Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals

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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.


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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.


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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.

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Sometimes Bright Line Rules Just Aren’t the Answer: The Problem with Tracey v. Solesky

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.

The most frustrating part of this ruling is that there are many pit bull and pit bull mix owners who are highly responsible and who will get swept up in this bright line rule. Likewise, the ruling will not affect the highly irresponsible owners of dogs who are not pit bulls or pit bull mixes. Dare I even mention the issue of how a court is to determine whether a dog is a pit bull or pit bull mix.

Courts and legislators should focus on owner responsibility, not breed. Fortunately, Virginia’s dangerous dog statute makes it clear that breed alone is not a reason to declare a dog to be dangerous. I hope Virginia keeps its focus on owner responsibility and does not choose to follow the path of neighboring Maryland in this regard.

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The Burden of Bailments: Lohre v. Posh Maids

On August 17, 2011, Robin Lohre asked Posh Maids to clean her home. During the several hours it would take to clean the house, Lohre needed to run errands. Lohre made sure with the employee that her dog, Ruthie, could stay in the house during the cleaning. Lohre asked the employee not to let Ruthie out of the house, and gave careful instructions of how to go in and out of the mudroom if she had to go outside. Lohre then went to run errands with her six-year-old daughter.

Posh Maids called Lohre to tell her they were able to finish the cleaning a little ahead of schedule because additional employees arrived. Lohre and her daughter came home to find Ruthie dead under the dining room table. Lohre called Posh Maids, and was told that Ruthie was hit by a car, ran back home and was “whimpering a little.”

Lohre sued Posh Maids for negligence and emotional distress for failing to inform her about Ruthie’s accident and leaving Ruthie without veterinary care. This week, Lohre secured a judgment of more than $65,000 in a precedent-setting law suit brought by The Animal Law Center in Colorado.

When Lohre left Ruthie in Posh Maids’ care, this arguably created a bailment – much like when you leave your car in a garage or you check your coat at the theater. But there is one major difference – unlike your car or coat, companion animals are living beings who require care, including emergency veterinary care.

People entrust their companions with groomers, boarders and doggie daycares every day. If you are entrusted with others’ animals, you could face a scenario similar to Posh Maids. Take a look at the following questions and answers in order to prepare yourself in the event of an emergency.

Question #1: Does the relationship between you and the animal amount to a “bailment”?

A “bailment” arises when a person temporarily gives control over or possession of personal property to another for a designated and agreed upon purpose. If you are providing services for a companion animal and the animals’ owner leaves the animal in your care, you are involved in a bailment.

Question #2: To what degree are you responsible for an animal left in your care?

In Virginia, “owners” are tasked with providing adequate care to companion animals under Virginia Code Section 3.2-6503. This involves providing adequate food, water, shelter, space, exercise, care and veterinary care. The definition of “owner” is quite broad – including “any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.”

In addition, Virginia Code Section 3.2-6518(A) specifically holds groomers and boarding establishments responsible for the care provisions of Section 3.2-6503. Failure to care for the animal properly is a Class 1 misdemeanor, punishable by up to twelve months in jail and a $2500 fine – much steeper than the $250 fine an owner faces for the same violation.

Question #3: If an emergency arises, are you responsible for getting the animal to the vet?

Yes. Plain and simple. The answer to this question is undoubtedly yes. You may or may not be liable for the vet bill, but don’t let that hold you back from getting immediate veterinary care for the animal. Section 3.2-6518 also specifies that groomers and boarding establishments must provide emergency veterinary care in the event of illness or injury.

Question #4: Are you also responsible for the vet bill?

Generally speaking, bailees, such as groomers and boarders, are liable for their own negligence. Section 3.2-6518 clarifies that the bailor/owner is liable for emergency veterinary costs, unless the animal sustained injury because the groomer or boarding establishment accidentally or intentionally failed to care for the animal adequately, or if the injury resulted from the groomer’s or boarding establishment’s actions. That code section does not require the groomer or boarder pay for treatment of injuries caused by the animal’s self-mutilation.

Question #5: Is there anything else I need to know?

If you are a Virginia boarding establishment or groomer, make sure your business and your contracts are in full compliance with the care and very specific notice requirements imposed in Section 3.2-6518 and Section 3.2-6519. If you are unfamiliar with these notice requirements, please take a look at this earlier post.

To fully protect your business and any animals in your care, make sure that you have a clear policy for your employees to follow, and an open line of communication with your clients and local veterinarians in the event of an emergency.

The Posh Maids case is a good reminder of your responsibilities and liability as a bailee. Equally significant is the fact that this case allowed damages for negligence based on the loss of a companion animal. Virginia law still does not allow damages for negligence, but there may be a door open for intentional torts or gross negligence. Stay posted for recent developments on this front in Maryland.

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Special Thanks to Operation Socialization for Guest Blogger Opportunity!

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.

Operation Socialization recently asked me about ways to protect a dog training business.  Operation Socialization’s main focus for the guest blog series is on  risk management and insurance issues.  Insurance is one of the many components to protecting your business.  For a nice checklist to get you started (or to double check for your existing business), take a look at this prior blog post.

To read the first part of my response to  Operation Socialization’s questions on risk management and insurance issues, take a look at my guest post:  Are You Covered?  Protecting Your Business, Part One.

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Alexandria Animals Score Big Today!

This morning, the City Council in Alexandria, Virginia faced a final vote on two crucial companion animal laws.

The first vote was politically very easy and straightforward — after all, who could possibly disagree that there should be a specific cruelty law to address leaving an animal in a car on a hot day?  The new City Code Section 5-7-58 will punish leaving an animal in a car that is not air-conditioned if the outside temperature is 70 degrees or hotter with a fine, and makes it a jailable offense to leave an animal in a car if the animal suffers heat stress.  The vote took no time, passing 6-0.  There was no debate against the law, and plenty of well-deserved kudos to the Animal Welfare League of Alexandria and its hard-working animal control officers for taking the initiative on this issue.

The political temperature on the next vote was unknown — whether City Council would pass a law that would say definitively that electronic collars don’t cut it under Alexandria’s leash laws.  (Sound familiar?  Who’s said that before…?)  Plenty of speakers came out in support of proposed amendment to the leash law, and no one spoke against it.

After the testimony, Vice Mayor Kerry Donley started the discussion with the comment that this law — like the previous one — was a “no brainer.”  Donley’s first question to the staff was about the penalty for violating the leash ordinance, which is currently a $100 civil fine.  He then asked if that was the most the City could do under state law, and invited the staff to make a recommendation at a later date to stiffen the penalty.  And a discussion of possible harsher penalties for recidivists followed.  Nicely done, Mr. Vice Mayor!

Councilmember Del Pepper praised the ordinance for giving clear guidance to animal control officers and one more welcome tool for the officers.  Councilmember Rob Kupricka commented that electronic collars pose safety issues for the public and not just the animals, and he hoped the new law would aid the officers in confronting off leash dogs.

A crucial question raised by Pepper was how to get the word out to the citizens of Alexandria that electronic collars would no longer suffice as a “leash.”  Joy Wilson, the Director of Animal Control, responded that she plans to focus on educating the public about why the law changed.  Councilmember Frank Fannon had an excellent suggestion about reaching out through Alexandria’s robust pet care industry to spread the news.

After discussion, the City Council voted — once again, unanimously — in support of the change.  With that vote, the City of Alexandria has made it clear that electronic collars pose a sufficient safety threat to the dogs and the public that they will no longer count as “leashes” or “physical restraint” under the leash laws.

Major kudos to Alexandria’s Animal Control Officers and the Animal Welfare League of Alexandria!  As a resident of Alexandria since 1997, I can’t be more proud!  Thanks for all you do and congratulations on this huge victory for the animals!

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