BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 339
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          Date of Hearing:  April 2, 2013
          Counsel:       Shaun Naidu

                                 Tom Ammiano, Chair

                AB 339 (Dickinson) - As Introduced:  February 13, 2013
           SUMMARY  :   Makes it a crime to sell, give away, or display for  
          sale a live animal at a swap meet.  Specifically,  this bill  :  

          1)Makes it unlawful for any person to willfully sell or give  
            away as part of a commercial transaction a live animal at a  
            swap meet, with specified exceptions.

          2)Makes it unlawful for any person to willfully display, offer  
            for sale, or offer to give away as part of a commercial  
            transaction a live animal at a swap meet, with specified  

          3)Makes a first offense of the above provisions an infraction  
            punishable by a fine not to exceed $250, unless the violation  
            causes an animal to suffer, be injured, or be placed in a  
            situation in which its life or health may be endangered, in  
            which case the offense is punishable as a misdemeanor.  Makes  
            a second or subsequent violation of the above provisions a  

          4)Punishes a misdemeanor violation of the above provisions by a  
            fine not to exceed $1,000 per violation, and requires the  
            court to weigh the gravity of the violation in setting the  

          5)Allows any peace officer, animal control officer, or humane  
            officer, as specified, to issue a notice describing the charge  
            and the penalty for a violation of the above provisions.

          6)Provides that the prohibition against live animal sales at a  
            swap meet shall not apply to the following:

             a)   Events held by 4-H Clubs, Junior Farmers Clubs, or  
               Future Farmers Clubs.


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             b)   California Exposition and State Fair, district  
               agricultural association fairs, or county fairs.

             c)   Stockyards that are regulated under federal law.

             d)   Specified livestock for sale at public sales.

             e)   Live animal markets regulated under state law.

             f)   A public animal control agency or shelter, society for  
               the prevention of cruelty to animals shelter, humane  
               society shelter, or rescue group, as specified.

             g)   The sale of fish or shellfish, live or dead, from a  
               fishing vessel, at a pier or wharf, or at a farmer's market  
               by any licensed commercial fisherman to the public for  
               human consumption.

             h)   A cat show, dog show, or bird show providing that all of  
               the following circumstances exist:

               i)     The show is validly permitted by the city or county  
                 in which the show is held;

               ii)    Each and every participant in the show complies with  
                 all federal, state, and local animal welfare control  

               iii)   The participant has written documentation of the  
                 payment of a fee for the entry of his or her cat, dog, or  
                 bird in the show;

               iv)    The sale of a cat, dog, or bird occurs only on the  
                 premises and within the confines of the show; and,

               v)     The show is a competitive event where the cats,  
                 dogs, or birds are exhibited and judged by an established  
                 standard or set of ideals established for each breed or  

          7)Provides that nothing in this prohibition against live animal  
            sales shall be construed in any way to limit or affect the  
            enforcement of any other law that protects animals, or the  
            rights of consumers, as specified, or authorizes any act or  
            omission that violates other local, state, or federal law  


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            relating to animal cruelty.

           EXISTING LAW  : 

          1)Defines "swap meet" to include a flea market or an open-air  
            market and means an event at which two or more persons offer  
            merchandise for sale or exchange and that meets one of the  
            following conditions:

             a)   A fee is charged for the privilege of offering or  
               displaying merchandise for sale or exchange,

             b)   A fee is charged to prospective buyers for parking or  
               for admission to the area where merchandise is offered or  
               displayed for sale or exchange, or

             c)   The event is held more than six times in any 12-month  
               period.  [Business and Professions Code Section 21661(a).]

          2)Makes it unlawful, with specified exceptions, for any person  
            to willfully sell or offer for sale, display, or give away or  
            offer to give away as part of a commercial transaction a live  
            animal on any street, highway, public right-of-way, parking  
            lot, carnival, or boardwalk.  (Penal Code Section 597.4.)

          3)Makes it an alternate felony/misdemeanor punishable by  
            imprisonment in the county jail, a fine not to exceed $20,000,  
            or both a fine and imprisonment for every person who  
            maliciously and intentionally maims, mutilates, tortures,  
            wounds or kills a living animal, except as specified, or who  
            overloads, overworks, denies sustenance, cruelly beats,  
            mutilates, or cruelly kills any animal, and whoever having  
            custody of an animal, either as owner or otherwise, subjects  
            an animal to needless suffering or inflicts unnecessary  
            cruelty upon the animal, or in any manner abuses any animal,  
            or fails to provide an animal with proper food, drink, or  
            shelter or proper protection from the weather.  (Penal Code  
            Section 597).

          4)Regulates, under the Lockyer-Polanco-Farr Pet Protection Act,  
            the sale and care of dogs and cats by pet dealers, as defined,  
            and provides for civil penalties enforced by the local  
            district attorney or city attorney in an amount up to $1000  
            for violations of the Act.  Requires, in part, a pet dealer to  
            maintain facilities where dogs are kept in a sanitary  


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            condition and provide adequate nutrition, potable water, and  
            space appropriate to the age, size, weight, and breed of dog.   
            (Health and Safety Code Section 122125 et seq.)
          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Animals are  
            currently being sold at flea markets and swap meets in often  
            abysmal conditions where there is no legal oversight of the  
            seller and no consumer accountability. AB 339 would prohibit  
            the sale of animals at swap meets and flea markets to  
            alleviate the suffering of these animals, ensure that public  
            health and safety is protected, and safeguard consumers."
             The author further states that "Laws that apply to pet shop do  
            not apply to the sale of animals at flea markets and swap  
            meets. Swap meets and flea markets have also historically been  
            prime outlets for the sale of smuggled birds presenting  
            conservation, welfare and disease risk concerns. The  
            bargain-sales atmosphere of flea markets and swap meets  
            encourages impulse-buying and leads to increased costs to  
            local government for sheltering discarded animals."

           2)Existing Punishments  :  Existing law already punishes animal  
            neglect, impounding an animal without sufficient food and  
            water, mistreating confined animals, the sale of puppies under  
            eight weeks of age, keeping an animal without proper care and  
            regulates pet shops and live animal markets.  (Penal Code  
            Sections 597e, 597f, 597l, 597t, 597z, 597.1, 597.3.)  Some of  
            these offenses could apply to the behavior intended to be  
            prohibited by this bill.  This bill makes it clear that this  
            section does not preclude prosecution under an existing law.  
           3)Animal Neglect  :  Animal abuse is separated into two main  
            categories: animal cruelty and animal neglect. Animal cruelty  
            generally refers to a single act of harm on an animal, while  
            animal neglect is defined as an act that causes extended or  
            prolonged suffering.  Cases of animal neglect are prevalent,  
            and it occurs when one deprives an animal of basic needs.  
            These needs include shelter, nutrition and medical care. In a  
            study of 1,400 animal cruelty cases conducted by the Humane  
            Society of the United States, 41 percent of the cases involved  
            animal neglect.  In the California Penal Code, both animal  


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            cruelty and animal neglect are wobblers (alternate  

           4)Animal Sales  :  Numerous local governments have enacted  
            ordinances addressing the issue of public sale of animals.   
            Sacramento, Los Angeles, and San Jose counties all currently  
            restrict the sale of animals in many public venues.   
            Proponents of this legislation argue that back yard puppy  
            mills and irresponsible breeding practices exacerbate the need  
            for sales in unregulated areas.  Often times, these animals  
            are kept in crowded and unsanitary pens or cages without  
            adequate water or food.  Proponents also argue that the  
            absence of effective regulations has resulted in the sale of  
            young animals that are often mistreated, ill, and/or diseased.  
             California law provides that pet stores that sell animals  
            must abide by animal welfare standards to protect the health  
            and safety of the animals. The purpose of these regulations is  
            to promote proper care and treatment and reduce the risk of  
            disease outbreaks.

           5)Regulation vs. Prohibition  :  This bill would impose an  
            outright ban on the sale of animals in swap meets or flea  
            markets, regardless of how well or poorly the animals are  
            treated.  Conceivably, the animals at swap meets could be  
            treated far better than those at pet stores.  An alternative  
            to this approach would be to apply the same regulations  
            applicable to pet stores to swap meets.  Those regulations  
            would ensure the safe and sanitary treatment of animals at  
            swap meets and flea markets.  

           6)Argument in Support  :  According to the  American Society for  
            the Prevention of Cruelty to Animals  , "AB 339 would include  
            swap meets and flea markets into existing law that already  
            bans the sale of live animals along roadsides, in parking lots  
            and at carnivals and boardwalks. ?  Unregulated animal sales  
            are not only an animal welfare problem; they pose problems for  
            consumers and threaten public health.  Many of these animals  
            are bred and raised in poor conditions, drastically increasing  
            the likelihood that the animal is sick at the time of the  
            sale.  Consumers purchasing these animals often find  
            themselves stuck footing huge veterinarian bills with little  
            recourse as very often the sellers are nowhere to be found.

            "Additionally, dogs and cats sold in this manner are usually  
            not spayed or neutered, so they increase the probability of  


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            contributing to the pet overpopulation problem that leads to  
            tens of thousands of homeless animals being euthanized in  
            California every year."

           7)Argument in Opposition  :  According to the  California Swap Meet  
            Owners Association  , "Swap Meet operators have continually  
            argued to be treated as other retail entities would, to create  
            a set of standards that we are given the opportunity to meet  
            in order for our vendors to sell certain items, rather than a  
            blanket prohibition of selling an item. ?

            "Some counties in California have already set standards and  
            criteria for the sale of certain items at flea markets and  
            swap meets, which our vendors abide by. An example is that  
            some counties require our vendors to obtain a permit from the  
            County that is issued through the Veterinary Services  
            Departments under the County Health Department in order to  
            sell certain animals at our facilities. Should our vendors  
            break these laws and ordinances they are given a warning to  
            remedy the problem and should it occur again, they are then  
            removed and not allowed to sell at our facilities in the  

            "It is our understanding that the sponsors of the bill want to  
            ensure that the health and welfare of animals are protected  
            and that the proper treatment and care for animals is provided  
            - similar to the regulations California provides for pet  
            stores. We agree with this premise and would be willing to  
            abide by criteria and standards to ensure these protections of  
            animals are met at our facilities."

           8)Previous Legislation  :

             a)   SB 917 (Lieu), Chapter 131, Statutes of 2011, increased  
               the penalty for animal neglect and made it a crime to sell  
               or offer to sell a live animal in specified public places. 

             b)   AB 1122 (Lieu), of the 2009-10 Legislative Session,  
               would have made it a crime to sell or offer to sell a live  
               animal in specified public places.  AB 1122 was vetoed by  
               the Governor.




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          Born Free USA (Co-Sponsor)
          State Humane Association of California (Co-Sponsor)
          Action for Animals
          American Federation of State, County and Municipal Employees,  
          American Society for the Prevention of Cruelty to Animals
          Animal Place
          Best Friends Animal Society
          Central California SPCA
          Central Coast Society for the Prevention of Cruelty to Animals
          House Rabbit Society
          Human Society of the United States
          Humane Society of Ventura County
          Humane Society Silicon Valley
          Inland Valley Humane Society & S.P.C.A.
          Lake Tahoe Humane Society and S.P.C.A.
          Marin Humane Society
          Orange County Society for the Prevention of Cruelty to Animals
          Palo Alto Humane Society
          Paw PAC
          Public Interest Coalition
          Sacramento SPCA
          San Francisco SPCA
          Santa Cruz SPCA
          Santa Maria Valley Humane Society
          SPCA for Monterey County
          Yolo County Society for the Prevention of Cruelty to Animals
          Two private individuals


          Big John's Cages
          California Open-Air Marketplaces
          California Swap Meet Owners Association
          Denio's Farmer's Market and Swap Meet
          Greenich's Acres
          Kobey's Swap Meet, San Diego, CA

          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744 


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