BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 426 (Calderon)
As Amended March 25, 2011
Hearing Date: May 10, 2011
Fiscal: No
Urgency: No
RD
SUBJECT
Tenancy: Eviction: Notices
DESCRIPTION
This bill would classify any building or property used to
willfully conduct unlawful dogfighting or cockfighting as a
nuisance. It would also allow for the eviction of any person
who commits or maintains such a nuisance.
BACKGROUND
Under existing law, a nuisance is defined to mean anything that
is injurious to health or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property. A
tenant who commits or permits the maintenance of a nuisance upon
the premises is deemed to have terminated his or her lease and
is subject to eviction.
While both dogfighting and cockfighting have been outlawed by
all 50 states, and are felonies in the majority (including
California), law enforcement continually uncovers new incidents
of these types of animal fighting. These illegal bloodsports
are conducted underground, often move to new locations to avoid
suspicion, and are otherwise hard to infiltrate given the
associated level of secrecy. When authorities are successful,
they often unearth organized "rings" of animal fighting
promoters, spectators, and participants.
The crimes committed are not limited to animal cruelty, but
almost always involve other crimes such as gambling, narcotics,
(more)
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and illegal firearm possession as well. The Humane Society of
the United States (Humane Society) reports that thousands of
dollars can exchange hands as spectators and animal owners wager
large sums on their favorite animals. In addition to the
problems posed by each of those issues, the Humane Society
highlights the unfortunate presence of children at many of these
events, and the fact that children are subjected to the violence
and bloodshed of these animals, not to mention the illegal
activities that typically surround those events. In fact, the
American Society for the Prevention of Cruelty to Animals
(ASPCA) reports that these bloodsports activities often are
"family" events for those involved.
Despite its laws against dogfighting and cockfighting,
California has seen incidents of both, some in very recent
history: In early April 2011, the City of Fontana police
reported finding approximately 300 fighting roosters and dental
equipment following a six month investigation into a local
cockfighter's activities after a neighbor's tip. The homeowner
also had two young children, who were taken into custody at that
time and released to Child Protective Services. Over 200 of
those rescued roosters were subsequently euthanized.
In late August 2010, after a year of investigation, three Gilroy
men with ties to a Mexican drug ring were arrested and police
seized 300 pounds of crystal methamphetamine and cocaine with an
estimated $80 million at the property, also believed to be used
for both cockfighting and dogfighting. That same summer, two
homicides occurred over a $10 gambling dispute at a cockfight in
Merced County.
Since January 2008, the Humane Society reports more than 100
major cockfighting busts in 35 California counties, involving
more than 20,000 live or dead birds. In February 2011, alone,
they report nine busts in nine separate counties. One of these
busts occurred in Sacramento, where the Sacramento County
Sheriff's Office said that deputies busted a cockfighting ring
mid-fight on a Sunday afternoon. Four men were arrested, but
when deputies arrived at the scene, about 50 people surrounded
the arena during the cockfight. Fifty roosters were found
waiting in cages to fight; 12 birds were already killed in the
cockfights.
This bill declares the use of a building or property for the
willful use of unlawful dogfighting or cockfighting to be a
nuisance and provides that a landlord may evict a tenant who
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commits or maintains this nuisance with three days' notice to
quit.
CHANGES TO EXISTING LAW
1.Existing law defines a "nuisance" as anything that is
injurious to health, including but not limited to, the
illegal sale of controlled substances, or is indecent or
offensive to the senses, or an obstruction to the free use
of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the
free passage or use, in the customary manner, of any
navigable lake, river, bay, stream, canal, or basin, or
any public park, square, street, or highway. (Civ. Code
Sec. 3479.)
Existing law defines a public nuisance as one which
affects at the same time an entire community or
neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted
upon individuals may be unequal. (Civ. Code Sec. 3480.)
Existing law defines private nuisance as one which does
not fall within the section defining a public nuisance.
(Civ. Code Sec. 3481.)
Existing law provides that any person who does any of the
following is guilty of a felony and is punishable by
imprisonment in the state prison for 16 months, two or
three years or by a fine not exceeding $50,000:
� 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 amusement or gain, causes any dog to fight
with another dog, or causes any dogs to injure
each other.
� Permits either of the above to be done on any
premises under his charge or control, or aids, or
abets the act. (Pen. Code Sec. 597.5(a).)
Existing law provides that any person who is knowingly
present, as a spectator, at any place, building, or tenement
where preparations are being made for an exhibition of the
fighting of dogs, with the intent to be present at those
preparations, or is knowingly present at the exhibitions or
at any other fighting or injuring with the intent to be
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present at that exhibition, fighting or injuring, is guilty
of a misdemeanor punishable by up to one year in county jail
and/or a fine not to exceed $5,000. (Pen. Code Sec.
597.5(b).)
Existing law makes it a misdemeanor for any person who, for
amusement or gain, causes any cock to fight with another
cock or with a different kind of animal or creature or with
any human being; or who, for amusement or gain, worries or
injures any cock, or causes any cock to worry or injure
another animal; and any person who permits the same to be
done on any premises under his or her charge or control, and
any person who aids or abets the fighting or worrying of any
cock The penalty for a first offense is up to one year in
county jail and/or a fine of $5,000. (Pen. Code Sec.
597b(b).)
This bill would specify that a building or property used
to conduct dogfighting or cockfighting in violation of the
above Penal Code provisions is a nuisance.
1.Existing law provides that a tenant who assigns, sublets, or
commits waste upon the premises contrary to the conditions or
covenants of the lease, or maintains, commits, or permits the
maintenance or commission of a nuisance upon the premises, or
uses the premises for an unlawful purpose, is guilty of an
unlawful detainer and may, upon service of three days' notice
to quit, be evicted from the premises by the landlord.
Current law also specifies that a person who illegally
possesses certain firearms or ammunition on the premises, or
who illegally possesses or sells a controlled substance on the
premises, or who uses the premises to further either purpose,
as defined, is deemed to have committed a nuisance upon the
premises and is guilty of unlawful detainer. (Civ. Code Sec.
1161(4).)
Existing law provides that certain uses of buildings or
places constitute a nuisance, including those buildings or
places used for the purposes of: (1) illegal gambling or
prostitution (Pen. Code Sec. 11225); (2) unlawfully
selling, serving, storing, keeping, manufacturing, or
giving away any controlled substance (Health & Saf. Code
Sec. 11570); and (3) unlawfully selling, serving, or
giving away alcoholic liquor (Pen. Code Sec. 11200).
This bill would provide that a tenant who willfully conducts
dogfighting or cockfighting in the building or property, is
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deemed to have committed a nuisance upon the premises for the
purposes of the subdivision, which allows for the eviction of
any tenant who has committed, maintained, or permitted the
maintenance or commission of a nuisance upon the premises.
COMMENT
1.Stated need for the bill
According to the author:
Animal fighting-dogfighting and cockfighting-remain
dangerous threats and create public nuisance to many
individuals throughout California communities. This bill
would provide that a building or property used to conduct
dogfighting or cockfighting in violation of specified
criminal provisions is a nuisance and would specify that a
tenant who commits or maintains this nuisance may be
evicted.
Public nuisance goes hand in hand with illegal animal
fighting. Large-scale cockfighting pits in rural counties
simply draw too much attention to go unnoticed and hundreds
of these pits exit with the tacit approval of local law
enforcement. Reported raids of cockfighting and dog
fighting pits shows that narcotics are almost always
uncovered at illegal fighting operations. Illegal
narcotics, gambling and firearms at organized animal
fighting rings make a volatile mixture that creates a
perfect storm for violence to erupt. One of the most
disturbing aspects of illegal animal fighting operations is
the presence of children at animal fighting events, where
they are exposed to bloodshed, narcotics and illegal
gambling.
According to the Humane Society, the sponsor of this bill:
Dogfighting and cockfighting remain pervasive, insidious,
and dangerous threats to California communities. In spite
of increased attention from the media, law enforcement and
the legislature, these underground organized criminal
activities continue to thrive . . . Illegal animal fighting
is associated with a wide array of other illegal activities
including but not limited to: gambling, firearms
possession, child endangerment, narcotics use and
trafficking, smuggling, vending, and animal cruelty and
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neglect. . . . California's law enforcement officers are
serious about ending animal fighting but need better tools,
particularly with respect to cockfighting.
The Humane Society goes on to explain that "there are several
ways to attack this scourge and increase the cost of 'doing
business' for animal fighters in California through SB 426's
effort to reduce the economic resources available to those
criminals who facilitate and support the crime of animal
fighting."
2.Whether it is appropriate to declare any building or property
used to willfully conduct dogfighting or cockfighting a
nuisance
This bill would expressly declare any building or property used
to willfully conduct unlawful dogfighting or cockfighting a
nuisance.
a. This bill would make buildings or places used for the
purpose of willfully conducting unlawful dogfighting or
cockfighting a nuisance per se
By establishing that any building or property used for
willfully conducting unlawful dogfighting or cockfighting
is a nuisance, and that a tenant who commits or maintains
that nuisance may be evicted from that building or
property, this bill raises the public policy question of
whether the act of willfully conducting dogfighting or
cockfighting should be declared a nuisance. A nuisance is
generally thought of as activities that endanger public
health and safety, though those are not necessarily
requirements for defining a nuisance. Certainly the sale
or manufacturing of illegal drugs or weapons would meet
that standard. So too would prostitution. The question
posed by this bill is whether the same can be said of
dogfighting and cockfighting.
Under Civil Code Section 3479, "nuisance" is defined to
mean anything which is injurious to health or is indecent
or offensive to the senses, or an obstruction to the free
use of property, so as to interfere with the comfortable
enjoyment of life or property. The existence of an
injurious effect must be shown in order to sustain a
nuisance action.
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Arguably, conducting unlawful dogfighting and cockfighting
may constitute a nuisance under existing law, and tenants
who create that nuisance could thereby be permissibly
evicted under the current unlawful detainer provision (Civ.
Code Sec. 1161(4)).
In some cases, however, such an injurious effect does not
need to be proved and instead is presumed. This occurs
when a statute expressly declares a particular use of
property to be a nuisance. Such a use is deemed to be a
"nuisance per se." For example, existing law deems certain
uses of buildings or places to be a nuisance, including
those used for the purposes of: (1) illegal gambling or
prostitution; (2) unlawfully selling, serving, storing,
keeping, manufacturing, or giving away any controlled
substance; and (3) unlawfully selling, serving, or giving
away alcoholic liquor. This bill is modeled on these
statutes.
Under SB 426, the harmful effects of dogfighting and
cockfighting would be presumed and, regardless of the
impact on the surrounding community, would be deemed a
nuisance.
b. Why "nuisance per se" for dogfighting and cockfighting?
Here, there appears to be numerous and serious harmful
effects associated with both dogfighting and cockfighting;
each of which supports adding to the existing list of
"nuisance per se" statutes any property used to willfully
conduct dogfighting or cockfighting in violation of
existing law. Moreover, as discussed in the Background
section, dogfighting and cockfighting practices continue
despite the fact that all states have made them illegal.
The concern here is only compounded by the fact that
gambling, narcotics, illegal weapons, homicides, and the
presence of children are closely associated with, if not
intrinsically tied to, the events. The impact this has on
the large crowds they draw, the surrounding communities,
and the greater state support the "nuisance per se"
designation.
Given the continued struggle to end these illegal
bloodsport events long after this State made them illegal
to conduct, and the fact that the properties on which they
are conducted serve as venues for various illegal
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activities beyond the illegal dogfighting and cockfighting,
it appears appropriate for the State to permit the eviction
of those who commit this nuisance from the properties that
have become havens for these events, and that often enable
them to take place without detection for long periods.
Support : American Society for the Prevention of Cruelty to
Animals (ASPCA)
Opposition : None Known
HISTORY
Source : Humane Society of the United States
Related Pending Legislation : SB 425 (Calderon, 2011), which
would provide for minimum fines for specified dog fighting and
cockfighting violations and allow for forfeiture of property
acquired through cockfighting, is pending in the Senate
Committee on Appropriations.
Prior Legislation : AB 568 (Lieu, Chapter 453, Statutes of
2009), provides that if a person is convicted of a specified
crime, then a nonresidential building or place used by that
person for the purpose of willfully manufacturing, intentionally
selling, or knowingly possessing for sale any counterfeit goods,
as defined by the bill, shall be deemed a nuisance that may be
enjoined, abated, and prevented, whether it is a public or
private nuisance. The bill also provided for remedies and
discretionary abatement for a period up to one year.
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