On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. MCA-6-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Cuff and Waugh.
Defendant Donna Roberts appeals from an order imposing a penalty for one violation of N.J.S.A. 4:22-26(l), which establishes penalties for persons who shall "[w]illfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals...." We reverse.
We discern the following facts from the record.
On July 10, 2007, Roberts was issued four complaints in Shamong Township for willfully selling or offering to sell four puppies known as Mia, Buster, Rosie, and Cooper, contrary to the provisions of N.J.S.A. 4:22-26(l). She also received four complaints for failing to provide proper sustenance for the same four puppies, contrary to N.J.S.A. 4:22-26(a)(1).
On December 21, 2007, Roberts appeared in the Shamong Township Municipal Court for trial on the summonses. Barbara Harra testified that she purchased a puppy named Cooper from Roberts on April 25, 2007. When she first saw Cooper, who was approximately three months old, she noticed that his skin was flaky. She asked Roberts about his condition. Roberts replied that the flakiness occurred because the puppy was on wood chips. She represented that Cooper was healthy.
After Harra brought Cooper home, she noticed that he continually scratched, had little lumps all over his body, had diarrhea, and a scab on his head. She took Cooper to a veterinarian on May 1, 2007. The veterinarian diagnosed Cooper with coccidia, lice, and an umbilical hernia. Harra contacted Roberts because the veterinarian told her Cooper's condition was contagious. Roberts told Harra that she would give the remaining dogs a bath, and that she would pay Cooper's veterinarian bills. Harra subsequently received a check from Roberts for medication, but the Division of Consumer Affairs sent the check back at Harra's request because it did not include payment for the veterinarian bills.
There was testimony about three other dogs not involved in this appeal. Because those transactions took place following Harra's purchase of Cooper, they are not relevant to Roberts's knowledge or state of mind in April 2007. Consequently, we do not include any of that testimony.
Dr. Sharon Reighn-Peery, the State's expert, testified that she reviewed Cooper's veterinary records at the request of the Society for the Prevention of Cruelty to Animals (SPCA). She testified that the records show Cooper was taken to a veterinarian within a week of purchase, at which time he was diagnosed with a skin parasite and coccidia, which is an intestinal parasite.
Coccidia is an infectious and contagious disease which, according to Reighn-Peery, would have existed when the dog was sold to Harra because it takes five to fourteen days for it to start "shedding in the feces." She also testified that it is found mostly in young puppies, and is passed orally by puppies playing in fecal matter. According to Reighn-Peery, coccidia is rare unless there are a large number of dogs "shedding" in the same area. Because three of Roberts's puppies tested positive for coccidia, Reighn-Peery opined that the disease had been in Roberts's facility.
SPCA Agent Theresa Cooper testified that she began investigating Roberts after Harra called regarding Cooper's condition. Agent Cooper spoke to Harra and Cooper's veterinarian, and she visited Roberts's facility. Following her investigation, during which she received only minimal cooperation from Roberts, Agent Cooper issued summonses for failure to provide sustenance and selling dogs with infectious or contagious diseases.
Dr. Susan Welsch, Roberts's expert, testified that coccidia is very common in puppies, and it can be contracted from the mother. She described Albon as a drug used to treat coccidia. She also testified that a dog can be a carrier of coccidia and remain symptom-free until the dog is stressed, such as when moved to a new home. Welsch further testified that there is no way for a breeder to know which animal might develop coccidia.
Roberts testified that she had bred dogs for forty years, was a dog groomer for thirty-five years, and worked for a veterinarian for seven years. She further testified that she gave her dogs Albon and standard inoculations, as well as wormings. She said that she also had their stools checked for disease. She opined that illnesses such as coccidia would not show symptoms until a dog is stressed. She stated that she was sure that other dogs she sold had parasites, but that no one has ever taken her to court such as in this case.
After the testimony and closing arguments, the municipal court judge made the following ...