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PA Dog Law Revamp Is Prosecutor's
Dream, Civil Libertarian's Nightmare
Makes Some Changes For Commercial Breeders While
Concealing Plan For New Private Kennel Regulations
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.."
Section 10. Eminent Domain; Initiation of Criminal Proceedings;
Twice in Jeopardy
".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.
The American Sporting Dog Alliance also needs your help so that we
can continue to work to protect the rights of dog owners. Your
membership, participation and support are truly essential to the
success of our mission. We are funded solely by the donations of our
members, and maintain strict independence. |
