Permanent Final Adoptions

TITLE 532. Board of Commercial Pet Breeders

CHAPTER 10. Licensing and Supervision of Commercial Pet Breeders

[OAR Docket #11-905]

RULEMAKING ACTION:

PERMANENT final adoption

RULES:

Subchapter 1. General Provisions [NEW]

532:10-1-1 [NEW]

Subchapter 3. Licensing [NEW]

532:10-3-1 through 532:10-3-14 [NEW]

Subchapter 5 Violations, Complaints, Investigations, and Enforcement [NEW]

532:10-5-1 through 532:10-5-13 [NEW]

AUTHORITY:

Commercial Pet Breeders Act; 59 O.S., Sections 5001 et seq.; Board of Commercial Pet Breeders

DATES:

Comment period:

November 1, 2010 through November 30, 2011

Public Hearing:

December 9, 2010

Adoption Date:
March 17, 2011

Submitted to Governor:

March 18, 2011

Submitted to House:

March 18, 2011

Submitted to Senate:

March 18, 2011

Gubernatorial approval:

April 29, 2011

Legislative approval:

Failure of the Legislature to disapprove the rules resulted in approval on May 13, 2011.

Agency Note: Enrolled HJR 1045 disapproved paragraph (b)(22) of 532:10-2-3 [editorially renumbered to 532:10-3-3], subsection (a) [editorially renumbered as paragraph (1)] of 532:10-2-5 [editorially renumbered to 532:10-3-5], and subsections (a) and (d) of 532:10-3-2 [editorially renumbered to 532:10-5-2], as adopted by the Board on December 22, 2010. However, due to computer error, the rules adopted on December 22 were never received and reviewed by the Governor and Legislature.

Upon discovery that the rules adopted on December 22 had never been received by the Governor and Legislature, the Board adopted rules again on March 17, 2011, and those rules were subsequently reviewed by the Governor and Legislature. According to the Attorney General's office, the disapprovals in HJR 1045 do not apply to the rules adopted on March 17, 2011 and, as such, those rules are being promulgated herein in their entirety.

Final adoption:

May 13, 2011
Effective:
July 25, 2011

SUPERSEDED EMERGENCY ACTIONS:

None

INCORPORATIONS BY REFERENCE:

Not Applicable
ANALYSIS:

These rules were promulgated and adopted by the Oklahoma State Board of Commercial Pet Breeders in accordance with the Commercial Pet Breeders Act under Title 59 of the State Statutes. Chapter 10 specifically outlines licensing and licensing requirements. Chapter 10 also outlines complaint procedures, enforcement actions, and due process in dealing with administrative violations of the rules.

CONTACT PERSON:

William Brogden, Executive Director, Oklahoma State Board of Commercial Pet Breeders, 1000 NW Grand Boulevard, Suite #140 Oklahoma City, OK. 73118, 405-286-3894

PURSUANT TO ACTIONS DESCRIBED HEREIN, THE FOLLOWING RULES ARE CONSIDERED FINALLY ADOPTED AS SET FORTH IN 75 O.S., 308.1 (A), WITH AN EFFECTIVE DATE OF JULY 25, 2011:

SUBCHAPTER 1. General Provisions

532:10-1-1. Definitions

The following words or terms, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Act" means the Commercial Pet Breeders Act, codified at 59 O.S. Section 5001 et. seq.

"Adult Animal" means an animal six months of age or older. [59 O.S. Section 5002(1)].

"Animal" means a dog or a cat. [59 O.S. Section 5002(2)].

"Applicant" means any person who submits an application to the Board for a commercial pet breeder license.

"Application Evaluator" means, as to a specific licensing application, the Executive Director or the person delegated by the Executive to review the Application.

"Association" means two or more persons who act together in relation to commercial pet breeding activities or mutually undertake pet breeding activities in such a way that they have mutual or shared duties and obligations, shared or mutually available property or employees, shared profits or losses, or act in such a way that the pet breeding activities of one person affect or benefit the other.

"Board" means the Commercial Pet Breeders Board, created by 59 O.S. Section 5001 et. seq. [59 O.S. Section 5002(6)].

"Cat" means a mammal that is wholly or partly of the species Felis domesticus. [59O.S. Section 5002(3)].

"Commercial pet breeder" means any person that possesses or has possessed at any time in the last twelve months eleven or more adult intact female animals for use in breeding or dealing in animals for direct or indirect sale or for exchange in return for consideration. Household pets kept by breeders which the breeder has registered with the Board as not being used in breeding or dealing shall not be counted under this definition. [59 O.S. Section 5002(4)].

"Complainant" means a person who files a formal or informal complaint with the Board.

"Dog" means a mammal that is wholly or partly of the species Canis familiaris. [59 O.S. Section 5002(8)].

"Entity" means a corporation, limited liability company, a general partnership, limited partnership, limited liability partnership, limited liability limited partnership, professional corporation, trust or other with a recognized legal existence under the laws of the State of Oklahoma.

"Hearing Officer" means the person appointed by the Executive Director to conduct and hold hearings related to an investigation or other Board action as provided in this Subchapter.

"To house" means to hold an animal or to provide an animal living quarters or shelter for any amount of time, except that it shall not include the holding or transporting of a pet within the state of Oklahoma by a person who is not a resident of Oklahoma and who is in Oklahoma for the sole purpose of attending a competitive show held in Oklahoma.

"Licensee" means a commercial pet breeder that has obtained a temporary or permanent license to operate as a commercial pet breeder from the Board.

"Location" means the actual physical address or known place of business.

"Kitten" means a cat less than six (6) months old. [59 O.S. Section 5002(14)].

"Oklahoma entity" means an entity created by filing creation or registration documents with the Oklahoma Secretary of State, or a trust having its legal situs in Oklahoma.

"Owner" means a person who owns 10% or more of the ownership interest in a commercial pet breeder, directly or indirectly, in an entity.

"Person" means an individual, association, trust, or entity. [59 O.S. Section 5002(5)].

"Pet" means a dog or cat, including a puppy or kitten. [59 O.S. Section 5002(18)].

"Possess" means to have custody of or control over a pet, except that it shall not include having custody or control of a pet within Oklahoma by a person who is not a resident of Oklahoma and who is in Oklahoma for the sole purpose of attending a competitive show held in Oklahoma. [59 O.S. Section 5002(19)].

"Puppy" means a dog less than six months old. [59 O.S. Section 5002(20)].

"Respondent" means a person against whom a complaint is filed under this Subchapter.

"These Rules" means the Rules adopted by the Commercial Pet Breeders Board and recorded at Title 532, Chapter 10 of the Oklahoma Administrative Code.

SUBCHAPTER 3. Licensing

532:10-3-1. Licensing requirements and due dates

(a) General licensing requirement. No person shall operate as a commercial pet breeder, including that no commercial pet breeder shall breed pets, advertise, sell, or offer to sell pets unless the person has obtained a permanent or temporary commercial pet breeder license from the Board in accordance with the Act. No commercial pet breeder shall operate any location that is not specifically licensed by the Board.

(b) Original application due date for commercial pet breeders operating before July 1, 2011. Persons operating as commercial pet breeders on July 1, 2011 must submit a completed initial licensing application, pay the initial application fee, and pay the initial inspection fee on or before July 15, 2011. Persons who fail to comply with this section will be in violation of the Act, and the Board may impose penalties in accordance with these rules.

(c) Original application due date for commercial pet breeders not operating before July 1, 2011. Persons not operating as commercial pet breeders on July 1, 2011 but that desire to operate as commercial bet breeders after July 1, 2011, shall submit an initial licensing application, pay the initial application fee, and pay the initial inspection fee no less than 45 days before the first day of operation as a commercial pet breeder.

(d) Renewals. All licensees, including commercial pet breeders operating under a temporary license, must annually renew their commercial pet breeder license by submitting a renewal application and paying the appropriate application fee and inspection fee no less than 60 days before the expiration date of their license. Licenses shall be effective for one year after the date of the first license issued to the licensee in a license period. For each licensee the license period shall begin during every calendar year on the month and day on which the licensee first received a license, which date shall be the earlier of the date on which the licensee received the licensee's first temporary license or first permanent license after submitting the most recent initial application to the Board. The license period shall end on the date that is one year after the date the license period began. For licensees receiving a permanent license after having received a temporary license during the same licensing period, the permanent license shall expire on the date that is one year after the date of issuance of the temporary license.

(e) Notice of renewal. The Board shall send a notice of renewal to each licensee 90 days before the expiration of the licensee's license.

532:10-3-2. Requirements for licensing commercial pet breeders

(a) Ownership. Individuals or entities complying with the Act and these Rules may obtain licenses to act as commercial pet breeders. If the commercial pet breeder is an entity, it must be an Oklahoma entity in good standing or an entity licensed to do business in Oklahoma in good standing.

(b) Fixed place of business. Each commercial pet breeder shall have a fixed place of business with a specific physical location and shall conform to local zoning ordinances authorizing the occupancy of a commercial pet breeder at that location. The Board will issue only one license for a specific location, and commercial pet breeders must have a license for each location at which the commercial pet breeder keeps or houses any pets.

(c) Inspections. A Board member that is an Oklahoma licensed veterinarian or a representative authorized by the Board shall inspect each commercial pet breeder location prior to granting an permanent license for that location, and annually thereafter. Commercial pet breeder shall pay the initial inspection fee and annual inspection fees.

532:10-3-3. Contents of applications

(a) General. Each commercial pet breeder shall submit a completed initial licensing application and fee and an annual renewal application and fee for each location where the commercial pet breeder houses pets. Any person who desires to operate a commercial pet breeder shall submit an application for an initial license on or before the initial application due date on forms provided by the Board.

(b) Initial application. Commercial pet breeders applying for an initial application shall submit to the Board a completed initial application providing or attaching the following information and documents, respectively:

(1) The current name, previous name, if any, and alias, if any, of the applicant, including any name under which the applicant is doing, has done, or will do business;

(2) The address of the physical location, the mailing address, and the telephone number of the applicant;

(3) If the applicant is an entity, the name and address of the owners who own 10% or more of the interest in the entity;

(4) If the applicant is an entity, a description of the entity form of the applicant, and a statement of whether the applicant is an Oklahoma entity or a foreign entity registered to do business in Oklahoma;

(5) If the applicant is an entity, a certificate of good standing issued by the Oklahoma Secretary of State and filing number;

(6) If the commercial pet breeder is a sole proprietorship or a general partnership doing business under a trade name, the trade name registration filed with the Oklahoma Secretary of State;

(7) The number of the applicant's driver's license or other government issued government identification, or if the applicant is an entity, the applicant's tax identification number;

(8) A copy of the Oklahoma Sales Tax Permit issued by the Oklahoma Tax Commission and the sales tax identification number;

(9) The name and address of the managers of the applicant and of the managers of all owners of the manager, if the manager is an entity;

(10) If the applicant is an entity the applicant shall state or provide a copy of the following:

(A) The state and date of incorporation or formation;

(B) The name and address of the registered agent or agent appointed to receive service of process;

(C) The name, address, and title of each officer, director, general partner, managing member; and employee with managerial authority; and

(D) A copy of the certificate of incorporation, articles of organization, or certificate or agreement of formation, and any other document filed with the Oklahoma Secretary of State that allows the entity to do business in Oklahoma.

(11) State whether the applicant or any individual required to be disclosed under this section, has ever been convicted of, or entered a plea of guilty or no contest, to any felony, or any crime involving animal cruelty, abuse, or neglect, and whether the applicant has been convicted of violating the act with respect to each crime, the applicant shall state:

(A) The crime and degree, if applicable, of which the applicant was convicted;

(B) The date of the conviction or plea;

(D) The Probation officer's name, address, and telephone number, if applicable.

(12) State whether the applicant or any individual required to be disclosed under this section has received any adverse ruling from any court of competent jurisdiction or any administrative tribunal involving honesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence, or incompetence in a matter related to commercial pet breeding, or cruelty to animals including the case number and the name of the court or administrative body in which it was filed.

(13) A statement indicating whether the applicant, or any individual required to be disclosed under this section, has ever had an application for a license, registration, certificate, or endorsement related to pet breeding or animal care denied or rejected by any state or federal licensing authority in Oklahoma or another state, and provide the following:

(A) Type of Application;

(B) Reason for the suspension or revocation;

(D) Name and address of the state licensing authority that denied or rejected the application.

(14) A statement indicating whether any commercial pet breeder licensing board, kennel regulation board, or similar agency has ever revoked or suspended a license, registration, certificate, or endorsement of the applicant or any individual required to be disclosed under this section. For each instance, the commercial pet breeder shall state:

(A) The reason for the suspension or revocation;

(B) The date of the suspension or revocation; and

(15) A statement indicating whether the applicant, or any individual required to be disclosed under this section, has ever surrendered a license, registration, certificate, or endorsement to the Board or any state or federal commercial pet breeder or kennel licensing authority, whether located in Oklahoma or elsewhere.

(16) Proof of Worker's Compensation Insurance showing that the applicant is in compliance with Oklahoma Worker's Compensation Laws, if applicable;

(17) Affidavit of Lawful Presence in the United States of America, as provided under 56 O.S. Supp. 2007 Section 71;

(18) One original signed copy of the compliance statement provided on the initial license application form;

(19) A passport size picture of each owner;

(20) State the number of pets owned by the applicant on the application date and provide a brief description of the applicant's operation;

(21) The date of commencement of operations at that location; and

(22) Any other relevant information required by the Board.

(c) Renewal applications. In a renewal application, commercial pet breeders shall disclose to the Board any changes to the information provided in the initial application or the previous renewal application, including that if there has been any change to the information contained in any document that the commercial pet breeder submitted to the Board as part of the initial application or the most recent renewal application, the commercial pet breeders shall submit to the Board an updated version of such document. Licensees shall submit renewal applications annually and pay the renewal application and inspection fee no later than 60 days before the expiration date of the licensee's license.

532:10-3-4. Consideration of applications

(a) Consideration of complete applications. The Executive Director or Board staff under the supervision of the Executive Director will consider complete applications. The Application Evaluator will evaluate every complete application and may deny any application if a ground for denial, as defined in these Rules, is present. Before a denial may be issued, the Executive Director must approve any denials recommended by the Application Evaluator. If no Grounds for Refusal of a completed application exist, the Application Evaluator will inform the Executive Director, who will select an investigator or inspector to conduct an inspection of the business location.

(b) Incomplete applications. If the Application Evaluator determines that an application is incomplete, the Application Evaluator will notify the applicant by mail, facsimile, or electronic mail that the application is incomplete, identifying the numbered items on the application that the applicant failed to complete. The applicant may submit additional information within 20 days to supplement and complete the application. Upon submission of additional information, the Application Evaluator will determine whether the application is complete. If the application remains incomplete, the Application evaluator will again notify the applicant. If the applicant fails to submit all additional information required to complete the application within 20 days of the date of the original Notice, and the date all required information is received by the Board is later than the application due date, the applicant shall pay a late fee before the application is deemed complete. If the application is complete, the Application Evaluator will consider the supplemented application as a complete application.

(c) Inactive applications. The Board will deem "inactive" and will not consider applications that remain incomplete one year after the submission date. Applicants whose applications become inactive must re-file a complete application packet and must re-pay the application fee.

(d) Withdrawn applications. If an applicant requests that the applicant's application be withdrawn from consideration, the Application Evaluator will reject the application. In such case, the applicant must submit a new and complete application and fee if the applicant desires further consideration.

532:10-3-5. Grounds for denial, suspension, or revocation of a license

The Board may cancel or revoke a license or refuse to issue an original license or renew a license:

(1) For any felony conviction;

(2) For any misdemeanor conviction in any court involving animal cruelty by any individual required to be disclosed under the initial application or renewal application;

(3) For convictions of violating the Act more than 3 times;

(4) If the Applicant has held or applied for a license pursuant to the Animal Welfare Act, and the license was suspended or revoked, or the application was refused due to the improper care of animals.

(5) For failing to file the annual report by February 1 of any calendar year;

(6) If the Application Evaluator or the Board finds the application contains false or misleading information;

(7) If the Application is incomplete or improperly completed and the applicant fails to provide a properly completed application after receiving notice from the Application Evaluator;

(8) If the applicant fails to pay the license application fee or the inspection fee in a timely manner;

(9) If the applicant fails to comply with all of the rules and statues adopted or enacted under the Act;

(10) If the applicant fails three inspections in connection with one application; and

(11) If the applicant fails to provide any other information as required by the Board.

532:10-3-6. Inspections and consideration of inspection report

(a) Conduct of inspection. Except as specifically stated in these Rules, the Board shall not issue a license unless the specific business location to be licensed has been inspected as set forth in these Rules and determined to be in compliance with the Act and these Rules. The inspection shall be conducted by a Board member who is a licensed veterinarian or an inspecting agent authorized by the Board to conduct inspections. The inspecting agent shall conduct the inspection during the normal business hours of the commercial pet breeder and in a manner that does not unreasonably disturb the business activities of the applicant.

(b) Inspection report. The inspecting agent shall prepare a report of the inspecting agent's observations within 10 days of the inspection, which report shall include an itemized list of violations, if any, and may include recommendations for improvement. The inspecting agent shall transmit a copy of the inspection report to the Application Evaluator. The Application Evaluator shall transmit a copy of the inspection report to the applicant, with a notice that the applicant shall have 10 calendar days from the date of mailing to respond to the report, in writing, by phone, or by electronic e-mail, if the applicant desires.

(c) Consideration of report and approval. The Application Evaluator shall consider the inspection report and the response received from the applicant, if any, and determine whether a license may be issued to the applicant. If an Application Evaluator other than the Executive Director determines that the applicant is in compliance with the Act and these Rules, the Application Evaluator will recommend to the Executive Director that he or she approve the Application. The Executive Director will make the ultimate decision whether to approve the application and issue a license or reject the application. If the Executive Director deems it prudent, the Executive Director may request that the Chair review an application and investigation report and recommend whether a license should be granted or denied. If the Executive Director approves the Application, the Executive Director will issue a license certificate to the commercial pet breeder. If the Executive Director does not approve the application, the Application Evaluator will follow the procedure in subsection d.

(d) Deficiencies, re-inspection. If the Application Evaluator determines that the applicant is not in compliance with the Act or these Rules, the Application Evaluator will send notice to the applicant indicating that the applicant is not in compliance with the Act and these Rules, listing every violation. The Application Evaluator shall send the notice even if the inspecting agent issued a citation to the commercial pet breeder listing all violations. The applicant shall have 45 days to correct the violations. Upon receipt of notice from the applicant that the violations have been corrected, the Application Evaluator may require a re-inspection, or if the Application Evaluator is satisfied that the violations have been corrected, the Application Evaluator may recommend approval of the application without re-inspection. If the Application Evaluator requires a re-inspection, the applicant shall pay the re-inspection fee. The inspector shall re-inspect the facility and issue a re-inspection report within 10 days of the re-inspection. The report shall detail whether the applicant has rectified each violation described in the initial inspection report. The inspector will transmit a copy of the re-inspection report to the Application Evaluator. The Application Evaluator will transmit a copy of the re-inspection report to the applicant, with a notice that the applicant shall have 10 days to respond to the re-inspection report, in writing, if the applicant desires. The Application Evaluator shall consider the re-inspection report and any response submitted by the applicant, if any, and shall recommend approval or rejection of the application, which will be reviewed by the Executive Director. Approvals will be conducted as provided in subsection c. If the Executive Director determines that the application should be rejected, the application will be rejected. If violations noted in the initial inspection report have not been corrected at the time of re-inspection, the application shall be denied and the Application Evaluator shall send to the applicant a notice of rejection. The notice of rejection shall list each outstanding violation and shall state that the commercial pet breeder is required to cease all operations immediately.

(e) Review and re-application after rejection. An applicant whose application is rejected may request review by the Board by submitting a request in writing to the Board within 20 days of the date of the notice of rejection. The Board's determination will be the final action of the Board. An applicant whose application is rejected may not re-apply for a license for a period of 6 months. In order to re-apply, the applicant must submit a new application packet, application fee, and inspection fee.

532:10-3-7. Temporary licenses

(a) When issued; form. Upon initial review of an initial licensing application, the Board may issue a temporary license to an applicant who has submitted a complete initial application, including the initial application fee and initial inspection fee. A temporary license certificate shall list the name of the commercial pet breeder, the licensed physical address, the temporary license number, the date of issuance of the temporary license, and the date of expiration of the temporary license.

(b) Expiration and renewal. A temporary license shall automatically expire on the expiration date, which shall be no later than one year from the issuance of the temporary license. A holder of a temporary license shall submit a renewal application no later than 60 days before the expiration date of the temporary license. In the renewal application the applicant shall provide the same information required for a renewal of a permanent license. An applicant requesting a renewal of a temporary license shall pay the renewal application fee, including late fees, if applicable, but shall not be required to pay the inspection fee for the first inspection.

532:10-3-8. License certificate

(a) The Board shall issue license certificates to commercial pet breeders that complete the application and inspection process and are certified by the Executive Director to comply with the Act and Chapter 15 of these Rules. The certificate will identify the licensee by name, address, and license number, show the effective date, show the expiration date, and acknowledge the licensee's right to act as a commercial pet breeder in the State of Oklahoma.

(b) Licensees shall prominently display the original license certificate or a certified copy of the license certificate at the licensee's place of business. A licensee shall obtain an independent license for each business location.

(d) Licensees shall include their license number on all of the licensee's invoices, advertisements, or promotions regarding pets, including but not limited to, those in newspapers, the Internet, radio, or in flyers.

(e) The Board will issue duplicate original license certificates if:

(1) After corroboration of Board records Board staff determines that the applicant holds a valid license;

(2) The licensee makes written request for a replacement of certificate;

(3) The licensee provides an affidavit certifying that the original certificate has been lost, damaged or destroyed; and

(4) The licensee pays the prescribed fee.

532:10-3-9. Transferability of license

A commercial pet breeder license is not transferable from one person to another, or from one location to another. In case of the sale, lease, or relocation to a new facility of the commercial pet breeder, the commercial pet breeder's license will be immediately revoked on the effective date of the lease, sale, or relocation. The person that will operate the commercial pet breeder facility after the sale, lease, or relocation shall file an initial application and pay the inspection fee 45 days before the effective date of the lease, sale, or relocation; otherwise the person must cease operations and remove all pets before the effective date of the lease or sale. A licensed pet breeder who sells or leases his or her operation shall notify the Board of the sale or lease in writing no later than 10 calendar days after the effective date. In the case of a change of location, the Board shall not issue a license until the new location has been inspected and determined by the Board to be in compliance with the Act and these Rules. The Board may issue to the new owner or lessee, if it so deems appropriate upon an initial review of the application, a temporary license.

532:10-3-10. Changes of information

In case of a change of name or mailing address, or change in management, or control of the commercial pet breeder, the licensee shall notify the Board within 10 days of the change. The licensee shall update all information submitted in previous licensing applications to disclose all information required in this Chapter regarding the managers, members, general partners, or employees with managerial control, as disclosed in licensing applications.

532:10-3-11. Fees

The Board shall charge the following non-refundable fees:

(1) Initial and renewal application fee for commercial per breeders licensed by the U.S. Department of Agriculture: $300.00.

(2) Initial and renewal application fee for commercial per breeders not licensed by the U.S. Department of Agriculture: $420.00

(3) Inspection fee for facility housing up to 50 pets: Cost of conducting the inspection, up to a maximum of $250.00.

(4) Inspection fee for facility housing more than 50 and up to 100 pets: Cost of conducting the inspection, up to a maximum of $350.00.

(5) Inspection fee for facility housing more than 100 and up to 200 pets: Cost of conducting the inspection, up to a maximum of $450.00.

(6) Inspection fee for facility housing more than 200 pets: Cost of conducting the inspection, up to a maximum of $600.00.

(7) Re-Inspection Fee: Cost of conducting the inspection, up to a maximum of $250.00.

(8) Renewal License Late Fees. If the applicant submits to the Board a renewal application and fee less than sixty days but more than thirty days prior to the license expiration date: $30.00; if the applicant submits to the Board a renewal application and fee within thirty-days of the license expiration date: $60.00; and if the applicant submits to the Board a renewal application and fee on or after the expiration date, the applicant will pay double the application fee.

(9) Declaratory Ruling: $300.00

(10) Certified Copy of Certificate of Licensure: $10.00

(11) Returned check. Any fee paid by a check which is returned to the Board from the bank shall then be paid by money order, cashier's check, or cash within (10) days after the check has been returned from the bank, plus a "returned check processing fee" of $35.00

532:10-3-12. [RESERVED]

532:10-3-13. Reapplication or reinstatement after license denial or revocation

If a license is denied or revoked, the applicant or licensee may not re-apply for a license for a period of six months after the date of the notice of denial or revocation. In order to obtain a license, the commercial per breeder must submit an initial license application, and pay the application fee, inspection fee and any other outstanding fees and penalties. The applicant shall also appear before the Board and respond to Board inquiries regarding the correction of the previous violations and to any other reasonable inquiries from the Board.

532:10-3-14. Annual report

No later than February 1 of every calendar year, commercial pet breeders shall submit to the Board by mail or electronic mail an annual report detailing the number of adult animals at each facility, and providing a brief summary of their operations and any other information requested by the Board. [59 O.S. Section 5021].

SUBCHAPTER 5. Violations, Complaints, Investigations, and Enforcement

532:10-5-1. Complaints

(a) Filing of complaint. Any person, including a Board member or a Board employee, may submit a complaint to the Board alleging a violation of the Act or these Rules. All complaints must be written, and signed by the complainant. A complaint shall identify the complainant and the alleged violator, and shall include a brief summary of the alleged violation.

(b) Complaint log. Upon receipt of a complaint, the Board shall record each complaint in a log maintained for that purpose. The complaint log shall contain a record of each complainant's name and address, the name and address of the alleged violator, a brief description of the alleged violation, the date each complaint was received by the Board, and the disposition of the complaint.

(c) Acknowledgement. Within 20 days of receipt of a complaint, the Board shall send the complainant a written acknowledgement of the complaint.

532:10-5-2. Investigations and citations

(a) Commencement of investigations. Upon receipt of a complaint or upon receiving a request to investigate from a member of the Board, the Executive Director will determine whether to commence an investigation.

(b) Determination to investigate and to take emergency action. Upon receipt of a complaint or upon the request of a Board member for an investigation, the Executive Director shall notify the Chair or Vice-Chair of the Board that a complaint or request for investigation has been received and shall determine whether the investigation of the complaint or request falls within the Board's jurisdiction and whether to conduct an investigation. If the Executive Director determines that an investigation is warranted, the Executive Director or designee shall conduct an investigation. If the Executive Director deems it prudent, the Executive Director may request the Board to vote on whether an investigation will be conducted. If the Executive Director does not request that the Board vote, the Executive Director will make a determination and will notify the Chair or Vice-Chair of the Board of whether the Executive Director has initiated an investigation. If the Executive Director determines that an investigation is not necessary, upon the request of any Board member, including the requesting Board member if the determination arises from a Board member request, the Board may hold a vote at the next Board meeting to determine whether an investigation will be conducted. If the Board determines that an investigation is necessary, the Executive Director will initiate an investigation. If the Executive Director initiates an investigation, the Executive Director shall also determine whether emergency action is necessary and may undertake any emergency actions in accordance with these rules. The Executive Director or the Board may request information from the respondent or the complainant or may allow the respondent to respond to the complaint before voting on whether to conduct an investigation.

(c) No Investigation. If it is determined that no investigation and no action is necessary on a complaint, the Executive Director shall note the disposition of the complaint on the Complaint Log, notify the complainant of the disposition of the complaint, and notify the respondent that a complaint was filed but no action will be taken.

(d) Conduct of investigation. The Executive Director will determine the scope and manner of execution of investigations after considering the facts of the alleged violation. The Executive Director may contract with other state agencies, a political subdivision of the state, a local animal control authority, registered breeder inspectors, or Oklahoma licensed veterinarians registered with the Board to conduct inspections to assist in the conduct of investigations.

(e) Cooperation with investigation. Commercial pet breeders shall cooperate with the Board's investigation of an alleged violation. Commercial pet breeders shall allow the Boar designated investigator assisting the Board in the conduct of an investigation to enter unto their premises to investigate alleged violations. If a commercial pet breeder refuses to allow investigators to enter the premises for purposes of investigation or inspection, the Board may revoke or suspend the commercial pet breeder's license, if the commercial pet breeder is licensed, and the Board may impose penalties upon the commercial pet breeder, as authorized by the Act and these Rules.

(f) Investigation report. The investigator shall prepare an investigation report within 10 days of the visit, a copy of which shall be placed in the commercial pet breeder's file. The Board shall provide a copy of the report to the commercial pet breeder upon request. The investigation report shall summarize the investigation, list whether violations were found, whether the investigator issued a citation, and list each violation.

(g) Exclusion of requesting Board member. If an investigation arises from the request of a Board member, the Board member shall recuse himself or herself from any further Board proceedings, determinations, or decisions regarding the investigation, except that, if the Board holds an initial vote to determine whether to investigate the complaint, the requesting member may participate in the initial vote to determine whether to investigate.

532:10-5-3. Hearing on emergency Board action

(a) Hearing. If the Executive Director or the Board at any time determines that an emergency exists for which immediate action is warranted, including but not limited to suspension or revocation of a license, the Executive Director may convene an emergency hearing to take action on such license.

(b) Notice. No later than 5 days before the date of the hearing, the Executive Director or the Board shall send, via U.S. mail and e-mail, the respondent a notice of the emergency hearing, which shall list the location, date, and time of the hearing, and shall state the nature of the alleged violation, providing citations to the rules and statutes that have allegedly been violated. The notice shall provide the following statement: "Failure to appear at the hearing may result in immediate revocation or suspension of your commercial pet breeder license or in other adverse actions." The Executive Director will also send notice to the complainant of the hearing.

(c) Hearing officer. The hearing officer will preside at the hearing. The hearing officer will review the complaint, hear testimony from the respondent and any parties with knowledge, and review any evidence presented at the hearing. All evidence presented at the hearing will become part of the record. Based on the record, the hearing officer will determine whether emergency action should be taken and what action should be taken, which action may include a temporary suspension of the commercial pet breeder's license and immediate removal of all pets located at the facility. The hearing officer will enter an order with the determination.

532:10-5-4. Citations

Any Board authorized inspector or investigator who inspects a commercial pet breeder's facility and finds a violation of the Act or these Rules may issue a citation to the commercial pet breeder. The inspector or investigator shall obtain the signature of the commercial pet breeder or representative on the stub or copy of the citation. The citation shall list the violation and state that the commercial pet breeder has the right to request a hearing before a hearing officer.

532:10-5-5. Stipulation, agreed settlement, consent order, or default

(a) Stipulation, agreed settlement, consent order or default. Any investigation may be disposed of without a hearing by a written, signed, and notarized Stipulation, Agreed settlement, consent order, or default entered into by the respondent and the Executive Director, on behalf of the Board. Before entering into the stipulation, agreed settlement, or consent order, the Executive Director will notify the Chair or Vice-Chair of the Board.

(b) Statement of facts. The stipulation, agreed settlement, consent order, or default shall contain a statement of facts agreed upon by both the respondent and the Executive Director, on behalf of Board; any penalties that will be imposed shall be based on the agreed facts.

(c) Waiver of hearing. The stipulation, agreed settlement, consent order, or default shall state that the respondent was advised of the respondent's right to request a hearing but the respondent chooses to waive the right and enter into the stipulation, agreed settlement, consent order, or default.

(d) Final disposition. Neither the Board nor the respondent is required to enter into a stipulation, agreed settlement, consent order, or default, but once agreed to by the respondent and the Executive Director, on behalf of the Board, and signed and notarized, it shall become final and binding on all parties and shall become the final disposition of the investigation.

532:10-5-6. Legal counsel

The respondent shall be entitled to representation by legal counsel. The respondent shall pay all expenses for such legal counsel.

532:10-5-7. Hearing officer and ban on ex parte communications

(a) Hearing officer. The Executive Director shall designate a hearing officer who will serve as decision maker at hearings requested by respondents. After the Board receives a complaint and the Executive Director appoints the hearing officer, the hearing officer shall recuse himself or herself from all discussions regarding the complaint and the investigation.

(b) Ban on ex parte communications. The hearing officer shall not communicate with any person, including Board members, Board staff, the complainant, and the respondent, about an investigation or complaint with respect to which he or she is the hearing officer unless the Executive Director, or a Board member or attorney designated by the Executive Director, and the respondent, or the respondent's attorney or representative, are present in the conversation, except at a hearing or other proceeding of which all parties have been notified. Except as otherwise expressly stated herein, the members or the Board shall not communicate with any person, including each other, about pending investigations, unless the respondent or the respondent's representative is present.

532:10-5-8. Hearings

(a) Notice. If the respondent requests a hearing, the hearing on a complaint shall be held at a time and place designated by the hearing officer. The hearing officer shall send notice of the time and place of the hearing to the respondent at least 20 days before the date of the scheduled hearing, unless upon a motion from the Executive Director the hearing officer finds that exigent circumstances exist that merit an earlier hearing.

(b) Written statement of the case. No later than 10 days before the hearing, the Executive Director and the respondent shall submit to the hearing officer a brief written statement of the case and attach records, documents, or other evidence to support the party's position.

(d) Hearing officer authority. The hearing officer shall have the power and authority to conduct the hearing and shall conduct the hearing in the name of the Board.

(e) Evidence. At the hearing, the parties may introduce evidence, question and cross-examine witnesses, and make a brief oral statement of their case. Formal rules of evidence will not apply at the hearing. The hearing officer will rule on the admissibility of evidence.

(f) Transcript. The hearing may be transcribed upon the request of any party. The requesting party shall pay all costs of such transcription.

(g) Subpoenas. At the request of either party, the hearing officer will subpoena witnesses and evidence deemed necessary to conduct the hearing.

(h) Continuance. The hearing officer may grant continuances at his or her discretion. Parties shall file requests for continuance of a scheduled hearing in writing with the hearing officer at least 48 hours, holidays and weekends excepted, prior to the time of the scheduled hearing.

(i) Record. The Statements of the Case, hearing transcript, if any, inspection reports, and any other documents, records, or other evidence submitted by the respondent and the Executive Director for consideration by the hearing officer shall become part of the record.

(j) Findings; order, notice. The hearing officer shall make findings of fact and conclusions of law based on clear and convincing evidence at the close of a hearing, and shall enter an order thereon. The findings of fact, conclusions of law, and order shall be based upon the record and shall state clearly the actions to be taken by the Board, including any penalties to be imposed. A written order shall be given to all parties. Upon receipt of a written request, the hearing officer shall provide a copy of the order to any person appearing at the hearing. The order of the hearing officer shall become the final order of the Board if the order is not appealed.

532:10-5-9. Appeal of hearing officer's order

By filing a notice of appeal with the Board within 10 calendar days of the issuance of the hearing officer's order, the respondent may appeal the hearing officer's order to the Board, which will review the order. In the notice of appeal, the respondent shall set forth a summary of the reasons why the Board should review and amend the hearing officer's order. The Board shall review the order based on the administrative record. The Board may affirm the hearing officer's order, revise the hearing officer's order and enter a new ruling or remand the cause to the hearing officer with instructions for the conduct of further proceedings. In either case, the Board will issue an order summarizing its findings of fact and the reasons why it affirms, revises, or remands the cause. An affirming or revised ruling issued by the Board will be the final Board order. If the Board remands the cause, the hearing officer will conduct further proceedings as instructed and will issue a new order. The hearing officer's order will be subject to review under this section.

532:10-5-10. Appeal of the Board's order

The respondent may appeal the Board's order to a court of competent jurisdiction, pursuant to the Administrative Procedures Act provided the appeal is filed within thirty (30) days after the issuance of the Board's Final Order.

532:10-5-11. Penalties available to the Board

(a) Revoke licenses. After holding a hearing or if the respondent enters into a stipulation, agreed settlement, consent order, or default, the Board may revoke any or all licenses, registrations, or certificates issued by the Board.

(b) Fines and penalties. The Board may impose administrative fines and penalties as allowed by the Act.

532:10-5-12. Delegation by the Executive Director

The Executive Director may personally perform all duties assigned to the Executive Director under this Part, or the Executive Director may delegate any part of the Executive Director's duties under this Chapter to another person.

532:10-5-13. Investigators and inspectors qualifications and training

(a) General requirements. All Board investigators and inspectors must have a G.E.D. or high school diploma, valid driver's licenses issued by any state of the United States, the District of Columbia, or Puerto Rico, and must pass a background check. Investigations and inspectors may not have been convicted of any felonies, or any acts of domestic violence or animal cruelty, regardless of whether the conviction was a felony or misdemeanor.

(b) Investigators. Investigators shall be full time employees of the Board. Investigators shall have all of the authority granted to inspectors by the Act and Rules. Investigators shall have a minimum of 3 years experience with a law enforcement agency, and be certified as full-time peace officers by the Council of Law Enforcement Education and Training. Investigators shall obtain a minimum of 30 hours of continuing education annually, at least 4 hours of which must be dedicated to classes discussing animal cruelty, animal inspection, animal investigation, or animal welfare. Investigators shall comply with the annual Council of Law Enforcement Education and Training requirements to maintain their status as a full-time peace officer.

(c) Inspectors. Inspectors may be full-time or part time employees of the Board, or independent contractors. Inspectors shall maintain their professional standards according to their individual professional licensure, if any. Inspectors shall have a minimum of 3 years experience in their individual professions.

(d) Board training. The Board will offer to investigators and inspectors training on inspection of commercial pet breeders and the requirements of the Act and the standards and procedural requirements set forth in these Rules. The Board may require investigators and inspectors to take and pass an oral or written examination.

[OAR Docket #11-905; filed 6-13-11]