BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 1500 (Lieu)                                             0
          As Amended April 9, 2012 
          Hearing date: April 17, 2012
          Penal Code
          MK:mc

                            SEIZED AND ABANDONED ANIMALS: 

                               FULL COSTS: FORFEITURE  


                                       HISTORY

          Source:  Los Angeles County District Attorney's Office

          Prior Legislation: AB 1117 (Smyth) - Chapter 553, Stats. 2011
                       AB 243 (Nava) - vetoed, 2009

          Support: California District Attorneys Association

          Opposition:California Federation of Dog Clubs 



                                      KEY ISSUES
           
          SHOULD THE LAW CLARIFY THAT A PERSON WHOSE ANIMALS WERE SEIZED 
          IS LIABLE FOR THE FULL COSTS OF CARE OF THE ANIMALS?

          SHOULD THE LAW MAKE IT CLEAR THAT A PERSON SHALL NOT HAVE A 
          SEIZED ANIMAL RETURNED UNTIL HE OR SHE PROVES HE OR SHE CAN CARE 
          FOR THE ANIMAL?





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          SHOULD THE BURDEN FOR REDUCING THE TIME FOR THE PROHIBITION OF 
          OWNING AN ANIMAL AFTER CONVICTION FOR ABUSE BE A PREPONDERANCE OF 
          THE EVIDENCE?

          SHOULD THE LAW CLARIFY THAT A PERSON WHO HAS HAD AN ANIMAL SEIZED 
          PURSUANT TO A SEARCH WARRANT IS NOT ENTITLED TO A POST-SEIZURE 
          HEARING?



                                       PURPOSE

          The purpose of this bill is to make a number of clarifying 
          changes to provisions dealing with the seizure of animals.
          
           Existing law  creates a misdemeanor punishable by a maximum of 
          one year in the county jail and a fine of not more than $20,000 
          to maim, mutilate, torture, or wound a living animal or 
          maliciously or intentionally kill an animal.  (Penal Code  597 
          (a).)

           Existing law  states that every person having charge or custody 
          of an animal who overdrives; overloads; overworks; tortures; 
          torments; deprives of necessary sustenance, drink, or shelter; 
          cruelly beats, mutilates, or cruelly kills; or causes or 
          procures any animal to be so overdriven; overloaded; driven when 
          overloaded; overworked; tortured; tormented; deprived of 
          necessary sustenance, drink, shelter; or to be cruelly beaten, 
          mutilated, or cruelly killed is, for every such offense, guilty 
          of a crime punishable as an alternate misdemeanor/felony and by 
          a fine of not more than $20,000.  (Penal Code  597 (b).)

           Existing law  mandates that whoever carries or causes to be 
          carried in or upon any vehicle or otherwise any domestic animal 
          in a cruel or inhuman manner, or knowingly and willfully 




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          authorizes or permits that animal to be subjected to unnecessary 
          torture, suffering, or cruelty of any kind, is guilty of a 
          misdemeanor; and whenever any such person is taken into custody 
          therefore by any officer, such officer must take charge of such 
          vehicle and its contents, together with the horse or team 
          attached to such vehicle, and deposit the same in some place of 
          custody; and any necessary expense incurred for taking care of 
          and keeping the same, is a lien thereon, to be paid before the 
          same can be lawfully recovered; and if such expense, or any part 
          thereof, remains unpaid, it may be recovered, by the person 
          incurring the same, of the owner of such domestic animal, in an 
          action therefor.  (Penal Code  597a.)

           Existing law  provides that any person who causes any animal 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 or is present as a spectator is guilty of a 
          misdemeanor, punishable by up to six months in the county jail; 
          a by a fine not to exceed $1,000; or both.  (Penal Code  597b 
          (a).)

           Existing law  necessitates 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 aids 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; by a fine not to exceed 
          $5,000; or by both.  (Penal Code  597b (b).)

           Existing law  makes it unlawful for any person to tie or attach 
          or fasten any live animal to any machine or device propelled by 
          any power for the purpose of causing such animal to be pursued 
          by a dog or dogs.  (Penal Code  597h.)

           Existing law  directs that any person who owns, possesses, or 
          trains any bird or animal with the intent that the cock or 
          other bird shall be engaged in an exhibition of fighting by 
          his or her vendee or any other person is guilty of a 
          misdemeanor, punishable by imprisonment in the county jail not 




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          to exceed six months; by a fine not to exceed $1,000; or by 
          both.  (Penal Code  597j.)

           Existing law  states that every person who willfully abandons any 
          animal is guilty of a misdemeanor.  (Penal Code  597s.)

           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; 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 the amusement or gain, causes any dog to 
               fight with another dog, or causes any dogs to injure 
               each other.
                 Permits any of the aforementioned acts in 
               violation to be done on any premises under his or 
               her charge or control, or aids or abets that act.  
               (Penal Code  597.5.)

           Existing law  declares that every owner, driver, or keeper of 
          any animal who permits the animal to be in any building, 
          enclosure, lane, street, square, or lot of any city, county, 
          city and county or judicial district without proper care and 
          attention is guilty of a misdemeanor.  (Penal Code  597.1 
          (a).)

           Existing law  provides that any peace officer, humane society 
          officer, or animal control officer shall take possession of the 
          stray or abandoned animal and shall provide care and treatment 
          for the animal until the animal is deemed to be in suitable 
          condition to be returned to the owner.  When the officer has 
          reasonable grounds to believe that very prompt action is 
          required to protect the health and safety of the animal or 
          others, the officer shall immediately seize the animal.  The 
          cost of caring for and treating the animal seized under this 




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          subdivision or pursuant to a search warrant shall constitute a 
          lien on the animal, and the animal shall not be returned to the 
          owner until the charges are paid.  (Penal Code  597.1 (a).)

           Existing law  generally provides that peace officers, humane 
          officers and animal control officers can take control of a sick 
          or abandoned animal and cause the animal to be killed or 
          treated.  The officer may seize the animal when he or she has 
          reasonable grounds to believe that the seizure is necessary for 
          the safety of the animal or others.  The law further provides 
          that the cost of caring for and treating any animal properly 
          seized under this subdivision or pursuant to a search shall 
          constitute a lien on the animal, and the animal shall not be 
          returned to its owner until the charges are paid.  (Penal Code  
          597.1 (b).)

           Existing law  provides that any peace officer, human society 
          officer or animal control officer shall convey all injured cats 
          and dogs found without their owner in a public place directly to 
          a veterinarian.  The cost of caring for and treating any animal 
          seized shall constitute a lien on the animal and the animal 
          shall not be returned to the owner until the charges are paid.  
          (Penal Code  597.1 (c).)

           This bill  clarifies that when costs are owed they are the "full" 
          costs.

           Existing law  sets forth the procedure for seizure and 
          impoundment of an animal including the right to a post-seizure 
          hearing and the requirement that if the seizure was justified 
          the owner or keeper shall be liable to the seizing agency for 
          costs.  (Penal Code  597.1 (f).)

           This bill  provides that if the animals were seized pursuant to 
          a search warrant, the owner or keeper is not entitled to a 
          postseizure hearing with the seizing agency.

           This bill  clarifies that when costs are owed, they are the 
          "full" costs.




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           Existing law  provides that a seized animal shall not be 
          returned to the owner until the  charges are paid and the 
          seizing agency or hearing officer has determined that the 
          animal is physically fit or the owner demonstrates to the 
          seizing agency's or the hearing officer's satisfaction that 
          the owner can and will provide the necessary care.  (Penal 
          Code  597.1(f)(4).)

           This bill  provides instead that a seized animal shall not be 
          returned to its owner until the charges are paid and the owner 
          demonstrates to the satisfaction of the seizing agency or the 
          hearing officer that the owner can and will provide the 
          necessary care and does not present a danger to the animal.

           Existing law  provides that if any animal is properly seized 
          under this section or pursuant to a search warrant, the owner 
          or keeper shall be personally liable to the seizing agency for 
          the cost of the seizure and care of the animal.  (Penal Code  
          597.1(h).)

           This bill  clarifies that the person shall be liable for the 
          "full" cost of the seizure and care of the animal and further 
          provides that a statement of the charges shall be presented to 
          the owner or keeper at the time of the postseizure hearing, 
          except that if no postseizure hearing is requested, or none is 
          required by law, a statement of charges shall be sent or 
          delivered by certified mail or personal delivery to the owner 
          or keeper upon expiration of the time to request a hearing.

           Existing law  provides that if the charges for the seizure or 
          impoundment and any other charges permitted under this section 
          are not paid within 14 days of the seizure, or if the owner, 
          within 14 days of notice of availability of the animal to be 
          returned, fails to pay charges permitted under this section 
          and takes possession of the animal, the animal shall be deemed 
          to have been abandoned and may be disposed of by the 
          impounding officer.  (Penal Code  597.1(h).)





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           This bill  provides that if during the first 14 days after the 
          seizure the owner satisfies payment of all charges that 
          accrued under this section, and the animal remains impounded, 
          the seizing agency shall continue to regularly send or deliver 
          statements of charges that identify all new charges that have 
          accrued.  The time period for sending or delivering the 
          statement shall be at the discretion of the seizing agency, 
          but shall not exceed 30 days from the date the previous 
          statement was sent or delivered.  Each statement of charges 
          shall be sent or delivered by certified mail or personal 
          delivery.  Each statement of charges shall state that if the 
          owner fails to pay the new accrued charges within 14 days of 
          the sending or delivering of the statement, the animal shall 
          be deemed to have been abandoned and becomes the property of 
          the seizing agency.

           Existing law  provides that if the seized animal requires 
          veterinary care and the humane society is not assured within 
          14 days of the seizure of the animal, the owner will provide 
          the necessary care, the animal shall not be returned to the 
          owner and shall be deemed to have been abandoned, and may be 
          disposed of by the impounding officer.  (Penal Code  
          597.1(i).

           This bill  instead clarifies that the animal shall be deemed 
          abandoned and becomes property of the seizing agency.

           Existing law  provides that no animal properly seized under 
          this section or pursuant to a search warrant shall be returned 
          to its owner until, in the determination of the seizing agency 
          or hearing officer, the animal is physically fit or the owner 
          can demonstrate to the seizing agency's or hearing officer's 
          satisfaction that the owner can and will provide the necessary 
          care.  (Penal Code  597.1(j).)

           This bill  provides instead that no animal seized under this 
          section or pursuant to a search warrant shall be returned to 
          its owner until the owner can demonstrate to the satisfaction 
          of the seizing agency or hearing officer that the owner can 




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          and will provide the necessary care and does not present a 
          danger to the animal.

           This bill  creates a new subdivision (k) stating  prior to the 
          final disposition of any criminal charges, the seizing agency 
          or prosecuting attorney may file a petition in a criminal 
          action requesting that, prior to that final disposition, the 
          court issue an order forfeiting the animal to the city, county 
          or seizing agency.  The petition shall serve a true copy of 
          the petition upon the defendant and prosecuting attorney.  
          Upon receipt of the petition, the court shall set a hearing on 
          the petition and it shall be held within 14 days of the filing 
          of the petition, or as soon as possible.  The petition shall 
          have the burden of establishing by a preponderance of the 
          evidence that even in the event of an acquittal of the 
          criminal charges, either: (A) the owner cannot or will not 
          provide the necessary care for the animal in question; or (B) 
          the owner will not legally be permitted to retain the animal 
          in question.  If the court finds that the petitioner has met 
          its burden by establishing either of the above, the court 
          shall order the immediate forfeiture of the animal as sought 
          by the petition.
           
          Existing law  provides that upon the conviction of a person 
          charged with a violation of animal abuse, all animals lawfully 
          seized and impounded with respect to the violation shall be 
          adjudged by the court to be forfeited and shall thereupon be 
          transferred to the impounding officer or appropriate public 
          entity for proper adoption or other disposition.  The court 
          may also order, as a condition of probation, that the 
          convicted person be prohibited from owning, possessing, caring 
          for, or having any contact with animals of any kind and 
          require the convicted person to immediately deliver all 
          animals in his or her possession to a designated public entity 
          for adoption or other lawful disposition, or provide proof to 
          the court that the person no longer has possession, care, or 
          control of any animals.  (Penal Code  597.1 (k).)

           This bill  renumbers this subdivision to (l) and provides that 




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          in the event of the acquittal or final discharge without 
          conviction of the person charged, if the animal is still 
          impounded, the animal has not been previously deemed abandoned 
          and the court has not ordered the animal to be forfeited, the 
          court shall on demand direct the release of seized or 
          impounded animals to the defendant upon a showing of all the 
          following:

                 Proof of ownership.
                 Proof that all of the charges for the cost of seizure 
               and care of the animal for the entire duration of the 
               matter have been paid.
                 Proof that the owner can legally retain and possess 
               all animals in question.

           Existing law  provides that a person convicted of specified 
          misdemeanor animal abuse sections who owns, possesses, 
          maintains, etc., an animal within 5 years of conviction is 
          guilty of a public offense punishable by a fine of $1,000.  
          (Penal Code  597.9(a).)

           Existing law  provides that a person convicted of specified 
          felony animal abuse sections who owns, possesses, maintains, 
          etc., an animal within 10 years of conviction is guilty of a 
          public offense punishable by a fine of $1,000.  (Penal Code  
          597.9(b).)

           Existing law  provides that in the cases of owners of livestock a 
          court may, in the interest of justice, exempt a defendant from 
          the prohibition of owning animals as it would apply to 
          livestock, if the defendant files a petition with the court to 
          establish that the imposition of the provisions of this section 
          would result in substantial or undue economic hardship to the 
          defendant's livelihood and that the defendant has the ability to 
          properly care for all livestock in his or her possession.  
          (Penal Code  597.9 (c)(1).)

           This bill  requires the livestock owner to establish by a 
          preponderance of the evidence that the imposition would be a 




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          substantial or undue economic hardship.

           Existing law  provides that a defendant may petition the court to 
          reduce the duration of the mandatory ownership prohibition.  At 
          a hearing on the petition, the petitioner shall have the burden 
          of establishing probable cause to believe all of the following:

                 He or she does not present a danger to animals.
                 He or she has the ability to properly care for all 
               animals in his or her possession.
                 He or she has successfully completed all classes or 
               counseling ordered by the court. (Penal Code  597.9 
               (d)(1).)

           This bill  changes the burden to a preponderance of the evidence.
                                          

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  




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          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           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 May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
                 Assembly Bill 109.  Under the prisoner-reduction order, the 




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          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
           This bill  does not aggravate the prison overcrowding crisis 
          described above under ROCA.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               SB 1500 has three primary goals.  

                      The first is to fix a loophole regarding the 
                 term "or" in Penal Code Section 597.1, that results 
                 in abused animals being returned to their owners 
                 under the sole condition that the animal is 
                 physically fit.  Specifically, current law states 
                 that at a hearing conducted after the seizure of an 
                 animal, the animal may be returned to its owner if it 
                 is physically fit or if the owner demonstrates to the 
                 seizing agency or hearing officer that the owner can 
                 provide the necessary care and does not present a 
                 danger to the animal.  The word "or" makes the 
                 physical fitness of the animal the sole necessary 
                 condition for the return of the animal.  Because 
                 these hearings often take place weeks after the 
                 initial seizure, the seized animal has often been 
                 nursed back to health - thus, regardless of the 
                 owner's ability to care for/no longer abuse the 
                 animal, animal control agencies feel legally 




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                 obligated to return the animal.  The current in-print 
                 version of SB 1500 attempts to fix this loophole by 
                 changing the word "or" to "and" in order to make both 
                 the physical fitness of the animal and the owner's 
                 ability to care for it necessary criteria in order to 
                 return the animal.  Amendments to SB 1500 will change 
                 this fix slightly by removing the physical fitness 
                 criterion altogether, and requiring return of the 
                 animal only if the seizing agency or hearing officer 
                 determines that the owner can and will provide the 
                 necessary care.
































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                      The second goal of the bill is to make clear the 
                 fiscal responsibilities and procedures associated 
                 with the costs of housing a seized animal.  This bill 
                 modifies the term "costs" for seizing agencies to 
                 cover for the care and treatment of the animal by 
                 amending the language to cover the "full cost".  This 
                 clarifying amendment eliminates any ambiguity as to 
                 what part the owner of the animal is required to pay 
                 and restates the Legislature's intent to place the 
                 financial responsibility with the owner.  Also, this 
                 bill clarifies the lien procedure for payment that 
                 ensures collection of payment while also protecting 
                 the accused's right.

                      The final goal of SB 1500 is to address problems 
                 of housing animals taken in as part of certain types 
                 of criminal proceedings.  Current law stipulates that 
                 individuals or households may only own a certain 
                 number of specified animals.  Other kinds of pet 
                 ownership are outlawed entirely.  In cases where 
                 "hoarders," people who collect unlawful numbers of 
                 animals, or in cases where people own illegal exotic 
                 pets, even if the owner is eventually acquitted of 
                 criminal charges brought against them, they will not 
                 be legally allowed to keep (most of) their animals.  
                 However, since the animals are evidence in a criminal 
                 case, the shelter must continue to hold them until 
                 the cessation of criminal proceedings, and cannot 
                 adopt them to other owners or donate exotic animals 
                 to zoos.  These seized animals take up valuable 
                 shelter space, and other healthy, adoptable animals 
                 that come to the shelter are often euthanized 
                 unnecessarily due to the lack of space.  SB 1500 
                 would change would allow an agency or prosecutor to 
                 request a hearing, during which a judge will 
                 determine whether, even in the event of an acquittal, 
                 either the owner cannot or will not provide the 
                 necessary care for the animals or that the owner will 
                 not legally be permitted to retain the animals in 




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                 question.  The agency or prosecutor would have the 
                 burden of establishing either of these points by a 
                 preponderance of the evidence.

          2.    Full Cost  

          Generally, when an animal is seized because of suspected animal 
          abuse or neglect, the owner of the animal is liable for caring 
          and treatment of the seized animal.  This bill clarifies that a 
          person is liable for the "full" costs of the care and treatment. 
           

          This bill also clarifies when a statement of charges shall be 
          presented to the owner and how to keep the owner informed of any 
          accruing charges while the case is still going on.

          3.    Return of the Animal  

          Under existing law, a properly seized animal shall not be 
          returned to its owner until the animal is physically fit or the 
          owner can demonstrate to the seizing agency's or hearing 
          officer's satisfaction that the owner can and will provide the 
          necessary care.  The sponsor states that the "or" is problematic 
          especially since even injured or sick animals will have been 
          taken care of and treated while in possession of the seizing 
          authority.  This bill would instead require that the owner 
          demonstrate to the hearing officer that he or she can and will 
          provide the necessary care to the animal and does not present a 
          danger to the animal.

          This bill also provides for the return of an animal that has not 
          been deemed abandoned or forfeited, if the defendant shows all 
          of the following:

                 Proof of ownership.
                 Proof that all of the charges for the costs of seizure 
               and care of the animal for the entire duration of the 
               matter have been paid.
                 Proof that the owner can legally retain and possess all 











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               animals in question.

          4.    Burden of Proof for Reduction of Mandatory Ownership 
          Prohibitions  

          Existing law provides that people convicted of specified animal 
          abuse offenses are prohibited from owning animals for a 
          specified period of time.  The law does allow a person to 
          petition the court to exempt a person from the prohibitions if 
          he or she is a livestock owner and his or her livelihood depends 
          upon the ownership or shorten the time frame, if it is shown he 
          or she can safely care for the animals in the future.  This bill 
          establishes the burden that must be shown by the petitioner as a 
          preponderance of the evidence.

          5.    Post-seizure Hearing  

          A person is entitled to a hearing after his or her animals are 
          seized by a peace officer, humane officer or animal control 
          officer.  The law sets forth requirements for the hearing 
          including notice to the owner and time frames for the hearing.  
          This bill would clarify that if the animals were seized pursuant 
          to a search warrant, the person is not entitled to a hearing.  
          According to the sponsor, this is currently the practice when 
          animals are seized by a search warrant.


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