SENATE FINANCE COMMITTEE SUBSTITUTE FOR
SENATE BILL 414
47th legislature - STATE OF NEW MEXICO - first session, 2005
AN ACT
RELATING TO ANIMALS; ENACTING THE ANIMAL SHELTERING SERVICES ACT; CREATING LICENSING PROCEDURES FOR EUTHANASIA PROVIDERS AND EUTHANASIA AGENCIES; CREATING CERTIFICATION PROCEDURES FOR EUTHANASIA INSTRUCTORS; PROMOTING SAFE AND HUMANE CONDITIONS FOR ANIMALS IN ANIMAL SHELTERS; CREATING A FUND; CREATING A BOARD; PROVIDING BOARD 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 animal shelters, to license euthanasia providers and euthanasia agencies and to certify euthanasia instructors.
Section 3. DEFINITIONS.--As used in the Animal Sheltering Services Act:
A. "animal" means any animal, except man, not defined as "livestock" in Subsection L of this section;
B. "animal shelter":
(1) means:
(a) a county or municipal facility that provides shelter to animals on a regular basis, including a dog pound; and
(b) a private humane society or a private animal shelter that temporarily houses stray, unwanted or injured animals through administrative or contractual arrangements with a local government agency; and
(2) does not include a municipal zoological park;
C. "board" means the animal sheltering services board;
D. "department" means the regulation and licensing department;
E. "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 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;
F. "emergency field euthanasia" means the process defined by rule of the board to cause the death of an animal in an emergency situation when safe and humane transport of the animal is not possible;
G. "euthanasia" means to produce a humane death of an animal by American veterinary medical association techniques and as set forth in rules of the board;
H. "euthanasia agency" means a facility that provides shelter to animals on a regular basis, including a dog pound, a humane society or a public or private shelter facility that temporarily houses stray, unwanted or injured animals, and that performs euthanasia;
I. "euthanasia drugs" means non-narcotic schedule II or schedule III substances and chemicals as set forth in the Controlled Substances Act that are used for the purposes of euthanasia and pre-euthanasia of animals;
J. "euthanasia instructor" means a euthanasia provider licensed and certified by the board to instruct other individuals in euthanasia techniques;
K. "euthanasia provider" means a person licensed by the board to administer euthanasia drugs to euthanize animals for a euthanasia agency;
L. "livestock" means all domestic or domesticated animals that are used or raised on a farm or ranch and exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae but does not include canine or feline animals;
M. "rescue organization" means an organization that rescues animals and is not involved in the breeding of animals;
N. "supervising veterinarian" means a person who is a veterinarian, who holds both a valid New Mexico controlled substance license and a valid federal drug enforcement agency license and who approves the drug protocols and the procurement and administration of all pharmaceuticals; and
O. "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 nine members as follows:
(1) one animal shelter 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 advocacy group;
(4) one member of the public;
(5) an employee of the animal shelter industry;
(6) one representative of the New Mexico association of counties;
(7) one representative of the New Mexico municipal league;
(8) one member of a rescue organization; and
(9) one member of an all-breed kennel club.
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 terms of four years, except in the first year of the enactment of the Animal Sheltering Services Act, when board members shall be appointed for staggered terms. Of the first appointments, three board members shall be appointed for four-year terms, two board members shall be appointed for three-year terms, two board members shall be appointed for two-year terms and two board members shall be appointed for one-year terms. Subsequent appointments shall be made to fill vacancies created in unexpired terms, but only until the term ends or for a full four-year term when the term of a board member expires. Board members shall hold office until their successors are duly qualified and appointed. Vacancies shall be filled by appointment by the governor for the unexpired term within sixty days of the vacancy to maintain the required composition of the board.
F. Members of the board shall be reimbursed for per diem and mileage 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 per 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 chair and other officers as it deems necessary to administer its duties.
L. The department shall employ three employees at minimum to execute the daily operations of the board. One employee shall be a veterinarian who holds both a valid New Mexico controlled substance license and a valid federal drug enforcement agency license, and who will order, maintain and dispense euthanasia drugs in accordance with local, state and federal laws.
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 shall consist of money collected by the board pursuant to the Animal Sheltering Services Act; income from investment of the fund; and 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. Money in the fund 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 fund is appropriated to the department to be used to help animal shelters defray the cost of implementing the board's initiatives conducted pursuant to the Animal Sheltering Services Act. The fund shall be administered by the department to carry out the purposes of the Animal Sheltering Services Act.
D. 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.
E. 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) provide board-recommended standards regarding the infrastructure for all animal shelters;
(2) provide board-recommended operating standards for all animal shelters;
(3) adopt procedures for determining when emergency field euthanasia shall apply;
(4) adopt, promulgate and revise rules necessary to carry out the provisions of the Animal Sheltering Services Act;
(5) have authority to issue licenses and certificates pursuant to the Animal Sheltering Services Act;
(6) establish the types of licenses and certificates that may be issued pursuant to the Animal Sheltering Services Act and establish criteria for issuing the licenses and certificates;
(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 certificate holders pursuant to the Animal Sheltering Services Act;
(9) conduct administrative hearings upon charges relating to violations of provisions of the Animal Sheltering Services Act or rules adopted pursuant to that act in accordance with the Uniform Licensing Act;
(10) provide for all examinations and for issuance and renewal of licenses and certificates;
(11) establish fees not to exceed one hundred fifty dollars ($150) for licenses and certificates 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 or certification 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 shelters and euthanasia agencies;
(18) develop mechanisms to address complaints of misconduct at animal shelters and euthanasia agencies and noncompliance with the provisions of the Animal Sheltering Services Act or rules adopted pursuant to that act;
(19) develop mechanisms to address complaints of licensee and certificate holder misconduct and noncompliance;
(20) develop comprehensive dog and cat sterilization plans and community outreach plans for animal shelters and euthanasia agencies;
(21) disburse money from the animal care and facility fund; and
(22) provide board-recommended 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 board 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 PROVIDER--LICENSE.--
A. The board shall have authority to license euthanasia providers.
B. A person, other than a veterinarian licensed to practice in New Mexico, who engages in euthanasia for a euthanasia agency in this state shall be licensed by the board.
C. Applicants for licensure by examination as a euthanasia provider shall be required to pass a euthanasia provider examination administered by the board and shall be required to complete a training course approved by the board in euthanasia practices.
D. The board shall adopt rules to provide for interim placements for euthanasia agencies that have no permanent employees who are euthanasia providers.
E. A person licensed to practice as a euthanasia provider shall:
(1) have passed the examination to qualify as a euthanasia provider;
(2) hold a certificate of completion in a training course in euthanasia issued within one year of the date that the euthanasia provider examination is successfully completed;
(3) have attained an age of at least eighteen years;
(4) not be guilty of fraud or deceit in procuring or attempting to procure a license;
(5) not be intemperate or addicted to the use of habit-forming drugs;
(6) not be guilty of unprofessional conduct;
(7) pay the required fee; and
(8) comply with all other requirements established by the board.
F. The board may issue a license to practice as a euthanasia provider without examination or a certificate of completion in a training course in euthanasia to a veterinarian.
G. The board may issue a license to practice as a euthanasia provider without examination to an applicant who meets the qualifications required for euthanasia providers in this state as set forth in Paragraphs (3) through (8) of Subsection E of this section. The application for a license as a euthanasia provider shall be accompanied by proof of completion of training in euthanasia practices, as approved by the board.
H. A person whose euthanasia 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. EUTHANASIA INSTRUCTORS--CERTIFICATION.--
A. The board shall have authority over the certification of euthanasia instructors.
B. A person certified to practice as a euthanasia instructor shall:
(1) have passed the examination administered by the board to qualify as a euthanasia instructor;
(2) have completed instructor training in euthanasia practices, as defined by the board, within one year preceding the date the application for certification is submitted;
(3) have participated in the euthanasia of animals for a minimum of three years preceding the date of application;
(4) not have been found guilty of fraud or deceit in procuring or attempting to procure any type of certification;
(5) not be intemperate or addicted to the use of habit-forming drugs;
(6) not have been found guilty of unprofessional conduct; and
(7) pay the required fee.
C. The board may certify an applicant as a euthanasia instructor without an examination if the applicant has been certified or licensed under the laws of another state and the applicant meets the qualifications set forth in Paragraphs (3) through (7) of Subsection B of this section. The application for certification shall be accompanied by proof of completion of instructor training in euthanasia practices, as approved by the board.
D. A person whose 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 AGENCIES--INSPECTIONS--EXEMPTIONS.--
A. The board shall have authority over the licensing of euthanasia agencies. All euthanasia agencies shall be licensed by the board for euthanasia to be performed for that agency.
B. The board shall adopt rules governing the procedures for administering euthanasia.
C. The board shall establish rules for inspecting a facility holding or claiming to hold a license as a euthanasia agency in this state.
D. The board shall establish policies and procedures for record keeping and for securing, using and disposing of euthanasia drugs in accordance with requirements of the Controlled Substances Act, the federal Drug Enforcement Agency Controlled Substances Act and the rules of the board of pharmacy.
E. Euthanasia agencies shall have on staff or under contract a supervising veterinarian and a consulting pharmacist as that position is defined in the Pharmacy Act.
F. A supervising veterinarian is not required to be on the premises of a euthanasia agency when euthanasia is performed.
G. Nothing in the Animal Sheltering Services Act shall be construed as allowing a licensed euthanasia provider or a certified euthanasia instructor to engage in the practice of veterinary medicine when performing the duties set forth in that act.
H. Nothing in the Animal Sheltering Services Act shall be construed as preventing a certified euthanasia instructor from humanely euthanizing animals during a board-approved course on euthanasia instruction.
I. Nothing in the Animal Sheltering Services Act affects wildlife rehabilitators working under the auspices of the department of game and fish.
J. A veterinary clinic serving as a euthanasia agency pursuant to a contract with a local government is exempt from the provisions of the Animal Sheltering Services Act; provided that the veterinary clinic is subject to provisions of the Veterinary Practice Act.
K. A municipal facility that is a zoological park is exempt from the provisions of the Animal Sheltering Services Act.
Section 10. LIABILITY--IMMUNITY.--
A. A certified 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 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 to:
(1) perform euthanasia for a euthanasia agency or an animal shelter 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 an application for licensure or certification;
(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 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; and
(14) assist an unlicensed or unauthorized person in euthanizing animals, except during a board-approved course in euthanasia.
B. It is a violation of the Animal Sheltering Services Act for a euthanasia agency or an animal shelter 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 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 or certificate issued pursuant to the Animal Sheltering Services Act to be used by an unlicensed or uncertified person; or
(4) make a misrepresentation or false promise through advertisements, employees, agents or other mechanisms in connection with the euthanasia 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 that person's 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 intends 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--EUTHANASIA PROVIDERS, EUTHANASIA AGENCIES AND EUTHANASIA INSTRUCTORS--HEARINGS.--
A. The provisions of the Uniform Licensing Act apply to all disciplinary procedures and hearings of the board.
B. The board may:
(1) deny, suspend, revoke, reprimand, place on probation or take other action against a license or certificate held or applied for pursuant to the Animal Sheltering Services Act, including imposing an administrative penalty, upon a finding by the board that the licensee, certificate holder or applicant has performed acts in violation of the Animal Sheltering Services Act or a rule adopted pursuant to that act; and
(2) impose an administrative penalty on a person misrepresenting himself to be a licensed euthanasia provider, a certified euthanasia instructor or a licensed euthanasia agency.
C. The board may 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 certificate denied, revoked or suspended by an authority;
(4) has refused to provide the board with reasonable, complete and accurate information regarding the care or euthanasia 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) is intemperate or addicted to the use of habit-forming drugs.
D. 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.
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 may administer oaths, take statements 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 hundred dollars ($500) on a holder of a license or certificate for violations of the Animal Sheltering Services Act.
I. A person or euthanasia agency 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, obtain a license or certificate at any time without examination upon written application to the board showing cause to justify reinstatement or renewal of the license or certificate.
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 certificate 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 provider, a euthanasia instructor or a licensed euthanasia agency without holding a license or certificate issued by the board shall, in addition to any other penalty provided in this section or any other law, pay an administrative penalty to the board in an amount not to exceed five hundred dollars ($500) 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.
- 24 -