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.
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.
Part 1 discussed the importance of creating an entity for your business and properly insuring the business.
Part 2 talks about contracts and waivers, with extra tips for those of you who work with aggressive dogs.
Watch for Part 3, which will discuss ways to protect yourself and your business from liability.
Never underestimate the importance of treating training as a business, and doing all you can to protect that business. If you’d like to know more about the basics of protecting your business, check out these top ten tips!
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.
Virginia and Kristin Garwood operated Breezy Valley Dairy Farm in Mauckport, Indiana, a family farm that had been in the Garwood family for thirty years. In 2007, the rising price of grain and falling price of milk put the farm in financial jeopardy. Virginia decided to supplement the family’s income by selling dogs. She started the dog breeding business by buying a pregnant Cocker Spaniel and selling her four puppies for a total of $400. She also sold two of her own Australian Shepherd’s puppies for $150. That same year, Virginia bought 34 more breeding dogs, but could not breed all of them immediately due to health issues.
In 2008, Virginia purchased even more breeding stock, and sold 52 dogs for a total of $4,144. Animal control received a complaint about the treatment and sale of one of Garwood’s dogs. When animal control officials investigated the Garwoods in October 2008, Virginia was uncooperative.
In late 2008 and early 2009, a friend of the Garwoods shut down his dog breeding business and gave the Garwoods dogs that were either “undesirable breeds” or incredibly unkempt. Virginia treated, groomed and sold the dogs, and gave most of the proceeds to her friend. Two more complaints trickled to animal control, and animal control reported the Garwoods as a possible puppy mill to the Office of the Attorney General (AG).
At the time, Indiana did not have a puppy mill statute and Indiana law did not define the term “puppy mill.” There were no laws that criminalized actions like the Garwood’s breeding and dog selling practices. Taking a page about Al Capone from the history books, the authorities looked to tax evasion laws as a way to go against the Garwoods.
In early 2009, the AG and the Indiana Department of State Revenue began investigating the Garwoods for state income and sales tax evasion. The authorities even went so far as to set up an undercover “sting operation” to buy two puppies from the Garwoods for $550. The Garwoods gave no receipts, but claimed orally that sales tax was included in the price.
The authorities now had what they needed to move in on the Garwoods. On May 29, 2008, the Department of State Revenue issued “jeopardy assessment” notices, demands, vouchers and warrants against the Garwoods. The officials concluded that Virginia and Kristin each owed over $142,000 in taxes, penalties and interest.
In the early morning hours of June 2, 2008, the authorities served the Garwoods with the jeopardy assessment documents, and demanded immediate payment in full of all tax, penalties and interest. Not surprisingly, the Garwoods were unable to pay in full.
The tax officials, assisted by the Indiana State Police and 60 volunteers from the Humane Society of the United States (HSUS) and the Missouri Humane Society seized all 240 dogs, including pets and farm dogs. The authorities also seized $1260 in cash, $1325 in checks, tax returns, and records showing that the Garwoods made over $25,000 from selling dogs.
The next day, the Indiana authorities sold all 240 dogs to HSUS for a total of $300. A local news channel posted photos on its website showing the crowded conditions and stacked cages that the dogs lived in.
The tax court began its analysis by pointing out that the state’s power to pursue a “jeopardy assessment” is very limited, and warranted in only four situations – when the taxpayer is about to: (1) quickly leave the state; (2) remove property from the state; (3) conceal property in the state; or (4) do any other act that would jeopardize collection of taxes.
The Indiana tax officials were not arguing the first two points – that the Garwoods were trying to leave the state or take property out of the state. Rather, they relied on the last two prongs – concealing property in the state and actions jeopardizing tax collection – to justify the jeopardy assessments.
Arguing that the Garwoods were concealing property, the officials pointed to Virginia’s refusal to cooperate with animal control officers, and the fact that the dogs could easily be sold in bulk or set free. The tax court dismissed these arguments out of hand, calling them “specious non sequiturs” (ouch!).
The officials relied heavily on the fourth prong to justify the jeopardy assessments. In deciding what kinds of actions could constitute “any other act that would jeopardize collection of taxes,” the officials consulted IRS publications and guidelines. The officials then pointed to several facts to justify seizing the dogs – the Garwoods advertised the dogs in local newspapers, bred and sold the dogs, failed to register as a retail merchant, failed to prepare and file sales tax returns, and failed to report the income on their tax returns.
Once again, the tax court ignored these arguments. In a dismissive footnote, the tax court gave no weight whatsoever to the IRS guidelines. The tax court concluded that these facts merely showed the Garwoods were not paying taxes, but not that they were jeopardizing collection efforts.
At the end of the opinion, the tax court gratuitously scolded the authorities for the media hype surrounding the case. The court also pointed out a serious flaw with the case – the officials sold the 240 dogs to HSUS for a mere $300. In the tax court’s mind, this showed that the state wasn’t actually motivated by filling its coffers with tax revenues, but instead wanted to shut down a puppy mill. The huge gap between the $300 price tag and the $142,000 tax bill against Virginia and Kristin Garwood didn’t help matters.
This case shows the incredible need for strong laws aimed at puppy mills. Fortunately, Indiana passed a puppy mill statute in 2009 that requires commercial dog breeders to register with the state and keep basic records, and imposes minimal standards of care on the breeders. But Indiana’s puppy mill statute still may not address most critical issue posed by the Garwood case – the need to give authorities the power to seize dogs caught up in abusive or neglectful circumstances.
Over-population of companion animals is a huge problem, and puppy mills are the big bad boys contributing to this over-population dilemma. Puppy mills are not an issue due to just sheer numbers. Puppy mills’ focus on profit rather than health and welfare of the animals lead to abuse and neglect, unethical breeding practices, poor socialization, disease and health, behavior and genetic problems.
It’s difficult to say which way the political wind is blowing when it comes to puppy mills and commercial breeders. Over the last several years, many states have made major progress in passing puppy mill statutes – including in the puppy mill capital, Missouri, which passed Proposition B in 2010. Virginia passed its puppy mill law in 2008. Just last month, Texas became the next state to pass a puppy mill law.
the requirement to have a veterinarian visit and examine each dog at least one time a year;
explicit requirements to have continuous water and outdoor access;
prohibitions against stacked cages; and
limits on the number of intact dogs and breeding cycles
Just when things start looking miserable, other jurisdictions have come along to attack puppy mills on the demand side. South Lake Tahoe and West Hollywood in California and Lake Worth in Florida have outlawed the sale of dogs and cats in pet shops. San Francisco has long been planning to do the same. Not to be outdone, San Francisco proposed outlawing pet shops from selling not just cats and dogs, but all mammals and birds. But wait, the new version of San Francisco’s bill goes even further – to ban the sale of any kind of pet – mammal, bird, reptile, fish, you name it.
To really strike a blow against puppy mills and over-population, states and localities need to attack aggressively from the supply side and the demand side. I applaud San Francisco’s efforts. In a time when some seem to be weakening their laws designed to combat puppy mills from the supply side, it is refreshing to see San Francisco be so aggressive on the demand side. One way to make San Francisco’s proposed bill even better would be to include the internet in the definition of a “pet shop,” in order to eliminate the practice of online puppy scams.
Data provided by the Virginia Department of Agriculture and Consumer Affairs (VDACS) demonstrate how vital rescues are to animal welfare. In Virginia in 2010, rescues accounted for 10,816 stray, seized, transferred and surrendered animals. These Virginia rescues adopted 4,886 and transferred another 1,846 of those animals. The rescues euthanized only 427 of those animals. This is an adoption rate of 45%, and euthanasia rate of only 4%.
The overall 2010 figures, including data for shelters, pounds, humane societies and rescues, show a different picture. Of an overall number of 185,948 stray, seized, transferred and surrendered animals, 54,425 were adopted, another 24,137 were transferred and 72,403 were euthanized. This is an adoption rate of 29%, and euthanasia rate of 39%.
With their high adoption rates and low euthanasia rates, rescues are a very attractive option for someone looking to adopt a companion animal. However, not all rescues are created equally.
On more than one occasion, I have gotten a phone call from a person who adopted an animal from a “rescue,” only to discover that the rescue was hardly a benevolent non-profit. The “rescue” instead was in the business of selling animals that are unhealthy or not the size or breed that was promised. And even when rescues have their heart in the right place, more and more rescues act as venues for animal hoarders, like we’ve seen recently with Annette Thompson in Goochland County and Janet Hollins in Prince William County.
In light of all this, there are several things that you can do to make sure that the rescue you are considering is legitimate.
First, if the rescue claims to be a 501(c)(3), you can double check this using the Guidestar website. Guidestar can show you vital information such as the non-profit’s mission statement and recent 990 tax filings. The rescue’s 990 will show you even more information, such as how the organization is funded and how much the organization spends on administration and fundraising versus costs directly related to the animals’ care.
Second, a rescue claiming to be a non-profit may have additional state regulations and obligations. For instance, all Virginia non-profits must register with VDACS’s Department of Consumer Affairs to solicit as a charitable organization. You can check whether the rescue is registered to solicit using the Department of Consumer Affairs’ website.
Third, check to see if the rescue is complying with its state registration or reporting obligations. In Virginia, rescues must register and report data annually to VDACS and the Office of the State Veterinarian. VDACS maintains an online database that tells you which rescues are reporting, and gives data for each rescue for how many animals they take in per year, the source of those animals, and the disposition of the animals.
Fourth, the rescue should have a written adoption contract that complies with all legal obligations. For instance, Virginia rescues must comply with Virginia Code Section 3.2-6574, which requires a written contract between the rescue and adopter in which the adopter agrees to neuter an intact dog or cat within 30 days of adoption or the date that the animal reaches six months of age. Any decent rescue will likely also have a contractual provision that requires the adopter to return the animal to the rescue if the adopter can no longer care for the animal.
If you are checking out a rescue, here are some red flags to watch out for:
The “rescue” claims to be a 501(c)(3), but you can find no information using Guidestar and state regulatory sites.
The rescue uses a high percentage of funds for administrative costs, rather than costs directly related to care of the animals, such as veterinary care, food, training and boarding.
The “rescue” does not have a contract. Or it has a contract, but the contract lacks key provisions, such as requiring the adopter to spay or neuter the animal, or return the animal to the rescue if the adopter can no longer care for the animal.
The “rescue” cannot produce identifying information and veterinary records for their companion animals.
The “rescue” charges high “adoption fees,” and has a website promising to sell you the perfect purebred or designer breed puppies or kittens. Take a look at the ASPCA’s website for more information on internet scams.
As with any company, don’t just rely on the rescue’s website. You should be able to call the rescue and speak with a live person. When you see a particular companion animal you are interested in, you should be able to meet the animal and the foster, and review the animal’s veterinary records, before you decide if the animal is right for you. If you already have a dog and you are looking to adopt a second dog, ask to set up a meet and greet for the dogs. If the rescue is hesitant with any of these requests, think again before you adopt from them!
The Maryland General Assembly just finished its session this week, taking major steps forward with several animal rights bills.
HB 227/SB 115 authorizes a court to prohibit a defendant from owning, possessing or residing with an animal as a condition of probation for specific violations concerning animal abuse, neglect or cruelty. [By comparison, Virginia Code Section 3.2-6570 allows a court to prohibit a person convicted of animal cruelty from owning or possessing a companion animal. Virginia Code Section 3.2-6571 requires a court to prohibit a person convicted of dog or cock fighting from owning or possessing companion animals or cocks. Unfortunately, Virginia’s version of neglect (lack of adequate care, found in Virginia Code Section 3.2-6503) does not authorize a court to prohibit possession of companion animals.]
SB 639/HB 339 establishes a task force for a statewide spay/neuter fund. The bill specifies the task force’s membership, chair and staff; requires the task force to review spay/neuter programs, collect and review data, and make recommendations for a spay/neuter fund; and requires the task force to report its findings and recommendations to the Governor and specified committees in the General Assembly on or before January 1, 2012.
SB 839/HB 940 requires a kennel license for persons who own or have custody of fifteen or more female dogs kept for the purpose of breeding and who sell dogs from six or more litters a year; requires each county to collect and maintain specified information related to each kennel license; and requires each county to report specified information to the Department of Labor, Licensing and Regulation on or before January 15 of each year. [Virginia already has a similar statute for breeders found in Virginia Code Sections 3.2-6507.1 through 3.2-6507.6, but it only applies to breeders with thirty or more adult female dogs.]
HB 407/SB 747 authorizes District Court Commissioners in interim protective orders, and judges in temporary and final protective orders, to award temporary possession of any companion animal of a petitioner or respondent in a protective order proceeding. [A similar bill failed in Virginia’s General Assembly this year.]
HB 912 would have required retail pet stores to post specific information about each dog on each dog’s cage, maintain written records about each dog for one year after the date of sale of the dog. [Virginia has similar “pet shop” laws, including specific Consumer Protection Act violations, found in Virginia Code Sections 3.2-6512 to 3.2-6516.]
HB 294 would have prohibited infliction of unnecessary suffering or pain on an animal through the use of a rifle, a handgun, or a specified weapon. [To the contrary, the Virginia General Assembly focused much of its energy on pro-hunting legislation this session.]
HB 301 would have authorized the Department of Natural Resources to suspend hunting licenses or privileges of persons convicted of state or federal hunting violations, and would have required a minimum one-year suspension of hunting licenses or privileges for subsequent hunting violation convictions.
First, Saginaw will add a leash law and prohibit tethering in most circumstances. Owners would be required to keep dogs on leash. Dogs could not be chained or tethered outside of the dogs’ “kennel, pen or fenced yard,” unless someone has physical control of a leash. An inanimate object such as a tree, post or building will not cut it. The requirement of physical control indicates that shock collars will not count in Saginaw. This is a great step – with the caveat that the law should be clarified to state that a dog cannot be chained or tethered even if the dog is on the owner’s property.
Second, all dogs would need to be securely confined indoors or in adequately lighted and ventilated kennels. If a dog is confined indoors, the dog would not be able to exit on the dog’s own volition. Presumably, that means no more doggie doors in Saginaw. And, thankfully, no more dogs left outside unattended.
Third, Saginaw residents would be limited to three dogs per household. This three-dog limit would not apply to animal care and control organizations, rescues, registered foster homes, and certain service dog and hunting dog breeders. Commercial breeders and brokers would be required to register with the City Clerk and obtain a business license.
Officials in Saginaw did not stop at overhauling Section 94.04. They are proposing a second ordinance targeting “dangerous dogs.” Unfortunately, this ordinance completely misses the mark and has virtually nothing to do with owner responsibility.
This ordinance will require the owners of “dangerous dogs” to register the dogs, and adhere to leash and confinement standards. The owners will also have to pay a $20 registration fee and obtain and display signs indicating the presence of a dangerous dog on their property. Failure to comply with the ordinance would result in civil fines.
The heart of problem is the proposed definition of a “dangerous dog” as any dog:
with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
that attacks, attempts to attack or that, by its actions, gives indication that it is liable to attack a human being or other domestic animal one or more times without provocation; or
of a breed that appears consistently in the top five (5) of the breeds on credible, analytical listings of “Most Dangerous Dogs” as verified and supplemented by local data and records for Saginaw County, including mixes.
The simple truth is that focusing on breed will not decrease the number of dog bites. According to a comprehensive 2009 study by the National Canine Research Council, the three predominant factors with dog bites are whether the dog:
is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
is intact; and
has a reckless, irresponsible owner.
Notice that breed is not one of these factors. With its recent overhaul of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) agrees that the focus should be on the individual dog and not breed. The ADA already condones the refusal to provide access to a service dog if an individual dog shows specific signs of aggression. But the DOJ unequivocally refuses to bow to jurisdictions with breed bans. This is leading to a nasty battle in Denver, where officials are refusing to exempt service dogs in Denver’s breed ban. At least Saginaw was not so stubborn, exempting service dogs from its dangerous dog ordinance.
Although Virginia’s dangerous dog statute isn’t perfect, it does focus on individual dogs and specific aggressive behavior. To be classified as a dangerous dog, Virginia requires an actual bite. Last year, the General Assembly considered expanding the dangerous dog designation to dogs who “attempt to bite.” Fortunately this bill died quickly in committee. Additionally, Virginia refuses to bow to breed stereotypes, with the following language right in the dangerous dog statute:
No canine or canine crossbreed shall be found to be a dangerous dog or vicious dog solely because it is a particular breed, nor is the ownership of a particular breed of canine or canine crossbreed prohibited.
With Saginaw’s proposed leash, confinement and supervision requirements and a limit on the number of dogs a household can have, Saginaw will accomplish a great deal to increase owner responsibility and decrease the number of resident dogs. If Saginaw wants more effective laws, research shows that focus on the spay/neuter issue rather than breed will go further to reduce the number of dog bites.
Laws requiring leashes and spay/neuter programs are not the only way to get at owner responsibility. Education is also necessary. The more we learn about animal behavior, the better. At last Friday’s Mid-Atlantic Animal Law Symposium in Baltimore, Maryland, one participate raised the issue of humane education in schools. If we could emphasize just three areas, we could do a great deal to better the bond between dogs and owners, and thereby decrease the number of dog bites:
Never leave dogs unsupervised with children. So many dog bites are to children. Simple supervision, teaching a child not to approach a dog unless the child asks the owner for permission, and showing the child how to pet the dog appropriate would go far to decrease the number of dog bites. Dogs & Storks has wonderful information about how to prepare the family dog for a new baby, and lots of other helpful information regarding dogs and children.
The Saginaw City Council will introduce its proposed ordinances on April 18, and the ordinances are slated to be enacted May 9 and become effective May 19. If Saginaw’s real purpose is to increase owner responsibility and decrease the number of dog bites, I encourage the Council to adopt the ordinance expanding Section 94.04, but ditch its dangerous dog ordinance.
Arlington County’s sign ordinance defines “sign” as “[a]ny word, numeral, figure, design, … [or] display … used to direct, identify, or inform the public while viewing the same from outdoors.” The ordinance requires a permit before a business can display a sign, and limited Wag More Dogs to three signs totaling no more than 60 square feet. The $4000 mural is 16 feet by 60 feet – 960 square feet.
The County declared the mural a prohibited sign, and gave Wag More Dogs three options: (1) pay a non-refundable $1,782 fee for a special exception permit which may be granted or denied; (2) paint something else unrelated to the business like flowers over the dogs and bones; or (3) paint “Welcome to Shirlington Park’s Community Canine Area in four-foot high letters above the mural to create an informational sign that would not need a permit. Retaining the mural would result in civil fines and possibly even criminal prosecution.
Wag More Dogs decided to fight back, and filed suit in federal court, bringing a First Amendment challenge against Arlington County’s sign ordinance. The County responded with a motion to dismiss, which Judge Brinkema heard last month. Earlier this month, Judge Brinkema issued a 33-page Memorandum Opinion.
Judge Brinkema’s first line of business was to decide whether the federal court had subject matter jurisdiction over the dispute. The County argued that Wag More Dogs lacked standing to challenge the sign ordinance because its mural was so clearly in violation of the ordinance. I didn’t really follow this or why the County even tried to make this argument. Judge Brinkema easily found that Wag More Dogs had standing, which takes three things: (1) injury in fact – losing the mural and suffering civil fines and criminal prosecution is about as straightforward as injury gets; (2) causation – the ordinance itself spells out the penalties constituting the “injuries in fact”; and (3) redressability – striking down the ordinance would redress Wag More Dogs’ issues with the statute.
So far, so good for Wag More Dogs. But unfortunately, this is where Wag More Dogs’ luck runs out.
Judge Brinkema’s opinion goes on to analyze Wag More Dogs’ constitutional challenges, which came in three layers: (1) the ordinance violates Wag More Dogs’ right to free speech and artistic expression; (2) the ordinance is overbroad and vague; and (3) the County’s alternatives restrain speech or unconstitutionally compel speech.
Looking first at the free speech argument, Judge Brinkema had to determine what level of scrutiny would apply to the sign ordinance. Quintessential political or artistic speech earns the highest form of scrutiny – strict scrutiny. But Judge Brinkema concluded what was at issue is a content neutral ordinance aimed at commercial speech, warranting only intermediate scrutiny.
The intermediate scrutiny test requires the sign ordinance to serve a “substantial” government interest, in a manner that is “in proportion” to that interest and no more restrictive than necessary to achieve it. The purposes of the sign ordinance are traffic safety and avoiding visual clutter, which courts have not hesitated to conclude are “substantial” government interests. Judge Brinkema also found that the sign ordinance was in proportion with its interest, because it merely restricted the size and number of signs without banning commercial speech.
Next, Judge Brinkema analyzed Wag More Dogs’ argument that the ordinance was overbroad and vague. Wag More Dogs made both a “facial challenge” and an “as applied” challenge. For the facial challenge based on vagueness, Wag More Dogs would need to show that no set of circumstances exists under which the law would be valid. Judge Brinkema had no problem finding that the ordinance, and its definition of “sign” as something that “directs, identifies or informs,” was not vague because it used words of common usage, with plain and ordinary meanings easily understood by the average person.
For the “as applied” challenge, Wag More dogs pointed to an email from County Zoning Administrator Artman saying that “the mural cannot show anything that has any relationship with your business,” such as “dogs, bones, paw prints, pets, people walking their dogs, etc.” Judge Brinkema was not troubled by this “any relationship” test, saying that Wag More Dogs failed to allege the County even really uses that test, and that even if it did, a reasonable person could easily understand and apply the test.
Lastly, Judge Brinkema analyzed the County’s proffered alternatives of applying for a special exception permit, painting over the mural or adding language to it. Judge Brinkema handily dismissed these arguments. She found that the County’s special exception permit scheme needed only adequate standards and a fair opportunity for judicial review, which were built into the County’s Comprehensive Sign Plan. Regarding painting over the mural, or adding language to make the mural an informational sign, Judge Brinkema noted that these was only options, and could not be considered unconstitutionally compelled speech.
In the end, Judge Brinkema granted the County’s motion to dismiss, ending the case at a very early stage. We’ll see if the Institute for Justice continues the fight with an appeal.
As unfair as it may seem, the truth is that it takes a lot to strike down an ordinance. You can see how difficult it was, even when the right to free speech was at issue. At least Wag More Dogs had the benefit of intermediate scrutiny for its constitutional challenge, and Judge Brinkema still did not hesitate to uphold the sign ordinance. Imagine if free speech were not an issue. With statutes like breed specific legislation, there is no heightened scrutiny, with courts applying a “rational basis” test. You will hear me moan about this when I start blogging about breed specific legislation – I promise, it’s coming!
While there may be some basis behind Arlington’s sign ordinance, the ordinance produces inconsistencies that are hard to deal with. For instance, if Wag More Dogs were beside a flower shop, theoretically the flower shop could put up the Wag More Dogs mural, and Wag More Dogs could paint flowers on its wall. As another example, graffiti like what has been tagged on the walls of The Muddy Mutt next door is not off-limits. I don’t know about you, but I’d much rather look at the Wag More Dogs mural.
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.
Companion Animal Law Blog 