BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 1229 (Pavley)
          As Amended March 29, 2012
          Hearing Date: May 1, 2012
          Fiscal: No
          Urgency: No
          TW   
                    

                                        SUBJECT
                                           
                          Real Property:  Rentals:  Animals

                                      DESCRIPTION  

          This bill would prohibit a landlord who allows tenants or 
          occupants to have animals on the premises from doing any of the 
          following:
           advertising the property in a way that discourages individuals 
            from applying because their animal is not declawed or 
            devocalized; 
           refusing to allow, negotiate, or make the property available 
            for occupancy because of a person's refusal to declaw or 
            devocalize an animal; or
           requiring a tenant or occupant to declaw or devocalize an 
            animal that is allowed on the premises.

          This bill would permit a city or district attorney, other law 
          enforcement prosecutorial entity, or any person harmed by a 
          violation of these provisions to enforce these provisions and 
          sue for declaratory relief, injunctive relief, or imposition of 
          a civil penalty of $1,000 per animal for every violation.

                                      BACKGROUND  

          This bill deals with the practice of "declawing" and 
          "devocalizing" animals, and the issue of whether a landlord 
          should be able to condition occupancy on the declawing or 
          devocalizing of an animal.  

          Onychectomy ("declawing") is an operation to remove an animal's 
          claws by amputating the end bones of the animal's toes.  The 
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          operation is most commonly done to household cats, but on 
          occasion is done to other animals.  Except where medically 
          necessary, the practice of declawing has been prohibited in 
          other countries, including Australia, Brazil, Finland, Estonia, 
          the Netherlands, Germany, Switzerland, Austria, and the United 
          Kingdom.  In California, eight cities - West Hollywood, San 
          Francisco, Santa Monica, Los Angeles, Beverly Hills, Berkeley, 
          Burbank, and Culver City, passed ordinances banning declawing.  
          The ability for additional cities to pass ordinances was limited 
          by SB 762 (Aanestad, Ch. 16, Stats. 2009), which made it 
          unlawful for a city to prohibit a healing arts licensee 
          (veterinarian) from engaging in any act or performing any 
          procedure that falls within the professionally recognized scope 
          of that licensee (declawing).  That bill grandfathered in 
          ordinances which were in effect prior to January 1, 2010. 

          While declawing generally applies to cats, devocalizing most 
          commonly applies to dogs (although cats can be devocalized as 
          well).  Also known as debarking, bark softening, 
          ventriculocordectomy, or vocal cordectomy, devocalizing is an 
          operation to remove tissue from the animal's vocal cords so as 
          to permanently reduce the volume of their vocalizations.  The 
          operation is prohibited in the United Kingdom.

          This bill is substantially similar to AB 2743 (Nava, 2010), 
          which passed this committee on a vote of 3-2, but was vetoed by 
          Governor Schwarzenegger, who argued that the legislative 
          findings and declarations in that bill were unsupported by 
          science and certain language in the bill was overbroad and 
          included a prohibition on legitimate medical needs of a pet 
          owner.  This bill, on the other hand, contains revised 
          legislative findings and narrows the scope of the prohibition.   


          As a result of concerns about the practice of landlords only 
          permitting pets in a rental property if they are declawed or 
          devocalized, this bill, sponsored by the Humane Society 
          Veterinary Medical Association and The Paw Project, would enact 
          various prohibitions that seek to ensure that if pets are 
          allowed, the pet's owner is not required to declaw or devocalize 
          the animal in order to rent the property.  

                                CHANGES TO EXISTING LAW
           
           Existing law  prohibits any person from performing, or otherwise 
          procuring or arranging for the performance of, surgical claw 
                                                                      



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          removal, declawing, onychectomy, or tendonectomy on any cat that 
          is a member of an exotic or native wild cat species, and from 
          otherwise altering such a cat's toes, claws, or paws to prevent 
          the normal function of the cat's toes, claws, or paws, unless 
          the procedure is performed solely for a therapeutic purpose.  
          (Pen. Code Sec. 597.6.)  
           
           Existing law  generally prohibits discrimination and related 
          conduct with respect to the rental or sale of housing 
          accommodations on the basis of a person's race, color, religion, 
          sex, sexual orientation, marital status, national origin, 
          ancestry, familial status, and other factors.  (Gov. Code Sec. 
          12955.)

           Existing law  generally regulates the terms and conditions of 
          residential tenancies and governs the obligations of tenants and 
          landlord under a lease or tenancy.  (Civ. Code Sec. 1940 et 
          seq.)

           This bill  would prohibit any person or corporation that 
          occupies, owns, manages, or provides services in connection with 
          any real property, including the individual's or corporation's 
          agents or successors-in-interest, from doing any of the 
          following if they allow an animal on the premises:
           advertise, through any means, the availability of real 
            property for occupancy in a manner designed to discourage 
            application for occupancy of that real property because the 
            applicant's animal has not been declawed or devocalized;
           refuse to allow the occupancy of any real property, refuse to 
            negotiate the occupancy of any real property, or to otherwise 
            make unavailable or deny to any other person the occupancy of 
            any real property because of that person's refusal to declaw 
            or devocalize any animal; or
           require any tenant or occupant of real property to declaw or 
            devocalize any animal allowed on the premises.

           This bill  would confer standing to enforce the bill's provisions 
          on a city or district attorney, other law enforcement 
          prosecutorial entity, or any person harmed by a violation.  This 
          bill also would provide that a person may sue for declaratory 
          relief, injunctive relief, or for monetary relief as provided 
          below.

           This bill  would provide that, in addition to any other penalty, 
          a violation of the bill that results in the declawing or 
          devocalizing of an animal shall result in a civil penalty of not 
                                                                      



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          more than $1,000, per animal, to be paid to the person whose 
          animal was declawed or devocalized in violation, or to an entity 
          that is authorized to bring an action.

           This bill  would define animal, application for occupancy, claw, 
          declawing, devocalizing, and owner. 

                                        COMMENT
           
          1.   Stated need for the bill  

          The author writes:

            There is an ongoing practice of some landlords conditioning 
            occupancy of rental housing on the declawing of cats and/or 
            the devocalizing of dogs.  Many rental listings in 
            California show a number of properties with landlords and 
            managers that require potential tenants to declaw or 
            devocalize their pets as a condition of tenancy.  Declawing 
            and devocalizing are permanent procedures and such 
            procedures run counter to the temporary nature of rental 
            occupancy.

          The Humane Society Veterinary Medical Association, a 
          co-sponsor of this bill, writes:

            SB 1229 will protect tenants from being forced to choose 
            between securing housing for their families and subjecting 
            their pets to unnecessary, costly and life-altering medical 
            procedures. . . . SB 1229 is a common-sense measure that 
            will ensure that important medical decisions about companion 
            animals are not made in the context of rental agreements but 
            rather in consultation with veterinary medical professionals 
            and focused on the animals' health and well-being.

          2.    Proposed restrictions  

          The Paw Project, a co-sponsor of this bill, asserts that the 
          proposed restrictions seek to protect animals "from unnecessary 
          and harmful surgeries, while tenants will be protected from 
          having to make a harmful choice when trying to find housing, and 
          finally, landlords will have even more protection for their 
          properties."  To effectuate that goal, this bill would enact 
          three related prohibitions on advertising, refusing occupancy, 
          and requiring tenants to actually declaw or devocalize.

                                                                      



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            a.   Advertising  

            This bill would prohibit a person or corporation from 
            advertising the availability of real property in a manner that 
            is designed to discourage a person from applying because their 
            animal has not been declawed or devocalized.  That proposed 
            advertising prohibition is loosely modeled on a similar 
            prohibition contained within the California Fair Employment 
            and Housing Act (FEHA).  (Gov. Code Sec. 12955(c).)  The 
            proposed prohibition would be a standalone section in the 
            Civil Code and not be part of FEHA.

            The prohibition seeks to address issues faced by tenants when 
            looking for an apartment or house to rent - landlords of 
            certain properties include in their advertisement that only a 
            declawed cat or debarked dog is permitted.  Depending on the 
            availability of housing stock, prospective tenants with 
            unaltered animals may face pressure to declaw or devocalize 
            their animal in order to qualify for tenancy.  The author 
            further contends that those procedures can have unintended 
            consequences for both the landlord and tenant.

            The California Apartment Association (CAA), in support, notes 
            that "CAA's leadership concluded years ago that it would not 
            include in its industry forms and leases any such requirements 
            that would require cats to be declawed or dogs debarked.  
            Instead, the Association recommends that property owners rely 
            upon pet deposits to cover any damage to the unit."   

             b.    Refusal to allow occupancy; requiring that an animal be 
               declawed or devocalized  

            Consistent with the above advertising prohibition, this bill 
            would also prohibit a person or corporation from refusing to 
            allow occupancy, negotiate occupancy, or otherwise make 
            unavailable or deny occupancy because of a person's refusal to 
            declaw or devocalize an animal.  This prohibition is modeled 
            on a similar prohibition in the federal Fair Housing Act which 
            makes discriminatory practices against prospective tenants 
            unlawful if the refusal to sell, rent, or negotiate is based 
            on race, color, religion, sex, familial status, or national 
            origin.  (42 U.S.C. 3604(a).)  For existing tenants and 
            occupants, this bill would further prohibit a person or 
            corporation from requiring an occupant to declaw or devocalize 
            any animal allowed on the premises.

                                                                      



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            From a policy standpoint, these two provisions seek to protect 
            an individual's choice as to whether or not to declaw or 
            devocalize their animal.  For individuals who face limited 
            housing options - or who are already tenants and cannot afford 
            to move - these two prohibitions would arguably act to ensure 
            that they are not pressured to surgically alter their animal.  
            Landlords who are concerned about damage caused by certain 
            animals have a choice - they can rent the property but ask for 
            a pet security deposit, or they can make the decision to not 
            allow animals on the property. 

            Nolan Taft Management, a supporter of this bill that owns and 
            operates 30 buildings with about 400 apartment units, writes 
            that they do not require tenants to devocalize or declaw their 
            pets.  Instead, Nolan Taft Management argues that "w]e do 
            require that pet owners inform us of their pets and that they 
            adhere to our pet-keeping policies, which are designed to 
            benefit the pets, their owners, and the neighbors, as well as 
            us, the property owners.  We require a reasonable supplemental 
            security deposit to cover any damage caused by pets.  This 
            additional deposit serves as an incentive for our tenants to 
            keep pets responsibly.  We realize that many landlords do not 
            allow pets.  However, we feel that our pet policies attract a 
            greater number of potential tenants and ones who are 
            responsible and motivated to be good tenants.  We also find 
            that pet owners, on average, have longer periods of tenancy, 
            which is good for our business."

          3.   Scope  

          This bill's prohibitions would apply to any "person or 
          corporation that occupies, owns, manages, or provides services 
          in connection with any real property . . . and that allows an 
          animal on the premises."  Although the specific prohibitions all 
          include a reference to occupancy, those prohibitions are not 
          limited to individuals for whom there is a landlord-tenant 
          relationship.  Those prohibitions would apply not only to 
          tenants, but also any other person who happens to be an occupant 
          or prospective occupant - including children, family members, 
          and other individuals living on the property.

          That broad inclusion appears consistent with the policy goal of 
          this bill.  If the bill were limited to only those with a 
          landlord-tenant relationship, the additional parties in the 
          residence could still be pressured to devocalize or declaw their 
          animal.  That pressure would circumvent the sponsor's stated 
                                                                      



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          intent to protect animals and tenants.

          It should also be noted that the bill's provisions would apply 
          where the owner or manager "allows an animal on the premises."  
          Although the bill would broadly define "animal" as a mammal, 
          bird, reptile, or amphibian, the bill itself does not require a 
          landlord to accept any specific type of animal on the property.  
          Thus, each landlord has a choice about whether to accept a 
          certain type of animal - if they do elect to accept an animal, 
          such as a cat, the bill's prohibitions would prevent the 
          landlord from requiring that cat to be declawed or devocalized.  
          Nothing would require the landlord to accept a cat (or dog or 
          any other animal) in the first place.

          4.   Civil penalties

           Under this bill, persons or corporations that violate the bill's 
          prohibitions would be subject to a civil penalty of not more 
          than $1,000, per animal.  A city or district attorney, other law 
          enforcement prosecutorial entity, or any person harmed by a 
          violation of this bill would be given standing to enforce the 
          bill.   Since the individuals who are subject to the violation 
          may have limited income, or be otherwise unable (or unwilling) 
          to bring an action to enforce the bill's provisions, this bill 
          would authorize additional authority of law enforcement 
          entities, which would provide a further deterrent to those who 
          may consider violating the bill's provisions.

          5.  Governor Schwarzenegger's veto of AB 2743  

          This bill is substantially similar to the enrolled version of AB 
          2743 (Nava, 2010).  In vetoing AB 2743, Governor Schwarzenegger 
          stated:

            This bill would prohibit a landlord from requiring a tenant, 
            as a condition of rental occupancy, to have an animal 
            "declawed" or "devoiced."  I support the goal of this bill, 
            which would preclude landlords from making inappropriate 
            medical decisions as a condition of occupancy.  However, I 
            cannot sign a measure that contains findings and declarations 
            by the Legislature that are unsupported by science.  In 
            addition, this measure suggests that declawing should be 
            prohibited for any "non-therapeutic" reason, which would 
            include the legitimate medical needs of a pet owner.  
            Regrettably, this bill goes too far in attempting to deal with 
            inappropriate demands by landlords.
                                                                      



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          This bill does not contain the same legislative findings and 
          declarations as AB 2743.  Further, this bill has a narrower 
          scope and does not include a prohibition for non-therapeutic 
          reasons as contained in AB 2743.


           Support  :  Actors and Others for Animals; Alley Cat Allies; 
          Animal Advocates; Best Friends Animal Society; Born Free USA; 
          California Apartment Association; California Veterinary Medical 
          Association; City of Berkeley; City of Santa Monica; City of 
          West Hollywood; Last Chance for Animals; League of Humane 
          Voters, California Chapter; Nolan-Taft Management; Ohlone Humane 
          Society; Paw PAC; Pet Care Foundation; Red Rover; Social 
          Compassion in Legislation; one individual

           Opposition  :  The Animal Council

                                        HISTORY
           
           Source  :  Humane Society Veterinary Medical Association; The Paw 
          Project

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 2743 (Nava, 2010) See Background, Comment 5.

          SB 762 (Aanestad, Ch. 16, Stats. 2009) See Background.

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