Bill modifies penalties for animal cruelty, with focus on companion animals
Months before the current controversy of alleged animal cruelty by employees of Conklin Dairy Farms, Rep. Williams and Combs introduced H.B. 55 to revise portions of Ohio's animal cruelty law. Yesterday, the Ohio House passed the animal cruelty bill, which had been introduced last March.
H.B. 55 focuses largely on cruelty to "companion animals," which includes dogs, cats, and any animal kept inside a residential dwelling. Changes to the companion animals provisions include authority to order child offenders to undergo counseling and psychological treatment, inclusion of companion animals in court protection orders, and requirements for the State to approve continuing education courses on animal abuse counseling for medical and social work professions.
In regards to cruelty to animals other than companion animals, H.B. 55 adds a new penalty provision. The penalty remains a second degree misdemeanor for first offenses, but increases to a first degree misdemeanor for subsequent violations of the law. Current law addresses each offense as a second degree misdemeanor. Under Ohio law, a first degree misdemeanor can result in a maximum penalty of 180 days in jail and a $1,000 fine, while a second degree misdemeanor violation carries a maximum of 90 days in jail and a $750 fine.
What is cruelty to animals? Ohio's animal cruelty law is Ohio Revised Code section 951.13, which states that "no person shall:
- (1) Torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water;
- (2) Impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer. Division (A)(2) of this section does not apply to animals impounded or confined prior to slaughter. For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth’s contour, tree development, or vegetation;
- (3) Carry or convey an animal in a cruel or inhumane manner;
- (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air, nor or feed cows on food that produces impure or unwholesome milk;
- (5) Detain livestock in railroad cars or compartments longer than twenty-eight hours after they are so placed without supplying them with necessary food, water, and attention, nor permit such stock to be so crowded as to overlie, crush, wound, or kill each other."
Before passing H.B. 55 yesterday, the House included floor amendments that make minor revisions to the dangerous and vicious dog provisions in Ohio Revised Code 955.11.
The Ohio Senate has not introduced a similar animal cruelty bill, and has only a few more sessions until its summer recess begins in early June. If the Senate doesn't pass the animal cruelty legislation before the end of the year, the bill will expire and must be reintroduced after January, in the next session of the Ohio General Assembly.
Animal rights groups have advocated around the country for stiffer penalties on animal cruelty offenses. Most state animal cruelty laws contain both misdemeanor and felony penalties, with the more severe felony charges typically applying to acts that are intentional, heinous or involve mutilation. Under Ohio law, felony charges apply to certain offenses against companion animals and some dog-fighting offenses. For an overview of state animal cruelty laws, visit this publication by the Michigan Animal Legal and Historical Center. View the entire chapter of Ohio law on offenses to domestic animals, which includes the animal cruelty law and various penalty provisions, here.
Now that the Ohio legislature has enacted an implementation bill and Governor Strickland has announced board appointments, the Ohio Livestock Care Standards Board could soon begin developing standards for farm animal care in Ohio. Voters approved Issue 2, the constiututional amendment creating the Ohio Livestock Care Standards Board, in November of 2009.
Last week, the governor signed Issue 2's implementation bill (House Bill 414) after legislators wrangled with two different implementation proposals for more than two months. A primary point of contention was funding--H.B. 414 originally proposed an increase of the commercial seed and feed inspection fee and allowed the transfer of at least $500,000 annually from the commercial seed and feed fund to the livestock care standards fund. A Senate proposed bill, S.B. 233, would have provided the livestock care standards fund with $162, 280 transferred from the School Employees Health Care Board. Neither provision survived in the final enacted law, which instead requires the director of the Ohio Department of Agriculture to rely on existing funds within the department until the legislature appropriates money for the livestock care standards fund.
The final approved bill also establishes board member terms and vacancies, allows board member travel reimbursements but does not allow compensation, and requires the board to meet at least three times per year. The law requires the director of ODA to assist the board by hiring employees, submitting the board's proposed rules for approval, enforcing the rules and investigating potential rule violations. According to the law, the director must obtain permission to enter premises for inspection purposes.
Two provisions in the law address animal identification and organic production--these provisions were in the Senate's version and were added to the final bill . The new law states that the Ohio Livestock Care Standards Board may not establish a statewide animal identification system and clarifies that standards of the USDA's national organic program will prevail if there is a conflict between the organic certification standards and the Ohio livestock care standards.
Despite recommendations to do so, the new law does not define the term "family farmer," but only reiterates the constitutional amendment's requirement that three of the board members shall be "family farmers." Nor does the legislature guide the board on the meaning of the "well-being" of livestock, which the board must address in its standards and rules. We hoped the new law would clarify whether "well-being" includes both physical and emotional well-being, an issue that could bring legal challenges in the future (see our earlier post on "Lessons from New Jersey"). The implementation law does define "livestock" as equine raised for any purpose and the following animals if raised for human food and fiber purposes: porcine (hogs), bovine (cattle, oxen, buffalo), caprine (goats), ovine (sheep), poultry, alpaca and llamas.
Soon after Govenor Strickland signed H.B. 414, he announced his appointments to the Ohio Livestock Care Standards Board. Information on the board appointments is available here. Once the speaker of the house of representatives and president of the senate each make one of the two final board appointments, the board can begin its work of developing standards for the care and well-being of livestock in Ohio.
Meanwhile, proponents of a second ballot initiative on farm animal welfare are currently circulating around the state seeking signatures to place another proposal on the November general election ballot. The proponents hope to tell the board, through a second constitutional amendment, a few standards that it must adopt, which includes prohibitions on certain types of confinement, requirements for humane killing of cows and pigs and restrictions against the sale or transport of downer cows. See our earlier post on "Ohio may see a second constitutional amendment on farm animal welfare."
Representatives Sayre and Bolon introduced the implementation legislation for State Issue 2's Ohio Livestock Care Standards Board on Tuesday, January 19. H.B. 414 does the following:
- Defines "livestock" as equine animals, regardless of the purpose for which the equine are raised; porcine, bovine, caprine and ovine animals; poultry; alpaca and llamas.
- Requires the appointment of the Ohio Livestock Care Standards Board within 45 days of the bill's effective date and establishes board member provisions such as terms of office, vacancies, meetings and compensation.
- Reiterates Issue 2's language regarding the purpose of the board.
- Directs the board to adopt rules regarding civil penalties for violating care standards.
- Establishes duties of the director of the Ohio Department of Agriculture for assisting the board and grants authority to the director and his/her representative to enter property for inspection and investigation.
- Prohibits anyone from providing false information in response to the livestock care standard requirements, or otherwise violating the rules developed by the board.
- Creates an Ohio livestock care standards fund and authorizes the director of the Ohio Department of Agriculture to use the fund for program administration and enforcement.
- Increases the commercial feed and seed inspection fee in ORC 923.44 by 15 cents over the next three years, in five cent increments per year--to 30, 35 and 40 cents per ton--and increases the minimum fee from 25 to 50 dollars.
- Allows the director of ODA to request annual transfers of not less than $500,000 from the commercial feed and seed fund to the Ohio livestock care standards fund.
- States that the law does not affect the authority of county humane societies or officials.
- Clarifies that the law does not apply to food processing production activities regulated under ORC Chapter 1717.
View H.B. 414 here.
The recent passage of Issue 2 in Ohio (see earlier posts) will eventually lead to the establishment of an Ohio Livestock Care Standards Board, which will have the responsibility to develop standards for the care and well-being of livestock. While the process is new for Ohio, we're not the first state to develop farm animal care standards.
In 1995, the New Jersey legislature directed its Department of Agriculture to develop "standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and rules and regulations governing the enforcement of those standards." Nine years later, the agency finalized its regulations for the "Humane Treatment of Domestic Livestock." The regulatory program defines acceptable and prohibited practices for feeding, watering, keeping, marketing, sale, care and treament of cattle, horses, poultry, rabbits, small ruminants, and swine. The program establishes an investigation and enforcement process that includes a complaint procedure and investigation by Certified Livestock Inspectors.
Soon after final publication of the New Jersey regulations, a group of animal welfare organizations, consumers and farmers filed a lawsuit challenging the rules. The group included the Humane Society of the United States, Farm Sanctuary, the American Society for the Prevention of Cruelty to Animals and the Center for Food Safety.
The lawsuit attacked the regulations from several directions. The regulations allowed the use of "routine husbandry practices," defined as "techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agentsfor the benefit of animals, the livestock industry, animal handlers and the public health and which are employed to raise, keep, care, treat, market and transport livestock, including, but not limited to, techniques involved with physical restraint; animal handling; animal identification; animal training; manure management; restricted feeding; restricted watering; restricted exercising; animal housing techniques; reproductive techniques; implantation; vaccination; and use of fencing materials, as long as all other State and Federal laws governing these practices are followed." The lawsuit claimed this definition to be impermissibly broad and an improper delegation of the agency's authority.
The lawsuit also challenged specific practices permitted by the rules, including tail docking of cattle; castration, de-beaking, and toe-trimming without anesthesia; crating; tethering; and transporting sick cattle to slaughter. The plaintiffs claimed that the practices are not supported by sound science and are not "humane," as required by the New Jersey legislature's original directive.
The New Jersey Superior Court heard the case and upheld the agency's regulations. The animal welfare groups filed for a review by the New Jersey Supreme Court, and the court issued a decision in July, 2008.
Neither side won a complete victory. While the Supreme Court of New Jersey refused to reject the entire body of regulations, it did strike down the definition of "routine husbandry practices" for being overly broad, not based on a careful determination of the practices being taught by schools and colleges, and not based on a determination of whether the practices are "humane." The court also invalidated the regulation's endorsement of tail docking for cattle, questioning whether the practice itself is humane but concluding that the agency could not provide support for the necessity of the practice. In its examination of castration, de-beaking and toe-trimming, the court noted that scientific evidence would support the agency's acceptance of the practices, but the agency's reference within the rules that the practices should only be "performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain" was vague and could not ensure that the practices would be "humane." In regards to the rule's allowance of crating, tethering and transporting of sick cattle, the court upheld the rules by concluding that the agency had relied upon its own techical expertise as well as a wide array of scientific studies before determining that the practices are beneficial and humane.
The Supreme Court sent the regulations back to the New Jersey Department of Agriculture for revisions consistent with the court's opinion. Rumour suggests that the department does not currently have appropriate funding to conduct a review and revision of the regulations. Because the rules were to expire in June of 2009, the governor of New Jersey exercised his authority to extend the expiration date to December of 2010 to give the agency adequate time to revise the rules. In the meantime, the regulations remain in effect except for those specific provisions struck down by the Supreme Court.
The New Jersey situation provides a few lessons for Ohio as we embark upon creating the Ohio Livestock Care Standards Board and a livestock care regulatory program, as authorized by Issue 2. Undoubtedly, interests similar to those who filed the New Jersey lawsuit will be watching, commenting upon, and possibly challenging any regulations proposed by the board and the Ohio Department of Agriculture (ODA). While Issue 2 did not include New Jersey's "humane" language, it does create a similar benchmark by calling for the establishment of "standards governing the care and well-being of livestock and poultry." A standard developed by the board thus must be consistent with an animal's "well-being" and be based upon evidence or expertise supporting a relationship to "well-being." Issue 2 does not legally define "well-being," a void the legislature may want to consider in its implementing legislation for Issue 2. As for specifying acceptable practices such as de-beaking or tail-docking, the New Jersey analysis illustrates a basic premise of administrative law--that a court will defer to an agency that can demonstrate technical expertise and a sound basis for its decision.
New Jersey's experience also teaches us that a court may not support adoption of customary livestock management practices taught in our universities and educational programs without a comprehensive review of the practices and an inquiry into whether the practices support an animal's "well-being." Such a stipulation might also apply to adoption of accepted industry or association standards. Likewise, a regulatory scheme that aims to ensure well-being by deferring generally to a livestock handler's knowledge level or handling practices may not survive a legal challenge. The New Jersey court voided such regulations for failing to contain detailed definitions and objective criteria against which to determine whether a person or his handling practices were sufficient. This presents Ohio with a question to ponder: should Ohio's standards include a training or certification program for livestock operators?
Ohio probably didn't expect to draw upon New Jersey's experience on this issue, but the New Jersey Supreme Court has aptly described the challenge now before Ohio:
"In part, the issues before this Court require us to evaluate the very methodology utilized by the Department in its creation of the challenged regulations; in part, the issues before us raise questions and debates arising from deeply held notions concerning the welfare of animals generally. Nonetheless, the dispute before this Court has nothing to do with anyone’s love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply."
The New Jersey rules on the Humane Treatment of Domestic Livestock are in Title 2, Chapter 8 of the New Jersey Administrative Code, available at http://www.lexisnexis.com/njoal. The New Jersey Supreme Court's opinion in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Dept. of Agriculture, 196 N.J. 366 (2008) is available at http://lawlibrary.rutgers.edu/courts/supreme/a-27-07.doc.html.
By a solid margin, Ohio voters on November 3 passed Issue 2, a constitutional amendment that establishes a Livestock Care Standards Board. (See "Understanding Ohio's Issue 2" post on October 28). The ballot issue was a forceful jab at the Humane Society of the United States, who had identified Ohio as its next target for new laws restricting certain livestock confinement practices. Passing Issue 2 was an accomplishment for its proponents, and it has generated a good deal of discussion around the country about using Ohio's strategy as a model for other states. But now a significant challenge looms before the Governor, the Ohio General Assembly and the Ohio Department of Agriculture: implementing Issue 2. Much must happen before the new Article 14 of the Constitution results in actual standards for livestock care. A number of concerns and needs rise quickly to the surface:
- Establishing board conditions. The new law allows the Ohio General Assembly to set the terms of office and conditions of service for the members of the Livestock Care Standards Board. An important first step in implementing Issue 2 is for the Ohio legislature to utilize this authority and establish clear guidelines for board members, as it has done for other state boards. Doing so should diminish the potential of issues such as political maneuvering in board appointments, internalized power by the board, procedural conflicts and uncertainty, and should help increase the efficiency and productivity of the board.
- Clarifying definitions. A few terms in the new law are vague, perhaps intentionally, and have already led to serious debate. What is a "family farmer"? Issue 2 uses the term when referring to the composition of the board--one member representing "farmily farms" and two "family farmers" are to be on the board. Yet neither the new Article 14 or Ohio law defines the term. Also scattered throughout the law is the term "local foods," a popular term these days, but what is its legal meaning? The lack of a definition for "livestock" led to one campaign argument that the term livestock includes dogs, and that the board could thus use its power to regulate or endorse "puppy mills" --a weak argument that demonstrates a lack of understanding about Ohio animal laws but illustrates the need for definitional clarity. The Ohio legislature should refine these terms in its legislation.
- Appointing the board. Critics of Issue 2 claim that the Livestock Care Standards Board will not represent the full range of agricultural interests in Ohio, a criticism frequently made on agricultural policy issues. The law itself establishes the board's composition, but filling those slots is a crucial step in the implementation process. At risk is acceptance of the board and its standards by Ohio's smaller scale and alternative farmers, many of whom opposed the law, as well as citizens who fear that the board will amount to "big agribusiness" regulating itself. Ensuring that the board contains diverse types and sizes of agricultural operations appears critical to the board's future success.
- Integration with existing institutions and programs. The law's several references to "local foods" immediately leads me to the Ohio Food Policy Council, established two years ago by Governor Stickland. The Food Policy Council focuses on the environmental, social, and economic benefits that Ohio's food and farming system contributes to Ohio, and has developed an impressive body of work and set of recommendations for the state. We also have the Livestock Environmental Permitting Program, responsible for permitting of confined animal feeding operations. How will Ohio integrate the Livestock Care Standards Board with these and other related programs?
- Transparency. This concern needs little explanation; any appearance of a closed, pre-ordained process could doom the board's credibility and solidify attempts to reverse Issue 2 on the next ballot.
There's much debate about Ohio's Issue 2, a proposal regarding farm animal welfare. Below are answers to legal questions about Issue 2. Are there other unanswered legal questions? If so, let me know.
What is Issue 2?
Issue 2 is a ballot issue that Ohio voters will decide in the November 3, 2009 general election. The issue proposes an amendment to the Ohio Constitution that addresses the care of livestock in Ohio.
How did Issue 2 get on the ballot?
There are two ways to propose an amendment to the Ohio Constitution: by citizen initiative or by a joint resolution passed by Ohio’s legislature, the General Assembly. Both methods require that the proposal be placed on the ballot for majority approval by Ohio voters. Issue 2 arose through a joint resolution in the General Assembly. The Ohio House of Representatives and the Ohio Senate both approved the proposed constitutional amendment. As required by law, the Ohio General Assembly then submitted the enacted resolution to the Ohio Secretary of State, who chairs the Ohio Ballot Board. The five member Ballot Board reviewed the resolution and developed a summary of the joint resolution for the ballot. The Ohio Attorney General certified that the Ballot Board’s summary is an accurate depiction of the joint resolution, and the summary will appear as Issue 2 on the November 3, 2009 general election ballot. You may view the joint resolution passed by the Ohio legislators here, which is the actual language that would be included in the Ohio Constitution if approved on November 3, 2009. The Ballot Board’s summary of the joint resolution, which is the actual language that will appear on the ballot as Issue 2, is here. To learn more about the ballot initiative procedure in Ohio, visit this page.
Is a constitutional amendment the same as a law?
Yes. Ohio’s Constitution is one source of law; Ohio also has statutory law (the Ohio Revised Code), administrative law (agency rules), and common law (written court decisions). However, the Constitution is Ohio’s “supreme” law because it establishes the framework for Ohio’s governmental structure, sets forth powers of the government, provides for fundamental individual rights, and is difficult to change. Only a majority vote by Ohio voters can change the Ohio Constitution.
What does Issue 2’s proposed constitutional amendment do?
Issue 2 proposes to amend the Ohio Constitution by including language in the Constitution that:
- Creates an Ohio Livestock Care Standards Board that would have the authority to establish standards for livestock care in Ohio.
- Gives the Ohio Department of Agriculture the authority to oversee and enforce the livestock care standards.
- Grants the Ohio General Assembly the authority to enact laws necessary for creating the Livestock Care Standards Board and overseeing, implementing and enforcing its standards.
Who would be on the Ohio Livestock Care Standards Board?
Issue 2 establishes a thirteen member Livestock Care Standards Board. No more than seven members on the board may be of the same political party. The Ohio General Assembly would have the power to set the terms of office for the Board members and determine any conditions for the Board members' service. The proposal states that the Board would consist of:
- The director of the department of agriculture, who would serve as chair of the Board;
- Ten members appointed by the Governor with Senate approval, which must include: one family farm representative, one member knowledgeable about food safety in Ohio; two members representing statewide farmer organizations; one veterinarian licensed in Ohio; the State Veterinarian; the dean of an Ohio college or university’s agriculture department; two members of the public representing Ohio consumers; one member representing a county humane society
- One family farmer appointed by the Speaker of the Ohio House of Representatives.
- One family farmer appointed by the President of the Ohio Senate.
What is a “family farmer” for purposes of Issue 2?
Issue 2 does not contain a definition of “family farmer,” nor does Ohio’s statutory laws.
How would the Board create the livestock care standards?
Issue 2 does not specifically detail how the Livestock Care Standards Board would go about creating the livestock care standards, but it does state that when developing the standards, the Board must consider factors that include, but are not limited to, agricultural best management practices for such care and well-being, biosecurity, disease prevention, animal morbidity and mortality data, food safety practices, and the protection of local, affordable food supplies for consumers. Issue 2 also directs the Ohio legislature to enact laws to help the Board carry out its duties, which would allow the legislature to establish a process for the Board to follow when developing the livestock care standards.
Who would enforce the livestock care standards?
According to Issue 2, the state department that regulates agriculture (which is currently the Ohio Department of Agriculture) would have the authority to implement and enforce the standards developed by the Livestock Care Standards Board, and could create administrative rules and regulations necessary to do so.
How much will a Livestock Care Standards Board cost and how will it be funded?
The Office of Budget and Management has prepared a fiscal analysis for Issue 2. The analysis projects costs based upon similar Ohio boards and programs. OBM assumes that funding will derive from the state’s General Revenue Fund, since the proposal does not designate a funding source. See the OBM’s cost projections here.
Do other Ohio laws affect the care of farm animals?
Yes. Ohio currently has laws related to the care of domestic animals, commonly referred to as our animal cruelty laws. The laws prohibit acts such as torture; confinement without adequate shelter, fresh air, food or water; and unnecessary or cruel harm to an animal. Unless the Ohio General Assembly changes them, these laws will remain in effect and will apply to farm animals even if Issue 2 passes. The Ohio General Assembly could choose to amend the existing animal cruelty laws to include the livestock care standards developed by the Board. See Ohio’s animal cruelty laws here.
If Issue 2 passes, could it ever be changed?
Yes, but because Issue 2 proposes an amendment to the Ohio Constitution, it could only be changed by another proposed constitutional amendment that must be approved by Ohio voters.
How does Ohio’s Issue 2 differ from Proposition 2 that passed last year in California?
The ballot initiative known as Proposition 2 passed by California voters last fall amended California’s statutory law. It was not a constitutional amendment like Ohio’s Issue 2. The California law does not address the care of all livestock, but instead prevents certain actions for certain types of livestock. California’s law prohibits the tethering or confinement of pregnant hogs, veal calves and egg-laying hens in a way that prevents the animal from lying down, standing up, fully extending its legs or turning around freely for a majority of the day.
Could a ballot proposal like California’s Proposition 2 come to Ohio if Issue 2 passes?
In addition to allowing initiatives that amend the Constitution, Ohio law allows citizens to propose new statutory laws through the ballot initiative process. A person or group could use the ballot initiative to propose a law like California’s Proposition 2 in the future, and the proposal could be placed on the general election ballot for voter approval. If Issue 2 passes, however, a future ballot proposal that conflicts with Issue 2’s constitutional amendment could be challenged legally.
Do other states have laws like the one proposed by Issue 2?
A number of states have addressed the issue of farm animal care, but none have enacted a law similar to Ohio’s Issue 2. Rather, the laws follow California’s approach of prohibiting certain practices for certain types of livestock, such as egg-laying poultry, veal calves and pregnant hogs. Only Florida has enacted a constitutional amendment on farm animal care, and the Florida provision applies only to confinement of pregnant pigs. For links to other state laws on farm animal welfare, see our website at http://aede.osu.edu/programs/aglaw or visit Michigan State University’s Animal Legal & Historical Center at http://www.animallaw.info/.