on whether mr horton committed a willful violation of the act in question that is relevant for several purposes first for whether there was a violation in the opinion of mr horton conceding that even if there was not a willful violation it was alleged in the complaint that there must be a willful violation and that wasn't proven and sorry the second purpose that that may be important is for determining the the amount of the civil penalty that was assessed so although not implicitly stated and i'm sorry not expressly stated it is implicit that a finding  is important and was actually factored into the judicial officers review of this case so the first question is whether there was a violation i think that it's pretty clear that mr horton was operating as a dealer for the first set of transactions and if i could just kind of summarize those transactions because i'm not good with rattling off dates there are about one hundred fifty dogs sold in an eleven month period from november of two thousand and six to september of two thousand and seven so i would just refer to those as probably the nine hundred fifty dogs as well for this issue come up from the lower depths that's because that's what they claim he did originally our position is that because the complaint stated that the violations were will fall at the u s d a would be required to prove that on the finding of summary judgment and neither the administrative law judge nor the judicial officer found willfulness so using a summary judgment standard to the summary judgment motion should have been denied at the initial level however what if the your i believe that so there probably should have it would have been necessary for some procedural elements to have been done maybe amending the complaint something like that that wasn't done but mr mort book the essence of your position than is there simply had to be an amendment of the complaint before it could have proceeded to summary judgment if there wasn't evidence of will that that isn't the essence of our argument your honor with all due respect i think that's a point that's come up come up today i think the more appropriate way to frame the essence of the argument today is that the civil penalty imposed just wasn't supported by law are fact so whether or not it was willful yes your honor i think that will haunt us is something that was taken into account when weighing those factors and there just wasn't a finding of fulfilling s and if that spilled over into the analysis under the factors then that would have been improper i think that the the primary way willfulness was used was kind of inner twined with the good faith factors the gravity of the offenses and whether there were prior violations the fourth factor that would be necessary to have been weighed that i haven't mentioned would be the size of the operation but your was a big civil penalty but it still was within the authority violating the animal welfare act actually the largest penalty is that i could find was there against the ringling brothers and it was two hundred seventy thousand dollars we're not dealing with the ringling brothers here we're dealing with a breeder in hillsdale virginia who after being notified by inspectors that he was in violation of the animal where for welfare act substantially decreased the amount of dogs he had sold there is a question after he was notified by the inspector and in person visit in november of two thousand and eight mr horton sold approximately forty eight dogs there was one transaction that involved forty two dogs another that was for dogs and one that was two dogs and that those three transactions occurred over about a year and a half a little less than a year and a half's time which compared t scale of the operation that mr horton had been conducting before notified by a fist that he was in violation is a huge decrease which i think goes to good faith the administrative or i judicial officer determined that mr horton was acting in bad faith because he continued operations and that's just that's true mr horton isn't denying that any of these sales occurred because it is well documented by fact that they occurred but we were looking at good faith when he scaling down his operation from nine hundred fifty dogs in eleven months to less than fifty dogs in about fifteen months that's a serious good faith effort to come into to come into compliance with what's required and there was an issue of me a material issue a fact that could have been litigated had this matter gone to hearing instead of being disposed of with summary judgment there were two transactions the four dog sale and the two dogs sale that are pretty clearly retrained retail transactions and there is an exemption in the act and i don't think that fact is disputed that a person who's just selling dogs out of their home to another person as a pet is exempt from the act but mr horton would concede that that forty two dog transaction is a borderline transaction there on its face there would have been evidence presented at hearing that mr horton didn't know what the person who he sold those dogs to was intending to do with those dogs and that was also so stated in an affidavit that was after he was violation of a law meaning intentionally disregarding a law is not good faith that's bad faith that's a commonsense notion of bad faith neither of the reviewing bodies here found a willful violation of the judicial officer declined to make a finding because it was irrelevant but that something worth noting the gravity of the offense one of the other factors in considering a civil what amount of civil penalty to assess those kind of got muddled together by the judicial officer i'm sorry the prior violations kind of got muddled together with willfulness by the judicial officer the judicial officer found that because there were so many violations that allegedly occurred that the violations in this case were in and of themselves prior violations under the act that's a notion that is i know where there is no support for that anywhere else in the law that the prior violation can occur in the same case that's being litigated there was a case that been cited  and continued to disregard their insistence that he obtain a license that's not what occurred here mr horton was cooperative he voluntarily allowed the inspector to come onto his property showed him around volunteered information did not threaten or harass anyone and as i mentioned before significantly scaled down his operation after learning that it was the opinion of a face that he needed a license the problem here is that our standard of we have to follow it you know and i think that one of the things to look at in determining whether something is arbitrary is whether it's supported by fact and some of the facts that i've spoken of today were known to both reviewing bodies and were never the last i would say disregarded but were not properly taken into consideration weren't properly applied to the factors for example the gravity of the offense  the administrative law judge found that this was a grave offense because it deprived a fist of being able to identify him he was known to us they could identify him that's how they found him in the first place and in fact the principal purpose of the animal welfare act is it to identify licensees is to protect the animals it's not the licensee identification act and that was another fact that was brought up in mazola that that was the principal purpose also i would tie in good faith a sort of good faith argument here mr horton acted in good faith and that should lessen the morning my name is leslie largo marcin no i represent the secretary of the department of agriculture and as we have read in the brief and heard just now mr horton can see that he was a dealer and was required to have an animal welfare license under the animal welfare act he argues that the secretary erred in not finding that he committed file ations willfully there is no scientific requirement in the animal welfare act the act states plainly that everyone dealing in dogs must receive any animal welfare act license and failure to get a license results in a penalty but in the complaint but as the secretary ministrations placing that word in the complaint cannot read that requirement into the law in the statute itself does not require it and the administrative law judge addressed this issue and it was raised  directly to her by mr horton and by the administrator and the administrative law judge correctly found that it's not relevant to a finding of a violation that issue as you know it was raised to the judicial officer by both parties and  because the law governs the requirements here congress did not put the requirement into the act the law does not require it and the secretary the administrators improper signing of that of that standard in the complaint cannot override congress intention to be a lot better if you start off on the right foot or that's true what is saved a lot of time and effort and i think that the administrator from this day forward is on the right  track i guess one of the questions i have with regard to that though is that if you started out with a view that there didn't need to be that was an element of this even though you're now saying well it isn't so it doesn't matter what we said to what extent did the a belief that this was willful impact the determination of the penalty the the administrator of a fist in bringing the complaint allege that the judicial officer is the final deciding officer for this for the department of agriculture so it's the judicial officers finding that's under review by this court today and the finding of willfulness played no part at all in the judicial officers decision the judicial officer can to consider the four factors that are required by the statute consider the size of the business the gravity of the offense the history of private prior violations and good faith and there's no requirement that he consider willfulness under the statute and in considering those four factors he assessed a penalty against mr horton of two hundred dollars a dog which was well within the statutory limits defined by congress congress allowed at that time a penalty of three thousand seven hundred fifty dollars per violation congress since then has increased the violation of the operation and this mr gordon is a one man operation has sold thousands of dogs without an animal welfare act license he sold almost a thousand dogs within one thousand month period and these were not these were expensive dogs as you can see from the chart looked over the list these were designer dogs these are the little dogs that celebrities carry in their purses he was getting over two hundred dollars a dog that administrative law judge a penalty of fourteen thousand dollars would have amounted order to deter mr horton from continuing these violations and also to deter others similarly situated it was the purpose of the of the act in the civil penalty is to deter this violator and well as other violators so the officer made a conscious decision to impose a penalty and not simply be absorbed as a cost of doing business as well justified and well within the bounds of the statute and certainly not arbitrary  hundred fifty six dogs he sold the majority of those before between november of two thousand and six and september of two thousand seven hundred notified him by letter on november sixth two thousand and seven that he was required that they believe that he was required to have an animal welfare act license sent him the statute the regulations and an application form all he had to do is fill out the license application form and submit a ten dollars application fee and he would have started the process in motion mr morton never did that instead he continued to sell dogs and after that receiving that letter he sold another forty two dogs before he was visited by an atheist inspector who told him point blank you can't do this you need an animal welfare act license so the judicial officer did notice note that those the sale of those forty two dogs was in bad faith however he considered the history of the violations going back to the beginning and assessed equal penalty for all dogs which was was certainly within his discretion to do he could imposed a greater penalty for the forty two dogs but he didn't do so and his determination to to apply two hundred dollars per dog fee across the board is is within the his discretion under the statute could refer it to the department of justice to collect it to collection to start collection proceedings and that's what would happen in this case if he's on the ground like a novel heavy penalty but i know it's still within the parameters of think that's that is the the deciding issue here it's with well within the statutory story the secretary statutory authority it's supported well supported by the facts which mr horton doesn't  dispute so this is penalty under this court standard of review must be upheld and we would ask that this court deny the petition for review the judicial officer could have imposed an equal penalty for dogs sold before they interact or notified mr horton and after but he imposed the same arbitrary didn't weigh that this claimed more bad faith they just went with an arbitrary number pulling out two hundred dollars per dog out of the had as a penalty that couldn't be absorbed as simply doing caught up in the cost of doing business that's arbitrary there was never any information before the court on horton's cost of doing business was and any figures or anything like that was arbitrary to just pull this penalty that couldn't be absorbed is the cost of business out of the hat and the third and kind of the most shocking arbitrary reason for this penalty is as a deterrent effect a deterrent to mr horton a deterrent to future violators i don't know if it's tape if it's possible to provide deterrent effect on mr horton because as counsel just stated the license application fee is ten dollars and there are certain license reinstatement fees other fees that are associated with the animal welfare act and fees that are would an increased cost of doing business from inspections and certain requirements that must be met it increases the cost of business to be compliant with the animal welfare act  surely but a deterrent effect on others a deterrent effect on mr horton i don't think any business person would want to spend a dollar more than they would have to to do something to do business so any amount could have been a deterrent effect and what they chose was arbitrary without your honour's we would respectfully request that the court adopt the finding of the administrative law judge we believe the civil penalty imposed in that case was