Demand that the USDA and APHIS modify its final Rule redefining “retail pet store” to prohibit sale of companion animals (Part I)

i Sep 15th

 

 

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 I)

 

Among other duties delegated by Congress to USDA through APHIS is enforcement of the Animal Welfare Act (AWA).

ISAR, together with many other animal protection organizations, has long objected to the fundamental premise of the AWA: That humans can do virtually whatever they want to animals so long as it’s done “humanely.” To accomplish that specious goal, the principal task of APHIS has been to license certain categories of animal-related activities (e.g., puppy mills) and then inspect those activities for compliance with the “humane” criteria of the AWA.

For the purpose of this essay, ISAR is going to put aside all of our and others’ complaints about AWA and APHIS, of which there are many, and focus solely on a recent development of crucial importance to companion animals and organizations such as ISAR whose mission is to protect those animals from abuse and exploitation.

Since the Internet became widely used, it has been too easy for companion animals, mostly dogs, to be sold by means of the Internet. Not only to be sold, but to be sold sight-unseen. 

Everyone in the animal protection movement has heard heartbreaking stories of dogs (and other animals) purchased sight unseen through the Internet, then integrated into a loving family only to become ill from existing ailments, suffer, and often die.

In 2010 the USDA Office of Inspector General conducted an audit which revealed that 80% of the breeders who were sampled had not been inspected for the health of their animals or to ascertain if they were providing humane treatment.

The breeders got away with their deplorable conduct because even though they were Internet sellers they claimed to be “retail pet stores” as defined in the previous APHIS regulations. As such, there was no APHIS oversight, nor any consumer oversight.

To deal with this serious problem, in May 2012 APHIS published a new proposed Rule to bring retail sellers under its jurisdiction. In 90 days, some 210,000+ comments from the public were received. Also, some 213,000 petition signatures were submitted by organizations on each side of the issue.

In the process of initiating and developing the proposed and final Rule, APHIS produced hundreds of pages of information and commentary.

Finally, in June 2013 APHIS published a “Regulatory Impact Analysis and Final Regulatory Flexibility Analysis to accompany a new final Rule constituting a “Revision of the Definition of Retail Pet Store.” Its Summary explains the Rule’s rationale [all following italics and bracketed commentary has been supplied by ISAR].

APHIS is revising the definition of retail pet store and related regulations in order to ensure that the definition of retail pet store in the regulations is consistent with the Animal Welfare Act (AWA),thereby bringing more pet animals sold at retail under the protection of the AWA. [Accepting for sake of argument that AWA does in fact protect animals, in APHIS’s view revising-actually enlarging — the definition of “retail pet store” will increase its protection of animals.]

To ensure that animals sold at retail receive humane handling, care, and treatment, we are revising the definition of retail pet store so that it only includes those places of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. [This sentence is awkwardly expressed. It intends to say that under the new definition a “retail pet store” can only be a “business or residence at which theseller, buyer, and the animal available for sale are physically presentso that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” As we shall see, this sentence is the core of APHIS’s redefinition of “retail pet store.” The idea is that unseen purchases of animals, primarily but not exclusively from the Internet, will be disallowed except under what APHIS considers narrow circumstances.]

We are also increasing from three to four the number of breeding female dogs, cats, and/or small exotic or wild mammals that a person may maintain on his or her premises and be exempt from licensing and inspection requirements if he or she sells only the offspring of those animals born and raised on his or her premises, regardless if the offspring of those animals are sold at retail or wholesale. [This exemption, as we’ll explain later, is intended to foster the rationale of APHIS’ redefinition].

In addition, we are removing the limitation on the source of gross income from the licensing exemption in the regulations for any person who does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats during any calendar year. [This change, as we’ll explain later, is intended to foster the rationale of APHIS’ redefinition].

This rule will primarily affect dog breeders who maintain more than four breeding females at their facilities, sell the offspring as pets, and whose buyers are not all physically present to observe the animals prior to purchase and/or to take custody of the animals after purchase. [To be explained later].

The rule may also affect some cat and rabbit breeders. While the scope of this rule applies to certain other animals, based on our experience,most retailers of animals other than dogs will meet the amended definition of retail pet store and continue to be exempt from regulation.

In other words, by redefining “retail pet store” to prevent sale of companion animals that are not physically seen by purchasers the retail pet store sellers and their operations are brought within the AWA and become subject to licensing and inspections.

Accepting for sake of argument that allowing most breeding and retail sale of companion animals is both moral and good public policy — which ISAR emphatically denies –– APHIS’s redefinition appears on the surface to serve a legitimate purpose. Assuming, of course, that APHIS’s standards for “humane” treatment are high enough, and that there is a high level of licensing requirements and inspection. And penalties for violation. ISAR remains skeptical.

As to the policy, APHIS argued that the benefits of the new Rule outweigh its costs. Among the former, obviously, is that healthier pets will be sold and thus purchasers will be spared unnecessary heartbreak and expenses. More pets will survive illness, suffering, shelters, and death. The new Rule shifts responsibility for the animals’ health from the unsuspecting buyer to the seller. Shelters and taxpayers will be spared the costs imposed by unscrupulous Internet sellers. Transfer of animal diseases, rabies for example, will be reduced.

That policy can be summarized by two words: “public oversight” — the foundational premise upon which the new Rule rests.

Part II, to be published on October 1, will discuss the nuts and bolts of the new Rule.

Help ISAR work toward the elimination of puppy mills and most retail sales of companion animals here and abroad

i Sep 2nd

HOW YOU CAN HELP ANIMALS!

 

By helping ISAR work toward the elimination of puppy mills and most retail sales of companion animals here and abroad.

 

ISAR’s supporters know how long we’ve been working to eliminate puppy mills and most retail sales of companion animals. (http://isaronline.org/site-contents/)

Now, finally, even the United States Department of Agriculture has admitted that one aspect of the puppy mill problem — the thousands of puppies shipped into this country from abroad (e.g., South Korea, China and Eastern Europe) — present a serious problem. Until now, among them at least 25% have died in transit before even reaching this country.

In mid-August of this year, after many years of ignoring the problem, according to the Associated Press “[t]he U.S. Department of Agriculture approved a regulation . . . that, starting in 90 days, will require all puppies imported to the United States to be at least 6 months old, healthy, and up-to-date on vaccinations.”

While those of us who work tirelessly for animal rights and know too well the scourge of puppy mills and most other breeders might welcome the USDA regulation the fact is that sadly it misses the mark.

For one thing, the government’s concern is not for the puppies — according to the AP usually less than 8 weeks old — but for the American consumer. That’s the wrong emphasis. Breeding of puppies generally and their importation in particular is a moral issue of animal rights, and is rooted in the philosophical premise that animals are akin to inanimate objects and thus can be treated as chairs and bowling balls (See Some Thoughts on the Rights of Animals). That’s why the puppies are crammed into crates in the holds of intercontinental airplanes with little or no concern for their wellbeing. Protecting not the helpless puppies, but the American consumer.

Second, as a practical matter, even if the new regulation was acceptable morally and legally, which it is not, it is unenforceable given the general corruption and document forgeries that the breeders’ countries are known for. To say the least, it is naïve to believe that puppy mill operators abroad (especially in countries whose populations eat dogs) will not falsify the documents required by the new USDA regulation. It requires that the puppies be “at least 6 months old, healthy, and up-to-date on vaccinations.” There is simply no way overworked, and perhaps indifferent, USDA inspectors can get behind the paperwork to acertain how old puppies are, whether they are “healthy” (whatever that means), or whether they ever received the vaccinations the regulation requires.

Third, those of us who labor in the animal protection movement know how unsuccessful USDA is in enforcing other laws within its jurisdiction pertaining to the welfare of animals. The new regulation will not be adequately enforced, if at all.

Fourth, the heralded fine of up to $10,000 presupposes that violators will be identified (in South Korea, China, and Eastern Europe countries!), fined, and then the fines actually collected — a utopian assumption that defies reality. And even if the shippers do pay a fine, why would one think they will be deterred?

An official with a national humane organization has said that the new USDA regulation “eliminates the easy access to market that foreign breeders have had for years.” Nonsense! Not only is that statement not so, but those who support the regulation have now given the shippers and USDA a fig leaf to cover the vile importation practice by making it appear that the problem has been dealt with. Indeed, an official with a national humane organization has said that by promulgating the regulation the organization and USDA “are taking steps in the right direction.”

Sorry, but that’s not the “right direction.”

There are only two “right directions.”

If American puppy-buyers are determined to support breeders by purchasing dogs (and cats, for that matter), rather than by going to a shelter the least they can do morally is make certain that the animal has not been imported. There are more than enough homeless companion animals right here in the United States.

More than more than enough.

Even more important, those purchasers should reconsider the entire breeding issue, and then support ISAR’s efforts to prohibit puppy mills both abroad and in the United States.

Working for enactment of ISAR’s Model Euthanasia Statistics Statute

i Aug 1st

HOW YOU CAN HELP ANIMALS!

 

By working for enactment of ISAR’s Model Euthanasia Statistics Statute

 

There are several ways to characterize the undeniable fact that uncountable and unwanted dogs and cats, puppies and kittens, are euthanized annually in the United States by shelters and other humane organizations: sad, disgusting, ghastly, horrendous, sickening, appalling, uncivilized, barbaric, horrific, and more. Words alone, of course, cannot begin to adequately describe the true nature and extent of the killing rooms.

Largely, the euthanasia phenomenon is attributable to the seemingly intractable problem of dog and cat overpopulation. Killing healthy dogs and cats, puppies and kittens, is a loathsome business, but apparently very necessary in the United States today as even the “No-Kill” forces reluctantly admit.

We have used the word “uncountable” above because no one, even shelters, know, or perhaps can ever know, how many dogs and cats are actually euthanized.

ISAR believes that as a matter of policy the public would be well-served — both for informational and activism purposes — if there were at least some reliable figures available on a state level of how many dogs and cats were euthanized annually.

Among other reasons, the numbers are bound to be shocking — and that knowledge could, in turn, lead activists to work even harder to promote spay/neuter, adoption, and other policies aimed at reducing the unwanted population.

In furtherance of that goal, ISAR has prepared a model statute.

ISAR Model Euthanasia Statistics Statute

A bill providing for the compiling of certain information relating to the activities of public and private animal shelters, for additional duties of the Attorney General, and for penalties.

The legislature finds as follows:

(1) That there is today in this jurisdiction a serious problem of dog and cat overpopulation which has consequences for the public fisc, health, safety, welfare, and environment.

(2) That the problem is dealt with principally by public and private animal shelters.

(3) That a principal method by which those shelters deal with the problem of dog and cat overpopulation is by euthanizing the unwanted animals.

(4) That the euthanizing of large numbers of unwanted dogs and cats annually causes public fiscal, health, safety, welfare, and environmental problems which the legislature may from time to time wish to address in legislation.

(5) That at present there are no reliable statistics of how many unwanted dogs and cats public and private shelters in this jurisdiction euthanize annually, and thus no concrete data upon which the legislature can base any legislative conclusions it may wish to draw in order to deal with the public fiscal, health, safety, welfare, environmental, and other issues presented by the euthanasia of unwanted dogs and cats.

The legislature of __________hereby enacts the following Euthanasia Statistics Statute:

Section 1. Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise.

“Animal shelter” includes all shelters for dogs and cats operated for their care, adoption, and euthanasia regardless of source of funds and whether for profit or not for profit.

“Office.” The Office of Attorney General.

“Reported year.” The calendar year for which a report is made under Section 2.

Section 2. Reporting requirements.

a) Content –– All animal shelter operators shall for each calendar, no later than April 1 of the following year, render a written report to the Office. This report shall include the following information:

(1) The number of dogs, by breed, on hand as of January 1 of the reported year.
(2) The number of dogs, by breed, on hand as of 11:59 p.m. on December 31 of the reported year.
(3) The number of cats, by breed, on hand as of January 1 of the reported year.
(4) The number of cats, by breed, on hand as of 11:59 p.m. on December 31 of the reported year.
(5) The number of dogs redeemed by their owners and not returned during the reported year.
(6) The number of cats redeemed by their owners and not returned during the reported year.
(7) The number of dogs redeemed by their owners and returned during the reported year.
(8) The number of cats redeemed by their owners and returned during the reported year.
(9) The number of dogs adopted and not returned during the reported year.
(10) The number of cats adopted and not returned during the reported year.
(11) The number of dogs adopted and returned during the reported year.
(12) The number of cats adopted and returned during the reported year.
(13) The number of dogs euthanized during the reported year.
(14) The number of cats euthanized during the reported year.
(15) The number of dogs transferred or otherwise provided to dealers and the number of dogs transferred or otherwise provided to laboratories and biological supply houses during the reported year.
(16) The number of cats transferred or otherwise provided to dealers and the number of cats transferred or otherwise provided to laboratories and biological supply houses during the reported year.
(17) The number of dogs which have escaped, died naturally, or were subject to other disposition which shall be specified.
(18) The number of cats which have escaped, died naturally, or were subject to other disposition which shall be specified.
(19) The amount of public funds and the amount of private funds, and the sources thereof, which were expended in support of the activities which were the subject of the report.

b) Method of euthanasia. — The report shall specify the method of euthanasia and the manner of disposition of the remains.

c) Form.— The Office shall develop and provide a standard reporting form. The form shall include a statement that the maker of the report certifies it to be true and correct.

d) Fee.— The office may charge a reasonable fee to cover the cost of collecting and processing the reports, which shall be available in print and online.

Section 3. Compilation.

The Office shall compile the reports on a statewide and on a county-by-county basis. Reports shall be maintained by the Office for at least ten years. Reports made under this statute shall be public records and shall be open to public inspection, and access to such reports shall not be denied pursuit to any exemption in this jurisdiction’s Freedom of Information Act or similar law.

Section 4. Penalties

a) Failure to file. — Failure to file a report under this statute constitutes [here include appropriate punishment under the jurisdiction’s civil and/or criminal laws].

b) False statement. — Any person or animal shelter who knowingly submits a false or fraudulent report or who supplies false or fraudulent information in a report commits [here include appropriate punishment under the jurisdiction’s criminal laws].

Section 5. Rules and regulations.

The Office of Attorney General shall promulgate rules and regulations to administer and enforce this Statute.

Section 6. Effective date.

This statute shall take effect immediately upon being duly approved in accordance with law.

* * *

Lest there be any question about the constitutionality of spay/neuter legislation in general, and the foregoing statute in particular, it can quickly be laid to rest. The Tenth Amendment to the Constitution of the United States gives the states (and thus political subdivisions like counties, cities, towns and villages) the power to enact virtually any laws they wish that are reasonably related to the public health, safety and welfare.

Work for the enactment of ISAR’s Mandatory Identification of Dogs and Cats Law

i Jun 16th
HOW YOU CAN HELP ANIMALS!
 
 

Work for the enactment of ISAR’s Mandatory Identification of Dogs and Cats Law

For many years ISAR has been proposing that states and various political subdivisions (counties, cities, etc.) enact legislation requiring that dogs and cats be susceptible of easy, permanent identification. Predictably, we’ve met with strong resistance. Opposition to our proposal has recently surfaced in Mexico City where mandatory ID has become part of a proposed package of animal protection laws.

The New Zealand Herald

Mexico City vets, pet owners object to animal law

10:15 AM Friday May 16, 2014  

MEXICO CITY (AP) Pet owners, breeders and veterinarians in Mexico’s capital are howling over a law passed by the city council requiring sterilization, chip implants and registration of all cats and dogs.

Veterinarian and breeder groups published full-page newspaper ads Thursday saying the law could endanger thousands of jobs at clinics, pet salons and breeding and training facilities by causing a sharp drop in pet numbers. The Mexican Dog Fanciers Federation said the law was rushed through in early May without adequate consultation.

The city of nearly 9 million people has a serious problem with strays, puppy mills, animal mistreatment and illegal pet sales.

Over a few weeks in late 2012 and early 2013, at least five people were killed by what investigators said was a pack of dogs running loose in a park on Mexico City’s east side.

But usually, dogs suffer more than humans from the lack of controls. Animal pounds and rescue shelters are inadequate, and many dogs lucky enough to have a home are confined to narrow balconies or small rooftops for much of the day.

The law, which is not yet formally enacted, would require owners to register pets, implant identification chips, use collars with ID tags, and provide animals with adequate food, water and space.

Trainers could not work with pets in public. Pets would have to be leashed in public, while children under 14 wouldn’t be allowed to walk pets alone.

Special permits will be needed to own “potentially dangerous” dogs, including pit bulls, mastiffs and Rottweilers. Those dogs would have to be muzzled and leashed in public.

The most controversial aspect is a requirement that all pets must be sterilized.

Legal breeders say that violates owners’ rights to breed animals responsibly. Worse, they say, the law could force legitimate facilities out of business, leaving puppy and kitten breeding in the hands of unscrupulous dealers who sell animals out of car trunks or from crates at street markets.

“The decision to sterilize pets should be voluntary,” said Juan Luis Martinez, administrative director of the Mexican Dog Fanciers Federation.

He said the law’s requirements, including fines from about $100 up to as much as $5,000, could lead some poor residents to abandon pets in streets or parks.

“This could encourage noncompliance with the law, or lead people to dump them in the street,” Martinez said.

 

***

 

ISAR has been unable to ascertain what arguments were made in support of the mandatory ID part of the proposed law, but there is a strong case for it, one which ISAR’s proposed statute/ordinance has been making for years.

 

MODEL MANDATORY 

IDENTIFICATION OF DOGS AND CATS

In recent years there has been an increased public awareness of something that shelters, humane societies, and animal protection advocates have known for years: There is an incalculable population of unwanted cats and dogs in America. Despite the heroic, front-line, efforts of shelters, humane societies, and animal protection advocates in caring for (and disposing of) many unwanted animals, the appalling statistic is that millions1 of them are euthanized every year. Year after year. Decade after decade. Countless millions more unwanted dogs and cats scratch out a feral existence awaiting premature deaths, or, too often, fates worse than death.

Although for decades society has wrestled with the surplus dog and cat problem, and recently municipal governments have begun to grapple with the situation, sadly, it remains clear that no overall solution has been found. Dog licensing does not affect how many canines one can possess, nor does it limit breeding, either in backyards or at puppy farms. Felines are not licensed at all. Currently, spaying and neutering is voluntary (see ISAR’s Model Mandatory Spay/Neuter Statute and its Model Adoption Sterilization Statute.) Dog and cat contraception is far from a reality, and even if feasible would remain largely, if not wholly, voluntary.

This means that society in general, and shelters, humane societies, and animal protection advocates in particular, face a hopelessly growing surplus dog and cat population. The prognosis is worsened because few people, even those in the animal rights/welfare field, understand one of the several major reasons for the surplus animal problem.

Dogs and cats that individuals want to keep and care for present no surplus problem—although they may cause a surplus problem if they are allowed to breed indiscriminately and their progeny then become unwanted. The latter are then added to the surplus population. If the progeny are dumped, and thus become feral instead of being taken to a shelter or humane society, their surplus status will compound exponentially. If these unwanted progeny live long enough to reproduce, their offspring become surplus—and so on down the years until the numbers become uncountable.

This fact suggests that a root of the surplus problem is not, as popularly supposed, the ease with which a dog or cat can be acquired, but rather the ease with which a dog or cat can consequence-free be disposed of, especially anonymously.

Acceptance of this proposition suggests a way to alleviate the surplus dog and cat problem. If ease of anonymous consequence-free disposal of unwanted dogs and cats is a major contributing factor to the surplus of these animals, it is exactly that—ease of anonymous consequence-free disposal—that must be dealt with. This is the key. If a wanted dog or cat is to become unwanted, there must be consequences for the identifiable animal’s custodian. To do that, we repeat: The custodians of such animals must be identifiable.

Solve the problem of custodian identification, and a significant step is taken toward alleviating the surplus dog and cat problem. Once the appropriate authorities know who has disposed of a dog or cat by surrender or dumping, that person must pay a price.

Essentially, apart from killing an unwanted dog or cat, there are two ways to dispose of it: by surrender to a shelter or humane society, or by dumping it. If the dog or cat has been implanted with a microchip, the custodian can be identified and a penalty assessed if appropriate. ISAR’s Model Mandatory Identification of Dog and Cats Statute is aimed at the animal that has not been chipped.

ISAR proposes a simple solution: Mandatory permanent identification of dogs and cats, stringent penalties for non-identification, and (except in hardship cases) making it costly to dispose of a healthy but unwanted dog or cat by surrender or dumping.

Without providing here the details and specific language that would constitute a statute embodying this proposal, the essence of such a law would be as follows:

At a reasonable time after birth or rescue, companion dogs and cats would be required to have a permanent, easily detectable, identification number applied by a veterinarian by means of a microchip. Willfully failing to so identify one’s animal would be punishable by a civil fine. (Think of failing to register an automobile, or for selective service.)

The animal’s identification number and other relevant information would be recorded by the state and would constitute the dog or cat’s animal’s permanent license number.

Dogs and cats impounded by animal control authorities, or otherwise brought to shelters, would be examined for their identification number. Animals lacking a microchip would receive one prior to being adopted or returned to their custodians. Penalties would be provided for (a) custodians (not rescuers) whose animals lacked an identification number, and (b) custodians (not rescuers) surrendering animals whose animals possessed an identification number. The severity of penalties would depend on why the animal was impounded or otherwise brought to a shelter, why the animal lacked an identification number, and why the dog or cat was being surrendered.

Upon the transfer by sale, gift, or otherwise of a micro chipped dog or cat, it would be the transferor’s duty to inform the state registry of the name and address of the transferee. There would be a penalty for noncompliance.

The intent of such a law is obvious: to make it difficult and costly for the custodian or possessor of a companion dog or cat to dispose of the animal by surrendering it to a shelter or humane society or dumping it.

It must be recognized, especially by the custodians of companion dogs and cats, that they are not inanimate objects, like plastic toys, to be acquired capriciously and disposed of on a whim. It must be recognized that companion dogs and cats are members of living species with whom we share this planet, that they are sentient beings whom humans have domesticated and who depend on us entirely for their well-being and survival, and that they, like us, can acutely experience fear, pain, and death. In sum, companion dogs and cats are our responsibility and we must control their numbers in order to prevent their suffering. It is as simple as that.

To those who would complain that this proposal to deal with the surplus dog and cat problem unduly interferes with the custodians’ so-called “right” to do whatever they wish with their animals, ISAR reminds them that there are already plentiful anti-cruelty and other animal protection laws on the books of every state and nationally, and that animals, like defenseless children, need, and are entitled to, protection from abuse and exploitation.

To those who would complain that the proposal sounds too expensive, ISAR contends that it would actually save much of the hundreds of millions it now costs annually to exterminate millions of unwanted dogs and cats.

To those who would complain that the proposal cannot work, ISAR answers that it must work—for it is a moral outrage to visit the sins of irresponsible custodians on helpless, innocent, dogs and cats, by systematically and relentlessly exterminating them.

1Neither ISAR, nor any other organization in the United States, has available a reliable estimate for how many dogs and cats are euthanized annually by animal shelters in this country.

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

i May 14th
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’sstatute (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.

 
 
 
 
 

Understand That Chicago’s Ban Against Companion Animal Retail Sales Isn’t A Complete Prohibition (Part II)

i Apr 15th
 
HOW YOU CAN HELP ANIMALS!
 
Understand That Chicago’s Ban Against Companion Animal Retail Sales Isn’t A Complete Prohibition (Part II)
 

 

ISAR’s chairman, Professor Henry Mark Holzer, issued the following statement:

In ISAR’s current E-Newsletter/Blog –“HOW YOU CAN HELP ANIMALS!/Understand that Chicago’s Ban Against Companion Animal Retail Sales Isn’t A Complete Prohibition“– we quoted the core provision of the recently enacted city ordinance:

Section 4-384-015 (b): “A retailer may offer for sale only those dogs, cats or rabbits that the retailer has obtained from (1) an animal control center, animal care facility, kennel, pound or training facility operated by any subdivision of local, state or federal government; or (2) a humane society or rescue organization.” (Our emphasis.)

We deliberately emphasized the word “kennel” because as we then wrote, “. . . please note that the Chicago ordinance still allows sale by kennels. ISAR opposes this breeder exemption.”

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.

Understand That Chicago’s Ban Against Companion Animal Retail Sales Isn’t A Complete Prohibition

i Mar 31st
HOW YOU CAN HELP ANIMALS!

 

Understand That Chicago’s Ban Against Companion Animal Retail Sales Isn’t A Complete Prohibition

The following announcement was recently posted on the website of the Chicago City Clerk:

MARCH 05, 2014   

From the Office of Chicago City Clerk Susana Mendoza:

Thank you! Because of your passionate support for animal advocacy, today we passed a piece of landmark legislation in the City of Chicago.

Earlier today, the Chicago City Council voted 49-1 to approve the Companion Animal & Consumer Protection Ordinance. It requires retail pet stores to source dogs, cats and rabbits only from shelters and other humane not-for-profit organizations.

The legislation cuts off a pipeline of animals from the horrendous puppy mill industry and instead moves the City to a retail pet sales model that focuses on adopting out the many, many homeless animals in need of homes in this City.

It is our hope that the overwhelming vote today will create a flood of support for similar legislation throughout the rest of the country. Again, thank you for helping make history in the City of Chicago. This truly is a change for the better and it would not have happened with you.

As ISAR’S supporters know, we have prepared our own Model Prohibition of Retail Commercial Sale of Dogs and Cats Statute.

The following are ISAR’s initial comments regarding the Chicago ordinance’s provisions, including comparisons to our Model Statute.

  1. It is great progress that one of America’s largest cities has recognized the infamous existence of companion animal mills. Too few cities have, and mills continue to crank out countless numbers of these living creatures with little or no oversight.
  2. As ISAR has stressed in the memorandum accompanying our Model Statute, it is essential that anti-retail sale legislation contain legislative findings. The Chicago ordinance commendably does, extensively.
  3. Chicago’s findings — expressed in predicate “Whereas” statements — include information about the constitutional source of the city’s legislative power; information about mills in general, and their retail impact on the city in particular; abuses suffered by animals in mills; the lack of enforcement resources and consequential operational immunity enjoyed by mills; the city’s euthanasia rate supported by apparently unimpeachable facts; costs to the city for animal care; benefit to the city, financially and otherwise, in prohibiting the conduct proscribed by the ordinance; how pet stores can prosper without selling companion animals;  consumers’ ability, despite the ordinance, to obtain a companion animal from a breeder, rescue organization, or shelter; that other cities have enacted legislation affecting sale of mill animals, some banning entirely the retail sale of rabbits no matter their source; how current federal, state, and city laws do not deal with this subject; and why it is in the interest of the city and its inhabitants to regulate the sale of companion animals originating in mills.

Based on these findings — which provide an unimpeachable factual basis upon which to rest the new law — the ordinance defines “offers for sale,” “retailer,” and “rescue organization.”

Next comes the core provision, Section 4-384-015 (b): “A retailer may offer for sale only those dogs, cats or rabbits that the retailer has obtained from (1) an animal control center, animal care facility, kennel, pound or training facility operated by any subdivision of local, state or federal government; or (2) a humane society or rescue organization.” (Our emphasis.)

In other words, there can be no retail sale of dogs, cats, or rabbits in the City of Chicago of animals that originated in a mill.

Other provisions require certain disclosures when an authorized sale occurs.

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 sale 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.

Please see ISAR’s Model Statute.

Prohibit Retail Sales of Dogs and Cats

i Jan 31st
HOW YOU CAN HELP ANIMALS!
 

Prohibit Retail Sales of Dogs and Cats

In 2009, ISAR published Our Anti-Breeding Statute. In the Introduction we wrote:

While ISAR’s [Anti-Breeding] Statute applies to all breeders, it contains certain provisions aimed specifically at the horrors of mills because they are, by far, the most inhumane kind of breeding that exists today in the United States and elsewhere in the world.

Puppy mills [and kitten factories], however, are only the first stage in the mass production and sale of dogs [and cats]. Next come the facilitators, followed by the commercial retailers who sell to the public.

That public, however, [usually] has little or no [information] just how immoral and inhumane are certain aspects of the business of commercially producing and selling puppies and adult dogs [and kittens and adult cats] as if they were inanimate objects, no different from sausages.

Not only is the factory-like commercial production and sale of dogs [and cats] by itself immoral and inhumane, the business is a leading cause of the nationwide canine [and feline] overpopulation problem. That problem, in turn, has an adverse impact not only on the animals themselves, but also on society at large. Overpopulation of dogs [and cats] has severe economic, social, political, financial, health, environmental and other consequences which are well-documented and not debatable.

Accordingly, by severely reducing the numbers of dogs [and cats] produced by breeders, brokered by facilitators, and sold by commercial retailers, the related problems of immorality, inhumaneness and overpopulation could be dealt a serious blow.

Regrettably, however, even the most aggressive educational efforts by the animal protection movement have not been powerful enough to put sufficient pressure on breeders, facilitators and commercial retailers to reduce voluntarily their production and sales of dogs, let alone to drive them out of business altogether.

That said, however, there is a way in which production, trafficking and sale of dogs [and cats] can be greatly reduced — a way in which puppy mill producers, facilitators and commercial retail sellers of dogs [and cats] could virtually be put out of business.

How, then, to accomplish this worthy goal?

The short answer — which is developed at length in this Monograph [containing ISAR’s Anti-Breeding Statute] — is through strict administrative regulation of breeders, facilitators and commercial retail sellers, coupled with harsh penalty and generous “standing to sue” provisions.

As we made clear in that Monograph and Anti-Breeding Statute, ISAR’s strict, even extreme “regulation” of breeders, facilitators and retail sellers was designed to be a virtual de facto prohibition of dealing in dogs and cats. We wrote:

Preface to ISAR’s [Anti-Breeding Statute]

The Humane Society of the United States suggests that an acceptable statute regulating a puppy breeding facility is one which

applies to all breeding operations with animals or animal sales numbering over a specified threshold; requires a licensing fee and pre-inspection; includes routine, unannounced inspections at least twice yearly; is enforced by an agency with adequate funding and properly trained and tested staff; rotates inspectors to cover different areas of the state; and is equipped with strong penalties when facilities are in repeated non-compliance, including but not limited to cease and desist orders.[1]

While these requirements impose conditions and behavior which are better than those found today in most, if not all, statutes, implicit in them are two premises which ISAR categorically rejects: (1) that indiscriminate breeding of dogs [and cats] is morally acceptable so long as it is moderately (“humanely”!?) regulated, and (2) that through such “moderate” regulation the treatment of dog [and cat] “breeding machines” can be made morally and humanely tolerable.

If another of ISAR’s monographs The Policy, Law and Morality of Mandatory Spay/Neuter, and Chapters 1, 2 and 3 of [our Anti-Breeding] monograph teach anything, they speak loudly for the proposition that there is an intractable dog and cat overpopulation problem, that the only feasible way to alleviate it today is by mandatory spay/neuter and severe regulation of breeders, facilitators and commercial retail sales outlets, and that legislation seeking to deal with the problem must be strict, comprehensive, loophole-free, and without the kinds of compromises that gut the few statutes which have been enacted and others that are now in the legislative pipelines.

In the end, dealing effectively with the breeder-facilitator-commercial retail sales outlet situation, and the dog [and cat] overpopulation problem it so greatly contributes to, is an either/or choice.

Either the dog [and cat] breeding, facilitating and sales valve is turned off almost completely, or useless and counterproductive legislative efforts will perpetuate the charade that something constructive is being done while countless millions of hapless prisoner dogs [and cats] continue to be bred, born, traumatized, abused, killed, and incinerated — and while figuratively, and often literally, our land is suffused with their wind-borne ashes.

In ISAR’s proposed [Anti-Breeding] Statute, we have made the “either” choice: ISAR proposes to turn off almost completely the dog [and cat] breeding, facilitating and commercial retail selling outlet valve, and in so doing see the dog [and cat] overpopulation problem substantially ameliorated.

Before presenting the annotated text of ISAR’s proposed [Anti-Breeding] Statute, several important antecedent points have to be made.

First. ISAR realizes that its proposed [Anti-Breeding] Statute far exceeds the prohibitions on breeding, facilitation and sales which appear in other animal protection laws, actual and proposed. ISAR has staked out its extreme position because our organization deeply believes that only very strict regulatory laws will achieve the stated goal, and if there are to be necessary compromises they must be as few, narrow, and morally and humanely defensible as possible.

Second. ISAR acknowledges that even if its proposed [Anti-Breeding] Statute were to be adopted by the federal government, or in a slightly different form by every state in America, there would still be unwanted dogs [and cats]. ISAR believes, however, that if its [Anti-Breeding] Statute accomplishes its intended purpose there would be adoptive homes for those far fewer dogs [and cats]. (In this connection, see http://isaronline.blogspot.com/2008/04/redemption-myth-of-pet-overpopulation.html).

Third. ISAR believes that while Americans have the right to enjoy the companionship and services of dogs [and cats] of their choosing, no one has either the moral or legal right to be an accessory to the tortured lives and ultimate fates that await the living reproductive machines of most breeders and all puppy [and cat] mills, and many of their offspring.

Fourth. As Chapter 2 proves, there are neither constitutional nor legal impediments to even the most restrictive breeding and sales laws. Attacks on them in court will fail if the statutes are drafted carefully and defended intelligently.

Fifth. Readers of ISAR’s [Anti-Breeding] Statute may be surprised at its comparative simplicity. There are several reasons for its comparative brevity. Since ISAR’s [Anti-Breeding] Statute could be enacted on the federal level, and thus be uniformly applicable nationwide, no provisions for state or local involvement are necessary. However, absent Congressional enactment, the statute could easily be adapted for, and enacted on, a state level. Even then, there would be no need for local involvement.[2]

Sixth. ISAR’s [Anti-Breeding] Statute is not the last word on the subject, neither from [its own text,] nor [from] any one person or other organization who can offer constructive suggestions — so long as others recognize the underlying premise upon which ISAR’s proposal is based: turning off almost completely the dog [and cat] breeding, facilitating and commercial retail sales outlet valve [emphasis in original].That is ISAR’s goal, and that iswhat it has endeavored to codify in the [Anti-Breeding] Statute.

Seventh. ISAR is well aware that our statute will be unpopular not only with dog breeders, facilitators and commercial retail sales outlets, aiders and abettors, and others complicit in the dog-trade, but also with other animal protection organizations. So be it!

ISAR’s pessimistic prediction proved correct, doubtless because our Anti-Breeding Statute challenged the root premises of commercial production of dogs and cats, from their conception to their sale at retail.

Many individuals and organizations who should know better, and from whom we expected support, have opposed ISAR’s Anti-Breeding Statute. Because the nature and quality of their objections lack consistency, let alone substance, they will not be discussed here.

On the other hand, some of ISAR’s supporters have argued for an outright ban on retail sales of dogs and cats, and have sought ISAR’s help in making the argument in support of that goal.

Accordingly, this monograph and ISAR’s “Model Statute Prohibiting Retail Sales of Dogs and Cats,” is a brief in support of that goal.[3]

That goal has become even more important because on November 18, 2013 a new rule of the United States Department of Agriculture, Animal and Plant Health Inspection Service became final. According to APHIS

USDA has changed the Animal Welfare Act regulations by revising its definition of retail pet store in order to keep pace with the modern marketplace and to ensure that animals sold via the Internet or other non-traditional methods receive humane care and treatment. USDA Animal Care has posted several materials on this webpage in an effort to provide all interested parties with pertinent information. We encourage you to please read through these materials in order to: 1) gain a better understanding of this regulation change; 2) learn the reasons that prompted the change; and 3) see if you need a USDA license or if you are exempt from licensing.

As ISAR will explain in a forthcoming monograph, the deficiencies in APHIS’s regulation of pet shops and those associated in the sale of companion animal are so glaring and counterproductive that the only humane solution is, as ISAR’s model statute proposes, outright prohibition of retail sale.

Supporters of ISAR’s prohibitory cause need only find a legislator (on any level of government — village, town, city, county, state) — who will introduce ISAR’s “Model Statute Prohibiting Retail Sales of Dogs and Cats” and fight like a tiger (no pun intended) for its enactment.

—————————————————————————-

[1] State Legislation, Humane Society of the United States, available at http://www.humanesociety.org/about/departments/legislation/state_legislation.html. Subsequent to 2009, HSUS apparently reworked the text to which this link refers. Please see, http://www.humanesociety.org/about/departments/legislation/state_legislation.html for further information.

[2] In addition, compromises and exemptions which always require considerable verbiage to accommodate, have been held to a bare minimum, unlike in the recent unlamented California “mandatory” spay/neuter statute which, until its demise at the hands of compromisers and lobbyists, attempted to accommodate various anti-mandatory spay/neuter constituencies and in doing so turned itself inside out.

[3] Please note that throughout [the] Monograph 12-point Georgia font has been used. The same specifications apply to the text of ISAR’s Model Statute. However, in order to identify ISAR’s annotation of each section of the West Hollywood ordinance and our Model Statute, ISAR’s comments appear immediately after each section in 12-point Courier font, in which this sentence is written).

Another Municipal Adoption of Mandatory Spay/Neuter

i Oct 15th
HOW YOU CAN HELP ANIMALS!

Another Municipal Adoption of Mandatory Spay/Neuter

On October 1, 2013, the Georgia city of Macon enacted a “mandatory” spay/neuter law. It requires that dogs and cats over the age of six months, within city limits be sterilized. In principle, the city’s motive (reducing overpopulation and killing) is commendable and ISAR supports it. The ordinance is an explicit acknowledgement of the overpopulation problem, and an attempt to deal with it in a humane and practical way. (According to a Macon City Councilman, the city has been euthanizing four to five thousand stray animals a year.) Indeed, the Macon ordinance reflects some of the provisions originally propounded by ISAR in its Monograph entitled “The Policy, Law and Morality of Mandatory Spay/Neuter.”

However, the Macon ordinance contains the same defect found in virtually every other so-called “mandatory” spay/neuter law: a categorical exemption for those holding a valid unaltered animal permit, which can be obtained for designated breeders, hunting dogs, businesses which board such animals for training or resale, dogs or cats which are registered with the American Kennel Club, the Cat Fancier Association or other recognized registry. As ISAR explains at length in our Monograph, exemptions in so-called “mandatory” spay/neuter laws, especially for breeders, gut those enactments and do little to reduce the overpopulation problem.

As ISAR’s Monograph and Model Statute prove, a (if not the) major culprit in the overpopulation problem is the breeder, especially the commercial manufacturers of puppies and kittens who operate “farms” at which these unfortunate animals are produced like sausages on an assembly line.

Obviously, as usual with “mandatory” spay/neuter laws, the Macon ordinance was the product of compromise — unfortunately a typical ingredient of the legislative process. Until compromise at the expense of animals is wrung out of the system at the insistence of voters, we will continue to get laws which are “mandatory” except when they are not.

Once again, breeders get a pass.

Although there is a sad irony here — breeders are a major cause of the overpopulation problem, that the Macon ordinance seeks to ameliorate — the law as enacted is a giant step in the right direction, in at least two respects.

First, the ordinance represents a municipal judgment that enough is enough, and that the fate of unwanted dogs and cats, and the problems they cause through no fault of their own, is no longer socially acceptable in the City of Macon, Georgia.

Second, other than the breeder exception, conscientious enforcement of the ordinance should help dry up a large number of the city’s strays, and significantly reduce the number of those yet to be born.

The City and its officials deserve the gratitude of all of us who understand the tragedy of dog and cat overpopulation, and the unspoken thanks of those who cannot speak for themselves.

Focusing On Mandatory Spay/Neuter Programs

i Aug 26th

This Sunday, August 29, 2010, the DogsInDanger Radio Hour will focus on Mandatory Spay/Neuter Programs. ISAR’s Chairman, Professor Henry Mark Holzer will be a guest during their 1:00 – 2:00PM EST time slot. Tune in to AM970 The Apple NY or visit the DogsInDanger website www.dogsindanger.com to listen in! Simply click the “Listen Live” button on the home page and be sure your speakers are turned up!A podcast of Sunday’s radio show will be available on the home page of the DogsInDanger website for a whole week beginning on August 30th.