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A2649
Response from Assemblyman VanDrew to e-mail from Stan Domozyk
Esq Mr.
Stan Domozyk, Esq.
23 Peak Road
Edison, NJ 08837
August 28, 2007
Dear Mr.
Domozyk:
Thank
you for your comments concerning Assembly Bill No. 2649.
I have thoroughly reviewed your letter and am saddened
to hear of your opposition. Although you raised some
legitimate points, most are based upon incorrect
information. The majority of the concerns you have
raised in your email – but not all – are objections to
provisions of current law. Please allow me to offer some
clarification.
The
intent of this legislation is to address the most
horrendous animal cruelty cases, most notably dogs being
used as couriers to smuggle drugs and animal fighting,
amongst other issues. As you may know, the current
animal abuse and neglect laws have not been updated
significantly over the course of the last 125 years,
with the exception of a few amendments. The current law
addresses situations that no longer are relevant,
utilizes archaic terminology which often hampers
compliance and enforcement, and often requires strained
application to address emergent animal issues. Thus,
this legislation attempts to update the animal cruelty
statutes by addressing current animal cruelty issues in
a comprehensive framework to reflect the seriousness of
the offenses, and provide clear language utilizing
modern statutory enforcement language.
1)
Sexual contact with animals. The bill defines
sexual contact as intentional touching of the intimate
parts of an animal, etc. “for the purpose of arousing or
gratifying the sexual desire of the person or to in any
way harm the animal or any person” (section 2, page 5,
lines 5-7). The circumstances mentioned in the email are
unlikely to be interpreted to be for the purpose of
arousing or gratifying such desire or for the purpose of
harming the animal or a person.
2)
Transporting animals in cruel or inhumane manner.
Current law does not provide a definition of cruel or
inhumane manner of transport or inhumane conditions. The
bill includes the same provision as current law in this
regard. Ultimately, a court would decide if the manner
of transport of an animal or the conditions under which
an animal was left in a vehicle was cruel or inhumane or
constituted inhumane conditions. Again, the provisions
under the bill concerning transporting animals are
current law and, although revisions of this provision of
law have been suggested from time to time over the past
15 years, no further clarification of cruel or inhumane
transport or inhumane conditions has been agreed to or
enacted into law.
3)
Animal abandonment. There is NO new definition of
animal abandonment under the bill. The provisions
concerning abandonment are the same as current law. You
may wish to suggest come clarification, but these
provisions have not been misapplied in the manner
described in your email in recent time. A person does
not abandon an animal unless the person with the
purpose of relinquishing possession of the animal and
without making provisions for its minimum care,
knowingly leaves or causes the animal to be left in
a public place or in a place beyond the person’s
control, custody or possession.
4)
Chaining of dogs. The bill provides that the
“reasonable basis for restraining a dog” is one element
of an “affirmative defense to prosecution.” According to
the Attorney General’s office, providing an affirmative
defense often cause the prosecution of a case to more
carefully consider whether the elements of the
affirmative defense have been met. Often the prosecution
then does not proceed with charges because there is a
reasonable doubt that the person violated the law
because the elements of the affirmative defense have
been met. For a person to be convicted of cruelly
restraining a dog, a court would have to find that the
person: 1) did not have a reasonable basis for
restraining the dog, 2) did not use the proper harness
or collar or the required length of tether, 3) used a
choke or prong collar, or 4) did not provide minimum
care to the dog while it was restrained.
5)
Pattern of cruelty. Your email is incorrect about
the level of the offense. Pattern of cruelty is a crime
of the second degree if one of the acts committed is a
first or second degree crime. Otherwise, it is a crime
of the third degree. This provision addresses the issue
of repeat, habitual offenders who under current law are
not subject to increased penalties from committing
animal cruelty multiple times.
6)
Reporting animal cruelty. It is always possible for
a person to falsely accuse another person of a crime.
The liability immunity offered under the bill for people
reporting animal cruelty is a standard immunity offered
for people who report child abuse or other domestic
abuse. If a person is falsely accused to the extent of
libel or slander, the falsely accused person may sue
their accuser for committing libel or slander.
Furthermore, the immunity relates only to the reporting
of the alleged offense. Perjury is committed when a
person offers false testimony under oath. It is a crime
and would be addressed under the appropriate laws. The
bill provides no immunity from perjury charges.
7)
Requirement for shelters and pounds to provide
veterinary care and exercise. There is absolutely
no exemption from either veterinary care or
providing exercise to animals for shelters or pounds
under the bill. This provision is confusing because of
the fine line that is drawn here concerning regulated
facilities that cannot operate in the same manner as pet
owners. Your email implies that shelters and pounds are
not required to provide any veterinary care or exercise
to the animals at these facilities, which is incorrect.
The difference between the care and exercise required
for owners versus shelters and pounds is that the
shelters and pounds must provide prompt, basic
veterinary care and must provide exercise in the manner
and to the extent that the Department of Health and
Senior Services (DHSS) determine is feasible. Current
DHSS regulations provide for and require prompt, basic
veterinary care and exercise at these facilities. Under
the bill, shelters and pounds would still be required to
comply with those regulations. Pet owners, under the
bill, must provide veterinary care deemed necessary by a
reasonably prudent person to prevent or relieve injury,
neglect or disease, or distress from these conditions,
and reasonable access to a clean and adequate exercise
area. It is a small definitional distinction, but a
significant one for DHSS, shelters and pounds. The bill
specifies that owners, caretakers, pet shops, kennels,
shelters and pounds must still all also provide care
sufficient to preserve the health and well-being of an
animal and, except for emergencies or circumstances
beyond the reasonable control of the person responsible
for the care of the animal, provide the following: 1)
food of sufficient quantity and quality to allow for
normal growth or maintenance of body weight; 2) open or
adequate access to drinkable water of an appropriate
temperature in sufficient quantity to satisfy the needs
of the animal; 3) access to an enclosed non-hazardous
structure sufficient to protect the animal from the
weather that has adequate bedding to protect against
cold and dampness; and 4) adequate protection from
extreme or excessive sunlight and from overexposure to
the sun, heat and other weather conditions. Again,
shelters or pounds are not exempted from providing
either veterinary care or providing exercise to animals
under the bill.
8)
Improper euthanizing. The $500 civil penalty
referred to in your email is the civil penalty under
section 37 of the bill that specifically relates to a
person who euthanizes an animal prior to the expiration
of the holding period. Under section 11 of the bill,
criminal penalties still apply to anyone who improperly
euthanizes an animal. Improper euthanizing of an animal
pursuant to section 11 is a disorderly persons offense
or, if it is done purposely, the act constitutes
aggravated improper euthanizing of an animal and is a
crime of the fourth degree. Under current law, such
improper euthanizing is not established as a criminal
offense, carries a penalty of a $25 fine for a first
offense, a $50 fine for each subsequent offense, and
each animal killed is a separate offense. This provision
of current law is continued under the bill, but the
offense is established as a crime and has higher
penalties.
9)
Wrong doing by an animal control officer. Current
law, unchanged by the bill, provides that persons
convicted of animal cruelty cannot serve as animal
control officers, and if a person is an animal control
officer at the time of such conviction, the person is to
be dismissed from that position.
10)
Definition of owner. Your email is incorrect in that
“Owner” is defined under the bill and under current law.
Under section 2 of the bill, both owner and caretaker
are defined terms. In the case of relinquishing an
animal to a shelter or pound pursuant to section 37 of
the bill (which amends current law), the definition of
owner pursuant to N.J.S.A.4:19-15.1 would apply. That
definition is as follows: “Owner” when applied to the
proprietorship of a dog shall include every person
having a right of property in that dog and every person
who has that dog in his keeping, and when applied to the
proprietorship of any other animal, including, but not
limited to, a car, shall include every person having a
right of property in that animal and every person who
has that animal in his keeping. This definition is
archaic in its wording, but disgruntled neighbors,
juvenile delinquents, and thieves would not have rights
of property to another person’s dog. The archaic wording
pertains to “having the dog in the person’s keeping”
might create some confusion under N.J.S.A.4:19-15.1.
However, the bill clarifies the definitions of owner and
caretaker under the animal cruelty laws and the
enforcements of those laws under Title 4.
11)
New police powers for animal control officers. The
bill does not provide new police powers to animal
control officers. The concerns raised in your email
pertain to current law.
12)
Search, seizure, arrests without warrant. The bill
makes no changes to current law with regards to your
concerns. The concerns raised in you email pertain to
current law.
13)
Prosecutions brought by the NJ Society for the
Prevention of Cruelty to Animals. The provisions
dealing with prosecution of alleged violations also do
not create any new powers for the NJSPCA. Current law
provides that anyone can bring a suit in a court of law,
and in the case of civil actions, the suit may be
brought in the name of the NJSPCA to allow for the
entity to collect the penalties for violations. This
provision of law was first enacted in 1880. The same law
provides for anyone to bring the suit, including law
enforcement officers, and the suit must be brought in a
court of law where a judge will determine the outcome of
the suit. Current law and the bill place no limitations
on who may prosecute alleged animal cruelty violations,
and the bill does not revise any rules of court
procedure or prosecution.
14)
Dog shows as examples of animal fighting. If a dog
show involves organized animal fighting, then the
animals there could be seized because animal fighting is
illegal in New Jersey. Your email is concerned with
provisions that are current law – not new provisions of
law under the bill. They are in the bill to update cross
references only.
15)
Disposition of penalties and fines. These provisions
are also current law. This law was enacted in 1880, and
was revised in recent years to allow municipalities to
also receive the proceeds from convictions that they
were instrumental in investigating and prosecuting. The
bill updates cross-references only and does not change
the law.
16)
No suits for civil damages against the NJSPCA.
N.J.S.A.4:22-56 (which is existing law and is amended by
section 59 of the bill) does not prevent an individual
from suing the NJSPCA. It provides municipalities with
immunity from liability arising out of NJSPCA actions,
and, conversely, provides the NJSPCA with immunity from
liability arising out of a municipality’s actions. It
does not provide NJSPCA, a municipality, or any NJSPCA
or municipal officials with any immunity from liability
for their own actions. The bill only makes a technical
correction.
I hope
this response addresses your concerns, but please feel
free to contact my assistant, Elizabeth Stone in the
Assembly Majority Office at (609)292-7065 with any other
comments.
Very
truly yours,
Assemblyman Jeff Van Drew
Assistant Majority Leader
cc:
Priscilla Gabosch, President, NJ Federation of
Dog Clubs
Kathy Jacobsen
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