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.
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.
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.
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.
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.
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.
Bright line rules have their place. Society often benefits from clear, objective and unambiguous rules, when those rules produce even-handed and predictable results and have very little risk of creating harsh or unjust results. Take speed limits, voting ages, and Miranda warnings as examples.
But sometimes life is not black and white. Bright line rules are inappropriate and dangerous tools any time the issues turn on a variety circumstances and there is a risk of sweeping up innocent activity or individuals. Then a balancing test, or case-by-case analysis, is much more appropriate.
Today, the Court of Appeals of Maryland opted for a bright line rule in exactly the kind of case where a bright line rule is inappropriate. In Tracey v. Solesky, the Court ruled:
Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.
Such a bright line rule – pit bulls are per se dangerous – is misguided. Don’t get me wrong. I in no way condone what happened in this case. The dog was left in a small pen, escaped, and attacked and seriously injured a child. The owner put the dog back in the same pen, and the dog escaped yet again, and mauled another child, causing life threatening injuries.
The dog’s breed is not the main issue in this case. The much larger issue is the fact that the owner was completely irresponsible.
There was no reason for the Court to make new law in this case. The defendant could have tried to invoke the “one free bite” rule. But, at best, the “one free bite” rule would only help him escape civil liability for money damages as to the first child. He was certainly on notice of the dog’s propensity when the second child was attacked. Additionally, the “one free bite” rule would not impede a dangerous dog proceeding, and a well-crafted dangerous dog statute can provide restitution to victims without the hassle of a civil law suit.
As well as this legislative session started, not much positive happened for animals this year. Here’s a rundown of what the General Assembly did this year:
HB 95 (Bear Hound Training): Even though bear hound training was already allowed during most times of the day, this bill extended the hours of training bear hounds to include 4:00 AM to 10:00 PM. The Senate stopped this bill in its tracks last year, but it sailed through the House and the Senate this year and was signed into law by the Governor.
HB 158 (Prohibiting Devocalization): This is the second time Virginia missed an opportunity to put a stop to the inhumane practice of devocalization. This bill was pushed off until 2013 when it was continued by voice vote in the Agriculture, Chesapeake and Natural Resources Committee.
HB 363 (Companion Animals in Protective Orders): This bill would have clarified that judges have the ability to include companion animals in protective orders, but it was left in the House Appropriations Committee.
HB 537/SB 305 (Dangerous Dog Registry): This bill made its way up to the Governor and was signed into law. It shifts more responsibility to local animal control officers to regulate dangerous dogs, and changed the time to comply with registration from 10 days to 45 days.
HB 650 (Notice of Euthanasia for Companion Animals): This bill would require shelters or pounds to give notice to rescues in the position to help out before euthanizing healthy, adoptable companion animals. This is yet another example of a bill that got stuck in the Agriculture, Chesapeake and Natural Resources Committee.
HB 695/SB 202 (Prohibiting Fox and Coyote Penning): This bill would have outlawed the cruel blood sport of fox and coyote penning. I’m very disappointed to say that this bill, like many others, did not make it out of the Agriculture, Chesapeake and Natural Resources Committee.
HB 888 (Allowing Local Anti-Tethering Ordinances): This bill would have clarified that localities can pass their own anti-tethering ordinances. No surprises here — yet another bill stuck in the Agriculture, Chesapeake and Natural Resources Committee.
HB 1242/SB 477 (Prohibiting Exotic Animals): This bill was in response to the tragedy last year in Zanesville, Ohio involving the deaths of numerous exotic animals. The House continued this bill in the Agriculture, Chesapeake and Natural Resources Committee by voice vote to the 2013 session. The Senate kicked it to the Agriculture, Conservation and Natural Resources Committee.
SB 359 (TNR): This bill would declare TNR to be a legal and acceptable practice to control feral cat populations. It passed the Senate, but got stuck in the Agriculture, Chesapeake and Natural Resources Committee.
SB 610 (Agricultural Animals): This bill got lots of traction, but fortunately did not become law. It is still kicking around the Senate Agriculture, Conservation and Natural Resources Committee. This bill seeks to exclude hunting, working and show dogs from the definition of companion animals, and would throw a great deal more on the shoulders of the State Vet instead of localities and animal control officers.
There’s much work ahead of us to prepare for the 2013 legislative session! We could especially use help from those of you with delegates in the House Agriculture, Chesapeake and Natural Resources Committee. If you’re not sure who your delegate is, or whether they are members of that committee, take a look now with the Virginia General Assembly ”Who’s My Legislator” site.
HB 158 (Prohibiting Devocalization): A great bill designed to end an inhumane practice. Virginia missed the opportunity to pass this last year, but will hopefully come through this session.
HB 363 (Companion Animals in Protective Orders): This bill clarifies that judges have the ability to include companion animals in protective orders.
HB 650 (Notice of Euthanasia for Companion Animals): This bill provides that shelters or pounds give notice to rescues in the position to help out before euthanizing healthy, adoptable companion animals.
HB 695/SB 202 (Prohibiting Fox and Coyote Penning): Like dog fighting, which is now outlawed in all fifty states, fox penning is an inhumane “sport” that amounts to cruelty.
HB 888 (Allowing Local Anti-Tethering Ordinances): This merely clarifies that localities have the ability to pass their own anti-tethering ordinances.
HB 1242/SB 477 (Prohibiting Exotic Animals): A necessary response to the tragedy last year in Ohio.
SB 359 (TNR): This bill clarifies that TNR is a legal and acceptable practice to control feral cat populations that should not be hindered by current abandonment laws.
HB 537/SB 305 (Dangerous Dog Registry): This bill makes good changes to shift more responsibility to local animal control officers, but the 45-day window to comply with the registration certification procedures is too long. When there has been an issue such as obtaining insurance that has taken longer than the current 10-day window, animal control officers are more than willing to work with registrants. A 15-day window would probably be sufficient.
STRONGLY OPPOSE:
HB 95 (Bear Hound Training): Training is already allowed during most times of the day, and there is no reason to extend training into the late hours of the night and early hours of the morning.
SB 610 (Agricultural Animals): This bill is a huge setback, as it tries to peel off hunting, working and show dogs from the definition of companion animals and puts all authority in the hands of the State Vet instead of localities and animal control officers.
Please reach out to your state representatives to ask for support regarding these vital companion animal issues. If you are unsure of who your representatives are, or how to contact them, visit the Virginia General Assembly website.
As promised, here is more information about a few of the bills in this legislative session:
HB 1242/SB 477 would make it a Class 1 misdemeanor (punishable by up to 12 months in jail and a $2500 fine) to possess, sell or breed exotic animals. This bill is in response to the tragedy last year in Ohio resulting in the death of almost fifty animals after the owner released the animals and killed himself.
SB 359 will officially legalize Trap, Neuter and Return (TNR) programs. This bill clarifies that anyone engaged in TNR is not an “owner” who could be deemed to be “abandoning” the cats.
Last but not least is HJ 143, which would establish February 28 as Spay Day.
Now the bad news. As is often the case, a devastating bill will sneak into the legislation when no one is looking. And so it is with SB 610. This bill would prohibit localities and animal control officers from regulating agricultural animals, placing all authority over agricultural animals in the hands of the State Vet. This bill would also expand the definition of agricultural animals to include hunting, working and show dogs. Needless to say, this bill would be a tremendous set back to animal welfare by placing a huge burden on the State Vet’s office, and taking the power to investigate and prosecute animal cruelty and neglect out of the hands of localities and animal control officers who are in the best position to take action.
Stay posted later this week for an overview of the good, the bad and the ugly in the bills geared towards companion animals in this legislative session.
Hearty thanks to Operation Socialization for offering me a great guest blogger opportunity! Operation Socialization is a network of professional dog trainers and businesses. Operation Socialization’s vision is to raise awareness about the importance of puppy socialization and to provide the humans on the other end of the leash with education and resources to give puppies the best possible start in life.
