Makes Some Changes For Commercial Breeders While

by JOHN YATES

The American Sporting Dog Alliance

http://www.americansportingdogalliance.org

HARRISBURG, PA – A deal has been cut to hold back new regulations that will affect all of Pennsylvania’s 2,600 licensed kennels in order to push through legislation calling for tougher rules for large commercial breeders, penalties that have the potential to destroy the lives of all dog owners for even minor infractions, and rules of prosecution that throw the Bill of Rights in the trash can.

The 82-page-long legislation was written under the direction of Gov. Ed Rendell, and will be introduced into the Legislature by Rep. James E. Casorio, D-Westmoreland County.

Rendell has vowed to tighten the rules for what he terms “puppy mills,” and has kept his promise in this legislation. However, the legislation also sets up a framework to enforce the kind of irrational and unworkable regulations that were the centerpiece of previous draft versions. Regulations would affect every kennel.

It is important to understand the difference between laws and regulations. Legislation leads to laws. Laws enable a department to create regulations that actually implement a law. In the case of this bill, regulations for large commercial breeders are written into the law, but regulations that will have a major impact on all of Pennsylvania’s 2,600 licensed kennels are being kept hidden in the shadows.

We are not merely speculating about the hidden regulations. Annual fees for kennel licenses have been removed from the legislation, and regulations will be required to create license fees simply to pay for the operating costs of the Bureau of Dog Law Enforcement.

The American Sporting Dog Alliance has obtained copies of the Rendell/Casorio legislation, a letter from Casorio to other legislators seeking cosponsors, and documentation about the deal to hold back on the regulations until there is a new law.

Nirvana For The Prosecution

The legislation provides a multi-tiered structure of fines, penalties, license revocations, dog seizures and confiscations that in many cases deny an accused person his or her day in court.

In addition, constitutional protections that require probable cause to obtain a warrant to search a person’s home, land, building, personal records and even her or his children have been discarded.  The Constitution has been replaced by a prosecutor’s dream definition of “probable cause” as either following a Bureau plan for enforcement or a simple belief by a dog warden that there may be a violation.

The legislation gives the Bureau of Dog Law Enforcement the power to revoke licenses, confiscate dogs and levy penalties of up to $1,000 a day, even for someone who is later found not guilty in a court of law. The Bureau also would be given the power to levy those penalties and confiscate dogs without even filing charges against a person who is accused of a violation.

In the tradition of American jurisprudence, an accused person is presumed to be innocent unless she or he is found guilty in a court of law, with the constitutionally guaranteed right to a trial by a jury of peers. The burden of proof is upon the prosecution.

The new kennel legislation pitches those constitutional guarantees into the gutter.

An accused person’s fate rests entirely in the hands of the dog warden, the Bureau that employs the dog warden, and an administrative panel or law judges who are employed by the Bureau. An accused person is required to prove her or his innocence – in fact, he or she must convince his accusers in order to have the charges and penalties dropped or reduced.

This legislation thus attempts to transform the Dog Law Bureau into the judge, jury and hangman.

We strongly support stiff penalties for people who evade kennel licensing requirements, but also oppose the administrative procedure contained in the legislation that would eliminate standard rules of evidence, due process under the law and other protections guaranteed by the Bill of Rights.

The legislation imposes civil penalties of $500-to-$1,000 per day, which are fair for flagrant and willful violations, but denies an accused person the right to defend herself or himself at a trial in a court of law where the prosecution must prove its case before a judge and jury. These basic rights are given to someone who is accused of murder or other serious felonies, and should not be denied to someone who is accused of violating the Dog Law.

An administrative hearing by the enforcement agency is not a constitutionally acceptable substitute for a trial in a court of law.

This objection is further underscored by the bill’s authorization for seizure or confiscation of an accused person’s dogs in the absence of a guilty verdict in court, and even before the decision of an administrative appeal. The issue is the assumption of innocence unless guilt is proven in a court of law, and also the right of due process under the law and protections against seizure for public purposes without fair compensation.

If dogs in a kennel are legitimately in danger, the constitutional answer is to seek an emergency injunction from the courts to protect them.

It is our position that no law or public purpose trumps the importance of the Bill of Rights and the U.S. and Pennsylvania Constitutions, and the courts have consistently affirmed this position.

Five sections of the Statement of Rights in the Pennsylvania Constitution also bear quoting, as they are flaunted by the Rendell/Casorio legislation:

Section 1 . Inherent Rights of Mankind
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Section 6. Trial by Jury
Trial by jury shall be as heretofore, and the right thereof remain inviolate.

Section 8. Security From Searches and Seizures
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable case, supported by oath or affirmation subscribed to by the affiant.

Section 9. Rights of Accused in Criminal Prosecutions
In all criminal prosecutions the accused hath a right to… a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land….”

“…nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.”

License Denials and Revocations

The legislation specifies several reasons for the denial or revocation of a kennel license, and some of them make good common sense to protect dogs and consumers. For example, a license can be denied or revoked if the applicant has been convicted of animal cruelty, has violated unfair trade practice laws relating to animal sales, or has entered into an agreement with the attorney general to cease kennel operations as a way to resolve allegations of misconduct.

Other reasons stretch common sense to and beyond the breaking point, or are unnecessarily harsh.

For example, the legislation prohibits anyone who has been convicted of a felony from holding a kennel license, and this also applies to family members and anyone else living on the land where the kennel is located. The vast majority of felony charges have nothing to do with animals, and do not indicate a predisposition to take poor care of animals.

For example, in the 1960’s and 70’s, many people were convicted of a felony for the simple possession of a marijuana cigarette. Other non-related felonies include tax evasion, draft dodging and politicians who accept bribes. We are not defending these criminal actions, but we are saying that they have nothing to do with a person’s suitability to raise animals.

Moreover, a felony conviction may have occurred many years ago, or even decades ago, and the person has paid off her or his debt to society and has been leading a law-abiding and productive life. It is customary for people to help their relatives or friends to get back on their feet after a criminal conviction. Other felons are legitimately trying to get their lives in order, and low-paying jobs such as working with animals often are the only work they can get.

A prohibition against licensing someone who has violated the rabies law is very unnecessarily harsh, as this can be based on a simple oversight or forgetfulness. Most rabies law citations are based on failure to vaccinate in a timely manner, and do not indicate a deliberate intention to evade the law or defy it.

Nothing in the simple fact of a rabies law violation would demonstrate that a person is unsuitable for owning a kennel, and few of us can claim that we never have overlooked the date for renewing our driver’s licenses, auto registrations or other governmental requirements.

The only rational grounds for denying or revoking a license based on the rabies law would be for repeated and flagrant violations.

This issue takes on greater importance, since the legislation changes current law and prohibits the owners of commercial kennels from being state-licensed to give their own rabies vaccinations. The legislation requires all rabies vaccinations to be given by a veterinarian. Previous draft regulations also would have imposed this restriction on private kennel licensees, and this provision may be contained in the new draft regulations that are being hidden from view.

In light of previous draft versions of regulations and legislation, it is hard for dog owners not to see these kinds of requirements as a deliberate attempt to find ways to close down kennels for issues that have little to do with the care of dogs.

There has not been a case of dog-to-dog rabies transmission in Pennsylvania in more than 11 years, which would make it impossible to justify this provision based on necessity. Fines for lapsed rabies vaccinations already have proven to be a very effective deterrent against noncompliance, and the current program is clearly working well.

We also question the legal propriety of the state getting involved in de facto enforcement of local zoning issues. The legislation says that licenses will be denied or revoked if an owner receives “final denial” for local zoning or other ordinances.

“Final denial” is not defined, and denials by zoning boards often are successfully challenged in courts or amended through variance or special exception processes.

In addition, local issues simply are none of the state’s business. It is an infringement upon the autonomy of local government and the courts.

Other Civil Rights Issues

Both due process and search and seizure protections are stretched beyond the breaking point by the Casorio legislation.

The requirements for kennel licensure are spelled out in the Dog Law – underscore the word “law.” Someone who fails to get a kennel license is not breaking a regulation. He or she is breaking the law.

An administrative ruling on an alleged violation is not the same as a conviction in court for breaking the Dog Law. To impose an administrative penalty in the absence of a guilty verdict or guilty plea in court thus must be seen as an end run to evade constitutional protections and due process under the law.

Breaking the law is a crime, and every American who is accused of a crime is entitled to a trial in a court of law, and by courtroom procedures established through the law. An administrative hearing is not a constitutionally acceptable substitute.

Likewise, administrative penalties are not appropriate for a violation of the law in the absence of a conviction in court. Administrative penalties for a violation of law (law – not regulation) are appropriate only when guilt has been proven in court.

This is doubly true when the seizure or confiscation of property is at stake, and dogs are legally considered to be personal property. Government is constitutionally permitted to seize or confiscate property only when the process of the law is followed, when a compelling public purpose has been established, and after the owner of the property has been offered fair compensation for his or her loss.

The legislation also would empower dog wardens to inspect every dog in Pennsylvania, as well as the home and property of the dog’s owner, at any time, for any reason and without having probable cause to suspect that the law has been violated. This applies to anyone who owns even one dog, and not just to kennels.

This provision essentially permits dog wardens to go on “fishing expeditions” to see if someone might be violating the law. It would allow a dog warden to come onto a person’s property, inspect a dog or dogs, and demand proof of having a dog license and current rabies vaccination.

The courts have consistently held that these kinds of “fishing expeditions” violate constitutional search restrictions. What the dog warden would be doing is searching your property without any reason except for the fact that you have a dog, in order to see if you might be breaking the law. The officer thus is demanding that every dog owner prove his or her innocence.

The same provision empowers dog wardens to inspect any “establishments” that meet the definition for requiring a kennel license, but this gets the cart before the horse in a thinly veiled attempt to authorize unconstitutional searches without establishing probable cause.

The only way to know if a kennel should be licensed is to make an inspection, and constitutionally this requires either the voluntary cooperation of the owner or a search warrant based on probable cause. Probable cause to obtain a search warrant would include such reasonable things as complaints from a neighbor or customer, visual observation of a large number of dogs at a distance, or hearing a large number of dogs barking.

While this complicates enforcement procedures, it is a realty that every police officer in America faces for even the most serious crimes, such as murder. It reflects our society’s commitment to the Bill of Rights as all that stands between freedom and tyranny.

Other parts of the Casorio legislation probably fall into a constitutional “gray area,” but certainly lack fairness or reasonableness.

An example of this is a provision that would empower a dog warden to demand an inspection of a kennel within 24 hours, if the kennel owner isn’t home during an initial visit for an inspection. If the owner cannot be available during that 24-hour period (which really means during the warden’s 8 a.m. to 4 p.m. working hours the next day), the Bureau can revoke the kennel license and order the seizure of all but 25 dogs in the kennel.

What makes this unreasonable (if not totally ludicrous) is that the vast majority of kennel owners do not operate full-time professional kennels. Most of them hold outside jobs and cannot be available within 24 hours, at the dog warden’s convenience.

Some kennel owners cannot get permission to take a day off of work on short notice, have vital appointments and work commitments that they cannot cancel, or may be traveling away from home on business or on vacation.

Even professionals must leave their kennels for business reasons during dog wardens’ working hours, such as to attend field trials or dog shows. Some of these business trips may be of several days’ or even weeks’ duration, and the kennel owner might not even be in the same state when the dog warden posts a notice.

Kennel helpers and family members are qualified and available to care for the dogs in the absence of the owner, but they are not qualified to answer a dog warden’s questions or go over required paperwork. If the kennel owner is traveling on business, required documents such as rabies vaccination certificates might accompany him or her on a trip away from home.

Dog wardens simply must accommodate the realities of a kennel owner’s life and business, even if it means working overtime in the evenings or on weekends, and also to be willing to wait until the kennel owner returns from an out-of-town trip.

The 24-hour inspection notice is completely unreasonable, given the realities of life. It also shows a kind of bureaucratic arrogance that is not acceptable to anyone who respects the rights of the individual and the American idea of government.

The Casorio bill also fails to differentiate between degrees of guilt.

One violation might involve a person who is willfully evading or defying the law by not getting a kennel license, which merits a stern response from the courts.

However, another violation might be a matter of a single litter being born that would push a kennel over the 26-dog threshold for required licensure the moment the puppies are born. For this kind of situation, a grace period to apply for a license would be appropriate, or possibly a “wrist-slap” summary offense fine.

The legislation also creates many new licensing categories of kennels, based on the purpose and the number of dogs that are kept. This is a good thing, in that it establishes different regulatory standards for different kinds of kennels.

However, it also creates the very real possibility of purely technical violations of the law. For example, a single litter of puppies can throw a kennel from the K-1 to K-2 class. Even if the kennel owner has a K-1 license, the Bureau has held that the kennel is not licensed if it moves into the next higher class. The penalties and confiscations provided in the legislation are draconian when applied to this kind of situation.

Commercial Kennels

The bright spot in the Casorio legislation is that it adds stronger protections for dogs that live in large commercial breeding kennels, especially in regard to requiring much larger kennel sizes than the current law and by providing more opportunity for the dogs to exercise.

In other provisions, however, ambiguous writing and undefined terms plague this part of the legislation.

A commercial kennel is defined as a kennel that sells puppies and dogs on the wholesale market to dealers or pet stores, or that sells more than 60 dogs in a calendar year. This definition is both acceptable and fair.

We applaud the parts of the legislation that double the size of primary enclosures, prohibit stacking of cages for dogs over 12 weeks of age, ban wire floors except for added “bathroom areas,” mandate much larger sizes if more than one dog is kept in a primary enclosure, and require all dogs to be given unfettered access to outdoor exercise runs that double the required sizes of the primary enclosures. Another excellent change is to allow males and females to be kept together, except when the female is in season and is not being bred. This is much safer for the dogs than the current same-sex housing requirement.

Those things are fair and good for the dogs, and this is our primary criterion in evaluating legislation.

Other good things really are restatements of current law, such as enabling dogs to stay dry and clean, protecting them from the effects of bad weather, protecting them from injury, controlling parasites, requiring veterinary care and assuring good sanitation and adequate food.

However, some of the requirements are ambiguous and open kennel owners to the threat of unfair or prejudiced enforcement. A good law must meet the test of clarity, and the Casorio bill needs some work in this regard.

The legislation does not say if outdoor or sheltered (outdoor runs and indoor sleeping areas) kennel facilities are allowed, but does require heating and cooling to keep the temperature warmer than 50 degrees and cooler than 85 degrees. This creates dangerous ambiguity.

Outdoor or sheltered facilities are very appropriate for certain breeds of dogs, such as sled dogs, herding dogs and many sporting dogs. In fact, for those kinds of dogs, indoor housing can be hazardous and potentially fatal because the dogs are not able to acclimate to the conditions they face in the work they do.

Another troubling requirement is for the entire premises to be kept clean and in good repair, with no accumulations of junk or wastes, and with weeds kept under control. The way it is worded means that a kennel owner’s entire property must be kept in those kinds of conditions.

We support this requirement, but believe there should be specific limitations on the area covered – such as within 25 feet of the kennel. The way that the legislation is written could mean that a kennel owner could be cited for normal farming operations over hundreds of acres of land.

Stored machinery, manure piles from cattle, hay barns, overgrown pastures, stored building materials, spare parts for farm equipment, stacks of firewood and organic farming practices all could be considered violations by overly zealous enforcement.

A requirement for impervious waterproofing of all structures also is unworkable, and exposes dogs to toxins. For example, a kennel might occupy only a small part of a barn or other building, but the legislation requires waterproofing the entire structure to facilitate cleaning – even a roof two stories above the dogs!

Moreover, there is no safe waterproofing treatment available on the market at this time. All available products have warning labels for toxicity, and the state has no business requiring kennel owners to expose dogs to poisonous substances that they may chew, ingest or breathe.

The legislation also prohibits commercial kennel owners from administering rabies shots, which it is now permissible to do with state certification. It must be emphasized that this requirement is being imposed in the complete absence of evidence that there are any kind of problems with the current requirements.

For large kennel owners, it boils down to a matter of greatly increased costs and demands on their time. To comply, the owner of a large kennel would have to make several trips to his or her veterinarian every month, or bring the veterinarian to the kennel at least twice a month at a minimum cost of $500 for each visit.

There is no reason for this, as rabies has not been a problem in kennels anywhere in America for more than 10 years, according to the U.S. Center for Disease Prevention and Control.

Seen it this light, the rabies requirement appears to be harassment: deliberately burdening kennel owners with pointless, time-consuming and expensive requirements that serve no purpose.

It makes sense to require a veterinary examination if a dog has a serious health problem, but it does not make sense to require annual examinations for all dogs and also for every female at breeding. This, too, appears to be harassment and a deliberate attempt to burden kennel owners with unnecessary demands on their time and significant extra expenses when there is no good reason for them.

State officials have admitted that the real reason for the veterinary examination requirement is to provide another level of “Big Brother” looking over every commercial kennel owner’s shoulders. We find this an unacceptable intrusion without good reason.

A ban on euthanasia of a dog by the kennel owner by legal methods has the very real potential to expose a dog to cruel and unnecessary pain and suffering if an emergency situation arises, especially at night or on weekends. A dog could be exposed to hours of agonizing pain during the time it takes to locate a veterinarian, get the dog to the clinic, or have the veterinarian come to the kennel.

Other Changes In The Law

Casorio’s legislation also:

• Specifically excludes field trials, dog shows and hunting events from licensure as a kennel if the dogs are accompanied by their owners. However, it does not address the issue of dogs that are being competed with by professional handlers. We believe that this must be clarified.

• Tightens requirements for the so-called humane relocation of dogs from other states into Pennsylvania. It requires out-of-state rescues to obtain a Pennsylvania dealer’s license, and also would appear to require a dealer’s license for Pennsylvania rescues and shelters that accept dogs from out of state. We support this measure because of the increased potential of dogs coming from crowded shelters to have been exposed to diseases or parasites, and because most of them are impounded strays from unknown backgrounds. We also believe that this acknowledges the fact that many rescue shelters are in reality high-volume, rapid-turnover business ventures that compete with kennels, even if they have legal nonprofit status. Thus, they should be held to commercial kennel standards. However, we would specifically exempt individuals who provide temporary rescue in their homes as part of a satellite program or because they are good Samaritans working alone or in small groups.

• Another provision requires dealer licenses for people and groups transporting dogs through Pennsylvania to other states, if they originate in out-of-state shelters or rescues. We oppose this provision because it is an unconstitutional interference with interstate commerce, subjects these transporters to a different legal standard that commercial transporters (who are exempt), and because it places an unfair burden on rescue groups while serving no purpose in Pennsylvania.

• We support a provision that would require fire extinguishers or fire alarms for all kennels.

• However, we oppose a provision that would require all kennels to have formal exercise plans approved by a veterinarian. There is no evidence that dogs in most private kennels do not receive adequate exercise. Dogs that are used in competition receive frequent exercise, and dogs in boarding kennels are there for only a short time before returning to the homes of their owners.

• Training kennels have been removed from the boarding kennel category. The kennels of most if not all professional trainers and handlers would fall under the category of a personal kennel (“K” Class).

Please contact Rep. Casorio as soon as possible to express your opinion about this legislation. Here is a link for contact information: http://www.pahouse.com/casorio/contact.asp .

The American Sporting Dog Alliance represents owners, hobby breeders and professionals who work with breeds of dogs that are used for hunting. We are a grassroots movement working to protect the rights of dog owners, and to assure that the traditional relationships between dogs and humans maintains its rightful place in American society and life. Please visit us on the web at http://www.americansportingdogalliance.org.

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