Wednesday, May 14, 2014

Help ISAR to amend dozens of inadequate laws purporting to prohibit retail sales of certain companion animals.



HOW YOU CAN HELP ANIMALS!

Help ISAR to amend dozens of inadequate laws purporting to prohibit retail sales of certain companion animals.


As recipients of ISAR's E-Newsletter/Blog know, we're probably alone in seeking to prohibit retail sales of companion animals.
ISAR applauds the City of Chicago for taking what we consider to be not the last word on the subject, but rather a desirable way-station on the road to ban all retail sales. In this regard, please note that the Chicago ordinance still allows sales by kennels. ISAR opposes this breeder exception. Note also that if allowed "sales" from other entities named in Section 4-384-015(b) are in reality adoptions, we are in agreement.
Among the responses to that portion of our E-Newsletter/Blog was this polite but uninformed email from an animal protection activist: "I don't think ISAR's analysis is correct. There is no exemption for breeders -- when the Chicago statutes refer to 'kennels' they are referring to any government operated facility, e.g. 'pound.' No government entity will be in the business of breeding animals ...."

Sadly, the drafters of the ordinance have made it easy for those like the activist to misunderstand the importance of the law. Please note these three points:
  
(1) Section (b) specifies five exemptions from the ordinance's requirements, of which a kennel is one; 
  
(2) According to Webster's New World Dictionary of the American Language, the primary definition of "kennel" is "a place where dogs are bred or kept," (our emphasis), meaning, as we said, that use of the word "kennel" in the ordinance acts to create an exemption that can be read to gut the entire ordinance; and 
  
(3) The ordinance's words "state or federal government" are intended to, and do, plainly refer not to kennels, but rather to the words that precede "state or local government," namely "pound or training facility operated by any subdivision of local. . . ."

As we said in our previous E-Newsletter/Blog, "ISAR opposes this breeder exception." Because that's how we read the ordinance and, if we're correct, the breeder exception guts the ordinance. 
Maryland's statute (Section (A)(1) requires an intent to change vocal sounds. ISAR's Model Statute (Section 6(a)) does not require any such intent. This means that under Maryland's statute the prosecutor must prove beyond a reasonable doubt that by the accused's surgical conduct the desired end of the procedure was to change vocal sounds. To the contrary, ISAR's Model Statute would allow conviction simply upon adequate proof that the defendant actually changed vocal sounds, whether or not he or she actually intended to do so. As most trial lawyers know, proving intent is not a slam dunk because it requires an x-ray into someone's mental state. While it's true that intent can often be inferred from acts, it can't always. In this regard, ISAR's Model Statute is importantly better than Maryland's.

Maryland's Section (B) provides that "a person may not surgically devocalize a dog or cat." There are two weaknesses in this section, shown by ISAR's contrasting prohibitory language. First, our "Section 1. Prohibition," bars devocalization "surgically or by any other means." Second, it not only bars the person him/herself from devocalizing, but covers a situation where the person shall "cause, or allow others to cause" devocalization of a dog or cat.

Maryland's Section (C) allows a veterinarian to perform devocalization, "only if (1) anesthesia is administered to the animal during the procedure." What if it's inadequate? ISAR's "Section 3. Veterinarians", plugs this loophole by expressly requiring that the anesthesia shall be "sufficient to eliminate all pain."

Other important provisions, present in ISAR's Model Statute but absent from Maryland's, are:
      • Findings. "Findings" are essential predicates to legislation at every level of government. They provide the explicit rationale(s) for enactment of the laws, and usually enable reviewing courts to understand why they were passed.
      • Penalties. Absent from Maryland law is ISAR's "Section 4. Penalties (b) and (c)," the former allowing for a mental health evaluation and therapy, the latter allowing for a court-ordered prohibition of contact with animals, etc.
      • ISAR's "Section 2. Written certification," requirement is considerably more stringent than the four requirements found in Maryland's (C)(2)(II).
      • ISAR's "Section 5. Sale or gift of devocalized animals," imposes disclosure requirements on anyone who transfers ownership or possession of a devocalized dog or cat. Maryland's statute has no such requirements.
Maryland's governor and legislature are to be applauded for their intention to criminalize devocalization, and ISAR is sure that the new law will go a long way to eliminating that barbaric practice.

But, as is often unfortunately the case, Maryland's new anti-devocalization statute could have been better drafted.

ISAR welcomes the opportunity to help.

Because other jurisdictions have enacted similar ordinances, and doubtless some other jurisdictions soon will, we've decided to widen our commentary concerning the former.

Best Friends Animal Society has posted a list of jurisdictions, domestic and foreign (Canada), which have laws similar to Chicago and Maryland.

Unfortunately, many of them suffer from some of the problems we've mentioned in our Model Statute. For example, the West Hollywood ordinance is a boilerplate law used as a template by other jurisdictions. Among the problems with it, and all the other jurisdictions that have used it, is that:
  • Its Findings note with approval other statutes which regulate, but do not prohibit.
  • It approves in principle the breeding of cats and dogs so long as certain regulatory requirements are met.
  • It's prohibition extends only to "pet stores," but not to any other commercial retail seller of dogs and cats.
  • The ordinance's prohibition addresses sales within West Hollywood, but does not bar sales from elsewhere which end up in that city, such as via the Internet.
  • An exemption guts the entire ordinance, which does not apply to, "1. A person or establishment that sells, delivers, offers for sale, barters, auctions, gives away, or otherwise transfers or disposes of only animals that were bred and reared on the premises of the person or establishment." This paragraph guts the entire ordinance.
As to this exemption, in our Model Statute we noted that:

It is bad enough that its core prohibition expressly applies only to pet stores, thus making the law inapplicable to every other commercial retail source of dogs and cats. It is far worse that the exemption contained in this paragraph can legitimately be read to expressly allow puppy farms and kitten factories to continue to operate. It is beyond irony that the ordinance affects only pet stores, but not far worse offenders.

Although in fairness, it has to be recognized that this boilerplate ordinance/statute is apparently well-intentioned -- though not nearly adequate to narrow, let alone shut down, the pipeline from companion animal mills to local retail commercial sellers -- the law is simply not enough to achieve that goal.

ISAR commends our Model Statute Prohibiting Commercial Retail Sales of Dogs and Cats to the attention of those who would like to work with us in shutting down that pipeline.

One way is to amend the dozens of laws that are now on the books in this country and Canada.

Please contact ISAR to learn how you can help us prohibit retail sales of certain companion animals. 





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