September 15, 2004

ATTORNEY GENERAL OPINION NO. 2004- 28

George Teagarden

Livestock Commissioner

Kansas Animal Health Department

708 S.W. Jackson

Topeka, Kansas 66603

Re:	Livestock and Domestic Animals--Protection of Domestic Animals--Unlawful Act; Civil Penalties; Contagious or Infectious Disease

Synopsis:	K.S.A. 47-624 prohibits a person from selling or giving away domestic animals, including cats, that have tested positive for an infectious or contagious disease or when the possessor otherwise knows that the animal has an infectious or contagious disease.

The provision in K.S.A. 47-624 allowing the disposal of an animal after a "bill of health" has been obtained from the livestock commissioner does not give the commissioner discretion to write a "bill of health" on an animal that has tested positive for an infectious or contagious disease. Cited herein: K.S.A. 47-624; 47-635.

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Dear Mr. Teagarden:

As Livestock Commissioner you pose two questions pertaining to K.S.A. 47-624, the statute that addresses civil penalties for persons who possess domestic animals that have a contagious or infectious disease. You explain that your questions have arisen due to the following type of situation:

"For example, a non-profit no-kill humane society has requested permission to adopt out cats that have tested positive for feline leukemia virus. Feline leukemia is a potentially life-threatening disease caused by the feline leukemia virus. Leukemia (cancer of white blood cells) and cancerous tumors may occur in cats that test positive for this virus. Various other diseases may also be involved. There is no cure for feline leukemia.

"Feline leukemia is spread to cats by direct contact with infected cats. About 70% of cats that test positive for the disease live a normal life, however they must remain isolated from unexposed cats. It is common for these cats to be placed in a home with no other cats or with cats that have already been exposed."

In light of such circumstances, you first ask the following questions concerning K.S.A. 47-
624:

"1. In light of the fact that it is in the state's best interest to encourage, rather than discourage, testing for infectious and contagious diseases, does K.S.A. 47-624 prohibit selling or giving away animals which have tested positive [for an infectious or contagious disease]?"

K.S.A. 47-624(a) in pertinent part authorizes a civil fine to be assessed against a person who possesses a domestic animal that is affected with any contagious or infectious disease, knowing such animal to be so affected, and:

"[W]ho sells, ships, drives, trades or gives away such diseased and infected animal or animals which have been exposed to such infection or contagion, except by sale, trade or gift to a regularly licensed disposal plant. . . . "

Cats are considered domestic animals for purposes of K.S.A. 47-624.1

While it may well be in the state's best interest to encourage testing of domestic animals for infectious and contagious diseases, K.S.A. 47-624(a) is quite clear in prohibiting a person from selling or giving away any animal, including cats, that are afflicted with a contagious or infectious disease - if the person knows the animal is so afflicted. Testing for feline leukemia is, of course, one way a person may come is know this. A positive test for feline leukemia would establish that the cat owner knows the cat is afflicted with an infectious or contagious disease.

In response to your specific question, K.S.A. 47-624 prohibits a person from selling or giving away domestic animals, including cats, that have tested positive for an infectious or contagious disease. Additionally, that statute prohibits a possessor from selling or giving away domestic animals, including cats, even in the absence of testing when the possessor otherwise knows that the animal has an infectious or contagious disease.

You next ask:

"2. Does the provision in K.S.A. 47-624 allowing the disposal of an animal after a 'bill of health' has been obtained from the livestock commissioner give the commissioner discretion to write a 'bill of health' on an animal that [has tested] positive for an infectious or contagious disease?"

K.S.A. 47-624(a) also provides:

"Any owner of any domestic animal which has been affected with or exposed to any contagious or infectious disease may dispose of the same after such owner obtains from the livestock commissioner a bill of health for such animal."

We understand "bill of health" to mean a clean bill of health; however, neither term is defined either by statute or regulation. We thus turn to the commonly understood meaning, which is "one certifying that no contagious or infectious disease exists, or certifying as to healthy conditions generally without exception or reservation."2 In the absence of a statutory or regulatory definition that varies from the generally understood meaning, we find it difficult to see how the livestock commissioner could legitimately issue a bill of health for an animal that has been affected with or exposed to a contagious or infectious disease such as feline leukemia.

In answer to your specific question, the provision in K.S.A. 47-624 allowing the disposal of an animal after a 'bill of health' has been obtained from the livestock commissioner does

not give the commissioner discretion to write a "bill of health" on an animal that has tested positive for an infectious or contagious disease.

Sincerely,

Phill Kline

Attorney General of Kansas

Camille Nohe

Assistant Attorney General

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