Opinion
No. 541 C.D. 2014
02-17-2015
Sixth Angel Shepherd Rescue, Inc., Petitioner v. Department of Agriculture, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Sixth Angel Shepherd Rescue, Inc. (Sixth) challenges the order of the Commonwealth of Pennsylvania, Department of Agriculture (PDA) that found the 2014 Kennel License Refusal Order (Refusal Order) was deemed effective as of February 10, 2014.
Sixth operated a non-profit, Pennsylvania licensed, Foster Network Rescue Kennel for dogs at 1121 Washington Street, Marcus Hook, Pennsylvania 19061. On December 31, 2013, Sixth applied for a renewal of its kennel license for 2014.
On January 24, 2014, the PDA, Dog Law Enforcement Office (DLEO) issued the Refusal Order. The DLEO cited numerous violations of the Dog Law (Law) as reasons for the denial.
Act of December 7, 1982, as amended, 3 P.S. §§459-101 - 459-1205.
The DLEO noted the following violations: 1) A violation of Section 207(b) of the Law, 3 P.S. §459-207(b) for failing to maintain the kennel in a sanitary and humane condition; 2) A violation of Section 207(b) of the Law, 3 P.S. §459-207(b) and regulation, 7 Pa.Code §21.28(d), that bedding be kept clean; 3) A violation of Section 207(b) of the Law, 3 P.S. §459-207(b), and the regulation, 7 Pa.Code §21.21a, that indoor and outdoor housing facilities shall be maintained to protect the dogs from injury and to contain the dogs; 4) A violation of Section 207(c) of the Law, 3 P.S. §459-207(c) and the regulation, 7 Pa.Code §21.41(a), regarding recordkeeping of each dog kept at the kennel; 5) A violation of Section 207(c) of the Law, 3 P.S. §459-207(c), and the regulation, 7 Pa.Code §21.41(b) regarding recordkeeping; 6) A violation of Section 210 of the Law, 3 P.S. §459-210, and the regulation, 7 Pa.Code §21.42 regarding the possession of a bill of sale for each dog purchased; 7) A violation of Section 207(g)(1) of the Law, 3 P.S. §459-207(g)(1), which requires kennels to have an exercise plan for dogs; 8) A violation of Section 206(e) of the Law, 3 P.S. §459-206(e), regarding a post closure inspection when a kennel moves to a new location; 9) A violation of Section 214 of the Law, 3 P.S. §459-214, which provides that a certificate of health prepared by a veterinarian shall accompany a dog that is transported into the Commonwealth while it is in this Commonwealth; 10) A violation of Section 8(a) of the Rabies Prevention and Control in Domestic Animals and Wildlife Act, Act of December 15, 1986, P.L. 1610, as amended, 3 P.S. §455.8(a) and the regulation, 7 Pa.Code §16.41 which requires dogs to have rabies shots; 11) A violation of Section 220(a) of the Law, 3 P.S. §459-220(a) which requires a kennel to allow entry to an agent of the Commonwealth who is attempting to enforce the Law.
The Refusal Order stated that if Sixth wanted to appeal the refusal it had to file a written request for an administrative hearing within ten days of its receipt of the notice. The DLEO sent the Refusal Order to Karen Brown (Brown), listed as part of the management of Sixth by both certified mail-return receipt requested and regular mail. The DLEO received the certified mail receipt on January 30, 2014, and the regular mailing was not returned. Certified Mail Receipt-Karen Brown at 1; Supplemental Reproduced Record (S.R.R.) at 15b. The DLEO also sent the Refusal Order to Susan Ward (Ward), listed as part of the management of Sixth, by both certified mail-return receipt requested and regular mail. The DLEO received the certified mail receipt on January 31, 2014, which indicated a delivery date of January 28, 2014. Certified Mail Receipt-Susan Ward at 1; S.R.R. at 28b. The regular mailing was not returned. The DLEO also sent the Refusal Order to Jen Morrill (Morrill), listed as part of the management of Sixth, by both certified mail-return receipt requested and regular mail. The DLEO received the certified mail receipt on January 30, 2014, which indicated a delivery date of January 27, 2014. Certified Mail Receipt-Jen Morrill at 1; S.R.R. at 41b. The regular mailing was not returned.
The DLEO also sent the Refusal Order to Lisa Flynn (Flynn), listed as president of Sixth, by both certified mail-return receipt requested and regular mail. The certified mail receipt was returned "Attempted Not Known." Certified Mail - Lisa Flynn at 1; S.R.R. at 54b. The regular mail was returned as "Not Deliverable as Addressed-Unable to Forward." Mailing to Lisa Flynn at 1; S.R.R. at 68b. The DLEO also mailed the Refusal Order to Samantha Kenney (Kenney), secretary-treasurer of Sixth, at the kennel address and at her home address. The certified mail receipt for the letter sent to the kennel was returned as "Attempted Not Known." Certified Mail - Sixth Angel Shepherd Rescue, Inc. at 1; S.R.R. at 80b. The letter sent by regular mail was returned as "Not Deliverable as Addressed - Unable to Forward." Mailing to Sixth Angel Shepherd Rescue, Inc., Samantha Kenney at 1; S.R.R. at 94b. The certified mail sent to Kenney's home address was returned as "Return to Sender, Unclaimed." Certified Mail-Samantha Kenney at 1; S.R.R. at 106b. The regular mail was not returned. The DLEO also mailed the Refusal Order to Shelly Spicer (Spicer), listed as part of the management of Sixth. The certified mail was returned as "Return to Sender - Unclaimed." Certified Mail-Shelly Spicer at 1; S.R.R. at 120b. The regular mailing was not returned.
By letter dated February 25, 2014, the attorney for Sixth requested a hearing on the Refusal Order and stated that notice was not received until February 19, 2014.
By order dated March 6, 2014, the Secretary of the PDA (Secretary) deemed the refusal final because February 10, 2014, was the last date to timely appeal.
Sixth contends that the actions of the DLEO and the Secretary violated Sixth's right to procedural due process and that the hearing officer and the Secretary acted in violation of law and capriciously disregarded Sixth's rights.
This Court's review is limited to a determination of whether the adjudication is in accordance with law, does not violate constitutional rights, and is supported by substantial evidence. Burch v. Department of Public Welfare, 815 A.2d 1143 (Pa. Cmwlth. 2003).
Initially, Sixth argues that the DLEO, without either notice or presentation of a motion, requested cancellation of a scheduled hearing and entry of default judgment on the 2014 renewal application. Sixth asserts that the hearing officer gave Sixth five days from March 5th or 6th 2014, to show cause why the renewal application and appeal should not be dismissed. Then, according to Sixth, the Secretary dismissed the appeal on March 6, 2014.
Sixth is confused. As the PDA points out, the rule to show cause was for an appeal regarding the 2013 renewal application not the 2014 application. The 2014 application is before this Court. The Secretary dismissed the appeal of the 2014 application renewal denial as untimely. The rule to show cause had nothing to do with the denial of the appeal of the 2014 application.
Sixth next argues that the DLEO should have sent the denial of the renewal application to its counsel as it was during ongoing litigation and counsel had entered her appearance.
Section 211(b) of the Law, 3 P.S. §459-211(b), provides in pertinent part:
(1) The secretary shall provide written notice of a kennel license, dealer license or an out-of-state dealer license revocation, suspension or refusal to the person whose license is revoked, suspended or refused. The notice 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 notice he may file with the secretary a written request for an administrative hearing. The hearing shall be conducted in accordance with 2 Pa.C.S. (relating to administrative law and procedure).
(2) Written notice of revocation, suspension or refusal shall be served by personal service or by registered or certified mail, return receipt requested, to the person or to a responsible employee of such person whose license is revoked, suspended or refused. Revocation or refusal shall be effective upon the expiration of the ten-day period for requesting an administrative hearing, unless a timely request for an administrative hearing has been filed with the department. (Emphasis added.)
DLEO sent the Refusal Order to the registered address of Sixth and to the addresses of all responsible persons of which it was aware by certified mail-return receipt requested. Section 211(b)(2) of the Law, 3 P.S. §459-211(b)(2), provides that DLEO must serve written notice of a refusal by personal service or by registered or certified mail return receipt requested to the person or to the responsible employee of the person whose license is revoked. DLEO mailed the notice by certified mail return receipt requested to Sixth's listed address as well as to all of the individuals listed on Sixth's application. This Court finds no error in the service of the Refusal Order. The Law does not reference or require service on counsel.
To summarize, Brown, Ward, and Morrill all signed for the certified mail. The address listed for Flynn was inaccurate. The certified mailing to Kenney at Sixth's address was marked "Attempted Not Known." The regular mailing to Kenney at Sixth's address was returned as "Not Deliverable as Addressed-Unable to Forward." The certified mailing to Kenney's home address was unclaimed, while the regular mailing was not returned. The certified mailing to Spicer was returned as unclaimed, while the regular mailing was not returned. --------
Sixth next contends that the receipt of the Refusal Order by Brown, an out of state board member of Sixth, was insufficient to constitute notice. Sixth ignores the fact that DLEO mailed the Refusal Order to Sixth at the mailing address listed on the kennel license application. This certified mailing was returned with the notation "Attempted Not Known." The regular mailing came back with the notation, "Not Deliverable as Addressed-Unable to Forward." DLEO also served the six individuals listed as management on the application. Three of the six signed the receipt. Flynn's address listed on the application was invalid or inaccurate. Kenney, a Pennsylvania resident, did not claim the certified mail though the regular mail was not returned. The same was true of Spicer. Further, the Law does not specify that service has to be made in Pennsylvania.
Next, Sixth asserts that the hearing officer and the Secretary abused their discretion. Once again, the hearing officer had nothing to do with this refusal as Sixth confused the 2013 and 2014 applications.
Finally, Sixth contends that the hearing officer and the Secretary violated Sixth's rights to due process by issuing a "snap judgment."
Section 211(b)(2) of the Law, 3 P.S. §459-211(b)(2), provides that a request for an administrative appeal hearing on the refusal of a dog kennel license application must be filed with the PDA within ten days of the receipt of the notice of the refusal. If the request for an appeal is not timely filed, the refusal shall become final.
Here, the latest of the dates of receipt of the Refusal Order was January 28, 2014. Sixth did not file its request for an appeal hearing until February 27, 2014. The appeal was untimely.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 17th day of February, 2015, the order of the Department of Agriculture in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge