SPRING 2017 Published by the Ohio State Bar Association Animal Law Committee

Animal Law News

Animal Cruelty Prosecution Kyle Silvers, Esq. and Jeffrey Holland, Esq.

An essential area of animal law is the prosecution of animal cruelty cases. These cases, however, can present unique considerations. INSIDE For example, animal cruelty—and its prosecution— Lawyering and life �����������������������������������������������������������������3 are often part of a larger pattern of abuse and related Ohio legislative update ����������������������������������������������������������4 to other crime such as domestic violence. Also, the Message from the chair ���������������������������������������������������11 victims themselves are unique. Animals are defenseless, vulnerable and unable to verbally describe the abuse that has been inflicted upon them. Because of that, animal cruelty prosecutors must rely on the tools used in animal cruelty cases, such as a pinch test to determine

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dehydration or a Body Condition can focus more exclusively on the penalties for animals abused by the Score (BCS), frequently used by nuances of animal law. Among owner, manager, or employee of veterinarians to assess muscle and these is the determination of what a dog kennel. (“Nitro’s Law.”) All fat or overall body condition. constitutes suffering for an animal, animals which are not “companion Those who prosecute animal cruelty and how, and if, that suffering animals” are covered by Ohio cases are also unique in that, in the can be remedied or relieved. Rev. Code § 959.13, which has state of Ohio, pursuant to Ohio remained virtually unchanged The primary animal cruelty statutes Rev. Code § 2831.18, prosecutors for over 100 years. All offenses are Ohio Rev. Code § 959.131, may be employed by a humane require proof of reckless conduct, which applies to companion society to prosecute violations of and are all second degree animals, and Ohio Rev. Code § law relating to cruelty to animals. misdemeanors, regardless of 959.13, which applies to all other One of these prosecutors is J. the severity of the offense. animals, including livestock and Jeffrey Holland, Esq., of Holland wild animals. Companion animals There are also statutes which & Muirden in Sharon Center, include all dogs and cats, and all specifically prohibit abandoning Ohio. Jeff has prosecuted animal other animals kept in a residential animals and animal fighting. cruelty cases in more than 30 Ohio dwelling, with some exceptions. Interestingly, dog fighting is a felony counties and describes what he does “Knowingly” abusing a companion on a first offense, while cockfighting as “good, solid, important work.” animal is a first degree misdemeanor is only a 4th degree misdemeanor. In prosecuting each of these on a first offense, and a fifth degree As for the types of cases Jeff tries, cases, Jeff obtains a resolution felony on each subsequent offense. he describes them as all important of the board of directors to With the passage of “Goddard’s and all interesting. But perhaps provide notice to the court of his Law,” effective Sept. 13, knowingly three of the most memorable designation as a prosecutor for causing “serious physical harm” cases involved a defendant who animal cruelty cases. He charges to a companion animal is a fifth sacrificed his daughter’s black lab only the court appointed rate. degree felony on a first offense. to appease the Nigerian God of Jeff then must work within the Negligently causing unnecessary Iron; a cat who was stomped to statutory constraints, and finds that pain or suffering to a companion death to invoke the power of Satan; unlike “generalist” prosecutors, who animal is a second degree and a hoarder, who in addition to repetitively deal with more typical misdemeanor or a first degree a houseful of cats, saved jars of her types of cases (OVI, domestic misdemeanor on each subsequent own urine and used toilet paper. violence, theft and/or assault), he conviction. There are also enhanced

About the Animal Law Committee

This committee was established some way in virtually all other areas (animal abuse and the link between in 2010 with an emphasis on the of the law, from estate planning (care animal abuse and human violence). It connection of animal welfare issues of cherished pets after the guardian is our sincere hope to bring valuable on virtually every legal discipline and dies), to family law (custody of pets, information to you regardless of we will continue to bring attention to protecting pets from domestic violence your primary practice area. the interdisciplinary nature of animal offenders), contract law (contractual Copyright © Ohio State Bar Association law through our efforts, including this agreements for the purchase and/ 2017. publication. Animals are involved in or sale of pets) and criminal law

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Lawyering and life By Mark J. Bamberger, Esq., Owner, Attorney, Counselor, and Advocate at Law, The Mark Bamberger Co., LLC (TMBC)1

What is it like to be a lawyer? Well, honestly care, and those are not Though it never will pay the bills, I it can suck. Alcohol and substance just words, but shown again and am general counsel for a few animal abuse among attorneys is among the again by my staff and my actions. shelters and do legal work for a wolf highest of any profession.2 The fact sanctuary and rescue organization.5 Not all lawyers do care. Many is that in so many cases, it is hard The criminal defense, bankruptcy, get into the business for personal to divorce ourselves (pardon the divorce and custody work is what I gain—to grab that corner office pun) from the pain and suffering do to maintain the practice. Animal doing only transactional law and of our clients. So many attorneys law is what I do to maintain my soul. never see the inside of a courtroom. take that pain home with them Others literally do ‘chase ambulances’ On “The Blue Mistress,” my beloved and self-medicate. I am one of the and feast on others’ misfortunes. 2000 Honda Goldwing motorcycle, few attorneys who would probably These are the attorneys that give I try vigorously not to think about benefit from actually work (sorry folks). drinking more, but all However, when I do, joking aside, this is a The criminal defense, bankruptcy, divorce I see the faces and serious problem. Not expressions of the only are lives ruined and custody work is what I do to maintain clients TMBC has by such addiction, the practice. Animal law is what I do to been able to help. but the quality It makes me smile of representation maintain my soul. as the hundreds of to our clients can motorcycle miles fly by. suffer. There is an entire branch of most bar this incredibly noble profession its 1 TMBC has offices is Spring associations to confidentially bad name. Yet, attorneys and their Valley, Tipp City, West Chester, help attorneys with addiction.3 management of the common law and Enon, Ohio. Check out is the foundation of our society. www.bambergerlaw.com. One of the most important skills your When Shakespeare wrote, “The attorney can have is the ability to 2 See for example http://www. first thing we do, let’s kill all the compartmentalize. I am occasionally brooklyneagle.com/articles/lawyers- lawyers,”4 he was not disparaging asked how I can represent alleged struggle…, March 22, 2013. the profession, but in context saying rapists and thieves, people going that attorneys are the basis on 3 In Ohio, the State Bar Association through a contested divorce or which cordial and regulated society has the Lawyers Assistance custody dispute or a disastrous works. I take that stuff seriously. Program (www.ohiolap.org). bankruptcy. The answer is that I can usually compartmentalize. My wife, As many of you know, law is my 4 shakespeare.mit. Lynne, and my daughters are happy second career. I was an environmental edu/2henryvi/2henryvi.4.2.html, for this. Many testimonials on our geologist for 18 years before going cited from Henry VI, Part website (www.bambergerlaw.com) to law school. I went to law school 2, Act 4, Scene 2. talk about my compassion and in the evenings while teaching at 5 Wolf Creek Wolf Sanctuary demonstrated concern for client two colleges during the day and and Rescue, Brookville, Ind. See problems and worries. That is great helping to raise three daughters. www.wolfcreekhabitat.org. to hear, but is also quite true. I do For me, animal law is my passion. 3 Animal Law News

Ohio legislative update

By Sandra Horvath, Esq., Chair of the Animal Law Committee, and Vicki Deisner, Esq., Midwest Legislative Director, ASPCA

The 131st General Assembly (2015- provided protocol is followed (SB restrictions on municipal home 2016) proved to be a very exciting 215); we saw legislation passed that rule and is being challenged in session for animal laws. There were allows for felony on the first offense the courts, so stay tuned. an astounding number of bills that of animal abuse, Goddard’s Law Last session, we as a committee impacted animals, for the good and (HB 60); and we saw a bestiality asked the OSBA to support HB the bad, introduced. Many passed law passed in Ohio, the elimination 195 (Bestiality). This is only a and, most likely, those that did of county residence requirements summary of what proved to be a not will be reintroduced in some for humane agents, as well as felony whirlwind legislative session. Please form in this coming session. Just to level penalty for cockfighting (all see below for detail on last session’s summarize some of the many bills: we rolled into SB 331 and passed at bills, and please look for updates saw legislation passed that expanded the very end of the session). in the member community site for the ability of first responders to Sadly, this bill also preempted current session bills, as well as local provide assistance to dogs (HB municipalities from limiting ordinances that may be of interest. 187); we saw legislation passed that where pet stores can source. It was mandates canine encounter training We plan to update this quarterly to originally termed the “Petland Bill” for law enforcement (HB 64); we saw keep you informed of animal-related because it was enacted in response legislation passed that designated pending legislation. Things do move to Gove City enacting legislation a week in July as Service Dog quickly at the Statehouse; please that would prohibit Petland from Awareness week, brining important check the Ohio Legislature website sourcing from certain high volume recognition to the invaluable service for more information and updates: breeders, aka puppy mills. However, these animals provide to society (HB www.ohiolegislature.gov/legislation. portions of this legislation unrelated 121); we saw legislation passed that to the pet store sourcing of animals helps protect animals left in hot cars (as passed) included many other by eliminating liability for the rescuer 4 Animal Law News

Bill No. Long Title/Purpose Date Introduced, Sponsors Status

H.B. 45 “To amend sections 109.73, 317.08, Rep. Ronald V. Gerberry Referred to Local 959.131, 1717.01, 1717.04, 1717.06, – Primary Sponsor Government Committee and 1717.09 of the Revised Code to on 02/11/15, Was wrapped require an individual to file proof into amended H.B. 278 of successful completion of training Rep. , Rep. Sean O’Brien, with the county recorder prior to Rep. Michael Stinziano, Rep. Cheryl L. being appointed as a humane society Grossman, Rep. Debbie Phillips, Rep. No definitive Action. agent and to require the revocation Michele Lepore-Hagan – Co-Sponsors or suspension of an appointment under certain circumstances.”

H.B. 60 “To amend sections 959.131, 959.132, Representatives Bill Patmon and Passed by the House by a 959.99, and 2931.18 and to enact David Hall – Primary Sponsors vote of 93 to 2 on 06/25/15 section 4741.05 of the Revised Code and referred to the Senate to revise provisions and penalties Agriculture Committee. regarding treatment of companion Rep. Nickie J. Antonio, Rep. Tim W. animals, to revise the definition of Brown, Rep. John Patterson, Rep. “companion animal” in the Offenses Ronald V. Gerberry, Rep. Marilyn Passed legislature, Relating to Domestic Animals Law, Slaby, Rep. Sarah LaTourette, Rep. both houses and signed and to provide a state collaborative Cheryl L. Grossman, Rep. Janine R. into law by Governor effort to assist veterinarians in Boyd, Rep. Jack Cera, Rep. John Barnes, on June 13, 2016. identifying clients who may use their Jr., Rep. David Leland, Rep. Michele animals to secure opioids for abuse.” Lepore-Hagan, Rep. Debbie Phillips, Rep. , Rep. Mark J. Romanchuk, Rep. Louis W. Blessing III, Rep. Margaret Ann Ruhl, Rep. Marlene Anielski, Rep. Mike Ashford, Rep. Nan A. Baker, Rep. Nicholas J. Celebrezze, Rep. Mike Dovilla, Rep. Denise Driehaus, Rep. , Rep. Bob D. Hackett, Rep. Stephen D. Hambley, Rep. , Rep. Stephanie D. Howse, Rep. Greta Johnson, Rep. Terry Johnson, Rep. Michael J. O’Brien, Rep. Sean O’Brien, Rep. Dorothy Pelanda, Rep. , Rep. John M. Rogers, Rep. , Rep. Barbara R. Sears, Rep. Stephen Slesnick, Rep. , Rep. Martin J. Sweeney - Co-Sponsors

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H.B. 64 Ohio House Bill 64 - Main The Budged Bill passed Operating Budget FY2016-FY2017 by a 63-36 vote.

HC 2468 (HB 1985) – Training on police encounters with companion animals by the Ohio Peace Officer Training Academy Sec. 109.747 - The attorney general shall adopt, in accordance with Chapter 119. of the Revised Code or pursuant to section 109.74 of the Revised Code, rules governing the training of peace officers on companion animal encounters and companion animal behavior.

H.B. 94 “To amend section 959.99 and Representative John Barnes, Jr. Refer to Agriculture to enact section 959.133 of the and Rural Development Revised Code to prohibit a person Committee 03/04/15 from negligently allowing an animal to be tethered outdoors Rep. , Rep. Michele under specified circumstances.” No definitive Action. Lepore-Hagan, Rep. Margaret Ann Ruhl – Co-Sponsors

CLEVELAND AUGUST , 

The OSBA Annual Meeting and Convention, now known as the All-Ohio Legal Forum, has a new date. Join us Aug. 23-25, 2017 in , where you can earn up to 12 hours of CLE credit and network with colleagues and exhibitors.

Go to ohiobar.org/forum for more information.

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H.B. 121 “To enact section 5.2298 of the Representative Michael Stinziano, Passed by the House on Revised Code to designate the Representative Margaret Ann Ruhl 05/13/2015 by a vote last week of July as “Service of 93 – 0. Passed the Dog Awareness Week.” Senate on 1/20/2016 Rep. Ron Amstutz, Rep. Nicholas J. by a vote of 33 – 0, Celebrezze, Rep. Michele Lepore- Hagan, Rep. Debbie Phillips, Rep. Jeffery S. Rezabek, Rep. Ronald V. Gerberry, Rep. Cheryl L. Grossman, Passed out of both Rep. Bob D. Hackett, Rep. Stephen houses and Signed into Slesnick, Rep. Martin J. Sweeney, law on 01/25/2016 Rep. Sarah LaTourette, Rep. Nickie J. Antonio, Rep. Nan A. Baker, Rep. , Rep. Thomas E. Brinkman, Jr., Rep. Tim W. Brown, Rep. Jim Buchy, Rep. Hearcel F. Craig, Rep. Robert R. Cupp, Rep. Timothy Derickson, Rep. Denise Driehaus, Rep. Teresa Fedor, Rep. Timothy E. Ginter, Rep. Christina Hagan, Rep. David Hall, Rep. Stephen D. Hambley, Rep. Brian Hill, Rep. Greta Johnson, Rep. Terry Johnson, Rep. Christie Bryant Kuhns, Rep. , Rep. Al Landis, Rep. David Leland, Rep. Michael J. O’Brien, Rep. Sean O’Brien, Rep. , Rep. Dan Ramos, Rep. John M. Rogers, Rep. Mark J. Romanchuk, Rep. , Rep. Barbara R. Sears, Rep. Michael Sheehy, Rep. Marilyn Slaby, Rep. Kent Smith, Rep. Robert Sprague, Rep. Emilia Strong Sykes, Rep. , Sen. Bill Beagle, Sen. Charleta B. Tavares, Sen. Edna Brown

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S.B. 151 “To amend sections 109.73, 955.11, Senator Bill Beagle – Sponsor Referred to Senate 955.12, 955.22, 955.222, 955.44, Agriculture Committee Senator Peggy Lehner – Co-Sponsor 955.54, and 955.99 and to enact 04/29/15, has had sections 955.13, 955.223, 955.224, sponsor testimony only 955.225, 955.226, and 955.60 of the Revised Code to revise provisions of the Dogs Law governing nuisance, No definitive Action. dangerous, and vicious dogs, to revise enforcement of that Law, and to establish a notification process regarding complaints of certain violations of that Law.”

H.B. 187 “To amend sections 4741.20 and Representative Timothy Ginter – Sponsor Passed the House on 4765.01 and to enact section 4765.52 12/9/15, Introduced in of the Revised Code to authorize the Senate on 12/10/15, specified emergency personnel to Rep. Sarah LaTourette, Rep. Louis W. Referred to Agriculture provide certain emergency medical Blessing III, Rep. Tim Schaffer, Rep. Committee on 01/20/16 services to an injured dog or cat.” A. , Rep. Michele Lepore- Hagan, Rep. Margaret Ann Ruhl, Rep. , Rep. Stephen D. Passed out of Legislature, Hambley, Rep. Stephen A. Huffman, both houses and signed Rep. John Barnes, Jr., Rep. Heather into law by Governor Bishoff, Rep. Tim W. Brown, Rep. on May 31, 2016. Marlene Anielski, Rep. Kevin Boyce, Rep. Andrew Brenner, Rep. Jack Cera, Rep. Hearcel F. Craig, Rep. Cheryl L. Grossman, Rep. Bob D. Hackett, Rep. Terry Johnson, Rep. David Leland, Rep. Jeffery S. Rezabek, Rep. John M. Rogers, Rep. Mark J. Romanchuk, Rep. Michael Sheehy, Rep. Michael Stinziano, Rep. Andy Thompson – Co-Sponsors

S.B. 195 “To amend section 959.99 and to Senators Jim Hughes and Jay Introduced 7/16/15, enact section 959.21 of the Revised Hottinger – Sponsors Referred To Senate Code to prohibit a person from Criminal Justice engaging in sexual conduct with an Committee 09/17/15, animal and related acts, to provide Sen. , Sen. Frank LaRose, has had 4 hearings, for the seizure and impoundment Sen. Sandra R. Williams – Co-Sponsors waiting for a vote. of an animal that is the subject This was wrapped of a violation, and to authorize into S 331. Passed out a sentencing court to require an of Legislature, both offender to undergo psychological houses, and signed by evaluation or counseling.” the Governor on 12/19.

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H.B. 198 “To repeal section 2931.18 of Representative Stephen D. Hambley, Referred to House the Revised Code to abolish the Representative Greta Johnson - Sponsors Judiciary Committee humane society’s authority to 05/19/2015, was wrapped employ an attorney to prosecute into Amended H.B 278 certain violations of law dealing Rep. Heather Bishoff, Rep. Terry with animal cruelty or acts Boose, Rep. Bob D. Hackett, Rep. involving mistreatment or Brian Hill, Rep. Doug Green, Rep. nonsupport of children.” Michael J. O’Brien – Co-Sponsors

H.B. 215 “To amend sections 959.15 and Representative Barbara R. Proponent Hearing House 959.99 of the Revised Code to Sears, Representative Heather Judiciary Committee prohibit and establish an increased Bishoff - Sponsors 06.25.15, amended, penalty for knowingly engaging Passed House Judiciary, in activities associated with 3rd Reading in House. cockfighting, bearbaiting, or pitting Rep. Cheryl L. Grossman, Rep. Brian This was wrapped into an animal against another.” Hill, Rep. Steven W. Kraus, Rep. S 331. Passed out of Sarah LaTourette, Rep. David Leland, Legislature, both houses Rep. Robert McColley, Rep. Debbie and signed into law by Phillips, Rep. Michael Sheehy, Rep. Governor on 12/19 Michael Stinziano – Co-Sponsors

S.B. 215 “To enact section 959.133 of the Senator Jim Hughes, Senator Referred to Senate Revised Code to grant a person Frank LaRose – Sponsors Justice Committee immunity from civil liability for any 09/15/2015, Passed damage resulting from the forcible Senate on 2/10/2016. entry of a motor vehicle for the Sen. Joe Uecker, Sen. Kevin purpose of removing a minor or an Bacon – Co-Sponsors animal from the vehicle because the Passed out of Legislature, minor or the animal is in imminent both houses and signed danger of suffering harm.” into law by Governor.

S.B. 271 “To amend sections 9.62 and 721.15 Senator Lou Gentile – Sponsor Introduced on 2/4/16 of the Revised Code to authorize a law enforcement officer to purchase a police dog or horse for fair market Sen. Kenny Yuko, Sen. Shannon Jones, value when the officer retires in good Sen. Joe Schiavoni, Sen. Capri S. standing from a law enforcement Cafaro, Sen. Michael J. Skindell, Sen. agency and certain conditions are Charleta B. Tavares, Sen. Cecil Thomas, met, and to declare an emergency.” Sen. Frank LaRose – co-Sponsors

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H.B. 278 “To amend sections 1717.04, Representative Stephen D. Introduced to House 1717.05, 1717.06, and 1717.07 Hambly – Sponsor on 6/15, Referred of the Revised Code to require to Government approval by the board of county Accountability and commissioners, instead of the There are no Co-sponsors on this Bill Oversite Committee probate judge, of appointments of 9/15, Amended and agents by county humane societies re-introduced in outside a municipal corporation, January 2016. Has been to specify that a county humane reintroduced into current society is a political subdivision, session as H.B. 147 to make its directors, agents, officers, and employees subject to the Ethics Law, and to increase the salaries paid to the agents.”

SB 331 See HB 573 below

H.B. 447 “To amend section 2921.321 of Representatives Kirk Schuring and Introduced 2/9/16, the Revised Code to prohibit a Stephen Slesnick, Sponsors Referred to State person from intentionally killing Government a police dog in the line of duty.” Committee 2/10/16.

Passed House, Senate Criminal Justice Committee 9/28/16 Wrapped into H60, which was passed and signed into law.

H.B. 450 “To amend sections 9.62 and Representative Andy Thompson Introduced 2/9/16, 721.15 of the Revised Code to and David Hall, Sponsors Referred to State authorize a law enforcement Government officer to purchase a police dog Committee 2/10/16. or horse for one dollar when the officer retires in good standing from a law enforcement agency and certain conditions are met.” HB 573/ “Regulate dog sales and Senator Bob Peterson, Sponsor Signed into law on SB 331 license pet stores” December 19, 2016 and Various co-sponsors as passed effective March 21, 2017

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SR 589 To encourage the implementation Senator LaRose, Sponsor Assigned to Senate and full enforcement of rules Energy and Natural adopted by the United States Resources on 9/28/16. Fish and Wildlife Service for the protection of the African elephant from the illegal ivory trade

Current as of December 31, 2016. This information was taken from the following source, please check the following link for complete information: https://www.legislature.ohio.gov/legislation.

Message from the Chair Thank you to everyone who continues to the Ohio Department of Agriculture. if passed, would be a step backward for support the efforts of this committee by David and Dennis attended our January Ohio. sharing ideas, attending meetings and meeting and provided an excellent update There is no question that Ohio has some providing valuable insight into the many on enforcement issues and the current state very dedicated and talented prosecuting areas of the law in which you work and of wild animals in Ohio after the passage attorneys. However, there is a great benefit are affected by animal welfare legal issues. of the Exotic and Wild Animal Act. in having private attorneys who specialize Thank you also for your continued support They have both done an outstanding job in this area prosecuting these cases. It is a of this newsletter initiative. I believe this of enforcing this law and caring for those benefit for the prosecutors who have more will be a great resource for introducing exotics who were surrendered by their on their plate now than they can handle, as our members to aspects of animal law that owners. well as for the victims of these crimes who are imminently relevant in your practices, It was an exciting general assembly for have no voice. A summary of the many regardless of the area in which you work. animal legislation in Ohio, and this session pieces of legislation that was introduced in I also believe this is a great forum for proves to be just as active and important to this last session can be found in the Ohio engaging non-members and educating this area of the law as we continue to strive legislative update section. them on the many varied aspects of animal to protect Ohio’s animals and the humans Please remember that this is your law. Although we are involved with animal who love them. Animal Legal Defense law to varying degrees in our respective newsletter, and we welcome ideas, Fund and Humane Society of the United suggestions and articles from your given practices, we all share a passion for making States publish annual rankings of states the world a better place for animals and practice or passion area. I hope you enjoy and where they stand as far as laws in place this issue and look forward to your input. their human companions. to protect animals. Ohio continues to rank A very special thank you to our guest in the middle. Sandra Horvath, Chair, Animal Law Committee speakers for this past fall and winter However, Ohio is unique in that it is the meetings. Thank you to Steffen Baldwin, only state in the country that allows for [email protected] Humane Agent and Founder of ACT a private attorney to prosecute animal Ohio, for giving us an update on the abuse and neglect cases. Jeff Holland and progress being made on implementing Kyle Silvers both do amazing work in this Thank you all for the Canine Encounter Training, which area, and I know that their dedication and was mandated this past session in HB 64. expertise go a long way toward getting a your continued Steffen is a boots-on-the-ground animal just punishment for some of Ohio’s worst welfare advocate and law enforcement offenders. interest and expert. If you have not worked with him, he is a tremendous resource for canine Last year, legislation was introduced that support of the encounter training, breed specific issues would prevent private attorneys from being and reactive dog training. Also, thank you able to prosecute animal crimes. This Animal Law to David Hunt, Enforcement Agent and legislation went nowhere, but is expected Committee. Dr. Dennis Summers, DVM both with to be reintroduced in this session and, 11