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                        May 3, 2008      
 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 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.
 

PLEASE  CROSS-POST THIS REPORT AND FORWARD IT TO YOUR FRIENDS

 

The American Sporting Dog Alliance
 http://www.americansportingdogalliance.org