BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 1122 (Lieu)                                             2
          As Amended May 14, 2009 
          Hearing date: June 23, 2009
          Penal Code
          MK:br
                          ANIMAL ABUSE:  SALE OF LIVE ANIMALS  

                                       HISTORY

          Source:  ASPCA

          Prior Legislation: None

          Support: San Francisco SPCA; Animal Place; East Bay Animal  
                   Advocates; California Animal Association; California  
                   Animal Control Directors Association; Born Free USA;   
                   Haven Humane Society; House Rabbit Society; Lake Tahoe  
                   Humane Society and S.P.C.A.; League of Humane Voters;  
                   Humane Society Veterinary Medical Association; The  
                   Humane Society of the United States; Orange County  
                   People for Animals; PAWPAC; Parrots First; Sacramento  
                   Council of Dog Clubs, Inc.; State Humane Association of  
                   California; United Animal Nations; Valley Animal  
                   Center; California Federation for Animal Legislation

          Opposition:PetPAC; American Herding Breed Association; Northern  
                   California Samoyed Fanciers; California Outdoor  
                   Heritage Alliance; Greyhound Club of Northern  
                   California; Chow Fanciers of Southern California; a  
                   number of individuals

          Assembly Floor Vote:  Ayes 52- Noes 19





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                                         KEY ISSUE
           
          SHOULD THE LAW MAKE IT UNLAWFUL TO SELL OR GIVE AWAY AS PART OF A  
          COMMERCIAL TRANSACTION, A LIVE ANIMAL ON ANY STREET, HIGHWAY, PUBLIC  
          RIGHT-OF-WAY, COMMERCIAL PARKING LOT OR AT ANY OUTDOOR SPECIAL SALE,  
          PARKING LOT SALE, CARNIVAL, OR BOARDWALK?


                                       PURPOSE

          The purpose of this bill is to prohibit the sale of live animals  
          on any street, highway, public right-of-way, commercial parking  
          lot or at any outdoor special sale, parking lot sale, carnival,  
          or boardwalk.
          
           Existing law  provides except as otherwise provided, every person  
          who maliciously and intentionally maims, mutilates, tortures or  
          wounds a living animal, or maliciously and intentionally kills  
          an animal, is guilty of an offense punishable in the state  
          prison, or by a fine of not more than $20,000, or both the fine  
          and imprisonment; or, alternatively, by imprisonment in a county  
          jail for not more than one year, or by a fine of not more than  
          $20,000 or by both the fine and imprisonment.  (Penal Code  597  
          (a).)
           
           Existing law  states that any person who overdrives, overloads,  
          drives when overloaded, overworks, tortures, torments, deprives  
          of necessary sustenance, drink or shelter, any animal, and  
          whoever, having the charge or custody of the animal either as  
          owner or otherwise, subjects any animal to needless suffering,  
          or inflicts unnecessary cruelty upon the animal, or in any  
          manner abuses the animal or uses the animal when unfit for labor  
          is, for every such offense, guilty of a crime punishable as a  
          misdemeanor or felony or alternatively punishable as a  
          misdemeanor or felony and by a fine of not more than $20,000.   
          (Penal Code  597 (b).)
           
           Existing law  provides that no slaughterhouse that is not  
          inspected by the United States Department of Agriculture (USDA),  




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          stockyard, or auction shall buy, sell, or receive a  
          non-ambulatory animal.  (Penal Code  599 f(a).)

           Existing law  provides that it is a misdemeanor punishable by a  
          fine of up to $1000 plus penalty assessments and/or up to 90  
          days in jail for any person who operates a pet shop to fail do  
          all of the following:

                 Maintain the facilities used for the keeping of pet  
               animals in a sanitary condition.
                 Provide proper heating and ventilation for the  
               facilities used for the keeping of pet animals.
                 Provide adequate nutrition for, and humane care and  
               treatment of, all pet animals under his or her care  
               and control.
                 Take reasonable care to release for sale, trade, or  
               adoption only those pet animals that are free of  
               disease or injuries.
                 Provide adequate space appropriate to the size,  
               weight, and species of pet animals.  (Penal Code  597  
               l(a).)

           Existing law  provides that sellers of pet animals shall provide  
          buyers of a pet animal with general written recommendations for  
          the generally accepted care of the class of pet animal sold,  
          including recommendations as to the housing, equipment,  
          cleaning, environment, and feeding of the animal.  This written  
          information shall be in a form determined by the sellers of pet  
          animals and may include references to Web sites, books,  
          pamphlets, videos, and compact discs.  Charges against a seller  
          of pet animals for a first violation of the provisions of this  
          subdivision shall be dismissed if the person charged produces in  
          court satisfactory proof of compliance.  A second or subsequent  
          violation is an infraction punishable by a fine not to exceed  
          $250.  (Penal Code  597 l(b)(1).)

           Existing law  in the Lockyer-Polanco-Farr Pet Protection Act  
          regulates the sale of dogs and cats by pet dealers and provides  
          for civil penalties in the amount up to $1000 for violations of  
          the Act.  The civil penalty may be enforced by the local  




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          district attorney or city attorney.  (Health & Safety Code   
          122320 et seq.)

           Existing law  further provides that no pet dealer shall knowingly  
          sell a dog that is diseased, ill, or has a condition, any one of  
          which requires hospitalization or surgical procedures.  In lieu  
          of the civil penalties imposed pursuant to Section 122150, any  
          pet dealer who violates this section shall be subject to a civil  
          penalty of up to $1000, or shall be prohibited from selling dogs  
          at retail for up to 30 days, or both. If there is a second  
          offense, the pet dealer shall be subject to a civil penalty of  
          up to $2500, or a prohibition from selling dogs at retail for up  
          to 90 days, or both.  For a third offense, the pet dealer shall  
          be subject to a civil penalty of up to $5000 or a prohibition  
          from selling dogs at retail for up to six months, or both.  For  
          a fourth and subsequent offense, the pet dealer shall be subject  
          to a civil penalty of up to $10,000 or a prohibition from  
          selling dogs at retail for up to one year, or both.  For  
          purposes of this section, a violation that occurred over five  
          years prior to the most recent violation shall not be  
          considered.  An action for recovery of the civil penalty and for  
          a court order enjoining the pet dealer from engaging in the  
          business of selling dogs at retail for the period set forth in  
          this section, may be prosecuted by the district attorney for the  
          county where the violation occurred, or the city attorney for  
          the city where the violation occurred, in the appropriate court.  
           (Health & Safety Code  122205.)


           This bill  provides that it shall be unlawful for any person to  
          willfully sell, display or offer for sale or give away as part  
          of a commercial transaction, a live animal on any street,  
          highway, public right-of-way, commercial parking lot, or at any  
          outdoor special sale, parking lot sale, carnival, or boardwalk.   
          The penalty shall be as follows:


                 For a first offense the person shall be guilty of  
               an infraction punishable by a fine not to exceed $250.





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                 A person who violates this section for the first  
               time and by that violation either causes or permits  
               any animal to suffer or be injured, or causes or  
               permits any animal to be placed in a situation in  
               which its life or health may be endangered, shall be  
               guilty of a misdemeanor punishable by a fine not to  
               exceed $1000.


                 A person who violates this section for a second or  
               subsequent time shall be guilty of a misdemeanor  
               punishable by a fine not to exceed $1000.


           This bill  provides that a notice describing the charge and the  
          penalty for a violation of this section may be issued by any  
          peace officer; animal control officer, as defined in Section  
          830.9; or humane officer qualified pursuant to Section 14502 or  
          14503 of the Corporations Code.







           This bil  l provides that the section it creates shall not apply  
          to the following:

                 Events held by 4-H Clubs, Junior Farmers Clubs, or  
               Future Farmers Clubs.

                 The California Exposition and State Fair or county  
               fairs.

                 Stockyards with respect to which the Secretary of  
               the United States Department of Agriculture has posted  
               notice that the stockyards are regulated by the  
               federal Packers and Stockyards Act (7 U.S.C. Sec. 181  




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               et seq.).

                 The sale of cattle on consignment at any public  
               cattle sales market; the sale of sheep on consignment  
               at any public sheep sales market; the sale of swine on  
               consignment at any public swine sales market; the sale  
               of goats on consignment at any public goat sales  
               market; and the sale of equine on consignment at any  
               public equine sales market.

                 Live animal markets regulated under Section 597.3.

                 A public animal control agency or shelter, society for  
               the prevention of cruelty to animals shelter, humane  
               society shelter, or rescue group regulated under Division  
               14 (commencing with Section 30501) of the Food and  
               Agricultural Code.  For purposes of this section, "rescue  
               group" is a not-for-profit entity whose primary purpose  
               is the placement of dogs, cats, or other animals that  
               have been removed from a public animal control agency or  
               shelter, society for the prevention of cruelty to animals  
               shelter, or humane society shelter, or that have been  
               surrendered or relinquished to the entity by the previous  
               owner.

           This bill  provides that nothing in this section shall be  
          construed to in any way limit or affect the application or  
          enforcement of any other law that protects animals or the rights  
          of consumers, including, but not limited to, the  
          Lockyer-Polanco-Farr Pet Protection Act contained in Article 2  
          (commencing with Section 122125) of Chapter 5 of Part 6 of  
          Division 105 of the Health and Safety Code, or Sections 597 and  
          597l of this code.

           This bill  provides that nothing in this section limits or  
          authorizes any act or omission that violates Section 597 or 597l  
          of this code, or any other local, state, or federal law.  The  
          procedures set forth in this section shall not apply to any  
          civil violation of any other local, state, or federal law that  
          protects animals or the rights of consumers, or to a violation  




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          of Section 597 or 597l of this code, which is cited or  
          prosecuted pursuant to one or both of those sections, or to a  
          violation of any other local, state, or federal law that is  
          cited or prosecuted pursuant to that law.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  
          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  





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               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

              In California, backyard breeding and puppy mills present  
              a significant problem with ensuring the health and  
              safety of our animal population.  Currently the result  
              of these unregulated and irresponsible breeding  
              practices is the sale of young animals on roadsides and  
              store fronts. 

              Dogs, cats, and other animals, particularly juvenile  
              animals, are being sold in terrible conditions at  
              various outdoor venues.  Often times, these animals are  
              kept in crowded and unsanitary pens or cages without  
              adequate water or food.  The absence of effective  
              regulations has resulted in the sale of young animals  
              that are often mistreated, ill, and/or diseased.   
              Because of the tremendous cost for veterinary care, many  
              pets are ultimately abandoned or surrendered to animal  
              shelters, straining the local shelter system.

              Purchasing a pet is an important decision, which should  
              -----------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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              include research and preparation in an effort to provide  
              a healthy environment for your new pet. Responsible  
              breeders, pet stores, and shelters provide vaccines,  
              proper nutrition, health screenings, and care  
              information before animals are adopted.  These  
              procedures ensure the safest and easiest transition into  
              a new home.

              Unfortunately, roadside pet sales offer low prices for  
              designer breeds, presenting deals that are too good to  
              be true.  Often times these animals are sick which can  
              result in significant financial costs for treatment and  
              sometimes the death of the animal. Consumers have no  
              recourse if the animal is sick or if it dies because  
              there is no way to track the seller.

              California law provides that pet stores that sell  
              animals must abide by animal welfare standards to  
              protect the health and safety of the animals.  These  
              regulations promote proper care and treatment and  
              reduce the risk of disease outbreaks.  This law does  
              not apply to the sale of animals at roadside venues.

              AB 1122 will prohibit the sale of pet animals on  
              roadsides, store fronts, parking lots, and other  
              outdoor venues.  The sale of these animals would be  
              considered an infraction and may be enforced by a peace  
              officer, animal control officer, or humane officer.

          2.  Prohibition for Selling or Offering to Sell Animals  

          This bill makes it unlawful for any person to willfully sell,  
          display or offer for sale or give away as part of a commercial  
          transaction, a live animal on any street, highway, public  
          right-of-way, commercial parking lot sale, carnival, or  
          boardwalk.  The penalty is an infraction for a first offense  








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          punishable by a fine of $250 plus penalty assessments.<3>  If  
          suffering or injury occurs to the animal then the offense is  
          punishable by a misdemeanor with a $1000 fine plus penalty  
          assessments.<4>  A repeat offense is also punishable by a  
          misdemeanor fine of $1000.

          The bill provides a number of exceptions to the prohibition it  
          creates:

                 Events held by 4-H Clubs, Junior Farmers Clubs, or  
               Future Farmers Clubs.

                 The California Exposition and State Fair or county  
               fairs.

                 Stockyards with respect to which the Secretary of  
               the United States Department of Agriculture has posted  
               notice that the stockyards are regulated by the  
               federal Packers and Stockyards Act (7 U.S.C. Sec. 181  
               et seq.).

                 The sale of cattle on consignment at any public  
               cattle sales market; the sale of sheep on consignment  
               at any public sheep sales market; the sale of swine on  
               consignment at any public swine sales market; the sale  
               of goats on consignment at any public goat sales  
               market; and the sale of equine on consignment at any  
               public equine sales market.

                 Live animal markets regulated under Section 597.3.



                 A public animal control agency or shelter, society for  
               the prevention of cruelty to animals shelter, humane  
             -------------------------
          <3>  There are currently approximately 270% in penalty  
          assessments added to every fine, therefore a $250 fine is  
          actually approximately $925.
          <4>  A $1000 fine is actually approximately $2700 with penalty  
          assessments.



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               society shelter, or rescue group regulated under Division  
               14 (commencing with Section 30501) of the Food and  
               Agricultural Code.  For purposes of this section, "rescue  
               group" is a not-for-profit entity whose primary purpose  
               is the placement of dogs, cats, or other animals that  
               have been removed from a public animal control agency or  
               shelter, society for the prevention of cruelty to animals  
               shelter, or humane society shelter, or that have been  
               surrendered or relinquished to the entity by the previous  
                                                                                owner.


































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          According to the ASPCA in support of this bill:

              There is growing evidence that pet animals are  
              increasingly being sold at flea markets, swap meets,  
              and other outdoor venues.  The absence of effective  
              regulations has resulted in puppies, kittens and  
              other pet animals being sold in terrible conditions -  
              including unsanitary crowded pens or cages, without  
              food and/or water, in extreme heat.  This bill would  
              alleviate the suffering of these animals while they  
              are awaiting sale.

              There are also public health and safety issues posed by  
              the sale of animals at temporary retail venues.  The  
              Centers for Disease Control estimates that 93,000  
              salmonella cases caused by exposure to reptiles are  
              reported each year in the U.S.  And it takes only one  
              undetected bird, infected with psittacosis, for example,  
              to start an outbreak epidemic.

              Pet stores that sell animals have to abide by animal  
              welfare standards to protect the health and safety of  
              the animals.  However, no state law protects animals  
              sold at roadsides, swap meets or parking lots.

          Existing law already punishes animal neglect, impounding an  
          animal without sufficient food and water, mistreating confined  
          animals, the sale of puppies under eight weeks of age, keeping  
          an animal without proper care and regulates pet shops and live  
          animal markets. (Penal Code
           597e, 597f, 597l, 597t, 597z, 597.1, 597.3.)  Some of these  
          offenses could apply to the behavior intended to be prohibited  
          by this bill and this bill makes it clear that this section  
          does not preclude prosecution under an existing law.

          SHOULD IT BE UNLAWFUL TO SELL, DISPLAY OR OFFER TO SELL OR GIVE  
          AWAY AN ANIMAL ON ANY STREET, HIGHWAY, PUBLIC RIGHT-OF-WAY,  
          COMMERCIAL PARKING LOT, OR AT ANY OUTDOOR SPECIAL SALE, PARKING  
          LOT SALE, CARNIVAL, OR BOARDWALK?




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          3.  Does This Bill Cover Behavior that It Does Not Intend to  
          Prohibit  ?

          The American Herding Breed Association opposes this bill stating  
          that:

              It would prohibit any sales or even giving away any  
              animal, for any purpose other than at an auction.  This  
              exception is an unreasonable hardship for any  
              small-scale producer.  Not only are there few auction  
              yards available, many of those that exist will take only  
              cattle (not pigs, sheep, chickens or goats) and are on  
              workdays.  While a large-scale producer might truck  
              their stock to an available auction, most small-scale  
              producers sell locally.  This bill would prohibit anyone  
              from doing so by advertising at feed stores or other  
              locations "on a street, highway or public-right of way."  
               It would prohibit sales at local "farmer's markets"  
              since these are located "on streets" or are considered  
              "outdoor special sales."

              The wording of this bill would prohibit anyone from  
              "displaying" a working dog offered for sale, such as a  
              trained working livestock dog - an annual event at the  
              Red Bluff bull sales.  It would prohibit training and  
              selling dogs for drug or mine detection as well as for  
              any other purpose in a public venue.  In fact, it  
              prohibits selling animals by any entity other than a  
              tax-exempt nonprofit organization founded for the  
              prevention of cruelty to animals or a public animal  
              control department, essentially creating a government  
              monopoly.  This is an inherently flawed bill that  
              needlessly will adversely affect thousands of California  
              citizens, particularly those who are not "big  
              businesses."

          While this bill contains a number of exceptions, the opponents  












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          argue that it still prohibits some legitimate sales of animals.   
          Does this bill prohibit advertising a hog for sale at the feed  
          store?  What about kittens that were found by someone, does this  
          prohibit that person from selling them at the farmer's market?   
          Can horses or dogs be advertised for sale at a horse or dog  
          show?  Are additional exceptions needed?

          This bill would also seem to prohibit things such as a "win a  
          goldfish" game at a school fair.  Is this also intended to be  
          prohibited by this bill?

          IS THIS BILL DRAFTED NARROWLY ENOUGH THAT IT ONLY PROHIBITS THE  
          INTENDED BEHAVIOR?

          ARE ADDITIONAL EXCEPTIONS NEEDED?



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