BILL ANALYSIS                                                                                                                                                                                                    







                      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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              C]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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