It is recommended that the City Council adopt an Urgency Ordinance and approve a regular Ordinance amending Chapter 7.08 of Title 7 of the San Jose Municipal Code as follows:
1) Amend Chapter 7.08 by amending the definition of “Pet Shop,”
2) Create a definition in Chapter 7.08 of Title of “Building” for the purposes of Chapter 7; and
3) Amend the conditions relating to animal facilities in Section 7.08.730; and
4) Amend Section 7.08.830 regarding Location of Sale to add 7.08.830(c) to include agricultural shows or exhibits as a place to sell animals.
BACKGROUND
On April 10, 2001, the City Council enacted an Urgency Ordinance to prohibit outdoor animal sales. This Ordinance was in direct response to community complaints regarding animals housed in over-crowded, unhealthy and unsanitary conditions at the Berryessa and Capitol Flea Markets. This Ordinance was enacted on an urgency measure and must be extended until the permanent Ordinance is in place. Council action to enact an Urgency Ordinance and approve the permanent Ordinance will ensure the prohibition of outdoor animal sales becomes a part of
Title 7.
In staff’s initial report nine violations were cited at the Berryessa Flea Market. Since the Council’s adoption of the Urgency Ordinance, four additional violations have occurred at the Berryessa Flea Market. Although staff regularly inspects the Capitol Flea Market, no additional violations have been observed.
As of May 7, 2001, two animal vendors remain at the Berryessa Flea Market, the Puppy Connection and R & R Mendoza who sells reptiles. R & R Mendoza’s permit will expire on May 18, 2001 and the Puppy Connection will expire on June 24, 2001. There is only one vendor at the Capitol Flea Market, Paradise Birds whose permit will expire March 3, 2002.
In staff’s report to Council on April 10, 2001, the following findings were reported:
1. It is difficult, if not impossible, to provide animals with adequate protection from the elements. Extreme temperatures can result in stress to animals, which have been documented by inspectors in the field. Adequate heating and cooling systems are required within an enclosed building to maintain a safe and healthful environment for animals offered for sale. No outdoor animal vendor has been able to comply with the Urgency Ordinance standards.
2.
The vendors have demonstrated consistent pattern of disregard for
compliance with City animal regulations.
Since
the adoption of the Urgency Ordinance, Code Enforcement Inspectors have visited
both Flea Markets on a regular basis.
Since April 10, 2001, inspectors have issued four citations for a total
of fourteen over a nine month period.
3.
Extraordinary efforts are required to ensure compliance with minimal
City standards. Staff continues to
inspect each facility a minimum of twice a week. While there is one Animal Code Enforcement Officer, other
inspectors are re-deployed to supplement the services of this officer. This level of service will be required until
animal vendors come into compliance and routine inspections can be reinstated.
The conditions that led to staff’s
recommendation for the adoption of the Urgency Ordinance remain.
Rescue Groups
Staff has been working with various rescue groups in response to their concerns regarding the prohibition of outdoor animal sales. Because rescue groups fall under the definition of a “Pet Shop” they are subject to their requirements to have an Animal Facilities Permit in order to adopt out animals in public places. Staff understands that some rescue groups use outdoor areas for this purpose, such as parking lots and sidewalks in shopping centers and other gathering places. Under the Urgency Ordinance and permanent Ordinance, these groups would also be prohibited from displaying animals for adoption outdoors.
While staff acknowledges the inconvenience the Ordinance will have on rescue groups, there is no legally defensible way to separate the rescue groups’ activities from those of commercial vendors.
In recognition of the significant contribution rescue groups make to the reduction in unwanted animals in the City, the following suggestions are intended to assist rescue groups performing their service to the community:
1. The City’s newly formed Animal Services Division can become a partner with all rescue groups to identify potential homes for unwanted pets. Because the City is beginning to develop its own animal program the timing is prime to develop key partnerships with the rescue groups. Referrals from the City’s animal shelter could greatly enhance the rescuers’ access to potential homes for animals they are attempting to place.
2. Media can be used to advertise animal rescue as a resource for those looking for specific pets. The City’s animal program could partner with interested groups to promote adoption through its web site, through public service announcements, as well as conventional advertising such as print and electronic media. The majority of rescue placements occur as a direct result of media outreach, especially websites.
3. Eliminating outdoor animal sales will reduce the population of unwanted pets and will lessen the burden on rescue groups. Animals offered for sale in outdoor settings contribute to impulse purchase that ultimately leads to animals surrendered to shelters or worse, abandoned. The purchase of a pet is a substantial commitment and, the purchaser should consider the ultimate size and behavior of the animal before making an impulse purchase. The Flea Markets and other impromptu locations are unsuitable for such a purchase
4. The Ordinance ultimately protects the health and well being of animals. Rescue groups are interested in reducing the needless suffering of animals. By placing altered animals in homes, countless animals are spared unnecessary suffering and pet overpopulation is decreased. The Ordinance in its own way serves this purpose as well. By ensuring animals offered for sale are housed in humane and sanitary conditions, the City too is ensuring a large part of our animal population is protected from suffering.
Livestock and 4H Activities
The second issue, concerning 4H activities, was raised as a Council concern at the hearing April 10, 2001. Currently, Section 7.04.040 provides an exemption from permit requirements for agricultural shows or exhibits, such as a 4H or other agricultural activities. The San Jose Municipal Code does not address whether the animals at an agricultural show or exhibit may be sold. In order to clarify this issue, a provision could be added in Section 7.08.830, which would allow sales of animals at agricultural shows or exhibits. The proposed amendment to the Ordinance was intended to apply to the pet shop locations and does not extend to the any agricultural animal activities. The environment required for care of livestock is distinct from that of household pets.
Concerns have also been raised from animal breeders that the Ordinance would also apply to them as well. The Ordinance does not apply to breeders who are not defined as a “Pet Shop” and are required to have a separate “Kennel Permit.”
Staff has been working with numerous animal and rescue groups as well as the Humane Society to address specific concerns. Staff will also be meeting with a group representing animal rescue on May 21, 2001 to review the impact of this Ordinance on their activities.
This memo has been coordinated with the City Manager’s Office, and the City Attorney’s Office.
JAMES R. DERRYBERRY, DIRECTOR
Planning, Building and Code Enforcement