County Authority in Animal Control Aimee Wall UNC School of Government

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1 County Authority in Animal Control Aimee Wall UNC School of Government Below is a brief overview of the sources of authority for county regulation in four areas of animal control law: cruelty, exotic or dangerous animals, dangerous dogs, and rabies control. A. Animal cruelty 1. Federal: There is no overarching federal animal cruelty law. There are, however, some limited commerce-based federal laws that address care of animals and cruelty, including: i. Animal Welfare Act: Humane handling, care, treatment, and transportation by dealers, research facilities, and exhibitors. 7 U.S.C. 2143; Salzer v. King Kong Zoo, N.C. App (July 7, 2015) (Cherokee County, No. 14-CVD-185) (state cruelty law not preempted by federal law governing humane treatment of animals by licensed zoos). ii. Animal fighting ventures (sponsoring, exhibiting, promoting, transporting, buying/selling implements, etc.). 7 U.S.C iii. Depictions of animal cruelty ( crush videos ). 18 U.S.C State: North Carolina has criminal and civil laws related to animal cruelty. i. Criminal: The general cruelty statute, establishing both misdemeanor and felony offenses, is found in G.S Chapter 14, Article 47 also includes many specific types of cruelty offenses, including animal fighting. ii. Civil: Any person, including a county, has standing to request an injunction for animal cruelty pursuant to Chapter 19A, Article County i. General police power. G.S. 153A Puppy mill ordinance is not preempted by federal law and does not violate equal protection. Missouri Pet Breeders Association v. County of Cook, F. Supp. 3d., 2015 WL (N.D. Ill. May 21, 2015). 2. Tethering ordinance does not violate due process or equal protection because it is rationally related to city s interests in protecting health, safety, and enjoyment. Leibowitz v. City of Mineola, 660 F. Supp. 775 (Tex. 2009). 1 July 20, 2015

2 ii. Specific abuse authority: Counties have authority to adopt ordinances that define and prohibit the abuse of animals. G.S. 153A-127. iii. Limitations: 1. G.S. 160A-174 limitations. Ordinances must not: a. Make unlawful an act, omission or condition which is expressly made lawful by State or federal law; b. Make lawful an act, omission, or condition which is expressly made unlawful by State or federal law; c. Regulate a subject that counties are expressly forbidden to regulate by State or federal law; d. Purport to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation (see also Craig v. Chatham County, 356 N.C. 40 (2002)); or e. Have elements of an offense that are identical to the elements of an offense defined by State or federal law. 2. If H 553 is enacted, a new limitation on standards of care for farm animals will apply: no county ordinance may regulate standards of care for farm animals. (NOTE: this summary is based on language available on 7/20; Senate committee hearing scheduled for 7/22) a. Standards of care refers to issues such as shelter, food, medicine, exercise, and social interaction. b. Farm animals includes cattle, oxen, bison, sheep, swine, goats, horses, ponies, mules, donkeys, hinnies, llamas, alpacas, lagomorphs, ratites, and poultry." B. Exotic and/or Dangerous Animals 1. Federal i. The Animal Welfare Act (see A.1. above). ii. The Lacey Act regulates importation and interstate transport/trade of exotic animals. 18 U.S.C ; 16 U.S.C State: i. Specific laws related to narrow classes of animals, such as venomous reptiles, alligators. ii. Wildlife laws govern conservation of marine and estuarine resources. 2 July 20, 2015

3 1. Local authority to regulate in a way that may impact these resources is not entirely preempted. Nothing in this section is intended to repeal or prevent the enactment of any city or county ordinance otherwise validly authorized which has only a minor and incidental impact on the conservation of marine and estuarine and wildlife resources. G.S (c). iii. Vicious animal authority: A local health director may declare an animal to be vicious and a menace to the public health when the animal has attacked a person causing bodily harm without being teased, molested, provoked, beaten, tortured or otherwise harmed. When an animal has been declared to be vicious and a menace to the public health, the local health director shall order the animal to be confined to its owner's property. However, the animal may be permitted to leave its owner's property when accompanied by a responsible adult and restrained on a leash. G.S. 130A County: i. General police power. G.S. 153A-121. ii. Specific dangerous animal authority: A county may by ordinance regulate, restrict, or prohibit the possession or harboring of animals which are dangerous to persons or property. G.S. 153A-131. Exception related to activities or conditions regulated by the Wildlife Resources Commission. 1. Constitutionality of exotic animal ordinances recognized. See, e.g., Rhoades v. City of Battle Ground, 63 P.3d 142 (Wash. 2002) (ordinance banning all exotics was not overbroad or a taking and did not violate equal protection, substantive or procedural due process); DeHart v. Town of Austin, Ind. 39 F.3d 718 (1994) iii. Board of health rulemaking authority: Must be related to health. 1. A local board of health shall have the responsibility to protect and promote the public health. The board shall have the authority to adopt rules necessary for that purpose. G.S. 130A-39(a). 2. The board of health acts within its rule making powers when it enacts a regulation which (1) is related to the promotion or protection of health, (2) is reasonable in light of the health risk addressed, (3) is not violative of any law or constitutional provision, (4) is not discriminatory, and (5) does not make distinctions based upon policy concerns traditionally reserved for legislative bodies. City of Roanoke Rapids v. Peedin, 124 N.C. App. 578, 587, 478 S.E.2d 528, 533 (1996). 3 July 20, 2015

4 iv. If H 554 is enacted, the possession, sale, transfer, and breeding of dangerous wild animals will be prohibited. Nothing in this Article shall be construed to prohibit a city or county from adopting or enforcing any ordinance or other law that places further restrictions or additional requirements on the possession, sale, transfer, or breeding of dangerous, wild animals. Proposed G.S. 19A-76. (NOTE: this summary is based on language available on 7/20). C. Rabies 1. State: Detailed requirements in G.S. Chapter 130A, Article 6, Part 6 related to i. Vaccination of dogs, cats, and ferrets; ii. Reporting of animal bites; and iii. Response required when a dog, cat, or ferret bites a human. 2. County i. General police power. G.S. 153A Implied preemption? One could argue that the state law occupies the field with respect to rabies control for dogs, cats, and ferrets because of the comprehensive body of state law governing vaccination, bites, and potential exposures. 2. Some gaps exist. For example: a. Does the county want to authorize the health director to require vaccination of other animals? Example: Should it be deemed necessary by the county health director, the board of commissioners, the board of health, or the state public health veterinarian that other animals be inoculated in order to prevent a threatened epidemic or to control an existing epidemic, it shall be unlawful for an owner to fail to provide current inoculation against rabies for that animal. b. When is a rabies vaccination current? Example: A rabies vaccination shall be deemed current for a dog, cat or ferret if the first two (2) doses of vaccine are administered twelve (12) months apart and each subsequent booster dose of vaccine is administered according to the manufacturer's recommended schedule. c. Must cats and ferrets wear tags? Example: Cats are not required to wear the metallic tag referred to in Section, but the owner of a cat must 4 July 20, 2015

5 maintain the rabies vaccination certificate as written evidence to prove that the cat has a current rabies inoculation. d. Should the confinement requirements apply to scratches as well as bites? After a bite, may an owner confine the animal at home? Example: Any dog or cat that has bitten or scratched a human must be quarantined for ten (10) days, either at the home of its owner or keeper, if an Animal Control Officer determines that the public health and safety shall be reasonably maintained by such quarantine, or otherwise in the Department s shelter or in a veterinary hospital at such owner s or keeper's expense. If such dog, cat or ferret is quarantined at the home of its owner or keeper and escapes, any Animal Control Officer shall impound such dog, cat or ferret at the Department s shelter for ten (10) days. e. What must the owner do if the animal dies? Example: The carcass of any animal suspected of dying of rabies, or dying while under observation for rabies, shall be submitted to the County Health Department for the implementation of appropriate diagnostic procedures. ii. Board of health rulemaking authority. This authority explicitly authorizes local rules that are more stringent than state rules. G.S. 130A But this body of law is primarily found in state statute rather than regulation. Is that significant? 2. If this is a complete and integrated regulatory scheme, what is the local health concern the county is addressing? However, county commissioners and local boards of health have no authority under the provisions of N.C.G.S. 130A-39(b) to superimpose additional regulations without specific reasons clearly applicable to a local health need. The Health Board Rules make the bare assertion that in some areas, rules more stringent than those of the Environmental Management Commission are required in order to protect the public health. The Health Board, however, does not provide any rationale or basis for making the restrictions in Chatham County more rigorous than those applicable to and followed by the rest of the State. Craig v. Chatham County, 356 N.C. 40 (2002). 5 July 20, 2015

6 D. Dangerous Dogs 1. Federal: There is no overarching federal law related to dangerous dogs. There is limited federal law related to animal fighting ventures. 7 U.S.C State i. Dangerous dogs: G.S. Chapter 67, Article 1A includes a framework for addressing dangerous and potentially dangerous dogs. ii. Vicious animals: G.S. 130A-200 authorizes the health director to take action related to vicious animals. 3. County: i. General police power. ii. Specific preemption exemption: Nothing in this Article shall be construed to prevent a city or county from adopting or enforcing its own program for control of dangerous dogs iii. Specific dangerous animal authority: A county may by ordinance regulate, restrict, or prohibit the possession or harboring of animals which are dangerous to persons or property. G.S. 153A-131. Exception related to activities or conditions regulated by the Wildlife Resources Commission. iv. In North Carolina, some local ordinances: 1. Clarify definitions of dangerous and potentially dangerous. 2. Add new terms or concepts, such as vicious dogs and sentry dogs. 3. Provide detailed procedures for appeals. 4. Establish detailed confinement requirements for dogs on the owner s property. 5. Require euthanasia of a dangerous dog in some circumstances. 6 July 20, 2015

7 Preemption Exercise Compare state law to the county ordinance. Is the ordinance preempted by state law? State Law Rabies 130A-185. Vaccination required. (a) Vaccination required. - The owner of an animal listed in this subsection over four months of age shall have the animal vaccinated against rabies: (1) Cat. (2) Dog. (3) Ferret. 130A-192. Animals not wearing required rabies vaccination tags. (a) The Animal Control Officer shall canvass the county to determine if there are any animals not wearing the required rabies vaccination tag. If an animal required to wear a tag is found not wearing one, the Animal Control Officer shall check to see if the owner's identification can be found on the animal. If the animal is wearing an owner identification tag with information enabling the owner of the animal to be contacted, or if the Animal Control Officer otherwise knows who the owner is, the Animal Control Officer shall notify the owner in writing to have the animal vaccinated against rabies and to produce the required rabies vaccination certificate to the Animal Control Officer within three days of the notification. If the animal is not wearing an owner identification tag and the Animal Control Officer does not otherwise know who the owner is, the Animal Control Officer may impound the animal. County Ordinance: Sec.. Failure to vaccinate; penalty. The owner of a dog or cat not having a current rabies vaccination shall be subject to a civil penalty as determined in this Chapter if such owner does not produce a valid and current rabies vaccination tag or form within 5 days of the demand for same by an Animal Enforcement Officer or law enforcement officer. State Law: GS (b) The provisions of this Article do not apply to: Dangerous Dogs (1) A dog being used by a law enforcement officer to carry out the law enforcement officer's official duties; 7 July 20, 2015

8 (2) A dog being used in a lawful hunt; (3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or (4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime. County Ordinance: Sec.. - Exceptions. This article does not apply to the following: (1) A law enforcement dog or guard dog being used by a law enforcement officer or bona fide professional security guard to carry out the law enforcement officer's or security guard's official duties or professional responsibilities; (2) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of or under the control of its owner, keeper or harborer, and the damage or injury was to a specific type of domestic animal appropriate to the work of the dog; or (3) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury was tormenting, abusing, or assaulting the dog; had tormented, abused or assaulted the dog; or was committing or attempting to commit a crime. Animal Cruelty State Law: Cruelty to animals; construction of section. (a) If any person shall intentionally overdrive, overload, wound, injure, torment, kill, or deprive of necessary sustenance, or cause or procure to be overdriven, overloaded, wounded, injured, tormented, killed, or deprived of necessary sustenance, any animal, every such offender shall for every such offense be guilty of a Class 1 misdemeanor. (a1) If any person shall maliciously kill, or cause or procure to be killed, any animal by intentional deprivation of necessary sustenance, that person shall be guilty of a Class H felony. (b) If any person shall maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill, or cause or procure to be tortured, mutilated, maimed, cruelly beaten, disfigured, poisoned, or killed, any animal, every such offender shall for every such offense be guilty of a Class H felony. However, nothing in this section shall be construed to increase the penalty for cockfighting provided for in G.S (c) As used in this section, the words "torture", "torment", and "cruelly" include or refer to any act, omission, or neglect causing or permitting unjustifiable pain, suffering, or death. As used 8 July 20, 2015

9 in this section, the word "intentionally" refers to an act committed knowingly and without justifiable excuse, while the word "maliciously" means an act committed intentionally and with malice or bad motive. As used in this section, the term "animal" includes every living vertebrate in the classes Amphibia, Reptilia, Aves, and Mammalia except human beings. However, this section shall not apply to the following activities: (1) The lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission, except that this section shall apply to those birds exempted by the Wildlife Resources Commission from its definition of "wild birds" pursuant to G.S (15a). (2) Lawful activities conducted for purposes of biomedical research or training or for purposes of production of livestock, poultry, or aquatic species. (2a) Lawful activities conducted for the primary purpose of providing food for human or animal consumption. (3) Activities conducted for lawful veterinary purposes. (4) The lawful destruction of any animal for the purposes of protecting the public, other animals, property, or the public health. (5) The physical alteration of livestock or poultry for the purpose of conforming with breed or show standards. County Ordinance: Sec.. Cruelty to animals. (a) Unlawful conduct. It shall be unlawful for any person to abuse, molest, torture, torment, deprive of necessary sustenance, cruelly beat, mutilate or kill, wound, injure, poison, abandon or subject to conditions which cause physical pain, suffering, disability or death to any animal, or to cause or procure such action. The words "torture" and "torment" shall be held to include every act, omission or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted; but such terms shall not be construed to prohibit the lawful shooting of birds, deer and other game for human food; nor to prohibit the animal control department or its agents or veterinarians from destroying dangerous, unwanted or injured animals in a humane manner. (b) Surgery. It shall be unlawful for any person other than a duly licensed veterinarian to perform invasive surgery upon a domestic animal. (c) Rescue. Any animal control officer or law enforcement officer shall have the authority to rescue any animal that appears to be suffering from a serious medical emergency. The rescued animal shall be provided with immediate veterinary care if the officer deems such care to be necessary to prevent physical pain, suffering, disability or death to the animal. The animal's owner shall be responsible for all expenses incurred for the rescue and subsequent treatment of the animal. 9 July 20, 2015

SUMMARY Authorizes a local government to establish a program for the managed care of

SUMMARY Authorizes a local government to establish a program for the managed care of feral cat colonies. (BDR 20-11) FISCAL NOTE: Effect on Local Government: No. Effect on the State: No. AN ACT relating