New Jersey proposed bills S2037 and A1050 would revise the State’s “equine animal activities law in accordance with recommendations of New Jersey Law Revision Commission to clarify responsibility and liability issues.”

The New Jersey Law Revision Commission issued its final report on May 22, 2014 in which it:

[r]ecommend[ed] . . . modification of current statute to address an issue raised by the 2010 New Jersey Supreme Court in Hubner v. Spring Valley Equestrian Center[, 203 N.J. 184 (2010)]. The Court found that the Act’s assumption of risk provisions conflicted with the exceptions to limitations on operator liability. Accordingly, the Act’s assumption of risk provisions have been consolidated and new language emphasizes affirmative duties and responsibilities of equestrian activities operators and participants.

The bills incorporate the Commission’s recommendations which clarifies the responsibility of both the equine operator and participants, similar to sections in sister laws governing skiing and rollerskating.

It looks like this is the second legislative session these bills have been introduced to the New Jersey Legislators.

Historically the equine industry in New Jersey has had a significant economic impact in the State. The Commission, citing reports from Rutgers Equine Science Center stated

[t]he New Jersey equine industry, which is home to 42,500 horses, is valued at $4 billion…producing an annual economic impact of approximately $1.1 billion…and 13,000 jobs. Horses are found on 7,200 facilities in every county statewide which maintain open space of 176,000 acres, which in turn provides an enhanced quality of life for New Jersey residents. Horse operations tend to be more sustainable than other types of agricultural businesses, making the horse industry critical to the growth and land-use strategy of the state.

These statistics were reported in a comprehensive report published by the New Jersey Agricultural Experiment Station in 2007.

The report included the direct and indirect economic impact related to equine activities.

It would be helpful to receive an update from that now decade-old report, but that should not hinder the movement of these bills through the legislative process until they are hopefully passed and enacted.

S1093 and A1923, the latest versions of Nosey’s law, a bill that originally would have prohibited the use of elephants in traveling animal acts, has now expanded its reach to “prohibit the use of [all] wild or exotic animal traveling animal acts.”

Why is this a concern?  There are many legitimate animal exhibitions that inform and educate the public about exotic and wild animals that would be prohibited if this bill were to become law.

The current version of this bill, originally introduced in 2016, attempts to but fails to address the flaws in its prior iteration, which Governor Christie vetoed as one of his last official functions.

The definitions and provisions in the proposed bill, described here in relevant part, demonstrate the problems with the law:

“Performance” means any animal . . .  display, exhibition, exposition, fair . . . petting zoo, presentation, public showing . . .  trade show, or similar undertaking in which animals . . . participate as accompaniments for the entertainment, amusement, or benefit of a live audience.

“Wild or exotic animal” means any non-domesticated species of mammal, bird, reptile, or amphibian.

In previous versions of this bill, the terms “wild” and “exotic” were not defined.  The proposed definition above does not correct the prior deficiencies.  First, there is a problem with the term “domesticated.”

The terms “domestic” and “domesticated” have been interpreted by courts where those terms were not defined in statutes or regulations in suit.  See, e.g., Commonwealth v. Comella, 735 A.2d 738 (Pa. Commw. Ct. 1999) (questioning whether a “dog” is a “domestic animal,” based on statutory analysis); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Ct. Appl. 1994) (affirming judgment based, in relevant part, on the exclusion of “deer” as “domestic animals”); City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owner’s monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”)

Instead of using the term “domesticated” the term “domestic” should be used.

“Domestic” should be defined as “domestic livestock” and “domestic companion animal” and “pet” should be defined as “domestic animal.”  Since these terms have been subject to court interpretation (see, e.g. People v. Garcia, 777 N.Y.S.2d 846 (N.Y. Sup. Ct. 2004) (asserting that the statutory definition of “companion animal” was unconstitutionally vague); Levine v. Connor, 540 F.Supp.2d 1113(N.D. Cal. 2008) (addressing the exclusion of poultry from the definition of “livestock” in the Humane Slaughter Act); State v. Nelson, 499 N.W.2d 512 (Minn. Ct. App. 1993) (reversing conviction for cruelty to a rooster, based on the definition of “livestock”), “domestic livestock” should be further defined pursuant to section 1 of P.L. 1995, c. 311 (C.4:22-16.1); “domestic companion animal” should be further defined pursuant to subsection u. of section 1 of 14 P.L. 1978 (C.2C:20-1).

It would be problematic to incorporate NJDEP’s definition of exotic mammal, bird, reptile or amphibian which means “any nongame species or mammal, bird, reptile or amphibian not indigenous to New Jersey,” since that would prohibit many animal exhibitions and fairs.  For example, domestic cattle are not indigenous to New Jersey.

Then, there is the issue with ferrets, which New York City has ruled are “wild” animals.

In addition to these issues with defined (or undefined terms) the proposed exemptions in the bill, presented below, do nothing to right size the problems with this bill.

This section shall not apply to:

(1)   exhibitions at a non-mobile, permanent institution or facility certified by the United States Department of Agriculture and accredited by the Association of Zoos and Aquariums, the Global Federation of Animal Sanctuaries, the American Sanctuary Association, or a similar organization as determined by the Department of Environmental Protection;

(2)   outreach programs for educational or conservation purposes conducted by a facility accredited by the Association of Zoos and Aquariums, the Global Federation of Animal Sanctuaries, the American Sanctuary Association, or a similar organization as determined by the Department of Environmental Protection;

(3)   an institution of higher education exhibiting wild or exotic animals for research or education purposes; or

(4)   outreach programs for educational or conservation purposes conducted by governmental entities.

First, there is a concern about the arbitrary deference to accreditation by third parties, without reference to any specific animal care standards required.

Second, there are a number of non-governmental entities that are not institutional of higher education that conduct educational and outreach programs that help the public understand the importance and beauty of certain species.

As others have suggested, the language of the originally proposed bill, which would have prohibited the use of elephants in traveling animal acts, was much more preferable than these current versions.

 

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?