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RE: Federal 4-Inch Turtle Law Clarified Here

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Posted by: MassLawGeek at Mon Feb 6 19:49:00 2012  [ Report Abuse ] [ Email Message ] [ Show All Posts by MassLawGeek ]  
   

>>quote "The definition of "bona fide" from Merriam Webster is as follows: "made in good faith, without fraud or deceit." endquote
>>
>>So there is no legal precendent for a definition of "bona fide" in this context?

I think that's correct. If there were, it would've involved a successful prosecution of an individual who fraudulently claimed that the baby turtle was used for scientific/educational purposes. I don't believe that any person has been convicted under fraudulent circumstances. From what I've been able to find, and most of it was on a HSUS website, most stores caught selling baby turtles are told to cease doing so by the FDA. I'm sure that the HSUS, being an anti-pet organization would've loved to have reported on the "citations prosecutions and successful convictions" that resulted, if there were any to report on. What I've read is here:

http://www.humanesociety.org/issues/exotic_pets/facts/baby_turtles_children_090204.html


>>
>>So if you set up a tank at a school is that bona fide exibition? How about if you allow tours of your collection or use it say once a year for a talk for the local scout group?

These would theoretically all be appropriate answers for someone to give if they were challenged at a reptile expo by a law enforcement officer.

> How about if you have plans to do those things?

This probably wouldn't wash. However, it's the LEO's discrection whether to proceed and act on any of this. They may have been told to let the feds worry about it. I remember being at the National Reptile Breeders Expo in Orlando back in 1995 and seeing Florida FWC officers ignore tables selling baby softshelled turtles that had the aforementioned disclaimer sign (I haven't been down there since and don't know if this has changed). It could be that the brass told them not to pursue action.

I know in Massachusetts, Environmental Police Officers do not have an assigned prosecutor, meaning whatever they charge someone with, they go into court and try the case themselves. In a case such as this, with no help in court, LE needs an iron-clad case and prosecuting people for this type of violation might not be worthwhile. It could be that because of the perceived complexity of this law, LE agencies have decided to let it slide. Also most state "Environmental police/wildlife officers" are cross-deputized as federal FWS officers and they have full powers to enforce all federal laws.

>Does that preclude the definiton of use as a "bona fide" >exibition?... The legal counsel for the pet store referenced >above pointed out all of those issues..as well as a few >issues...
>>
>>quote "I cannot make an educated guess on whether or not a law enforcement agency decides to prosecute an individual case or not. I can say that your store was in violation of the law. The signed disclaimer, ID validation or not, means nothing if the person cannot prove when challenged, that the animal is to be used for that purpose. My guess would be that most, if not all of those customers were buying "pet" turtles using your disclaimer and that your store, as a business "should" have been in federal trouble. "
>>
>>So how does a person go about a reasonable attempt to determine if the person is an actual hobbyist or is engaged in "bona fide" exhibition or scientific research? There is no official paperwork issued that determines whether a person is a hobbyist (and by the way how do you discriminate between a begining hobbyist and a person who just wants a pet?) or engaged in "bona fide" exhibition... In the definition you are providing (and examples) the only way would be to avoid any sales since a person who would want one as a pet could just as easily show up at a hobby meeting and purchase one from a breeder etc (and since the breeder could be routinely selling them there it could be construed as a business).... There is no way that the hobbyist (since there is no official paperwork saying you are a turtle fancier of any level) or the person who purchased it could prove that they aren't just getting it as a pet...
>>
>>The entire grey area is why there is little enforcement on this issue since proving that a person who just purchased a small turtle whether it is at a club or hobbyist meeting or elsewhere is actually a violation of the whole bona fide exhibition and hobbyist clause... since the prosecuting agency would not only have to prove that 1) you were actually not a hobbyist and 2) you actually just wanted it as a pet and were not intending to engage in any exhibition usages...

... and all this is probably why the law is not being enforced (meaning charges filed and cases prosecuted). Having said all that, with the way new federal and state laws are coming down hard on herptile enthusiasts, I still wouldn't want to take the chance.

>>
>>Ed
-----
The All Knowing, All Seeing.


   

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