Melissa Guevin, who owns and operates a kennel under the name The Dogmother, appeals from a $10,000 fine assessed by the Department of Agricultural Resource in 2022 to Ms. Guevin personally and The Dogmother, LLC for “offering 25 dogs and cats for adoption without a license from the Department” and “continuing to operate a rescue organization without a license from the Department.” (Ex. 1.) Each party filed a prehearing memorandum. I mark the Department’s memorandum as Pleading A and Ms. Guevin’s as Pleading B. The Department filed two exhibits (Exs. 1 and 2). Ms. Guevin filed 13 exhibits (Exs. a – m). I have added Ms. Guevin’s notice of appeal as Ex. n.
I held a hearing on September 18 and 21, 2023. I recorded the hearing digitally and admitted the exhibits proposed by the parties. The following people testified: Michael Cahill, the Department’s Director of the Division of Animal Health; Captain Scott Stallbaum of the Everett Police Department; Stacia Gorgone, the Everett Animal Control Officer; Sheri Gustafson, the Department’s Massachusetts Animal Fund coordinator, who conducted the investigation in this matter; Cynthia Sweet, the founder and director of Sweet Paws Rescue, Inc.; and Melissa Guevin. Each party filed closing briefs by July 17, 2023, thus closing the record. Ms. Guevin filed additional documents designated Appendices A-I, and Exhibits A-F. I have admitted these additional documents as exhibits.
Findings of Fact
Based on the testimony and evidence presented by the parties and reasonable inferences from the testimony and evidence, I make the following findings of fact:
Background
- Melissa Guevin owns and operates and dog day care center in Peabody called The Dogmother. The business is registered with the Secretary of State as a limited liability corporation. The City of Peabody has issued it a kennel license. With this license, The Dogmother can board municipal dogs, i.e., stray dogs picked up by the Everett Animal Control Officer. (Pleading A and Exhibit A; Cahill testimony.)
- The City of Everett does not have a kennel to house stray dogs. In June 2020, it entered into a written agreement with The Dogmother that “The City of Everett, in exchange for the services of kenneling stray animals found in the City, will supply The Dogmother LLC with the [80] stored kennels [that the City had received from FEMA] for the purposes of storing these animals when needed.” In turn, “The Dogmother LLC acknowledges that in exchange for receipt of the kennels, it agrees to house animals when the need arises.” (Ex. f.)
- Stacia Gorgone has been the Everett Animal Control Officer (ACO) since 2016. (Gorgone testimony.) ACO Gorgone sends all stray dogs to The Dogmother. When Everett houses a municipal dog at The Dogmother, Ms. Guevin is paid for holding the dog for the seven-day period that Everett must keep the dog to see if its owner wants to retrieve the dog.[1] If the dog’s owner retrieves the dog, the owner must pay the boarding fees. Ms. Guevin pays for food and veterinary care and raises money to offset these expenses. Ms. Guevin has the paperwork for a municipal dog only so long as the dog is in her possession. (Gorgone and Guevin testimony; Ex. h, Ex. 2 – vet bills and a post in which Ms. Guevin asked for contributions for vet bills.)
- Sweet Paws Rescue, Inc. is an animal rescue organization founded in 2011 and incorporated as a 501(c)(3) nonprofit charitable corporation. (Sweet testimony.) It uses dog day care facilities to foster dogs. It has done this with The Dogmother since 2019 or 2020. Everett transfers some of its municipal dogs to Sweet Paws Rescue, which then attempts to place the dogs. (Sweet and Gorgone testimony; see Ex. k. for examples of a transfer agreement between Everett and Sweet Paws; see Ex. l for an example of a foster contract between Sweet Paws and The Dogmother.)
- The Revere Pet Clinic has authorized ACO Gorgone, or Ms. Guevin on ACO Gorgone’s behalf, to bring in dogs for treatment and to get a discount. The dogs Ms. Guevin brought into the pet clinic have had various owners including the City of Everett and Sweet Paws. (Gorgone and Guevin testimony; Ex. j.)
Complaints Filed with the Department
- In February 2021, an Ipswich resident named Lisa Vibert called Sheri Gustafson at the Department of Agricultural Resources and the Ipswich Police Department about a puppy named Coco that she attempted to adopt from Bonnie Cooper, the owner of a dog grooming business called Doggone Purr-fect. Ms. Guevin fostered the dog until it was adopted. Ms. Cooper had Ms. Guevin print up adoption papers, which included a $250 charge for veterinary services that Ms. Guevin would have the Revere Pet Clinic perform. The agreement called for the new owner to always provide a fresh supply of water. Ms. Vibert signed the agreement as the adopter and Ms. Guevin signed it as the foster. (Gustafson testimony; Ex. 2 and m.)
- Gorgone soon after reached out to Ms. Guevin asking her help to get the dog back because she had been informed that an individual of concern was living in Ms. Vibert’s home and she had heard that Ms. Vibert was not giving the dog water.[2] Subsequently, when Ms. Vibert’s boyfriend brought Coco to The Dogmother, Ms. Guevin, instead of taking the dog to the vet for the services for which Ms. Vibert had paid, took the dog inside her building and gave the boyfriend back the $250 adoption fee.[3] (Gustafson and Guevin testimony; Ex. 2 and m.)
- In July 2021, the Department received another complaint, this time from Joan Taylor, who had adopted a dog named Henry from Sweet Paws Rescue. She was told to bring the dog to the Dogmother so he could be neutered and have a hernia repaired at the Revere Pet Clinic. Ms. Guevin took the dog to the vet but, at the end of the day, told Ms. Taylor that the veterinarian had run out of time and the procedures would need to be rescheduled. (Ex. 2; Gustafson testimony.)
- Ms. Taylor was aggravated by this development and did not take the rescheduled appointment Ms. Guevin arranged. Instead, Ms. Taylor brought the dog to Newburyport Veterinary hospital, which neutered the dog and found that he had a microchip. In the next few days Henry’s hernia worsened, and Ms. Tayor decided to have him euthanized rather than pay for the surgery. Further research led to the identity of the dog’s original owner. That person said that the dog, who she named Scooby, had escaped once and had been retrieved from Everett Animal Control, but when he escaped again, she did not get a call back from ACO Gorgone. (Ex. 2; Gustafson and Guevin testimony.)
- The Department had previously sanctioned Ms. Guevin regarding dog adoptions. On September 12, 2017, the Department issued a cease-and-desist order to Ms. Guevin and The Dogmother “to immediately cease and desist from operating as a rescue/shelter within the Commonwealth of Massachusetts and to remove from any venue any offering of adoption of any animals to Massachusetts residents until it completes the [animal rescue] registration process.” The order was based on two Facebook posts that led the Department to believe that Ms. Guevin was offering dogs for adoption without a rescue organization license. Anyone can post that a dog is available for adoption, but a dog can be placed for adoption only by a licensed rescue organization or an animal control officer. (Ex. 2; Cahill testimony.)
Department Investigation
- Given Ms. Guevin’s history with Facebook postings that led to a cease-and-desist order, the Department looked at what she was posting on The Dogmother’s Facebook page. There, the Department found numerous Facebook posts by Ms. Guevin about dogs available for adoption. None of them mentioned the owner of the dogs or listed the license number of an animal rescue organization.[4] A typical post read:
Duke needs a home! He is 1.5 years old, excellent with people, kids, dogs. Up to date on shots, getting neutered next week. He is about 60 lbs., crate trained, house trained. Beautiful boy, so sweet and friendly. Message me for more info or to set up a meet and greet. I am starting to do interviews now.
Ex.2.
- The Department then began an investigation after Ms. Vibert’s complaint to try to determine the ownership of the dogs Ms. Guevin was posting about. Ms. Gustafson sent a public records request to the city of Everett seeking the animal control officer’s records and other items. She did not find Everett’s records of stray dogs to be helpful because they gave a general description of the dogs under Everett’s control, but there was not enough specific information to line up these records with a particular named dog on The Dogmother’s Facebook page. Ms. Gustafson did not find any records that corresponded to Coco. She also did not see anything in Everett’s paperwork indicating that Ms. Guevin had a contract to house stray dogs picked up by the Everett Animal Control Officer. (Ex. 2, Gustafson testimony.)
- The Department then sought and obtained an administrative warrant to enter The Dogmother, identify any municipal dogs housed there, and look for records pertaining to such dogs. (Ex. 2.) The Department conducted the inspection on May 12, 2021. The officials who made the inspection, which did not include Ms. Gustafson, observed that Ms. Guevin had a basement room with 17 crates to house day care dogs and municipal dogs. The inspectors told Ms. Guevin that it was not appropriate to house municipal dogs with day care dogs, as stray dogs might spread disease. They found one municipal dog, named Pirate, in the basement. They also located records for three other municipal dogs (Butters, Howard, and Gus) as well as a handwritten notice of surrender of a dog named Rex. (Ex. 2 and Gustafson testimony.)
- It is not entirely surprising that the Department found few records of municipal dogs at The Dogmother. Everett was required to keep records of the stray dogs it seizes. When the dogs are placed in a kennel, the paperwork must go with the dog and then be returned to Everett if a dog is returned to it. (Cahill and Gustafson testimony.)
- The Department then sought from the Revere Pet Clinic records of animals connected to Ms. Guevin. The records showed 200 such dogs. Ms. Gustafson communicated with Capt. Stallbaum of the Everett Police, who identified 35 of the dogs as municipal dogs. (Gustafson and Stallbaum testimony; Ex. j.)
- Ms. Gustafson did not speak to Ms. Guevin or ACO Gorgone about the dogs she thought that Ms. Guevin had put up for adoption on Facebook. This was in part due to prior controversies between the Department and Ms. Gorgone. ACO Gorgone’s counsel had told the Department not to speak to ACO Gorgone directly but to go through her. (Gustafson testimony.)
- The citation the Department issued on September 26, 2022 fined Ms. Guevin and The Dogmother $500 each for “offering 25 dogs and cats [for adoption] without a license for the Department in violation of 330 CMR 30.03.” It also issued a $500 fine for “continuing to operate a rescue organization without a license from the Department, in violation of Order 787-CD-17 [the 2017 cease and desist order].” Because the total fine was $13,000, the Department reduced the fine to the maximum allowed, which is $10,000.[5] (Ex. 1.)
- The Department did not object to Ms. Guevin helping to find a placement for a dog. It objected only to her transferring ownership of a dog. Thus, it did not cite Ms. Guevin or the Dogmother for the 35 dogs it had determined were municipal dogs or two dogs it had determined belonged to Sweet Paws Rescue. (Cahill testimony.)
Available Information on Dog Ownership
- Ms. Guevin denied that any of the dogs she posted about were her dogs or that she was responsible for adoption decisions. (Guevin testimony.) Although the Department had not asked her about the ownership of the dogs, she provided the following explanation about the dogs and cats she had posted about on Facebook in an interrogatory response and in her testimony:
- Lexi: a woman in Saugus wanted her dog adopted out because her dog was having a problem with another dog. Ms. Guevin put the owner in contact with another person who wanted the dog. (Guevin testimony.)
- Elsa: This dog was found as a stray by the State Police, who turned it over to Everett. Everett adopted the dog out. (Guevin testimony; Ex. I – Ms. Guevin’s answer to interrogatories.)
- Tangie: This is not a municipal dog. Ms. Guevin remembers that she was asked to help a customer find a new owner. (Guevin testimony; Ex. i.)
- Onyx: This was originally a municipal dog but later was transferred to Sweet Paws Rescue. Ms. Guevin believes it was a young woman in the North End who adopted the dog. (Guevin testimony; Ex. i; Appendix A.)
- Doberman, name unknown: The dog was left with Ms. Guevin for a time when the owner’s father died. The owner later retrieved the dog. (Guevin testimony; Ex. i.)
- Zoey: This was a municipal dog who was transferred to Sweet Paws Rescue. The transfer was made on October 2, 2022. (Guevin testimony; Ex. i; Appendix B.)
- Jim Beam: This was a municipal dog. (Guevin testimony; Ex. i.)
- Peanut: This was a municipal dog who was transferred to Sweet Paws Rescue on December 9, 2021. (Guevin testimony; Ex. i; Appendix C.)
- Taya: This was a municipal dog. Everett arranged for an adoption to someone who soon thereafter died. After that, Everett arranged for the dog to be adopted by another individual. (Guevin testimony; Ex. i.)
- D-Boy: This was a municipal dog that was transferred to Sweet Paws Rescue. (Guevin testimony; Ex. i: Appendix D.)
- Zaza: Ms. Guevin thinks this was a municipal dog who was transferred to Sweet Paws Rescue, but she did not have a clear memory. (Guevin testimony; Ex. i; Appendix E.)
- Moonshine: This dog was found in a cemetery after being sprayed by a skunk. ACO Gorgone brought the dog to The Dogmother, where the dog was deskunked. ACO Gorgone was able to find a new adoptive owner after a few months. (Guevin testimony; Ex. i; Appendix F.)
- Wilson: A day care customer surrendered this dog to Sweet Paws Rescue. The dog does not trust strangers and can be aggressive toward them. The dog was still at The Dogmother at the time of the hearing. (Guevin testimony; Ex. i; Appendix G.)
- Duke: Somone asked Ms. Guevin to post about this dog. The dog never came into her possession. (Guevin testimony; Ex. i.)
- Jordan and Nelson: Someone asked Ms. Guevin to post about these cats. They never came into her possession. (Guevin testimony; Ex. i.)
- Cassidy: This dog was surrendered to Everett and was later transferred to Sweet Paws Rescue on July 1, 2022. (Guevin testimony; Ex. i; Appendix H.)
- Oreo: This was a municipal dog who was transferred to Sweet Paws Rescue on June 22, 2022 and ultimately adopted by a woman who lives in Malden. (Guevin testimony; Ex. i; Appendix I.)
- Basenji, named Reese: The owner surrendered this dog to Amesbury Animal Control, which then transferred the dog to Sweet Paws Rescue, which asked Ms. Guevin to post about his dog. Ms. Guevin remembers that a friend of hers adopted this dog. (Guevin testimony; Ex. i; unmarked Appendix.)
- Coleman: A deaf dog sent to Ms. Guevin by a rescue organization called Deaf Dogs Rock.[6] The dog was returned to that organization, which found a new owner for the dog. (Guevin testimony; Ex. i.)
- Mollie: This was an municipal dog, who was adopted by a person who then died. The dog was returned to Everett and then adopted out by a rescue organization called Bullied Breeds Rescue.[7] (Guevin testimony; Ex. i.)
- Mimi: Someone asked Ms. Guevin to post about this dog. That person later told Ms. Guevin that the dog had been adopted. (Guevin testimony; Ex. i.)
- Following the hearing, Ms. Guevin submitted adoption documents between Sweet Paws Rescue and the new owners of Onyx, Zoey, Peanut, D-Boy, Zaza, Cassidy, Oreo, and Reese, which are all the dogs she identified as being Sweet Paws Rescue dogs that were later adopted. (Appendices A-E and H-I.)
- As for Everett municipal dogs, ACO Gorgone corroborated Ms. Guevin’s testimony that she was not responsible for making adoption decisions. ACO Gorgone was very busy, so she had Ms. Guevin perform some preliminary steps such as posting dogs on Facebook and conducting phone interviews. But ACO Gorgone herself made the decision as to who would be permitted to adopt each municipal dog. She did not allow Ms. Guevin to make this decision because she thought that Ms. Guevin was too soft-hearted and would not necessarily make the correct decision as to who should be allowed to adopt a dog. (Guevin and Gorgone testimony; Ex. i.)
- Ms. Guevin and The Dogmother filed a timely appeal of the September 26, 2022 citation. (Ex. n.)
Discussion
The Department of Agricultural Resources contends that Ms. Guevin and The Dogmother were operating an unlicensed rescue organization and thus had no authority to place dogs with new owners. A rescue organization is a charitable corporation “whose primary activity is the placement of abandoned, displaced, unwanted, neglected or abused animals.” 330 CMR 30.02. A rescue organization may offer a dog for adoption so long as the organization complies with the regulations regarding placement that require, for example, that a dog have been examined by a veterinarian and has a health certificate. 330 CMR 30.09(2). Ms. Guevin’s company, The Dogmother, is a for-profit business and does not have a license as a rescue organization. The parties agree that The Dogmother’s kennel license does not authorize Ms. Guevin to offer dogs for adoption.
The Department has the authority to issue administrative fines up to $500. Each animal involved in a violation “may constitute a separate offense.” M.G.L. c. 129, § 37. The Department fined Ms. Guevin and The Dogmother for each of her Facebook posts, which it contends were placement activity and thus subject to a fine. It fined Ms. Guevin and The Dogmother an additional $500 for operating as an unlicensed recue organization, which was also subject to a fine. The maximum fine the Department can impose in any one action is $10,000, and thus the Department reduced its $13,000 fine to $10,000. Id.
Ms. Guevin claims that she is not running a dog rescue organization. She simply runs a licensed kennel and has agreed to house City of Everett and Sweet Paws Rescue dogs that are available for adoption and which she posts about, but it is Everett and Sweet Paws Recuse that enter into any adoption contracts, and hence she has not run afoul of the recue organization regulations.
During the relevant period, Ms. Guevin frequently posted online about dogs available for adoption without mentioning anyone else or any entity that owned the dogs other than herself. Those posts made it look to the Department like the dogs she posted about were her dogs and that she was the one from whom any interested person might be able to adopt a dog, and hence that she was operating an unlicensed rescue organization. But this was simply an assumption. The Department needed proof.
The Department’s lengthy efforts to find documents that would trace the history of the dogs posted for adoption did not provide much in the way of definitive evidence that the dogs were adopted out by anyone other than Ms. Guevin, but they also did not provide proof that she owned the dogs or that she was the one who made adoptions. That the City of Everett’s records of municipal dogs did not line up with the dogs about whom Ms. Guevin posted is not Ms. Given’s fault. The Department has acknowledged that Ms. Guevin is not responsible for the condition of Everett’s records.
What little information the Department gleaned about the 200 dogs Ms. Guevin took to the Revere Pet Clinic did not do much to prove the Department’s case either.[8] The evidence, as it came in at the hearing, shows that it was the City of Everett that had an account at the clinic and its was Ms. Guevin who brought various dogs to the Revere Animal Clinic, most of which were on behalf of someone else, including Everett and Sweet Paws Rescue.
The Department did not speak to Ms. Guevin about the posted dogs, nor to ACO Gorgone, nor evidently to Ms. Sweet, before it issued its fines. Had it done so, it would have obtained additional information about who controlled the adoption of these dogs. Ms. Guevin’s memory is good as with many of the dogs, and where there were documents for particular dogs, those documents line up well with Ms. Guevin’s memory. The documents that Ms. Guevin obtained from Sweet Paws show that Sweet Paws is the one that adopted many dogs in Ms. Guevin’s possession out to new owners. There are no documents related to the adoption of dogs that were the City of Everett’s, but I credit ACO Gorgone’s frank testimony that while she allowed Ms. Guevin to perform some preliminary steps involving discussions with people who were interested in adopting a dog, she was the one who made the decision as to who would be permitted to adopt a dog because Ms. Guevin was too soft-hearted to vet potential owners as thoroughly as ACO Gorgone.
As for Henry and Coco, about whom there was the most testimony, the evidence does not show that Ms. Guevin was responsible for deciding who would adopt these dogs. The evidence about Coco is clear that Bonnie Cooper of Doggone Purr-fect agreed to have Lisa Vibert adopt the dog. Ms. Guevin’s role appears to have been to board the dog until the adoption took place and then to follow ACO Gorgone’s wish that Coco be removed from Ms. Vibert’s house. The actions here seem highly unusual, but all that the Department charged was that Ms. Guevin transferred the dog. The evidence points to Ms. Cooper as doing so.
Sweet Paws adopted Henry out. Ms. Guevin had the dog only briefly and solely for the purpose of having the dog treated at the veterinary clinic at which she could obtain a discount. Ms. Guevin played no role in the adoption of the dog.
Does this mean the fines should be vacated? Department counsel argues that it does not. The Department argues that only a rescue organization or an animal control officer may “place” a dog, which is regulations define as any activity “[t]o sell, barter, exchange, give away, or otherwise find a permanent physical placement for an Animal that is abandoned, displaced, unwanted, neglected or abused.” 330 CMR 30.02. Counsel argues that “advertising [dogs] for placement on public Facebook pages, conducting interviews with prospective adopters, obtaining adoption paperwork, screening potential adopters for the Everett Animal Control Officer, and, in certain circumstances, receiving animals back from adopters” amount to placement and therefore required a rescue organization license.
Whether the regulation is broad enough to encompass all the activities in which Ms. Guevin engaged, the penalty assessment charged her only of offering dogs and cats for adoption without a license. The Department, when describing its investigation, acknowledged that it had not charged Ms. Guevin with violating Department regulations when it found evidence that the dogs in Ms. Guevin’s possession were Everett or Sweet Paws Rescue dogs. Thus, whatever the scope of the Department’s authority under the definition of “placement,” in this instance it chose to sanction Ms. Guevin only if she was the one actually adopting out dogs that were hers, not if she posted about them or performed other activities related in some way to a future adoption by someone else. That evidence is lacking, and hence I decline to affirm the penalty for offering dogs for adoption.
In sum, the preponderance of the evidence in the record establishes that Ms. Guevin was not adopting out the dogs or cats. Further, posting about animals or engaging in related activities falls outside the scope of both the fine imposed and this appeal. The fines for placing individual animals without a license is therefore vacated.
As for the charge that Ms. Guevin was running an unlicensed dog rescue operation, the evidence shows that she was getting as close as possible to running a dog rescue operation without crossing the line. In the future, I would suggest that any time she posts about animals up for adoption, she should list the owner of the animal and who will make the decision about adoption, and if the owner is a rescue organization, she should list its license number. She should also keep better records going forward about animals she posts about, so that if the Department inquires about an animal she posted about a year or two ago, she should be able to provide information about the animal’s owner, her role involving the animal, and who was responsible for the adoption decision.
