J.E. Burkholder d/b/a/ Whispering Spring Kennel v. Dept. of Agriculture ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Burkholder :
d/b/a Whispering Spring Kennel, :
Petitioner :
:
v. : No. 1433 C.D. 2018
: Argued: April 11, 2019
Department of Agriculture, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P)
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: July 12, 2019
James Burkholder, d/b/a Whispering Spring Kennel, petitions for
review of an adjudication of the Secretary of Agriculture that imposed a $40,000
civil penalty on Burkholder for not meeting the standards applicable to a commercial
kennel. Burkholder contends that the Secretary erred because he has never operated
a commercial kennel but, rather, a Class IV kennel, for which he was properly
licensed. Burkholder concedes that he exceeded the limits in his license for number
of dog transfers, but he contends that the Secretary erred in holding that this violation
automatically converted his kennel to a commercial kennel subject to a different set
of regulatory standards. Agreeing that the Dog Law1 did not authorize the sanction
imposed, we reverse and remand.
On December 18, 2017, on behalf of the Department of Agriculture’s
(Department) Bureau of Dog Law Enforcement (Bureau), Christopher Seiple did an
unannounced inspection of Burkholder’s Whispering Spring Kennel. At the time of
1
Act of December 7, 1982, P.L. 784, as amended, 3 P.S. §§459-101 - 459-1205.
the inspection, Burkholder held a noncommercial Class IV kennel license and had
applied for a Class III kennel license for 2018. Section 206(a) of the Dog Law
provides that a “Kennel Class IV” license holder is authorized “[t]o keep or operate
a private kennel, pet shop-kennel, research kennel, rescue network kennel, dealer
kennel or kennel for a total of 151 to 250 dogs of any age during a calendar year--
$400 per year.” 3 P.S. §459-206(a). A “Kennel Class III” license holder is
authorized “[t]o keep or operate a private kennel, pet shop-kennel, research kennel,
rescue network kennel, dealer kennel or kennel for a cumulative total of 101 to 150
dogs during a calendar year -- $300 per year.” Id. Seiple found Burkholder’s
facilities fully complied with the Class IV kennel licensing standards.
When Seiple discovered that Burkholder had transferred 62 dogs over
the course of calendar year 2017, Seiple reinspected the kennel, using the licensing
standards for a commercial kennel. Seiple concluded that Whispering Spring Kennel
did not meet the exacting standards imposed upon a commercial kennel.
Accordingly, on December 19, 2017, Seiple issued a “Notice of Violation of
Regulations under this Act,” listing 16 ways in which Whispering Spring Kennel did
not comply with the standards for a commercial kennel. This Notice gave
Burkholder until February 28, 2018, to come into compliance with the requirements
for a commercial kennel.2
On March 7, 2018, Seiple did a follow-up inspection and found that
Whispering Spring Kennel had not addressed the 16 items listed in the December
Notice. Accordingly, on March 16, 2018, the Department initiated an enforcement
2
The Notice explained that it was not an order or a final action. It stated that “[i]f the Department
determines that an enforcement action is appropriate, you will be notified of this action.”
Reproduced Record at 208a (R.R. __).
2
action against Burkholder by issuing a “Proposed Adjudication and Assessment of
Administrative Penalty” to Burkholder, citing the following 11 provisions of Section
207 of the Dog Law and related regulations pertaining to commercial kennels:
A. 3 P.S. §459.207(h)(5) Wardens were unable to verify a
written program of veterinary care.
B. 3 P.S. §459.207(i)(1) Wardens observed a few primary
enclosures that did not meet the minimum space requirements for
the dogs housed within.
C. 3 P.S. §459.207(i)(3)(i) Wardens observed that several dogs
over 12 weeks of age were being housed on metal strand flooring.
D. 3 P.S. §459.207(i)(4) Wardens noted all primary enclosures
housing adult dogs over 12 weeks of age in the kennel were not
provided unfettered clearance to an exercise area.
E. 3 P.S. §459.207(i)(6)(i) Wardens noted all primary
enclosures housing adult dogs over 12 weeks of age in the kennel
were not provided unfettered clearance from their primary
enclosure to an exercise area.
F. 3 P.S. §459.207(i)(6)(ix) Wardens noted all primary
enclosures housing adult dogs over 12 weeks of age in the kennel
did not have an exercise area on ground level with solid and
maintainable flooring.
G. 3 P.S. §459.207(i)(6)(x)(A) Wardens noted all primary
enclosures housing dogs over 12 weeks of age in the kennel did
not have access to an outside exercise area.
H. 3 P.S. §459.207(i)(8) Wardens were unable to verify
veterinary records for all dogs on the premises.
I. 7 Pa. Code §28a.2(b) A written certification under the
signature and seal of a professional engineer was not present.
J. 7 Pa. Code §28a.2(c) Without a written certification [from]
an engineer, this warden was unable to make the minimum
3
inspection of assuring that the proper mechanical ventilation,
auxiliary ventilation, or humidity control system was installed or
operational.
K. 7 Pa. Code §28a.2(e) Without a written certification from an
engineer, it was unknown to this warden if a proper mechanical
ventilation system is installed to meet the standards required by
this chapter.
Proposed Adjudication and Assessment of Administrative Penalty, 3/16/2018,
Certified Record, Item No. 1 at 1-2 (C.R.___); R.R. 176a-177a. The Proposed
Adjudication alleged a violation of Section 207(a.1) of the Dog Law,3 which
prohibits a kennel from operating without an appropriate license issued under
Section 206.
The Proposed Adjudication explained how the proposed penalty was
calculated:
3
Section 207(a.1) states as follows:
(a.1) Prohibition to operate; injunction; fines.--
(1) It shall be unlawful for kennels described under section 206 to
operate without first obtaining a kennel license from the department.
(2) The secretary shall not approve any kennel license application
unless such kennel has been inspected and approved by a State dog
warden or employee of the department.
(3) The secretary may file a suit in equity in the Commonwealth
Court to enjoin the operation of any kennel that violates any of the
provisions of this act.
(4) It shall be no defense to any civil penalty or criminal prosecution
under this act that a person operating a kennel failed to properly
obtain the appropriate license.
(5) A kennel operator that is applying for a different license because
of an increase in the total number of dogs or due to birth of
additional dogs in the kennel during a calendar year shall not be in
violation, provided the application is filed within seven days of the
increase.
3 P.S. §459-207(a.1).
4
WHEREFORE, pursuant to its Authority under Subsection
(2)(1) of Section 903(a) of the Dog Law (3 P.S. §459-
903(a)(2)(i)) in determining the final assessed administrative
penalty against Burkholder, the PDA hereby proposes to impose
an amount of $500 per day for one combined offense, for 80 days
(December 18, 2017, through March 7, 2018 (follow-up
inspection), or $40,000.00 against Burkholder for the violations
described above.
If you choose to appeal this determination you should proceed as
set forth in Section C below.
C.R. Item No. 1 at 4; R.R. 203a (emphasis added). Consistent with the Proposed
Adjudication’s instructions in Section C on how to appeal, Burkholder filed a
“Notice of Appeal and Request for Hearing.” C.R. Item No. 2 at 2; R.R. 2a.
At the hearing, Seiple testified in support of the Proposed Adjudication.
He explained that only a commercial kennel can transfer more than 60 dogs during
a calendar year. Whispering Spring Kennel transferred 62 dogs in 2017 even though
it did not have a commercial license. Seiple acknowledged that his inspection
showed that the facilities were “fine that day.” Notes of Testimony, 7/17/2018, at
25 (N.T. __); R.R. 29a. But for exceeding the annual limit on dog transfers,
Whispering Spring Kennel complied with the standards for a Class IV Kennel. Id.
However, Whispering Spring Kennel did not meet the standards for a commercial
kennel, in that it lacked certain engineering certifications, solid flooring and
appropriate veterinary records. It was on this basis that the Bureau imposed the
administrative penalty of $40,000.
Kristen Donmoyer, Director of the Bureau of Dog Law Enforcement,
testified that the commercial kennel license was created in 2008 to address the health
concerns of kenneled dogs. In her view, for a noncommercial kennel to operate as
5
a commercial kennel constituted a serious violation. Donmoyer explained that in
“December, we typically go to kennels that we feel have historically been close to
… going over” the limit of 60 dog transfers. N.T. 79; R.R. 83a. This is why the
Department inspected Burkholder’s kennel so late in the calendar year. Donmoyer
explained that the Department’s sanctions were necessary to protect the health of
dogs in commercial kennels; to protect members of the public who purchase dogs;
and to be fair to the 86 commercial kennels in Pennsylvania “that are regulated and
doing things the right way.” N.T. 86; R.R. 90a.
Donmoyer explained that if Burkholder was interested in downsizing
his operation, he could have closed his kennel; waited a year; and then reopened the
type of kennel he wanted. Instead, four puppies were born on December 7, 2017.
Donmoyer testified that as of the date of the hearing, the Department considered
Whispering Spring Kennel to be a commercial kennel.
Burkholder testified on his own behalf. In 2017, he held a
noncommercial Class IV kennel license. This allowed him to hold up to 250 dogs
of any age. He applied for a noncommercial Class III kennel license for 2018, which
would limit the total number of dogs to 101 to 150 during the calendar year. The
only way to downsize was to transfer dogs, and 12 of the 62 transfers had been made
to a rescue shelter. As of the time of the hearing, the Department had not granted
Burkholder a Class III kennel license.
On September 4, 2018, the Hearing Officer issued a proposed report
recommending that Burkholder’s appeal be denied. The proposed report concluded
that Burkholder was operating a commercial kennel because he (i) was breeding and
whelping dogs and (ii) transferred 62 dogs during calendar year 2017. Because
6
Whispering Spring Kennel did not present evidence to show that it satisfied the
standards for a commercial kennel, it was in violation of the Dog Law. The proposed
report recommended a $40,000 penalty based upon Whispering Spring Kennel’s
failure to meet the standards for a commercial kennel for the period of December
18, 2017, through March 7, 2018. Neither party filed exceptions.
On further review,4 the Secretary issued a final adjudication that
adopted the Hearing Officer’s proposed report. Citing Keith v. Pennsylvania
Department of Agriculture, 116 A.3d 756, 759 (Pa. Cmwlth. 2015), the Secretary
emphasized the health and safety protections provided by the Dog Law. The
Secretary concluded:
Based upon the clear and unambiguous definition of a
commercial kennel in the [Dog Law], and in reading the statute
in its entirety to give effect to all its provisions, as we must, the
Bureau’s interpretation and application of Section 459-206, in
conjunction with Section 459-102 affords meaning to both
provisions consistent with the purpose and intent of the Dog Law
to protect dogs bred and raised through commercial kennel
operations and those who ultimately purchase them. The Bureau
designation of Whispering Spring Kennel as a commercial
kennel is, therefore, reasonable for the purpose of determining
the standards applicable to its operations.
Adjudication, C.R. Item No. 9 at 17 (emphasis added). The Secretary rejected
Burkholder’s legal argument that the Dog Law and its implementing regulations do
not provide for an automatic conversion from one type of kennel to another,
responding that the Dog Law did not explicitly prohibit automatic conversions.
Finally, the Secretary rejected Burkholder’s alternative argument that even if the
4
The Secretary reviewed the proposed report pursuant to 1 Pa. Code §35.226(a)(2) (allowing for
review of proposed report by agency head after exceptions are filed or “upon review initiated by
the agency head”).
7
Bureau could designate Whispering Spring Kennel as a commercial kennel, the
designation had to expire at the end of 2017. Burkholder petitioned for this Court’s
review.
On appeal,5 Burkholder argues that the Dog Law does not authorize the
automatic conversion of a Class IV kennel to a commercial kennel upon the transfer
of the 61st dog in a calendar year. Burkholder argues that Whispering Spring Kennel
was in good working order and clean and none of the dogs were neglected. He
explains that only because the kennel was downsizing did he exceed the transfer
limit of 60 dogs per year, 12 of which were sent to a rescue shelter. Burkholder
challenges the Secretary’s conclusion that by operation of law Whispering Spring
Kennel became a commercial kennel on December 12, 2017, when he transferred
the 61st dog and instantly became obligated to comply with the standards for a
commercial kennel. Burkholder argues that the Department’s expansive read of the
Dog Law offends fundamental principles of statutory construction and due process.
This case turns on the meaning of the Dog Law. “The object of all
interpretation and construction of statutes is to ascertain and effectuate the intention
of the General Assembly. Every statute shall be construed, if possible, to give effect
to all its provisions.” 1 Pa. C.S. §1921(a). If the language of the statute is clear and
unambiguous it must be given its plain and obvious meaning. Eat’n Park
Restaurants Business Trust v. Commonwealth, 821 A.2d 160, 167 (Pa. Cmwlth.
2003). Although one is admonished to listen to what a statute says, one must also
listen attentively to what it does not say. Kmonk-Sullivan v. State Farm Mutual
5
This Court’s review determines whether constitutional rights were violated, whether an error of
law was committed, or whether necessary findings of fact are supported by substantial evidence.
2 Pa. C.S. §704.
8
Automobile Insurance Co., 788 A.2d 955, 962 (Pa. 2001). It is not the role of a
court, by interpretation, to add a requirement to a statute that the legislature did not
see fit to include. JP Morgan Chase Bank N.A. v. Taggart, 203 A.3d 187, 198 (Pa.
2019).
The Department asserts that the moment a kennel transfers more than
60 dogs, it becomes a commercial kennel that is subject to all of the enhanced
regulatory standards applicable to a commercial kennel. It bases this position on
Section 102 of the Dog Law, which defines a “commercial kennel” as follows:
A kennel that breeds or whelps dogs and:
(1) sells or transfers any dog to a dealer or pet shop
kennel; or
(2) sells or transfers more than 60 dogs per calendar
year.
3 P.S. §459-102. Section 102 does not define a “noncommercial kennel,” but it does
define a “private kennel,” “pet shop-kennel,” “research kennel,” “rescue network
kennel,” “dealer kennel” and “kennel.” Id. Any of these different types of kennels
can hold a “Class IV Kennel” license, and any can breed or whelp dogs.6
The Dog Law is not a model of clear drafting. Nevertheless, we are
bound to give meaning to the General Assembly’s intention and are guided, as
always, by the words it chooses to use. The Dog Law defines a Class IV Kennel in
terms of the number of dogs it can house. It is silent on the number of dogs it can
6
Notably, the record does not identify which of these types of kennels describes Whispering Spring
Kennel.
9
house and breed, and it is silent on the number of dogs it may transfer in a calendar
year.
Section 102 of the Dog Law defines a commercial kennel, inter alia, as
one that transfers more than 60 dogs a year. 3 P.S. §459-102. Section 206(a) of the
Dog Law7 establishes a series of commercial kennel classes on the basis of how
7
Amendments to Section 102 and Section 206(a) were made in the Act of October 9, 2008, P.L.
1450. Section 206(a) contains a list of kennel license classifications:
Kennel Class I.--To keep or operate a private kennel, pet shop-kennel, research
kennel, rescue network kennel, dealer kennel or kennel for a total of 50 dogs or less
of any age during a calendar year--$75 per year.
Kennel Class II.--To keep or operate a private kennel, pet-shop kennel, research
kennel, rescue network kennel, dealer kennel or kennel for a total of 51 to 100 dogs
of any age during a calendar year--$200 per year.
Kennel Class III.--To keep or operate a private kennel, pet shop-kennel, research
kennel, rescue network kennel, dealer kennel or kennel for a total of 101 to 150
dogs of any age during a calendar year--$300 per year.
Kennel Class IV.--To keep or operate a private kennel, pet shop-kennel, research
kennel, rescue network kennel, dealer kennel or kennel for a total of 151 to 250
dogs of any age during a calendar year--$400 per year.
Kennel Class V.--To keep or operate a private kennel, pet shop-kennel, research
kennel, rescue network kennel, dealer kennel or kennel for a total of 251 to 500
dogs of any age during a calendar year--$500 per year.
Kennel Class VI.--To keep or operate a private kennel, pet shop kennel, research
kennel, rescue network kennel, kennel or dealer kennel for a total of more than 500
dogs of any age during a calendar year--$750 per year.
Boarding Kennel Class I.--To keep or operate a boarding kennel having the capacity
to accommodate a total of 1 to 10 dogs at any time during a calendar year--$100
per year.
Boarding Kennel Class II. --To keep or operate a boarding kennel having the
capacity to accommodate a total of 11 to 25 dogs at any time during a calendar
year--$150 per year.
Boarding Kennel Class III.--To keep or operate a boarding kennel having the
capacity to accommodate 26 or more dogs at any time during a calendar year--$250
per year.
Nonprofit Kennel.--To keep or operate a nonprofit kennel--$25 per year.
10
many dogs are kenneled in a calendar year. 3 P.S. §459-206(a). For example, a
“Kennel Class C-1” license is one that authorizes a kennel “[t]o keep or operate a
commercial kennel for a total of 50 dogs or less of any age during a calendar year -
$75 per year.” 3 P.S. §459-206(a). The definition of “commercial kennel” in
Section 102, together with the establishment of different categories of commercial
licenses in Section 206(a), establish that a kennel must have one of the enumerated
commercial licenses in order to transfer more than 60 dogs a year. By inference, a
“Kennel Class IV” may transfer up to 60 dogs a year but no more. We accept this
part of the Secretary’s construction of the Dog Law.
This means that Whispering Spring Kennel violated the Dog Law when
it transferred two dogs in excess of the 60-dog transfer limit in 2017 for a Kennel
Class IV. Specifically, it did not have “the appropriate license” when it transferred
the 61st and 62nd dog in 2017. 3 P.S. §459-207(a.1)(4).
However, Section 102 of the Dog Law does not support the
Department’s contention that Whispering Spring Kennel automatically became a
Kennel Class C-I.--To keep or operate a commercial kennel for a total of 50 dogs
or less of any age during a calendar year--$75 per year.
Kennel Class C-II.--To keep or operate a commercial kennel for a total of 51 to 100
dogs of any age during a calendar year--$200 per year.
Kennel Class C-III.--To keep or operate a commercial kennel for a total of 101 to
150 dogs of any age during a calendar year--$300 per year.
Kennel Class C-IV.--To keep or operate a commercial kennel for a total of 151 to
250 dogs of any age during a calendar year--$400 per year.
Kennel Class C-V.--To keep or operate a commercial kennel for a total of 251 to
500 dogs of any age during a calendar year--$500 per year.
Kennel Class C-VI.--To keep or operate a commercial kennel for a total of more
than 500 dogs of any age during a calendar year--$750 per year.
3 P.S. §459-206(a).
11
commercial kennel on December 12, 2017, and for all time thereafter. First, a kennel
license lasts 12 months. 3 P.S. §459-206(a). Second, the Dog Law states that a
kennel may not convert its kennel operation without a license application and
approval. For example, Section 207(a.1)(5) states:
A kennel operator that is applying for a different license because
of an increase in the total number of dogs or due to birth of
additional dogs in the kennel during a calendar year shall not be
in violation, provided the application is filed within seven days
of the increase.
3 P.S. §459-207(a.1)(5) (emphasis added). The obligation of the kennel to apply for
a different license stands in stark contrast to the Department’s theory of an automatic
license conversion. That a change in a kennel’s operations triggers the need for a
license application is inconsistent with, not supportive of, an automatic conversion
of a kennel.
The Dog Law contains specific penal provisions in Section 207(a.2)
and (a.3) of the Dog Law; they state, in relevant part, as follows:
(a.2) Civil penalties and remedies.--The following shall apply to civil
penalties and remedies for unlicensed kennels:
(1) In addition to proceeding under any other remedy available
at law or in equity for a violation of a provision of this act or a
rule or regulation adopted or order issued under this act, the
secretary may assess a civil penalty, in addition to any penalty
under section 903(c), against an unlicensed kennel of not less
than $500 nor more than $1,000 for each day it operates in
violation of this act. The penalty shall be premised on the gravity
and willfulness of the violation, the potential harm to the health
and safety of the animals and the public, previous violations and
the economic benefit to the violator for failing to comply with
this act.
***
12
(a.3) Cease and desist order.—
(1) The secretary may provide a written order to cease and desist
operating to an owner who is operating a kennel without a
license. The order shall set forth the general factual and legal
basis for the action and shall advise the affected person that
within ten days of receipt of the order, he may file with the
secretary a written request for an administrative hearing.
3 P.S. §459.207(a.2), (a.3). The Department could have pursued any of these actions
against Burkholder for his unlicensed conduct, i.e., the transfer of two dogs in 2017
in excess of the limits of his license.
An administrative agency’s supervisory authority “is not without
limitation.” Aetna Casualty and Surety Co. v. Commonwealth, Insurance
Department, 638 A.2d 194, 200 (Pa. 1994). Rather, “an administrative agency can
only exercise those powers which have been conferred upon it by the Legislature in
clear and unmistakable language.” Id. (citation omitted). The Dog Law has not
authorized the Department to force a kennel to undertake substantial upgrades when
it violates the parameters of its license. The Department can impose civil penalties,
or it can order the kennel to cease and desist from exceeding its transfer limit.
However, it cannot impose sanctions that are not expressly authorized in the Dog
Law. Section 207(a.2) and (a.3) are penal provisions subject to a narrow
construction. See 1 Pa. C.S. §1928(b)(1) (“All provisions of a statute of the classes
hereafter enumerated shall be strictly construed: (1) Penal provisions.”).
The Department’s contrary argument is not persuasive. It argues that
the Dog Law’s definition of a commercial kennel triggers an automatic conversion
of a noncommercial kennel to a commercial kennel upon the transfer of the 61st dog
before December 31 of any license year. This is heavy lifting for a simple statutory
13
definition of “commercial kennel.” Nevertheless, the Department argues that its
interpretation is entitled “to great weight.” Department Brief at 9. However,
deference to an agency’s interpretation is triggered only where the statute in question
is ambiguous. Velocity Express v. Pennsylvania Human Relations Commission, 853
A.2d 1182, 1185 (Pa. Cmwlth. 2004) (“[W]ith regard to ambiguous statutory
language, courts are to give strong deference to an administrative agency’s
interpretation of a statute,” but “deference is unwarranted” where the agency’s
“interpretation is unwise or erroneous.”) (quoting Rosen v. Bureau of Professional
and Occupational Affairs, State Architects Licensure Board, 763 A.2d 962, 968 (Pa.
Cmwlth. 2000)). Here, the Secretary specifically concluded that there was nothing
ambiguous in the statutory definition of “commercial kennel.” Adjudication, C.R.
Item No. 9 at 17. In any case, the Department’s interpretation is erroneous. Simply,
there is no ambiguity and no basis for the Court to defer to the Department’s
interpretation.
For all of these reasons, we hold that the Secretary erred in subjecting
Burkholder to the standards for a commercial kennel and imposing a $40,000
administrative penalty for not meeting those standards over the course of three
months. We agree with the Secretary that Burkholder violated Section 207(a.1) of
the Dog Law by twice exceeding the limit of 60 dog transfers in a calendar year, and
this may subject him to the sanctions authorized by the Dog Law. The Secretary can
consider an appropriate sanction, if any, on remand.
For these reasons, we reverse the Secretary’s adjudication and remand
this matter for further proceedings consistent with this opinion.
_____________________________________
MARY HANNAH LEAVITT, President Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Burkholder :
d/b/a Whispering Spring Kennel, :
Petitioner :
:
v. : No. 1433 C.D. 2018
:
Department of Agriculture, :
Respondent :
ORDER
AND NOW, this 12th day of July, 2019, the order of the Department of
Agriculture dated September 25, 2018, is hereby REVERSED and the matter is
REMANDED for proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge