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.

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.

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.

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.

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.

Update on Virginia’s 2012 Legislative Session

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.

Local Events and Animal Abuse Awareness Month in April

Animal Abuse Awareness Month is coming up in April.  What better way to kick this month off than by participating two local events this weekend!

The Maryland State Bar Animal Law Section will be hosting its annual Animal Law Symposium this Friday, March 30 in Baltimore.  Topics will include incorporating animal law into private practice, prosecuting and defending animal cruelty cases, and how to set up a nonprofit organization.  Check out the Maryland State Bar’s website for registration information and the full agenda.  And good news for lawyers — this year, the Symposium will qualify for up to 7 hours of CLE credit!  Veterinarians can also earn continuing education credit.

The Virginia Federation of Humane Societies will also be hosting its annual conference in Williamsburg, Virginia on March 29-31, 2012.  Workshop and presentations include using social media to increase the effectiveness of foster programs, putting together an animal cruelty investigation and case, feral cat rescue and management, and enrichment activities for high energy dogs.  Animal control officers can get credit for attending these great workshops.

These events and Animal Abuse Awareness Month could not be timed better, in light of the fact that the Traverse and Tremayne Johnson retrial has just gotten under way.  This case involved dousing and burning a pit bull in the streets of Baltimore.  Phoenix, as the dog was later named by responders, had to be euthanized due to her injuries, and has become a beacon to increase animal cruelty and abuse awareness.  The first trial resulted in a mistrial.  Jury selection is scheduled to begin today for the retrial.

Humane Lobby Day and an Overview of Virginia’s 2012 Legislative Session

Please join the Virginia Federation of Humane Societies and the Humane Society of the United States this Thursday in Richmond for Humane Lobby Day.  There will be plenty to discuss with your representatives.  Here is my take on each of the companion animal related bills in this session:

STRONGLY SUPPORT:

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.

HJ 143 (Spay Day):  Who could resist this?!

SUPPORT IN PART AND OPPOSE IN PART:

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.

Virginia 2012 Legislative Roundup, Part Two

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.

If you would like to know more about fox penning and HB 695/SB 202, the Humane Society of the United States has put together a video explaining this blood sport and why it is vital that we push to prohibit this cruel practice.  A major focus of Humane Lobby Day in Richmond this Thursday will be to gather support for these bills.

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.