BILL ANALYSIS AB 2743 Page 1 Date of Hearing: May 4, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 2743 (Nava) - As Amended: April 28, 2010 As Proposed to Be Amended SUBJECT : REAL PROPERTY: RENTALS: ANIMALS. KEY ISSUE : SHOULD LANDLORDS BE PROHIBITED FROM IMPOSING CONDITIONS ON OCCUPANCY OF REAL PROPERTY THAT MIGHT CAUSE ANY ANIMAL ALLOWED ON THE PREMISES TO BE DEVOCALIZED OR DECLAWED? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This bill, sponsored by the Paw Project, seeks to prohibit landlords and other persons who own or manage real property from imposing conditions on occupancy of the property that might cause an animal that is allowed on the premises to be devocalized or declawed. Under this comprehensively conceived bill, landlords and property owners are broadly prohibited from taking any actions that might put people in the untenable position of having to choose between their housing accommodations or paying a veterinarian to perform declawing or devocalizing surgery on their pet cat or dog. The bill also seeks to protect prospective tenants and occupants by broadly prohibiting discrimination, preferential treatment, and advertising of property available for occupancy based on certain debarking or declawing considerations. These provisions only apply when an animal in question is already allowed on the premises; thus this bill does not apply if the landlord has a no-pets policy, nor does it compel landlords to accept pets in any case. This bill provides for a civil penalty of up to $2500 per animal for each violation that causes a pet to actually be declawed or devocalized, and a civil penalty of not more than $1000 for other lesser offenses that do not cause the actual declawing or devocalization of an animal. This bill authorizes an I.R.C section 501(c)(3) organization dedicated to the protection of animals with standing to enforce this act, and as an additional incentive for enforcement, to collect civil penalties for violations that it successfully enforces. This AB 2743 Page 2 bill is supported by numerous animal advocacy groups, in addition to the California Apartment Association, and the Western Center on Law and Poverty. It is opposed by the nonprofit Animal Council, who oppose efforts to de-legitimize elective veterinary procedures that are otherwise lawful veterinary practice in California, and who also contend this bill would cause more landlords to adopt no-pet policies, thus reducing housing available to pet owners. SUMMARY : Prohibits landlords from imposing conditions on occupancy of real property that might cause an animal that is allowed on the premises to be devocalized or declawed. Specifically, this bill : 1)Defines "devocalizing" to mean performing, procuring, or arranging for any non-therapeutic surgical procedure such as a vocal cordectomy, to remove an animal's vocal chords or to prevent the normal function of an animal's vocal chords. 2)Defines "declawing" to mean performing, procuring, or arranging for any non-therapeutic surgical procedure, such as an onychectomy, tendonectomy, or phalangectomy, to remove or to prevent the normal function of an animal's claw or claws. 3)Prohibits a person or corporation that occupies, owns, manages, or provides services in connection with any real property, and that allows an animal on the premises, from doing any of the following: a) Advertise, through any means, the availability of real property for occupancy in a manner designed to discourage application for occupancy of that real property because the applicant's animal has not been devocalized or dec1awed. b) Refuse to allow the occupancy of any real property, refuse to negotiate the occupancy of any real property, or to otherwise make unavailable or deny to any other person the occupancy of any real property because of that person's refusal to devocalize or declaw any animal. c) Require any tenant or occupant of real property to devocalize or declaw any animal allowed on the premises. d) Give preferential treatment in the terms of the right of occupancy or the provision of services to another person AB 2743 Page 3 because that person owns an animal that has been devocalized or declawed. e) Discriminate in the terms of occupancy or the provision of services against another person because that person owns an animal that has not been devocalized or declawed. 4)Establishes that, in addition to those harmed by violation of this section, an I.R.C section 501(c)(3) organization dedicated to the protection of animals has standing to enforce this act. 5)Provides for a civil penalty of not more than $2500 per animal for a violation of this act that causes the declawing or devocalization of the animal, to be paid to the person whose animal was declawed or devocalized or to a plaintiff IRC section 501(c)(3) organization entitled to bring an action under this act. 6)Provides that violation of this section that has not caused the declawing or devocalizing of an animal shall result in a civil penalty of not more than one thousand dollars ($1,000) to be paid to the plaintiff. 7)Clarifies that nothing in this act shall prevent the inclusion in an occupancy agreement of a provision that a present or potential occupant may not declaw or devocalize an animal that will be allowed on the premises. 8)Makes legislative findings and declarations. EXISTING LAW : 1)Prohibits any person from performing, or otherwise procuring or arranging for the performance of, surgical claw removal, declawing, onychectomy, or tendonectomy on any cat that is a member of an exotic or native wild cat species, and from otherwise altering such a cat's toes, claws, or paws to prevent the normal function of the cat's toes, claws, or paws, unless the procedure is performed solely for a therapeutic purpose. Further provides that any person who violates this prohibition is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, by a fine of ten thousand dollars ($10,000), or both. (Penal Code Section 597.6.) AB 2743 Page 4 2)Prohibits, generally, discrimination and related conduct with respect to the rental or sale of housing accommodations on the basis of a person's race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, and other factors. (Gov. Code 12955.) 3)Authorizes corporations for the prevention of cruelty to children or animals, or both, to be formed under the Nonprofit Public Benefit Corporation Law, and allows any such corporation, or any member or officer thereof, to prefer a complaint against any person, before any court or magistrate having jurisdiction, for the violation of any law relating to or affecting children or animals, and may aid in the prosecution of any such offender before such court or magistrate. (Corporations Code Section 10401 and 10404.) COMMENTS : This bill, sponsored by the Paw Project, seeks to prohibit landlords and other persons who own or manage real property from imposing conditions on occupancy of the property that might cause an animal that is allowed on the premises to be devocalized or declawed. Under this comprehensively conceived bill, landlords and property owners are broadly prohibited from taking any actions that might put people in the untenable position of having to choose between their housing accommodations or paying a veterinarian to perform declawing or devocalizing surgery on their pet cat or dog. The bill also seeks to protect prospective tenants and occupants by broadly prohibiting discrimination, preferential treatment, and advertising of property available for occupancy based on certain debarking or declawing considerations. Terminology; Reported Complications of Surgery. As used in this bill, the terms "devocalized" and "declawed" refer to two specific veterinary surgical procedures, the former primarily performed on dogs, and the latter on cats. The author has provided the following descriptions of the procedures and some of the reported complications sometimes associated with them: "Devocalization" (also known as debarking, bark softening, ventriculo-cordectomy and vocal cordectomy) is a surgical procedure applied to dogs and cats, where tissue is removed from the animal's vocal cords in order to permanently reduce the volume of their vocalizations. Complications can include the airway AB 2743 Page 5 becoming obstructed by scar tissue, breathing difficulties, chronic coughing or gagging, an increased risk of threats to physical safety and stress because of an inability to ward of threats by vocalizing. "Declawing" or onychectomy, is an operation to surgically remove an animal's claws by means of amputating of all or part of the distal phalanx, or end bones, of the animal's toes. Complications can include anesthetic complications including death, hemorrhage, and infection; chronic pain; lameness; aggression; litter box avoidance; and an increased tendency to bite after declawing. Although surgical complications can be expected to vary from one case to another, the author notes very simply in Section 1 of the bill that "declawing and devocalizing have irreversible effects on the animals that undergo these procedures." Need for the bill. According to the author, this bill essentially seeks to put an end to the problematic practice of some landlords in California of imposing conditions on occupancy of their property that may cause some prospective tenants or occupants in turn to have their animals declawed or devocalized. The author explains: A search of rental listings throughout California produces a number of properties with landlords and managers requiring that potential owners will be considered only with declawed cats or devocalized dogs. Both of these practices can have unintended consequences for property managers, physical complications for animals, and emotional and financial consequences for pet owners. It is unconscionable that some prospective tenants are promised housing in California conditioned upon the completion of surgical procedures on their pets with potential complications that are increasingly being viewed as inhumane and outdated. AB 2743 will rectify this situation by prohibiting this condition of tenancy. As the author indicates in Section 1 of the bill, another reason this legislation is needed is that declawing and devocalizing "may have the unintended consequence of creating potential AB 2743 Page 6 public health and safety concerns." For example, a devocalized attack dog present on property that law enforcement officers may legally enter to investigate a crime poses a special threat to the safety of those officers because of its incapability to bark or make its presence known. Furthermore, the author contends that addressing this problem in the area of landlord-tenant law is appropriate because "the permanence of these surgical procedures contrasts with the temporary nature of occupancy of real property owned by another." Another way of conceptualizing this is that a cat's claws, once removed, are gone forever-- potentially long after that animal's owner has completed the fixed term of an occupancy agreement that was the catalyst for the surgery in the first place. As a policy matter, it appears the author wishes to minimize instances of debarking and declawing procedures that would not otherwise have occurred but for the pet owner acting to meet actual or perceived conditions placed by a landlord or property owner on property available for occupancy. Scope of the bill, generally. On other occasions, the Committee has encountered bills that appeared to apply in greater or lesser scope than intended by the author because of a lack of precise wording at necessary locations in the bill. That, however, is not the case with this bill. The Committee has had the opportunity to review the language of this bill while working closely with the author to determine the scope of its application, and concludes the author has carefully drafted this bill with the intent that its provisions shall apply very broadly to cover all manner of situations that may arise when property is made available for occupancy. The bill does not apply unless an animal is allowed on the premises. This bill only applies when the landlord, manager, or property owner, as defined, already allows an animal to be on the premises before imposing any condition or taking any action to have that animal declawed or devocalized. In other words, this bill does not apply to any situation where the party making the property available for occupancy specifically forbids an animal on the premises. This bill does not infringe upon any landlord's ability to implement a "no-pets" policy or forbid a tenant or occupant from having an animal on the premises. Once effective, the bill will apply to lease and occupancy agreements already in existence, in addition to prospective AB 2743 Page 7 occupancies. There is no language in this bill limiting its application prospectively to occupancy of property commencing after the date the bill becomes effective. Instead, once this bill becomes effective it would seem to immediately apply to prohibit landlords and property owners from imposing conditions on existing tenants or occupants of property that might cause an animal allowed on the premises to be declawed or devocalized. Despite characterizations as a "landlord-tenant" bill, this bill is intended to cover a broader range of situations. First, the bill refers throughout only to "real property" because the author intends the bill to apply to all real property-- commercial, residential, and mixed-use. Second, the bill does not specifically use the term "landlord" because it is intended to proscribe conduct not only by landlords, as that term is generally defined, but by any "person or corporation that occupies, owns, manages, or provides services in connection with any real property." Nor does the bill refer only to "tenants" because it is intended to protect owners of animals who are not necessarily tenants in a legal landlord-tenant relationship. In structuring the bill around "occupancy of real property," the author intends to cover situations where one person essentially leverages the right of occupancy or potential occupancy against another person to have that person devocalize or declaw an animal that is allowed on the premises. This could be within an ordinary landlord-tenant relationship, but also is intended to apply to landlords and occupants, tenants and subtenants, and between roommates or co-occupants of real property. The author has specifically contemplated all of these permutations and drafted the bill to apply in all of these scenarios. There is also no requirement that the tenant or occupant of the real property be the true owner of an animal that is declawed or devocalized in violation of this bill. The author has contemplated situations where, for example, an occupant of the property has agreed to temporarily take care of another person's pet cat or dog where that animal is otherwise allowed to be on the premises, but then is faced with a choice of having the animal declawed or devocalized at the risk of losing the right to occupancy. This scenario would still be covered by the prohibition and liability provisions of the bill. As proposed to be amended, this bill prohibits a slightly broader range of conduct by landlords or property owners, including situations where no express conditions on occupancy AB 2743 Page 8 are made. The author has proposed to amend the bill to clarify the scope of conduct that is prohibited by this bill by replacing the narrower language of Section 1942.7(b)(3) of the bill (page 3, lines 1 to 3) with slightly more general language already contained in Sec. 1942.7(a) of the bill (page 2, lines 16 to 18.) The effect is that a narrower prohibition is eliminated in favor of a broader, more general prohibition having a similar objective, and two subdivisions of the bill are now combined into one. Specifically, the proposed amendment clarifies that no person or corporation that occupies, owns, manages, or provides services in connection with real property may require any tenant or occupant of real property to devocalize or declaw any animal allowed on the premises. The deleted language was somewhat narrower in scope because it prohibited requiring another person to devocalize or declaw an animal "as a condition of applying for occupancy, the right of occupancy, or continued occupancy of any real property." (italics added.) The proposed amendment is intended to cover a broader range of situations where, for example, a landlord intimidates an occupant but does not go so far as to expressly condition the right of occupancy on completion of the declawing procedure. It is thought that the new language might reduce some questions that would potentially result in litigation, for example: what was the intent of the landlord when he or she made the demand for declawing? Did the landlord establish declawing as a "condition" of occupancy?) Violations subject to a $2500 civil penalty. As will be discussed below, a violation of this particular prohibition is considered a "major" offense because it necessarily results in an animal undergoing a declawing or devocalizing procedure, and is subject to the maximum civil penalty allowed by this bill-an amount of up to $2500. Violations subject to a $1000 civil penalty. The proposed amendments do not change other types of conduct prohibited under this bill that are considered "lesser" violations because they do not result in the actual declawing or devocalizing of an animal allowed on the premises. These lesser violations are subject to a civil penalty not to exceed $1000 and include the following: 1. "Advertising the availability of real property for occupancy in a manner designed to discourage application for occupancy because the applicant's animal has not been devocalized or AB 2743 Page 9 declawed": The objective of this prohibition is to address the problem of landlords running ads for their rental properties that state a discriminatory preference for an occupant whose animal is declawed or devocalized. The author and sponsor have supplied the Committee with a number of examples of classified ads for rental housing that state a preference for tenants having a declawed cat. (For example, "Will consider declawed cat only.") According to the author, this provision is modeled on, but not identical to, language from the CA Fair Housing Act that makes it unlawful for any person "to publish. . . an advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, etc? or an intention to make that preference, limitation, or discrimination." (Gov. Code Section 12955(c).) 2. "Refuse to allow the occupancy of any real property, refuse to negotiate the occupancy of any real property, or to otherwise make unavailable or deny to any other person the occupancy of any real property because of that person's refusal to devocalize or declaw any animal." According to the author, this provision is modeled on Section 804(a) of the federal Fair Housing Act which makes it unlawful in federal housing "to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." (42 U.S.C. 3604.) This bill would prohibit those similar discriminatory practices on the basis of whether a prospective occupant would devocalize or declaw an animal. This type of prohibition is intended to prohibit discrimination against a person seeking housing, before any occupancy agreement or tenancy is established in the real property, lest landlords or property owners be able to evade the spirit of the law by simply refusing to rent to persons on the same basis by which they would be prohibited from discrimination if there was a lease. 3. "Discriminate in the terms of occupancy or the provision of services against another person because that person owns an animal that has not been devocalized or declawed." According to the author, this provision is modeled on Section 804(b) of the federal Fair Housing Act which makes it unlawful in federal housing "to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, AB 2743 Page 10 because of race, color, religion, sex, familial status, or national origin." (42 U.S.C. 3604.) 4. "Give preferential treatment in the terms of the right of occupancy or the provision of services to another person because that person owns an animal that has been devocalized or declawed." While this provision complements the previous prohibition of discrimination, there is no analogous provision in either the federal or California Fair Housing Acts to giving preferential treatment to someone who has declawed or devocalized an animal. When considered together with the previous anti-discrimination language on which it is based, these two provisions operate to prohibit favorable treatment of a person who has declawed or devocalized an animal, while prohibiting discrimination against a person who has not declawed or devocalized an animal-an equitable concept. As proposed to be amended, this bill clarifies the civil penalty structure for violations of this act, including who is authorized to enforce these provisions and who may collect a penalty. The author has proposed to amend the bill to reorganize and recast the civil penalty provisions to clarify who may enforce this act and who may collect the penalties in those cases. 1. Standing to enforce the statute. First, the proposed amendments provide that any person harmed by a violation has standing to enforce the statute. According to the author, this includes not only tenants and occupants, but also a third party owner of an animal that was devocalized or declawed in violation of this act-for example, in the aforementioned situation where a tenant or occupant was temporarily taking care of the third party's animal that was later devocalized or declawed. In addition, an I.R.C Section 501(c)(3) organization dedicated to the protection of animals is given standing to enforce this act. According to the author, this will provide a mechanism for potential enforcement in cases where a tenant or occupant cannot or will not enforce the statute out of fear of retaliation by the landlord. 2. Civil penalties of up to $2500 per animal for violations that cause an animal to be declawed or devocalized. As proposed to be amended, this bill clarifies that the maximum civil penalty of up to $2500 per animal, assessed for each violation that AB 2743 Page 11 causes the declawing or devocalizing of an animal, shall be paid (unless the plaintiff is the 501(c)(3) organization) to the person whose animal was declawed or devocalized-whether that person is the tenant, occupant, or third party owner of the animal. According to the author, this policy is intended to compensate the owner of the animal for his damages (the declawed animal) as well as the expense of the surgical procedure itself. If, however, the plaintiff is the 501(c)(3) organization, then the penalty amount will be paid to the organizational plaintiff to provide an incentive to enforce the statute. 3. Civil penalties of up to $1000 for other violations. As proposed to be amended, this bill provides that violation of this section that has not caused the declawing or devocalizing of an animal shall result in a civil penalty of not more than one thousand dollars ($1,000) to be paid to the plaintiff. According to the author, this amendment is intended to cap the total civil penalty for "lesser" violations at $1000 total-the penalty is not assessed for each violation in the case, just for the first violation as long as it did not cause the declawing or devocalization of any animal. This is sensible policy because it prevents a plaintiff from alleging multiple $1000 violations for each cat that was not declawed-which is a counting task more open to argument than simple enumeration of cats that have been declawed. In addition, the author's amendment corrects an oversight to the penalty structure by clarifying that the $1000 penalty is to be paid to the plaintiff in all cases, whether the plaintiff is an individual or an organization authorized to enforce the statute. As proposed to be amended, the bill makes new findings related to the policy of the bill. The author has proposed to amend the findings and declarations of the bill to focus attention on the landlord-tenant relationship affected by the core policy of the bill-the matter of principal importance to the Judiciary Committee's analysis. Although the amended findings are very brief and modest, they do establish the stark contrast between the permanence of declawing and debarking procedures and the temporary nature of most residential tenancy and occupancy (which generally lasts only for a fixed term and may be terminated upon notice by one of the parties.) The California Veterinary Medical Association (CVMA) had previously indicated it would support the bill if certain intent language it found controversial was stricken from the bill. It AB 2743 Page 12 is unknown whether the author's proposed amendments to the findings section has caused CVMA to adopt a support position. Pending Related Legislation : Existing law authorizes corporations for the prevention of cruelty to animals to be formed under the Nonprofit Public Benefit Corporation Law (commencing with Section 10400 of the Corporations Code), and allows the corporation to apply for appointment of humane officers by a judge of the superior court after a specified appointment and evaluation process. (Corp. Code 14502.) SB 1417 (Cox) of 2010 would implement new procedures and requirements for the appointment, and subsequent training, of humane officers by non-profit organizations formed for the purpose of preventing cruelty to animals. SB 1417 was recently passed by the Senate Judiciary Committee by a 4-0 vote and is currently resides in Senate Appropriations. Because this bill authorizes an I.R.C Section 501(c)(3) organization dedicated to the protection of animals to enforce violations of this act, it may go beyond existing law that restricts authority to enforce animal laws to those organizations that have appointed humane officers pursuant to Corps. Code Section 14502. Consequently, the author may wish to reconcile these provisions with Section 14502, especially if significantly amended as proposed by SB 1417. Prior Related Legislation. AB 1857 (Koretz), Ch. 876 of Stats. 2004, created a misdemeanor offense for any person to perform, procure, or arrange for surgical claw removal, declawing, onychectomy, or tendonectomy on an exotic or native wild cat species, as defined, or from altering such a cat's toes, claws, or paws in order to prevent their normal functioning. ARGUMENTS IN SUPPORT : The United Animal Nations (UAN), an animal advocacy organization that states it has over 9000 members in California, expresses its strong support of this bill because it will protect landlords, tenants, and animals. According to the UAN: Some landlords have required declawing of cats in an uninformed attempt to protect furnishings from being scratched . . . The unintended consequence of declawing can be that declawed cats are less likely to use the litter box, probably because scratching in the rough litter hurts their paws. These cats may instead AB 2743 Page 13 urinate and defecate on floors, furniture, and in other areas of the house. Besides creating a health and public safety problem, the landlords may inadvertently be causing more damage to their property. Debarking a dog requires that a veterinarian surgically sever the animal's vocal cords. The animal can have difficulty breathing for the rest of its life because of scar tissue formation. Locating a silenced dog in an emergency can also be difficult. Debarking was made illegal in New Jersey because law enforcement officers reported that the surgical technique was used for criminal purposes to silence attack dogs so they would not bark and warn their intended victims. Federal law already prohibits Public Housing Authorities from requiring tenants to devocalize their animals. The California Apartment Association (CAA), the largest statewide rental housing trade association in the country, also supports this bill because it enacts what is already the Association's current practice. CAA explains: CAA's leadership concluded years ago that it would not include in its industry form and leases any requirements that would require cats to be declawed or dogs debarked. Instead the Association recommends that property owners rely upon pet deposits to cover any damage to the unit. CAA has taken a Support position on AB 2743. The Western Center on Law and Poverty (WCLP) and the California Rural Legal Assistance Foundation also write in support of the bill, stating: On behalf of our low-income clients, we are pleased to support AB 2743, which would prohibit landlords from requiring that tenants' pets be declawed or debarked. We are concerned that such requirements, though not common now, may increase in the future. Low-income families lack the funds to pay for these operations, which can run into the hundreds of dollars. We are also concerned that a debarking policy must AB 2743 Page 14 infringe upon the meaningful exercise of the rights of disabled tenants to keep a service animal, as required by fair housing laws. A dog, able to bark, likely would be a reasonable accommodation under current laws, but disabled tenants would have to assert these rights against a landlord who may be ignorant of the law. For many, it isn't worth the time and effort. ARGUMENTS IN OPPOSITION : The Animal Council, which identifies itself as a nonprofit, public benefit corporation in California, opposes this bill for a variety of reasons. The Council's President relates that in over 25 years of experience counseling landlords and tenants on residential pet tenancies, she has never encountered a situation where either declawing or debarking were a condition of tenancy. The Council also states: We oppose using Civil Code provisions for residential rentals to de-legitimize elective veterinary procedures (i.e. declawing or debarking) that are otherwise lawful veterinary practice in California as determined through the veterinarian-client relationship. . . . Debarking is not the same as silence and would usually be ineffective (to resolve a nuisance problem). Landlords simply reject a pet completely, evict tenants whose pets cause problems and hold tenants liable for physical damage caused by the pet. For practical purposes, no landlord would be willing to accept a tenant's offer to address an actual problem pet in these ways for fear of late retaliation. AB 2473 would reduce housing available to pet owners and increase risks of shelter surrender for problem pets. REGISTERED SUPPORT / OPPOSITION : Support The Paw Project (sponsor) Animal Advocates California Apartment Association Companion Animal Protection Society (CAPS) Nolan-Taft Management Paw PAC United Animal Nations (UAN) Western Center on Law and Poverty AB 2743 Page 15 Opposition The Animal Council Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334