SENATE BILL 306
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO ANIMALS; ENACTING THE ANIMAL PROTECTIVE SERVICES ACT; CREATING LICENSING PROCEDURES FOR EUTHANASIA SERVICE PROVIDERS; CREATING CERTIFICATION PROCEDURES FOR HUMANE EUTHANASIA INSTRUCTORS; PROMOTING SAFE AND HUMANE CONDITIONS FOR DOMESTIC ANIMALS IN PUBLIC ANIMAL SHELTER FACILITIES; CREATING FUNDS; CREATING A BOARD WITH POWERS AND DUTIES; PROVIDING FOR EXEMPTIONS; PROVIDING PENALTIES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Animal Protective Services Act".
Section 2. PURPOSE.--The purpose of the Animal Protective Services Act is to promote safe, healthy and clean living conditions for animals housed in public animal shelter facilities and to implement humane euthanasia practices to be followed by all such shelters.
Section 3. DEFINITIONS.--As used in the Animal Protective Services Act:
A. "animal shelter facility" means a county or municipal facility that provides shelter to animals on a regular basis, including a dog pound, private humane society or private animal shelter that temporarily houses stray, unwanted or injured animals through administrative or contractual arrangements with a local government agency;
B. "board" means the animal protective services board;
C. "department" means the regulation and licensing department;
D. "dispose" or "disposition" means adoption of an animal, return of an animal to the owner, release of an animal to a rescue group, release of an animal to another animal shelter facility licensed pursuant to the Animal Protective Services Act or to a rehabilitator licensed by the department of game and fish or the United States fish and wildlife service, or euthanasia of an animal;
E. "emergency field euthanasia" means the process defined and accepted by either the American veterinary medicine association or the humane society of the United States to dispose of animals in emergency situations when safe and humane transport of the animal is not possible;
F. "euthanasia" means to produce a humane death by techniques accepted by either the American veterinary medical association or the humane society of the United States;
G. "euthanasia agency" means an entity that is certified by the board to perform animal euthanasia;
H. "euthanasia drugs" means non-narcotic schedule II or schedule III substances and chemicals used in euthanasia procedures as set forth in the Controlled Substances Act that are used for the purpose of animal euthanasia;
I. "euthanasia service provider" or "euthanasia provider" means a person employed or contracted by a euthanasia agency to administer euthanasia drugs to euthanize animals and who is certified by the board to perform such services;
J. "humane euthanasia instructor" means a person licensed by the board who is qualified to instruct and certify other individuals in humane euthanasia techniques that are recognized by the American veterinary medical association or the humane society of the United States;
K. "pet animal" means a domestic animal that may be maintained by a person in a county or municipal environment pursuant to a county or municipal ordinance. A pet animal does not include an animal that is used for working purposes on a farm or ranch or livestock; and
L. "veterinarian" means a person who is licensed as a doctor of veterinary medicine by the board of veterinary medicine pursuant to the Veterinary Practice Act.
Section 4. BOARD CREATED--MEMBERS--QUALIFICATIONS-- TERMS--VACANCIES--REMOVAL.--
A. The "animal protective services board" is created. The board shall consist of seven members as follows:
(1) one animal shelter facility employee with training and education in euthanasia;
(2) one licensed veterinarian who has provided paid or unpaid services to an animal shelter;
(3) one representative from a nonprofit animal advocate group;
(4) one member of the public;
(5) one member of the public who is an employee of the animal shelter industry;
(6) one representative of the New Mexico association of counties; and
(7) one representative of the New Mexico municipal league.
No more than two board members shall be appointed from any one county within the state. Appointments shall be made in such manner that the terms of no more than two board members expire on July 1 of each year.
B. The board is administratively attached to the department.
C. The board and its operations are governed by the Uniform Licensing Act. If the provisions of the Uniform Licensing Act conflict with the provisions of the Animal Protective Services Act, the provisions of the Animal Protective Services Act shall prevail.
D. The governor shall appoint board members for a term of four years, except in the first year of the enactment of the Animal Protective Services Act, when one or more members shall be appointed for staggered terms of less than four years so that no more than two board member terms expire in one year. Subsequent appointments shall be made so that the terms of no more than two board members expire in any one year. Board members shall hold office until their successor is duly qualified and appointed. Vacancies shall be filled by appointment of the governor for the unexpired term within sixty days of the vacancy in the same manner as original appointments.
E. Members of the board shall be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance, but shall be permitted to attend at least one conference or seminar a year relevant to their board position as the board's budget will allow.
F. A simple majority of the appointed board members constitutes a quorum.
G. The board shall hold at least six regular meetings each year and may meet at such other times as it deems necessary.
H. A board member shall not serve more than two full or partial terms, consecutive or otherwise.
I. A board member failing to attend three duly noticed meetings, regular or special, within a twelve-month period, without an excuse acceptable to the board, may be removed as a board member.
J. The board shall elect a chairman and other officers as it deems necessary to administer its duties.
Section 5. FUNDS CREATED.--
A. The "animal care and facility fund" is created in the state treasury. All fees and civil fines collected by the board pursuant to the Animal Protective Services Act shall be transmitted to the state treasurer, who shall credit them to the animal care and facility fund. Money credited to the fund shall not be transferred or credited to the general fund or to any other state fund. The animal care and facility fund shall not be a part of the annual appropriations for the board. The animal care and facility fund and donations to the fund shall be used by the board to help animal shelters defray the cost of implementing humane euthanasia techniques.
B. The "pet overpopulation fund" is created in the state treasury. The pet overpopulation fund may accept gifts, grants and donations, including tax-deductible gifts of personal services. Donations collected pursuant to the Animal Protective Services Act shall be transmitted to the state treasurer and credited to the pet overpopulation fund. Donations to the pet overpopulation fund shall not be transferred or credited to the general fund or to any other state fund. The pet overpopulation fund shall not be a part of the annual appropriation for the board. Donations to the pet overpopulation fund shall be used by the board to help animal shelter facilities defray the cost of developing and implementing pet sterilization programs.
Section 6. BOARD POWERS AND DUTIES.--
A. The board shall:
(1) adopt minimum standards regarding the infrastructure for all animal shelter facilities;
(2) adopt minimum operating standards for all animal shelter facilities;
(3) adopt procedures for determining when emergency field euthanasia shall apply;
(4) promulgate, adopt and revise rules necessary to carry out the provisions of the Animal Protective Services Act;
(5) have authority to issue licenses pursuant to the Animal Protective Services Act;
(6) establish the types of licenses or certifications that may be issued pursuant to the Animal Protective Services Act and establish criteria for issuing the licenses;
(7) prescribe standards and approve curricula for educational programs that will be used to train and prepare persons for licensure or certification pursuant to the Animal Protective Services Act;
(8) implement continuing education requirements for licensees and certifications pursuant to the Animal Protective Services Act;
(9) conduct administrative hearings upon charges relating to violations of provisions or rules of the Animal Protective Services Act in accordance with the Uniform Licensing Act;
(10) provide for all examinations, licensing and renewals of licenses and certifications pursuant to the Animal Protective Services Act;
(11) establish fees for licenses and certifications pursuant to the Animal Protective Services Act;
(12) establish committees as the board deems necessary to effect the provisions of the Animal Protective Services Act;
(13) apply for injunctive relief to enforce the provisions of the Animal Protective Services Act;
(14) conduct national criminal background checks on applicants seeking licensure under the Animal Protective Services Act;
(15) keep a record of all proceedings;
(16) make an annual report to the governor; (17) provide for the inspection of animal shelter facilities;
(18) develop mechanisms to address complaints of animal shelter facility misconduct and noncompliance;
(19) develop mechanisms to address complaints of licensee misconduct and noncompliance;
(20) develop a comprehensive pet animal sterilization plan to reduce the financial burden of unwanted animals;
(21) disburse money from the animal care and facility fund and the pet overpopulation fund; and
(22) provide standards for maintaining records concerning health care, euthanasia and transactions involving pet animals.
B. A legal proceeding or other action for damages shall not be instituted against the board or a board member or employee for any act performed in good faith while carrying out the powers and duties granted pursuant to the Animal Protective Services Act.
Section 7. EUTHANASIA SERVICE PROVIDER--LICENSE.--
A. The board shall have authority over the licensing of euthanasia service providers.
B. Applicants for licensure by examination as a euthanasia service provider shall be required to pass a euthanasia service provider examination administered by the board and shall be required to complete a training course approved by the board in humane euthanasia practices.
C. A person licensed to practice as a euthanasia service provider shall:
(1) have attained an age of at least twenty-one years;
(2) not be convicted of a felony;
(3) not be guilty of fraud or deceit in procuring or attempting to procure a license;
(4) not be intemperate or addicted to the use of habit-forming drugs;
(5) not be mentally incompetent;
(6) not be guilty of unprofessional conduct;
(7) have passed the examination to qualify as a euthanasia service provider;
(8) hold a certificate of completion in humane euthanasia issued within one year of the date the euthanasia service provider examination is successfully completed; and
(9) pay the required fee.
D. The board may issue a license to practice as a euthanasia service provider without examination to a veterinarian, to a veterinary technician working under a licensed veterinarian in accordance with the Veterinary Practice Act or to an applicant who has been licensed under the laws of another state if the applicant meets the qualifications required for euthanasia service providers in this state, and upon presenting satisfactory proof to the board that he has been engaged in the practice of euthanasia for a period of not less than one year prior to the date licensure is sought in this state. The request for licensure shall be accompanied with a certificate of completion in humane euthanasia.
E. A person whose euthanasia service provider license expires while the person is on active duty with a branch of the armed forces of the United States, called into service or training with the state militia or in training or education under the supervision of the United States government prior to induction into military service may have the license restored without paying renewal fees, if within two years after the termination of that service, training or education, except under conditions other than honorable, the board is furnished with satisfactory evidence that the person had been engaged in the service, training or education.
Section 8. HUMANE EUTHANASIA INSTRUCTORS--CERTIFICATION.--
A. The board shall have authority over the certification of humane euthanasia instructors.
B. Applicants for certification by examination as humane euthanasia instructors shall be required to pass an instructor's examination administered by the board and shall be required to complete an instructor's training course in humane euthanasia practices.
C. A person certified to practice as a humane euthanasia instructor shall:
(1) have participated in the euthanasia of animals for a minimum of five years preceding the date of application;
(2) not have been convicted of a felony;
(3) not have been found guilty of fraud or deceit in procuring or attempting to procure any type of certification;
(4) not be intemperate or addicted to the use of habit-forming drugs;
(5) not have been judged mentally incompetent;
(6) not have been found guilty of unprofessional conduct;
(7) have passed the examination to qualify as a humane euthanasia instructor;
(8) hold a certificate of completion in humane euthanasia instruction issued within one year preceding the date the humane euthanasia instructor examination is successfully completed; and
(9) pay the required fee.
D. The board may issue a certification as a humane euthanasia instructor without an examination to an applicant who has been certified or licensed under the laws of another state if the applicant meets the qualifications required for a humane euthanasia instructor in this state, and upon presenting satisfactory proof to the board that the applicant has been engaged in the practice of euthanasia for a period of not less than five years prior to the date certification is sought in this state. The request for certification shall be accompanied with a certificate of completion in humane euthanasia.
E. A person whose humane euthanasia instructor certification expires while on active duty with the armed forces of the United States, called into service or training with the state militia or in training or education under the supervision of the United States government prior to induction into military service may have the certification restored without paying renewal fees, if within two years after the termination of that service, training or education, except under conditions other than honorable, the board is furnished with satisfactory evidence that the person has been engaged in such service, training or education.
Section 9. EUTHANASIA--EUTHANASIA AGENCIES-- INSPECTIONS.--
A. An animal shelter facility shall be licensed as a euthanasia agency in order to perform or practice euthanasia at the facility.
B. A person, other than a licensed veterinarian or a veterinary technician working under a licensed veterinarian in accordance with the Veterinary Practice Act, who is engaged in euthanizing pet animals in this state shall be registered with the board or contracted or employed by a euthanasia agency.
C. Unless otherwise provided in the Animal Protective Services Act, no person shall euthanize animals in an animal shelter facility without possessing a license as a euthanasia service provider issued by the board. Nothing in the Animal Protective Services Act shall be construed as preventing a licensed veterinarian, veterinary technician or a certified humane euthanasia instructor from humanely euthanizing animals during a board-approved course on euthanasia instruction.
D. The board shall establish rules for inspecting an animal shelter facility holding or claiming to hold a license as a euthanasia agency in this state. Practitioners shall be registered with or contracted or employed by a euthanasia agency.
E. The board shall establish policies and procedures for securing, using and disposing of euthanasia drugs in accordance with requirements of the Controlled Substances Act and the federal Drug Enforcement Agency Controlled Substances Act.
F. Nothing in the Animal Protective Services Act shall be construed as allowing a licensed euthanasia service provider or a certified humane euthanasia instructor to engage in the practice of veterinary medicine when performing the duties set forth in that act.
G. The board shall promulgate rules governing the procedures for administering humane euthanasia.
Section 10. EXEMPTIONS.--
A. A veterinarian or a certified humane euthanasia instructor who provides euthanasia instruction in courses approved by the board shall be immune from prosecution for subsequent misuse of euthanasia substances and from malpractice by a person who has attended the courses.
B. A veterinarian who in good faith administers euthanasia drugs in accordance with the Animal Protective Services Act and its rules shall have immunity from civil or criminal liability that may result from administering the drugs.
C. A person filing a complaint with the board for actions in violation of the Animal Protective Services Act shall be immune from legal liability arising out of civil action pertaining to the complaint, if the complaint was filed in good faith and without actual malice.
Section 11. VIOLATIONS.--
A. Unless otherwise provided in the Animal Protective Services Act, it is a violation of that act for a person or entity to:
(1) perform euthanasia on an animal in this state without possessing a valid license pursuant to the Veterinary Practice Act;
(2) solicit, advertise or offer to perform an act for which licensure or certification is required, unless the person holds a license or certification;
(3) refuse to comply with a cease and desist order issued by the board;
(4) refuse or to fail to comply with the provisions of the Animal Protective Services Act;
(5) make a material misstatement in a license application or a license renewal application;
(6) intentionally make a material misstatement to the department during an official investigation;
(7) impersonate an official or inspector;
(8) refuse or fail to comply with rules adopted by the board or with a lawful order issued by the board;
(9) aid or abet another in violating provisions of the Animal Protective Services Act, or a rule adopted by the board;
(10) alter or falsify a certificate of inspection, license or certification issued by the board;
(11) fail to carry out the duties of a euthanasia service provider in a professional manner;
(12) abuse the use of a chemical substance or be guilty of habitual or excessive use of intoxicants or drugs;
(13) sell or give chemical substances used in euthanasia procedures to an unlicensed person;
(14) assist an unlicensed or unauthorized person in euthanizing animals, except during a board-approved course on euthanization; and
(15) violate a provision of the Animal Protective Services Act.
B. It is a violation of the Animal Protective Services Act for an animal shelter facility to:
(1) refuse to permit entry or inspection of its facilities by the board or its designees;
(2) sell, offer for sale, barter, exchange or otherwise transfer animals that are prohibited to be kept as a pet animal by the department of game and fish, the United States department of agriculture or any other regulatory agency;
(3) allow a license issued pursuant to this the Animal Protective Services Act to be used by an unlicensed person; or
(4) make a misrepresentation or false promise through advertisements, employees, agents or other mechanisms in connection with the euthanization or sterilization of an animal.
C. It is a violation of the Animal Protective Services Act for an employee or official of the board or a person in the department to disclose or use for his own advantage information derived from reports or records submitted to the department or the board pursuant to that act.
Section 12. ENFORCEMENT AND INJUNCTIONS.--
A. The board or the board's designees shall enforce the provisions of the Animal Protective Services Act.
B. Whenever the board has reasonable cause to believe a violation of a provision of the Animal Protective Services Act or a rule adopted pursuant to that act has occurred and immediate enforcement is deemed necessary, the board may issue a cease and desist order to require a person to cease violations. At any time after service of the order to cease and desist, the person may request a prompt hearing to determine whether a violation occurred. If a person fails to comply with a cease and desist order within twenty-four hours, the board may bring a suit for a temporary restraining order and for injunctive relief to prevent further violations.
C. Whenever the board possesses evidence that indicates a person has engaged in or is about to engage in an act or practice constituting a violation of the Animal Protective Services Act or a rule adopted pursuant to that act, the board may seek to temporarily or permanently restrain or enjoin the act or practice. The board shall not be required to post a bond when seeking a temporary or permanent injunction.
Section 13. DISCIPLINARY ACTIONS--HEARINGS.--
A. In accordance with the procedures contained in the Uniform Licensing Act, the board may deny, suspend, revoke, reprimand, place on probation or take other action against a license, certification or permit held or applied for pursuant to the Animal Protective Services Act, including imposing a civil penalty, upon a finding by the board that the licensee, certificate or permit holder or applicant has performed, committed or been engaged in acts in violation of the Animal Protective Services Act or a rule adopted pursuant to that act.
B. The board may also issue letters of admonition or deny, suspend, refuse to renew, restrict or revoke a license, certification or permit authorized pursuant to the Animal Protective Services Act if the applicant or licensee:
(1) has refused or failed to comply with a provision of the Animal Protective Services Act, a rule adopted pursuant to that act or an order of the board;
(2) is guilty of cruelty to animals as determined by the board or pursuant to any statute of this state or any other state;
(3) has had an equivalent license or certification denied, revoked or suspended by an authority;
(4) has refused to provide the board with reasonable, complete and accurate information regarding the care or euthanization of animals when requested by the board;
(5) has falsified information requested by the board or the board's designee;
(6) has been convicted of a felony or other crime involving moral turpitude; or
(7) has been adjudicated insane or is manifestly incapacitated.
C. In a proceeding held pursuant to this section, the board may accept as prima facie evidence of grounds for disciplinary action any disciplinary action taken against a licensee from another jurisdiction, if the violation that prompted the disciplinary action in that jurisdiction would be grounds for disciplinary action pursuant to this section.
D. A licensee whose license has been revoked may not apply or reapply for a license pursuant to the Animal Protective Services Act until two years from the date of such revocation.
E. Disciplinary proceedings may be instituted by a person by filing a complaint with the board. In addition, the board may institute disciplinary proceedings upon a vote of a majority of the board to do so. A party to a disciplinary hearing may obtain a copy of the hearing record upon payment of costs for the copy.
F. The board shall not initiate a disciplinary action more than two years after the date that it receives a complaint or that it begins an investigation without a filed complaint.
G. The board shall have full authority to administer oaths, take statements, issue subpoenas requiring the attendance of witnesses before the board; require production of all books and records, articles or instruments; and compel disclosure by the witnesses of all facts known to them relative to matters under investigation.
H. The board may impose an administrative penalty in an amount not to exceed five thousand dollars ($5,000) on a holder of a license, certificate or permit for violations of the Animal Protective Services Act. The board may increase this amount as it deems necessary through rules adopted by it.
I. A person or animal shelter facility whose license, certificate or permit is suspended or revoked by the board pursuant to the provisions of this section may, at the discretion of the board, be relicensed or reinstated by the board at any time without examination upon written application to the board showing cause to justify relicensing or reinstatement.
J. The board shall promulgate other rules pertaining to hearings, appeals and rehearings as it deems necessary.
K. The board shall not be required to certify a record to the court of appeals of a decision of the board until the proper fee has been paid to the board for a copy and certification of the record.
L. A person engaging in acts without a license or certification issued by the board is guilty of a misdemeanor. On conviction of a second or subsequent offense, the violator is guilty of a fourth degree felony.
M. A person who practices, offers to practice, attempts to practice or holds himself out as a certified euthanasia service provider or a certified euthanasia agency without holding a license or certification issued by the board shall, in addition to any other penalty provided in this section or any other law, pay a civil penalty to the board in an amount not to exceed five thousand dollars ($5,000) for each offense.
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