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. (more) AB 2743 (Nava) Page 2 of ? 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 AB 2743 (Nava) Page 3 of ? 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 AB 2743 (Nava) Page 4 of ? 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. AB 2743 (Nava) Page 5 of ? 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. AB 2743 (Nava) Page 6 of ? 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 AB 2743 (Nava) Page 7 of ? 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 AB 2743 (Nava) Page 8 of ? 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 AB 2743 (Nava) Page 9 of ? 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. AB 2743 (Nava) Page 10 of ? 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 AB 2743 (Nava) Page 11 of ? 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) ************** AB 2743 (Nava) Page 12 of ?