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 June 29, 2009
Hearing date: July 7, 2009
Penal Code
MK:mc
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;
ASCPCA, a number of individuals
Opposition:(all opposition to prior version of the bill) PetPAC;
American Herding Breed Association; Northern California
Samoyed Fanciers; California Outdoor Heritage Alliance;
Greyhound Club of Northern California; Chow Fanciers of
Southern California; Irish Wolfhound Club of America,
Inc.; a number of individuals
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Assembly Floor Vote: Ayes 52- Noes 19
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).)
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Existing law provides that no slaughterhouse that is not
inspected by the United States Department of Agriculture (USDA),
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
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for civil penalties in the amount up to $1000 for violations of
the Act. The civil penalty may be enforced by the local
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 for sale or offer for sale or give away
as part of a commercial transaction, a live animal on any
street, highway, public right-of-way, parking lot, 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
et seq.).
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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.
(As amended since heard in Committee on June 23,
2009.) The sale of fish or shellfish, live or dead, from
a fishing vessel, at a pier, wharf, or at a farmer's
market by any licensed commercial fisherman to the public
for human consumption.
(As amended since heard in Committee on June 23,
2009.) A cat show, dog show, or bird show provided that
all the following circumstances exist:
o The show is validly permitted by the city or
county in which the show is held.
o Each and every participant in the show
complies with all federal, state and local animal
control laws.
o The participant has written documentation of
the payment of a fee for the entry of his or her
cat, dog, or bird in the show.
o The sale of a cat, dog, or bird occurs only
on the premises and within the confines of the show.
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o The show is a competitive event where the
cats, dogs, or birds are exhibited and judged by an
established standard or set of ideas established for
each breed or species.
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
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
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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
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
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<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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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
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
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<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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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
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
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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, as amended since it was heard in Committee, makes it
unlawful for any person to willfully sell, display for sale or
offer for sale or give away as part of a commercial transaction,
a live animal on any street, highway, public right-of-way,
parking lot, carnival, or boardwalk. The penalty is an
infraction for a first offense 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 as 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.
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<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.
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
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.
The sale of a fish or shellfish, live or dead, from a
fishing vessel, at a pier or wharf, or at a farmer's
market by any licensed commercial fisherman to the public
for human consumption.
A cat show, dog show or bird show, provided that all
of the following circumstances exist:
o The show is validly permitted by the city or
county in which the show is held.
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o Each and every participant in the show
complies with all federal, state, and local animal
welfare and animal control laws.
o The participant has written documentation of
the payment of a fee for the entry of his or her
cat, dog, or bird in the show.
o The sale of a cat, dog or bird occurs only
on the premises and within the confines of the show.
o The show is a competitive event where the
cats, dogs, or birds are exhibited and judged by an
established standard or set of ideals established
for each breed or species.
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
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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 FOR SALE OR OFFER TO
SELL OR GIVE AWAY AN ANIMAL ON ANY STREET, HIGHWAY, PUBLIC
RIGHT-OF-WAY, PARKING LOT, OR AT ANY OUTDOOR SPECIAL SALE,
PARKING LOT SALE, CARNIVAL, OR BOARDWALK?
3. Amendments Since June 23 Hearing
This bill has been amended since it was heard in this Committee
on June 23rd in order to address some of the concerns raised.
Specifically, it makes clear that the prohibition on display is
to display for sale and makes exceptions for the sale of fish or
shellfish off a boat at a pier and for sales of animals at dog,
cat, or bird shows. Are these amendments sufficient to address
the concerns raised?
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