Saturday, August 4, 2012

Another Unenforceable Law & Photo Op Minute

If readers thought the recent arguments regarding Title 9 bordered on ridiculous, today's new photo opportunity will show you how Delaware got to this point, with laws scattered around various Titles in our code books. Animals suffer in our state because our politician are more interested in a photo op minute than creating laws that will protect animals, which is truly unfortunate.

Today various legislators and our governor had a nice little photo op for the signing of a bill that placed restrictions on tethering.

While most would think that having a bill that restricts tethering is an accomplishment, the issue with this bill is that everyone knows it is for the most part unenforceable.

There have be a number of attempts to place limitations on tethering dogs over the years.  Previously we had SB 156, which applied to Title 9.  As previously discussed, Title 9 applies to county dog control enforcement.  This bill stated the following concerning the tethering restriction:
b. Tethering is prohibited under the following circumstances:
        (v)  Between the hours of 11:00 p.m. and 6:00 a.m., unless the tether is used for less than a 15 minute period of time.”
While this version made more sense, the reason SB156 didn't go through was in part because the counties balked at having another unfunded mandate placed on them.  Since some of our counties don't pay for dog control during overnight hours, they were correct in recognizing this bill as an unfunded mandate (for once).  And as usual, the state doesn't want to pay for this service either, but they want to create the illusion that they are doing something, so another option had to be found.

Gimme My Photo Op!! (SB211)

So what are state politicians to do when they can't get the counties to pay for their photo ops?  The answer is to introduce another version (SB211) that nobody pays for (maybe).  Under Title 11, Delaware's dog cruelty statute, there are two shelters empowered to perform cruelty investigations, Delaware SPCA and Kent County SPCA. Neither are paid for their service investigating cruelty, so essentially cruelty investigations are paid for by their donors. That might even be a workable solution if it wasn't for 2 major factors - both shelters have had substantial deficits, and the unenforceability of the bill.

If you look at the most recent financials available on Guidestar for these 2 organizations, you will see that Delaware SPCA lost $573,154 (ending 6/30/10) and Kent County SPCA lost $454,237 (ending 9/30/11).  Did these losses coincide with the "No-Kill" aspirations within the state - absolutely.  At this rate, state officials may bankrupt every shelter in our state with their unfunded laws that allow the politicians stand pretty with a cute puppy dog and say "cheese".

The other factor is the language in the bill, and the fact that it's unenforceable.  As you can see below, I've highlighted the language that will make this legislation a fiasco.
Section 1.  Amend §1325(a)(6), Chapter 5, Title 11 of the Delaware Code by making insertion as shown by underlining as follows:                (6) "Cruelty to animals" includes mistreatment of any animal or neglect of any animal under the care and control of the neglector, whereby unnecessary or unjustifiable physical pain or suffering is caused. By way of example this includes: Unjustifiable beating of an animal; overworking an animal; tormenting an animal; abandonment of an animal; tethering of dog for 18 hours or more in any 24 hour period, except on land owned or leased by the dog’s owner that is not less than ten acres; tethering any dog for any amount of time if the dog is under four months of age or is a nursing mother while the offspring are present, except on land owned or leased by the dog’s owner that is not less than ten acres; and failure to feed properly or give proper shelter or veterinary care to an animal.
(13) “Tethering” shall include fastening or restraining with a rope, chain, cord, or similar device creating a fixed radius; tethering does not include walking a dog on a leash, regardless of the dog’s age.Section 2. Amend §1325, Chapter 5, Title 11, of the Delaware Code by making insertions as shown by underlining as follows:
(g) Notwithstanding any provision to the contrary, for a first offense misdemeanor violation of this section relating solely to the tethering of dogs, a warning shall be issued.(h) Exclusive jurisdiction of offenses under this section relating to the tethering of dogs shall be in the Superior Court.
I have yet to hear a good answer to how this will be enforced. Obviously Animal Control Officers can't just take neighbors word that an animal has been on the tether for more than 18 hours.  ACO's get dragged into the trashy neighbor disputes all the time, and the ability to convict on this kind of hearsay is a longshot at best.  So what is the alternative - staking out a home for 24 hours?  Again, the fact that there isn't 24 hour dog control makes that unlikely. Remember, the law only stipulates that the dog has to be off the tether for 6 hours within a 24 hour period.  A person can take the dog into the garage where they are working for a couple hours at a time, so just doing a drive by every couple hours to prove their case isn't going to cut it.  And if ACO's aren't on duty 24 hours, is the alternative having police doing 24 hour tether stakeouts?  For goodness sake, we have shootings and violent crime, and they want cops handling stake outs on tethered dog cases.  That's almost as bad as the bomb squad and police responding to a box of kittens.

Keep in mind that there were various issues brought up about this bill before it passed, so it's not like the politicians can claim the issues were overlooked, most of them were just downright ignored.  Here was a Facebook post about the penalty portion of the bill.  One issue that was brought up on June 5 was that the bill would make tethering a dog a misdemeanor criminal offense on the first offense, even without any other underlying cruelty.  Delaware Votes for Animals (DVFA), who is made up primarily of the the photo op crowd, replied on June 6 that post had "a lot of inaccuracies" because the bill "allows for a warning for first-time offenders".  What DVFA didn't say was that an amendment was scrambled out to address that issue on June 6, the very next day after the issue was brought up in this Facebook thread, so the post was spot on.  You can see that on the SB211 history.  Don't you just love the way people spin the truth.

Enforcement was also a discussed as part of that thread.  And as you can read below, it does appear our law enforcement agencies are also expected to play a part in the enforcement of this tether legislation.  It's funny though, aren't most police officers paid??  But once again we have a bill that states "Fiscal Notes - note required".  I guess this clearly refutes claims that the state is getting more stringent on fiscal impact.
Great question about enforcement Marleen! We all know that laws are only as good as the enforcement and we are happy to post that this bill, because it deals with animal cruelty, could be enforced by any law enforcement agency, including animal cruelty officers. Therefore, the burden would not fall on one agency or organization to enforce. - Delaware Votes For Animals Facebook

I just want to address who the person in the post above is, questioning the many issues with the tether bill.  Her name is Marleen Oetzel, and she runs a rescue called Lost and Found Dog Rescue that in many cases takes in dogs that have been chained their whole life.  As you'll see in the video below, she has been passionate in her endeavor to get dogs unchained.  She's even chained herself out on the street for 24 hours on behalf of the dogs in our state, to make her point that the State of Delaware needed a comprehensive tether law, and clearly her posts show that SB211 is too flawed to bring her dream for unchaining dogs to fruition. 

The other issue that makes enforcing this legislation even more ludicrous is the 10 acres or more exception added late in the game.  Seriously, do our legislators and governors really expect ACO's and police officers to carry around property plot plans for the whole state with them, since 2 of our 3 counties are primarily rural.   Of course I guess the ACO or police officer can research the property size while they sit at their 24 hour stakeout.  Yes, my head is shaking in disbelief.

I think this should give readers some idea of how Delaware ended up with animal laws scattered among so many Titles.  It should also give you some indication of why we were the first state (and hopefully last) to pass CAPA, when so many other states like New York and Minnesota had legislators who were smart enough to avoid going down this horrible path of the "No-Kill" rescue act and its many variations.

So you can also see why residents are so concerned that so many of the same players that brought us CAPA and this tether bill will also be on the task force discussed in my previous post.  This may also explain why there is no indication that the task force meetings will be open to the public.  It makes me wonder whether the lack of transparency in the upcoming task force is intended to make sure there aren't questions like you see were brought up about the tether bill. Maybe the State of Delaware could learn a lesson from Hillsborough County FL who televises their Animal Advisory Committee meetings, and has public comment at each one. Mandating only one public comment meeting in the Delaware Senate Resolution was pretty useless if the public doesn't know what the task force has been discussing behind close doors, but then again, maybe that's the intent.