BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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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?
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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,
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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:
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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
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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:
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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?
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