BILL ANALYSIS                                                                                                                                                                                                    Ó







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        |Hearing Date:May 14, 2012          |Bill No:SB                         |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                          Senator Curren D. Price, Jr., Chair
                                           

                         Bill No:        SB 1162Author:Runner
                        As Amended:May 1, 2012   Fiscal:    No

        
        SUBJECT:   Animal control:  tranquilizers.
        
        SUMMARY:  Provides that an animal control officer, when necessary to 
        protect the health and safety of a wild, stray, or abandoned animal or 
        the health and safety of others, may administer a tranquilizer that 
        contains a controlled substance without contemporaneously consulting 
        or receiving direction from a veterinarian as long as the officer has 
        received training in the administration of tranquilizers from a 
        licensed veterinarian and is otherwise authorized by his or her 
        authorizing agency to administer the tranquilizer.

        Existing law, the Penal Code (PC):
        
        1) Authorizes any peace officer, humane society officer, or animal 
           control officer (officer) to take possession of a stray or 
           abandoned animal and to provide care and treatment for the animal 
           until the animal is deemed to be in suitable condition to be 
           returned to the owner and also authorizes the officer to 
           immediately seize the animal, as specified, if the officer has 
           reasonable grounds to believe that very prompt action is required 
           to protect the health or safety of the animal or the health or 
           safety of others.  (PC § 597.1 (a))

        2) Authorizes an officer to take charge of any animal, including a dog 
           or cat, that by reason of lameness, sickness, feebleness, or 
           neglect, is unfit for the labor it is performing, or that in any 
           manner is being cruelly treated, and provide care and treatment for 
           the animal until it is deemed to be in a suitable condition to be 
           returned to the owner.  (PC § 597.1 (b)) 






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        3) Provides that every sick, disabled, infirm, or crippled animal, 
           except a dog or cat, that is abandoned in any city, county, city 
           and county, or judicial district may be killed by the officer if, 
           after a reasonable search, no owner of the animal can be found.  
           However, it shall be the duty of all officers to cause the animal 
           to be killed or rehabilitated and placed in a suitable home on 
           information that the animal is a stray or abandoned.  (PC § 597.1 
           (b))

        4) Provides that any officer shall convey all injured cats and dogs 
           found without their owners in a public place directly to a 
           veterinarian for a determination of whether the animal shall be 
           immediately and humanely destroyed or shall be hospitalized under 
           proper care and given emergency treatment.  (PC § 597.1 (c) (1))

        5) Provides that any peace officer, humane society officer, or any 
           animal control officer may, with the approval of his or her 
           immediate superior, humanely destroy any stray or abandoned animal 
           in the field in any case where the animal is too severely injured 
           to move or where a veterinarian is not available and it would be 
           more humane to dispose of the animal.
        (PC § 597.1 (e))

        6) Provides that animal control officers are  not  peace officers but 
           may exercise the powers of arrest, serve warrants, or carry and use 
           firearms if they receive the appropriate training as 
        specified.   "Firearms" includes capture guns, blowguns, carbon 
           dioxide operated rifles and pistols, air guns, handguns, rifles and 
           shotguns.  (PC § 830.9)
        
        Existing law, the Health and Safety Code (HSC):
        
        1)Establishes the California Uniform Controlled Substances Act which 
          regulates controlled substances which are classified according to 
          the degrees of medical usefulness and are subject to restrictions on 
          their use and administration.  (HSC §§ 11000-11651)
        
        2)Provides that except in the regular practice of his or her 
          profession Ưas a practitioner], no person shall knowingly prescribe, 
          administer, dispense, or furnish a controlled substance to or for 
          any person  or   animal  which is not under his or her treatment for a 
          pathology or condition other than addiction to a controlled 
          substance, except as otherwise provided, and that no person shall 
          knowingly solicit, direct, induce, aid, or encourage a practitioner 
          authorized to write a prescription to unlawfully prescribe, 
          administer, dispense, or furnish a controlled substance.  (HSC § 





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          11154)

        3)Defines a "practitioner" as: (HSC § 11026)

           a)   A physician, dentist,  veterinarian  , podiatrist, pharmacist, a 
             registered or advanced registered nurse, physician assistant, or 
             optometrist acting within their scope of practice as provided 
             under the Business and Professions Code.

           b)   A pharmacy, hospital, or other institution licensed, 
             registered, or otherwise permitted to distribute, dispense, 
             conduct research with respect to, or to administer, a controlled 
             substance in the course of professional practice or research in 
             this state.
            
           c)   A scientific investigator, or other person licensed, 
             registered,  or otherwise permitted  , to distribute, dispense, 
             conduct research with respect to, or administer, a controlled 
             substance in the course of professional practice or research in 
             this state. 

        4)Specifies that only a practitioner including a naturopathic doctor 
          may write or issue a prescription as permitted under the Business 
          and Professions Code.  (HSC § 11150)

        5)Provides that a prescription for a controlled substance shall only 
          be issued for a legitimate medical purpose by an individual 
          practitioner acting in the usual course of his or her professional 
          practice. The responsibility for the proper prescribing and 
          dispensing of controlled substances is upon the prescribing 
          practitioner.  (HSC § 11153)
        
        6)Makes possession of a controlled substance a felony unless upon the 
          written prescription of a physician, dentist, podiatrist, or 
          veterinarian licensed to practice in this state.  (HSC § 11350)



        Existing law, the Business and Professions Code:
        
        1)Establishes the Veterinary Medicine Practice Act which provides 
          for the licensing and regulation of approximately 9,800 
          veterinarians and 4,300 registered veterinary technicians (RVT) 
          by the Veterinary Medical Board within the Department of 
          Consumer Affairs.






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        2)Provides that a person practices veterinary medicine, surgery, and 
          dentistry, and the various branches thereof, when he or she does any 
          of the following:  (BPC § 4826)

           a)   Represents himself or herself as engaged in the practice of 
             veterinary medicine, veterinary surgery, or veterinary dentistry 
             in any of its branches.

           b)   Diagnoses or prescribes a drug, medicine, appliance, 
             application, or treatment of whatever nature for the prevention, 
             cure or relief of a wound, fracture, bodily injury, or disease of 
             animals.

           c)   Administers a drug, medicine, appliance, application, or 
             treatment of whatever nature for the prevention, cure, or relief 
             of a wound, fracture, bodily injury, or disease of animals, 
             except where the medicine, appliance, application, or treatment 
             is administered by a registered veterinary technician or an 
             unregistered assistant at the direction of and under the direct 
             supervision of a licensed veterinarian, as specified.

           d)   Performs a surgical or dental operation upon an animal.

           e)   Uses any words, letters or titles in such connection or under 
             such circumstances as to induce the belief that the person using 
             them is engaged in the practice of veterinary medicine, 
             veterinary surgery, or veterinary dentistry.  This use shall be 
             prima facie evidence of the intention to represent himself or 
             herself as engaged in the practice of veterinary medicine, 
             veterinary surgery, or veterinary dentistry. 
            
        3)Allows a RVT or an unregistered assistant to administer a drug 
          under the direct or   indirect supervision  of a licensed 
          veterinarian when done pursuant to the order, control, and full 
          professional responsibility of a licensed veterinarian.  (BPC § 
          4836.1 (a))

        4)Defines "drug" as specified under the Health and Safety Code 
          (which includes controlled substances), and defines "  indirect 
          supervision  " as:  (Title 16, California Code of Regulations § 
          2034)

           a)   The supervisor is not physically present at the location 
             where animal health care job tasks are to be performed, but 
             has given either written or oral instructions ("direct 
             orders") for treatment of the animal patient.





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           b)   The animal has been examined by a veterinarian at such 
             time as good veterinary practice requires, consistent with 
             the particular delegated animal health care task and the 
             animal is not anesthetized as defined in current regulations 
             of the Board.
        
        This bill:  Provides that notwithstanding any other law, if an animal 
        control officer, when necessary to protect the health and safety of a 
        wild, stray, or abandoned animal or the health and safety of others, 
        seeks to administer a tranquilizer that contains a controlled 
        substance, as defined, to gain control of the animal, he or she may 
        administer that tranquilizer without contemporaneous consultation with 
        a veterinarian, provided that the officer has received training in the 
        administration of tranquilizers from a licensed veterinarian and is 
        otherwise authorized by his or her authorizing agency to administer 
        the tranquilizer.
        
        FISCAL EFFECT:  None.  This bill has been keyed "nonfiscal" by 
        Legislative Counsel.

        COMMENTS:
        
        1.Purpose.  The Author is the Sponsor of this measure.  According to 
          the Author, when necessary to protect an animal or the safety of the 
          public, animal control officers are required to take possession of 
          any stray or abandoned animal and provide care and treatment for the 
          animal.  Local animal control officers must sometimes use a 
          controlled substance to tranquilize and gain control of an animal.  
          California law requires that such drugs be stored in a central 
          location and officers obtain contemporaneous authorization from a 
          licensed veterinarian prior to administering any drugs.  In 
          practice, however, a licensed veterinarian is not always available 
          and the necessity of having a veterinarian supervise when 
          administering the drugs could jeopardize public safety.

        The Author points out that a recent Attorney General's decision 
          indicates that prior consultation with a licensed veterinarian is 
          insufficient (Opinion 08-505, 12/23/11).  Moreover, the Attorney 
          General's opinion finds that "the duties of local animal control 
          officers, which consist of protecting animals and the public through 
          the enforcement of local animal control laws," does not fit within 
          the context of current law.  

        The Author states that animal control officers must act quickly when 
          there is an emergency situation in the field in order to capture 





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          injured animals or to protect the public from dangerous animals.  It 
          is not always possible to immediately determine whether an animal is 
          a stray, abandoned or wild.  While animal control officers have 
          general authority to kill an injured animal or one posing an 
          immediate threat to public safety, this is a remedy of last resort.  
          In the case of protected species, like a mountain lion, a 
          depredation permit may be required before killing the animal, which 
          causes further concerns.

        The Author believes that limited authorization for animal control 
          officers to use tranquilizers under these exigent circumstances 
          would be more humane and would better protect public safety.    

        2.Background.
        
           a)   Attorney General's Opinion (AG).  According to the AG, 
             California law requires that an animal control officer must take 
             possession of an animal that he or she reasonably believes is a 
             stray or has been abandoned by its owner, and must provide care 
             and treatment for the animal until it is in a fit condition to be 
             returned to its owner or place for adoption.  An animal control 
             officer may also seize an animal when reasonably necessary to 
             protect the safety of the animal or the public, and that he or 
             she may destroy an animal when circumstances require, for example 
             when an animal is too severely injured to move and it would be 
             more humane to destroy it.  Although they are not peace officers, 
             animal control officers may, under specified circumstances, 
             exercise powers of arrest, carry and use firearms, and serve 
             warrants.

           The AG further points out, that animal control officers must often 
             react swiftly to emergency situations in the field, in order to 
             capture injured animals or to protect the public from rabid or 
             otherwise dangerous domesticated or wild animals such as dogs, 
             foxes, and coyotes, as well as from inherently dangerous wild 
             animals such as mountain lions and bears.  In many cases, it is 
             necessary to use controlled substances (which are stored securely 
             in a city's or county's animal control shelter) to subdue an 
             animal.  However, prior to any use of drugs, animal control 
             officers must obtain authorization from a designated licensed 
             veterinarian.

           The AG indicates that they have been told that in practice a 
             licensed veterinarian is not always available for consultation 
             when an animal-control emergency arises.  Moreover, the necessity 
             of retrieving controlled substances from a central location, and 





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             of waiting for them to be brought into the field, can create 
             delays that may be detrimental to the public's health and safety. 
              

           The AG was asked to determine whether an animal control officer may 
             ever lawfully administer a controlled substance on his or her own 
             authority to subdue wild or dangerous animals without the 
             contemporaneous consultation of a licensed veterinarian.  The AG 
             concluded that the applicable statutory scheme does  not  give 
             animal control officers independent authority to administer 
             controlled substances.  The AG opined that the California Uniform 
             Controlled Substances Act prohibits the possession of a 
             controlled substance, unless upon the written prescription of a 
             licensed practitioner, as defined, or the administering of this 
             type of drug in the field by an animal control officer without 
             first contemporaneously consulting, and receiving direction from, 
             a licensed veterinarian.

           However, the AG did indicate (as a footnote) that they understand 
             the practice and need for animal control officers in some local 
             jurisdictions to administer controlled substances in the field 
             without contemporaneous consultation with licensed veterinarians 
             and that the reasons why this is done stem directly from the 
             difficulties encountered in trying to manage extreme and 
             dangerous emergencies where time is of the essence and the only 
             other alternative may be to destroy the animal in question.  The 
             AG states, "This opinion concludes that this practice does not 
             comport with current law.  In view of the asserted need for more 
             humane alternatives.  The Legislature may wish to consider 
             examining the circumstances confronting local jurisdictions to 
             determine whether adjustments in the law are in order to ensure 
             that the option of tranquilization will be available as an 
             alternative to destroying the animals.  Development of such a 
             policy is, however, beyond the scope of this opinion.   

           b)   DEA Enforcement of Controlled Substances Act.  The Drug 
             Enforcement Administration (DEA) is the primary federal agency 
             responsible to enforce the controlled substances laws and 
             regulations of the U.S.  Recently, the DEA has become concerned 
             about controlled substances which are provided to licensed 
             (practitioner) registrants being stored outside the registered 
             place of business of the registrant.  According to the California 
             Veterinary Medical Association, in recent weeks, the Sacramento 
             District Office of the DEA has been actively addressing this 
             issue by notifying veterinary professionals of the current law 
             that these drugs must reside with the registrant.  It is unclear 





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             at this time what problems this may cause, if any, by maintaining 
             the tranquilizer drug (controlled substance) at a location other 
             than that of the veterinarians registered place of business. 

           c)   Direct and Indirect Supervision by Veterinarians.  The 
             term used by the AG, "contemporaneous consulting" is not 
             normally used within the context of the appropriate level of 
             oversight or direction to be given by a health care 
             practitioner.  The degree of oversight, or what is commonly 
             referred to as "supervision" of one practitioner by another, 
             or of someone who is not a licensed practitioner, is usually 
             referred to as either direct or indirect supervision.  If 
             direct supervision is required, then it may require the 
             actual presence and consultation with the practitioner, or if 
             indirect supervision is required it may require that special 
             procedures, protocols or written or oral orders be followed 
             with possible consultation either pre- or post-treatment or 
             when the administration of drugs (controlled substances) is 
             provided. The degree or level of supervision is usually 
             determined by the supervising practitioner and with those 
             being supervised and with facilities where treatment or the 
             administration of drugs is to be provided.  For example, 
             licensed veterinarians may allow a registered veterinary 
             technician, or an unregistered (un-licensed) assistant to 
             administer a drug, including a controlled substance, under 
             either direct or indirect supervision when done pursuant to 
             the order, control, and full professional responsibility of a 
             veterinarian.  Regulations of the Veterinary Medical Board 
             define both direct and indirect supervision and it basically 
             says that the veterinarian does not have to be present at the 
             time and that providing the controlled substance can be done 
             pursuant to either written or oral instructions prior to its 
             administration.
             
        3.Related Legislation.   AB 1839  (Ma, 2012)  would authorize veterinary 
          assistants to administer a controlled substance if specified 
          requirements are satisfied, including completion of a fingerprinting 
          background check and authorizes the Veterinary Medical Board to 
          limit access to specified dangerous drugs, as defined.   This 
          measure passed out of the Assembly and is awaiting a hearing in this 
          Committee.

         SB 969  (Aanestad, Chapter 83, Statutes of 2007) provided that 
          registered veterinary technicians (RVTs) and unregistered assistants 
          (UAs) can administer drugs, including controlled substances, under 
          the "indirect" supervision of a licensed veterinarian.





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         SB 943  (Business, Professions and Economic Development Committee, 
          Chapter 350, Statutes of 2011) extended the sunset date authorizing 
          RVTs and UAs to administer drugs under the indirect supervision of a 
          licensed veterinarian to January 1, 2013.

        4.Arguments in Support.  The  City of Hesperia  (Hesperia) is in support 
          of this measure.  According to Hesperia, tranquilizer guns have been 
          used for decades without question by both local and state animal 
          control agencies (including State Department of Fish and Game).  
          Over the years, Hesperia has regularly consulted with and received 
          guidance on the use of tranquilizers which have been prescribed by 
          and acquired through their contracted veterinarian.  Hesperia 
          believed that as long as their animal control officers used the 
          tranquilizer in accordance with the prior instructions of the 
          veterinarian, they were in compliance with the law.  Hesperia 
          indicates that City leaders were recently alerted to the AG's 
          opinion and are now concerned that if a veterinarian must supervise 
          the actual administration of the tranquilizer it would delay action 
          that could jeopardize public safety since a veterinarian is not 
          always available.  Hesperia argues that use of tranquilizers is not 
          practice in a vacuum or taken lightly and that officers authorized 
          to use tranquilizer guns have received proper training in the use of 
          controlled substances as well as tranquilizer guns, including proper 
          dosage, tranquilizer dart trajectory and velocity.  Moreover, before 
          the use of tranquilizer weapons is authorized, the City animal 
          control officers often coordinate with local law enforcement and, 
          when possible, a licensed veterinarian.  Hesperia believes that if 
          this bill is not enacted, the only alternative left for agencies in 
          certain animal control emergencies will be the use of deadly force.  
          "SB 1162 will allow all animal control agencies to safely contain 
          and preserve the lives of domestic and wild animals without 
          destruction of innocent creatures."

        The  Town of Apple Valley  (Apple Valley) and the  City Adelanto 
          (Adelanto) are also in support of this measure.  Apple Valley 
          indicates that when animals are an immediate threat to the health 
          and safety of the animal control officer and/or the public, the 
          officer must have the ability to utilize tranquilizers in order to 
          incapacitate the animal and diffuse a potentially dangerous 
          situation.  Apple Valley gives an example recently of a dog which 
          has attacked two people and they are unable to capture because it 
          runs when approached.  Because of the recent AG's opinion they have 
                               not been able to use a tranquilizer gun due to the immediacy of the 
          problem.   Adelanto argues that having to consult and obtain 
          direction from a licensed veterinarian for each and every incident 





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          where tranquilizers are needed to subdue or seize an animal, as 
          indicated by the AG,  will create delays in reaching a veterinarian 
          and waiting for the tranquilizer to be brought out to the location.  
          Cities need an effective way to react in a timely and appropriate 
          manner to dangerous animal encounters.             

        5.Arguments in Opposition.  The  California Veterinary Medical 
          Association  (CVMA) is opposed and indicates its concerns include the 
          lack of veterinary supervision as required by the California 
          Veterinary Medicine Practice Act, the significant liability for 
          veterinarians who allow their DEA license to be utilized by a 
          contracting animal control agency and that the proposed language is 
          in direct violation of federal law.  CVMA indicates that they are 
          aware of the AG's opinion and have been involved in discussions with 
          the State Humane Association of California and the California Animal 
          Control Directors Association and with other stakeholders at both 
          the federal and state level to reach a collaborative resolution to 
          this complicated issue.

        CVMA believes that compounding the AG's recent opinion is the fact 
          that the current federal law limits the use of controlled substances 
          to licensed registrants with few exceptions and that this bill would 
          violate federal DEA regulations prohibiting the possession of 
          controlled substance outside of the registered place of business.  
          "In fact, in recent weeks, the Sacramento District Office of the DEA 
          has been actively addressing this issue by notifying veterinary 
          professionals of the current law."  

        The CVMA is concerned about the lack of training that animal control 
          officers have when using tranquilizers that contain controlled 
          substances.  CVMA points out that this is a potent combination of 
          drugs that could actually anesthetize the animal or render it 
          unconscious with the potential for serious harm if used improperly.  
          "Wild, stray and abandoned animals are unpredictable and improper 
          dosing of these drugs could have a negative impact.  Use of such 
          medications is determined by the weight of the animal, the 
          disposition of the animal, and any medical issues that the animal 
          may be experiencing at the time of the drug administration.  This 
          evaluation takes extensive training and should only be performed by 
          a licensed veterinarian or under the direct or indirect supervision 
          of a licensed veterinarian."  CVMA further argues that due to the 
          medical complexities of each case, that any administration of a 
          controlled substance by an animal control officer should only be 
          conducted after proper consultation and instruction by a California 
          licensed veterinarian.






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        CVMA is also concerned that the veterinarian, as the holder of the DEA 
          license - not the animal control officer - is ultimately liable 
          should these drugs be improperly utilized or stored or if an animal 
          is inadvertently injured or killed.  CVMA argues that there is no 
          requirement under this bill that the veterinarian who is providing 
          the controlled drug be consulted, at any time, with regard to the 
          use of controlled substances in the public domain.  CVMA states, 
          "For obvious reasons, this would subject California veterinarians to 
          significant liability."   

        CVMA understands that there are circumstances in which the public 
          health is at risk from wild, stray or abandoned animals, but that it 
          is important to consider the risks associated with allowing animal 
          control officers the liberal use of controlled substances without 
          adequate oversight.

        6.Suggested Author's Amendment.  As pointed out by CVMA, by stating 
          that an animal control officer may use a tranquilizer that contains 
          a controlled substance "without contemporaneous consultation with a 
          veterinarian" it could possibly curtail any supervision, 
          consultation or instruction on the part of the veterinarian, except 
          for possibly providing some training to the animal control officer 
          in the administration of the tranquilizer.  It should be made clear 
          that at least some level of supervision, consultation or instruction 
          should be allowed.  As indicated, the term used by the AG, 
          "contemporaneous consulting" is also not normally used within the 
          context of the appropriate level of oversight or direction to be 
          given by a veterinarian.  Either direct or indirect supervision may 
          be required, and in this instance, where animal control officers 
          have exigent circumstances under which a tranquilizer drug may need 
          to be used, and a veterinarian may be unavailable, the ability to 
          allow "indirect" supervision on the part of the veterinarian may be 
          appropriate.  Providing for "indirect" supervision of animal control 
          officers by a veterinarian may provide the flexibility which animal 
          control officers need when dealing with what may be dangerous animal 
          encounters where the protection and safety of the public is 
          paramount.  Under "indirect supervision" the veterinarian and the 
          animal control officer, and the city or county, would be able to put 
          in place proper procedures and/or written or oral instructions to be 
          followed when using the tranquilizer (controlled substance) without 
          requiring the officer to consult with and obtain direction from a 
          licensed veterinarian each time the tranquilizer is needed for 
          emergency situations.

        Committee staff suggests that on Page 3, lines 15 and 16, strike, 
          "without contemporaneous consultation with a veterinarian" and 





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          insert the following:  "  with indirect supervision as determined by a 
          licensed veterinarian  ."
           
         
        NOTE  :  Double-Referral to Public Safety Committee, second.
        

        SUPPORT AND OPPOSITION:
        
         Support:  

        City of Adelanto
        City of Hesperia
        Town of Apple Valley

         Opposition:  

        California Veterinary Medical Association



        Consultant:Bill Gage