HOUSE OF REPRESENTATIVES

H.B. NO.

1148

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to DOG BREEDERs.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"chapter

commercial DOG BREEDERS and pet stores

     §   ‑1  Definitions.  As used in this chapter, unless the context otherwise requires:

     "Clinically ill" means an illness that is apparent to a veterinarian based on observation, examination, or testing of a dog, or upon a review of the medical records relating to the dog.

     "Commercial dog breeder" or "breeder" means a person, firm, partnership, corporation, pet store, or other association that has sold, whelped, transferred, or given away all or part of ten or more litters or thirty or more dogs during the preceding twelve months.  Sales include retail as well as internet sales.

     "Nonelective surgical procedure" means a surgical procedure that is necessary to preserve or restore the health of a dog to prevent the dog from experiencing pain or discomfort or to correct a condition that would otherwise interfere with the dog's ability to walk, run, jump, or otherwise function in a normal manner.

     "Pet store" means any establishment or market place where animals are bought, sold, exchanged, or offered for sale to the general public with the intent of making a profit.  This term includes the keeping for transfer or the transfer of animals at temporary facilities, such as flea markets, mobile facilities, department stores, merchandise outlets, discount outlets, animal shows conducting a sale, and other types of retail outlets where animals are intended as companions or household animals.

     "Purchaser" means any person who purchases a dog from a breeder.

     §   ‑2  Applicability.  Every breeder of dogs shall comply with this chapter.  This chapter shall not apply to hobby breeders, publicly operated dog pounds, humane societies, or privately operated pet rescue organizations.

     §   ‑3  Medical history information.  (a)  Every breeder shall provide to each purchaser of a dog a written disclosure containing all of the following:

     (1)  The breeder's name and address;

     (2)  The date of the dog's birth;

     (3)  The breed, sex, color, and identifying marks at the time of sale, if any.  If the breed is unknown or mixed, the record shall so indicate;

     (4)  If the dog is being sold as being capable of registration, the names and registration numbers of the sire and dam, and the litter number, if known;

     (5)  A record of inoculations and worming treatments administered, if any, to the dog at the time of sale, including dates of administration and the type of vaccine or worming treatment; and

     (6)  A record of any veterinary treatment or medication received by the dog while in the possession of the breeder and:

         (A)  A statement signed by the breeder at the time of sale that the dog has no known disease or illness and has no known congenital or hereditary condition that adversely affects the health of the dog at the time of the sale or that is likely to adversely affect the health of the dog in the future; or

         (B)  A record of any known disease, illness, or congenital or hereditary condition that adversely affects the health of the dog at the time of sale, or that is likely to affect the health of the dog in the future, along with a statement signed by a veterinarian licensed in the State that authorizes the sale of the dog, recommends necessary treatment, if any, and verifies that the disease, illness, or condition does not require hospitalization or nonelective surgical procedures, nor is it likely to require hospitalization or nonelective surgical procedures in the future.  A veterinary statement is not required for intestinal or external parasites unless their presence makes the dog, or is likely to make the dog clinically ill.  The statement shall be valid for seven days following examination of the dog by a veterinarian.

     (b)  The written disclosure made pursuant to this section shall be signed by both the breeder certifying the accuracy of the statement and by the purchaser of the dog acknowledging receipt of the statement.

     (c)  For the purposes of this chapter, a disease, illness, or congenital or hereditary condition that adversely affects the health of a dog at the time of a sale, or is likely to adversely affect the health of a dog in the future, shall be one that is apparent at the time of sale or that should have been known by the breeder from the history of veterinary treatment disclosed pursuant to this section.

     §   ‑4  Written records; retention.  A breeder shall maintain a written record on the health, status, and disposition of each dog for a period of not less than one year after disposition of the dog.  The record shall also include all of the information that the breeder is required to disclose pursuant to section    ‑3.

     §   ‑5  Sale of diseased dogs; prohibited.  Except as provided in section    ‑3(a)(6), no breeder shall knowingly sell a dog that is diseased, ill, or has a condition, any one of which requires hospitalization or nonelective surgical procedures.  In lieu of the civil penalties imposed under section    ‑15, any breeder who violates this section shall be subject to a civil penalty of up to $1,000, or shall be prohibited from selling dogs for up to thirty days, or both.  If there is a second offense, the breeder shall be subject to a civil penalty of up to $2,500, or a prohibition from selling dogs for up to ninety days, or both.  For a third offense, the breeder shall be subject to a civil penalty of up to $5,000, or a prohibition from selling dogs for up to six months, or both.  For a fourth and subsequent offense, the breeder shall be subject to a civil penalty of up to $10,000 or a prohibition from selling dogs for up to one year, or both.  For the purpose of this section, a violation that occurred over five years prior to the most recent violation shall not be considered.

     §   ‑6  Unlawful practices.  It shall be unlawful for a breeder to fail to:

     (1)  Maintain facilities where the dogs are kept in a sanitary condition;

     (2)  Provide dogs with adequate nutrition and potable water;

     (3)  Provide adequate space appropriate to the age, size, weight, and breed of the dog.  For purposes of this paragraph, "adequate space" means sufficient space for the dog to stand up, sit down, and turn about freely using normal body movements, without the dog's head touching the top of the cage or cramping in a lying position;

     (4)  Provide dogs with a rest board, floor-mat, or similar device that can be maintained in a sanitary condition;

     (5)  Provide dogs with adequate socialization and exercise.  For the purpose of this paragraph, "socialization" means physical contact with other dogs and with human beings;

     (6)  Wash their hands before and after handling each infectious or contagious dog; or

     (7)  Provide veterinary care without delay when necessary.

     §   ‑7  Wire flooring prohibited.  It shall be unlawful for a breeder to primarily house a dog on wire flooring.

     §   ‑8  Purchaser remedies; veterinarian statement.  (a)  If a licensed veterinarian states in writing that within fifteen days after the purchaser has taken physical possession of a dog following the sale by a breeder, the dog has become ill due to an illness or disease that existed on or before delivery of the dog to the purchaser, or a licensed veterinarian states in writing that the dog has a congenital or hereditary condition that adversely affects the health of the dog, or that requires, or is likely in the future to require, hospitalization or nonelective surgical procedures, the dog shall be considered unfit for sale and the breeder shall provide the purchaser with a remedy of the purchaser's selection:

     (1)  Return the dog to the breeder for a refund of the purchase price;

     (2)  Exchange the dog for a dog of the purchaser's choice of equivalent value if a replacement dog is available; or

     (3)  Retain the dog and receive reimbursement for reasonable veterinary fees for diagnosis and treatment of the dog in an amount not to exceed one hundred and fifty per cent of the original purchase price of the dog.

     (b)  If the dog has died within the fifteen-day return period, the breeder shall provide to the purchaser a refund for the purchase price of the dog plus general excise tax, or a replacement dog of equivalent value of the purchaser's choice, and reimbursement for reasonable veterinary fees for diagnosis and treatment of the dog in an amount not to exceed the purchase price of the dog, if a veterinarian, licensed in this State, states in writing that the dog has died due to:

     (1)  An illness or disease that existed before the purchaser obtained physical possession of the dog; or

     (2)  A congenital or hereditary condition that was diagnosed by the veterinarian.

     (c)  A veterinarian's statement written pursuant to subsection (a) or (b) shall contain all of the following information:

     (1)  The purchaser's name and address;

     (2)  The date or dates the dog was examined;

     (3)  The breed and age of the dog, if known;

     (4)  That the veterinarian examined the dog;

     (5)  That the dog has or had disease, illness, or a hereditary or congenital condition, as described in section    ‑3 that renders it unfit for purchase or resulted in its death; and

     (6)  The precise findings of the examination or necropsy, including laboratory results or copies of laboratory reports.

     (d)  If a refund for reasonable veterinary expenses is being requested, the veterinarian's statement shall be accompanied by an itemized bill of fees appropriate for the diagnosis and treatment of the illness or congenital or hereditary condition.

     (e)  Refunds and payment of reimbursable expenses provided in this section shall be paid, unless contested, by the breeder to the purchaser no later than ten business days following receipt of the veterinarian's statement or, where applicable, no later than ten business days after the date on which the dog is returned to the breeder.

     §   ‑9  Rebuttable presumption; pre-existing illness.  (a)  There shall be a rebuttable presumption that an illness existed at the time of the sale of a dog if the dog dies within fifteen days of delivery to the purchaser.

     (b)  For purposes of section    ‑8, a finding by a veterinarian of intestinal or external parasites shall not be grounds for declaring a dog unfit for sale unless their presence makes, or is likely to make the dog clinically ill.

     (c)  For purposes of section    ‑8, the value of veterinary services shall be deemed reasonable if the services rendered are appropriate for the diagnosis and treatment of an illness or a congenital or hereditary condition made by the veterinarian and the value of the services is comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian.

     §   ‑10  Dog purchaser's requirements for obtaining remedies.  To obtain the remedies provided for in section    ‑8, the purchaser shall substantially comply with all of the following requirements:

     (1)  Notify the breeder as soon as possible of, but no later than five days after, the diagnosis of a dog by a veterinarian licensed in this State of the dog's medical or health problem, including a congenital or hereditary condition and of the name and telephone number of the veterinarian providing the diagnosis;

     (2)  Return the dog to the breeder, in the case of illness or congenital or hereditary condition, with a written statement from a veterinarian licensed in this State, stating that the dog is unfit for purchase due to illness, a congenital or hereditary condition, or the presence of symptoms of a contagious or infectious disease that existed on or before delivery of the dog to the purchaser that adversely affects the health of the dog.  The purchaser shall return the dog along with a copy of the veterinarian's statement as soon as possible but no later than five days of receipt of the veterinarian's statement; and

     (3)  Provide the breeder, in the event of the death of the dog, with a written statement from a veterinarian licensed in this State stating that the dog died from an illness that existed on, or before the delivery of the dog to the purchaser.  The presentation of the statement shall be sufficient proof to claim reimbursement or replacement of the dog.  The return of the deceased dog to the breeder shall not be required.

     §   ‑11  Disqualification of remedies.  No refund, replacement, or reimbursement of veterinary fees shall be made under section    ‑8 if any of the following conditions exist:

     (1)  The illness, condition, or death of the dog resulted from maltreatment or neglect or from an injury sustained or an illness or condition contracted subsequent to the delivery of the dog to the purchaser;

     (2)  The purchaser fails to carry out the recommended treatment prescribed by the examining veterinarian who made the initial diagnosis; provided that this paragraph shall not apply if the cost for the treatment with the veterinarian's fee for the diagnosis exceeds the purchase price of the dog;

     (3)  A veterinarian's statement was provided to the purchaser pursuant to section    ‑3(a)(6)(B) that disclosed the disease, illness, or condition for which the purchaser seeks to return the dog; or

     (4)  The purchaser refuses to return to the breeder all documents previously provided to the purchaser for the purpose of registering the dog; provided that this paragraph shall not apply if the purchaser signs a statement certifying that the documents have been inadvertently lost or destroyed.

     §   ‑12  Examination.  (a)  In the event that a breeder wishes to contest a demand for any of the remedies specified in section    ‑8, the breeder, except in the case of the death of the dog, may require the purchaser to produce the dog for examination by a licensed veterinarian designated by the breeder.  The breeder shall pay the cost of this examination.

     (b)  If the purchaser and the breeder are unable to reach an agreement within ten business days following receipt by the breeder of the veterinarian's statement pursuant to section    ‑8, or following receipt of the dog for examination by a veterinarian designated by the breeder, whichever is later, the purchaser may initiate an action in a court of competent jurisdiction to resolve the dispute or the parties may submit to binding arbitration if mutually agreed upon by the parties in writing.

     (c)  The prevailing party in the dispute shall have the right to collect reasonable attorneys' fees if the other party acted in bad faith in seeking or denying the requested remedy.

     §   ‑13  Written notice; purchaser.  Every breeder that sells a dog shall provide the purchaser at the time of sale, and a prospective purchaser upon request, with a written notice of rights setting forth the rights provided for under this section.  The notice shall be contained in a separate document.  The written notice of rights shall be in ten-point type.  A copy of the notice shall be signed by the purchaser acknowledging that the purchaser has reviewed the notice.  The notice shall state the following:

"A STATEMENT OF HAWAII LAW GOVERNING THE SALE OF DOGS

     The sale of dogs is subject to consumer protection regulation.  In the event that a Hawaii licensed veterinarian states in writing that your dog is unfit for purchase because it became ill due to an illness or disease that existed within fifteen days following delivery to you, you may choose one of the following:

     (1)  Return your dog and receive a refund of the purchase price and receive reimbursement for reasonable veterinarian fees up to the cost of the dog;

     (2)  Return your dog and receive a dog of your choice of equivalent value, provided that a replacement dog is available, and receive reimbursement for reasonable veterinarian fees up to the cost of the dog; or

     (3)  Keep the dog and receive reimbursement for reasonable veterinarian fees up to one hundred and fifty per cent of the original purchase price of the dog.

     In the event your dog dies, you may receive a refund for the purchase price of the dog or a replacement dog of your choice, of equivalent value, and reimbursement for reasonable veterinary fees for the diagnosis and treatment of the dog, if a veterinarian, licensed in this State, states in writing that the dog has died due to an illness or disease that existed before or fifteen days after the purchaser obtained physical possession of the dog after the sale by a dog breeder.  These fees may not exceed the purchase price of the dog.

     In order to exercise these rights, you must notify the dog breeder as quickly as possible, but no later than five days after learning from your veterinarian that a problem exists.  You must tell the dog breeder about the problem and give the dog breeder the name and telephone number of the veterinarian providing the diagnosis.

     If you are making a claim, you must also present to the dog breeder a written veterinary statement, in a form prescribed by law, that the animal is unfit for purchase and an itemized statement of all veterinary fees related to the claim.  This information must be presented to the dog breeder no later than five days after you have received the written statement from the veterinarian.

     In the event that the dog breeder wishes to contest the statement or the veterinarian's bill, the dog breeder may request that you produce the dog for examination by a licensed veterinarian of the dog breeder's choice.  The dog breeder shall pay the cost of this examination.

     In the event of death, the deceased dog need not be returned to the dog breeder if you submit a statement issued by a licensed veterinarian stating the cause of death.  If the parties cannot resolve the claim within ten business days following receipt of the veterinarian statement or the examination by the dog breeder's veterinarian, whichever event occurs later, you may file an action in a court of competent jurisdiction to resolve the dispute.  If a party acts in bad faith, the other party may collect reasonable attorneys' fees.  If the dog breeder does not contest the matter, the dog breeder must make the refund or reimbursement no later than ten business days after receiving the veterinary certification.

     This statement is a summary of key provisions of the consumer remedies available.  Hawaii law also provides safeguards to protect dog breeders from abuse.  If you have questions, obtain a copy of the complete relevant statutes.

NOTE:  This disclosure of rights is a summary of Hawaii law.  The actual statutes are contained in chapter    , Hawaii Revised Statutes."

     This notice shall be contained in a separate document.  The notice shall be signed by the purchaser acknowledging that the purchaser has reviewed the notice.  The dog breeder shall permit persons to review the written notice upon request.

     §   ‑14  Rights of purchaser.  Nothing in this chapter shall in any way limit the rights or remedies that are otherwise available to a consumer under any other law or preclude the breeder and the purchaser from agreeing between themselves upon additional terms and conditions that are not inconsistent with this chapter; provided that any agreement or contract by a purchaser to waive any rights under this chapter shall be void and unenforceable.

     §   -15  Penalties.  Except as otherwise specified in this chapter, any person violating any provision of this chapter other than section    -5 shall be subject to civil penalty of up to $1,000 per violation."

     SECTION 2.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 3.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Dog Breeders; Responsibilities; Refunds

 

Description:

Requires dog breeders to provide purchasers of dogs with written statements of the dog's medical history and allows purchasers to return dogs to a breeder for a refund or exchange if the dog has a pre-existing condition.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.