Year: 2011

Recovered from the Wayback Machine.

Those concerned about the law predicted the loss of 3.000 jobs and millions in state revenue. They said the provisions of the bill would be enough to decimate an entire industry. They challenged the Constitutionality of the law.

No, I’m not talking about Proposition B, the Puppy Mill Cruelty Prevention act. I’m talking about SS SCS SBs 586 & 617 passed in 2010, otherwise known as the Adult Entertainment Law. The law has since been challenged in court and is expected to eventually make its way to the Missouri Supreme Court.

We’re told that Proposition B would cost jobs and that’s why the legislature can’t allow it to proceed. We’re told it will cost revenue for the state, and that’s why we can’t allow it to proceed. We’re also told that it would decimate an entire industry, and that’s why it can’t proceed. Most importantly, we’re told that Proposition B is somehow Unconstitutional, and that it is the legislators obligation to not allow the bill to proceed.

But the representatives heard the same thing about the Adult Entertainment Law.

• That it would cost jobs, but they allowed it to proceed
• That it would cost the state revenue, but they allowed it to proceed
• That it would decimate an industry, but they allowed it to proceed
• That the law is Unconstitutional, but they allowed it to proceed.

People were told that the Adult Entertainment Law was necessary because the adult entertainment industry is responsible for crime and divorce and broken families, but the facts do not prove out the statements.

We’re told that Proposition B isn’t necessary because most breeders are really terrific, providing a wonderful home for the dogs, but the facts don’t prove this out, either.

So why is is OK to apply strict new business regulations for one industry, but not another? Why is it OK for the state to add stringent new laws for adult entertainment venues, when no regulations are being broken, but it’s not OK for the state to add stringent new laws for an industry notorious for violating existing laws?

I have some guesses to share.

For one, the adult entertainment group didn’t get the Missouri Farm Bureau or Cattlemen’s Association on its side. It didn’t get Forrest Lucas of Lucas oil to brag about how he wants to “bloody the nose” of the prudes.

The adult entertainment group didn’t build their strip clubs in former hog barns, or in the middle of corn fields.

The strip clubs didn’t feature acts with dogs crammed into wire cages 6 inches longer than they are, desperately licking frozen water. Or dogs in plastic igloos, huddled in straw, shivering—with artfully matted fur, bloodied raw wounds, or dead puppies scattered about. No, the strip clubs wouldn’t feature such acts.

They have standards, you know.

I think the real reason, though, is that the Adult Entertainment Law wasn’t passed by the people of the state. If it had been, the legislators would have sneered at our gullibility, as they happily ripped it apart.

Recovered from the Wayback Machine.

The BBB published a scathing report condemning Missouri’s place as the Puppy Mill Capital of the US, and calling for stricter enforcement of our laws. As noted in the report, one area of improvement demanded was an increase in fees to fund more inspectors.

The three audits the Missouri State Auditor has made of the Department of Agriculture (2001, 2004, and 2008 (pdfs)) have all shown that the Department is not doing enough to inspect the facilities under their responsibility, to enforce the appropriate fees, or to collect fees and penalties. Though the third audit was not as thorough or comprehensive as the first two, it still noted that the Department was not fully inspecting facilities. In response, the Department stated:

Our workload continues to increase faster than our available staff resources. Our
program has added 756 facilities but only 2 inspectors since the 2004 audit. Our staff
cited 1,652 violations in 2004, 1,914 violations in 2005, 2,283 violations in 2006, and
3,156 violations in 2007. Inspectors have been instructed to point out every violation
witnessed during an inspection, and the number of documented citations has increased
significantly each year. This increase in numbers includes primarily new disclosed
unlicensed sites that usually have numerous violations and therefore require more
inspection time. There were 1,506 facilities inspected during calendar year 2005, 1,681
facilities inspected during calendar year 2006, and 2,282 facilities inspected during
calendar year 2007. We continue to add facilities at a faster rate than we add staff. We
are working toward inspecting 100 percent of the kennels 100 percent of the time and as
noted in this audit we have increased from 30 percent in 2004 to 60 percent in 2006.
Whenever violations are severe, action is taken to remove animals from harm’s way,
taking a large portion of our staff’s time.

One claim made against Proposition B, before the vote and now that it is the Puppy Mill Cruelty Act, is that it didn’t include the funding necessary to implement its measures. As part of the ballot process, a fiscal note (pdf) was prepared for Proposition B that showed the Department of Agriculture expressing a need for additional inspectors in order to enforce the provisions of Proposition B. In their defense of the SB 113, which amounts to a complete repeal of Proposition B, the backers have added a Bark Alert fee and increased the license fee ceiling, which, they have said, would provide the additional enforcement necessary to rid us of puppy mills—removing the need for Proposition B. Even Governor Nixon is now talking about funding and enforcement, in what sounds to be a prelude to support for SB 113.

However, there is more than a little resemblance to a shell game associated with the issue of Proposition B funding. And the only way to keep an eye on what’s happening with all of the references, back and forth, on funding is to follow the money.

Follow the Money

When the Animal Care Facilities Act was instituted in 1993, part of the Act included the issuance of licenses and the collection of fees. The fees collected go into a special fund called the Animal Care Reserve fund, which can only be used for the implementation of the statutes listed in 273.325 to 273.357. Implemented as a statute, Proposition B would be inserted into the Statutes as section 273.345. As such, any funds collected for licenses and fees would be applicable to the Proposition B requirements, as they are applicable to other requirements listed in these sections.

In the Proposition B fiscal note, the Department of Agriculture noted:

The Department of Agriculture indicated that this initiative petition will add additional
responsibilities to the department’s Animal Care Program. There is core funding for
current responsibilities of the Animal Care Program but the current level of funding is
inadequate to meet the current level of responsibilities. The additional responsibilities
added by the initiative petition cannot be accomplished with existing funding.

…

The Animal Care Program does not have the financial resources it needs to meet the
current program requirements. The additional requirements of this initiative petition
would significantly increase program responsibilities and could not be accomplished
without a commensurate significant increase in program funding.

What the Department of Agriculture stated in the fiscal note was also noted in the BBB report: there is inadequate funding for inspectors considering the number of commercial breeders that need to be inspected. The unanswered question is: what about Proposition B makes an additional requirement on the inspectors, considering that Proposition B does not require additional inspections, and is, in fact, a refinement on existing inspection regulations? Especially considering the fact that the new restrictions on number of dogs would simplify inspections at larger breeders?

The Department of Agriculture also provided input into the fiscal notes for HB 131 and SB 113, except for these bills, the Department provides more specific details as to its requirements. In SB 113, it stated:

Officials at the Department of Agriculture (AGR) state the requirements of this proposed legislation would mandate that the department follow up on any violations deemed to be of a serious nature and then prepare a legal referral to the prosecuting attorney or revoke the license of the facility. The current mandate is once per year or upon complaint.

AGR states three additional Animal Health Officers responsible for the enforcement of the proposed legislation would be required for preparing investigations of alleged violations of the proposed legislation. The additional Animal Health Officers would work with program participants, general public; inspect commercial breeders, pet shops, kennels, animal shelters, and related facilities for proper licensure and compliance with animal care statutes and regulations.

The Department further stated that though the higher fee limit would bring in an addition $83,000 dollars for inspections, this wouldn’t be sufficient to hire three more people. The Department stated it would need General Revenue funds in the amounts of $141,452 in FY12; $114,770 in FY13; and $117,284 in FY14. The response by Oversight to the request was:

Oversight assumes since the Department of Agriculture (AGR) already inspects all licensed dog related facilities, therefore they would not need three additional Animal Health Officers. If AGR experiences a measurable increase in its workload as a direct result of this proposal then it can request additional FTE in future budget requests.

Well, huh. It would seem that Oversight also, indirectly, supports the supposition that additional inspectors would not be needed for supporting Proposition B, the Puppy Mill Cruelty Act.

However, additional inspectors are needed regardless of what bill is allowed to stand. The BBB report and all three state audits confirm this. And new licensing fees are not sufficient. As the Department noted in response to the 2008 department audit:

Although the department does not agree with all of the points made in the four page discussion
of the Analysis of Fees finding, MDA does agree in principle with the Auditor’s
recommendations regarding the need to evaluate, adjust, and establish fees as appropriate.
However, we also believe it’s important to recognize that in many instances fees were never
intended to cover all of a program’s costs.

The Department of Agriculture’s original estimate in the Prop B fiscal note of seven full time inspectors and support equipment and staff seems inflated compared to the amount of existing work. What specifically about Proposition B led the Department to assume it needed an additional seven inspectors, just for this bill? The Department didn’t provide this information.

The request for three additional inspectors for SB 113 seems low, again compared to existing requirements, and the requirements for additional inspections. However, at least the Department provided specifics behind its request for the three additional inspectors for SB 113.

In neither case, though, has the Department provided a realistic request for what it needs to meet the requirements as outlined in the three Missouri audits and the BBB report. As it has stated in a Fiscal Note Contact Log obtained under a Sunshine Law request, the inspectors try to inspect all of the facilities but in FY10, of the total number of licensed facilities (2,731 total), they were only able to inspect 2,354 facilities. In my opinion, the amount of time the inspectors spend at each facility must be insufficient when you compare the number of facilities they have to inspect, in addition to their other responsibilities such as responding to complaints and investigations of unlicensed facilities—primarily generated by Bark Alert submissions.

What the Increased Fee in SB 113 buys us–and doesn’t buy us

The increased fee limit in SB 113 will bring in an estimated $83,000 which can be used to fund inspections. According to a worksheet, also obtained via a Sunshine Law request, the licensing fee increase would be enough to fund only one additional inspector. The additional General Revenue funds request is to fund two additional inspectors. These inspectors would be necessary in order to handle the increased number of inspections under SB 113, as well as preparing any legal cases.

The Senate Oversight denied the request for the additional two inspectors. Point of fact, it denied the need for all three inspectors.

What this means is that not enough funding is provided in SB 113 in order to meet the new requirements it adds on to the Department of Agriculture. I do note that the Department has asked for $875,620 in Animal Care Reserve Fund monies for FY12, but that the Governor struck this amount and recommended an allotment of $751,482—approximately $50,000 less than what was appropriated for 2011.

It’s important to be aware that the additional $25.00 per licensed facility for Bark Alert only brings in $57,000. This money is specifically earmarked in SB 113 for Bark Alert promotion—not for funding additional inspectors. According to the fiscal estimates given for inspectors by the Department of Agriculture, the amount of money generated would not be sufficient for funding even one new inspector.

Bark Alert

During the debates on SB 113 the success of Bark Alert was referred to by more than one legislator, and on more than one occasion. After all, the Bark Alert web page states:

Since the launch of Operation Bark Alert, more than 4,300 dogs have been rescued in across Missouri in 2009, Missouri saw a decrease of 164 commercial breeders thanks to Operation Bark Alert. In 2010, the trend continued with more than 200 commercial breeders no longer in business in Missouri.

I attempted to find out background information on these impressive sounding statistics given by the Department of Agriculture, and was told that records for breeders that closed during 2009 and 2010 were moved to the archives already and the cost to research these records to find what I needed would be more than the amount I specified in the Sunshine Law request. Yet one would think the data to support the assertions in the web page would be readily available—at least in some spreadsheet somewhere— in order to justify posting such values to the web site; especially considering the debates ongoing about Proposition B and SB 113.

In actuality, I believe the numbers touted for Bark Alert are misleading. I believe that the number of breeders the Bark Alert page lists as closed are the number of breeders who have closed for any number of reasons: unlicensed breeders shut down, breeders who have voluntarily gone out of business, and even some breeders who were shut down because of severe violations. I was told that there were 1,802 commercial breeders in 2009; 1,638 commercial breeders in 2010; and there are 1,414 commercial breeders at the beginning of 2011 (supposedly there are 1,390 breeders right now).

The differences reflect the total number of commercial breeders who have closed, not those specific to Bark Alert.

There is no differentiation between breeders who closed because of Bark Alert, who closed voluntarily because they were quitting the business, and who closed because of criminal action and extreme negligence. We have no way of verifying the efficacy of Bark Alert.

Though the additional funding that SB 113 allocates is insufficient to fund increased enforcement, perhaps it would be sufficient enough for the Department of Agriculture to implement more modern record keeping practices including digitalization of inspection records and easier access to the other data.

Summary

The discussion about funding for inspectors has been equal parts real need and political mechanization.

In the Proposition B fiscal note, the Department of Agriculture mixed in the current (and chronic) needs for an increased number of inspectors with the requirements for enforcing Proposition B in such a way that we can’t determine which funding amount actually applies to the enforcement of Proposition B. However, as was stated by the outside auditor that compiled the fiscal note:

Bradley Ketcher, Ketcher Law Firm, LLC indicated in summary, the proposed
initiative will have no or little fiscal impact on state or local government. In addition, it
offers some opportunity for cost savings.

The Department of Agriculture was more precise with the SB 113 funding requirements, and asked for General Revenue funds for two additional inspectors in addition to the inspector that would be funded by the increased licensing fee ceiling. Oversight denied the request for all three inspectors.

The Department of Agriculture’s Bark Alert program’s efficacy has to be questioned in light of the fact that the Department can’t readily back up the facts and figures posted at the web site. Regardless, the $25.00 fee is for program promotion, only, and doesn’t provide any funding for additional personnel or increased investigative capacity.

An honest assessment of what the Department really needs in the way of inspectors must be determined. In addition, an honest attempt to meet the additional requirements should also be undertaken—as well as better oversight of the inspectors to ensure that the requirements outlined in the first two Missouri audits have been met. The inspectors cannot be taking the time they need—not and inspect as many facilities as they say they’re inspecting every year.

What is also needed at the Department of Agriculture is more modern record keeping practices, more computers, and better access to publicly accessible data for the public—comparable to what the USDA APHIS provides. One of the requirements given in the 2008 audit of the Department is that the Department of Agriculture needed to provide a method of evaluating which facilities need enhanced inspections. Storing all data in boxes that are archived does not facilitate such evaluations.

Bottom line: contrary to assertions made by Missouri state representatives, SB 113 does not provide adequate funding.

PS As of February, 2011, the Animal Care Reserve Fund has $570,529. And change.

update

From the spreadsheet, the following is the cost for one new inspector:

Salary	35,084
Benefits	15,792
Vehicle (Amortized over three years)	$6,000 (per year)
Equipment	1,697
Supplies	1,500
M & R Services	900
Travel, in-state	7,000
Professional Development	1,000
Misc. Expenses	750
Communication services	500

The total for one inspector is: $78, 323.00. A year.

Increased fee ceiling should generate an additional $83.000.

Therefore, there is only enough funding for one new inspector. And that’s if the department is allowed to hire, in this cost cutting atmosphere.

You can’t re-frame the mathematics.

I’ve read a document going around that supposedly forms the primary arguments for SB 113. I’ll have more on this next week, after I gather together all the bits.

One part of it quotes section 2 of the Missouri State Constitution Bill of Rights:

Section 2. That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

Too bad the same people didn’t spend more time on Section 1.

Section 1. That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.