn Shepherd, in 2004 (pdf).

In 2004, the USDA filed a complaint against Marilyn Shepherd for violations of the Animal Welfare Act. Between the months of April and December in 2002, while operating without a valid USDA license, Shepherd sold 165 dogs on 26 different occasions to an agent who lives in Missouri for a pet store located in Kansas.

Shepherd contends, in her defense, that since the activity happened solely within the state of Missouri, she didn’t need a USDA license. However, as the judge ruled, Shepherd was aware that the dogs were intended for a pet store in another state, and thus her actions were a violation of the Animal Welfare Act.

But, I can hear some folks say, how does this apply to the Dollarhites? After all, they sold directly to the pet stores, and the pet stores were located within Missouri.

The Animal Welfare Act still applies, as noted in the USDA AWA FAQ, because it covers any pet breeder who sells to brokers, pet stores, or research facilities. A breeder, such as Dollarhite, who sells to pet stores is considered a wholesaler, not a retailer. The authority to regulate wholesale pet breeders, even those operating entirely intrastate, is granted in Article 1 Section 8 Clause 3 of the US Constitution, otherwise known as the “Commerce Clause”. The ability of Congress to enact laws that impact on purely intrastate commerce was upheld in the landmark Wickard v. Filbrun decision, that states a local action falls under the domain of the Commerce Clause if it “exerts a substantial economic effect on interstate commerce”.

You can find a reflection of Wickard v. Filbrun decision in the Congressional Statement applicable to the Animal Welfare Act:

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.

(emph. mine)

Agree or not, there are several decades of law backing the USDA’s actions…but the issue still remains, why the Dollarhites? Why are the folks so outraged about the USDA action against the Dollarhites not equally outraged against the actions taken against Shepherd, or other breeders, such as Cindy Brook?

The reason could be because the Dollarhites are selling *pet rabbits, not puppies.

Most people, on reading about an unlicensed breeder selling 619 puppies in a year’s period, would assume, rightfully, that the breeder is a puppy mill—a large scale commercial dog breeder operating outside the law. Few people will stand up for puppy millers. However, since the Dollarhites were selling rabbits, somehow the issue is different. According to the pundits arguing in support of the Dollarhites, a person selling 619 bunnies in 18 months is small potatoes, Mom-and-Pop—an operation that isn’t much more than a neighborhood “lemonade stand”.

To the USDA, though, it makes no difference if the Dollarhites were selling puppies or bunnies—the law is the same for both. Selling over 600 pets in 18 months makes the breeder a large scale commercial wholesaler, who must be licensed.

Perhaps the people are more outraged about the Dollarhite situation because of the circumstances. The Dollarhites have talked about setting up Dollarvalue Rabbitry with their son as a lesson to him on fiscal responsibility. They stated that they didn’t know they needed to be licensed, though the USDA has a record of them requesting information on obtaining a license in 2006. When this information** came out, Dollarhite stated that he was investigating licensing requirements for selling rabbit meat, but didn’t start selling rabbits as pets until 2008. However, a search in the Internet Archives Wayback machine on the Dollarvalue Rabbitry web site URL shows us that the Dollarhites were selling rabbits as pets online starting in 2006.

Still, the Dollarhites weren’t required to have a USDA license to sell a few rabbits as pets directly to the public via the internet. It was when they started selling the rabbits to the Silver Dollar “petting zoo” in Branson and to Petland in Springfield that they violated the law—something that is clearly defined in the information material related to AWA licensing. It was invoices to these establishments that brought the USDA to the rabbit breeder’s door.

(And when did lemonade stands need invoicing?)

If the outrage about the Dollarhite USDA action is related purely to the amount of the fine, consider the fine levied against the aforementioned Marilyn Shepherd: $50,000 for selling 156 puppies in 26 separate transactions. Extrapolating from the fine levied against Shepherd to the one levied against Dollarhite, the $90,000 fine seems neither excessive nor unusual.

What’s important to remember is that there are set fines for set actions. It is up to the judge to adjust the fine based on circumstances, something that the lawyer for the Dollarhites should be aware of. As an example of a judicial action to adjust a fine, the judge found Shepherd to have willfully violated AWA, but he still knocked the fine down to $25,000.

Now, the USDA can enter into a consent decree with the Dollarhites, reducing or even eliminating the fine. Cindy Brook entered into a consent decree about her violation, as did another breeding operation run by Floyd and Sharon Harrell. In addition, the USDA can also enter into a settlement agreement, such as the one Donald Johnson entered into. Regardless of approach taken, the USDA is constrained in their actions by the laws it is chartered to uphold—and that includes the amount of fine to levy for specific actions.

In 2010, the USDA Office of Inspector General released an audit of the department, APHIS responsible for enforcement of the Animal Welfare Act. Among the findings is the following:

Although APHIS previously agreed to revise its penalty worksheet to produce “significantly higher” penalties for violators of AWA, the agency continued to assess minimal penalties that did not deter violators. This occurred because the new worksheet allowed reductions up to 145 percent of the maximum penalty. While we are not advocating that APHIS assess the maximum penalty, we found that at a time when Congress tripled the authorized maximum penalty to “strengthen fines for violations,” the actual penalties were 20 percent less using the new worksheet as compared to the worksheet APHIS previously used.

(emph. mine)

It’s a free country if people want to have their little demonstrations. I would hope, though, that the members of Congress not allow small but vocal demonstrations to trigger them into using their influence to undermine the laws under which the USDA operates. After all, it was Congress that enacted these laws, and it’s the same Congress that recently tripled the fines that the USDA is supposed to apply. For McCaskill, Blunt, or Long to do so, undermines the rule of law and introduces a note of noisy chaos into the orderly application of the law.

As for the Dollarhites and the media coverage of their case, all I can do is recommend that publications, big or small, do a little fact checking before they begin beating their drums.

update The USDA has offered to waive the fee provided the Dollarhites never re-apply for a license, allow an inspection to ensure they no longer breed the rabbits, and provide documentation as to the disbursement of the animals.

This is actually close to what I expected to have happen, and matches previous USDA actions in the past. The leniency comes from the fact that this is the Dollarhite’s first violation and they’ve already shown willingness to get out of the business.

Unfortunately, the pundits who frothed up this kerfuffle are unaware of how the USDA works, and seem incapable of investigating past actions to determine likely outcomes. Of course not, mustn’t let facts get in the way of a good rant.

It is still unfortunate that Congressional members interceded. They are the ones, after all, that set the laws. Either they support their own laws, or they get out of the business of making them.

*And guinea pigs. The Dollarhites also began raising guinea pigs at the request of Petland in Springfield.

*The Dollarhites have also stated that the USDA only contacted them a couple of times, and that the people they have been in contact with have made several statements about the state of the rabbitry, the laws, and so forth. I have submitted a FOIA (Freedom of Information Act) request to the USDA for details regarding communications with the Dollarhite and will issue an update to this story when I receive them.


Joplin Update: the sweet and the sour

It does a heart good to see how much support and help Joplin is getting. The town needs it, too, because it has suffered through so much pain this week.

The Joplin Humane Society Animal Adoption and Resource Center is doing an outstanding job, with the help of the ASPCA, HSMO, HSUS, and American Humane Association. At last count, the organizations have rescued 573 pets and reunited 147 with their owners.

Among some of the pets was a quaker bird that actually flew to the shelter on its own. There have also been happy reunions between one person and her flock of chickens, and another owner with his boa constrictor, in addition to the more common cats and dogs (and fish, and ferrets, and…). The shelter will take pets from owners who have lost their homes and care for them, as long as necessary.

Folks have really stepped up with donations, and purchases from the Joplin HS Amazon wish list. UPS will have to deliver the purchases with a semi. Or two. Petsmart sent two truck loads of food, and other organizations have been equally generous.

However, with all the sweet news, we have some sour. As the watchdog site noted in a new article, various commercial dog breeders and members of the notorious HumaneWatch corporate front site have been attacking the Joplin Humane Society because the organization asked for help from national organizations. As the screen shots show, the HumaneWatch people have implied that the national organizations are “stealing” the pets away to “sell” in other states, and making other equally absurd claims.

Most people recognize bilge water when they see it, but the folks in Joplin don’t need such ugliness. Hopefully such mean spirited viciousness will end up biting these people in their own butts. In the meantime, we can focus on the good that people do, and ignore the rest.

update The Joplin HS has put out a request for donations for a cooler for the emergency shelter, since the weather is heating up. You can find a donation button at the link earlier in the page. In addition, they’ve also asked for Kuranda beds for the cats and dogs. These beds are the preferred bed for all animal shelters.

Critters Weather

The Joplin Tornado

No matter how many stories I read or photos I see, I continue to be shocked, daily, at the destruction in Joplin, Missouri.

If you want to help, there are several good relief agencies you can donate to. Since this is a site about dogs, if you want to help the pets in Joplin, I recommend donating to the Joplin Humane Society. You can also help the society by purchasing items on an Amazon Wish list set up for just this disaster.

If you want to help any pets during any disaster, I recommend donating to the ASPCA and/or the Humane Society of the US, as both have disaster assistance programs. If you’re local to Missouri, you can also donate to the Humane Society of Missouri. The ASPCA, HSUS, and Humane Society of Missouri, are all working with the Joplin Humane Society to help care for the displaced pets.

Unfortunately, as happens in these situations, rumors of nefarious deeds have surfaced about the rescue effort in Joplin. I wanted to take a moment to address the ones I’ve heard.

First, the animals that were at the Joplin Humane Society and that were moved to Wayside Waifs in Kansas City were homeless residents at the shelter, not displaced pets. The animals were moved so that the Joplin Humane Society could focus on helping with displaced pets.

Second, rescue organizations are not converging on Joplin to “steal” pets and take them elsewhere. There are sufficient numbers of dogs (and cats) needing homes in every part of the country, no one needs to sneak into Joplin in the dead of night in order to abscond with the pets.

There was a rumor that a Minnesota rescue had swooped down and grabbed some dogs in an out of state rescue, but the story hasn’t been verified, and it doesn’t make any sense. For one, the area has been closed off by police. For another, Minnesota had its own tornado hit, and its own problems. Lastly, no rescue would do such an action without coordination with local animal organizations.

I believe what happened is that discussions about tornadoes in both areas, and rescues in both areas, were conflated.

Another rumor is that if people don’t pick up their pets in 14 days, they’ll be destroyed. The Joplin Humane Society has already stated they will keep a pet for a pet owner as long as necessary if the owner has lost their home. However, the specialized animal rescue warehouse may only be open for the initial two weeks of the disaster. I imagine how long it’s open depends on how quickly the numbers of displaced pets shrink. Once the number of pets shrinks to a size the Joplin Humane Society can manage, they’ll close the warehouse and handle the rest in-house.

If dogs and cats and other pets aren’t claimed over a certain period of time, then the Humane Society will have to assume they’re not going to be claimed and put them up for adoption. However, that shouldn’t be happening for at least a couple of weeks, perhaps even longer. Frankly, if no one has claimed a cat or a dog in a couple of weeks, sad to say, it may be because there is no one left to claim the animal. The animals can’t stay in the cages forever—they need homes.

To keep up with the latest news and to volunteer, check the organization’s Facebook page.

update A story in the Joplin Globe does mention the Minnesota rescue. However, it still doesn’t make sense. No legitimate rescue would come into a disaster area and just remove animals. I still believe this is more rumor than fact.

Critters Legal, Laws, and Regs

Koster’s Handling of Unlicensed Facility demonstrates failures in laws

Chris Koster, Missouri Attorney General, has published another press release about a court injunction against an unlicensed breeder. His office states that the breeder violates several ACFA regulations:

Koster said Shirley Gilbert owns Wolfgang’s Puppies and Gee Gee’s Yorkies, a commercial breeding facility in Aurora. Department of Agriculture inspections uncovered numerous violations of the Animal Care Facilities Act. Gilbert failed to provide clean, dry bedding and wind and rain breaks to protect the dogs from the elements; failed to keep food receptacles clean and sanitized; failed to collect and remove animal waste; failed to clean and sanitize the facility or to provide adequate space for the dogs; failed to provide housing that protected the animals from injury; and failed to provide adequate veterinary care to the animals, many of which had matted coats and one that had severe eye complications.

The Attorney General’s office states that he’s obtained a temporary restraining order prohibiting the breeder from selling dogs, but selling dogs without a license is a Class A misdemeanor. Why, on earth, was this woman not charged with a crime?

In addition, the press release details horrendous conditions for the dogs, but nothing, nothing, about rescuing the dogs or removing the dogs from what sounds to be extremely dangerous conditions. In an article in the News-Leader, we find out that the breeder is allowed to keep the 22 adult dogs and 12 puppies until the June 10 hearing…and possibly later.

Rather than make things better for dogs, the recent actions to gut Proposition B have left things in worse shape then what we had even before Proposition B. AG Koster, this is nothing to brag about.

If you agree, contact the Attorney General’s office, and tell Koster to do more than just file a restraining order when dogs lives are at risk.

Critters Legal, Laws, and Regs

S & S Family Puppies: “Good” and Bad News

CBS has announced that the Missouri Attorney General has closed down S & S Family Puppies in Milan, Missouri. S & S Family Puppies was the top of the list in the Missouri Dirty Dozen report.

I can’t find any official announcement at the Attorney General’s web site. Nor is there a history of this item being taken to court. In fact, the news may not be as good as it sounds, as noted in a comment to the CBS story (update Did find information on court case, and copy of consent decree, as noted at end of story):


The Stephensons’ dogs, however, are not going to rescue groups or shelters where they could be adopted into loving families. Instead, the state is allowing them to be transferred or sold to other commercial breeding facilities. Forty of the dogs are scheduled to be sold to the highest bidder this Saturday at the Southwest Kennel Auction in Wheaton, Mo.

And because only the Stephensons were mentioned in the Attorney General’s statement, we suspect many of these dogs may be transferred to a second kennel operated by another family member, Brandi Cheney. USDA records list Stephenson and Cheney as co-owners of S & S Family Puppies. In fact, last year several aggrieved consumers sued Diana Stephenson and Cheney under the Missouri consumer protection law. The consumers alleged that Stephenson and Cheney sold them sick puppies but misled them into believing the puppies were healthy. A copy of the plaintiffs’ complaint was sent to Attorney General Koster.

Nevertheless, as detailed in our March 2011 Dirty Dozen update, Cheney recently obtained a USDA license for a new kennel, called Circle B Farms, which has also been cited for severe animal care violations.

Thus, the surviving dogs likely won’t have a chance at a better life, but merely a life in another puppy mill. This is unacceptable. Puppy mill operators who have repeatedly violated both state and federal laws should not be permitted to move or sell their surviving “stock” to other puppy mill operators. The dogs have already suffered untold trauma and should not be transferred to another breeding facility, especially considering that local and national animal groups are prepared to help these dogs. It’s time they find a loving home.

(Comment quote from a story at HSUS)

Southwest Auction is having a consignment kennel auction today, and if you look down towards the end of the page you’ll find, in small print, a listing for Diana Stephenson, the co-owner of S & S. I notice that, unlike other auctions, there is no note from the auction house about what a good breeder this breeder is; no testimony from the kennel vet. More disconcerting is that the number of dogs listed does not account for the number of dogs S & S had at their last inspection.

(Missouri MDA inspections)

I’m greatly disturbed to hear that the person listed as co-owner of S & S, Brandi Cheney, obtained new USDA and MDA licenses. The USDA inspections for this newly licensed kennel already show violations. Cheney has also sold puppies under another name, CC Puppies, with a different license, but the same types of violations. By the license fee Cheney paid for her newest license, she has a significant number of dogs, which supports the HSUS statement that all that’s happened is that the dogs have been shifted from one of the owners to the other, and this “victory” is nothing more than a sham.

(Note the reference to a second license in the recent USDA inspection report for S & S Family Puppies. Also note that both the Stephensons and Cheney have been sued by puppy buyers.)

update I did find a story on the court judgment. It is a consent decree, which means the Stephenson’s agreed to it. But look at the requirements: the facility is required to transfer dogs to another ACFA licensed facility. That’s it. Both Director Hagler and AG Koster brag about the outcome, but all that’s happened is that the poor dogs have been transferred from one puppy mill to another. This is not a victory.

Second update KMOV covers the fact that Stephensons can keep the profits from the dog auction. The story also mentions the fact that the breeders’ daughter is still licensed and able to “buy” her parents’ dogs.

A sham. A total sham. That’s what the “modification” of Proposition B is giving us: a mockery of a law.