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.
I won’t repeat these posts, but it is vital that you understand Virginia’s veterinary care and liability notice requirements for boarding establishments. “Boarding establishments” are defined quite broadly, and would include kennels, doggy daycares, veterinarians and animal hospitals that board animals, and any other place where companion animals are “sheltered, fed and watered in exchange for a fee.”
The one point worth repeating is that Virginia boarding establishments are required to provide veterinary care to animals in their care. You may not get stuck with the bill, but you absolutely must get care for the animal in the event of an emergency.
All Virginia boarding establishments are required to give two types of notice regarding liability and veterinary care. I’ve created two downloads that will help you get in compliance with both of these notice requirements. These downloads comply with the law’s specific notice requirements, right down to the correct font size (at least ten-point) and type (boldfaced)!
The first download (PDF) must be in a written document and spell out exactly what the law requires for emergency veterinary care and liability. You must provide this written notice to your clients in writing before they drop off their animals. You can include this in your contract if you give your clients a copy of the contract. Best practices would be to include this in your contract and to have separate copies of this notice on brightly colored paper in case the client asks for a copy.
The second download (PDF) must be displayed on a sign placed in a conspicuous location and manner in your intake area. Make sure that this sign and the other notice are in bold print with at least ten-point font. It’s also best to have both notices in all caps.
If you are a Virginia company or nonprofit and you want to know more about other laws that may impact you, consider getting a copy of the Virginia Comprehensive Animal Law Handbook. It costs only $10, it’s updated annually, and you can order it from the Virginia Federation of Humane Societies.
The Maryland Animal Law Center will be hosting a public meeting on the fallout of the Solesky decision and what impact it has on pet care industry companies, rescues and owners. The meeting is this Sunday, May 6 from 2:00 to 4:00 at Coventry School for Dogs in Columbia, Maryland. This is a great opportunity to get up to speed on what impact the Solesky decision may have.
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.”
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?
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.
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.
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!
Great news for employees and volunteers of rescues and shelters — thanks to the recent case of Van Dusen v. Commissioner, if you are an employee or volunteer for a legitimate 501(c)(3) charitable organization, you may be able to claim deductions for your unreimbursed expenses.
Fix Our Ferals is a 501(c)(3) organization specializing in trap-neuter-release (TNR) for cats living on the streets or in the wild. If any of the cats were tame, Fix Our Feral volunteers would try to find adopters for those cats. Some cats were released to their original locations or other safe locations. Some cats that were elderly, injured or feral stayed with the volunteers for extended times or indefinitely.
In 2004, Jan Van Dusen volunteered and fostered cats for Fix Our Ferals. Van Dusen had 70 to 80 cats in her 1500 square foot home. Seven of them were her personal pets. Most of the others were Fix Our Feral cats, but some were from other organizations that Van Dusen worked with.
Van Dusen claimed a $12,068 charitable contribution deduction on her 2004 taxes for expenses related to taking care of Fix Our Ferals’ foster cats. The IRS caught up with Van Dusen, claiming she underpaid her taxes. Van Dusen and the IRS worked out some matters, but the issue over the Fix Our Ferals deduction went to trial in the United States Tax Court.
Section 170(a) of the Tax Code allows three types of deductions for charitable contributions if a taxpayer:
Donates money or property directly to the charitable organization.
Places money or property in trust for the charitable organization.
Who performs services for a charitable organization incurs unreimbursed expenses.
Judge Morrison was confronted with whether Van Dusen’s deduction was proper as the third kind of deduction. There was no question Van Dusen provided services for Fix Our Ferals, and that Fix Our Ferals was a legitimate charitable organization. The question boiled down to whether Van Dusen was claiming proper unreimbursed expenses.
Van Dusen sought reimbursement for everything from vet bills, cat food, litter and utilities to reinstating her Costco card and repairing her wet/dry vacuum. As evidence, Van Dusen presented copies of checks, bank account statements, credit card statements, veterinary client account information, a Costco payment history and proof of payment for her water, gas, electricity and waste removal bills. She had thrown away some receipts, and had also intermingled expenses for her own cats, the Fix Our Ferals cats and the cats from other organizations.
In many ways, Judge Morrison was quite forgiving to Van Dusen for her record keeping. He found that her documentation substantially complied with the kinds of records a taxpayer is required to keep. Because Van Dusen had spent the vast majority of her resources on Fix Our Feral cats, he also was not overly distressed about the fact that she had co-mingled expenses with those cats, her own cats and other cats. Judge Morrison easily concluded that 90% of Van Dusen’s vet expenses and pet supplies and 50% of her cleaning supplies and utility bills were deductible foster cat expenses.
However, Judge Morrison went on to say that Van Dusen had to adequately substantiate her deductions. For contributions under $250, Judge Morrison held that Van Dusen had to comply with Tax Code Section 1.170A-13(a), which governs monetary contributions to a charitable organization. Proper substantiation would be:
A cancelled check with the name of the donee charitable organization; or
A receipt from the donee showing the donee’s name and the date and amount of the contribution; or
Other reliable written records showing the donee’s name and the date and amount of the contribution.
For the contributions under $250, Judge Morrison once again gave Van Dusen a break. Van Dusen’s records did not comply strictly with the Tax Code requirements because they did not show Fix Our Ferals’ name – only her name and the name of the store or payee. Nonetheless, Judge Morrison found that her documentation substantially complied with the requirements.
For contributions over $250, Judge Morrison held that Van Dusen also had to comply with Section 1.170A-13(f)(1). This Section requires a donor to produce a contemporaneous written acknowledgment from the donee that:
Describes the services provided by the taxpayer and
Explains whether the donee provided any goods or services in connection with the unreimbursed expenses.
If the donee provided goods or services, the letter must also describe those goods and services and provide a good faith estimate of the goods and services.
Van Dusen had no letters from Fix Our Ferals substantiating any of her expenses over $250, and Judge Morrison cut her no slack on these expenses.
If you think you may be eligible for deductions, here are the lessons to take from this case:
Make sure you are dealing with a legitimate 501(c)(3)! (More on this to come…)
If you work or volunteer with multiple organizations, keep separate records for each organization, and do not co-mingle those expenses with expenses you incur for your own pets.
Keep your receipts and records!
Watch the substantiation requirements, and be particularly careful with contributions over $250. If you make a contribution over $250, get a letter from the charity right away, and make sure it has all the necessary information.
Only deduct unreimbursed expenses. You still cannot take a deduction for services.
I cannot resist one obvious comment about this case. While I think it is wonderful that generous volunteers can now take deductions for animal welfare expenses, I would hate to see this ruling inadvertently encourage animal hoarding. Having 70 to 80 cats in one 1500 square foot residence smacks of a situation right here in Virginia, where Janet Hollins is being prosecuted for having had 77 cats and dogs in her Dale City townhouse. Hollins was found guilty of 77 counts of inadequate care of companion animals last year in General District Court. She she appealed to Circuit Court, and that case is currently set for a three-day jury trial starting on June 20.
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.
UPDATE (3/14/11): The Super Pet Expo has had to make some floor plan revisions. Bean Kinney’s booth will be #721 — right across from our original location.
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 