UPDATES FROM THE ANIMAL COUNCIL

June 27, 2008
Last publication date 6/19/08
Preserving Our Right To Own And Breed Animals Is Your Responsibility

IN THIS ISSUE:
* CA AB 1634, AS AMENDED, REVIEW: THE OPPOSITION; THE HEARING
AMENDMENT; CREATION OF A NEW OFFENSE; THE IMPOUND PROVISION; THE DUE
PROCESS ISSUE; HISTORY OF MSN ON IMPOUND; CONTRASTING LOCAL
ORDINANCES; AB 1634 AND 1998 AB 1856 VINCENT BILL, ISSUE LEGISLATIVE
HISTORY

THE OPPOSITION: CA AB 1634 as amended June 18, authored by final
term Assembly member Lloyd Levine (D-40) of Van Nuys, with previous
Assembly co-authors Nava and Solario, and Senators Padilla and newly
added Gloria Negrete McLeod, passed (3-2 partisan vote) out of the
Senate Committee on Local Government, chaired by Negrete McLeod on
Wednesday, June 25, after a nearly hour-long hearing and is now
referred to the Senate Committee on Appropriations. This review
covers only the owner impact issues and not the bill provision for
county reports to the Department of Health Services and seeks to
clarify the principal issues after Senate policy committee.
Opposition to the original bill mandating local ordinances allowing
only designated cats and dogs to remain unaltered had been well
focused, but the entirely new bill provisions mandate sterilization
as a post offense/impoundment consequence. This reversal diluted
opposition clarity on key issues and bypassed critical legislative
history of statutory provisions being amended. Some opponents asked
for amendments or later legislation, cited "lack of due process"
without explanation or obvious understanding of the extent and
significance, or otherwise endorsed most of the bill.

THE AMENDMENT: Considering our 2005 experience in this committee,
with only slightly different membership, hearing SB 861 (modified the
1990 breed specific preemption) passage of AB 1634 was no surprise
regardless of opposition effort. The limited amendment of AB 1634 in
committee was the only surprise. In response to slight equivocation
by Democrat Mike Machado of rural San Joaquin county, favoring the
bill due to damage in his area from loose dumped and loose dogs and
cats but still with reservations, Levine readily amended
the "complaint" provisions from "shall" to "may" be cited (third
complaint/citation results in mandatory sterilization.) The
amendment could allow some local discretion in citing
for "complaints" about violations of non-noise animal laws against
owners of unaltered dogs or cats as provided by this bill. However,
discretion is not a right, entitlement or defense and its use would
depend on agency policy and individual enforcement personnel's
perception of the complaining party, subject, animal and owner.

THE NEW OFFENSE: Mr. Levine – both last year (July, 2007 hearing)
and now – equated the MSN penalty to a seat belt violation secondary
to a traffic stop for other reasons since individual traffic stops
are not allowed for seat belts alone. But, not wearing a seat belt
is a existing legal offense, whereas owning an unaltered dog or cat
is not. This analogy fails. In effect, AB 1634 creates a new
offense for violating a non-noise animal law with an unaltered
animal. Since animal laws range from trivial to grave, related or
not to unaltered status or unwanted breeding, intentional or
unknowing, innocuous or reckless, this uniform, severe, confiscatory
consequence would be disproportionate and inappropriate in some
cases. Note, the trend in dangerous dog laws is to include
sterilization provisions in those separate laws.

THE IMPOUND PROVISIONS: The additional bill provision for MSN
penalty following 3rd impound for dogs and 2nd for cats has even been
endorsed by some opponents without regard to legislative history or
future implications. This attitude may have led to oversight in
making the case for lack of due process in the legal and practical
sense.

THE DUE PROCESS ISSUE: The bill wording is confusing as to whether
the owner must be cited for an actual offense under other animal laws
and consequently cited under this bill if the subject animal is
unaltered, or merely cited under this bill without actual citation
and legal disposition for the original complaint. This confusion led
to allegations of lack of due process for defending the "complaint",
to which the author replied there would be no lack of due process for
citations. On this point, Levine would be correct as to the citation
itself which would be appealable in court as any type of citation.
Rather, the actual lack of due process is for challenging the
sterilization penalty based on individual facts and circumstances.
Without authorization for an express appeals process on this issue,
the owner's only recourse is to attempt to go directly to court – an
impractical, expensive and very problematic forum. For those who
believe anyone violating any animal law or whose animal is impounded,
including themselves, should suffer this penalty, perhaps there is no
concern. For everyone else, this is and has been a critical concern
in this area of animal law involving forfeiture of a property
interest, possibly of significant monetary or other value and/or
partly owned by persons other than the apparent owner.

THE HISTORY OF MSN ON IMPOUND: The concept of mandatory
sterilization on impound was developed in the San Mateo Community
Animal Task Force Technical Committee in 1991, a large, contentious
group that intensely scrutinized and debates the pros and cons of
every aspect of San Mateo County animal laws and shelter policies
related to the pending "overpopulation" ordinance. The enacted
recommendation for this concept was MSN on 3rd impound in a THREE
YEAR PERIOD with an appeal process. The relevant provisions of the
San Mateo County Code Section 6.04.220 Redemption/spay neuter fee are:

"(b) Upon redemption of any impounded unaltered animal, the owner
will be required to pay a spay/neuter fee in the amount of $35.00 in
addition to the impound fees imposed under section 6.04.290 of this
chapter. Such fee shall be refundable upon proof of spay/neuter of
the animal within thirty (30) days of the redemption date. Any
unaltered animal impounded twice or more within a three-year period
shall be altered at the owner's expense prior to redemption. At the
option of the owner, required spaying or neutering may be performed
by a private veterinarian.
(c) Any owner of an impounded animal subject to mandatory spay/neuter
under subsection (b) of this section may petition, in writing, for a
hearing conducted by the Animal Control Program Manager or his or her
designee within three days following notice of the second
impoundment. The hearing shall be held within four working days of
such petition and shall be subject to the provisions of section
6.04.115, subsections (a) through (g) of this chapter. After the
hearing, the Hearing Officer may require that the animal be spayed or
neutered at the owner's expense, unless the Hearing Officer
determines that good cause exists for not requiring that the animal
be spayed or neutered."

Since these provisions were enacted in 1991, owners have requested
hearings and some have prevailed. "Good cause" might include
veterinary contraindications and totally unforeseeable circumstances,
particularly those out of the owner's control. Since then, we have
seen this type of provision proposed around the country at the local
and state level, but not always enacted, and with numerous
variations. Variations range from first to third impound, appeal
process or none, exemptions for "show", "competition" or certain
registries", time periods or lifetime, animal or owner, non-residents
and others. Additional concerns include civil liability to the
owner, and AB 1856 would have given immunity to agencies and
shelters.

CONTRAST 1998 OAKLAND CA PROVISIONS – 1st IMPOUND UNLICENSED/NO
APPEAL, 2ND ALL OTHERS WITH APPEAL: "Oakland CA Municipal Code
Section 6.04.241 Spaying/neutering impounded animals prior to release.
A. Unlicensed Dogs. Any dog taken into custody by the animal control
shelter that is not licensed pursuant to Section 6.04.030 must be
spayed or neutered prior to release from the animal control shelter
unless such dog is excepted from the license requirements pursuant to
Section 6.04.090•
B. Repeat Offenders. After the first violation of any provision of
Title 6, Chapter 6.04 or 6.08, pending an appropriate appeals
process, animals taken into custody by the animal control shelter
will be subject to a mandatory spay/neuter prior to release from the
animal control shelter. (Ord. 12069, 1998)"

AB 1634 AND THE 1998 VINCENT BILL, AB 1856: Both AB 1634 cat and dog
impound provisions would amend existing law enacted by the 1998 AB
1856 authored then Assembly member Edward Vincent for whom Mr. Levine
was the bill's staff person. AB 1856, as introduced, required
sterilization of ALL cats and dogs prior to transfer by anyone and
was opposed by all dog and cat owner groups and many others. When
Vincent met with stakeholders to discuss amendments, Mr. Levine
walked out of the meeting, and has never worked with owner groups
during his prior Assembly years' animal bills. When AB 1856 reached
the Senate Judiciary Committee, it had been amended to only
sterilization of shelter and rescue adoption releases and the MSN on
3rd impound (same as AB 1634) in addition to the escalating
surcharges on local fines for each unaltered impound.

THE AB 1856 OPPOSITION: San Mateo was recent history in 1998, and
the AB 1856 MSN on impound provisions were uniformly and successfully
opposed and deleted while the remaining "Vincent Bill" went on to
enactment as a shelter sterilization bill only. Our question now is
why some of the 1998 opponents now accept or even advocate the
language removed from the 1998 bill? AB 1634 would preempt San Mateo
County's ordinance that offers greater protection, but leave
Oakland's far more harsh ordinance with the invitation for others to
take the low rather than high road.

1998 SENATE JUDICIARY COMMITTEE AB 1856 ANALYSIS (6/23/98 HEARING):

"4. Opposition by dog clubs: bill denies due process rights of
dog owners, and is draconian

Numerous dog and cat clubs oppose this bill. They have three primary
concerns. The first is that the provision requiring the
sterilization of dogs and cats that are impounded three times are too
stringent. Sharon Coleman of the Animal Council argues that some
animals are "true escape artists" and imposed sterilization for those
who are picked up three times is inappropriate. Moreover, she
argues, animals are impounded for a myriad of reasons: in cases
where an owner's house has burned down or when a natural disaster has
occurred, for instance.

The second concern is that the bill would deny the due process rights
of owners. Coleman points out that the bill does not provide for an
administrative hearing of any kind, and gives civil immunity to
shelters who sterilize "third-strike" animals. Third, several clubs
have argued that inappropriate, and that citizens would be better
served if such matters were left to local jurisdictions.

The author responds that requiring sterilization after the third time
a dog or cat has been impounded provides ample opportunity for owners
to mend fences, fix back-doors, or make other changes that will keep
a dog or cat from roaming free. He is concerned that providing for
an administrative hearing prior to a third offense sterilization
would be overly bureaucratic."

AB 1634 HAS THE SAME PROVISION OPPOSED AND DEFEATED IN 1998: Why is
this not uniformly opposed now when it is the basis for creation of a
new offense of owning an unaltered dog or cat when violating any non-
noise animal law? Is the switch from front-end to back-end mandated
sterilization that confusing? Does it make opponents appear
reasonable and worthy of concessions or just weak enough for a final
defeat as the author leaves the Legislature?

The registered opposition on this 1998 Bill Analysis was as follows:

"Opposition: The American Kennel Club; American Staffordshire
Terrier Club; Irish Setter Club of San Diego; Samoyed Club of
America; Associated Obedience Clubs of Northern California; Golden
Gate Labrador Retriever Club, Inc.; Irish Setter Club of Southern
California; Pet Lovers Protective League; South Bay Collie
Fanciers, Inc.; California Federation of Dog Clubs; Afghan Hound Club
of California; Antelope Valley Kennel Club; Aztec Doberman Pinscher
Club of San Diego; Bull Terrier Club of California; Cabrillo Club of
California; California Canine Hikers; Channel City Kennel Club;
Cocker Spaniel Club of San Diego; Diablo Valley German Shepherd Dog
Club; Western Hound Association of Southern California; Golden
Retriever Club of Greater Los Angeles; Golden Gate Akita Club; Golden
State Chow Chow Club; Golden State Rottweiler Club; Great Pyrnees
Association of Southern California; Kennel Club of Riverside; Kennel
Club of Palm Springs; Kern Valley Kennel Club; Lake Matthews Kennel
Club; Mensona Kennel Club; Orange Coast Rhodesian Ridgeback Club;
Dalane Golden Retrievers; Samoyed Club of Los Angeles; San Angeles
Saluki Club; San Joaquin Kennel Club; Santa Maria Kennel Club;
Santa Clara Valley Kennel Club; Shoreline Dog Fanciers Association;
Southern California Beagle Club; Southland Weimaraner Club; St.
Bernard Club of San Diego; St. Bernard Club of Southern California;
Western Fox Terrier Breeders Association; Ventura County Dog
Fanciers; Society Collies; Keeshound Club of Southern California;
National Animal Interest Alliance; Collie Club of America, Inc.; San
Gabriel Valley Collie Club; Simply Corgis; South West Dog Sports of
California; Saga Welsh Springer Spaniels; The Welsh Springer Club of
America; The Art Network; Pricilla Eiden, Inc.; Balua Sur Kennel
Club; Kayra Kennel; Killija Labradors; Dalmatian Club of Southern
California; Golden West Fox Terrier Association; Custom Canines
Obedience; Tioka Norwegian Elkhounds; Bulldog Club of Southern
California; BisSchips CB Schipperkes; JMC Service; CRIS'S K9
Training; Coyote Hills Kennel Club; American Dog Owners Association,
Inc.; ASTRO; The Animal Council; Animal House, Inc.; Animal Lovers
Unlimited, Inc.; Authentic Bengal Cat League; Bahia Sur Kennel Club
of Chula Vista; Barbary Coast Bull Terrier Club; Bear County Cattery;
Bijou Bleu Cattery; Borzoi Club of California; The Cat Care Clinic;
The Cat Fanciers Association, Inc.; Del Sur Kennel Club; Embergain
Golden Retrievers; Feather River Dog Training Club; Fresh Start
Victorian Cat Shelter; Golden Empire Brittany Club; Great Companions
Dog Training; High Desert Cat Club; Human/ Animal Bond in Society;
International Bengal Cat Club; Just Persians Cat Club; Malibu Cat
Club; Mother Lode Bulldog Club; Nakota Siberians; National Pet
Alliance; Northern California Alaskan Malamute Association; Pet
Pantry; Pups are Us Pet Store; Rowe's La Mesa Pet Hotel; Sacramento
Council of Dog Clubs; Saluki Club of Greater San Francisco; San Diego
Cat Fanciers; San Francisco Dog Training Club; Sandy Oak Chesapeakes;
Santa Clara Cat Fanciers Association; Sierra Foothills Dalmatian
Club; Tahoe Bengals; Two Cities Kennel Club; Western Abyssinian Cat
Club; West Shore Shorthair Cat Club"
See the complete Analysis at:
http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_1851-
1900/ab_1856_cfa_19980624_114323_sen_comm.html
*****

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