Something is Rotten in the State of Ohio and its Name is HSUS

HSUSOn November 27, 2012, the Humane Society of the United States (“HSUS”) filed its Motion to Intervene in Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC., seeking to have the Ohio Dangerous Wild Animals Act (“DWA”) declared unconstitutional.  Normally, a lawsuit involves the plaintiffs (who bring the suit), and the defendants (whom the suit is brought against).  Sometimes, an entity who is not party to a lawsuit in progress seeks to become a party.  Such a party must file a Motion to Intervene.  Generally, to be admitted into the lawsuit, the intervenor must have an interest in the subject matter of the original suit.  The Motion to Intervene was granted on December 3, 2012.  This case is set to begin trial on Monday, December 10, 2012.

In its Motion to Intervene, HSUS has revealed its true intent with uncharacteristic candor.  The message is simple:

  • HSUS needs to prevail in Ohio in order to ensure its flow of private donations;
  • HSUS plans to bring similar legislation in other states;
  • If HSUS loses in Ohio, its ability to impose similar burdensome legislation in other states will be lessened; and
  • HSUS spent significant organizational funds to push the DWA through.

(See HSUS Motion to Intervene, excerpts included at the end of this post.)

All members of the reptile community, as well as the exotics community, as well as anyone who is interested in a government that is not empowered to take private property from citizens without compensation and without due process of law, should join together in opposing the DWA in Ohio.  HSUS has announced that it is poised to take this legislation to other states.  If the State of Ohio upholds legislation that allows the DOA to take exotic pets from its residents without due process, it will set precedent for the taking of dogs, cats, and farm animals.

Please support the plaintiffs in Ohio.  If they lose this case, they will need funding to appeal.  If they win, they will need funding to address whatever modifications the legislature proposes in its stead.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.

Key Excerpts from HSUS’s Motion to Intervene:

“The Humane Society is funded in part by private donations, and its ability to generate continued donor support depends heavily on the success of its efforts . . . It follows that if the legislative achievements of the Humane Society —like the DWA
Act—are overturned, the organization will lose . . . financial support.”  

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

“[A] ruling striking down the [DWA] could have a significant impact on the Humane Society’s pecuniary and reputational interests.”

“[T]he DWA Act provides a concrete and substantial benefit to the Humane Society.”

“The Humane Society undeniably has an interest in upholding the DWA Act because the Humane Society was an active proponent of the legislation, directly participating in policy discussions to develop a legislative framework, analyzing proposed legislative language, and promoting passage of the bill.”

“The Humane Society . . . expended significant resources in order to ensure the law’s passage.”

 

Wilkins et al. v. David Daniels and the Ohio Department of Agriculture

© 2012 Erika N. Chen-Walsh

From April of this year until I resigned on October 12, 2012, I was formally involved with USARK and engaged heavily in Ohio against Troy Balderson’s balderdash bill, SB 310.  I have blogged extensively on this over reaching, unconstitutional, unfunded mandate of a legislative disaster.  (See SB 310:  Kasich’s Big Expensive Blunder Poised to Kill Small Business in Ohio.”)  In June 2012, the Ohio legislature enacted and Governor Kasich signed the Ohio Dangerous Animals Act (“DAA”).

On November 2, 2012, a group of Ohio residents filed a suit in federal court captioned as Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC.  In the underlying suit, plaintiffs seek declaratory judgment, temporary restraining order, preliminary and permanent injunction and nominal damages for violations of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

I will explain the legal nomenclature in lay terms for ease of understanding.

A declaratory judgment is an adjudication of the rights and status of litigants.  Here, the plaintiffs are seeking to have the Court declare that the imposition of the burdens of (1) joining and funding the objectionable views of a private organization; (2) having one’s private property seized; or (3) obtaining and maintaining a license under Chapter 935 of the Ohio Revised Code are unconstitutional on their face and as applied to Plaintiffs because they violate the rights to freedom of speech, private property, and due process of law guaranteed under the First, Fifth, and Fourteenth Amendments to the Constitution.

temporary restraining order is a court order of limited duration. It commands a defendant in a case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction.

preliminary injunction is a temporary court order that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits.  A permanent injunction is a permanent order that precludes the other party from engaging in a particular course of conduct.

Nominal damages are nominal money damages.

Temporary restraining orders and preliminary injunctions are considered extraordinary relief.  In order to prevail on a preliminary injunction, the moving party must show (1)  a strong likelihood of success on the merits; (2) that the movant would otherwise suffer irreparable injury; (3) whether the issuance of a temporary restraining order or preliminary injunction would cause substantial harm to the non moving party; and (4) whether the public interest would be served by the issuance of a temporary restraining order or preliminary injunction.

In this case, the Plaintiffs have petitioned for a Temporary Restraining Order and Preliminary Injunction.  Although no order has been entered, sources close to the lawsuit have stated that the attorneys in the case have a “gentlemen’s agreement” that the Ohio Department of Agriculture (“ODA”) will not enforce the DAA on a temporary basis.  This should be a matter of grave concern to all exotic animal owners in Ohio because the deadline to register exotic animals restricted by the DAA has passed.  Those who did not register face repercussions.  On the other hand, registering exotic animals under the current law strengthens the position of ODA in the lawsuit.  It is a very slippery slope with significant risk.  Plaintiffs should push hard for a court order granting the preliminary injunction to protect their property rights.

The allegations of unconstitutionality are as follows:

First Amendment – freedom of association.  Plaintiffs claim that the DAA abrogates their right to freedom of association by forcing their involvement with the American Zoological Association and the Zoological Association of America.

The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  The allegations are vague as to the Fourth Amendment implications, but ostensibly, the objection is to the ability of ODA to inspect private property without a warrant.

The Fifth Amendment, inter alia, sets out rules for eminent domain and protects the right to due process.  Eminent domain is a governmental takings without compensation argument.  Plaintiffs make a claim that the DAA is tantamount to the Ohio government depriving them of their animals without procedural due process, and that their animals are property as a matter of law.

The Fourteenth Amendment contains the Due Process and Equal Protection clauses.  In very short terms, Due Process requires the government to give a party due process of law before depriving the party of property.  The Equal Protection clause says that, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”  Here, it means that Ohio exotic animal owners who are not members of AZA or ZAA are not receiving equal protection under the law.

When I was part of USARK, I summarized constitutional issues that I saw in SB 310 for Andrew Wyatt with an eye on a potential lawsuit, and Wyatt agreed.  However,  certain members of the USARK board are risk averse and have an organizational aversion to lawsuits, so those issues never came to fruition.

With respect to the allegations in the case at bar, some of the constitutional challenges are, in my opinion, very strong.  Some are not as strong.  I am not going to publicly criticize any of them because that is how lawsuits work, and I will endeavor not to write a single word that could lessen the chances of the Ohio plaintiffs from prevailing.  The doctrine of res judicata precludes litigants from later raising legal challenges in court that could have been brought in a prior lawsuit, unless new facts come to light.  In lay terms, this means that the Ohio plaintiffs need to bring every possible claim they have in one lawsuit or they will be barred from bringing them later.

On November 27, 2012, the Humane Society of the United States (“HSUS”) filed a Motion to Intervene in the Ohio lawsuit.  That request was granted in an order by United States District Court Judge George C. Smith on December 3, 2012. (See December 3, 2012 Order Granting HSUS Leave to Intervene.)

This is a very important development for the Ohio plaintiffs and the entire reptile community should pay very close attention.  Goliath has just entered the arena.  The HSUS legislative machine is fueled by hundreds of millions of dollars in donations.  The Ohio plaintiffs are operating on a very frugal budget.  The reason that HSUS is entering this case, with all of its clout and all of its money, is set forth explicitly in its Motion to Intervene:

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

(HSUS Motion to Intervene at p. 13.)

It is extremely important to the rights of reptile keepers and all exotic animal keepers to prevail in Ohio.  HSUS could win this fight just by grinding this case into the ground financially.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.  If they lose, we all lose.

There are many divisions within the reptile community, both organizationally and personally. Now is not the time for infighting among ourselves.  If reptile keepers and owners cannot come together for this common cause, the entire community is going to face an unprecedented onslaught of anti-reptile keeping legislation in the coming years.

Andrew Wyatt is a close personal friend of mine and a trusted colleague.  However, I would encourage any reptile or exotic animal keeper who has money to donate at this time to send it to the OAAO via Polly Briton and nowhere else.  The in-community fighting and rhetoric must stop or we fuel HSUS’s fight against us.  There will be another lawsuit coming down the pike shortly at the federal level, and that one is also going to need funding, but the pressing need right now is in Ohio.

 

SB 310: Kasich’s Big, Expensive Blunder Poised to Kill Small Business in Ohio

By Erika N. Chen-Walsh

“There is poison in the fang of the serpent, in the mouth of the fly and in the sting of a scorpion; but the wicked man is saturated with it.”    ~ Chanakya

May 22, 2012, Ohio’s Senate Bill 310, which went through 16 revisions in the Senate and one, big Omnibus Amendment in the House, passed the Ohio House of Representatives by a vote of 89-9. It was rushed through the Senate regarding the House amendments on the same day and passed by a vote of 30-1. SB 310 awaits only Governor Kasich’s signature before becoming Ohio law. There is no chance of veto.

SB 310 has sweeping implications for all exotic animals. In terms of reptiles, it imposes a prohibitive permitting scheme for all species of venomous snakes and certain constrictors over 12′ in length. It imposes enormous and specific liability insurance or surety bond requirements on owners of venomous snakes, the likes of which are not available. SB 310 requires owners of all restricted snakes to meet certain standards of care that have not been defined and will be set by administrative rule at some later date by group of people unqualified to define best management practices for reptiles. By administrative rule, the director of agriculture can require any information he chooses on the application to own restricted snakes and breeding restricted snakes requires a separate permit. Additional species may be added to the dangerous wild animals list or the list of restricted snakes by either legislative process or a simple concurrent resolution without full legislative process. The impact on reptile hobbyists, owners, breeders and small businesses will be enormous.

How did Ohio go from being one of the few completely unregulated states with respect to exotic reptiles, to one of the most restrictive in less than three months?

The genesis of SB 310 goes back to 2010 and Kasich’s predecessor, Governor Ted Strickland. Strickland was under tremendous
pressure from the Humane Society of the United States (HSUS) to regulate standards of care for Ohio farm animals. HSUS had threatened to file petitions for HSUS’s proposed constitutional amendment on animal care and housing. (FN1.) Strickland, caving to the pressure of HSUS’s threats, made a deal to draft an executive order. In exchange for this agreement, HSUS agreed to drop their ballot initiative for 2010 and committed to instigating no future initiatives for at least ten years. (FN2.)

On January 6, 2011, the deal brokered between Strickland and HSUS resulted in Strickland issuing an emergency executive order banning exotic pets in Ohio. (FN3.) The executive order would have authorized the Ohio Department of Natural Resources (ODNR) Division of Wildlife to adopt new rules that prevented new private ownership of wild animals, required existing private owners of dangerous wild animals to register the animals with the state, and defined the type of facilities that could own and rehabilitate dangerous wild animals. The emergency rules would be in place for 90 days. (FN4.)

Four days later, Kasich was sworn in as Ohio’s governor, having defeated Strickland in November 2010 by a narrow margin. (FN5.) By this time, Andrew Wyatt had become aware of the terms of Strickland’s well publicized deal with HSUS. In January 2011, he began contacting Kasich’s office.

By the spring of 2011, Kasich had decided not to sign Strickland’s exotic animal ban because he felt that it exceeded the authority of ODNR and because he felt that it would damage Ohio small businesses. (FN6.) Kasich blocked Strickland’s executive order until its expiry.

Then Zanesville happened. On October 18, 2011, Zanesville, Ohio police began receiving 911 calls of lions, bears, tigers, and other large, dangerous animals wandering loose. The animals, 56 in all, belonged to a man named Terry Thompson, who had kept them on a private game preserve and who chose to turn them loose just prior to killing himself. No humans were harmed by the loosed animals, but unfortunately, the animals were not so lucky. Forty-nine lions, tigers, bears, wolves, mountain lions and a baboon were slaughtered. Most of these were shot and killed by law enforcement officers within 1500 feet of their pens. One was hit by a car. No reptiles were involved in the Zanesville incident.

The public criticism against Kasich from the Zanesville tragedy was swift and condemning. Kasich, of course, refused to accept any culpability, but it turned into an enormous political embarrassment for Kasich, so much so that he sent his friend, Jungle Jack Hanna to the media to defend him. Hanna (television celebrity and Director Emeritus of the Columbus Zoo and Aquarium), a strong Kasich ally who personally donated $7500 to Kasich’s gubernatorial campaign, made the rounds on national TV claiming it was not Kasich’s fault and further stating that even if Strickland’s original ban had been left in place, there wasn’t anyone to enforce it and no place to put the animals if they had to be taken away. (FN7.)

Politicians achieve their status in life by renegotiating every promise they ever make. The most successful ones make the largest reversals. Kasich may become very successful.

Before Zanesville, Kasich claimed to be protecting Ohio’s small businesses. After Zanesville, he claimed that he blocked Strickland’s executive order because of deficiencies in that order. He became hell bent on passing prohibitive legislation against exotic animal owners as political damage control.

In December 2011, Wyatt met with Senator Troy Balderson, the senator representing the district in which Zanesville lies, and the same senator who sponsored SB 310. Wyatt also met with the director of ODA, the director of ODNR, both of their staffs, and multiple other legislators regarding the inclusion of reptiles (which have never posed a public safety threat in Ohio) in what was already taking form as a huge, restrictive legislative thundercloud for exotic animals and to educate the administration on the impact to Ohio residents and businesses. Other organizations also became interested in and around this time and they, too, began trying to influence the governor.

Senator Balderson made multiple promises to Wyatt during these meetings. Balderson assured Wyatt that only crocodilians and venomous snakes would would fall under his permit system (no constrictors), and that the system would be favorable to industry and it would be “business as usual.” He reversed on those promises.

On March 8, 2012, Balderson introduced SB 310, seeking to enact a sweeping law to establish requirements governing the possession of multiple species of animals, which would be designated as “dangerous wild animals” as well as multiple species of snakes which would be designated under the law as “restricted snakes.” He reversed on his promise to omit constrictors. He reversed on his promise to maintain “business as usual” for the reptile industry. SB 310′s provisions with respect to snakes were so onerous and expensive that they would have served to be a de facto ban on the ownership of multiple species of constrictor snakes as well as venomous snakes.

Rumors in the Statehouse circulated that Balderson, who was not elected but appointed to his senate seat by Kasich, was buckling under the pressure of the governor, who was in a frantic scramble to avoid looking bad over Zanesville. Wyatt made the strategic decision (with which I agreed whole heartedly) to discontinue discussions with Balderson because at best, he lacked the political authority to negotiate, or, at worst, he was negotiating in extremely bad faith.

Wyatt appeared on March 27, 2012 at the first opponents hearing on SB 310 before the Senate Agriculture, Environment and Natural Resources Committee. Wyatt gave compelling testimony to a standing room only crowd, amid a sea of NO SB 310 buttons provided by Wyatt, that the reptile industry generates approximately $30 million annually in the state of Ohio; that thousands make their livings or supplement their incomes by farming reptiles as a non-traditional agricultural pursuit; that a rational argument could not be made that working with any reptiles presented public safety risks, and that 90% of the impact of SB310 was directed at the reptile industry, hobbyists and pet owners. He requested that all reptiles be removed from SB 310 and that administrative rule making authority to add new species be removed as well.

Wyatt and I both appeared on April 17th, and on April 24th, each time presenting testimony that not only would SB 310 create a huge burden on Ohio commerce and small businesses, but that reptiles have statistically never posed a public safety risk in Ohio or elsewhere in the U.S.

By April 17th it was clear to us that the Senate intended to listen to virtually unending testimony on SB 310, but had every intention of passing SB 310 out of committee. During that week, Wyatt began executing its strategy to try to ameliorate the damaging provisions of SB 310 in the Ohio House of Representatives. Wyatt felt, and I agreed, that progress in the Senate was futile and further efforts there were going to be fruitless under the circumstances.

Balderson made and reneged on more promises regarding SB 310 during this time period. For example, he promised that administrative rule making authority to add new species would be removed. In fact, he put that promise into writing. But he reneged.

By April 24th, SB 310 was in its 16th version. Some opponents spoke out in favor of the sixteenth version because Balderson removed Boa constrictor , removed constricting snakes less than 12′ long, and allowed surety bonds in certain cases instead of liability insurance for venomous snakes. The inclusion of constrictors, later “bargained” back, was not a victory. Balderson took pains to agree to “concessions” that the legislature could reclaim because of his failure to remove administrative rule as promised. It was a shell game played by Balderson and Kasich against the stakeholders and their representatives who were inexperienced at the carnival.

Wyatt and I  began meeting with House representatives on April 24, 2012 and voicing our objections to SB 310. These objections were resoundingly well received in the House and we were assured that the House would not buckle to the whims of a tyrannical governor as the Senate had.

Beginning in April, several aides also intimated to us that somehow, some of the opponents of SB 310 were leveraging it against another pending piece of legislation, Ohio SB 130. In other words, if opposition to SB 310 were quelled, SB 130 might not be scheduled for committee hearing. SB 130 is a puppy mill bill and puppy production in Ohio is a much larger industry that reptile keeping. Another layer of intrigue had been added. Although we could not verify for certain this had happened, we received enough comments from enough offices, that it seemed likely. As of May 23, 2012, SB 130 still has not been scheduled for further committee hearings and the session is about to end. It was assigned to the House Agriculture and Natural Resources Committee on February 2, 2012, more than a month before SB 310 was even introduced.

On April 25, 2012, SB 310 passed out of the Ohio Senate on a vote of 30-1 and moved to the House. The same day, Wyatt was on the phone with Chairman David Hall’s office addressing the issue of administrative rule as well as other problematic features that persisted in SB 310. By this time, Wyatt and I already had appointments scheduled for the following week with more than half of the representatives on the House and Natural Resources Committee to discuss SB 310 and had contacted Kasich’s office multiple times regarding meeting with the governor to discuss SB 310. After two weeks of such attempts, Kasich’s aide admitted that Kasich would not meet with us regarding SB 310 and told us that, through her, Kasich made a personal request to the director of agriculture, Director Daniels, to meet with Wyatt and me. Unfortunately, the director’s schedule did not allow that to happen.

By May 1, 2012, we had submitted a proposed substitute bill to Representative David Hall, the Chairman of the House Agriculture and Natural Resources Committee. We were in Ohio on May 8th and 9th for continued meetings with legislators in the House, to discuss the particulars of our sub bill (which was distributed to the House Committee on May 8th) and to testify in the House Committee hearings.

Throughout hearings, we continued to hammer home the points that SB 310 represented an unfunded mandate that would fall squarely on the shoulders of Ohio taxpayers, that reptile owners continued to be disproportionately affected, that reptiles posed no safety risk in Ohio, that administrative rule to add new species violated due process rights, that the insurance requirements of SB 310 were impossible to meet because such policies did not exist, and that ideologues and imported animal rights experts were the only proponents, proponents that would drive Ohio residents out of business.

Attendance by committee members at the House committee hearings was outstanding. Members asked pointed and excellent questions and paid close attention to the testimony that was given. On two nights, these public hearings went until approximately midnight. Andrew and I appeared on behalf of the Ohio reptile community, and multitudinous Ohio residents appeared and testified as well, many in the herpetoculture community as well as owners of exotic mammals. At most hearings, opponents outnumbered proponents by more than 20 to one. Proponents were HSUS, PETA, a handful of local zoo representatives (always at least one of Hanna’s cronies from the Columbus Zoo) and imported animal rights advocates from other states.

Early on, Representative Jim Buchy (R) developed a pointed interest in support of our positions and our sub bill. Buchy sent our sub bill to drafting and through him it was proposed to the House committee. Other representatives were also opposed to the Senate version of SB 310 and it was clear to them that Wyatt’s criticisms of specific provisions were accurate.

In our May 8, 2012 meeting with Chairman Hall, he explained to us that when the House received SB 310 from the Senate, the House committee members felt that SB 310 was so problematic that there were not enough votes to pass it out of committee. Hall indicated that he would not call for a vote if they could not pass it. However, if the changes were made in the House necessary to pass SB 310 out of committee, he felt certain that the Senate would not approve it. In that case, the two chambers were required to “conference” the issue, with the governor, which would delay the session.

After May 10, 2012, no further testimony was taken on SB 310. On May 14th, seven committee members caucused SB 310 with Balderson and Kasich. We learned after that caucus that the majority of the House committee was also caving under Kasich’s will. All of the House committee members were up for reelection in November. They were anxious to get back to their districts to campaign. Balderson threatened that substantive changes would not pass in the Senate. Kasich promised that he would veto SB 310 if it arrived on his desk with substantive changes. As a result, the only changes that the House committee proposed in its Omnibus Amendment were those that both Balderson and Kasich had pre-approved.

The Omibus Amendment did not restore legislative process to SB 310. Instead, it allows the director of agriculture to add species to the restricted snakes list or to the dangerous wild animals list (or between those two lists) with approval of the General Assembly. This could be through the introduction of an amendment in the form of a bill. However, it can also be through a concurrent resolution, for which hearings, multiple readings, committees and public input are not required. A concurrent resolution only needs a simple majority vote in each chamber and may occur quite silently. This is not full legislative process.

The insurance provisions in SB 310 are either not obtainable or may be so onerous that the cost will preclude nearly all breeders from meeting the requirements. The standards of care are not defined and administrative rules could impose standards of care that are so impossible as to represent a ban on all permits. Moreover, the director of agriculture can, by administrative rule, define what information and requirements are necessary to keep restricted snakes. SB 310 is a defacto ban on keeping venomous snakes and possibly constrictor snakes over 12′ of certain species.

On May 16, 2012 , SB 310 passed the House Agriculture & Natural Resources Committee late in the evening by a vote of 17 to 4. The four Representatives who opposed the bill were Buchy, Boose, Damschroder and Hagan.

On May 22, 2012, SB 310 was read on the House floor for its third consideration. Chairman Hall testified that there had been over 15 hours of testimony taken by the House committee, more than 80 witnesses had appeared to give oral testimony and additional written testimony was submitted. He thanked Kasich, Balderson, and Balderson’s legislative aide. He said, “We made the bill stronger,” and, “I feel that we did get it right.”

Representative Terry Boose testified against SB 310. Boose asked more questions in committee than any other representative. He stated that when the House received SB 310, “I was 100% for the bill. I thought it was a good bill before listening to the 80 plus witnesses who testified.” Boose went on to list the litany of problems with SB 310. He said it created a false sense of security. He correctly noted that even if SB 310 passes, it is powerless to prevent another Zanesville, that a person could still own all those animals and still release them. He testified that SB 310 “takes away property rights, not just your neighbor next door, but businesses, valuable businesses in Ohio.”

Boose talked about the $30M to $100M annual revenues generated by the exotic animal business and said that SB 310 will “regulate them out of business.” He testified about the “out of state animal rights groups” that want to impose SB 310 on Ohio. He compared SB 310 to Ohio’s Jarod’s Law (referring to a environmental school safety law in Ohio that went into effect in March of 2006 and was repealed entirely in 2009 because the extraordinary costs of the regulations). (FN8.)

Boose noted that none of the proponents nor the committee had been able to find insurance or surety bonds with the language and terms SB 310 will require. He noted that SB 310 will force this businesses underground. He testified that the bill was devoid of any of the rules that it seeks to enforce. He said, “I cannot vote for this bill.”

Wyatt and I applaud Boose for testifying that, “When we pass laws that people cannot obey, then we destroy the Rule of Law and create a lawless society.”

SB 310 passed in the Ohio House of Representatives by a vote of 89-9. Those that voted against it were: Representatives Boose, Buchy, Conditt, Damschroder, Goodwin, Christina Hagan, Martin, Newbold, and Uecker. It immediately moved to the Senate the same day, where it passed by a vote of 30-1. The sole senator voting against it was Senator Jordan.

This is a sad day for reptile keepers in Ohio. We applaud the Ohio legislators that held to their promises and had the courage, the integrity and the intelligence to stand up for Ohio businesses and commerce in light of the pressure and hysteria of the ideologues to which Kasich and Balderson succumbed.

FN1 http://ohioansforlivestockcare.com/

FN2
http://industry.ohiopork.org/PageResources/Agreement_reached_between_Ohio_agriculture_and_HSUS.pdf

FN3
http://ocj.com/2011/01/strickland-issued-executive-order-completing-agreement-between-ohio%E2%80%99s-agricultural-leaders-and-hsus/

FN4 Id.

FN5 http://www.washingtonpost.com/wp-dyn/content/article/2010/11/02/AR2010110206305.html

FN6 http://www.plunderbund.com/2011/10/21/kasich-refusing-to-take-responsibility-for-blocking-dangerous-animal-ban/

FN7 Id.

Ohio SB 310 – Just Say No!

By Erika N. Chen-Walsh

On April 26, 2012, the sixteenth version of SB 310 passed out of the Ohio Senate and moved to the Ohio House of Representatives. Even in this sixteenth revision, SB 310 is over reaching and will have a huge and negative impact on Ohio’s reptile breeders and owners. It is a sweeping, unfunded mandate that establishes an extensive and expensive permitting system for dangerous animals, restricted primates and restricted snakes with expansive powers granted to the Ohio Department of Agriculture.

SB 310 continues to be fraught with problems; it continues to be a bill that is being pushed for political capitol as opposed to good law for Ohio Citizens.  The sixteenth redux still allows any additional species to be added without legislative process by the Director of Agriculture through administrative rule after  two year moratorium.   Standards of care remain undefined.  Sen. Balderson’s bill will have a deleterious effect on Ohio commerce and will destroy small businesses while failing to accomplish its primary goal:  enhancing public safety.  Lawmakers should vote “No” on SB 310.

In his sponsorship testimony, Senator Balderson stated that the “simple” goals of SB 310 are to:  (1) protect Ohio’s citizens; (2) to preserve legitimate, law abiding individuals who care for wild animals, and (3) to put standards in place to ensure the safety of these animals.  He acknowledged that the breeding and trade of snakes represents a “very large industry in Ohio.”

In fact, the reptile industry in Ohio generates approximately $30 million in revenue annually.  Ohio’s unemployment rate as of March 2012 was 7.5%.  Ohio’s budget deficit for 2012-2013 is estimated to be as high as $8 billion, a budget deficit that Governor Kasich has promised to close without raising taxes.

The business owners that generate that $30 million pay taxes, employ Ohio citizens, raise their families and make their livelihoods in the Buckeye State.  If SB 310 passes in its current version, these Ohio business people will either go out of business, leave the state, or go underground.  SB 310 will kill this viable section of commerce that Sen. Balderson himself describes as “very large.”

Perhaps most importantly, though, in spite of its undeniably deleterious effect on the Ohio economy, SB 310 still fails to protect public safety.  There is simply no way to cram hundreds of species into a single “one size fits all” legislative solution.  Lions, tigers, bears, and large primates are materially different from snakes and other reptiles.

Statistics on snake deaths and snake injuries have been kept since 1990.  In Ohio, there has never been a death or injury to any member of the public resulting from a snake since 1990. Twenty-two years.  Zero public safety issues.  There have been three deaths and two injuries only to owners resulting from their own snakes in that time period.

The proponents of SB 310, with few exceptions, have been mostly professional animal rights activists and their imported experts.  Proponents of SB 310 have testified regarding to exactly two of these incidents.  They have further testified that the sale of cobras, vipers and other deadly venomous snakes out of paper cups at flea markets is common place throughout the State of Ohio.  Even if this were true, there are no reported incidents of these alleged thousands of Dixie cup cobras harming people.

The proponents have not provided statistics on the danger of snakes, and they have provided no testimony demonstrating public safety risks from snakes in Ohio.  They have not because they cannot.  Those statistics do not exist.  Snakes pose no safety risks to the Ohio public.  Sen. Balderson’s public safety concern is valid only with respect to dangerous animals.  Trying to cast his net wide to include animals that have never posed a risk to the citizens of Ohio creates the kind of large and expensive government that Ohio cannot afford.

The funding of SB 310 is something that was not addressed in the Senate.  Sen.  Balderson admits that it will cost Ohio taxpayers approximately $800,000.00 to implement SB 310.  Sen. Hite admitted that the number of animals that will be caught in SB 310’s massive net are unknown.  No one has speculated about the massive ongoing costs of running the bureaucratic behemoth created by Sen. Balderson’s bill.  The only certainty is that whatever the cost of running this extensive permit system, it will fall on the shoulders of the Ohio taxpayers.  The only question remaining is how much Ohio’s citizens will pay to cover the cost of this unfunded mandate.  Neither Sen. Balderson nor the proponents of SB 310 has answered this question.  They have not because they cannot.  The Senate passed SB 310 by 30-1 without knowing how much it will cost, how many small businesses will be affected by it, and how the tax payers will cover their unfunded mandate.

SB 310 fails its third prong as well.  Sen. Balderson testified that he wanted to protect animal welfare. However, SB 310 defers all provisions about animal welfare and best management practices to a future committee.

Some opponents of SB 310 have spoken out in favor of the sixteenth version because Sen. Balderson removed boa constrictors, removed constricting snakes less than 12′ long, and allowed surety bonds in certain cases instead of liability insurance.  Sen. Balderson had promised prior to introducing SB 310 that boa constrictors and constricting snakes would not be included.  Their inclusion, later “bargained” back, is therefore a somewhat diluted victory.  It is foolish to agree to “concessions” that the legislature has taken pains to ensure can be reclaimed in two years.  It is a shell game played by politicians with stakeholders and their representatives who are inexperienced at the carnival.  Backing the sixteenth version of SB 310 is a death nell to snake owners and breeders in Ohio.

The real problems with SB 310 remain.  These include the following:

  • ANY additional species can be added after two years by administrative rule and not through legislative process (boa constrictors and small constrictors can come back into the restricted category in two years and there will be no hearings the next time);
  • The insurance/surety bond requirements as written in the current version are either not obtainable or may be so onerous that the cost will preclude nearly all breeders from meeting the requirements;
  • The standards of care are not defined and administrative rules could impose standards of care that are so impossible as to represent a ban on all permits;
  • Constrictor snakes continue to be included in the current version; and
  • The entire permit scheme in SB 310 should not apply to snakes.  Permit systems are dangerous red herrings to which voters should pay attention.  Once snake owners agree to a permit system, they are on a very slippery slope because modifying a permit system in place is much easier than establishing one at the outset.  Once it is reasonable to permit cobras, 20′ pythons seem reasonable.  Once a 20′ python requires a permit, a 10′ python should also require one, and then a 3′ python, and then an iguana, and so on.

The United States Association of Reptile Keepers (USARK) has submitted a proposed substitute bill to the House Agriculture and Natural Resources Committee that addresses all of these concerns.  Key features of the USARK proposal include:

  • Defined standards of care and best management practices for all venomous snakes that include requirements for locked enclosures, provisions for the attainment and financial responsibility for anti venom, labeling requirements for all venomous snakes, including signage, identification, and escape protocols.
  • A strict liability provision to make owners liable for any harms caused by restricted snakes.
  • Defined protocols to protect first responders entering facilities or homes where restricted snakes are housed.
  • A viable alternative to a permit system.
  • Defined access for educational purposes to protect the public safety.

USARK remains committed to working with the Ohio legislature to arrive at a bill that will protect public safety, protect Ohio small business owners and commerce, and protect the welfare of reptiles.  USARK will be in Columbus on May 8-10, 2012 to fight against SB 310.

Ohio Dangerous Wild Animals and Restricted Snakes in the Harsh Light of Reality

Introduction

On March 8, 2012, Senator Troy Balderson (R) of Zaneville introduced SB 310, which seeks to enact a sweeping law to establish requirements governing the possession of multiple species of animals, which will be designated as “dangerous wild animals” as well as multiple species of snakes which will be designated under the law as “restricted snakes.”    Sen. Balderson stated in his December 8, 2011 Update on Wild Animal Ownership in Ohio, his goals are, “First and foremost . . . [to] ensure the public’s safety from possible danger.  Second . . . to preserve the ability of small businessmen and women to maintain operation in our state. Finally. . .to ensure that the dangerous and wild animals in Ohio are properly cared for and kept from harm.”

Snakes should be stricken from SB 310.

Sen. Balderson’s goals are admirable and are policy goals befitting a public servant.  However, SB 310 over reaches, and it  over reaches to the detriment of Ohio citizens.  The world of animals SB 310 seeks to legislate cannot be crammed into a one-size-fits-all solution in terms of protecting the public or protecting the animals.  Snakes do not belong in the same legislative scheme as lions and wolves.  A chimpanzee that can apprehend a human being running at top speed and do substantial damage in a matter of seconds is very different from a python or a boa constrictor, which at top speed can slither along at approximately one mile per hour.  A dawdling human being can easily out-walk a python or a boa constrictor. (http://www.sandiegozoo.org/animalbytes/t-python.html and http://www.sandiegozoo.org/animalbytes/t-boa.html , last accessed April 9, 2012.)

In addition, SB 310 wholly fails to preserve the ability of Ohio business owners dealing with reptiles to continue to operate within the State.

What is Dangerous?

Statistically, snakes pose no danger to the Ohio public.  Since 1990, there have been two snake related deaths in Ohio.  In both cases, owners of venomous snakes were killed by their own animals.  There have been two snake injuries in the same time period. In one case, it was another owner of a venomous snake who was bitten.  In the last case, a venomous snake bit a zookeeper.   Owning venomous snakes is analogous to sky diving.  Certainly, sky diving is dangerous to the participant, and if something goes wrong, death or serious injury to the sky diver is likely.  It is also possible that the sky diver, in the course of plummeting to the earth, could take out a pedestrian or crash into a car.  Nonetheless, sky diving is legal in Ohio and throughout the U.S.

There has been no documented case of a non-venomous snake of any species causing injury or death in Ohio since 1990. In fact, on a nationwide level, there have been only 17 deaths resulting from snakes of all varieties since 1990.  According to the American Pet Product Manufacturers Association (APPA), Industry Statistics & Trends, in 2005/2006 there were approximately 11 million reptiles living as pets in private hands in this country.  The percentage of deaths or injuries is therefore miniscule.

Conversely, during the period 1990-1998 alone, there were 39 horse related deaths in the state of Ohio. Eleven of these deaths were  children.  American Medical Equestrian Association News, June 2000, Vol. XI, No.2.  According to the Center for Disease Control, there are more than 100,000 horse related injuries per year throughout the country.  Ohio’s solution to the inherent danger associated with equine activities is a legislative scheme requiring participants in equine activities to assume liability for participating in an inherently dangerous activity. Ohio ST § 2305.321 states in pertinent part that “an equine activity sponsor, equine activity participant, equine professional, veterinarian, farrier, or other person not liable in damages in a tort or other civil action for harm that an equine activity participant allegedly sustains during an equine activity and that results from an inherent risk of an equine activity.”  Ohio imposes all liability upon the participant who chooses to engage in equine activities, and horses have been far more dangerous to Ohio residents than any species of snake or reptile.

There are approximately 5 million people bitten by domesticated dogs in the U.S. each year with approximately 900,000 of those bites requiring medical attention.  Ohio also has a provision for that:  strict liability on the part of the owner.  Ohio ST § 955.28(B) states in pertinent part that, “The owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog.”

Statistics demonstrate that snakes pose no measurable risk to Ohio residents, and if the legislature feels that a protection needs to be preemptively put into place to protect its residents, it should be one of strict liability of the owner in the event of injury, not an elaborate legal quicksand of permitting and criminalization that will cost the taxpayers millions of dollars to run and will still be impossible to enforce.

Commerce

The Ohio reptile industry is worth $30 million in annual revenues and it is a livelihood to the thousands of small business owners.  These business owners not only make their own living, they employ others and pay income and sales taxes in Ohio.  One reptile breeder in Ohio alone earns $2.5 million in annual revenues supplying reptiles, including boa constrictors and pythons, to major retailers nationwide.  This same individual has an annual payroll of $750,00 and he breeds 230 species of snakes.    Ohio’s projected budget shortfall for 2012 is estimated to be $3 billion and its unemployment rate as of January 2012 was 7.7%.  Ohio cannot afford to put thousands of small business owners out of business.

In a distressed economy, fiscal conservatism requires that the Ohio legislature look carefully at the financial risk that will be imposed upon Ohio constituents by SB 310.  Notwithstanding the economic recession that has engulfed the US, the pet industry experienced a 5.3% growth between 2010 and 2011.  Total revenues nationwide increased from $48.35 billion in 2010 to $50.96 billion in 2011. APPA projects a steady 3.8 percent growth rate through 2012, with nearly $53 billion in overall pet spending.

Ohio simply cannot afford to foreclose business and employment opportunities to its citizens based on an imagined risk that has never been demonstrated in this state or even in this country with respect to snakes.

The Welfare of the Snakes

SB 310 fails to protect the welfare of snakes.  Indeed, since 1998, there have only been three cases of neglect or abuse in Ohio involving reptiles that did not involve hoarding.  Of these, two were abandoned pet stores.  The third was a 10 year old child who stomped a 10′ python to death because he did not like snakes.  Ohio does not have an animal welfare problem relating to snakes.

The standards of care proposed in SB 310 are not defined and the people who are best qualified to make any such definitions are the small breeders that SB 310 will eliminate.  But the issue about snake or reptile welfare is moot.  Reptile abuse and neglect has simply not been part of Ohio culture.  If the legislature is truly concerned about animal welfare, Ohio should work on puppy mill legislation to ameliorate the demonstrated suffering of thousands of dogs in puppy mills in this state.

In addition, Ohio already has an animal cruelty statute (Ohio ST § 959.13) which makes it illegal to:

(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 inhuman[e] manner.

Further defining standards of care for multiple species will create an bureaucratic nightmare, impossible and expensive to enforce.  It is legislative quicksand that will cripple the Ohio economy and still fail to protect the welfare of the animals.

There is a conservation concern with eliminating private snake breeders.  In snake breeding, the private sector breeders are ten years ahead of zoos in terms of the species reproduced and overall success rate.  Many of these species are threatened in their natural environments due to  extreme habitat loss and loss of species diversity and density. Without the private breeders, these animals may be forever lost.  With private reptile breeders, there are few species that cannot be successfully maintained in perpetuity in captivity. They can prevent extinction and preventing extinction is also part of animal welfare.

Conclusion

SB 310 was born out of a tragic incident.  On October 18, 2011, Zanesville, Ohio police began receiving 911 calls of lions, bears, tigers, and other large, dangerous animals wandering loose.  The animals, 56 in all, belonged to a man named Terry Thompson, who had kept them on a game preserve and who chose to turn them loose just prior to killing himself.  No humans were harmed by the loosed animals, but unfortunately, the animals were not so lucky.  49 lions, tigers, bears, wolves, mountain lions and a baboon were slaughtered. Most of these were shot and killed by law enforcement officers within 1500 feet of their pens.  One was hit by a car.

No reptiles were involved in the Zanesville incident.  No humans were injured by the animals that were loosed in the incident.  No sane person would like to see the Zanesville incident repeated.  It was an unimaginable tragedy and it was a blessing that no humans were harmed by the large and dangerous animals that were set loose from their enclosures.  However, no laws, no matter how strict, would have prevented what happened in Zanesville.  If Terry Thompson had all of the permits and insurance in place that SB 310 would require of him, he still would have been mentally ill.  He still would have loosed his animals, ensuring their demise, and then killed himself.  No matter how well-intentioned Sen.  Balderson or the Ohio legislature is, they will never be able to enact a legislative scheme that will prevent violent people with violent intentions from committing acts of violence.  If that were possible, Ohio would have no murders, no child abuse, no domestic violence.

SB 310 misses its mark with snakes.  It does not protect the public.  It does not protect Ohio business owners and commerce, and it does not protect the welfare of the animals.  Snakes should be removed entirely from SB 310.