BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2743 (Nava)
As Amended June 7, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
BCP:jd
SUBJECT
Real Property Rentals - Animals
DESCRIPTION
This bill would prohibit a landlord that allows tenants or
occupants to have animals on the premises from doing any of the
following:
advertising the property in a way that discourages an
individual from applying because their animal is not
declawed or devocalized;
refusing to allow, negotiate, or make the property
available for occupancy because of a person's refusal to
declaw or devocalize an animal;
requiring a tenant or occupant to declaw or devocalize
an animal that is allowed on the premises;
giving preferential treatment to a person because their
animal is declawed or devocalized; or
discriminating in the terms of the occupancy, or
provision of services, because a person owns an animal that
has not been declawed or devocalized.
This bill would impose a civil penalty of $2,500 per animal for
every violation that results in the declawing or devocalizing of
an animal, and a $1,000 penalty for every violation that does
not result in the declawing or devocalizing of an animal.
This bill would permit a person harmed by a violation, or a
501(c)(3) corporation that is either dedicated to the protection
of animals or whose mission includes the protection of fair
housing laws, to enforce that penalty.
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BACKGROUND
This bill deals with the practice of "declawing" and
"devocalizing" animals, and the issue of whether a landlord
should be able to condition occupancy on the declawing or
devocalizing of an animal.
Onychectomy ("declawing") is an operation to remove an animal's
claws by amputating the end bones of the animal's toes. The
operation is most commonly done to household cats, but on
occasion is done to other animals. Except where medically
necessary, the practice of declawing has been prohibited in
other countries, including Australia, Brazil, Finland, Estonia,
the Netherlands, Germany, Switzerland, Austria, and the United
Kingdom. In California, eight cities - West Hollywood, San
Francisco, Santa Monica, Los Angeles, Beverly Hills, Berkeley,
Burbank, and Culver City, passed ordinances banning declawing.
The ability for additional cities to pass ordinances was limited
by SB 762 (Aanestad, Chapter 16, Statutes of 2009), which made
it unlawful for a city to prohibit a healing arts licensee
(veterinarian) from engaging in any act or performing any
procedure that falls within the professionally recognized scope
of that licensee (declawing) - that bill grandfathered in
ordinances which were in effect prior to January 1, 2010.
While declawing generally applies to cats, devocalizing most
commonly applies to dogs (although cats can be devocalized as
well). Also known as debarking, bark softening,
ventriculocordectomy, or vocal cordectomy, devocalizing is an
operation to remove tissue from the animal's vocal cords so as
to permanently reduce the volume of their vocalizations. The
operation is prohibited in the United Kingdom.
As a result of concerns about the practice of landlords only
permitting pets in a rental property if they are declawed or
devocalized, this bill would enact various prohibitions that
seek to ensure that if pets are allowed, the pet's owner is not
required to declaw or devocalize the animal in order to rent the
property.
CHANGES TO EXISTING LAW
Existing law 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
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the normal function of the cat's toes, claws, or paws, unless
the procedure is performed solely for a therapeutic purpose.
(Pen. Code Sec. 597.6.)
Existing law generally prohibits 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 Sec.
12955.)
Existing law generally regulates the terms and conditions of
residential tenancies and governs the obligations of tenants and
landlord under a lease or tenancy. (Civ. Code Sec. 1940 et
seq.)
This bill would prohibit any person or corporation that
occupies, owns, manages, or provides services in connection with
any real property, including the individual's or corporation's
agents or successors-in-interest, from doing any of the
following if they allow an animal on the premises:
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 declawed or devocalized.
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 declaw or devocalize any animal.
Require any tenant or occupant of real property to
declaw or devocalize any animal allowed on the premises.
Give preferential treatment in terms of the right of
occupancy or the provision of services to another person
because that person owns an animal that has been declawed
or devocalized.
Discriminate in terms of the occupancy or the provision
of services against another person because that person owns
an animal that has not been declawed or devocalized.
This bill would provide that nothing in the bill shall prevent
the inclusion, in an occupancy agreement, of a provision that a
present or potential occupant may not declaw or devocalize any
animal that will be allowed on the premises.
This bill would confer standing to enforce the bill's provisions
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on any person harmed by a violation, or an organization formed
in compliance with Section 501(c)(3) of the Internal Revenue
Code that is dedicated to the protection of animals or whose
mission includes the protection of fair housing laws. This bill
would also provide that a person may sue for declaratory relief,
injunctive relief, or for monetary relief as provided below.
This bill would provide that, in addition to any other penalty,
a violation of the bill that results in the declawing or
devocalizing of an animal shall result in a civil penalty of not
more than $2,500, per animal, to be paid to the person whose
animal was declawed or devocalized in violation, or to a
501(c)(3) organization that is authorized to bring an action.
This bill would additionally provide that a violation that does
not result in the declawing or devocalizing of an animal shall
result in a civil penalty of not more than $1,000, to be paid to
the plaintiff.
This bill would define animal, application for occupancy, claw,
declawing, devocalizing, nontherapeutic, and owner.
This bill would also enact various uncodified findings and
declarations regarding the effects of declawing and
devocalizing.
COMMENT
1. Stated need for the bill
According to the author,
Eight local governments in California have recently banned
the practice of cat declawing (Berkeley, Beverly Hills,
Burbank, Culver City, Los Angeles, San Francisco, Santa
Monica, West Hollywood), recognizing the practice as
inhumane. And many governments at all levels have banned
the practice of devocalization. Nonetheless, 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.
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It is unconscionable that some prospective tenants are
promised housing in California conditioned upon the
completion of complex surgical procedures for 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.
2. Proposed restrictions
The Paw Project, sponsor, asserts that the proposed restrictions
seek to protect animals "from unnecessary and harmful surgeries,
while tenants will be protected from having to make a harmful
choice when trying to find housing, and finally, landlords will
have even more protection for their properties." To effectuate
that goal, AB 2743 would enact five related prohibitions on
advertising, refusing occupancy, requiring tenants to actually
declaw or devocalize, preferential treatment, and
discrimination.
a. Advertising
AB 2743 would prohibit a person or corporation from
advertising the availability of real property in a manner that
is designed to discourage a person from applying because their
animal has not been declawed or devocalized. That proposed
advertising prohibition is loosely modeled on a similar
prohibition contained within the California Fair Employment
and Housing Act (FEHA). (Gov. Code Sec. 12955(c).) The
proposed prohibition would be a standalone section in the
Civil Code and not be part of FEHA.
The prohibition seeks to address issues faced by tenants when
looking for an apartment or house to rent - landlords of
certain properties include in their advertisement that only a
declawed cat or debarked dog is permitted. Committee staff
notes that at the time of writing this analysis, staff was
able to locate several current different online advertisements
that only permitted declawed cats - two sample ads stated:
"will allow a declawed pet cat only with additional pet
deposit" and "One declawed cat allowed." Depending on the
availability of housing stock, prospective tenants with
unaltered animals may face pressure to declaw or devocalize
their animal in order to qualify for tenancy. The author
further contends that those procedures can have unintended
consequences for both the landlord and tenant.
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The California Apartment Association (CAA), in support, notes
that "CAA's leadership concluded years ago that it would not
include in its industry forms and leases any such 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."
b. Refusal to allow occupancy; requiring that an animal be
declawed or devocalized
Consistent with the above advertising prohibition, this bill
would also prohibit a person or corporation from refusing to
allow occupancy, negotiate occupancy, or otherwise make
unavailable or deny occupancy because of a person's refusal to
declaw or devocalize an animal. This prohibition is modeled
on a similar prohibition in the federal Fair Housing Act which
makes discriminatory practices against prospective tenants
unlawful if the refusal to sell, rent, or negotiate is based
on race, color, religion, sex, familial status, or national
origin. (42 U.S.C. 3604(a).) For existing tenants and
occupants, this bill would further prohibit a person or
corporation from requiring an occupant to declaw or devocalize
any animal allowed on the premises.
From a policy standpoint, these two provisions seek to protect
an individual's choice as to whether or not to declaw or
devocalize their animal. For individuals who face limited
housing options - or who are already tenants and cannot afford
to move - these two prohibitions would arguably act to ensure
that they are not pressured to surgically alter their animal.
Landlords who are concerned about damage caused by certain
animals have a choice - they can rent the property but ask for
a pet security deposit, or they can make the decision to not
allow animals on the property. (See Comment 5 for opposition
concerns about landlords denying all pets.)
c. Preferential treatment and discrimination
AB 2743 would additionally prohibit discrimination against a
person in terms of occupancy or in the provision of services
because that person owns an animal that has not been declawed
or devocalized. Similar to the above provision, this
prohibition is modeled after a provision in the federal Fair
Housing Act. (42 U.S.C. 3604(a).) The last prohibition, not
modeled after any other state or federal law, would prohibit a
landlord from giving preferential treatment to a person who
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owns an animal that has been declawed or devocalized.
Those final two provisions act in tandem - one saying a person
cannot be discriminated against because they have an intact
animal and the other stating that a person who has a modified
animal shall not receive any special treatment. As with the
prohibitions discussed above, the final two prohibitions
reflect a policy decision to enact extensive protections,
mostly based on state and federal housing discrimination law,
for those individuals who have an animal that is not declawed
or devocalized. Regarding the appropriateness of basing some
of those protections on federal and state housing
discrimination law, the Western Center on Law & Poverty, and
the California Rural Legal Assistance Foundation, in support,
assert:
We are concerned that a de-bark policy might 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.
3. Scope
The bill's prohibitions would apply to any "person or
corporation that occupies, owns, manages, or provides services
in connection with any real property . . . and that allows an
animal on the premises." Although the specific prohibitions all
include a reference to occupancy, those prohibitions are not
limited to individuals for whom there is a landlord-tenant
relationship. Those prohibitions would apply not only to
tenants, but also any other person who happens to be an occupant
or prospective occupant - including children, family members,
and other individuals living on the property.
That broad inclusion appears consistent with the policy goal of
this bill. If the bill were limited to only those with a
landlord-tenant relationship, the additional parties in the
residence could still be pressured to devocalize or declaw their
animal. That pressure would circumvent the sponsor's stated
intent to protect animals and tenants.
It should also be noted that the bill's provisions would apply
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where the owner or manager "allows an animal on the premises."
Although the bill would broadly define "animal" as a mammal,
bird, reptile, or amphibian, the bill itself does not require a
landlord to accept any specific type of animal on the property.
Thus, each landlord has a choice about whether to accept a
certain type of animal - if they do elect to accept an animal,
such as a cat, the bill's prohibitions would prevent the
landlord from requiring that cat to be declawed or devocalized.
Nothing would require the landlord to accept a cat (or dog) in
the first place.
4. Civil penalties
Persons or corporations that violate the bill's prohibitions
would be subject to a civil penalty of not more than $2,500, per
animal, if the violation resulted in the declawing or
devocalizing of an animal. A penalty of $1,000 would apply for
violations that do not result in the declawing or devocalizing
of an animal.
Persons harmed by a violation of this bill, or 501(c)(3)
organizations that are dedicated to the protection of animals or
whose mission includes the protection of fair housing laws,
would be given standing to enforce the bill. Although it is
somewhat unusual for those organizations to have standing to
enforce civil penalties, the individuals who are subject to the
violation may have limited income, or be otherwise unable (or
unwilling) to bring an action to enforce the bill's provisions.
That additional authority would provide a further deterrent to
those who may consider violating the bill's provisions.
Although, as discussed in Comment 5, the opposition expresses
concern that the additional authority may result in landlords
not allowing pets at all - the supporters, who include Western
Center on Law & Poverty and the Rural Legal Assistance
Foundation, do not appear to share that concern.
5. Opposition's concerns
The Animal Council, in opposition, contends:
Amending the well understood word "debark" - simply reducing
volume of barking - to the term "devocalize" being used by
political opponents of this lawful veterinary procedure
leads to inaccurate presumptions that a dog would be
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rendered silent. Rather debarked dogs retain a wide range
of noise making abilities that can be annoying or disturbing
to the legal public nuisance level in residential settings
and [result in] law enforcement action against the owner and
dog. Intentional use of other than plain language in
legislation is troubling and problematic. Also, because pet
keeping tenants are not a legally protected class, granting
standing to enforce and obtain their own civil penalties to
certain organizations only increases the incentive for
landlords to bar all pets rather than risk the costs of
dealing with adversarial, sometimes ideologically inclined
organizations not otherwise interested in a party [or] the
tenancy. Lack of or loss of rental housing is a major
relinquishment risk for pets, [such] that AB 2743 . . .
creates additional barriers to rental housing for pet owners
and new disincentives to landlords to individually negotiate
pet rentals either at the beginning of or during tenancy.
Despite those serious concerns that this bill would create
additional barriers to rental housing, the supporters of this
measure believe it will do the opposite.
The California Veterinary Medical Association (CVMA), in an
oppose unless amended position, expresses concern about the
intent language and the definitions of "declawing,"
devocalizing," and "nontherapeutic." Specifically, CVMA states
that they support the overarching goal of AB 2743, but:
. . . must strongly oppose language which asserts that
declawing "has been associated with unintended behavioral
consequences that could lead to potential health and safety
concerns," as well as the claims . . . regarding "increased
aggression or litter box avoidance." These claims are not
only incorrect, but they are scientifically unfounded. CVMA
can see no relationship between a cat declare procedure and
the impact on public health and safety. All cats have the
ability to bite, soil, scratch, etc., but again, these
behaviors certainly do not rise to the level of a "public
health and safety issue." Further, if the statute/law is
ambiguous, the courts will look at the intent language to
determine the mindset of the legislature with regard to that
issue. For these reasons, we request that 1(b) of the
legislative findings be stricken in their entirety.
On page 4 of the measure, the sponsors seek to define a new
category of "declawing," for "nontherapeutic" purposes.
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CVMA strongly opposes this language, CVMA contends that
creating a new definitional qualifier for declawing is
confusing and unnecessary and will only invite debate and
controversy. If the intent of the author and sponsor is to
prohibit a landlord from stipulating, in a rental agreement,
that an animal must be declawed or devocalized as a
condition of tenancy, it should be wholly irrelevant if the
procedure is for therapeutic or so-called "non-therapeutic"
reasons. We respectfully request that references to
"nontherapeutic" in the definitions pertaining to
"declawing" or "devocalizing" . . . and the actual
definition of "nontherapeutic" . . . be stricken from the
bill.
In response to concerns about the use of "nontherapeutic,"
proponents assert that "the Paw Project has received inquiries
from landlords interested in prohibiting tenants from declawing
their animals. They have asked if it is legal to do so, and
they have asked for a legal definition they could use.
Landlords and their attorneys may look in the Civil Code for
language they can use to define 'declawing' when inserting such
a lease provision. If they use a definition that does not
provide for the distinction between therapeutic and
non-therapeutic declawing, problems could arise if a tenant
needs to have a therapeutic declawing procedure performed on his
or her animal. We would like to avoid that possible source of
problems between landlords, tenants, and their veterinarians."
Proponents also assert that the inclusion of "nontherapeutic" is
important for consistency between state law and local ordinances
that have banned declawing, and notes that current law
prohibiting the declawing of exotic cats also distinguishes
between therapeutic and non-therapeutic procedures.
6. Additional supporting arguments
Nolan Taft Management, which owns and operates 30 buildings with
about 400 apartment units, writes that they "do not require that
our tenants devocalize or declaw their pets. We do require that
pet owners inform us of their pets and that they adhere to our
pet-keeping policies, which are designed to benefit the pets,
their owners, and the neighbors, as well as us, the property
owners. . . . We realize that many landlords do not allow pets.
We feel that our pet policies attract a greater number of
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potential tenants and ones who are motivated and responsible.
We also find that pet owners average longer periods of
occupancy, which is good for our business."
United Animal Nations, in support, contends that the bill is
good for all involved: "Animals will be protected from
unnecessary and harmful surgeries, while tenants will be
protected from having to make a harmful choice when trying to
find housing. And finally, landlords will have more protection
for their properties."
Support : California Apartment Association; California Rural
Legal Assistance Foundation; City of West Hollywood; Nolan-Taft
Management; United Animal Nations; Western Center on Law &
Poverty; one individual
Opposition : California Veterinary Medical Association (unless
amended); The Animal Council
HISTORY
Source : Paw Project
Related Pending Legislation : SB 1417 (Cox), 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. This bill is
in the Assembly Judiciary Committee.
Prior Legislation : SB 762 (Aanestad, Chapter 16, Statutes of
2009) (See background.)
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 63, Noes 7)
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