Virginia Legislative Update for 2014

2014 LEGISLATIVE UPDATE

Virginia’s 2014 Legislative Session ended up being quite dynamic, with a number of legislative victories. These changes will go into effect tomorrow – July 1, 2014.

Legislative Victories

SB 228 (Bailey’s Law): This law requires pet stores to post information about the source of their dogs, including the breeders’ name, city, state and USDA license number. Additionally, SB 228 gives consumers a new remedy – for veterinary bills to care for a sick dog or cat purchased at a pet store, instead of being forced to return the animal to the pet store, or to absorb those costs if the purchaser kept the animal.

SB 42 (Fox Penning): This long-anticipated law phases out existing fox pens and prohibit new pens from opening.

HB 972 (Protective Orders): HB 972 authorizes courts to grant possession of a companion animal to protective order petitioners.

SB 177 (Service Animals): This law expands the definition of “service dog” to be more in line with the federal definition, by including dogs trained to assist those with physical, sensory, intellectual, developmental, or mental disability, or mental illness.

SB 432/HB 54 and HB 740 (Dogs and Fowl/Livestock): These bills addressed dogs who injure or kill livestock and fowl. Now, animal control officers will have the option of seizing the dog, instead of having no choice but to kill the dog. As a compromise, the bills bumped the cap for compensation to farmers from $400 to $750 per animal for livestock (but did not change the $10 compensation figure for fowl).

SB 444 (Hybrids): SB 444 authorizes localities to prohibit residents from keeping dog-wolf hybrids by ordinance. Current law only authorizes a permitting system. This bill also changed the definition of “hybrid” slightly.

HB 588 (Cemetery grounds): HB 588 allows cemeteries to devote a section of cemetery grounds to interment of human and pet remains.

HB 1067 (Definitions): This bill amended some of the definitions in Virginia Code Section 3.2-6500, which will impact all releasing agencies in the Commonwealth. “Pounds” will no be called “public animal shelters,” and shelters will now be distinguished as either “public animal shelters” or “private animal shelters.” The definition of “public animal shelter” has been simplified to “a facility operated by the Commonwealth, or any locality, for the purpose of impounding or sheltering seized, stray, homeless, abandoned, or surrendered animals or a facility operated for the same purpose under a contract with any locality.”   The definition for “private animal shelters” has not been changed.

The definitions of “home-based rescue” and “foster care provider” were also updated. A “home-based rescue” is now defined as “an incorporated, nonprofit animal welfare organization that takes custody of companion animals for the purpose of facilitating adoption and houses such companion animals in a foster home or a system of foster homes.” This definition removes the requirement that the rescue accept more than 12 animals or three unweaned litters to qualify as a rescue. The definition of “foster care provider” has also been amended to apply to “persons” rather than individuals, to clarify that a veterinary practice or pet supply store that houses foster animals will also qualify as a “foster care provider.”

Bills that didn’t make it out of this Session

A number of bills did not make it out of session, including:

HB 212 (Motor Vehicles): This bill would have made it unlawful to drive while holding a companion animal. It was left In the House Transportation Committee.

HB 1188 (Animal Fighting): This bill would have amended Virginia’s animal fighting statute (Virginia Code Section 3.2-6571) to prohibit charging admission or wagering money at a fight, and would also have prohibited putting a dog in a pen with a coyote or fox. The bill was left in the House Court of Justice Committee.

SB 32 (Animal Abuser Registry): SB 32 would have required the Virginia State Police to create and maintain an animal abuser registry. This bill was continued to 2015 in the Finance Committee.

SB 622 (Spay/Neuter Fund): This bill would have established a state Spay/Neuter Fund, with a $50/ton surcharge on pet food distributed in Virginia. It was continued to the 2015 Senate Agriculture, Conservation and Natural Resources Committee.

Reminder: VDACS Charitable Organization Form 102 Due May 15!

To all Virginia nonprofits, this is a reminder that May 15 is the deadline to renew your Form 102 with the Virginia Department of Agriculture and Consumer Services (VDACS) Office of Charitable and Regulatory Programs.

Organizations that wish to solicit charitable funds in Virginia must register with VDACS.  If you’ve already registered, you still need to renew your registration each year by May 15.

Don’t forget to include an updated list of officers and directors, a copy of your 990, and any amendments to your bylaws or articles of organization.  VDACS has a handy checklist for any other documents you might also need to include.

You can get a copy of Form 102 on VDACS’ website.

Be Careful What You Ask For: The Dire Consequences of Backyard Chickens

Arlington County has been considering allowing backyard hens for a while now. It is commendable to find a way to obtain eggs in a way that doesn’t support big farms and the egg industry. However, backyard chickens in an urban community have the potential for very drastic – even deadly – consequences.

Surprisingly, Arlington County’s current zoning ordinance does not prohibit chickens, but Section 12.7.1 of the zoning ordinance does require poultry to be kept in a building, structure or yard located at least 100 feet from a street or lot line. Considering Arlington’s urban nature and small lots, this set back requirement prohibits the vast majority of residents from having chickens.

Not surprisingly, the County Manager recently recommended against backyard hens at a County Board work session last November. The staff had too many questions about hen raising, including what to do with dead, dying and abandoned hens, the impact on the Animal Welfare League of Arlington and animal control officers, and health and pest concerns.

The County Manager raised one other specific concern that Virginia residents may not be aware of – Virginia Code Section 3.2-6552 and its requirement to immediately kill any dog caught in the act of killing or injuring livestock or poultry. Yes, you read right – “kill”, not euthanize.  Section 3.2-6552’s language and requirements are so extreme that it’s worth it to post the statute verbatim here:

§ 3.2-6552. Dogs killing, injuring or chasing livestock or poultry.

It shall be the duty of any animal control officer or other officer who may find a dog in the act of killing or injuring livestock or poultry to kill such dog forthwith whether such dog bears a tag or not. Any person finding a dog committing any of the depredations mentioned in this section shall have the right to kill such dog on sight as shall any owner of livestock or his agent finding a dog chasing livestock on land utilized by the livestock when the circumstances show that such chasing is harmful to the livestock. Any court shall have the power to order the animal control officer or other officer to kill any dog known to be a confirmed livestock or poultry killer, and any dog killing poultry for the third time shall be considered a confirmed poultry killer. The court, through its contempt powers, may compel the owner, custodian, or harborer of the dog to produce the dog.

Any animal control officer who has reason to believe that any dog is killing livestock or poultry shall be empowered to seize such dog solely for the purpose of examining such dog in order to determine whether it committed any of the depredations mentioned herein. Any animal control officer or other person who has reason to believe that any dog is killing livestock, or committing any of the depredations mentioned in this section, shall apply to a magistrate serving the locality wherein the dog may be, who shall issue a warrant requiring the owner or custodian, if known, to appear before a general district court at a time and place named therein, at which time evidence shall be heard. If it shall appear that the dog is a livestock killer, or has committed any of the depredations mentioned in this section, the district court shall order that the dog be: (i) killed immediately by the animal control officer or other officer designated by the court; or (ii) removed to another state that does not border on the Commonwealth and prohibited from returning to the Commonwealth. Any dog ordered removed from the Commonwealth that is later found in the Commonwealth shall be ordered by a court to be killed immediately.

It’s difficult to fathom how this statute plays out in any jurisdiction, let alone in an urban jurisdiction like Arlington.  But take this as one example.  A neighbor’s chicken gets out of your neighbor’s yard and wanders into your backyard.  Your dog chases and injures or kills the chicken.  An animal control officer drives by just at that time, and sees the dog with the chicken.  Your neighbor is quite understanding and admits it was his fault for not keeping his chicken in his yard, and the animal control officer certainly doesn’t want to get involved.

Under Section 3.2-6552, the animal control officer has no choice but to kill the dog immediately.  The option to seize the dog isn’t applicable, because the animal control officer was an eyewitness to the events and there would be no need to have a hearing about whether your dog was the guilty party.  The animal control officer in all likelihood would not be carrying a firearm.  And even if a person lawfully has a firearm in Arlington, it is against the law to discharge a firearm in the county.  That leaves incredibly undesirable options like snapping the dog’s neck or beating the dog to death – actions that constitute cruelty.

A bill pending in the General Assembly proposes softening – but not eliminating – the dire consequences of Section 3.2-6552.  HB740 would allow localities with a population density of at least 3400 persons per square mile to pass an ordinance to limit or eliminate the animal control officer’s duty to kill or seize a dog, and to limit or eliminate an individual’s rights to kill the dog.

For those Arlington County residents who want local fresh eggs, you can have your cake and eat it, too, by shopping at Arlington County’s many wonderful local farmers’ markets and avoiding these potential hazards.

Ring in the New Year — but not too loudly!

By all means, ring in 2014 – but don’t be too loud!  You may be kicking off the new year with a new noise ordinance.

Fairfax County and other localities in Virginia have not been enforcing noise ordinances since 2009, when the Supreme Court of Virginia struck down Virginia Beach’s noise ordinance as unconstitutionally vague in Tanner, et al. v. City of Virginia Beach, 277 Va. 432 (2009).  Virginia Beach’s ordinance prohibited “unreasonably loud, disturbing and unnecessary” noise that is “detrimental to the life or health of persons of reasonable sensitivities.”  The noise at issue involved hip-hop, punk rock and indie music pumping from Virginia Beach’s Peppermint Beach Club on Atlantic Avenue.

The language in Fairfax County’s old noise ordinance was very similar to the Virginia Beach ordinance, prohibiting “any unnecessary sound which annoys, disturbs or perturbs reasonable persons with normal sensibilities.”  By contrast, Fairfax County’s new noise ordinance will prohibit noise “that is audible in any other person’s residential dwelling with the doors and window’s to the other person’s residential dwelling closed.”

Arlington County is also working on updating its noise ordinance, proposing to prohibit amplified sound over specific distances (20 feet from the sound in another dwelling or 50 feet across property boundaries), or barking or squawking at least once per minute for 10 consecutive minutes.  The “squawking” prohibition may be in anticipation of backyard chickens – a topic worthy of its own blog post and major public education about Virginia’s mandatory and immediate death sentence for chicken-killing dogs.

With the old ordinances, local officers became particularly adept at trying to resolve noise conflicts in creative ways.   Hopefully these efforts will not fully disappear as jurisdictions amend their noise ordinances.  Slapping someone with a ticket or a lawsuit is much less effective that solving the underlying problem – particularly with an incessantly barking dog.  For excellent ideas about how to address excessive barking, take a look at this recent blog post by trainer Veronica Sanchez with Cooperative Paws in Vienna, Virginia!

A Sniff Is A Search By Any Other Name, But Is It Reliable? Florida v. Jardines and Florida v. Harris

The United States Supreme Court has weighed in on two K9 cases to conclude that a sniff is a search that must be supported by probable cause, and the reliability of that search is judged under the totality of the circumstances by examining the dog’s training and performance in controlled certification and training settings.

A Sniff is a Search by Any Other Name:  Florida v. Jardines

In Florida v. Jardines, Miami/Dade County Detective Pedraja received an unverified tip that Jardines was growing marijuana in his house.  A month later, the DEA and local police staked out Jardines’ home.  They saw no activity and could not see past the closed blinds into Jardines’ house.  After fifteen minutes, Pedraja and K9 Detective Bartelt walked Franky, a chocolate lab, up Jardines’ sidewalk.  At the porch, Franky started to show changes in his behavior that indicated he sensed the odor of one of the controlled substances he had been trained to detect.  Franky “bracketed,” sniffing back and forth to locate the source of that odor, and narrowed the source to the base of Jardines’ closed front door.  Franky then “alerted” that he located the source of the odor by sitting at the front door.

Pedraja used Franky’s performance to obtain a search warrant, and the subsequent search revealed marijuana plants in Jardines’ house.  Jardines was arrested, and he challenged the warrant, claiming that the officers’ actions and Franky’s sniffing was a search unsupported by probable cause.

As I suspected, the Court agreed with Jardines, relying on the concept of curtilage, the private area surrounding a person’s house.  Traditionally, curtilage is part of the home itself, and enjoys the same constitutional protections as the inside of our homes.  The police cannot not enter and search in one’s curtilage unless implicitly or explicitly invited.  We explicitly invite our friends to dinner, and we implicitly invite trick-or-treaters and Girl Scouts selling cookies to walk up to our front door and to knock.

Justice Scalia concluded that this implicit invitation could include an officer who walks up to the front door, unarmed with a trained K9, but does not extend to an officer with his highly trained K9 who is hoping to find incriminating evidence.  Justice Scalia ended his analysis there, refusing to analyze whether the officers’ actions invaded Jardines’ right of privacy.

Justices Kagan, Ginsburg and Sotomayor concurred with Justice Scalia, analogizing the officer’s actions to a creepy neighbor who comes on your porch with high-powered binoculars.  They agreed with Justice Scalia’s analysis on curtilage grounds, but found additionally that Jardines’ right of privacy was violated by using Franky as a “super sensitive instrument” to go beyond a “plain sniff.”

Justice Alito, with Chief Justice Roberts, Justice Kennedy and Justice Breyer dissented, finding no trespass or invasion of privacy when the detectives spent all of one or two minutes walking down Jardines’ driveway to his front door.   They also pointed to the fact that Detective Pedraja could smell marijuana from outside the door, although Detective Bartelt could not.

But Is The Sniff Reliable?  Florida v. Harris

In yet another Florida case, Florida v. Harris, Officer Wheetly pulled Harris over for a routine traffic stop.  Harris was visibly nervous and had an open beer can in his truck.  Wheetly decided to search Harris’s truck with his K9, Aldo.  Aldo alerted at the driver side handle of Harris’s truck, and Wheetly found pseudoephedrine, matches, hydrochloric acid, iodine crystals and antifreeze – ingredients commonly used to make meth.  However, Aldo was not trained to detect these ingredients – he had only been trained to detect meth, marijuana, cocaine, heroin and ecstacy.

While Harris was on bond, Wheetly caught Harris with a broken tail light and pulled him over again.  Aldo once again alerted at Harris’s driver side door, but Wheetly found nothing in the truck that time.

Harris moved to suppress the meth ingredients.  At the hearing on the motion to suppress, Wheetly testified to his and Aldo’s training.  Wheetly and another dog had completed a 160-hour narcotics detection course.  Aldo and a different handler completed a similar 120-hour course, and Aldo received a one-year certification from a private company.  When Wheetly and Aldo teamed up, they completed a 40-hour refresher course together.  Wheetly and Aldo train together four hours a week, with Wheetly hiding drugs in certain areas and leaving other areas blank to determine whether Waldo Alerted correctly.  Monthly detection training logs showed that Aldo always found the hidden drugs and that he performed satisfactorily on each day of training.

Harris didn’t challenge Aldo’s training, instead focusing on certification and field performance, including what he characterized as the two “false positive” results when Wheetly pulled him over.  The trial court denied the motion.  The Florida Supreme Court sided with Harris, spelling out an array of evidence, including field results and “false positive” records, that K9 officers must keep to establish probable cause.

The United States Supreme Court handily sided with Aldo, ruling unanimously that K9 officers had no duty to maintain field performance history and records of purported “false positives.”  The Court refused to adopt Florida’s laundry list of records that K9 officers had to maintain, going back to a “totality of the circumstances” test to conclude that probable cause is present if the dog’s training and testing in controlled settings support the dog’s reliability, and a defendant fails to undermine that evidence.

The Court refused to hold a K9 to his field performance results.  Those records would not show false negatives – when the K9 failed to find drugs that were present – because the officer would not have conducted the search and found the substance.  More importantly here, if the dog alerts and the officer does not find drugs, that does not automatically result in a “false positive.”  The Court had no problem concluding that Aldo was absolutely right when he alerted, but that the residual meth odor was in a quantity too small for Wheetly to observe and seize.

The Court pointed out that defendants will have the opportunity through facts and expert testimony to challenge the reliability of detection dogs – and their handlers.  Some of the challenges may include the adequacy of training and certification, the dog’s and handler’s performance in assessments, and even field performance.  The Court gave two examples of field performance issues, including whether the handler intentionally or inadvertently cued the dog, or whether the dog and handler team were working in an unfamiliar environment.

Ultimately, the Court phrased the question as “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.”  In applying that test, the Court found that Aldo’s sniff was more than up to snuff.

The Nose In Everyday Life

A recent study funded by the Department of Justice found that detection dogs in controlled environments were accurate 90% of the time, if not more.  Interestingly enough, the dogs were rotated through three different diets, and a high fat diet increased accuracy.  The study may be more anecdotal than scientific, with only 17 dogs and an eighteen-month window.  But there is no doubt that our companions’ noses are super machines.

It is no wonder that the first chapter of Alexandra Horowitz’s wonderful book, Inside of a Dog, begins with describing the world “from the dog’s point of nose.”  In the chapter entitled “Sniff,” Horowitz describes beagles’ sense of smell as possibly “millions of times more sensitive than ours.”  We routinely discourage our companions from using their noses when we are out on walks or when they greet our human friends in particularly exuberant doggy ways.  What can happen when we give our dogs a channel to use their “super sensitive instruments”?

Apparently, great things!  The April 2013 edition of The Whole Dog Journal describes how the new activity and sport, K9 Nose Work^®, is helping shelter dogs cope and get adopted.  Doing K9 Nose Work^® with my own dogs, Boomer and Sophie, and teaching K9 Nose Work^® classes, give me a profound respect for our companions’ olfactory abilities.

More on Tracey v. Solesky and Maryland dog bite cases

The Maryland General Assembly’s Task Force appointed to address Tracey v. Solesky are working on a bill, and the General Assembly may have the opportunity to vote on the bill during an upcoming special session this month.  The bill is expected to impose liability on all dog owners, regardless of breed, but revert to the common law for landlords, imposing liability only if the landlord knows of the dog’s vicious propensities.

In the meantime, the law remains as it was prior to the Tracey v. Solesky ruling.  Delegate Heather Mizeur sent a request to the Maryland Attorney General regarding the status of the law while Ms. Tracey’s motion to reconsider is pending in the Maryland Court of Appeals.  The Attorney General responded that Tracey v. Solesky is stayed and does not take effect until the Court takes up the motion to reconsider.

Other jurisdictions are following Maryland closely, including right here in northern Virginia.  For a more detailed look at the ruling and its impact for Virginia, don’t miss my article in NOVADog Magazine’s summer edition.  You can also learn more by watching the current episode of The Pet Show with Dr. Katy, which features several interviews, including one with Libby Sherrill, the creator of the documentary Beyond the Myth.

UPDATE (8/6/12):  The American Bar Association’s House of Delegates just issued Resolution 100, promoting breed neutral legislation and proposing the elimination of breed bans and breed specific legislation.

Hi Five! The USDA Proposes Rule to Close Internet Loophole

Today, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) proposed a rule that redefines the definition of “retail pet store” under the Animal Welfare Act (AWA) in order to shut a loophole that has allowed retailers to sell animals “sight unseen” via the internet, by mail or over the phone.

Initially passed in 1966, the AWA carved out retail pet stores, which would not be subject to USDA licensing and inspection requirements.  The rationale for this carve-out was because the consumer had the opportunity to check an animal’s health and condition in person in the store before buying the animal.  Technology has changed all of that, allowing retailers who use the internet, mail and phone sales to escape any kind of inspection by the consumer or the government.

Under the proposed rule, a person who breeds more than four female dogs, cats and/or small exotic or wild mammals must open their doors either to the public or to APHIS inspectors, who will also require a license.

This rule still doesn’t impact backyard breeders and traditional retail pet stores that sell directly to the public.  State regulation governs those stores and breeders, but states have had mixed results with puppy mill legislation.  When states have been able to pass puppy mill statutes, they are often fairly weak.  For example, Virginia’s puppy mill statute only covers breeders who have at least 50 breeding dogs.

The public will have 60 days from the time the proposed rule is published in the Federal Register to submit comments.  In the meantime, here is a link to the proposed rule.

Free Downloads for Virginia Boarding Establishments

I’ve posted before about who is responsible for a boarded animal’s vet care, notice requirements for Virginia boarding establishments, and how bailment law impacts boarders and groomers.

I won’t repeat these posts, but it is vital that you understand Virginia’s veterinary care and liability notice requirements for boarding establishments.  “Boarding establishments” are defined quite broadly, and would include kennels, doggy daycares, veterinarians and animal hospitals that board animals, and any other place where companion animals are “sheltered, fed and watered in exchange for a fee.”

The one point worth repeating is that Virginia boarding establishments are required to provide veterinary care to animals in their care.  You may not get stuck with the bill, but you absolutely must get care for the animal in the event of an emergency.

All Virginia boarding establishments are required to give two types of notice regarding liability and veterinary care.  I’ve created two downloads that will help you get in compliance with both of these notice requirements.  These downloads comply with the law’s specific notice requirements,  right down to the correct font size (at least ten-point) and type (boldfaced)!

The first download (PDF) must be in a written document and spell out exactly what the law requires for emergency veterinary care and liability.  You must provide this written notice to your clients in writing before they drop off their animals.  You can include this in your contract if you give your clients a copy of the contract.  Best practices would be to include this in your contract and to have separate copies of this notice on brightly colored paper in case the client asks for a copy.

The second download (PDF) must be displayed on a sign placed in a conspicuous location and manner in your intake area.  Make sure that this sign and the other notice are in bold print with at least ten-point font.  It’s also best to have both notices in all caps.

If you are a Virginia company or nonprofit and you want to know more about other laws that may impact you, consider getting a copy of the Virginia Comprehensive Animal Law Handbook.  It costs only $10, it’s updated annually, and you can order it from the Virginia Federation of Humane Societies.

Public Meeting on the Solesky Decision this Sunday

The Maryland Animal Law Center will be hosting a public meeting on the fallout of the Solesky decision and what impact it has on pet care industry companies, rescues and owners.  The meeting is this Sunday, May 6 from 2:00 to 4:00 at Coventry School for Dogs in Columbia, Maryland.  This is a great opportunity to get up to speed on what impact the Solesky decision may have.

Follow up on the Solesky Ruling

Concerned about the recent Solesky decision in Maryland, and what impact it will have?

Tune in tonight at 8:00 PM on Pit Bulletin Legal News Radio for an in-depth discussion of the Solesky decision, and what impact it is having on rescues and insurance companies.  If you can’t make it tonight, the show will be archived so you can listen to it later.

The Humane Society of the United States has also compiled information especially for pit bull and pit bull mix owners who live and rent in Maryland.

If you are looking for an animal law attorney in Maryland, you can reach out to the Maryland State Bar Animal Law Section for help.