[ SHOWGSD-L ] Fwd: New PA Dog Legislation

  • From: Stormy435@xxxxxxx
  • To: showgsd-l@xxxxxxxxxxxxx
  • Date: Sat, 3 May 2008 20:42:24 EDT

O.K., Cathy, Fire away!   :-), Mr. Yates has some postive comments about the 
legislation throughout this article.
Storm
Please forward

Begin forwarded message:


From: "John Yates" <jtyates@xxxxxxxxxxxx
>
Date: May 3, 2008 7:08:17 PM PDT
Subject: New PA Dog Legislation

PA Dog Law Revamp Is Prosecutorâ??s
Dream, Civil Libertarianâ??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.americanhttp://www.amerihttp://
 
HARRISBURG, PA â?? A deal has been cut to hold back new regulations that will 
affect all of Pennsylvaniaâ??HARRISBURG, PA â?? A deal has been cut to hold 
back 
new regulations that will affect all of Pennsylvaniaâ??<wbr>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
 
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 â??puppy mills,â?? 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 Pennsylvaniaâ??It is important to understand the 
difference 
between laws and
  
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 personâ??s home, land, building, personal records and 
even her or his children have been discarded.  The Constitution has been 
replaced 
by a prosecutorâ??s dream definition of â??probable causeâ?? 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 personâ??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 â?? 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 billâ??s authorization for seizure 
or confiscation of an accused personâ??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 toâ?¦ 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 landâ?¦.â??
 
Section 10. Eminent Domain; Initiation of Criminal Proceedings; Twice in 
Jeopardy
â??â?¦nor shall private property be taken or applied to public use, without 
authority of law and without just compensation being first made or secured.â??
 
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 1960â??s and 70â??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 personâ??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 driverâ??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 â??final denialâ?? for local zoning 
or 
other ordinances.
 
â??Final denialâ?? 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 stateâ??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 â?? 
underscore the word â??law.â?? 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 â?? 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 dogâ??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 â??fishing 
expeditionsâ??
 to see if someone might be violating the law. It would allow a dog warden to 
come onto a personâ??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 â??fishing expeditionsâ?? 
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 â??establishmentsâ?? 
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 societyâ??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 â??
gray area,â?? 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 isnâ??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 wardenâ??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 
wardenâ??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 
wardensâ?? working hours, such as to attend field trials or dog shows. Some of 
these business trips may be of several daysâ?? or even weeksâ?? 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 
wardenâ??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 ownerâ??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 â??wrist-slapâ?? 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 â??bathroom areas,â?? 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 ownerâ??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 â?? 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 â?? 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 â??Big Brotherâ?? 
looking over 
every commercial kennel ownerâ??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

 
Casorioâ??s legislation also:
 

     â?¢     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.


 

     â?¢     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 dealerâ??s license, and also would appear to require a 
dealerâ??
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.


 

     â?¢     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.


 

     â?¢     We support a provision that would require fire extinguishers or 
fire alarms for all kennels.


 

     â?¢     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.


 

     â?¢     Training kennels have been removed from the boarding kennel categor
y. The kennels of most if not all professional trainers and handlers would 
fall under the category of a personal kennel (â??Kâ?? 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.http://www.phttp://www. .
 
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.americanhttp://www.amerihttp://.
 
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





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