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July News

 

  Kentucky amends veterinary practice code to allow veterinarians to report suspected animal abuse. Before Senate Bill 21 was enacted, Kentucky was the only state that prohibited veterinarians from reporting suspected animal abuse unless the veterinarian had obtained the client's written permission. SB 21 added the following language to Chapter 321: "If a veterinarian finds that an animal with which he or she has a veterinarian-client-patient relationship has been abused in violation of KRS 525.125, 525.130, 525.135, or 6525.137, the veterinarian may make a report to: (1) The  Office of the State Veterinarian for any animal for which an on-farm livestock or poultry care standard has been promulgated under KRS 257.196; or (2) Law enforcement for any other animal." Kentucky now joins the majority of states with laws or regulations that either mandate or allow veterinarians to report suspected animal cruelty. These states are viewable by state map or by a table that outlines the provisions of the laws.

   Mississippi Governor Reeves signs bill strengthening anti-cruelty laws in the state. SB 2658 was signed into law on July 1, 2020. The bill, spearheaded by Mississippi Citizens Against Animal Cruelty, makes it clear that each act of simple or aggravated cruelty committed against a domestic dog or cat constitutes a separate offense. In addition, a first offense of aggravated cruelty against a cat or domesticated dog is a felony with up to three years in prison or a fine of up to $5,000, or both fine and imprisonment. The law establishes a possession ban for individuals convicted of either simple or aggravated cruelty. Previously, the law provided that a first offense of aggravated cruelty was a misdemeanor and offenses committed at the same time were considered a single offense, regardless of the number of dogs or cats involved.

   Maine joins Connecticut with law allowing appointment of legal advocates to help animal victims in cruelty cases; will Illinois be the next state? In 2016, Connecticut broke legal ground with "Desmond's Law" that allows appointment of animal advocates in cruelty cases to represent the interests of animal victims. According to the University of Connecticut, animal advocates have been appointed in 70 animal abuse cases. Recently, Maine enacted "Franky's Law" that does the same in that state. In 2019, Illinois State Rep. Allen Skillicorn proposed HB 1631, which would allow the court, in a prosecution involving the injury, health, or safety of a cat or dog, to appoint a special advocate to "represent the interests of justice regarding the health or safety of the cat or dog." In all of these states, the legislation states that attorneys or law students who act in such capacities are volunteers. According to a WGEM news story, the Illinois bill has bipartisan support. 

News archives

Cases

Iowa Supreme Court, on issue of first impression, holds that landlord's accommodation of assistance animal in "no pets building" was not reasonable where another tenant had severe pet allergies and also had priority in time over tenant seeking the disability accommodation. Cohen v. Clark, --- N.W.2d ----, 2020 WL 3524851 (Iowa June 30, 2020). Cohen possessed a severe allergy to pet dander. As a result, Cohen entered into a lease agreement with 2800-1 LLC to rent an apartment relying on the fact that the apartment complex had a no pet policy. Two months into her lease, David Clark entered into a lease agreement with 2800-1 LLC to rent an apartment down the hall from Cohen. Shortly after moving in, Clark presented 2800-1 LLC with a letter from his psychiatrist explaining that due to Clark’s chronic mental illness a dog would benefit his mental health. Clark request a reasonable accommodation to have an emotional support animal (“ESA”) on the apartment premises. The leasing manager subsequently contacted the Iowa Civil Rights Commission (“ICRC”) and requested a review or a formal agency determination. A staff member of the ICRC informed Jeffrey that he had to reasonably accommodate both Cohen’s allergies and Clark’s ESA request. 2800-1 LLC allowed Clark to have a dog as his ESA while at the same time trying to mitigate Cohen’s allergies. In 2017, Cohen brought a small claims action against 2800-1 LLC seeking one month’s rent as damages and alleging that 2800-1 LLC breached the express covenant of her lease that provided for no pets. Cohen also alleged that both Clark and 2800-1 LLC breached her implied warranty of quiet enjoyment. The small claims court dismissed Cohen’s claims. On appeal to the district court, the court concluded that 2800-1 LLC made sufficient efforts that would have justified denying Clark’s request for accommodation or asking him to move to another apartment building, however, because Iowa law was not sufficiently clear, they also dismissed the claims against 2800-1 LLC and Clark. Cohen filed an application for discretionary review to which 2800-1 LLC consented. The Supreme Court of Iowa granted the parties’ request for discretionary review. The Supreme Court noted that there is no law in Iowa or any other jurisdiction that clearly establishes how landlords should handle reasonable accommodation questions with ESAs. The Court ultimately found that Clark’s ESA was not a reasonable accommodation and that the 2800-1 LLC breached its promise to Cohen that the apartment would have no pets other than reasonable accommodations. 2800-1 LLC had other apartments available in other buildings that allowed pets. Ultimately, the Court said it came down to priority in time since Cohen signed her lease first. The Court ultimately reversed and remanded the district court’s dismissal of Cohen’s case..

Federal court finds FWS' withdrawn findings regarding the importation of sport-hunted trophies from Africa were not subject to review because they caused appellants no injury and were consequently moot. Friends of Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020). Appellants consisting of conversation organizations and a safari guide challenged a series of actions of the FWS governing imports of sport-hunted animal trophies from Africa. The Appellants challenged certain findings that the Service made allowing animal trophies to be imported. The Court had reviewed a similar set of findings in another case and concluded that they were legislative rules illegally issued without notice and comment. FWS subsequently withdrew all its findings that were issued without notice and comment including the ones that were challenged by the Appellants in a subsequent memorandum. The Appellants still desired to contest the withdrawn findings. The Appellants alleged that it was illegal for the FWS to abandon its prior findings without engaging in APA informal rulemaking and that it was illegal for the FWS to announce its intent to the make the necessary findings through informal adjudications in the future. The Appellant’s claims fell into three categories: (1) challenges to the 2017 Zimbabwe findings that sport-hunting of elephants would enhance the survival of the species; (2) challenges to the memorandum by the FWS withdrawing their prior findings; and (3) challenges to the memorandum’s announcement that the FWS intends to making findings on a case-by-case basis when considering individual permit applications. The Court found that since the FWS had withdrew the 2017 findings, they no longer caused the appellants any injury which made any challenges to them moot. Ultimately the Court affirmed the district court’s judgment.

Plaintiff pet rescues alleged a cognizable injury for defendants' use of trademark and Unfair Competition Claim where defendants brokered sales of "puppy mill" dogs rather than dogs from legitimate rescue organizations. PetConnect Rescue, Inc. v. Salinas, Slip Copy, No. 20-CV-00527-H-KSC, 2020 WL 2832468 (S.D. Cal. June 1, 2020). PetConnect Rescue, Inc., Lucky Pup Dog Rescue.com and Sarah Gonzalez alleged that the Defendants fraudulently represented dogs that the Defendants sold as rescue animals in order to circumvent California law prohibiting the sale of non-rescue dogs in pet stores. On April 6, 2020, Plaintiffs filed an amended complaint against the Defendants alleging trademark infringement and dilution under the Lanham Act, unfair business practices under California’s Unfair Competition Law (“UCL”) and violations of California’s Consumer Legal Remedies Act (“CLRA”), fraud, and accounting. Several Defendant filed motions to dismiss and to strike sections of the amended complaint. The United States District Court for the Southern District of California found that Plaintiff PetConnect alleged a cognizable injury in fact in that the Defendants’ use of an infringing mark harmed Plaintiff PetConnect Rescue’s reputation and caused consumer confusion. The Defendants’ Pet Connect Rescue, Inc. brokered the sale of dogs from puppy mills rather than rescue dogs which affected Plaintiff PetConnect’s reputation. The Court also found that Plaintiff PetConnect Rescue raised a claim within the Lanham Act’s zone of interests because the Lanham Act’s protections extended to non-profit organizations’ use of marks, even when those marks do not accompany a sale. The Court refused to dismiss Plaintiffs claims regarding trademark infringement. As for the Unfair Competition claim, the Court found that the Plaintiffs had alleged sufficient facts to state a UCL violation. The Court subsequently rejected the Defendants’ motions to strike thirty-four lines or phrases from the amended complaint because Plaintiff’s use of the terms “puppy mill,” and the allegations that Defendants operate “fake” entities that “induce” purchases, reflected Plaintiff’s allegations of fraud and misrepresentation. The Court found that the Plaintiffs’ references were pertinent to the Plaintiff’s allegations. The Court ultimately denied each of the Defendant’s motions to dismiss and strike.

Case Archives

Articles

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).

When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show CircuitKjirsten SneedKentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 6 : Iss. 2 , Article 3 (2014).

Survey of Damages Measures Recognized in Negligence Cases Involving Animals, Alison M. Rowe, Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 5 : Iss. 2 , Article 5 (2013).

Animal Consortium,  David S. Favre and Thomas Dickinson, 84 Tenn. L. Rev. 893 (2017).