“No wire floors,” Pennsylvania appellate court tells dog breeders

Or,  “Dogs are not chickens”

HARRISBURG,  Pennsylvania — A three-judge Pennsylvania Commonwealth Court panel on September 9,  2016 ruled that the Pennsylvania Department of Agriculture violated a 2008 state law by allowing commercial dog breeders to use wire kennel flooring and by relaxing a requirement that dogs have free access to an exercise area.

Enforcement regulations issued by the Pennsylvania Department of Agriculture “allowed nursing mothers to be kept in cages with 50% wire flooring and only required breeders to provide them with daily access to exercise,” summarized Associated Press.

Agency bragged about law yet undercut it

The Pennsylvania Department of Agriculture declined comment on the ruling.  Despite having issued enforcement regulations undercutting the 2008 law,  the Pennsylvania Department of Agriculture web page about kennel licensing (http://www.agriculture.pa.gov/Protect/DogLaw/Kennel%20Licensing/Pages/default.aspx) has for approximately seven years opened by explaining that “Act 119,  the new dog law,  was signed into law by Governor [Ed] Rendell on October 8,  2008.  This legislation was enacted to help Pennsylvania to rid its reputation as the ‘Puppy Mill Capitol of the East.’

“The updated law,”  the Pennsylvania Department of Agriculture kennel licensing web site continues,  “is designed to greatly improve the treatment dogs receive while in commercial kennels.  Under the old law,  dogs could spend their entire lives in cramped,  stacked cages with no opportunity to exercise and very little care,  but no more.  Now, dogs will benefit from larger cage sizes without wire flooring,  and mandatory exercise periods and care by a trained veterinarian.”

“Eviscerated” law with exemptions

Recounted Animal Legal Defense Fund spokesperson Natalie Lima,  “The Pennsylvania Department of Agriculture,  which is charged with administering and enforcing the dog law [Act 119],  eviscerated key elements of the law by issuing two broad exemptions for puppy mills.  After exhausting other channels for challenging the exemptions,  ALDF” and ALDF donors Barbara Keith, Andrea Shatto and Margaret Ehmann,  all Pennsylvania residents and dog owners,  “sued to have them struck down.  The American SPCA assisted by filing an amicus curiae (“friend of the court”) brief in support of the Animal Legal Defense Fund’s lawsuit.

“Being confined to wire strand flooring,”  charged Lima,  “is akin to exclusively walking on a suspended cage,”  like the wire cages long used for egg-laying hens and other poultry.  “Puppy mills use this as flooring so dog waste falls through the wire,”  explained Lima, “making cleaning easier.  For the dogs,  it’s painful, hard to stand and walk on and causes serious paw injuries and deformations.”

The 2008 Pennsylvania Dog Law “banned wire strand flooring in primary enclosures for dogs over 12 weeks of age,  and required ‘unfettered access’ to an outside exercise area for dogs over 12 weeks of age,”  Lima said.

Humane agent refused to cite breeder

Controversy over enforcement of the 2008 Pennsylvania Dog Law heated up while the September 9,  2016 Commonwealth Court verdict was pending when  Lancaster County district attorney Craig Stedman on August 11,  2016 announced that “state police had filed a citation charge in the case involving a puppy named Libre,”  a 15-month-old Boston terrier suffering from severe demodectic mange who had become a social media cause celebré,  and that Stedman himself had petitioned the court seeking to suspend the appointment of Lancaster County SPCA chief executive Susan Martin as a county humane officer,  because Martin had refused to pursue a prosecution of the breeder,   Benjamin S. Stoltzfus, 33, of Quarryville.

Appointed as a humane officer in June 2014,  Martin on August 17,  2016 “knowingly, intelligently, and voluntarily agreed to the revocation of her powers and authority,” according to a statement issued by the Lancaster County district attorney’s office.

Said case could not be prosecuted

According to Liz Evans Scolforo of the York Dispatch,  “Four-month-old Libre was saved by a delivery truck driver who saw him a number of times over a two-month period at an Amish dog breeding facility, and convinced the owners to give him the dog on July 4,  2016 so he could get help for it.”

Martin had argued that Stoltzfus could not be prosecuted successfully because it would be impossible to prove “beyond a reasonable doubt that the individual willingly and knowingly grossly neglected care for the animal intending to cause foreseeable grave injury or harm,”  she told Tom Knapp of the Intelligencer-Journal.

Complained of cost of doing prosecutions

Martin also complained to Knapp that “driving to and investigating every [cruelty and neglect case] report was quite time-consuming,”  placed her in “dangerous neighborhoods,”  and was expensive.

“When you charge someone with cruelty,”  Martin said,  “you have to keep and care for their animals not only until the hearing but also if they are found guilty until the appeals process has been completed, which can take years. Recently,  we held and cared for 10 horses for two months, costing us $20,000.”

Law cut number of licensed breeders

Despite the gaps in the 2008 Dog Law enforcement left by Pennsylvania Department of Agriculture enforcement regulations,  “Legislative efforts to clamp down on puppy mills have driven scores of large scale commercial breeders out of business or out of the area,”  assessed Colin Deppen of the Harrisburg Patriot-News in December 2015.

“In some cases,  those who stayed have slid into unregulated and under-the-radar breeding networks exploiting licensing loopholes and legislative blind spots,”  Deppen cautioned.  “Even amid what has been described as the slow death of licensed commercial dog breeding in Pennsylvania,  Lancaster County continues to lead the state in licensing fees, with roughly $50,000 collected in 2015.  The next highest total is just half of that,  with $25,000 collected in Allegheny County.  Fee collections totaled roughly $400,000 this year,  statewide.

Commercial kennels down 80%

“According to the Pennsylvania Department of Agriculture,”  Deppen added,  “there were 2,765 licensed kennels in Pennsylvania in 2007,”  513 more than in 2015.

The number of licensed kennels large enough to be considered commercial,  housing 60 dogs or more,  meanwhile dropped from more than 300 to just 66.

The Pennsylvania kennel licensing requirements start with facilities housing 26 dogs or more.

Non-enforcement

The current Pennsylvania Dog Law requirements,  passed with the strong endorsement of then-Governor Ed Rendell,  were at first aggressively enforced by then-state Bureau of Dog Law Enforcement attorney Jessie L. Smith.  Rendell’s successor,  however,  Tom Corbett,  who served a four-year term beginning in 2011,   transferred Smith from the Office of Attorney General,  which prosecuted dog law violations,  to the Department of Agriculture,  which licenses breeding kennels but does not do law enforcement.

Smith returned to the Office of Attorney General in January 2012,  but was no longer assigned to doing dog law enforcement.

Corbett also renamed the agency the Dog Law Enforcement Office,  and put it under Lynn Diehl,  a former banker and Republican Party volunteer with no humane law enforcement experience.

Catalog of failures

Michael Pechert,  previously Pennsylvania executive deputy secretary for agriculture,  in 2012 succeeded Diehl,  who was transferred to a post at the Department of Corrections

“Under Diehl’s supervision no commercial kennels were inspected between July 1,  2011 when the canine health regulations were to go into effect,  and early 2012,”  Philadelphia Inquirer staff writer Amy Worden reported, “leaving thousands of dogs in the largest kennels in the state with no oversight for well over seven months,  through the coldest months of the year.  In April 2012, at the first meeting of the Dog Law Advisory Board since Governor Tom Corbett took office in January 2011,  Diehl admitted that only 17 of 52 commercial kennels were in compliance with regulations that required ventilation systems,  improved lighting,  and monitoring for temperature,  humidity and ammonia levels.

“Also during Diehl’s term,”  Worden added,  “the office granted a kennel license to the wife of Lancaster County breeder Martin Zimmerman,  of Silver Hill Kennel,  who was unable to get his license renewed because of an animal cruelty conviction.”

“Everything done to ignore the law”

In September 2012 the Pennsylvania Dog Law Enforcement Office revoked the Silver Hill Kennels license.  At approximately the same time,  however,  the Dog Law Enforcement Office eliminated the position of Bureau of Dog Law Enforcement staff veterinarian Danielle Ward.

Days later,  the Pennsylvania Dog Law Advisory Board found in a “nearly 100-page report  that the state has failed to enforce critical components of the dog law and companion canine health regulations, leaving close to 500,000 dogs in 2,000 kennels at risk,”  summarized Philadelphia Inquirer staff writer Amy Worden.

Said subcommittee member Thomas Hickey,  “The data show that by design, everything was done to ignore enforcing the law.”

“Nothing was happening”

Key finders included that breeders went unpunished despite failing to vaccinate dogs for rabies as required;  breeders convicted of cruelty and other repeated violations continued to see their licenses approved;  and the Bureau of Dog Law Enforcement often did not follow up orders to kennels to make improvements.

“Everywhere we turned, nothing was happening,” Hickey told Worden.

Hickey,  founder of a rescue group called Dogshome and a political action committee called DOGPAC, helped to draft the 2008 Dog Law.  He died from a stroke on July 17,  2016,  at age 61,  seven months after his wife Sharon died of cancer at age 59.

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