Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)

Lest there be any mistake about the foundational intention of ISAR's Model Statute Prohibiting Retail Sale of Dogs and Cats, we here state it categorically:

Having concluded that overpopulation of dogs and cats and the attendant social and other problems it engenders will not be solved by mere regulation of puppy mills, kitten factories, breeders, facilitators and commercial retail sellers, ISAR supports an outright prohibition on: (1) the commercial retail sale of dogs and cats within the jurisdictions enacting the prohibition, and (2) the purchase by persons within those jurisdictions of cats or dogs bred in a manner inconsistent with the provisions of ISAR's Anti-Breeding Statute no matter where bred.

As we have explained in the Memorandum, among the major faults of virtually all animal protection legislation is its failure to set forth explicitly the fundamental legislative premises upon which the statutes and ordinances are based. ISAR has sought to remedy that omission by making clear in our Model Statute exactly upon what premises ISAR's proposed legislation rests.

Again, lest there be any misunderstanding, having recognized that even the most stringent regulatory laws (which are few and far between) have made no noticeable impact on the companion animal overpopulation tragedy, ISAR now seeks to greatly reduce the flow of dogs and cats through the production pipeline by closing off their sales at the point of destination. Not just at pet stores, but at all commercial retail sales points.

As a matter of principle, ISAR deplores the commercial, and most other, breeding of dogs and cats. We have hoped that until the day comes when ISAR's view of how to deal with the overpopulation problem is accepted as a moral imperative, and is translated into law subject to virtually no exceptions, we would have to be content with the statutory provisions set forth in our other monographs -- if they were rigorously and intelligently enforced.

Because ISAR no longer believes that outcome is likely, as a matter of principle and policy we now support an outright prohibition on commercial retail sales of dogs and cats.

In ISAR's monograph "The Policy and Law of Mandatory Spay/Neuter" we wrote that:

Let's assume that mandatory spay/neuter laws are enacted by every state in the United States, in the real world there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void.

In other words, while mandatory spay/neuter laws will surely reduce the population of unwanted companion animals in the United States (and possibly contribute to a widespread national No-Kill policy), in the harshness of the real world the problem of too many dogs and cats will continue to exist no matter what.

This sad fact must be taken into account when government considers mandatory spay/neuter legislation. Those laws must be grounded not in hope, sentiment, or a benevolent opinion of mankind, but rather in the world as we find it. A world where companion animals are too often thought of as virtually inanimate objects, property to be used and abused by humans.

It is in this context that the subject of mandatory spay/neuter must be considered.

The relevance of our earlier observation for this Model Statute is ISAR readily acknowledges that a ban on the commercial retail sale of dogs and cats will never be enacted federally, let alone by every state. But even if one was, "there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void."

So why has ISAR devoted substantial research and other resources to the preparation of the Monograph and Model Statute?

Primarily for two reasons, policy and practicality.

As to policy, for decades -- through our legal, legislative and humane education efforts -- ISAR has been working to solve the dog and cat overpopulation problem.

This Model Statute is yet another means of advancing that policy goal.

As to practicality, we believe that a growing trend of village, town, city, county and even state West Hollywood-like statutes and ordinances, while not ending the commercial retail sale of dogs and cats, will make it more difficult for casual purchasers to acquire them. For example, despite the weaknesses in the West Hollywood ordinance examined at length in the Memorandum, the casual buyer of a dog or cat must now go elsewhere to purchase one. If Los Angeles County had a no-sale statute, buyers would have to go elsewhere. And so on. [1]

The Statute Findings

Whereas, there have been and are today within the United States countless unwanted dogs and cats lacking permanent homes, that are a major cause of dog and cat overpopulation; and

Whereas, a major source of such dogs and cats are commercial breeders who operate puppy mills and kitten factories, and other breeders; and

Whereas, the treatment of dogs and cats and their physical conditions at the hands of breeders, puppy mills, kitten factories, facilitators and commercial retail sales outlets are a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, and environment; and

Whereas, although some of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets, may be healthy, many are not; and

Whereas, many of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets have an adverse impact on the public health, safety, welfare, morals and environment; and

Whereas, the social impact of these dogs includes, but is not limited to, the transmission of disease, the injury and sometimes death of humans and other animals and the drain on public finances; and

Whereas, many of these animals and others from random sources are eventually euthanized by shelters, humane societies, and similar organizations; and

Whereas, euthanizing dogs and cats except for bona fide medical reasons is inhumane and abhorrent to the people of the United States; and

  

Whereas, euthanizing dogs and cats except for bona fide medical reasons is not an effective, economical, humane, or ethical solution to the problem of dog and cat overpopulation; and

Whereas, one of the most effective, economical, humane, and ethical solutions to the problem of dog and cat overpopulation is to substantially reduce, if not entirely eliminate, their breeding, facilitation and their commercial retail sale without which there would be substantially less breeding; and

Whereas, such reduction or elimination, especially of commercial retail sales, will protect and advance the public health, safety, welfare, and environmental interests of its citizens; and

Whereas, existing state and federal laws merely regulate, but do not prohibit, dog and cat breeding and pet stores and other places that sell dogs and cats. These include the Lockyer-Polanco-Farr Pet Protection Act (California Health and Safety Code Section 122125 et seq.); the Polanco-Lockyer Pet Breeder Warranty Act (California Health and Safety Code Section 122045 et seq.); the Pet Store Animal Care Act (California Health and Safety Code Section 122350 et seq.); and the Animal Welfare Act ("AWA") (7 U.S.C. Section 2131 et seq.); and

Whereas, the Albuquerque and West Hollywood ordinances are mere regulation but not prohibition; and

Whereas, the Animal Welfare Act is mere regulation but not prohibition; and

Whereas, it is commonly known that American consumers purchase dogs and cats from commercial retail sales outlets that they believe to be genetically sound and healthy, but when in reality the animals often face an array of health problems including communicable diseases or genetic disorders that become apparent immediately after sale or that do not surface until several years later, all of which lead to costly veterinary bills and distress to consumers; and

Whereas, review of state and USDA inspection reports from more than one hundred breeders who sold animals to the nation's largest commercial retail pet store chain revealed that more than sixty percent of the inspections found serious violations of basic animal care standards, including sick or dead animals in their cages, lack of proper veterinary care, inadequate shelter from weather conditions, and dirty, unkempt cages that were too small; and

Whereas, a 2005 undercover investigation of California commercial retail sales outlets revealed that nearly half of the premises visited displayed animals that showed visible signs of illness, injury, or neglect, and nearly half of the premises also sold animals showing clear symptoms of psychological distress; and

Whereas, according to The Humane Society of the United States, hundreds of thousands of dogs and cats in the United States have been housed and bred at substandard breeding facilities known as "puppy mills" or "kitten factories" which mass-produce animals for sale to the public through commercial retail sales outlets. Because of the lack of proper animal husbandry practices at these facilities, animals born and raised there are more likely to have genetic disorders and lack adequate socialization, while breeding animals utilized there are subject to inhumane housing conditions and are indiscriminately disposed of when they reach the end of their profitable breeding cycle; and

Whereas, according to USDA inspection reports, some additional documented problems found at puppy mills include: (1) sanitation problems leading to infectious disease; (2) large numbers of animals overcrowded in cages; (3) lack of proper veterinary care for severe illnesses and injuries; (4) lack of protection from harsh weather conditions; and (5) lack of adequate food and water, and similar problems are found at kitty factories; and

Whereas, while "puppy mill" puppies and "kitten factory" kittens were, for example, being sold in commercial retail sales outlets such as pet stores throughout the metropolitan Los Angeles area, in 2009 alone more than thirty-five thousand dogs and sixty-seven thousand cats were euthanized in city and county shelters; and

Whereas, while the legislature recognizes that not all dogs and cats sold in commercial retail outlets such as pet stores are products of inhumane breeding conditions and does not classify every commercial breeder selling dogs or cats to commercial retail sales outlets such as pet stores as a "puppy mill" or "kitten factory," it is the legislature's finding that puppy mills and kitten factories continue to exist in large part because of public demand and the ease with which dogs and cats can be purchased from commercial retail sales outlets such as pet stores; and

Whereas, the legislature finds that the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction adds to overpopulation and all of its unacceptable consequences, and is also inconsistent with the legislature's goal of reducing the number of unwanted dogs and cats, and the principle of animal protection; and

Whereas, the legislature believes that eliminating the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction is a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, morals and environment and will promote humane awareness of the dog and cat overpopulation problem and, in turn, will foster a more humane environment in this jurisdiction; and

Whereas, the legislature believes also that elimination of the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction will also encourage consumers to adopt dogs and cats from shelters, thereby saving animals' lives and reducing the cost to the public of sheltering animals;

NOW, THEREFORE, IT IS ENACTED AS FOLLOWS:

Commercial retail sale of dogs and cats prohibited.

A. Definitions.

For purposes of this statute the following definitions shall apply: 

• "Animal shelter": a municipal or related public animal shelter or duly incorporated nonprofit organization devoted to the rescue, care and adoption of stray, abandoned or surrendered animals, and which does not breed animals.

• "Commercial": "relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit."

• "Retail": "the selling of dogs and cats directly to purchasers."

• "Sale": "the transfer of ownership of dogs and cats for monetary or other consideration."

• "Seller": "any person or legal entity that makes a sale."

•  "Outlet": "the place where, or through the means of which, a retail sale occurs."

• "Purchaser": "any person or legal entity that is the recipient of a sale."

• "Breeder": "any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline."

• "Mill": "a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale.
   
• "Facilitator": "any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer."  

B. Prohibition.

1. No commercial retail sales outlet shall consummate a sale of dogs or cats in this jurisdiction on and after the effective date of this statute.

2. On and after the effective of this statute no person within this jurisdiction shall purchase a dog or cat from outside this jurisdiction which has been bred in a mill.

3. Every purchaser of a dog or cat in accordance with Section 2 above shall produce for inspection by, and to the satisfaction of, animal control or similar authority a sworn written statement provided by the breeder and facilitator containing the following information: a) the name and address of the breeder and facilitator; b) when and where the dog or cat was bred; c) its general state of health when sold.

C. Existing commercial retail sales outlets. Commercial retail sales outlets existing as of the effective date of this statute may not consummate sales of dogs and cats more than 30 days thereafter.

D. Exemptions.

This statute does not apply to:

1. The sale, barter, adoption, or gift of a dog or cat made necessary because its owner can no longer care for it.

2. Surrender of a dog or cat to a publicly operated animal control facility, authorized animal shelter, or authorized private humane, rescue or similar organization.

3. Dogs or cats in the legal possession of a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization.

E. Adoption of Shelter and Rescue Animals.

Nothing in this law shall prevent an outlet that does not sell dogs or cats or other mammals from providing temporary weekend space and appropriate humane and temporary care for dogs and cats legally possessed by a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization for the sole purpose of offering such dogs and cats for adoption by the public.

F. Penalties.

1. First violation of this statute shall be punished by a fine of $1,000 per dog or cat sold or purchased.

2. Each subsequent violation of this statute shall be punished by a fine of $2,000 per dog or cat sold or purchased.

3. The fifth violation of this statute shall be punished by a fine of $5,000 per dog or cat sold or purchased, up to six months in jail, or both.

G. Separability clause.

If any provision of this statute shall be held unenforceable, the remaining parts thereof shall survive.

H. Effective date.

This statute shall become effective as provided by law.

For too many people, including some in the animal protection movement and bureaucrats at USDA and APHIS, the phenomenon of companion animal overpopulation in the United States caused largely by breeding is a mere "practical" problem to be dealt with in a "practical" way.

On the other hand, ISAR has always seen the problem as a moral one, and that the commercial retail sale of companion animals raises serious moral questions. They are addressed in Part V. 

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1 We are using the West Hollywood ordinance as the template for this Model Statute, and making such changes as are necessary to correct the deficiencies in that law, as explained at length in the Memorandum.