NYC Health Code on Exotic Pets
In compliance with Section 1043(b) of the New York City Charter, a notice of intention to amend section 161.01 of the New York City Health Code and notice of public hearing was published in the City Record on April 30, 1999. After a review of the trartscript ofthe public hearing held June 3, 1999, and in response to comments received, revisions were made to the proposal and the Board of Health at its June 29, 1999 meeting adopted the following resolution:
These amendments to the New York City Health Code ("Health Code") are promulgated pursuant to Sections 556, 558 and 1043 of the New York City Charter ("Charter"). Section 556 of the Charter grants the Department of Health jurisdiction to regulate all matters affecting health in the City of New York. Section 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the Department's authority extends. Section 1043 grants the Department of Health rulemaking powers.
STATEMENT OF BASIS AND PURPOSE
It is proposed that Health Code section 161.01 ("Wild animals prohibited") be amended to update regulations with respect to prohibiting the sale or possession of a broad range of classifications (class, order' family, genus or species) of "wild" animals in New York City.
The Department has not heretofore promulgated a list of prohibited animals either in the Health Code or as Commissioner's regulations because of concerns that the list might not be sufficiently comprehensive so as to cover every species of wild animal and that omission of certain animals from such a list would be interpreted to mean that their possession was lawful. Moreover, different wildlife species have, from time to time, emerged as fashionable animals to own, potentially requiring frequent amendment of the Code. Absent a list, however, the Department has been required to litigate whether a specific animal or species is "wild, ferocious, fierce, dangerous or naturally inclined to do harm" pursuant to the current provisions of section 161.01(a). It is therefore proposed that the public be placed on notice as to which wild animals the Department has historically prohibited because they are dangerous, i.e. capable of and inclined toward inflicting bodily harm upon a human being, and/or because their possession or sale is prohibited because they appear on federal or State endangered or protected species lists.
It is therefore proposed that section 161.01 be amended to include a listing of classifications of animals which residents of the City would be prohibited from selling, keeping or harboring. To accommodate changes in pet ownership patterns which make it desirable to possess animals not initially prohibited, it is proposed that the Board, authorize the Commissioner to promulgated additional regulations from time to time adding to the list as the Commissioner deems necessary. Such regulations would be promulgated, as are all other Commissioner's regulations, in accordance with section 1043 of the New York City Charter (the City Administrative Procedure Act), allowing for public comment.
The proposed list of prohibited animals does not include domesticated dogs and cats, which have been bred over many generations to eliminate feral characteristics, thereby enabling most species and breeds to live compatibly with humans. Also not on the prohibited list are animals such as hamsters, guinea pigs, and rabbits which are not otherwise prohibited by applicable law.
Jurisdictions throughout the nation have developed such lists based on local conditions. The proposed list of prohibited animals to be included in the health Code is based on the Department's past experience. During the past five years, for example, the Department has seized, or issued violations to persons who unlawfully possessed, such' animals as caiman, alligator, monkey, monitor lizard, several, wallaby, coatimundi, snapping turtle, wolf hybrid, scorpion, tarantula, and venomous snakes. A common defense expressed to justify possession is ignorance that possession of a certain animal is unlawful. Where the owner defends such possession, the Department has the legal burden of proving that the animal is a wild animal within the current definition of section 161.01.
Little guidance can be derived from either state or federal laws as to which animals should be prohibited locally. The New York Environmental Conservation Law regulating native to New York wildlife management, and federal laws regulating the importation, sale and keeping of endangered species do not identify all the many and varied "wild" animals which should be prohibited in a densely populated urban environment because they pose a potential public health and safety risk.
In all cases, the danger to the public from wild animals arises from natural reflexive' adaptive' mechanisms which enable these animals to survive in the wild and which have not and or cannot be eliminated by multigenerational breeding, resulting in their being considered "naturally inclined to do harm." And although individual species members may appear to have been "tamed" to the extent that their behavior appears to be modified while held in captivity, the individual animal's behavior remains unpredictable and the animal continues to be capable of inflicting injury to human beings. It is therefore proposed that the list of prohibited animals in amended subsection (b) include all native (to New York) or exotic (not native) wildlife which are both naturally inclined to do harm and deemed capable of inflicting bodily harm.
The proposal would also amend subsection (a) of section 161.01 to clarify which organizations, institutions and persons shall be exempt from these prohibitions and to authorize the Department to establish conditions and grant approval for limited exhibition or use of prohibited animals.
Other provisions proposed to be added to section 161.01 would authorize seizure of prohibited animals by officers, employees or agents of the Department or other City agencies; and authorize the Commissioner to determine disposition of a prohibited animal that has been seized, offering the owner an opportunity to be heard and present proof as to whether an animal is a prohibited animal and its disposition before the Commissioner or his or her designee make's a final determination. The amendment requires the Commissioner to grant the owner an opportunity to be heard as soon as practicable, but no later than 15 days of the request, and also allows the owner the opportunity of arranging to remove the animal from the City of New York to another jurisdiction where such animal may be lawfully possessed.
Further, it should be noted that the Department responded to a petition to recognize pet ferrets as lawful in New York City by stating its intention to bring the issue to the Board of Health to initiate rulemaking on the subject of the petition. This resolution complies with the stated intention by requesting the Board, for public safety reasons, to continue the prohibition on the sale and possession of ferrets in New York City. The Department's rationale on this issue follows.
The Department has historically regarded ferrets as wild animals and prohibited their possession because of a number of public health and safety concerns. These reasons are discussed at length in a federal court decision upholding the City's treatment of ferrets as wild animals. See, New York City Friends of Ferrets vs. The City of New York, et al, 876 F. Supp. 529 (S.D.N.Y. 1995), aff'd 71 F.3rd 405 (2d Cir. 1995). The public health concerns as they relate to disease prevention, particularly with respect to rabies, which were expressed by the City in the court documents submitted have largely been mooted: the viral shedding period for ferrets is now known and there exists an approved rabies vaccine for the domestic ferret. Other public safety issues, however, related to injury prevention, remain unresolved.
The primary public safety concern is that the ferret, despite any possible popularity as a household pet, remains prone to vicious, unpredictable attacks on humans, particularly very young children and infants. In the New York City Friends of Ferrets litigation, the Department relied upon a number of epidemiological studies and monographs, including a study in the state of California, completed during 1987-88, showing a pattern of such injuries. In considering whether the Health Code should be changed to allow ferrets to be sold and owned in New York City, the Department contacted California authorities and was advised that the state will continue to ban ferret ownership because of concerns about child safety and as well as the potential dangers posed by feral ferret populations to native wildlife.
Reports of injuries caused by ferrets continue to surface. Further, since there are no reliable data to indicate how many ferrets are currently owned, calculation of rates of injury inflicted by ferrets and comparison of such rates to rates of injury inflicted by other companion animal species (dogs and cats) is impossible.
In 1994 the National Association of State Public Health Veterinarians and the Council of State and Territorial Epidemiologists continued to express serious concerns about the safety of ferret ownership:
There are several characteristics of attacks by ferrets that are of particular public health concern. Many ferret attacks involve infants and small children who are sleeping or lying down. Ferrets have climbed into cribs and inflicted hundreds of disfiguring bites on defenseless infants. ...There is anecdotal information that the propensity to be aggressive and bite varies with the family line of the ferret. Public health officials believe that more objective data are needed on the risk factors that lead to injuries from ferrets so that specific preventive strategies can be recommended. Until such data are available the safest approach is to restrict ferrets from households that have infants or small children.
National Association of State Public Health Veterinarians, Inc., Statement on ferrets issued jointly by the Council of State and Territorial Epidemiologists and the National Association of State Public Health Veterinarians, Minneapolis, MN; 1994. In response to a telephone inquiry in April 1999, the Department was advised that this warning would remain unchanged in any current recommendation, although other warnings about rabies were no longer applicable.
Similarly, in a 1998 statement, the American Veterinary Medical Association ("AVMA") recommended that "no ferret be left unattended with any individual incapable of removing himself or herself from the ferret." AVMA, Position on ferrets, approved by the AVMA House of Delegates, 1994; amended by the AVMA Executive Board, 1998.
Other recent discussions of ferret bites stress that, despite an acknowledged lack of voluminous, public health bite reports and generally sparse documentation in medical literature, reported ferret attacks are "quite vicious" and pose a "great" health risk to infants and small children. See, e.g., Applegate JA, Walhout MF. Childhood risks from the ferret. J Emerg Med. 1998; 16:425-7.
At the public hearing, many comments were received from and on behalf of owners or advocates of ferret ownership, opposed to the proposed continued ban on pet ferrets. Some of these commenters stated that while they do not regard ferrets as wild animals, and not naturally inclined to do harm, they do believe ferrets can inflict injury, although with no greater frequency than dogs or cats. Some also stated categorically that no ferret should be left alone with an infant, child or, any helpless person, and that owners who allowed such contact were irresponsible, but no more irresponsible than owners of cats or dogs who left children or infants alone with these pets. One comment in support of the Department's continuing ban on ferrets was received from a New Hampshire veterinarian reporting serious facial injuries to a 9-month old child whose parents assumed their pet ferret was in an "escape-proof" cage. None of the persons commenting referred to the special housing conditions in New York City, where millions of people live in apartment buildings, where ferrets can escape and travel into other persons' apartments and public spaces. The resolution as adopted with respect to ferrets is unchanged from that originally proposed.
As a result of comments received from the New York Herpetological Society, the list of prohibited snakes and reptiles includes more specific classifications of venomous snakes and reptiles which may be dangerous even if temporarily devenomized; constrictor snakes which may be less than ten feet when purchased, but will be well over ten feet in adulthood; and other reptiles which will become larger, more aggressive and difficult to manage as they mature.
In response to another comment made at the public hearing, threatening action to enjoin promulgation and/or enforcement of these, amendments because of the proposed continuing ban on ferrets, the resolution as adopted contains a severability clause providing that if any provision therein is struck down, the remainder of the resolution shall have full force and effect.
STATEMENT PURSUANT TO SECTION 1042 - REGULATORY AGENDA
This proposed amendment to section 161.01 was inadvertently omitted from the Health Department regulatory agenda.
The proposal is as follows:
Note- matter in brackets  to be deleted matter underlined is new
RESOLVED, that section 161.01 of the New York City Health Code, as last amended by resolution adopted on the twenty-fourth day of June, nineteen hundred and sixty-five, be and the same hereby is amended, to be printed together with the explanatory notes, to read as follows:
§161.01 Wild animals prohibited.
(a) No person shall sell or give to another person, possess, harbor or keep [an animal of a species which is wild, ferocious, fierce, dangerous or naturally inclined to do harm in anyplace] wild animals identified in subsection (b) of this section or in regulations promulgated by the Commissioner pursuant to subsection (e) of this section other than in:
A zoological park or aquarium operated by the Department of Parks, by the Wildlife Conservation Society [New York Zoological] Society, or by the Staten Island Zoological Society; or [,]
A laboratory operated pursuant to §504 of the Public Health Law; or[,]
A circus [sideshow, or other place of public exhibition or amusement, or an educational or scientific institution, or an establishment of a commercial dealer in animals, which] or native wildlife rehabilitator licensed by federal or state agencies; or
A place which has received the approval of the Department to exhibit or use such animals and which has protective devices which are adequate to prevent such animal from escaping or injuring the public. The Department may impose reasonable conditions and time limits on the granting of such approval.
(b) [An animal of a species specified in subsection (a) of this section shall not be sold to or given to any person or institution except those set forth in subdivisions (1), (2) or (3) of subsection (a) of this section. (c) A venomous snake shall not be sold to, given to or kept by any person except an educational or scientific institution, a zoological park or aquarium operated by the Department of Parks, by the New York Zoological Society, or by the Staten lsland Zoological Society, a snake farm engaged in the preparation of antivenom or an importer of animals.] For the purposes of this Code wild animals are deemed to be any animals which are naturally inclined to do harm and capable of inflicting harm upon human beings and are hereby prohibited pursuant to subsection (a). Such animals shall include: (i) any animals specified by the Commissioner in regulations promulgated pursuant to this section: (ii) any native or exotic wildlife whose possession or sale is prohibited because they are designated as protected or endangered pursuant to any federal, state or local law, regulation, or rule; and (iii) any of the following animals:
All dogs other than domesticated dogs (Canis familiaris) including but not limited to wolf, fox, coyote, hyaena, dingo, jackal, dhole, fennec, raccoon dog, zorro, bush dog, aardwolf, cape hunting dog and any hybrid off spring of a wild dog and domesticated dog.
All cats other than domesticated cats (Felis catus) including but not limited to lion, tiger, leopard, ocelot, jaguar, puma, panther, mountain lion, cheetah, wild cat, cougar, bobcat, lynx, serval, caracal, jaguarundi, margay and any hybrid off spring of a wild cat and domesticated cat.
All bears. Including polar, grizzly, brown and black bear.
All fur bearing mammals of the family Mustelidae, including but not limited to weasel, marten, mink, badger, ermine, skunk, otter, pole cat, zorille, wolverine, stoat and ferret.
All Procypnidae: All raccoon (eastern, desert, ring-tailed cat) kinkajou, cacomistle, cat-bear, panda and coatimundi.
All carnivorous mammals of the family Viverridae, including, but not limited to civet, mongoose, genet, binturong, fossa, linsang and suricate.
All bats (Chiroptera).
All non-human primates including, but not limited to, monkey, ape, chimpanzee, gorilla and lemur.
All squirrels (Sexuridae).
Reptiles (Reptilia). All Helodermatidac (gila monster and Mexican beaded lizard): all front-fanged venomous snakes, even if devenomized, including but not limited to all Viperidae (viper, pit viper), all Elapidac (cobra, mamba, krait, coral snake). All Atractaspidae (African burrowing asp all Hydrophiidae (sea snake), all Laticaudidae (sea kriat): all venomous, mid- or rear-fanged, Duvernoy-glanded members of the family Colubridae, even if devenomized: any member, or hybrid offspring of the family Boidae including, but not limited to, the common or green anaconda and yellow anaconda; any member of the family Pythonidae, including but not limited to the African rock python, Indian or Burmese python. Amethystine or scrub python: and member of the family Varanidae, including the white throated monitor, Bosc's or African savanah monitor, Komodo monitor or dragon. Nile monitor, crocodile monitor, water monitor, Bornean earless monitor: any member of the family Iguanidae, including the green or common iguana; any member of the family Teiidae, including, but not limited to the golden, common, or black and white tegu: all members of the family Chelydridae, including snapping turtles and alligator snapping turtles: and all members of the order Crocodylia, including, but not limited to alligators, caiman and crocodiles.
Birds and Fowl (Aves): All predatory or large birds, including, but not limited to eagle, hawk, falcon, owl, vulture, condor, emu, rhea and ostrich: roosters, geese, ducks and turkeys prohibited or otherwise regulated pursuant to 161.19 of this Code. The Agriculture and Markets Law or applicable federal law.
All venomous insects, including, but not limited to, bee, hornet and wasp.
Arachnida and Chilopoda: All venomous spiders, including, but not limited to, tarantula, black widow and solifugid: scorpion: all venomous arthropods including, but not limited to, centipede.
All large rodents (Rodentia), including, but not limited to, gopher, muskrat, paca, woodchuck, marmot, beaver, prairie dog, capybara, sewellel, viscacha, porcupine and hutia.
All even-toed ungulates (Artiodactyla) including, but not limited to, deer, antelone, sheep, giraffe and hippopotamus.
All odd-toed ungulates (Perissodactyla) other than domesticated horses (Equus caballus), including but not limited to, zebra, rhinoceros and tapir.
All marsupials, including, but not limited to, Tasmanian devil, dasvure, bandicoot, kangaroo, wallaby, opossum, wombat, koala bear, cuscus, numbat and pigmy, sugar and greater glider.
Sea mammals (Cetacea, Pinnipedia and Sirenia), including, but not limited to, dolphin, whale, seal, sea lion and walrus.
All elephants (Proboscides).
All hyrax (Hyracoidea).
All pangolin (Pholidota).
All sloth and armadillo (Edentata).
Insectivorous mammals (Insectivora): all ardvark (Tubulidentata), anteater, shrew, otter shrew, gymnure, desman, tenrec, mole and hedge hog.
Gliding lemur (Dermoptera).
(c) In addition to domesticated dogs and cats, an animal maybe kept, possessed, harbored or sold in the City of New York provided that possession of the animal is not otherwise prohibited by law including, federal, state and local laws regulating domestic animals and livestock or protecting wildlife and endangered species. Such animals include, but are not limited to, gerbil, hamster (Mesocricetus auratus), guinea pig, domesticated rabbit and fowl or small birds such as parakeet, parrot, canary and finch. (d) An animal whose possession is prohibited pursuant to this section may be seized by any authorized employee, officer or agent of the Department or of any other agency of the City of New York, and the Commissioner shall provide for such animal's appropriate disposition.
An order issued by the commissioner pursuant to this section shall contain a notice that the owner of such animal may, within three business days of receipt of the order, request an opportunity to be heard with respect to whether the animal is a prohibited animal and its appropriate disposition. The Commissioner shall provide such an opportunity to be heard as soon as practicable, but no later than 15 days after receipt of such request.
With the written consent of the department, an owner of any animal whose possession is prohibited pursuant to this section, may remove such animal to another jurisdiction where its possession is not prohibited pursuant to any local or other law.
(e) The Commissioner may promulgate such regulations as may be necessary to add to the list in subsection (b) any animal which the Commissioner determines is naturally inclined to do harm and capable of inflicting bodily harm upon human beings. (f) If a provision of this section is adjudged invalid by a court of competent jurisdiction, such judgement shall not affect or impair the validity of the remainder of this section.
Section 161.01 was amended by resolution adopted on June 29, 1999 to clarify which animals are naturally inclined to do harm and capable of inflicting injury on human beings and should therefore be considered wild and to continue to prohibit their sale or possession with specified exceptions. Although the Department for many years has maintained lists of prohibited wild animals, the lists have not been codified in the Health Code or promulgated as regulations by the Commissioner. The identification of animals prohibited pursuant to this section incorporates the definition of "wild animal" contained in section 370 of the Agriculture and Markets Law, as "animals capable of inflicting harm upon human beings," as well as their prior characterization in section 161.01 (a) of the Health Code as "naturally inclined to do harm." Also prohibited is possession and sale of any animals whose possession or sale is prohibited or regulated by federal, state or local law as a "protected" or "endangered" wildlife species. The section was further amended to authorize the Commissioner to add to the list of prohibited animals through regulations promulgated in accordance with the Citywide Administrative Procedure Act when necessary; to authorize employees, officers and agents of the Department and other City agencies to seize prohibited animals; to authorize the Commissioner to make a determination as to whether a particular animal is a prohibited animal and to order its appropriate disposition, allowing the owner an opportunity to be heard before a final determination is made by the Commissioner, and allowing the owner the alternative of arranging removal of the animal from the City to another jurisdiction where it may be lawfully possessed.
Resolved, this resolution shall take effect immediately in accordance with Section 1043 of the New York City Charter.
A TRUE COPY
Patricia J. Caruso,
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