BILL ANALYSIS                                                                                                                                                                                                    

                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

          AB 339 (Dickinson)                                          
          As Amended June 12, 2013 
          Hearing date:  June 18, 2013
          Health and Safety Code

                             SALE OF ANIMALS AT SWAP MEETS  


          Source:  State Humane Association of California
                   Born Free USA

          Prior Legislation: SB 917 (Lieu) - Chapter 131, Stats. 2011
                                 AB 2012 (Lieu) - vetoed 2010 
                       AB 1122 (Lieu) - vetoed 2009

          Support:  Humane Society of the United States; American Society  
                    for the Prevention of Cruelty to Animals (ASPCA); Paw  
                    PAC; Marin Humane Society; Central Coast Society for  
                    the Prevention of Cruelty to Animals; San Francisco  
                    SPCA; SPCA for Monterey County; Humane Society of  
                    Ventura County; Inland Valley Humane Society; Palo  
                    Alto Humane Society; Santa Maria Valley Humane  
                    Society; House Rabbit Society; Action for Animals;  
                    Lake Tahoe Humane Society; Central California SPCA;  
                    Animal Place; Yolo County SPCA; RedRover; Sacramento  
                    SPCA; Sam Jojola, retired Special Agent with U.S. Fish  
                    and Wildlife Office of Law Enforcement; Public  
                    Interest Coalition; Santa Cruz SPCA; Orange County  
                    SPCA; Humane Society Silicon Valley; Sacramento  
                    Council of Dog Clubs; spcaLA (Society for the  
                    Prevention of Cruelty to Animals Los Angeles);  



                                                         AB 339 (Dickinson)

                    California Animal Control Directors Association;  
                    Pasadena Humane Society & SPCA; Protecting Earth &  
                    Animals with Compassion & Education (PEACE); Valley  
                    Humane Society; San Bernardino County District  
                    Attorney, Michael Ramos; Avian Welfare Coalition; LA  
                    County; AFSCME; The Humane Society Veterinary Medical  
                    Association (HSVMA); one Individual

          Opposition:None known

          Assembly Floor Vote:  Ayes 63 - Noes 10


                                         KEY ISSUE


          The purpose of this bill is to make it unlawful to sell animals  
          at a swap meet unless the local jurisdiction has adopted an  
          ordinance that includes specified requirements relating to the  
          care and treatment of the animals.
          Existing law  defines "swap meet" to include a flea market or an  
          open-air market and means an event at which two or more persons  
          offer merchandise for sale or exchange and that meets one of the  
          following conditions: 
                 a fee is charged for the privilege of offering or  
               displaying merchandise for sale or exchange; 
                 a fee is charged to prospective buyers for parking or  
               for admission to the area where merchandise is offered or  
               displayed for sale or exchange; or 
                 the event is held more than six times in any 12-month  



                                                         AB 339 (Dickinson)

               period.  (Business and Professions Code  21661(a).) 

           Existing law  makes it unlawful, with specified exceptions, for  
          any person to willfully sell or offer for sale, display, or give  
          away or offer to give away as part of a commercial transaction a  
          live animal on any street, highway, public right-of-way, parking  
          lot, carnival, or boardwalk. (Penal Code  597.4.) 

           Existing law  makes it an alternate felony/misdemeanor punishable  
          by imprisonment in the county jail, a fine not to exceed  
          $20,000, or both a fine and imprisonment for every person who  
          maliciously and intentionally maims, mutilates, tortures, wounds  
          or kills a living animal, except as specified, or who overloads,  
          overworks, denies sustenance, cruelly beats, mutilates, or  
          cruelly kills any animal, and whoever having custody of an  
          animal, either as owner or otherwise, subjects an animal to  
          needless suffering or inflicts unnecessary cruelty upon the  
          animal, or in any manner abuses any animal, or fails to provide  
          an animal with proper food, drink, or shelter or proper  
          protection from the weather.  (Penal Code  597.) 

           Existing law  regulates, under the Lockyer-Polanco-Farr Pet  
          Protection Act the sale and care of dogs and cats by pet  
          dealers, as defined, and provides for civil penalties enforced  
          by the local district attorney or city attorney in an amount up  
          to $1000 for violations of the Act and requires, in part, a pet  
          dealer to maintain facilities where dogs are kept in a sanitary  
          condition and provide adequate nutrition, potable water, and  
          space appropriate to the age, size, weight, and breed of dog.   
          (Health and Safety Code  122125 et seq.) 

           This bill  provides that a swap meet operator may permit a vendor  
          to offer animals for sale at a swap meet if the local  
          jurisdiction has adopted standard for care and treatment of  
          animals for sale at a swap meets.

           This bill  provides that it does not apply to the sale of a  
          particular species of animal if a local jurisdiction has adopted  
          a local ordinance prior to January 1, 2013, that applies to the  
          sale of that species at swap meets.



                                                         AB 339 (Dickinson)

           This bill  provides that any ordinance adopted shall at minimum  
          require the vendor to do all of the following:
                 Maintain the facilities used for keeping of animals in a  
               sanitary condition.
                 Provide proper heating and ventilation for the  
               facilities used for the keeping of animals.
                 Provide adequate nutrition for, and humane care and  
               treatment of all animals that are under his or her care and  
                 Take reasonable care to release for sale, trade, or  
               adoption only those animals that are free of disease or  
                 Provide adequate space appropriate to the size, weight,  
               and species of animal.
                 Have a document program of routine care, preventive  
               care, disease control and prevention and veterinary  
               treatment and euthanasia that is established by the vendor  
               in consultation with a licensed veterinarian.  A  
               veterinarian shall visit the swap meet premises at least  
               once a year.
                 Provide buyers of an animal with general written  
               recommendations for the generally accepted care of the type  
               of animal sold, including recommendations as to the housing  
               equipment, cleaning, environment, and feeding of the  
               animal.  The written information can be in a form  
               determined by the vendor.
                 Present for inspection and display a current business  
               license issued by the local jurisdiction where the animals  
               are principally housed.
                 Maintain records for identification purposes of the  
               person from whom the animals offered for sale were acquired  
               including the person's name, address, email address, and  
               telephone number and the date the animals were acquired. 

           This bill  provides that a swap meet vendor, who offers animals  
          for sale at a swap meet in a local jurisdiction that has not  
          adopted an ordinance authorizing that sale, is guilty of an  
          infraction punishable by a fine not to exceed $100 plus penalty  



                                                         AB 339 (Dickinson)

           This bill  provides that a swap meet vendor who has a second or  
          subsequent violation is guilty of an infraction punishable by a  
          fine not to exceed $500 per violation plus penalty assessments.   
          The courts shall weigh the gravity of the violation in setting  
          the amount of the fine.

           This bill  provides that nothing precludes punishment under any  
          other section of law.

           This bill  provides that it does not apply to:
                 Events held by 4-H Clubs, Junior Farmers Clubs or Future  
               Farmers Clubs.
                 The California Exposition and State Fair, district  
               agricultural association fairs or county fairs.
                 Regulated stockyards.
                 The sale of specific farm animals at public sales for  
               those animals.
                 Live animal markets regulated under Penal Code Section  
                 A public animal control agency or shelter, society for  
               the prevention of cruelty to animals shelter, human society  
               shelter, or rescue group as defined.
                 The sale of fish or shellfish, live or dead, from a  
               fishing vessel or registered aquaculture facility, at a  
               pier or wharf, or at a licensed farmer's market.
                 A cat show, dog show or bird show under specified  
                 A pet store as defined.
                 Any reptile or aquatic trade show under specified  

           This bill  has a delayed operative date of January 1, 2016.


          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  



                                                         AB 339 (Dickinson)

          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011



          when public safety realignment went into effect, by more than  
          36,000 inmates compared to the 2008 population . . . , and by  
          nearly 42,000 inmates since 2006 . . . ."  Plaintiffs, who  
          opposed the state's motion, argue in part that, "California  
          prisons, which currently average 150% of capacity, and reach as  
          high as 185% of capacity at one prison, continue to deliver  
          health care that is constitutionally deficient."  In an order  
          dated January 29, 2013, the federal court granted the state a  
          six-month extension to achieve the 137.5 % prisoner population  
          cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.




                                                         AB 339 (Dickinson)

          1.    Need for This Bill  

          According to the author:

               Animals are frequently sold at flea markets and swap  
               meets in terrible conditions.  These venues provide  
               little oversight of the seller and no accountability to  
               the consumer.  Laws that apply to pet shops do not  
               apply to the sale of animals at flea markets and swap  
               meets.  Swap meets and flea markets have also  
               historically been prime outlets for the sale of  
               smuggled birds presenting conservation, welfare and  
               disease risk concerns.  The bargain-sales atmosphere of  
               flea markets and swap meets encourages impulse-buying  
               and leads to increased costs to local government for  
               sheltering discarded animals.

               AB 339 would prohibit the sale of animals at swap meets  
               and flea markets unless the local jurisdiction at  
               minimum adopts standards as set forth in the bill, for  
               the care and treatment of animals at such venues by  
               January 1, 2016.  As a result, the bill will prevent  
               the suffering of animals, protect consumers, and  
               eliminate the public health and safety risks and risks  
               of other disease outbreaks associated with such sale  

          2.    Standards for an Ordinance  

          This bill permits the sale of animals at a swap meet only when  
          the local jurisdiction has adopted an ordinance.  The bill  
          specifies the minimum standards that the local ordinance must  
          include regarding how the animals are cared for and housed as  
          well as information that must be given to any buyer about the  
          particular animal.  The elements that must be included in the  
          ordinance are similar to those required of a pet store that  
          sells live animals.

          3.    Penalties 


                                                         AB 339 (Dickinson)

          This bill makes it an infraction for a person to sell an animal  
          at a swap meet when the local jurisdiction has not adopted an  
          ordinance.  As proposed to be amended in Committee, a first  
          offense will be punishable as a fine of up to $100 plus penalty  
          assessments.  As proposed to be amended, a second offense will  
          be $500 plus penalty assessments.  Current penalty assessments  
          are approximately 310% plus $79 in flat fees (assessments can  
          vary slightly by jurisdiction).<1>  Thus a $100 fine is actually  
          approximately $489 and a fine of $500 is actually approximately  

          The bill specifically excludes the sales of animals in specified  
          circumstances from the penalties in this bill including: sales  
          by 4-H and similar clubs; sales by specified public cattle,  
          sheep, swine, goat or equine sales; sales by a humane or animal  
          control agency; sales of fish or shellfish at a wharf or farmers  
          market under specified conditions; or, sales at animal shows  
          under specified conditions.



          <1> Until the budget year 2002-2003, there was 170% in penalty  
          assessments applied to every fine, the current penalty  
          assessments are approximately 310% plus a flat fee of $79.  (See  
          Penal Code  1464; Penal Code  1465.7; Penal Code  1465.8;  
          Government Code  70373; Government Code  7600.5; Government  
          Code  76000 et seq;   Government Code 76000.10; Government  
          Code  76104.6; Government Code  76104,7.)  


                                                         AB 339 (Dickinson)