Legislation – What’s Hot . . . . . . . By Sharon Coleman, CFA Legislative Legal Analyst & Kelly S. Crouch, CFA Legislative Information Liaison

 

Massachusetts House Bill 1444, Guardian Bill  – Muddying the Waters for Pet Owners

Massachusetts Representative Steven S. Howitt (R-Seekonk) presented H. 1444 (web page including current status)  by petition – a short bill that on first glance doesn’t reveal its true purpose. As with H. 2290, an identical bill presented in 2017, a careful analysis exposes the intent behind the bill. The opening sentence of the bill does say, “An Act changing the legal status of “pets” from personal property to “companion animals”(emphasis added).” However, nothing in the actual language to be enacted mentions property, and the companion animal terminology has never been used for this purpose. Rather a trend of many years has been to draft special laws for “companion animals” with offense definitions, classifications and penalties different from those for livestock or other animals. This use was merely a way of differentiating different types of animals and was unrelated to the standard personal property status of all animals. A different petition bill for 2019, H.1815 (web page including current status,) is titled “An Act known as the companion animal protection act of Massachusetts, deals with impounded animals and never defines or uses “companion animals” in the provisions to be enacted. In current state law, there is only one use of companion animal, in veterinary law, Chapter 112, Section 58A1/2: Dispensing of compounded drugs to companion animals by veterinarians. Thus, it is unlikely the use of this term would achieve the drafter’s purpose of elevating the legal status of pets, so there must be other clues

The first clue to the drafter’s intent is the bill’s second paragraph to be enacted, “Caregivers of “companion animals” shall be considered “guardians”. The original 1999 “Guardian Campaign” of In Defense of Animals (IDA) founder, Dr. Elliot Katz, sought to elevate the status of animals by substituting guardian for owner as a step to eliminating the property status of animals. This would change the paradigm of ownership to a “fiduciary” relationship for care of animals. No detailed framework for a legal guardianship relationship was ever worked out to do this, and proponents had to settle for “guardian” as the legal equivalent and alternate usage for owner. With greater scrutiny, the realization that guardians only have obligations but no inherent rights, public skepticism increased. IDA has now revised their own terminology to “The Founder’s Guardian Initiative” although Guardians remains one of their organization campaigns. While the legislation fell out of favor, use of the term is always a red flag for determining drafter intention.

The second clue within the bill is less apparent to readers unfamiliar with criminal sentencing guidelines. In particular, the Federal criminal “sentencing guidelines” of mandatory minimum sentences for specific drug offenses, chiefly those involving small amounts of inexpensive but illegal drugs trafficked by low level offenders. The three offenses described in H. 1440 involve allowing “companion animals” to be outside in extreme weather “which poses an adverse risk to the health and safety of“ the animals. The bill then imposes mandatory minimum sentences of confinement. Unlike “guardian,” this is a new kind of red flag to watch for in animal laws.

Massachusetts has a long list of animal cruelty statutes, but none provide mandatory minimum sentencing. Nor does the 2016 Animal Cruelty And Protection Task Force report make any reference to this idea. Rather, each offense that includes confinement in the penalty, provides only that it be for “not more than” whatever period of years. At the state level, the Massachusetts Sentencing Commission has ”concluded that for certain mandatory offenses — e.g., OUI, firearms offenses — the mandatory minimum sentence was fair and proportionate. The Commission didn’t reach the same conclusion upon its examination of mandatory drug offenses” and further noted, “Current research on mandatory minimum drug sentencing supports alternatives to mandatory sentences.” Use of mandatory minimum sentences for any animal offense would be a major policy departure for Massachusetts criminal sentencing, so that offhand inclusion in H.1444 is a serious concern.

There are no precedents or obvious reasons for using mandatory minimum sentences in these low level animal offenses, except for a 2008 Comment in the Penn State Law Review., “Justice For Dusty: Implementing Mandatory Minimum Sentences For Animal Abusers.” Similar to the hope that “guardian” would lead to better treatment of animals generally, this Comment, written by a law student, argues for creative use of mandatory minimum sentencing for animal abusers so that society takes these crimes more seriously.

The Massachusetts petition bill process probably facilitates aspirational bills that advance policy ideals rather than practical approaches, but sometimes political quirks lead to enactment of unlikely bills or copycats elsewhere. While these are challenging to identify, it is important to understand them.

Recent CFA Legislative Group Blog Posts:

  1. Massachusetts: Senate Bill 114 Creating Breeder Licensing for Cat Fanciers and Rescue Regulations Proposed by MDAR. 5/16/2019
  2. Docket No. APHIS-2017-0062 – Proposed Rule Comment Period Ends May 21, 2019. 5/19/2019
  3. APHIS Extends Comment Period for Docket No. APHIS-2017-0062 – proposed Rule Comment Period Ends June 5, 2019. 5/21/2019

Please report legislation happening in your area to the Legislative Group – legislation@cfa.org  Visit the CFALegislativeNews Facebook page and the CFA Legislative Group Blog to see the current legislative news.

APHIS EXTENDS COMMENT PERIOD FOR Docket No. APHIS-2017-0062 – Proposed Rule Comment Period Ends June 5, 2019

 

As of today, May 21, 2019, the comment period for Docket No. APHIS-2017-0062 as described in the previous May 19 post, has been EXTENDED to Wednesday, June 5, 2019 at 11:59 p.m. EST. The docket page has been updated to reflect this change. As of this morning, the comment counter shows 27,653 comments received. For more information:

Animal Welfare; Amendments to Licensing Provisions and to Requirements for Dogs

Docket No. APHIS-2017-0062 – Proposed Rule Comment Period Ends May 21, 2019

 

In March, APHIS published for comment a new Proposed Rule based on information gathered through a 2017 advance notice of proposed rulemaking (ANPR) to solicit comment on a number of topics under consideration for revisions to the Animal Welfare Act Regulations.  The comment period for the current Proposed Rule closes on May 21 2019, at 11:59 PM ET.  For all documents on “Animal Welfare; Amendments to Licensing Provisions and to Requirements for Dogs” or to submit a comment, see https://www.regulations.gov/document?D=APHIS-2017-0062-47066

APHIS summarizes the changes as “PROMOTE COMPLIANCE, REDUCE FEES, STRENGTHEN SAFEGUARDS, PREVENT PERSONS/BUSINESSES WITH NONCOMPLIANCE HISTORY FROM OBTAINING LIC/WORKING W/REGULATED ANIMALS, and STRENGTHEN VET CARE/WATERING FOR REGULATED DOGS

One reason for these proposals is response to inadequately rigorous license procedures and care standards for “puppy mills” – either alleged by activists or recognized by APHIS. These make it more difficult to reference USDA licensing as a standard for other purposes such as allowing retail stores to sell puppies to the public. Thus, the revisions emphasize licensing and dog care. However, the licensing changes impact ALL licensees.

There are some related concerns that could impact breeders who sell at retail and would not have been licensed before the 2013 Retail Pet Store Rule where the licensee’s “business model” information will now be required in order to demonstrate compliance.  Here is the explanation:

“Proposed paragraph (b)(2) would state that licenses authorize increments of 50 animals on hand at any single point in time during the period of licensure, and that licensees must obtain a new license before any change resulting in more than the authorized number of animals on hand at any single point in time. For example, a dog breeder with 30-40 breeding female dogs should apply for a license to hold 100 dogs and demonstrate compliance to house 100 dogs (adults and puppies) to accommodate anticipated births from the dogs. Since the breeder business model is predicated on selling puppies at or shortly after 8-weeks of age, the applicant would have to demonstrate the ability to safely handle, house, and care for up to 100 dogs (adult and puppies) at the time of pre-license inspection. The pre-license demonstration of compliance would take into account the species of dog, the number of breeding female dogs, the projected litter size, and the facility’s business model for selling and placing puppies and adult dogs who are no longer used for breeding purposes. Paragraph (b)(2) would also state that licenses authorize the use of animals by subpart A through F in part 3, except that, for subparts D and F, licenses separately authorize the use of each of the following groups of animals: (1) Group 5 and 6 nonhuman primates, (2) big cats or large felids (lions, tigers, leopards, cheetahs, jaguars, cougars, and any hybrid cross thereof), (3) wolves, (4) bears, and (5) mega-herbivores (elephants, rhinoceroses, hippopotamuses, and giraffes). These groups of animals would have to be separately authorized because these animals are dangerous and have unique regulatory and care needs. Licensees would also be required to obtain a new license before using any animals beyond those animals authorized for use under the existing license for activities for which a license is required. For example, if an applicant obtained a 3-year license after demonstrating compliance with the regulations in part 2 and the standards pertaining to dogs and cats (subpart A of part 3), but later decides that he or she wishes to also acquire and use rabbits for activities that require a license, that person would need to apply for a new license and demonstrate compliance with all applicable regulations and standards, including the standards pertaining to dogs, cats, and rabbits (subparts A and C of part 3), and obtain a new license, before using the rabbits for such activities.”

As CFA explained since 1997, the original licensing threshold based on the wholesale business model allowed licensed breeders to send offspring to retail sellers at predictable ages so as to control overhead and typically limit breeding stock to animals used for breeding. As this standard changed, licensed breeders can be retaining offspring for direct sale to brokers or pet buyers for unpredictable periods at increased overhead costs and use of the facilities’ space and resources. These practices could result in more animals than anticipated and less predictable revenues and cash flow to cover overhead costs, resulting in greater risks to animals at the licensee’s facility. The Proposed Rule would require more careful evaluation and attention to compliance details for some persons.

The new water and care provisions apply to dogs only, and cat requirements are distinguished as follows:

“32. Section 3.10 is revised to read as follows:

 3.10

Watering.

(a) Potable water must be continually available to the dogs, unless restricted by the attending veterinarian.

(b) If potable water is not continually available to the cats, it must be offered to the cats as often as necessary to ensure their health and well-being, but not less than twice daily for at least 1 hour each time, unless restricted by the attending veterinarian.

(c) Water receptacles must be kept clean and sanitized in accordance with § 3.11(b) and before being used to water a different dog or cat or social grouping of dogs or cats.”

When a Final Rule is eventually published, we will again provide reference material for its use.

Legislation – What’s Hot . . . . . . . By Kelly Crouch, CFA Legislative Information Liaison May 2019

 

Massachusetts: Senate Bill 114 Creating Breeder Licensing for Cat Fanciers and Rescue Regulations Proposed by MDAR

Fanciers do more than just bathe, fluff and primp their cats in preparation for a show. Most of our CFA feline aficionados have active breeding programs, and many provide valuable services in cat rescue as well. Massachusetts lawmakers have their eye on regulating both activities.

Senate Bill 114

Senate Bill 114, presented by Senator Harriette L. Chandler (D – First Worcester) by a bipartisan petition, is an act with the stated purpose of protecting the health and safety of kittens and puppies in Massachusetts. The bill would make several changes to existing animal law including licensing for cat breeders. To add cats to the existing dog breeder licensing law, the bill would strike out the existing Chapter 140 §137C and insert a new §137C. The new §137C would require the inspection of both kennels and catteries. The definition of cattery is modeled after the definition of kennel and reads as follows:

“’Cattery’, a pack or collection of cats on a single premises, including a commercial boarding or training cattery, a commercial breeder cattery, a domestic charitable corporation cattery, a personal cattery and a veterinary cattery.”

The new §137C is similar to existing law with some differences besides the addition of catteries. The draft language specifies the hours during which inspections may take place and the extent to which private residences may be inspected. It also allows for unannounced inspections should the inspector feel such measures are necessary. Another change is the provision for escalating fines for operating a cattery or kennel after the license was revoked or suspended — the fine ranges from $250 for the first offense to $1500 for third or subsequent offenses. Currently, the fine for each event is $250.

Senate Bill 114 also directs MDAR to promulgate rules and regulations for “the maintenance and inspection of commercial breeder kennels or catteries and personal kennels or catteries in which not less than 5 sexually-intact female dogs or cats are kept for the purpose of breeding the dogs or cats and sell the offspring as household pets.” The rules are to address proper housing, standards of care, responsible breeding practices, and regular inspections. MDAR is required to draft additional rules for boarding kennels and catteries and daycare facilities, regardless of size or whether the entity is home-based. If S B. 114 is enacted, the regulations are to be promulgated not more than 18 months after the bill’s enactment date.

Regulations for Shelters and Rescues

The Massachusetts Department of Agricultural Resources (MDAR) has promulgated new rules for the licensing and operation of animal shelters and rescue organizations. The stated goal of the regulations is to control the spread of diseases associated with such animal welfare activities. As many fanciers are involved with pedigreed cat rescue, it is important those fanciers thoroughly review the proposed rules (click here).

Under the proposed regulations, a rescue organization is an IRS 501 (c) (3) entity not otherwise required to be licensed under Massachusetts General Law (M.G.L.) Chapter 129 §39, 39A, or 45, or M.G.L. Chapter 94 §152A. The primary purpose of the organization must be “the placement of abandoned, displaced, unwanted, neglected or abused animals.” The entity must not pay or compensate breeders for the cats or dogs.

The proposed rules set forth licensing procedures and requirements for facilities, animal care, and foster care, importation of animals, restrictions on placement, reclamation of owned pets, record keeping, inspections, and quarantines. In drafting the rules, lawmakers differentiated between facilities of the organizations and their foster homes. The organization is responsible for having completed written agreements with each foster home at least once every two years.  The foster home must also provide the organization a signed acknowledgment they have read and understood “Best Practices for Providing Foster Care” provided by MDAR. It will also be the organization’s responsibility to ensure the foster home is compliant with the animal care requirements under §30.06 of the proposed regulations.

Since the comment period for the proposed regulations ended on May 7, 2019, MDAR should be in the process of compiling, analyzing and considering the comments prior to the development of the final rules.

Please report legislation happening in your area to the Legislative Group – legislation@cfa.org    Visit the CFALegislativeNews Facebook page and the CFA Legislative Group Blog to see the current legislative news.

CURRENT TOPICS IN LEGISLATION: Consumer Protection Pet Leases and Finance Legislation Must Preserve Fancier Breeding Lease Practices

 

THE PROBLEM:  Along with the commercialization and monetization of “all things pet” that entrepreneurs can think of, something called “pet leasing” began turning up in consumer protection news reports. Buyers with insufficient credit or means to pay exorbitant prices for commercially sold pets were lured into unbelievably inappropriate leases or installment sales contracts. The lessees or buyers did not have title to the pet, and repossession is a contractual term, whether or not it is enforced.  At the end of the lease, by definition a fixed term, or final payment of the installment contract, title to the pet would be transferred – if the pet were even still alive. We agree that these are predatory financing techniques and invite well drafted protective laws enacted to protect the public and pets, but these must also protect the historic use of breeding leases by cat and dog registries or any other well-accepted practices that could be unintentionally be included in drafting.

LEGISLATIVE HISTORY:  The first pet lease bill appeared in California in 2017 as AB 1491. As introduced, it would have unwittingly included the breeding leases. With its extensive legislative staffing, California committees have consultants assigned to analyze each bill consistent with the authority and policies of the respective committees. Fortunately, the Assembly Judiciary consultant was an attorney who quickly saw the solution that would be consistent with the committee’s policy to narrowly draft prohibitions and avoid exemptions not directly related to the Civil Code. The bill was amended then, and with only one subsequent amendment clarifying one word, covering both consumer leases and secured installment contracts, enacted as California Civil Code Section 1670.10:

“1670.10.  (a) (1) Except as provided in paragraph (2), a contract entered into on or after January 1, 2018, to transfer ownership of a dog or cat in which ownership is contingent upon the making of payments over a period of time subsequent to the transfer of possession of the dog or cat is void as against public policy.

(2) Paragraph (1) shall not apply to payments to repay an unsecured loan for the purchase of the dog or cat.

(b) A contract entered into on or after January 1, 2018, for the lease of a dog or cat that provides for or offers the option of transferring ownership of the dog or cat at the end of the lease term is void as against public policy.

(c) In addition to any other remedies provided by law, the consumer taking possession of a dog or cat transferred under a contract described in paragraph (1) of subdivision (a) or in subdivision (b) shall be deemed the owner of the dog or cat and shall also be entitled to the return of all amounts the consumer paid under the contract.

(Added by Stats. 2017, Ch. 761, Sec. 1. (AB 1491) Effective January 1, 2018.)”

No unrelated express exemptions were required in order to outlaw these predatory consumer financing schemes without including established fancier practices.

A similar successful approach was used in Nevada also in 2017 that amended the Nevada Revised Statutes, Chapter 597 – Miscellaneous Trade Regulations and Prohibited Acts by enacting Assembly Amendment No. 727 to Senate Bill No. 185 First Reprint. Like California, this Nevada statute is tailored to consumer protection and did not require exemptions for other animal concerns, although the California provision is far clearer in its intent and consequences:

“NRS 597.997  Prohibition on certain offers to lease living animal or goods intended for personal, family or household use; federal Truth in Lending Act applicable to retail installment contract for sale of living animal or goods intended for personal, family or household use; failure to comply constitutes deceptive trade practice; violation constitutes consumer fraud.

1.  A person shall not offer to lease any living animal or goods intended for personal, family or household use, including, without limitation, pets, tires, batteries and hearing aids, if the living animal or good is expected to have not more than a de minimis residual financial value at the end of the term of the lease or contract.

2.  Any retail installment contract for the sale of any living animal or goods intended for personal, family or household use, including, without limitation, pets, tires, batteries and hearing aids, is subject to the provisions of the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., and any regulations adopted pursuant thereto.

3.  The failure of a person to comply with this section constitutes a deceptive trade practice for the purposes of NRS 598.0903 to 598.0999, inclusive.

4.  A violation of this section constitutes consumer fraud for the purposes of NRS 41.600.

5.  The provisions of this section do not apply to any lease or contract on furniture or household electronics.

6.  As used in this section:

(a) “Goods” has the meaning ascribed to it in NRS 104.2105.

(b) “Household electronics” means electronic devices, personal effects and property of an electronic nature used or to be used in a dwelling.

(c) “Residual financial value” means the amount the living animal or good is worth at the end of the term of the lease or contract and includes, without limitation, the salvage value of the living animal or good.

(d) “Retail installment contract” has the meaning ascribed to it in NRS 97.105.

(e) “Salvage value” means the amount expected to be obtained when the living animal or good is disposed of at the end of its useful life.

(Added to NRS by 2017, 1735)”

Later bills introduced in other states have not, as of January 2019, been enacted. Some efforts have been drafted narrowly like California and Nevada to avoid need for exemptions, but others have expressly exempted dog breeding leases but omitted cats. If bill language requires express exemption of breeding leases, this must be inclusive of dogs and cats.

POINTS TO REMEMBER:

“Pet leases” are a “rent to own” finance mechanism that induces a consumer to make lease payments for a pet far exceeding its value, lessor retaining right to repossession until all lease payments made at which time title would be transferred to the lessee. These as well as installment contracts secured by the pet being purchased are now considered predatory consumer finance methods and the subject of statutory prohibition with high penalties and/or declared void.

In contrast and NOT included are breeding leases. These are historic, practical contracts between registrants of cats or dogs for specific periods and purposes other than purchase of the animal. These are described and authorized by the registries’ rules and usually recorded with the registries using their respective forms. These include The Cat Fanciers’ Association (CFA,) The International Cat Fanciers’ Association (TICA) and the American Cat Fanciers’ Association (ACFA) for cats and The American Kennel Club (AKC) for dogs, and possibly others. For additional CFA information, contact us at legislation@cfa.org and/or check with other registries for their particulars.

“IRRESPONSIBLE OWNER” LEGAL DESIGNATION AND CONSEQUENCES: A SLIPPERY SLOPE FOR ANIMAL OWNERS’ RIGHTS

 

San Marcos, California City Council is Poised to Vote on an Ordinance Amendment that Could Punish “Irresponsible Pet Owners” Disproportionately to the Offense

Most people can recount times when they have dealt with the effects of another’s irresponsible pet ownership.  Some may have even thought “there ought to be a law.” Most of the time there are already laws on the books against the irresponsible acts of pet owners. Nevertheless, on October 23, San Marcos City Council is poised to approve the second reading of an ordinance amendment that would punish irresponsible pet owners with the seizure and forfeiture of all the person’s animals down to the last guppy.

A careful look at the proposed amendment reveals why this legislation allows for disproportionate punishment. It starts with the definition of an irresponsible owner as a person who has had three or more citations issued against them by the Animal Control Authority within the previous two years. The citations may be issued for violations of the following sections of the municipal code: animals at large, wild animals, public protection from animals, possession of guard dog, public nuisance animal or dangerous animal, public nuisance, declaration of dangerous animal, or any other provision under Title 6 as determined by the Animal Control Authority. As any violation of any provision of Title 6 is either an infraction for which citations are issued or a misdemeanor; trivial offenses could result in the seizure and forfeiture of all of the person’s animals. Amended Section 6.04.030 (e) authorizes that a convicted person be prohibited from owning, possessing, caring for, or having any contact with animals of any kind for up to three years or longer if ordered by a court. This section allows one to infer that the amendment does not require court involvement if the punishment does not exceed three years. Many animal owners may not have the legal sophistication or the means to challenge an administrative procedure or understand the legislative overreach of this amendment.

There is another devilish detail of the amendment. The punitive measures go far beyond prohibiting ownership. The prohibition on the care of animals can have employment consequences for those who work in an animal related field. Veterinarians, animal control officers, shelter workers, groomers are just a few people at risk for losing their livelihood simply because they acquired a particularly inventive puppy that should have been named Houdini. It would be a travesty of justice if a pet owner lost their job and a puppy lost his home simply because it kept coming up with ingenious ways to escape the backyard. The innocent goldfish sharing his home would also be forfeit. This is especially egregious if the owners were diligent about cutting off each method of escape as it was discovered.

There is great potential for abuse of the proposed amendment and disproportionate punishment for mere infractions or irresponsibility. California law already provides for forfeiture and time-limited prohibitions on care, custody, and ownership of animals for serious crimes involving animals.  These state laws allow for court discretion and mitigation. This amended ordinance would allow for the city to remove court involvement for punishments of the same severity for up to three years for actions much less serious in nature and for which convictions are not expressly required. San Marcos should remove the irresponsible pet ownership provisions.

*****

Editor’s Note, November 10, 2018:

At its October 23, 2018 meeting, the San Marcos City Council unanimously approved (AYES: COUNCILMEMBERS: JABARA, JONES, JENKINS, ORLANDO, DESMOND) the Consent Calendar including Item 4, ORDINANCE NO. 2018‐1467 ‐ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN MARCOS, CALIFORNIA, AMENDING SAN MARCOS MUNICIPAL CODE CHAPTERS 6.04, 6.08, 6.12, 6.16, 6.20, 6.28 AND 6.32 AND REPEALING AND REPLACING CHAPTER 6.24 RELATING TO ANIMAL CONTROL. Approved the second reading of an ordinance amending San Marcos Municipal Code Chapters 6.04, 6.08, 6.12, 6.16, 6.20, 6.28 and 6.32, and repealing and replacing Chapter 6.24 relating to animal control.

Welcome to the CFA Legislative Blog!

 

Welcome to the CFA Legislative Blog! The Blog is part of a multifaceted approach to providing cat fanciers with news on legislative happenings. Here you will find detailed news on select items of interest and alerts. This blog will also serve as a resource for your advocacy knowledge base. We are currently in the process of populating the Resource page with articles and information useful to you. The CFALegislativeNews Facebook page will continue to post news media articles, blog posts and other sources of information to provide fanciers news on legislative happenings.

The earlier posts are links to CFA’s individual flow charts for the recently revised APHIS licensing exemptions based on the APHIS Final Rule, June 2018, De Minimis Activity: Revised Licensing Exemptions, Subpart A – Licensing §2.1(3)(iii) and (vii.)

The rule document was issued by the Animal and Plant Health Inspection Service (APHIS:)  Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act

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