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.
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.
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.
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.
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.
It’s that time of year again! Several bills have already made it on this year’s slate, and a couple more may be added before the session is over. This year’s legislative session looks very promising for companion animals – with one glaring exception.
HB 95 (Bear Hound Training): We start with the one glaring exception. As things stand, hunters can train dogs to hunt bear from a half hour before sunrise until four and a half hours after sunset. This bill would allow this training to occur at night. Last year, the House passed this bill, but the Senate stopped the bill in its tracks.
HB 158 (Devocalization of Companion Animals): This bill makes devocalization a Class One Misdemeanor (punishable by up to 12 months in jail and a fine) unless the operation is necessary to relieve illness, disease, injury or pain. This is another carry over from last year, when this bill ended up getting stuck in the House Committee for Courts of Justice.
HB 363 (Companion Animals in Protective Orders): Once again, this bill ties into a bill from 2011. Last year’s bill would have granted courts explicit authority to include companion animals in domestic violence protective orders. It was resolved by adding language prohibiting acts of abuse or offenses that result in injury to person or “property.” Needless to say, confusion has arisen with this language, and this bill attempts to clarify that a protective order petitioner can be awarded control, custody and care of a companion animal.
HB 537/SB 305 (Dangerous Dog Registry): This bill proposes to place primary responsibility for registering dangerous dogs with animal control officers instead of the State Veterinarian’s office. It would also lengthen the amount of time to obtain the certificate of registration from ten days to 45 days. The certification fee would increase from $50 to $150, but the registration fee that went to the State Vet would be eliminated.
HB 650 (Notice of Euthanasia for Companion Animals): This bill requires city and county pounds to maintain a registry of organizations willing to accept healthy and non-vicious companion animals scheduled to be euthanized, and requires the pounds to give 24 hours’ notice to the organizations prior to euthanizing. This bill also requires pounds to make available annual statistics of impounded animals.
HB 888 (Anti-Tethering Ordinances): Virginia is a strong proponent of “Dillon’s Rule,” which dictates that counties, cities and other localities have only those powers that the state has explicitly granted them. This is reflected in Virginia Code Section 3.2-6543, which lays out for localities the types of ordinances they may enact that impact companion animals. Leash laws are explicitly included, but that section does not directly address tethering. Some Virginia localities, such as Alexandria, haven’t let that stop them. But this bill would wisely make it clear that localities can regulate tethering.
Watch for three more bills that are in the works for this year’s legislative session: (1) establishing February 28 as Spay Day; (2) addressing TNR (trap, neuter and return of feral cats); and (3) prohibiting ownership of exotic animals. I’ll post more information on these as they become available.
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.
Here is the gist of proposed amendment to Alexandria’s ordinance from the definitions section in Section 5-7-31 (j), with new language in bold and italics:
(j) Run or running at large. Roaming or running off the premises of its owner not under the control of its owner or a responsible person capable of physical restraining the dog and not secured by a leash, lead or other means of physical restraint, which leash, lead or other means of physical restraint is not harmful or injurious to the dog and which is held by a responsible person capable of physically restraining the dog. An electronic collar or other similar electronic device does not qualify as a leash, lead or other means of physical restraint.
The second ordinance addresses locking animals in hot cars. The proposed law would make it a misdemeanor punishable by a fine for confining an animal in a car if the outside temperature is 70 degrees or hotter and the car is not properly air conditioned. The law would also make it a crime punishable by a fine and up to twelve months in jail for leaving an animal unattended if the animal suffers heat stress.
Here is the full language of proposed Section 5-7-58:
Sec. 5-7-58 Confinement of animals in vehicles prohibited.
(a) Any person who confines an animal in an unattended, enclosed vehicle where the outside temperature is 70 degrees Fahrenheit or greater, and the interior of the vehicle is not provided with conditioned air to maintain an internal temperature of 80 degrees Fahrenheit or less, shall be guilty of a Class 3 misdemeanor.
(b) Any person who confines an animal in an unattended, enclosed vehicle so as to cause the animal to suffer from heat stress as diagnosed by a licensed veterinarian, shall be guilty of a Class 1 misdemeanor. The Animal Control Officer or other officer shall have the authority to remove any animal found in an enclosed vehicle that appears to be suffering from heat stress. The animal shall be provided immediate veterinary care. The animal owner or custodian shall be responsible for all expenses incurred during the removal of the animal or its subsequent treatment and impoundment.
(c) In the event that the person responsible for the violation cannot be ascertained, the registered owner of the vehicle, as required by Chapter 6 of Title 46.2 of the Code of Virginia (1950), as amended, shall constitute in evidence a prima facie presumption that such registered owner was the person who committed the violation.
Section 2. That this ordinance shall become effective upon the date and at the time of its final passage.
On June 2, 2009, the Medlens’ family dog, Avery, escaped from his backyard in Tarrant County, Texas. Animal Control responded and impounded Avery as a stray. Mr. Medlen went to the pound to claim Avery, but did not have enough money that day to pay the impound fees. The pound told Mr. Medlen that he could return on June 10 to get Avery, and a “hold for owner” tag was placed on Avery’s kennel.
On June 6, a pound employee made a list of dogs to be euthanized the following day, and mistakenly included Avery’s name on that list. Avery was euthanized the next day. The Medlens discovered the mistake and tragic result when they went to reclaim Avery as planned.
The Medlens sued the employee for negligence, claiming damages to compensate them for the unique sentimental or intrinsic value that Avery had. The employee argued that the Medlens weren’t entitled to those kinds of damages, and the trial court agreed with the employee.
On appeal, the pound employee relied on an 1891 Texas case, Heiligman v. Rose, for the proposition that Texas law treats dogs differently than other “personal property,” and limits damages to market value, or some special pecuniary value based on the dog’s usefulness or services. Heiligman involved three dogs who were poisoned. The dogs were bred and “well trained,” and one of the dogs would even bark in three different ways to signal whether a man, woman or child were approaching. The plaintiff in that case testified that the dogs’ “market value” was $5, but that she wouldn’t part with them for less than $50.
Arguing to reverse the trial court, the Medlens cited cases holding that plaintiffs are entitled to the sentimental or intrinsic value of property when the property has little to no “fair market value.” The appellate courts have not had the opportunity to decide cases with companion animals since Heiligman, but have looked at cases involving family correspondence, photographs and other keepsakes, shade and ornamental trees, and wedding veils, shoes, lace collars and watches.
On Friday, the Court of Appeals for the Second District of Texas issued its opinion agreeing with the Medlens, concluding that they entitled to damages reflecting Avery’s sentimental or intrinsic value. The highlight of the Court’s opinion is this wonderful acknowledgment of the special human-dog bond:
Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property. Cf. Bueckner, 886 S.W.2d at 377–78 (Andell, J., concurring) (“Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society‘s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”). Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of “man‘s best friend” should be protected.
This case is a wonderful example of how we can work within the confines of the law – which still considers our companions to be personal property – to achieve results that nonetheless recognize the special place that our companion animals have in our lives.
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.
Companion Animal Law Blog 