BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 9 1 7 SB 917 (Lieu) As Introduced February 18, 2011 Hearing date: April 12, 2011 Penal Code MK:mc ANIMAL ABUSE HISTORY Source: The Humane Society of the United States; spcaLA; American Society for the Prevention of Cruelty to Animals (ASPCA) Prior Legislation: AB 2012 (Lieu) - vetoed 2010 AB 1122 (Lieu) - vetoed 2009 Support: State Humane Association of California; Animal Place; PAW PAC; The SPCA for Monterey County; Public Interest Coalition Opposition:California Outdoor Heritage Alliance; PetPAC; The Animal Council KEY ISSUES SHOULD THE POSSIBLE MISDEMEANOR PENALTY FOR OVERLOADING, TORTURING, TORMENTING, ET CETERA, AN ANIMAL BE INCREASED FROM UP TO SIX MONTHS TO UP TO ONE YEAR TO CONFORM IT TO OTHER CRUELTY PROVISIONS WITHIN THE SAME SECTION? (More) SB 917 (Lieu) Page 2 SHOULD IT BE UNLAWFUL FOR ANY PERSON TO WILLFULLY SELL, DISPLAY FOR SALE, OFFER FOR SALE OR GIVE AWAY AS PART OF A COMMERCIAL TRANSACTION, A LIVE ANIMAL ON ANY STREET, HIGHWAY, PUBLIC RIGHT-OF-WAY, PARKING LOT, CARNIVAL OR BOARDWALK? PURPOSE The purpose of this bill is to conform the misdemeanor penalty for overloading, torturing, tormenting, et cetera, an animal to other subdivisions within the same section thus allowing for up to one year in jail for the misdemeanor portion of the existing wobbler and to make it unlawful for any person to sell an animal as part of a commercial transaction on any street, parking lot, carnival, et cetera, as specified. Existing law provides that any person who does any of the following is guilty of a felony and is punishable by imprisonment in a state prison for 16 months, 2 or 3 years, or by a fine not to exceed $50,000, or by both such fine and imprisonment: Owns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog; For amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other; or, Permits any of the above acts to be done on any premises under his or her control, or aid or abets that act. (Penal Code § 597.5(a).) Existing law states that any person who is knowingly present, as a spectator, at any place, building, or tenement where preparations are being made for an exhibition of the fighting of dogs, with the intent to be present at those preparations, or is knowingly present at the exhibition, fighting or injuring with the intent to be present at the exhibition, fighting, or (More) SB 917 (Lieu) Page 3 injuring is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, or by a fine not exceeding $5,000, or by both. (Penal Code § 597.5(b).) Existing law provides that any person who causes any animal, not including a dog, to fight with another animal, or permits the same to be done on any property under his or her control, or aids or abets the fighting of any animal is guilty of a misdemeanor, punishable by up to one year in the county jail or by a fine not to exceed $5,000, or both. (Penal Code § 597b(a).) Existing law provides that any person who causes a cock to fight with another cock, or permits the same to be done on any property under his or her control, and any person who aid or abets the fighting of any cock or is present as a spectator is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed one year, or by a fine not to exceed $5,000, or by both. (Penal Code § 597b(b).) Existing law provides that any person who is knowingly present as a spectator at any place, building, or tenement for an exhibition of animal fighting, or who is knowingly present at that exhibition, or is knowingly present where preparations are being made for the exhibition, fighting, or injuring of an animal is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed six months, or by a fine not exceeding $1,000, or by both. (Penal Code § 597c.) Existing law provides that any person who owns, possesses, keeps or trains any bird or other animal with the intent that that it be used in an exhibition of fighting is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed one year, by a fine not to exceed $5,000, or by both. (Penal Code § 597j.) Existing law provides that every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal or maliciously and intentionally kills an animal is (More) SB 917 (Lieu) Page 4 guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year and/or by a fine up to $20,000, or by imprisonment in state prison for 16 months, 2 or 3 years and/or a fine up to $20,000. (Penal Code § 597(a).) Existing law provides that every person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year and/or by a fine up to $20,000, or by imprisonment in state prison for 16 months, 2 or 3 years and/or a fine up to $20,000. (Penal Code § 597(c).) Existing law states that every person who overdrives, overloads, overworks, tortures, torments, deprives of drink, cruelly beats, or mutilates an animal is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to six months and/or by a fine up to $20,000, or by imprisonment in state prison for 16 months, 2 or 3 years and/or a fine up to $20,000. (Penal Code § 597(b).) This bill makes the potential jail time for overloading, overworking, et cetera, up to one year. This bill reorganizes Penal Code Section 597 so penalties are listed in one subsection. Existing law provides that no slaughterhouse that is not inspected by the United States Department of Agriculture (USDA), stockyard, or auction shall buy, sell, or receive a non-ambulatory animal. (Penal Code § 599 f(a).) Existing law provides that it is a misdemeanor punishable by a fine of up to $1000 plus penalty assessments and/or up to 90 days in jail for any person who operates a pet shop to fail do all of the following: Maintain the facilities used for the keeping of pet (More) SB 917 (Lieu) Page 5 animals in a sanitary condition. Provide proper heating and ventilation for the facilities used for the keeping of pet animals. Provide adequate nutrition for, and humane care and treatment of, all pet animals under his or her care and control. Take reasonable care to release for sale, trade, or adoption only those pet animals that are free of disease or injuries. Provide adequate space appropriate to the size, weight, and species of pet animals. (Penal Code § 597l(a).) Existing law provides that sellers of pet animals shall provide buyers of a pet animal with general written recommendations for the generally accepted care of the class of pet animal sold, including recommendations as to the housing, equipment, cleaning, environment, and feeding of the animal. This written information shall be in a form determined by the sellers of pet animals and may include references to Web sites, books, pamphlets, videos, and compact discs. Charges against a seller of pet animals for a first violation of the provisions of this subdivision shall be dismissed if the person charged produces in court satisfactory proof of compliance. A second or subsequent violation is an infraction punishable by a fine not to exceed $250. (Penal Code § 597l(b)(1).) Existing law , the Lockyer-Polanco-Farr Pet Protection Act, regulates the sale of dogs and cats by pet dealers and provides for civil penalties in the amount up to $1000 for violations of the Act. The civil penalty may be enforced by the local district attorney or city attorney. (Health & Safety Code §§ 122320, et seq.) Existing law further provides that no pet dealer shall knowingly sell a dog that is diseased, ill, or has a condition, any one of which requires hospitalization or surgical procedures. In lieu of the civil penalties imposed pursuant to Section 122150, any pet dealer who violates this section shall be subject to a civil (More) SB 917 (Lieu) Page 6 penalty of up to $1000, or shall be prohibited from selling dogs at retail for up to 30 days, or both. If there is a second offense, the pet dealer shall be subject to a civil penalty of up to $2500, or a prohibition from selling dogs at retail for up to 90 days, or both. For a third offense, the pet dealer shall be subject to a civil penalty of up to $5000, or a prohibition from selling dogs at retail for up to six months, or both. For a fourth and subsequent offense, the pet dealer shall be subject to a civil penalty of up to $10,000, or a prohibition from selling dogs at retail for up to one year, or both. For purposes of this section, a violation that occurred over five years prior to the most recent violation shall not be considered. An action for recovery of the civil penalty and for a court order enjoining the pet dealer from engaging in the business of selling dogs at retail for the period set forth in this section may be prosecuted by the district attorney for the county where the violation occurred, or the city attorney for the city where the violation occurred, in the appropriate court. (Health & Safety Code § 122205.) This bill provides that it shall be unlawful for any person to willfully sell, display for sale or offer for sale, or give away as part of a commercial transaction, a live animal on any street, highway, public right-of-way, parking lot, carnival, or boardwalk. The penalty shall be as follows: For a first offense, the person shall be guilty of an infraction punishable by a fine not to exceed $250. A person who violates this section for the first time and by that violation either causes or permits any animal to suffer or be injured, or causes or permits any animal to be placed in a situation in which its life or health may be endangered, shall be guilty of a misdemeanor punishable by a fine not to exceed $1000. (More) SB 917 (Lieu) Page 7 A person who violates this section for a second or subsequent time shall be guilty of a misdemeanor punishable by a fine not to exceed $1000. This bill provides that a notice describing the charge and the penalty for a violation of this section may be issued by any peace officer, animal control officer, as defined in Section 830.9, or humane officer qualified pursuant to Section 14502 or 14503 of the Corporations Code. This bil l provides that the section it creates shall not apply to the following: Events held by 4-H Clubs, Junior Farmers Clubs, or Future Farmers Clubs. The California Exposition and State Fair, or county fairs. Stockyards with respect to which the Secretary of the United States Department of Agriculture has posted notice that the stockyards are regulated by the federal Packers and Stockyards Act (7 U.S.C. Sec. 181, et seq.). The sale of cattle on consignment at any public cattle sales market; the sale of sheep on consignment at any public sheep sales market; the sale of swine on consignment at any public swine sales market; the sale of goats on consignment at any public goat sales market; and the sale of equine on consignment at any public equine sales market. Live animal markets regulated under Section 597.3. A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group regulated under Division 14 (commencing with Section 30501) of the Food and Agricultural Code. For purposes of this section, "rescue group" is a not-for-profit entity whose primary purpose is the placement of dogs, cats, or other animals that (More) SB 917 (Lieu) Page 8 have been removed from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane society shelter, or that have been surrendered or relinquished to the entity by the previous owner. The sale of fish or shellfish, live or dead, from a fishing vessel, at a pier, wharf, or at a farmer's market by any licensed commercial fisherman to the public for human consumption. A cat show, dog show, or bird show provided that all the following circumstances exist: o The show is validly permitted by the city or county in which the show is held. o Each and every participant in the show complies with all federal, state and local animal control laws. o The participant has written documentation of the payment of a fee for the entry of his or her cat, dog, or bird in the show. o The sale of a cat, dog, or bird occurs only on the premises and within the confines of the show. o The show is a competitive event where the cats, dogs, or birds are exhibited and judged by an established standard or set of ideas established for each breed or species. This bill provides that nothing in this section shall be construed to in any way limit or affect the application or enforcement of any other law that protects animals or the rights of consumers, including, but not limited to, the Lockyer-Polanco-Farr Pet Protection Act contained in Article 2 (commencing with Section 122125) of Chapter 5 of Part 6 of Division 105 of the Health and Safety Code, or Sections 597 and 597l of the Penal Code. This bill provides that nothing in this section limits or authorizes any act or omission that violates Section 597 or 597l of the Penal Code, or any other local, state, or federal law. The procedures set forth in this section shall not apply to any (More) SB 917 (Lieu) Page 9 civil violation of any other local, state, or federal law that protects animals or the rights of consumers, or to a violation of Section 597 or 597l of the Penal Code, which is cited or prosecuted pursuant to one or both of those sections, or to a violation of any other local, state, or federal law that is cited or prosecuted pursuant to that law. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts over California's prisons has intensified. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal of this order and, on Tuesday, November 30, 2010, the Court heard oral arguments. A decision is expected as early as this spring. In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. (More) SB 917 (Lieu) Page 10 This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: The treatment of animals is a serious concern, and the awareness for this disturbing crime is growing. SB 917 would fixes two discrepancies in existing law: Animal neglect: Animal abuse is separated into two main categories: animal cruelty and animal neglect. Animal cruelty generally refers to a single act of harm on an animal, while animal neglect is defined as an act that causes extended or prolonged suffering. While animal neglect can be considered a horribly egregious offense inflicting extensive distress to an animal, the associated penalty for the crime is inconsistent with that of animal cruelty. Cases of animal neglect are prevalent, and it occurs when one deprives an animal of basic needs. These needs include shelter, nutrition and medical care. In a study of 1,400 animal cruelty cases conducted by the Humane Society of the United States, 41 percent of the cases involved animal neglect. This overwhelming number reiterates the importance of protecting animals from neglect as well as cruelty. Whether animals are tortured or starved, too often the end result in either case is death. In cases of neglect, the abuse is more prolonged and the neglected animal ends up slowly decaying and suffering due to starvation, dehydration and/or disease. (More) SB 917 (Lieu) Page 11 In the California Penal Code, both animal cruelty and animal neglect are wobblers. Both offenses have potential felony charges; however the penalty for animal cruelty as a misdemeanor is up to one year in county jail and/or an associated fine (up to $20,000). While the fine for animal neglect is the same, the penalty for a misdemeanor offense is only punishable by a maximum of 6 months in jail. Although animal neglect causes prolonged agony and pain to the animals involved, the penalty is not proportional to the sentence for a single act of animal cruelty. SB 917 will make the laws for animal cruelty and animal neglect more consistent by providing a maximum sentence for up to one year in county jail for animal neglect, as well as a possible fine up to $20,000. This measure will provide parity to current law while reflecting the true nature of this heinous crime. Roadside Sales: There is a growing concern with sale of pets along streets, in parking lots, and at other outdoor venues. Numerous local governments have enacted ordinances addressing this issue, Sacramento, Los Angeles, and San Jose Counties all currently restrict the sale of animals in parking lots, on roadsides, and at other outdoor venues. In California, back yard breeding and puppy mills present a significant problem with ensuring the health and safety of our animal population. Currently the result of these unregulated and irresponsible breeding practices is the sale of young animals on roadsides and store fronts. Dogs, cats, and other animals, particularly juvenile animals, are being sold in terrible conditions at various outdoor venues. Often times, these animals are kept in crowded and unsanitary pens or cages without adequate water or food. The absence of effective (More) SB 917 (Lieu) Page 12 regulations has resulted in the sale of young animals that are often mistreated, ill, and/or diseased. Because of the tremendous cost for veterinary care, many pets are ultimately abandoned or surrendered to animal shelters, straining the local shelter system. Purchasing a pet is an important decision, which should include research and preparation in an effort to provide a healthy environment for your new pet. Responsible breeders, pet stores, and shelters provide vaccines, proper nutrition, health screenings, and care information before animals are adopted. These procedures ensure the safest and easiest transition into a new home. Unfortunately, roadside pet sales offer low prices for designer breeds, presenting deals that are too good to be true. Often times these animals are sick which can result in significant financial costs for treatment and sometimes the death of the animal. Consumers have no recourse if the animal is sick or if it dies because there is no way to track the seller. California law provides that pet stores that sell animals must abide by animal welfare standards to protect the health and safety of the animals. These regulations promote proper care and treatment and reduce the risk of disease outbreaks. This law does not apply to the sale of animals at roadside venues. SB 917 will prohibit the sale of pet animals on roadsides, store fronts, parking lots, and other outdoor venues. The sale of these animals would be considered an infraction and may be enforced by a peace officer, animal control officer, or humane officer. 2. Penalty for Animal Torture Existing law provides that the penalty for overworking, (More) SB 917 (Lieu) Page 13 overloading, torturing, et cetera, an animal is a wobbler with a penalty of up to six months in jail, or 16 months, 2 or 3 years in prison and a fine up to $20,000. The penalties, within the same section, for intentionally maiming, mutilating, torturing or abusing an animal is a wobbler with a penalty of up to one year in jail, or 16 months, 2 or 3 years in prison and a fine up to $20,000. This bill conforms the misdemeanor penalties for torturing an animal by making the penalty for all types of torture within Penal Code Section 597 the same penalty of up to one year in county jail or imprisonment in state prison for 16 months, 2 or 3 years and a fine of up to $20,000. This bill also makes technical changes within Penal Code section 597. According to one of the sponsors the Humane Society of the United States, this bill: (More) ÝC]orrects a deficiency in current California law that results in lesser punishment for criminal animal neglect than other forms of criminal animal cruelty. Given the duration and degree of suffering endured by animal victims of neglect at the hands of their abusers, we strongly support SB 917's provisions to create parity in the law. Should the misdemeanor penalties for these provisions of animal cruelty within the same section be the same? 3. Selling a Live Animal on a Street This bill makes it unlawful to willfully sell, display for sale, offer for sale, or give away as part of a commercial transaction, a live animal on any street, highway, pubic right of way, parking lot, carnival or boardwalk. A first offense is an infraction, and a second offense a fine-only misdemeanor. If the animal is injured or put in a dangerous situation on a first offense, it would be a misdemeanor punishable up to 6 months in jail and/or a fine up to $1,000. The section explicitly excludes 4-H Clubs, state and county fairs, stockyards, public cattle, sheep, swine, goat or equine sales, fish sales at wharfs or farmers markets, and animal shows. Existing law already punishes animal neglect, impounding an animal without sufficient food and water, mistreating confined animals, the sale of puppies under eight weeks of age, keeping an animal without proper care and regulates pet shops and live animal markets. (Penal Code §§ 597e, 597f, 597l, 597t, 597z, 597.1, 597.3.) Some of these offenses could apply to the behavior intended to be prohibited by this bill. This bill makes it clear that this section does not preclude prosecution under an existing law. According to one of the sponsors, The Humane Society of the United States: Dogs, cats and other animals sold in such informal (More) SB 917 (Lieu) Page 15 settings often suffer in terrible conditions. These animals often are kept in crowded pens or cages that can be unsanitary, lacking food and/or water, and in extreme heat and direct sunlight. They are handled by shoppers and often purchased on impulse. Under these prevalent circumstances, animals suffer and those who purchase them may wind up heartbroken and saddled with expensive veterinary bills. SB 917 addresses these issues head-on by prohibiting these unscrupulous and unregulated sales channels that could never provide pets or consumers with the welfare and protection they deserve. The State Humane Association of California supports this bill stating: Roadside sales of animals present a special concern for our member organizations as humane officers and animal control officers often find animals that are ill and/or diseased and kept in unsafe and/or unsanitary conditions. The California Outdoor Heritage Alliance opposes this bill stating: Due to the rural nature of many kennels which sell sporting dogs, buyers often have to travel long distances in order to pick up their dog. Occasionally, the breeder will agree to meet the buyer at a midway point, which may be located in a parking lot or on a roadside, for instance, as a matter of convenience to one or both parties. In the absence of legitimate data showing that such transactions have proven detrimental to the health and well-being of the dog, we believe that they should remain lawful. The Animal Council opposes this bill stating that the venue exemptions are unrealistic. Specifically, they note: SB 917 (Lieu) Page 16 Most local jurisdictions in California have NO PERMITTING process for shows, typically held at rented premises on a one-time basis. We have not expertise as to bird show sales, but cat show sales are traditional whereas sales are not part of dog shows? In other words, the public does not expect to buy a dog at a dog show. Or soon learns this is not done in one transaction at the show. However, the public seeking a pedigreed cat knows that a few kittens may be available at shows as a convenience to both sellers and potential buyers and long accepted practice. For dogs, the limitation to show premises seems to raise even First Amendment concerns for continuing conversations about sales that lead to completion of sales later and elsewhere. Does the opposition raise legitimate yet fixable issues with the bill? Should private transactions arranged for over the phone or internet but carried out in a public place be excluded from the provisions of this bill? Are the exceptions in this bill for dog or cat shows drafted to cover legitimate shows that take place in California? A number of supporters of the bill suggest that flea markets should be specifically included in the bill. Should flea markets be added to the list of places where transactions may not take place? ***************