BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
3
3
9
AB 339 (Dickinson)
As Amended June 12, 2013
Hearing date: June 18, 2013
Health and Safety Code
MK:mc
SALE OF ANIMALS AT SWAP MEETS
HISTORY
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);
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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
(ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE.)
KEY ISSUE
SHOULD IT BE UNLAWFUL TO SELL AN ANIMAL AT A SWAP MEET UNLESS THE
LOCAL JURISDICTION HAS ADOPTED AN ORDINANCE GOVERNING SUCH SALES, AS
SPECIFIED?
PURPOSE
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
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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.
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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
control.
Take reasonable care to release for sale, trade, or
adoption only those animals that are free of disease or
injuries.
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
assessments.
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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
597.3.
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
conditions.
A pet store as defined.
Any reptile or aquatic trade show under specified
conditions.
This bill has a delayed operative date of January 1, 2016.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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
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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,
2013."
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.
COMMENTS
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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
situations.
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
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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
$2129.
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.
SHOULD IT BE UNLAWFUL TO SELL AN ANIMAL AT A SWAP MEET UNLESS
THE LOCAL JURISDICTION HAS ADOPTED AN ORDINANCE GOVERNING SUCH
SALES AS SPECIFIED?
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<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.)
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