SENATE FINANCE COMMITTEE SUBSTITUTE FOR
SENATE BILL 306
46th legislature - STATE OF NEW MEXICO - second session, 2004
AN ACT
RELATING TO ANIMALS; ENACTING THE ANIMAL SHELTERING 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 A FUND; 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 Sheltering Services Act".
Section 2. PURPOSE.--The purpose of the Animal Sheltering 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 Sheltering 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 sheltering 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 Sheltering 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 by rule of the board to cause the death 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 set forth in rules of the board;
G. "euthanasia agency" means an entity that is licensed 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 licensed by the board to administer euthanasia drugs to euthanize animals;
J. "humane euthanasia instructor" means a euthanasia service provider licensed by the board and qualified to instruct and certify other individuals in humane euthanasia techniques that are set forth in rules of the board;
K. "pet animal" means a domestic animal that may be maintained in a county or municipal environment pursuant to a county or municipal ordinance. A "pet animal" does not include livestock as defined pursuant to Section 77-2-1.1 NMSA 1978; 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 sheltering 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.
B. 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.
C. The board is administratively attached to the department.
D. 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 Sheltering Services Act, the provisions of the Animal Sheltering Services Act shall prevail.
E. The governor shall appoint board members for a term of four years, except in the first year of the enactment of the Animal Sheltering 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 by the governor for the unexpired term within sixty days of the vacancy in the same manner as original appointments.
F. 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.
G. A simple majority of the appointed board members constitutes a quorum.
H. The board shall hold at least six regular meetings each year and may meet at such other times as it deems necessary.
I. A board member shall not serve more than two full or partial terms, consecutive or otherwise.
J. 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.
K. The board shall elect a chairman and other officers as it deems necessary to administer its duties.
Section 5. FUND CREATED--ADMINISTRATION.--
A. The "animal care and facility fund" is created in the state treasury.
B. The animal care and facility fund is comprised of money collected by the board pursuant to the Animal Sheltering Services Act, transmitted to the state treasurer and credited to the fund. Income from investment of the fund shall be credited to the fund. Money appropriated to the fund or accruing to it through fees; cooperative research agreements; income; gifts; grants; donations; bequests; sales of promotional items, handbooks or educational materials; or any other source shall not be transferred to another fund or encumbered or expended except for expenditures authorized pursuant to the Animal Sheltering Services Act.
C. Money in the animal care and facility fund shall be used to help animal shelters defray the cost of implementing the board's initiatives conducted pursuant to the Animal Sheltering Services Act.
D. The fund shall be administered by the department to carry out the purposes of the Animal Sheltering Services Act.
E. Money in the fund is appropriated to the department.
F. Disbursements from the fund shall be made only upon warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the superintendent of regulation and licensing or the superintendent's designee.
G. Unexpended and unencumbered balances in the fund at the end of a fiscal year shall not revert to the general fund.
Section 6. BOARD POWERS AND DUTIES.--
A. The board shall:
(1) adopt minimum recommended standards regarding the infrastructure for all animal shelter facilities;
(2) adopt minimum recommended 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 Sheltering Services Act;
(5) have authority to issue licenses pursuant to the Animal Sheltering Services Act;
(6) establish the types of licenses or certifications that may be issued pursuant to the Animal Sheltering 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 Sheltering Services Act;
(8) implement continuing education requirements for licensees and certifications pursuant to the Animal Sheltering Services Act;
(9) conduct administrative hearings upon charges relating to violations of provisions or rules of the Animal Sheltering 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 Sheltering Services Act;
(11) establish fees for licenses and certifications pursuant to the Animal Sheltering Services Act;
(12) establish committees as the board deems necessary to effect the provisions of the Animal Sheltering Services Act;
(13) apply for injunctive relief to enforce the provisions of the Animal Sheltering Services Act;
(14) conduct national criminal background checks on applicants seeking licensure under the Animal Sheltering 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 comprehensive pet animal sterilization plans for animal shelter facilities and for community outreach programs;
(21) disburse money from the animal care and facility fund; and
(22) provide standards for maintaining records concerning health care and disposition of 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 Sheltering 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. The board shall adopt rules to:
(1) allow a euthanasia agency to employ interns who are considering becoming licensed as euthanasia service providers; and
(2) provide for interim placements for euthanasia agencies that have no permanent employees who are euthanasia service providers.
D. A person licensed to practice as a euthanasia service provider shall:
(1) have attained an age of at least eighteen years;
(2) not be guilty of fraud or deceit in procuring or attempting to procure a license;
(3) not be intemperate or addicted to the use of habit-forming drugs;
(4) not be mentally incompetent;
(5) not be guilty of unprofessional conduct;
(6) have passed the examination to qualify as a euthanasia service provider;
(7) hold a certificate of completion in a training course in humane euthanasia issued within one year of the date that the euthanasia service provider examination is successfully completed; and
(8) pay the required fee.
E. The board may issue a license to practice as a euthanasia service provider without examination to a veterinarian or to an applicant who meets the qualifications required for euthanasia service providers in this state. The request for licensure shall be accompanied by a certificate of completion in humane euthanasia.
F. 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 found guilty of fraud or deceit in procuring or attempting to procure any type of certification;
(3) not be intemperate or addicted to the use of habit-forming drugs;
(4) not have been judged mentally incompetent;
(5) not have been found guilty of unprofessional conduct;
(6) have passed the examination to qualify as a humane euthanasia instructor;
(7) 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
(8) 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 veterinarian licensed to practice in New Mexico, who is engaged in euthanizing animals in animal shelter facilities in this state shall be licensed by the board.
C. Unless otherwise provided in the Animal Sheltering 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 Sheltering Services Act shall be construed as preventing 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.
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 Sheltering 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.
H. Nothing in the Animal Sheltering Services Act affects wildlife rehabilitators working under the auspices of the department of game and fish.
Section 10. EXEMPTIONS.--
A. A certified humane euthanasia instructor who provides euthanasia instruction in courses approved by the board is not liable for the misuse of euthanasia drugs or malpractice committed by a student or former student of the humane euthanasia instructor.
B. A veterinarian who in good faith administers or supervises the administering of euthanasia drugs in accordance with the Animal Sheltering Services Act and rules adopted pursuant to that act shall have immunity from civil or criminal liability that may result from administering or supervising the administering of euthanasia drugs; provided that the liability does not arise from violations of the Veterinary Practice Act or other licensing act to which the veterinarian is subject or from criminal offenses for which the veterinarian has been found guilty.
C. A person filing a complaint with the board for actions in violation of the Animal Sheltering 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 Sheltering Services Act, it is a violation of that act for a person or entity to:
(1) perform euthanasia on an animal in an animal shelter facility in this state without possessing a valid license pursuant to the Animal Sheltering Services 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 fail to comply with the provisions of the Animal Sheltering 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 Sheltering 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 Sheltering Services Act.
B. It is a violation of the Animal Sheltering 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 by the department of game and fish, the United States department of agriculture or any other regulatory agency to be kept as a pet animal; unless the sale, offer for sale, bartering, exchanging or transferring of the animal is to a facility employing permitted rehabilitators or an individual that is a permitted rehabilitator pursuant to the rules adopted by the department of game and fish or another agency that has authority over people who are permitted to receive and provide care for such animals;
(3) allow a license issued pursuant to the Animal Sheltering 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 Sheltering 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 Sheltering Services Act.
B. Whenever the board has reasonable cause to believe a violation of a provision of the Animal Sheltering 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 Sheltering 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 or certification held or applied for pursuant to the Animal Sheltering Services Act, including imposing a civil penalty, upon a finding by the board that the licensee, certificate holder or applicant has performed, committed or been engaged in acts in violation of the Animal Sheltering 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 or certification authorized pursuant to the Animal Sheltering Services Act if the applicant or licensee:
(1) has refused or failed to comply with a provision of the Animal Sheltering Services Act, a rule adopted pursuant to that act or an order of the board;
(2) is guilty of cruelty to animals pursuant to a statute of this state or another 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 Sheltering 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 one thousand dollars ($1,000) on a holder of a license or certificate for violations of the Animal Sheltering Services Act.
I. A person or animal shelter facility whose license or certificate 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 adopt 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. M. A person who practices, offers to practice, attempts to practice or holds himself out as a euthanasia service provider, a humane euthanasia instructor or a licensed 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 one thousand dollars ($1,000) for each offense.
Section 14. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The animal sheltering services board is terminated on July 1, 2009 pursuant to the Sunset Act. The board shall continue to operate according to the provisions of the Animal Sheltering Services Act until July 1, 2010. Effective July 1, 2010, the Animal Sheltering Services Act is repealed.
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