A set of bills introduced in the New Jersey legislature would dilute funds from the decades-long spay neuter program overseen by the Department of Health, to the detriment of pets and their owners.

New Jersey bill S883 and sister bill A 2197 would authorize the New Jersey Motor Vehicle Commission “to issue special Humane State license plates . . . [and] [a]fter the deduction of the cost of designing, producing, issuing, renewing, and publicizing the plates and of any computer programming changes that are necessary to implement the license plate program, in an amount not to exceed $150,000, the additional fees will be deposited into a special non-lapsing fund known as the ‘Humane State License Plate Fund”’ that will be appropriately annually to the Animal Welfare Federation of New Jersey (AWFNJ).  http://www.njleg.state.nj.us/2018/Bills/S1000/883_S2.HTM

The funds are mandated “to be used to provide grants to county societies for the prevention of cruelty to animals for the shelter and care of animals.”

While the bill was reported from the Senate Budget and Appropriations Committee, Senator Sarlo, Chair of that committee voted no, saying that he is opposed to this bill, like all others establishing a special license plate, because they all cost the taxpayers money.

Here, there is additional concern because New Jersey has a pre-existing special license described above, established during the Florio administration.  I remember attending the bill signing at Drumthwacket, the official residence of the governor of the State of New Jersey.  The “Animal Friendly” license plate, which debuted in 1994, helps fund “the animal population control program. . . [which] provides low cost spaying and neutering for thousands of pets and encourages the adoption of thousands more each year in New Jersey.”

If enacted into law, this new special plate will dilute the existing animal population program, which had, as of 2012, aided in the spaying and neutering of more than 192,000 cats and dogs, according to then Commissioner of Health, Mary E. O’Dowd.

The funds raised through the [program] support[s] the spay or neutering of dogs and cats adopted from New Jersey shelters, pounds and rescue groups, as well as those owned by persons on public assistance programs.

This fund has been historically popular but runs out of money quickly-many needy families are unable to benefit from the program.

An added benefit of the spay-neuter program, is that it introduces new pet owners to their local veterinarian (who performs the surgery at a greatly reduced fee) and establishes a veterinarian-client-patient relationship that serves as a basis for lifelong veterinary care.

If the State is interested in providing additional funding for animal welfare concerns, this pre-existing program could benefit from additional funds, or perhaps be expanded to assist pet owners without sufficient means provide veterinary care to their pets throughout their lives.

The unfortunate and misguided bans of sales of professionally and purposely-bred dogs throughout the United States (which as previously described violates the constitutional rights of many and exposes people and pets to a host of infectious, sometimes deadly diseases), reveals a dearth of objective and science-based research about the welfare of dogs (and puppies) historically provided to the public from breeders through pet stores compared with the welfare of these pets sold (aka adopted) through rescue and shelter channels.

Fortunately, through the work conducted at universities, including, for example, Purdue University’s Center for Animal Welfare Science (“CAWS”), and Mississippi State University College of Veterinary Medicine, peer-reviewed, science-based research is underway and the results published.

At Purdue’s CAWS, researchers “facilitate the well-being of animals using sound science and ethics to investigate and promote the best animal care and management practices.”

Dr. Candace Croney and her research group, study the “Welfare of Breeding Dogs.”

The welfare of dogs housed in commercial breeding facilities is of great public concern.  However, little research has been performed to examine the welfare status of the dogs on-site at kennels, characterize the nature and extent of welfare problems experienced, and explore solutions. We are developing tools to evaluate the behavioral and physical welfare of commercial breeding dogs and create practical recommendations to improve their lives and those of their puppies.

In addition to studying techniques and practices used by dog breeders, the group also studies the multi-factorial issues involved when people chose to adopt or purchase a new dog.  Researchers conclude, as reported in “Factors that impact dog selection and welfare:”

Dogs are not selected based on a single factor. While animal shelters and rescue organizations work hard to encourage the adoption of the dogs under their care, they may not be able to meet the demand for purebred dogs. This demand creates the need for a solution that balances consumer freedom of choice as to where (and how) to obtain a dog with ethical concerns about procuring dogs from sources where animal welfare is not adequately protected.

Notably, the paper also identifies the fact that, regardless of the source, pets can experience varying levels of welfare.  Increasingly, as shelters are pressured into decreasing numbers of animals euthanized (a laudable goal, when properly implemented), shelter residents are moved from shelter to shelter or rescue or even adopted out, even when behavioral and/or medical abnormalities exist.

A study recently conducted at the MSU College of Veterinary Medicine attempted to take a sharp, science-based look at brick and mortar shelter populations in the United States.

One of the authors (Kimberly Woodruff) noted:

For many years, people have quoted numbers of animals going in and out of shelters, but there’s never really been any research behind them . . .Even beyond that, nobody really knows how many shelters are in the United States. There’s no official registry for shelters and no group providing oversight. Shelters can be anything from a few kennels to a huge facility that adopts out thousands of animals a year.

As previously discussed, the National Animal Interest Alliance has been tracking the movement of dogs and cats into and out of shelters, using data obtained from government agencies, and reporting this information on the NAIA Shelter Project.

Both the MSU research and the Shelter Project are hampered by the unreported movement of pets through rescue organizations, which are often completely unregulated, are not required to register or obtain a license to function, and do not report animal movement to any agency.  Some states have adopted laws governing these entities, including those in the Northeast, like Connecticut and Rhode Island, where so many transplanted pets are relocated.

As the MSU study discussed, concerns about the spread of diseases and pests through adoption networks must be addressed:

‘For example, there are a lot of dogs moving out of the Southeast and into other regions,’ [researcher] Smith said. ‘Well, this is a highly endemic heartworm disease area, we possibly could be transporting heartworms across the country. That means we need to do due diligence to control that disease. We may need to ask those shelters about how they’re addressing heartworm disease and other regional diseases.’

You have likely heard about the recent attempt by an individual to board a flight with a peacock who purportedly served as an emotional support animal.  See, e.g., “Woman denied emotional support peacock on United Flight.

United has published current rules regarding Psychiatric/Therapeutic/Emotional Support Animal Authorization on its website, which indicates that changes to the current requirements will be forthcoming:

Pursuant to the Department of Transportation (DOT) guidance for the carriage of service animals, United requires a passenger with a qualified disability traveling with a psychiatric/therapeutic/emotional support type animal to obtain documentation from their medical/mental health professional.

This form is only valid for travel between now and February 28, 2018; additional documentation will be required for travel on or after March 1, 2018.

Other documentation may be required for travel entering or exiting an international location.

United requires service animals to be “properly harnessed for the duration of the flight. Small animals may remain in the passenger’s lap during the flight. If a carrier will be used, it must meet the USDA guidelines and fit under the aircraft seat.”

Notably, the airline also states that animals “must be trained to behave appropriately in a public setting. Animals found not to have been trained to behave will only be accepted in accordance with United’s current pet policies or may be denied boarding.” (Emphasis in original).

 

There is additional information on United Airlines’ Service animals webpage:

Beginning March 1, 2018, United will require additional documentation for customers traveling with an emotional support animal. Currently, customers must provide 48 hours’ notice to the Accessibility Desk and a letter from a licensed medical/mental health professional. For travel on or after March 1, customers will need to also provide a veterinary health form documenting the health and vaccination records for the animal as well as confirming that the animal has appropriate behavioral training.

Additional information and forms will be available soon, so please continue to check united.com if you have upcoming travel with an emotional support animal. The process for trained service animals is currently not changing.

We have published several blogs about legal requirements and provisions governing the use of service and emotional support animals.  Individuals with legitimate disabilities may be disadvantaged by those who want to travel with their pets but have no legitimate disability or emotional disorder.  Since specific certification is not required for service or emotional support animals, but a plethora of websites offer registration, vests and identification cards provided for a fee and based on the honor system, it is easy for people to fake it.

The U.S. Department of Transportation has published a comprehensive “Service Animal Definition Matrix—Air Carrier Access Act vs. Americans with Disabilities Act,” dated July 1, 2016, that includes helpful definitions, questions and answers summarizing information about:

  1. The Air Carrier Access Act (ACAA) and 14 CFR Part 382;
  2. DOJ’s interpretation of Americans With Disabilities Act (ADA);
  3. FRA’s interpretation of Americans With Disabilities Act (ADA) 49 CFR 37.3;
  4. FTA’s interpretation of Americans with Disabilities Act (ADA) 49 CFR 37.3, 37.167(d); and
  5. HUD’s FHAct and/or Section 504.

In addition to definitions based on the above-mentioned categories, helpful questions and answers are included in the matrix, including, for example:

  1. Should disability mitigation training for the animal be required as a condition of access?
  2. Should public access training for the animal be required as a condition of access?
  3. Should the rule designate eligible species and, if so, what species should be allowed? Should the rule allow certain species to travel as service animals subject to certain restrictions (such as remaining contained during flight)?
  4. What requirements should the rule impose to prevent fraud in the documentation process.

This matrix, while not legal advice, should be helpful to airline and other carriers considering whether to amend their policies regarding travel with emotional support animals.

It may be worth considering policies to permit pet owners to purchase seats for certain pets, with reasonable requirements for health and behavior, since it is likely that many people would pay for these tickets, if available.

Just a quick update about some recent blogs describing proposed bills in New Jersey.

Governor Christie pulled the plug on the NJSPCA signing S3558 into law which removes the association’s law enforcement authority.

Nosey’s bill (S2508), which would have threatened the continued existence of zoos and  other educational  facilities in New Jersey, based on its overly broad definitions, was pocket vetoed, as was Sweeney’s Animal Abuse Registry bill-S2295 substituted by A3421.  

Nosey’s bill was prefiled for the current legislative session (A1923) and was Introduced and Referred to Assembly Agriculture and Natural Resources Committee.

At least 2 animal abuse registry bills have been prefiled as well (A376 and AA719).

There were more than 200 animal-related bills introduced last session in the New Jersey legislature according to Tom Leach who tracks bills as the Executive Director of the New Jersey Association of Biomedical Research.

There is no reason to expect this to change.

Carolyn D. Richmond, Ernest E. Badway and Jason B. Jendrewski write:

Blind man and a guide dog in role of service animalBeware: service dog fraud will not be tolerated in New York State, which recently passed a law prohibiting the misrepresentation of service dogs. The law, effective December 18, 2017, makes it unlawful for any person to knowingly affix to any dog any false or improper tag identifying the dog as a guide, service, therapy or hearing dog. Violations of the law could result in a fine of up to $100 and up to 15 days in jail.

Many persons with disabilities use service animals (typically trained dogs) to assist them in performing important tasks that enable them to fully participate in everyday life. Service animals play an increasingly important role in our society, and the tasks these animals are trained to perform are broad and not necessarily obvious, such as guiding persons who are blind. For example, service animals may alert a person with diabetes that his or her blood sugar has reached high or low levels or detect the onset of a seizure for a person who has epilepsy.

Under federal, state and local laws, persons with disabilities are permitted to be accompanied by service animals in all public areas of places of public accommodation, such as restaurants and retail stores, at no additional charge or condition (even if animals are prohibited by state or local health codes). However, there are concerns that people are taking advantage of these important laws and abusing their protections. The intent of New York State’s new law is to curb such abuse and to deter individuals from engaging in service dog fraud.

While this law is an important and positive development, businesses should be mindful that it does not broaden the scope of permissible questions that their employees may ask of patrons. Employees may ask only a limited number of questions to assess whether they are required to allow an alleged service animal to enter the premises. For example, if it is not obvious what service an animal provides, an employee may ask a patron if the service animal is required because of a disability. An employee may also inquire about the work or task that the service animal has been trained to perform. Employees should ask these questions only if necessary and should not ask any other questions. Importantly, employees should not inquire about the patron’s disability, require medical documentation, require a special identification card or training documentation for the service animal or ask that the service animal demonstrate its ability to perform the work or task.

While the new state legislation prohibits persons from applying false or improper identification tags, under the federal Americans with Disabilities Act, service animals are not required to wear an identification tag, or any vest, patch or harness identifying the animal as a service animal. Accordingly, businesses should not deny any service animal entry based on any lack of identification, as it is not required under the law. Only in very limited circumstances may a service animal be excluded, such as if the service animal is out of control (and the handler is unable to control it) or the service animal is not housebroken. In these events, businesses should offer alternative methods for providing their goods and services to the patron with a disability.

The new law should serve as an important reminder for businesses to ensure that they have comprehensive policies and procedures in place for dealing with service animals and for accommodating persons with disabilities. We suggest that businesses review those policies and procedures with counsel and train their employees regarding these issues, including the proper manner for determining whether an animal qualifies as a service animal. Additionally, while not necessarily required by law, businesses may want to consider installing signs stating that service animals are permitted to enter their establishments.


Carolyn D. Richmond is a partner and chair of Fox’s Hospitality Practice Group, and former co-chair of its Labor and Employment Department. She is based in the New York office.

Ernest E. Badway is a partner and co-chair of the firm’s Securities Industry Practice, based in New York.

Jason B. Jendrewski is an associate in the Labor & Employment Department, resident in New York.

While rescue and adoption have largely replaced traditional pet sales, these marketing channels have increasing risks, especially since the “no-kill shelter” movement is being promoted by many.

In addition to risk from infectious, contagious diseases, sometimes fatal, there are risks from the adoption of dogs with known behavioral abnormalities, including predatory aggression.

As reported in the Zanesville’s TimesRecorder by Shelly Schultz in “Vet confronts commissioners about conditions at dog adoption center,  a veterinarian responsible for oversight at an animal shelter—Dr. Brian Williams—expressed his concern about dogs being adopted despite his risk-based assessment of their behavior.  As the National Animal Interest Alliance posted about Dr. Williams concerns, adopting out dogs known to be aggressive, creates “an immediate risk to public safety . . . [and] also threatens the mission of rescue as a whole.”

Unfortunately, the adoption of aggressive dogs has been reported to me a number of times.  In many cases, the dogs are immediately re-adopted to unwitting families even after viciously attacking and injuring the previous adopter.

As Dr. Williams observed, there are some dogs that are not suitable as pets for most people, based on their known aggressive behavior.   A shelter or rescue can attempt to rehabilitate such dogs, but even so, should inform any potential adopter about the complete medical and behavioral history and strongly consider euthanasia if the dog cannot be placed in a home without risking injury to humans or other animals.

For more, read the TimesRecorder article and NAIA’s blog.

NJ Bill S3558, which strips the NJ Society for the Prevention of Cruelty to Animals (NJSPCA) of law enforcement authority, passed both legislative houses and only awaits the Governor’s signature or his failure to veto before becoming law.  As previously discussed, this measure is long overdue, as animal rights advocates, animal welfare organizations, animal-related businesses and animal owners all agree.

Two NJ State Commission Reports concluded that the “gun-carrying wannabe cops” who serve as agents of the NJSPCA, are running a dysfunctional organization that fails to enforce the animal cruelty laws the agency was established to enforce more than a decade ago.

Based on my experience, first as a private veterinary practitioner, then as the Director, Division of Animal Health, New Jersey Department of Agriculture and the N.J. State Veterinarian, and currently as an animal law attorney, the NJSPCA fails to adequately and promptly investigate animal cruelty cases, and instead abuses its law enforcement authority by impermissibly intimidating and victimizing animal owners and welfare organizations to advance its own interests and not for any legitimate animal protective purpose.

That is why it is long past time to amend and update the State’s animal cruelty laws and place law enforcement authority solely within local and county law enforcement agencies.

For those agents and members of the NJSPCA who are dedicated to preventing animal cruelty, there will be opportunities to provide assistance under the new legal scheme.

Hopefully, the Governor will end his term with the historic and long-awaited act of advancing the protection the State provides to animals by requiring professional law enforcement agencies to enforce the animal cruelty laws instead of the ineffective volunteer organization that has failed to do so for years.

 

As they had promised, the Nonhuman Rights Projects, Inc. (the “petitioner”) filed another petition seeking personhood rights through a writ of habeas corpus for 3 elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.

Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017.

Relying on expert testimony, by way of Affidavits, petitioner alleged that elephants, including the subjects of its petition “are autonomous beings who live extraordinarily complex emotional, social, and intellectual lives and who possess those complex cognitive abilities sufficient for common law personhood and the common law right to bodily liberty protected by the common law of habeas corpus, as a matter of common law liberty, equality, or both.”  Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. LLI-cv-17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017).

The court described the issue at hand which it summarily dismissed:

The issue is whether the court should grant the petition for writ of habeas corpus because the elephants are ‘persons” entitled to liberty and equality for the purposes of habeas corpus.  The court denies the petition on the ground that the court lack subject matter jurisdiction [based on lack of standing] and the petition is wholly frivolous on its face in legal terms.”  Id.

On the issue of standing, under the “next friend” theory, the court opined”

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [holding] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.”  Id. (emphasis in original).

On its website, the petitioner states :

we are studying the decision and will likely either seek to amend our habeas corpus petition to add a sentence stating that Minnie, Karen, and Beulah have no significant relationships with anyone able to to file a habeas corpus action against their captors or we will refile our lawsuit so that our petition includes this sentence.

Under the “frivolous” prong, the Court found:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find [that there is a possibility or probability that the Court would find that an elephant is a legal person entitled to those same liberties extended to humans].

The Court “points the petitioner to this state’ laws prohibiting cruelty to animals” but that is not petitioners’ goal-it is instead to “help build a national and global movement to win legal personhood and rights for nonhuman animals.”  See NHRP, Inc.

In civil litigation, when a court finds one party has filed a frivolous lawsuit against another, at least in federal court, the victimized party may request sanctions, in certain circumstances.  See, generally, Fed. R. Civ. P. 11.  Should petitioner, now that it has been on notice that at least this Court has determined that its petition is “frivolous” be required to pay for the cost of subsequent litigation or will citizens be required to fund such cases in the future?

S2508, Nosey’s Law, which “prohibits use of elephants and other wild or exotic animals in traveling animal acts” was passed by both houses in the N.J. legislature on January 8, 2017 and is headed to the Governor’s desk.

The bill, if signed, would put many of the state’s zoos and other businesses that include educating the public about amazing exotic species, out of business.  Therefore, hopefully, it will be vetoed by the Governor as one of his last official acts.

The bill was amended before the final vote to include banning “other wild or exotic animals” in addition to “elephants” from use in traveling animal acts.

The definitions of “Mobile or traveling housing facility.” “Performance,” and “Traveling animal act” make this bill extremely problematic and would have devastating and unreasonable results:

  1. As used in this section:

     “Mobile or traveling housing facility” means a vehicle, including a truck, trailer, or railway car, used to transport or house an animal used for performance.

“Performance” means any animal act, carnival, circus, display, exhibition, exposition, fair, parade, petting zoo, presentation, public showing, race, ride, trade show, or similar undertaking in which animals perform tricks, give rides, or participate as accompaniments for the entertainment, amusement, or benefit of a live audience.

“Traveling animal act” means any performance which requires an animal to be transported to or from the location of the performance in a mobile or traveling housing facility.

 

Based on these definitions, any wild or exotic animals transported to one of the state’s zoo’s or exotic animal exhibits would be banned.

This includes the Cape May Zoo, the Camden Aquarium, and Great Adventures, to name a few.

And the type of animals to be banned, based on the definitions promulgated by NJ DEP include:

          ‘Exotic mammal, bird, reptile or amphibian,’ [which] means any nongame species or mammal, bird, reptile or amphibian not indigenous to New Jersey.

‘Wild bird” means any bird other than a native, introduced, or feral game bird as defined in N.J.S.A 23:4-49 and other than a domesticated bird such as a chicken, turkey, guinea fowl, goose, duck, pigeon, or peafowl. ‘Wild bird’ also means the egg of a wild bird.

N.J.A.C. 7.25-4.1, et seq.

DEP requires permits for owners of exotic mammals including ferrets, llama, and exotic sheep or goats (undefined).  While llama, sheep and goats (and ratites) are also considered livestock, they would still be banned from exhibitions, including state and county fairs under the provisions of this bill.

Wild and exotic bird eggs, transported for incubation, even if to preserve endangered species would also be banned.

 

Such unintended consequences of this bill can only be addressed if it is vetoed.

This is the time of the year than many consider donating to a worthy cause.  Here are a few organizations that exist to help unwanted, aged and retired horses find homes and veterinary care.

The Unwanted Horse Coalition “is a broad alliance of equine organizations that have joined together under the American Horse Council to educate the horse industry about the problem of the unwanted horse.”

The Unwanted Horse Colaition:

grew out of the Unwanted Horse Summit, which was organized by the American Association of Equine Practitioners and held in conjunction with the American Horse Council’s annual meeting in Washington, D.C. in April 2005. The summit was held to bring key stakeholders together to start a dialogue on the plight of the unwanted horse in America. Its purpose was to develop consensus on the most effective way to work together to address this issue. In June 2006, the Unwanted Horse Coalition was folded into the American Horse Council and now operates under its auspices.

Another nonprofit, A Home for Every Horse,

created in 2011, is the result of a partnership between the Equine Network, the nation’s leading publisher of equine-related content, and the Unwanted Horse Coalition. The AHFEH program helps connect rescue horses in need of homes with people looking for horses. Registered 501(c)(3) rescue organizations can list their horses for free on Equine.com, the world’s largest horse marketplace, where they can be seen by 300,000 visitors each month.If that is the case for you, I invite you to consider donating to the Ryerss Farm for Aged Equines, a nonprofit that has been dedicated to providing a home to horses that have no other home.

Ryerss Farm for Aged Equines “is the oldest non-profit horse sanctuary in United States and provides a haven for horses of all breeds, sizes, and walks of life. The residents of the 300-acre farm are primarily retired horses—aged 20 or older—many with chronic health issues. Upon arrival, all veterinary care, farrier care, dental care, food, bedding, and shelter is provided for the rest of the horse’s life.

Ryerss Farm’s mission includes:

caring for aged, abused or injured horses, providing a home where they can spend their golden years out to pasture.  The horses at Ryerss are never worked, go to auction or are used for experiments.  They simply spend their days grazing and enjoying life with their friends, as part of the herd.

Ryerss Farm received the 2017 Lavin Cup, an award “[k]nown as the American Association of Equine Practitioner [AAEP]’s equine welfare award . . . [which] recognizes a non-veterinary organization or individual that has distinguished itself through service to improve the welfare of horses.”

As AAEP noted:

Ryerss’ legacy began in Philadelphia in 1888, established by Anne Waln-Ryerss who was a passionate advocate for the city’s abused and neglected horses. The first horse arrived on the farm in 1889 and Ryerss’ early residents were old hunters, ponies, workhorses, and retired horses that used to pull Philadelphia’s fire engines. Ryerss is open to the public daily and receives approximately 5,000 visitors each calendar year.

The Unwanted Horse Veterinary Relief Campaign was established by Merck Animal Health and the American Association of Equine Practitioners Homes “to help the overburdened equine rescues and retirement facilities provide healthcare so they can rehabilitate, revitalize and, ultimately, re-home America’s unwanted horses.”

Through the Unwanted Horse Veterinary Relief Campaign ” qualifying equine rescue and retirement facilities can receive complimentary equine vaccines for horses in their care, protecting the horses’ health and making them more adoptable.”

For veterinarians and equine rescue organizations who want more information about this program, please visit The Unwanted Horse website.