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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