Nonprofit Animal Law: Second Edition

CHAPTER 1. RISK MANAGEMENT

1.1 Liability Waivers for Visitors and Volunteers

1.2 Food Safety and Sanitation Regulations for Nonprofit Special Events

1.3 State and Local Laws regarding Dangerous Dogs

1.4 Animal Protection Laws in Animal Sheltering and Care Operations

1.5 Local Laws Regulating Feral Cats

1.6 Avoiding Charges of Failure to Provide Proper Veterinary Care in Rescue Operations

1.7 Avoiding Nuisance and Other Claims as a Result of Animal Care and Handling

1.8 Officers and Directors Insurance

1.9 Vehicle Insurance and Regulatory Issues Particularly in Transporting Animals

1.10 Avoiding Defamation

1.11 Intentional Torts and Liability Insurance

1.12 Asset Protection Strategies for the Animal Welfare Nonprofit Owning Real Property and Animals

1.1 Liability Waivers for Visitors and Volunteers

Traditionally, there are three ways that a nonprofit organization protects itself against suits from volunteers and third parties. The first is to create a safe environment where the risk of injury is minimized. Nonprofits try to do much work with limited resources, and it is easy for nonprofit management to lose sight of dangerous conditions. The lawyer representing a nonprofit can lend a hand in this area by bringing areas of concern to the attention of the client. Often, these unsafe conditions violate the Occupational Safety and Health Act (OSHA), and a lawyer can help identify such situations.

The second prong of the three-part approach to risk management is liability waivers.

In Chapter three, we will look at liability waivers in the context of disaster response sites. The principles are much the same for obtaining liability waivers in a nonprofit’s ordinary course of business. Liability waivers can be useful if properly drafted and should be part of a nonprofit’s overall risk management strategy.

The third and final line of defense of risk management is liability insurance. This is only necessary when someone has been injured or has sustained other losses, and a liability waiver has not been effective in preventing a claim or lawsuit.

In Chapter 3, we will explore effective and ineffective liability waivers. The same principles that apply in drafting the organization’s general liability waiver for visitors apply to those who want to volunteer for the organization. The first step in preparing a liability waiver is always to determine the requirements for enforceability in those states where the waiver may be ineffective. Many states have unique requirements for a liability waiver to be effective. These rules might include increased font size or bold type for specific clauses in the waiver.

It is generally advisable to make sure the waiver addresses the types of claims and injuries for which the nonprofit is attempting to waive liability. Keep in mind that some of the most common risks are not specific to nonprofits and could happen anywhere. These injuries include everyday accidents such as slip and falls, heatstroke, and injuries from lifting or a car accident. It is essential to include the description of these calamities and those specific to the nonprofit in the liability waivers.

Liability waivers are only valid if signed. There is no worse feeling for a risk manager or attorney advising a nonprofit than discovering the volunteer who has just made a claim or filed the suit has not signed the liability waiver. The lawyer representing a nonprofit does the client a  service by routinely asking when the list of current volunteers was last cross-referenced against liability waivers on file.

CARLOS A. LEON, Plaintiff and Appellant, v. FAMILY FITNESS CENTER (# 107), INC., Defendant and Respondent

No. D024869.COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

61 Cal. App. 4th 1227; 71 Cal. Rptr. 2d 923; 1998 Cal. App. LEXIS 170; 98.Cal. Daily Op. Service 1589; 98 Daily Journal DAR 2201 February 11, 1998, Decided

SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY

An individual brought a negligence action against a health club after a bench collapsed beneath plaintiff while he was using the club’s sauna. There was a liability release contained in the retail installment contract plaintiff signed to become a member of the club, and the trial court granted summary judgment for defendant based on the release. (Superior Court of San Diego County, No. 680449, Ronald S. Prager, Judge.)The Court of Appeal reversed. The court held that the release was ineffective because, read as a whole, it did not clearly, explicitly, and comprehensibly set forth to an ordinary person untrained in the law, such as plaintiff, that the intent and effect of the document was to release claims for personal injuries resulting from defendant’s own negligent acts, regardless of whether or not they related to the sports or exercise activities it marketed. The releasing paragraph was not prefaced by a heading, contained no bold lettering, and was in the same smaller font size as most of the document.

Moreover, there was no language to alert a reader that defendant intended the release to exculpate it from claims based on its own negligence. Further, defendant’s negligence was not reasonably related to the object or purpose for which the release was given, that is, injuries from participating in sports or exercise rather than from merely reclining on the facility’s furniture. The court further held that since the collapse of a sauna bench when properly used was not a known risk, plaintiff could not be deemed to have assumed the risk of this incident as a matter of law. (Opinion by Work, Acting P. J., with McDonald, J., concurring. Haller, J., concurred in the result.)

Opinion

WORK, Acting P. J. Carlos A. Leon appeals a summary judgment entered in favor of Family Fitness Center (# 107), Inc. (Family Fitness) in his negligence action for personal injuries sustained when a bench collapsed beneath him while using the sauna at Family Fitness. Leon contends the trial court erroneously concluded there were no triable issues of material fact regarding whether the liability release contained in the retail installment contract he signed was legally adequate to exculpate Family Fitness from its own negligence and whether the release was obtained by fraud or overreaching in its inception. On de novo review, we conclude the purported release is neither sufficiently conspicuous nor unambiguous to insulate Family Fitness from liability to Leon for injuries received when its sauna bench collapsed. Accordingly, we reverse the judgment and remand the matter for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Carlos Leon signed a Club Membership Agreement (Retail Installment Contract) on June 1993 and thereafter became a member of Family Fitness. The membership agreement is a legal-length single sheet of paper covered with writing front and back. The front page is divided into two columns, with the right-hand column containing blanks for insertion of financial and Federal Truth in Lending data plus approximately seventy-six lines of text of varying sizes, some highlighted with bold print. The left-hand column contains approximately 90 lines of text undifferentiated as to size, with no highlighting and no paragraph headings or any other indication of its contents. The back of the agreement contains approximately 90 lines of text. The exculpatory clause is located at the bottom of the left-hand column of the front page and states the following: Buyer is aware that participation in a sport or physical exercise may result in accidents or injury, and Buyer assumes the risk connected with the participation in a sport or exercise and represents that Member is in good health and suffers from no physical impairment which would limit their use of FFC’s facilities. Buyer acknowledges that FFC has not and will not render any medical services including medical diagnosis of Member’s physical condition. Buyer specifically agrees that FFC, its officers, employees and agents shall not be liable for any claim, demand, cause of action of any kind whatsoever for, or on account of death, personal injury, property damage or loss of any kind resulting from or related to Member’s use of the facilities or participation in any sport, exercise or activity within or without the club premises, and Buyer agrees to hold FFC harmless from same. In January 1994, Leon sustained head injuries when a sauna bench on which he was lying collapsed beneath him at Family Fitness. After Leon filed an action for personal injuries against Family Fitness, the trial court granted summary judgment for Family Fitness based on its defense of release.|

DISCUSSION

An express release is not enforceable if it is not easily readable. ( Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141 [205 Cal. Rptr. 513].) Furthermore, the important operative language should be placed in a position which compels notice and must be distinguished from other sections of the document. A [layperson] should not be required to muddle through complex language to know that valuable, legal rights are being relinquished. ( Id. at p. 142.) An exculpatory clause is unenforceable if not distinguished from other sections, if printed in the same typeface as the remainder of the document, and if not likely to attract attention because it is placed in the middle of a document. (Ibid.) In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find. ( Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3d 1485, 1489 [239 Cal. Rptr. 55].) A. (3a) The trial court found the exculpatory clause was sufficiently conspicuous, citing only that it is written in 8-point type as required for retail installment contracts by Civil Code section 1803.1 and stated in plain and simple language. Although print size is an important factor, it is not the only one to be considered in assessing the adequacy of a document as a release. ( Bennett v. United States Cycling Federation, supra, 193 Cal. App. 3d at p. 1489.) The court failed to address specifically other relevant characteristics of the exculpatory clause its size, form and location within the undifferentiated paragraph in which it appears. In fact Civil Code section 1803.2 requires warnings to protect consumers’ financial interests from potential hazards in retail installment contracts by providing notice in larger, bold-face type (14-, 12or 10- point). Clearly, Civil Code section 1803.1’s perfunctory mandate that all retail installment sales contracts be at least in 8-point type, is not legislative acknowledgement that 8-point type alone is per se evidence of adequate conspicuousness so as to universally relieve a party of liability for its general negligence. Indeed, Civil Code section 1812.85 requires even a provision of lesser import, a cancellation clause in contracts for health services offered by facilities such as Family Fitness, to be at least 10-point boldface print. Here, the release clause, although a separate paragraph, is in undifferentiated type located in the middle of a document. Although some other portions are printed in bold and in enlarged print, the releasing paragraph is not prefaced by a heading to alert the reader that it is an exculpatory release, contains no bold lettering, and is in the same smaller font size as is most of the document. No physical characteristic distinguishes the exculpatory clause from the remainder of the document. The document itself is titled Club Membership Agreement (Retail Installment Contract) giving no notice to the reader it includes a release or waiver of liability.  Of particular relevance, there is no language to alert a reader that Family Fitness intended the release to exculpate it from claims based on its own negligence. Where such exculpation is sought, the release must contain specific words clearly and explicitly expressing that this was the intent. ( Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal. App. 3d 309, 317 [195 Cal. Rptr. 90]; see also Celli v. Sports Car Club of America, Inc. (1972) 29 Cal. App. 3d 511, 518 [105 Cal. Rptr. 904].)|

To be valid and enforceable, a written release purporting to exculpate a tortfeasor from damage claims based on its future negligence or misconduct must clearly, unambiguously, and explicitly express this specific intent of the subscribing parties. ( Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal. App. 4th 1007, 1015 [54 Cal. Rptr. 2d 330].) ‘ If a tortfeasor is to be released from such liability the language used ‘must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.’ ‘ (Ibid., quoting Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4th 748, 755 [29 Cal. Rptr. 2d 177].) B. (3b) The membership agreement signed by Leon is prefaced with an assumption of the risk statement. The general release is unobtrusively inserted thereafter. Although some courts have treated the two interchangeably ( Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 597 [250 Cal. Rptr. 299]) others have separately analyzed the enforceability of either. ( Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal. App. 3d 758, 763 [276 Cal. Rptr. 672]; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal. App. 3d at p. 316.) Whether taken separately or analyzed as a whole, we conclude the general release statement is fatally ambiguous.

The Restatement Second of Torts states: In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant. ( Rest.2d Torts, § 496B, com. d, p. 566.) In its most basic sense, assumption of risk means that one person, in advance, has given his express consent to relieve another of obligations toward himself, and to assume the chance of injury from a known risk arising from what the other is to do or leave undone. The result is the other person is relieved of a legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence solely based on the occurrence of the event anticipated. ( Madison v. Superior Court, supra, 203 Cal. App. 3d at p. 597.) Here, an individual who understandingly entered into the membership agreement at issue can be deemed to have waived any hazard known to relate to the use of the health club facilities. These hazards typically include the risk of a sprained ankle due to improper exercise or overexertion, a broken toe from a dropped weight, injuries due to malfunctioning exercise or sports equipment, or from slipping in the locker-room shower. On the other hand, no Family Fitness patron can be charged with realistically appreciating the risk of injury from simply reclining on a sauna bench. Because the collapse of a sauna bench when properly utilized is not a known risk, we conclude Leon cannot be deemed to have assumed the risk of this incident as a matter of law.

C. (3c) The Family Fitness membership agreement contained a general release or hold harmless provision as well. [W]here a participant in an activity has expressly released the defendant from responsibility for the consequences of any act of negligence, ‘the law imposes no requirement that [the participant] have had a specific knowledge of the particular risk which resulted in his death [or injury.]’ . . . Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. . . . Where a release of all liability for any act of negligence is given, the release applies to any such negligent act, whatever it may have been. . . . ‘It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.’ ( Paralift, Inc. v. Superior Court, supra, 23 Cal. App. 4th at p. 757, italics added.)

(3d) Here, Family Fitness’s negligence was not reasonably related to the object or purpose for which the release was given, that is, as stated, injuries resulting from participating in sports or exercise rather than from merely reclining on the facility’s furniture. (See Bennett v. United States Cycling Federation, supra, 193 Cal. App. 3d at p. 1490.) The objective purpose of the release Leon signed was to allow him to engage in fitness activities within the Family Fitness facilities. However, it was not this type of activity which led to his injury. Leon allegedly was lying on a fixed, nonmovable, permanent bench in the sauna room. Injuries resulting during the proper use of the bench would no more be expected to be covered by the clause than those caused by the ceiling falling on his head or from a pratfall caused by a collapsing office chair. These incidents have no relation to an individual’s participation in a health club’s fitness regimen. Further, the release is ineffective because, read as a whole, it does not clearly notify a customer of the effect of signing the agreement it was not clear, unambiguous and explicit. ( Allabach v. Santa Clara County Fair Assn., supra, 46 Cal. App. 4th 1007, 1015.) The release begins with language that participation in a sport or physical exercise may result in accidents or injury, and buyer assumes the risk connected with the participation in such. The release is followed by a statement in large print and bold, capital letters: Moderation Is the Key to a Successful Fitness Program and Also the Key to Preventing Injuries. Family Fitness placed the general waiver between these two statements which deal strictly with the risks inherent in an exercise or sports program without any mention that it was intended to insulate the proprietor from liability for injuries caused by its own negligence. Reading the entire document leads to the inescapable conclusion the release does not clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law, such as Leon, that the intent and effect of the document is to release claims for his own personal injuries resulting from the enterprise’s own negligent acts, regardless whether related to the sports or exercise activities it marketed. DISPOSITION The judgment is reversed. Leon is entitled to costs on appeal. McDonald, J., concurred. Haller, J., concurred in the result.

We can see that in California, the common law on liability waivers requires a liability waiver to contain more than simply a waiver of certain risks in order to be enforceable. There are formatting and plain language requirements as well. As we see in the next case, even using bold type may not be enough.

181 Ariz. 294, ; 890 P.2d 69, ; 1994 Ariz. App. LEXIS 105, ; 165 Arizona Adv. Rep 51

LARRY MAURER and LINDA MAURER, husband and wife, personally and on behalf of the Estate of MOLLY MARIE MAURER, Deceased, Plaintiffs/ Appellants, v. CERKVENIK-ANDERSON TRAVEL, INC., an Arizona corporation; COLLEGE TOURS, a division of Cerkvenik-Anderson Travel, Inc.;

2 CA-CV 93-0175

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv.Rep. 51

May 17, 1994, Filed

OPINIONHATHAWAY, Judge. In this action for the wrongful death of their daughter Molly, plaintiffs/appellants Maurers appeal from the trial court’s grant of summary judgment in favor of defendants/appellees Cerkvenik-Anderson Travel, Inc., College Tours, Dennis Anderson and Anton Cerkvenik (collectively, CA) on the basis that CA had no duty to Molly regarding the tour package she purchased. CA cross-appeals [2] the court’s denial of summary judgment sought on the basis of waiver or release from liability and its refusal to award attorney’s fees. We reverse summary judgment as to appellants and affirm as to CA.2

FACTSCA is a travel agency doing business as College Tours. Its business includes organizing, promoting, selling and operating student vacation tours destined for Mazatlan, Mexico. CA sets the itinerary, arranges for transportation and lodging and provides information relating to the students’ comfort, convenience and safety on the tour. For many years, the tour packages have included an eighteen-hour ride on a Mexican train traveling from Nogales to Mazatlan, as was the case with the tour purchased by the decedent. CA described this as a Party Train. During the train ride from Nogales to Mazatlan, Molly and a friend decided to adventure forward in the train to see the engine. The connecting areas between passenger railcars have metal floors with accordion-like boots extending from the sides of each railcar, forming an area in which it is safe to walk from the door at the end of one railcar to the door at the end of the other. En route, Molly paused and attempted to communicate in Spanish with an apparent employee of the railroad before going through a door, which turned out to be the front door of the foremost passenger car of the train. The car in front of this car was either a freight car or the engine. There was only a partial boot between the front of this car and the car in front of it. Beyond the door was only a narrow platform and then a large area between the cars, up to four feet wide, open straight down to the tracks and wheels of the train. It was dark, and after Molly stepped through the door, she fell to her death between the cars. Molly was the fourth student to die by falling from a moving train on a student tour to Mazatlan organized by CA. Three other students had died previously, albeit the particular circumstances of each incident varied. The students on Molly’s tour were not informed of these prior incidents even though CA acknowledges that it knew of other deaths on Mexican trains.

DUTY OF TRAVEL AGENTS/TOUR OPERATORS  Appellants contend that CA had a duty to exercise reasonable care for the safety of students in operating its student tours; to disclose material facts affecting safety in promoting and selling its tours; and, not to make misrepresentations in promoting and selling its tours. CA counters that it had no such duties as a travel agent, it lacked the right to control the train to make it safe, and it had no knowledge of the specific condition which caused Molly’s death. The existence of duty is an issue of law for the court to decide, Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), not to be confused with details of conformance with a standard of conduct imposed by the relationship. Ibid. 146 Ariz. at 355, 706 P.2d at 367; see also, Lasley v. Shrake’s Country Club Pharmacy, Inc., 1994 Ariz. App. LEXIS 58, 162 Ariz.Adv.Rep. (App. April 5, 1994). Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. [5] ‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff. W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 at 356 (5th ed. 1984). If the court decides that no duty exists, then a trial is unnecessary. Lankford & Blaze, The Law of Negligence in Arizona at 11 (1992). In this case, the trial court concluded that a trial was unnecessary because no duty was owed by [CA] to [appellants’] decedent for the injuries which led to her death. We disagree. To conclude there is no duty is to conclude the defendant cannot be liable, no matter the facts. As the supreme court observed in Markowitz: To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances. 146 Ariz. at 357, 706 P.2d at 369. The court asked the poignant question: Would the state have been liable even if the park ranger, knowing of the hazard, had sat on the rock, watched David get ready to dive and said nothing? Id. at 356, 706 P.2d at 368. Adapting that query [6] to the instant case, we believe an affirmative answer as to CA’s responsibility is compelled under principles governing agency relationships. As an Oklahoma court well summarized in Douglas v. Steele, 816 P.2d 586, 589 (Okla. App. 1991):

An agent who handles travel and vacation plans is a special agent of the traveler for purposes of that one transaction between the parties. ... And this is so even though the agent’s compensation may be paid by the company to whom she steers the business, much like an advertising agent....[The travel agent has] a duty to act with the care, skill and diligence a fiduciary rendering that kind of service would reasonably be expected to use.... This agency relationship also imposes a duty to promptly communicate to [the] principals confirmations and all other relevant information about the proposed travel plans and tours which would help them protect themselves from harm or loss.

(Citations omitted.) These duties include the duty to disclose material dangers known to the agent. See Tracy A. Bateman, Annotation, Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler, 2 A.L.R. 5th 396 (1992). This duty to disclose or warn of known dangers, as the court explained in Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982), does not represent an extension of tort liability upon an agent[;] it results from an exposition of the pre-existing duty of care owed a principal by his agent. See also In re Swartz, 129 Ariz. 288, 294, 630 P.2d 1020, 1026 (1981) (agent’s duty to make full disclosure to principal of all material facts relevant to agency is fundamental to fiduciary relation); Walston & Co. v. Miller, 100 Ariz. 48, 410 P.2d 658 (1966); Restatement (Second) of Agency § 381 (1957), states the duty thusly: Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.The travel agent’s duty to disclose is not without limits, however. The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care. Rookard, 680 F.2d at 1263While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency. United Airlines, Inc. v. Lerner, 87 Ill.App.3d 801, 43 Ill. Dec. 225, 410 N.E.2d 225,

43 Ill.Dec. 225, 410 N.E.2d 225, 228 (1980);Restatement (Second) of Agency, § 381 (1957). [9] In this case, because of the duties existing through the agency relationship, the trial court erred in ruling otherwise.

CROSS-APPEAL ON CONTRACTUAL RELEASE / WAIVER OF LIABILITY

CA contends in its cross-appeal that even assuming the existence of a duty, summary judgment against appellants must be affirmed because Molly released and/or waived any claim against them for any acts or omissions that led to her death. This issue has been raised both in the cross-appeal and as a cross-issue on appeal. Molly’s itinerary contained the following provision: XV. Terms and Conditions... The purchaser releases and absolves College Tours from all liability for property loss or damage, caused and/or from all damages resulting in death or personal injury, loss of services, which may be sustained on account of, arising out of or while engaged in said trip, whether due to its own negligence or otherwise.(Bold in original) The itinerary also contained a paragraph expressly entitled Waiver of Liability. This provision was set out separately from the other paragraphs in the itinerary and provided: The students and the students [sic] relatives hereby waive any [sic] or liability for property damage, or personal injury, or death (Including the loss of services), which may be sustained by any student on account of, arising out of, or while engaged in said trip unless claimant establishes that the person or entity, versus whom the claim is made, violated the law or was guilty of a willful injury. Any alleged violation of law or willful injury must be the direct cause of the injury complained of; otherwise, the student and anyone making a claim as a result of any injury, damage or death to said student, hereby waives any such claim. All potential claimants hereby acknowledge that there are other means and tours available to visit Mexico or Hawaii and the student is not in an inferior bargaining position and thus freely accepts the responsibility contracted for herein. Each client has the right to choose to attend or not attend any event provided by College Tours and does so at their own discretion.(Bold in original) Molly received an invoice form that also contained a Waiver of Liability provision virtually identical to that contained in the itinerary. It also contained a certification that the customer had read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. A copy of the invoice was returned to CA with Molly’s final payment for the trip. In denying the defense motion for summary judgment on the release/ waiver issue, the trial court explained: This Court does not find waiver to be a valid defense to Plaintiffs’ claims. The alleged defense is too general and doesn’t alert Plaintiffs’ decedent to the specific risks that she was supposedly waiving.

Because the danger being waived was so specific and obvious in Valley National Bank v. National Assoc. for Stock Car Auto Racing, Inc., 153 Ariz.App. [sic] 374, 736 P.2d 1186 (App. 1987), that Court allowed the waiver to defeat Plaintiff’s claims. Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply. Accordingly, the court’s order denying CA’s Motion to Dismiss/ Motion for Summary Judgment on waiver/release grounds [16] is affirmed.

JAMES D. HATHAWAY, Judge CONCURRING:WILLIAM E. DRUKE, Chief Judge PHILIP G. ESPINOSA, Presiding Judge.

1.2 Food Safety and Sanitation Regulations for Nonprofit Special Events

Nonprofits have fundraising pancake breakfasts, spaghetti dinners, and chili suppers.

Nonprofits may sell cookies and other food goods to raise money. Also, nonprofits that conduct rescue operations often open kitchens to feed employees and volunteers. This section looks at typical food and sanitation requirements when a nonprofit undertakes the opening of a kitchen. Look first to county regulations for guidance on food safety regulations. Often, these events require permits. The food handlers must have food safety training, and the temporary facilities may require elaborate sanitation equipment. The following is a publication from Washoe County, Nevada, explaining basic food handling requirements for nonprofits hosting special events.

Health Requirements for Special Event Temporary Food Establishments

A health permit shall be obtained from the Washoe County Health District a minimum of seven (7) days in advance. Applications and fees not received seven days prior to the event will result in a late fee that is equal to the permit fee up to $100.00. Food vendors will not be allowed to operate without a valid Washoe County Health District Temporary Food Permit.

FOOD SOURCE All foods shall be from an approved source. All food vendors shall be prepared to provide documentation of food source upon request. Interstate transport of foods that have been heated, reheated, or processed in any way outside of an approved USDA or FDA manufacturing facility is strictly prohibited. All processed or precooked foods from approved USDA or FDA facilities transported across state lines shall arrive at the event or an approved permitted facility in Nevada in their original state and original and verifiable packaging as purchased. Specific menu items are not allowed at Special Events regardless of source due to the hazard presented with such items. All menu items must be approved by the Washoe County Health District.

FOOD STORAGE, HANDLING, AND PREPARATION. All food storage, handling, preparation, and re-thermalization shall be done on-site or in an approved permitted facility. Food storage, handling, preparation, thermalization, and/or re-thermalization in a home kitchen or residence are strictly prohibited. A metal stem thermometer, 0°F to 220°F, is required to monitor food temperatures. Cooking, cooling, and re-heating of potentially hazardous foods are not allowed. Cold Storage: All potentially hazardous foods shall be held at 45°F or below prior to thermalization or re-heating, following cool down or as a cold service ingredient or menu item.

Required Cooking Temperatures: Beef: 140°F, Minimum; Pork: 150°F, Minimum; Hotdogs: 165°F, Minimum; Hamburger: 155°F, Minimum; Chicken: 165°F, Minimum; All Other Foods: 140°F, Minimum Hot Holding: All potentially hazardous foods shall be held at 140°F or above following thermalization or re-heating until served. No chafing dishes are allowed at outdoor events. Gas or electric holding units are required (e.g. steam table, stove, oven, etc.). All hot holding units shall be emptied of food product at the closing of each day of an event. Food emptied from hot holding units shall not be re-served.

CONDIMENTS Condiments shall be dispensed from a pump or served in single-service packets.

SAMPLE Booths that offer samples shall serve individual portions. Common bowls are strictly prohibited.

HAND WASHIN Booths without hot and cold running water shall provide a minimum 2 gallon container of water with a spigot to provide gravity flow, liquid soap, and paper towels for hand wash, along with a water-tight catch basin for greywater generated at the hand wash station.

FOOD HANDLER HYGIENIC PRACTICE Drinking and smoking is strictly prohibited in any food preparation or foodservice area. Any person with open cuts, sores, or wounds is strictly prohibited from food preparation and/or service. If a person is cut during food preparation or service the person shall STOP work immediately and tend to the wound. The operator shall ensure appropriate cleanup and sanitation of all affected areas and equipment and discard any contaminated or potentially contaminated food or consumer use items.

STORAGE Food, utensils, and single service articles shall be transported and stored a minimum of 6 inches above the ground or floor surface. Food, utensils, and single service articles shall be transported, handled, and stored in such a manner as to prevent contamination from non-food items and/or cross- contamination of cooked and/or processed foods with raw foods. Handled scoops for service ice, popcorn, and other bulk items are required.

UTENSIL AND EQUIPMENT WASHING All utensils, cookware, and equipment shall be washed, rinsed, and sanitized daily and as needed in a three- compartment sink with hot and cold running water. Three tub non-plumbed and drained systems are strictly prohibited. An adequate supply of clean utensils must be provided each day of operation. In lieu of a three-compartment sink during operating hours, cutting boards may be sanitized with a spray solution of 100 to 200 ppm of chlorine or other approved sanitizer. The food concessionaire shall have chemical test strips available to test sanitizer solution concentrations.

Sanitize in-place equipment shall be sanitized as needed by methods approved by the Washoe County Health District.

CONSTRUCTION Every foodservice operation shall have an overhead structure to protect the food (e.g. canopy). Heating and/or cooking equipment shall be barricaded or placed in an area inaccessible to the public.

WASTEWATER All wastewater generated shall drain to a sanitary sewer or be held in a spill-proof, watertight container and disposed of in a sanitary sewer or by other method approved by the Washoe County Health District.

SOLID WASTE solid waste and garbage must be stored in leak-proof containers with tight fitting lids.

1.3 State and Local Laws regarding Dangerous Dogs

Many animal-related nonprofits take in dogs with a bite history. A lawyer advising such a nonprofit should advise about any state or local laws that apply to the owner of one of these dogs. The nonprofit could well become the owner of the animal until adopted and would be required to follow any applicable dangerous dog law. For example, a rescue that takes in a dog declared dangerous or vicious or potentially so may be required to muzzle the dog in certain situations, post warning signs on the dog’s kennel, and maintain liability insurance. See the Florida Dangerous Dog Statute below that, among other things, requires the organization to notify animal control when  the dog is adopted.

Florida Title XLV. Torts. Chapter 767. Damage by Dogs.

767.12. Classification of dogs as dangerous; certification of registration; notice and hearing requirements; confinement of animal; exemption; appeals; unlawful acts

(1)(a) An animal control authority shall investigate reported incidents involving any dog that may be dangerous and shall, if possible, interview the owner and require a sworn affidavit from any person, including any animal control officer or enforcement officer, desiring to have a dog classified as dangerous. Any animal that is the subject of a dangerous dog investigation, that is not impounded with the animal control authority, shall be humanely and safely confined by the owner in a securely fenced or enclosed area pending the outcome of the investigation and resolution of any hearings related to the dangerous dog classification. The address of where the animal resides shall be provided to the animal control authority. No dog that is the subject of a dangerous dog investigation may be relocated or ownership transferred pending the outcome of an investigation or any hearings related to the determination of a dangerous dog classification. In the event that a dog is to be destroyed, the dog shall not be relocated or ownership transferred.

A dog shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member. No dog may be declared dangerous if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault.

After the investigation, the animal control authority shall make an initial determination as to whether there is sufficient cause to classify the dog as dangerous and shall afford the owner an opportunity for a hearing prior to making a final determination. The animal control authority shall provide written notification of the sufficient cause finding, to the owner, by registered mail, certified hand delivery, or service in conformance with the provisions of chapter 48 relating to service of process. The owner may file a written request for a hearing within 7 calendar days from the date of receipt of the notification of the sufficient cause finding and, if requested, the hearing shall be held as soon as possible, but not more than 21 calendar days and no sooner than 5 days after receipt of the request from the owner. Each applicable local governing authority shall establish hearing procedures that conform to this paragraph.

Once a dog is classified as a dangerous dog, the animal control authority shall provide written notification to the owner by registered mail, certified hand delivery or service, and the owner may file a written request for a hearing in the county court to appeal the classification within 10 business days after receipt of a written determination of dangerous dog classification and must confine the dog in a securely fenced or enclosed area pending a resolution of the appeal. Each applicable local governing authority must establish appeal procedures that conform to this paragraph.

Within 14 days after a dog has been classified as dangerous by the animal control authority or a dangerous dog classification is upheld by the county court on appeal, the owner of the dog must obtain a certificate of registration for the dog from the animal control authority serving the area in which he or she resides, and the certificate shall be renewed annually. Animal control authorities are authorized to issue such certificates of registration, and renewals thereof, only to persons who are at least 18 years of age and who present to the animal control authority sufficient evidence of:

A current certificate of rabies vaccination for the dog.

A proper enclosure to confine a dangerous dog and the posting of the premises with a clearly visible warning sign at all entry points that informs both children and adults of the presence of a dangerous dog on the property.

Permanent identification of the dog, such as a tattoo on the inside thigh or electronic implantation.

The appropriate governmental unit may impose an annual fee for the issuance of certificates of registration required by this section.

The owner shall immediately notify the appropriate animal control authority when a dog that has been classified as dangerous:

Is loose or unconfined.

Has bitten a human being or attacked another animal.

Is sold, given away, or dies.

Is moved to another address.

Prior to a dangerous dog being sold or given away, the owner shall provide the name, address, and telephone number of the new owner to the animal control authority. The new owner must comply with all of the requirements of this act and implementing local ordinances, even if the animal is moved from one local jurisdiction to another within the state. The animal control officer must be notified by the owner of a dog classified as dangerous that the dog is in his or her jurisdiction.

It is unlawful for the owner of a dangerous dog to permit the dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under control of a competent person. The muzzle must be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but will prevent it from biting any person or animal. The owner may exercise the dog in a securely fenced or enclosed area that does not have a top, without a muzzle or leash, if the dog remains within his or her sight and only members of the immediate household or persons 18 years of age or older are allowed in the enclosure when the dog is present. When being transported, such dogs must be safely and securely restrained within a vehicle.

Hunting dogs are exempt from the provisions of this act when engaged in any legal hunt or training procedure. Dogs engaged in training or exhibiting in legal sports such as obedience trials, conformation shows, field trials, hunting/retrieving trials, and herding trials are exempt from the provisions of this act when engaged in any legal procedures. However, such dogs at all other times in all other respects shall be subject to this and local laws. Dogs that have been classified as dangerous shall not be used for hunting purposes.

This section does not apply to dogs used by law enforcement officials for law enforcement work.

Any person who violates any provision of this section is guilty of a noncriminal infraction, punishable by a fine not exceeding $500.

CREDIT(S)

Laws 1990, c. 90-180, § 3; Laws 1993, c. 93-13, § 3; Laws 1994, c. 94-339, § 3. Amended by Laws 1997, c. 97-102, § 1157, eff. July 1, 1997.

1.4 Animal Protection Laws in Animal Sheltering and Care Operations

Depending on the state or local government, a nonprofit animal-rescue organization may be subject to the regulations of licensing or registering animals and sheltering and care operations. The nonprofit may be subject to periodic inspection.

Below are the minimum standards in the state of Missouri, many of which apply to animal welfare nonprofits.

Code of State Regulations. Title 2 - Department of Agriculture. Division 30 - Animal Health. Chapter 9 - Animal Care Facilities.

CSR 30-9.030 Animal Care Facilities Minimum Standards of Operation and Transportation

PURPOSE: This rule sets forth the minimum standards for operation of animal care facilities and the transportation of animals.

Facilities and Operating Standards.

Housing Facilities, General.

Structure and construction. Housing facilities for dogs and cats must be designed and constructed so that they are structurally sound. They must be kept in good repair, and they must protect the animals from injury, contain the animals securely and restrict other animals from entering.

Condition and site. Housing facilities and areas used for storing animal food or bedding must be free of any accumulation of trash, waste material, junk, weeds, and other discarded materials. Animal areas inside of housing facilities must be kept neat and free of clutter, including equipment, furniture, and stored material, but may contain materials actually used and necessary for cleaning the area, and fixtures or equipment necessary for proper husbandry practices. Housing facilities must be physically separated from any other business, like fur business, rabbitries, poultry operations and the like, located on the same premises so that animals the size of dogs, skunks, and raccoons are prevented from entering it.

Surfaces.

General requirements. The surfaces of housing facilities, including houses, dens and other furniture-type fixtures and objects within the facility, must be constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn or soiled. Interior surfaces and any surfaces that come in contact with dogs or cats must be free of-

Excessive rust that prevents the required cleaning and sanitization or that affects the structural strength of the surface; and

Jagged edges or sharp points that might injure the animals.

Maintenance and replacement of surfaces. All surfaces must be maintained on a regular basis. Surfaces of housing facilities, including houses, dens and other furniture-type fixtures and objects within the facility, that cannot be readily cleaned and sanitized, must be replaced when worn or soiled.

Cleaning. Hard surfaces with which the dogs or cats come in contact must be spot-cleaned daily and sanitized in accordance with this section to prevent accumulation of excreta and reduce disease hazards. Floors made of dirt, absorbent bedding, sand, gravel, grass or other similar material must be raked or spot-cleaned with sufficient frequency to ensure all animals the freedom to avoid contact with excreta. Contaminated material must be replaced whenever this raking and spot-cleaning is not sufficient to prevent or eliminate odors, insects, pests or vermin infestation. All other surfaces of housing facilities must be cleaned and sanitized when necessary to satisfy generally accepted husbandry standards and practices. Sanitization may be done using any of the methods provided in this rule for primary enclosures.

Water and electric power. The housing facility must have reliable electric power adequate for heating, cooling, ventilation and lighting, and for carrying out other husbandry requirements in accordance with 2 CSR 30-9. The housing facility must provide adequate potable running water for the animals’ drinking needs, for cleaning and for carrying out other husbandry requirements.

Storage.

Supplies of food and bedding must be stored outside the animal area and in a manner that protects the supplies from spoilage, contaminations, and vermin infestation. The supplies must be stored off the floor and away from the walls, to allow cleaning underneath and around the supplies. Foods requiring refrigeration must be stored accordingly, and all food must be stored in a manner that prevents contamination and deterioration of its nutritive value. All open supplies of food and bedding must be kept in leakproof containers with tightly fitting lids to prevent contamination and spoilage. Only food and bedding that is currently being used may be kept in the animal areas.

Chemicals used for normal husbandry practices, cleaning, disinfecting, and the like, that may be toxic to the animals must not be stored in food storage or food preparation areas, but may be stored in adjacent rooms or in secure cabinets in the animal areas. All chemicals and mixing containers must be clearly labeled.

All medications must be stored in clean, dust restricting cabinets with well fitting doors or other suitable container with well-fitting lid or top. All medications must be clearly marked, or labeled with patient’s name and directions if issued for a specific animal. Manufacturers’ labels, including expiration date, shall not be removed or defaced. Medications such as dips, and rinses and those marked for external use only, may be stored in the same cabinet but must be physically separated from other medications.

Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal and disposal of animal and food waste, bedding, debris, garbage, water, other fluids and wastes, and dead animals, in a manner that minimizes contamination and disease risks. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and animals stay dry. Disposal and drainage systems must minimize vermin and pest infestation, insects, odors and disease hazards. All drains must be properly constructed, installed, and maintained. If closed drainage systems are used, they must be

equipped with traps and prevent the backflow of gases and the backup of sewage onto the floor. If the facility uses sump or settlement ponds, or other similar systems for drainage and animal waste disposal, the system must be located far enough away from the animal area of the housing facility to prevent odors, diseases, pests and vermin infestation. Standing puddles of water in animal enclosures and adjacent areas must be drained or mopped up so that the animals stay dry. Trash containers in housing facilities, food storage, and food preparation areas must be leakproof and must have tightly fitted lids on them at all times.

Dead animals, animal parts, and animal waste must not be kept in food storage or food preparation areas, food freezers, food refrigerators, or animal areas.

Washrooms and sinks. Washing facilities such as washrooms, basins, sinks, or showers (as needed) must be provided for animal caretakers and must be readily accessible.

Fire detection and extinguishers.

All indoor housing facilities and the indoor portion of sheltered housing facilities shall be equipped with properly maintained smoke or heat detection devices and extinguishers. Type, number, and location of the detectors and extinguishers shall be in accordance with the National Fire Code and local fire codes.

Indoor Housing Facilities.

Heating, cooling, and temperature. Indoor housing facilities for animals must be sufficiently heated and cooled when necessary to protect the animals from temperature extremes and to provide for their health and well-being. When animals are present, the ambient temperature in the facility must not fall below fifty degrees Fahrenheit (50°F) or ten degrees Celsius (10°C) for animals not acclimated to lower temperatures, for those breeds that cannot tolerate lower temperatures without stress or discomfort (such as short-haired breeds) and for sick, aged, young, or infirm animals, except as approved by the attending veterinarian. Dry bedding, solid resting boards or other methods of conserving body heat must be provided when temperatures are below fifty degrees Fahrenheit (50°F) or ten degrees Celsius (10°C). The ambient temperature must not fall below forty-five degrees Fahrenheit (45°F) or seven point two degrees Celsius (7.2°C) for more than four (4) consecutive hours when animals are present, and must not rise above eighty-¥five degrees Fahrenheit (85°F) or twenty-¥nine point five degrees Celsius (29.5°C) for more than four (4) consecutive hours when animals are present.

Ventilation. Indoor housing facilities for animals must be sufficiently ventilated at all times when animals are present to provide for their health and well-being, and to minimize odors, drafts, ammonia levels, and moisture condensation. Ventilation must be provided by windows, vents, fans, or air conditioning. Auxiliary ventilation, such as fans, blowers, or air conditioning must be provided when the ambient temperature is eighty-five degrees Fahrenheit (85°F) or twenty-nine point five degrees Celsius (29.5°C) or higher. The relative humidity must be maintained at a level that ensures the health and well-¥being of dogs or cats housed in the facility, in accordance with the directions of the attending veterinarian and generally accepted professional and husbandry

practices.

Lighting. Indoor housing facilities for animals must be lighted well enough to permit routine inspection, cleaning of the facility and observation of the animals. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout animal facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning, adequate inspection of animals, and for the well-being of the animals. Primary enclosures must be placed so as to protect the animals from excessive light.

Interior surfaces. The floors and walls of indoor housing facilities and any other surfaces in contact with the animals, must be impervious to moisture. The ceilings of indoor housing facilities must be impervious to moisture or be replaceable, for example, a suspended ceiling with replaceable panels.

Sheltered Housing Facilities.

Heating, cooling, and temperature. The sheltered part of sheltered housing facilities for animals must be sufficiently heated and cooled when necessary to protect the dogs and cats from temperature extremes and to provide for their health and well-being. The ambient temperature in the sheltered part of the facility must not fall below fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C) for animals not acclimated to lower temperatures, for those breeds that cannot tolerate lower temperatures without stress and discomfort (such as short- haired breeds), and for sick, aged, young, or infirm animals, except as approved by the attending veterinarian. Dry bedding, solid resting boards, or other methods of conserving body heat must be provided when temperatures are below fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C). The ambient temperature must not fall below forty-five degrees Fahrenheit (45 °F) or seven and two-tenths degrees Celsius (7.2 °C) for more than four (4) consecutive hours when animals are present and must not rise above eighty-five degrees Fahrenheit (85 °F) or twenty-nine and five-tenths degrees Celsius (29.5 °C) for more than four (4) consecutive hours when animals are present.

Ventilation. The enclosed or sheltered part of sheltered housing facilities for animals must be sufficiently ventilated when animals are present to provide for their health and well-being and to minimize odors, drafts, ammonia levels, and moisture condensation. Ventilation must be provided by windows, doors, vents, fans, or air conditioning. Auxiliary ventilation, such as fans, blowers, or air conditioning, must be provided when the ambient temperature is eighty-five degrees Fahrenheit (85 °F) or twenty-nine and five-tenths degrees Celsius (29.5 °C) or higher.

Lighting. Sheltered housing facilities for animals must be lighted well enough to permit routine inspection and cleaning of the facility and observation of the animals. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout animal facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning, adequate inspection of animals, and for the well-being of the animals. Primary enclosures must be placed so as to protect the animals from excessive light.

Shelter from the elements. Animals must be provided with adequate shelter from the elements at all times to protect their health and well-being. The shelter structures must be large enough to allow each animal to sit, stand, and lie in a normal manner and to turn about freely.

Surfaces.

The following areas in sheltered housing facilities must be impervious to moisture:

Indoor floor areas in contact with the animals;

Outdoor floor areas in contact with the animals, when the floor areas are not exposed to the direct sun or are made of a hard material such as wire, wood, metal, or concrete; and

All walls, boxes, houses, dens, and other surfaces in contact with the animals.

Outside floor areas in contact with the animals and exposed to the direct sun may not consist of bare dirt or sand and must have adequate drainage.

Outdoor Housing Facilities.

Restrictions. The following categories of animals must not be kept in outdoor facilities, unless that practice is specifically approved by the attending veterinarian:

Animals that are not acclimated to the temperatures prevalent in the area or region where they are maintained;

Animal breeds that cannot tolerate the prevalent temperatures of the area without stress or discomfort (such as short-haired breeds in cold climates);

Sick, infirm, aged, or young animals; and

When their acclimation status is unknown, animals must not be kept in outdoor facilities when the ambient temperature is less than fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C).

Shelter from the elements. Outdoor facilities for animals must include one

or more shelter structures that are accessible to each animal in each outdoor facility and that are large enough to allow each animal in the shelter structure to sit, stand, lie in a normal manner, and to turn about freely. In addition to the shelter structures, one (1) or more separate outside areas of shade must be provided by means of trees, permanent awnings, or suspended shade cloth or heavy duty tarps in good repair and firmly secured to a frame, large enough to contain all the animals at once and protect them from the direct rays of the sun. Tarps kept firmly secure and in good repair may be used as windbreaks. Shelters in outdoor facilities for animals must contain a roof, four (4) sides, and a floor and must—

Provide the animals with adequate protection and shelter from the cold and heat;

Provide the animals with protection from the direct rays of the sun and the direct effect of wind, rain, or snow;

Be provided with a wind break and rain break at the entrance; and

Contain clean, dry bedding material if the ambient temperature is below fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C). Additional clean, dry bedding is required when the temperature is thirty-five degrees Fahrenheit (35

°F) or one and seven-tenths degrees Celsius (1.7 °C) or lower.

Construction. Building surfaces in contact with animals in outdoor housing facilities must be impervious to moisture. Metal barrels, cars, refrigerators or freezers, and the like must not be used as shelter structures. The floors of outdoor housing facilities may not be of bare dirt or sand; must have adequate drainage; and must be replaced if there are any prevalent odors, diseases, insects, pests, or vermin. All surfaces must be maintained on a regular basis. Surfaces of outdoor housing facilities, including houses, dens, and the like, that cannot be readily cleaned and sanitized, must be replaced when worn or soiled. If aggregate or fine gravel is used for flooring, it must be appropriate to the size of the dog. (E) Mobile or Traveling Facilities.

Heating, cooling, and temperature. Mobile or traveling housing facilities for animals must be sufficiently heated and cooled when necessary to protect the animals from temperature extremes and to provide for their health and well-being. The ambient temperature in the mobile or traveling housing facility must not fall below fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C) for animals not acclimated to lower temperatures, for those breeds that cannot tolerate lower temperatures without stress or discomfort (such as short-haired breeds) and for sick, aged, young, or infirm animals. Dry bedding, solid resting boards, or other methods of conserving body heat must be provided when temperatures are below fifty degrees Fahrenheit (50 °F) or ten degrees Celsius (10 °C). The ambient temperature must not fall below forty-five degrees Fahrenheit (45 °F) or seven point two degrees Celsius (7.2 °C) for more than four (4) consecutive