ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 723
(By Senators Edgell, Love, Facemyer, Weeks, Guills, Unger,
Dempsey, Hunter and Ross)
____________
[Originating in the Committee on Finance;
reported March 2, 2004.]
_____________
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §19-9B-1, §19-9B-2,
§19-9B-3, §19-9B-4, §19-9B-5, §19-9B-6, §19-9B-7, §19-9B-8,
§19-9B-9, §19-9B-10, §19-9B-11, §19-9B-12, §19-9B-13,
§19-9B-14, §19-9B-15, §19-9B-16, §19-9B-17, §19-9B-18,
§19-9B-19, §19-9B-20, §19-9B-21, §19-9B-22 and §19-9B-23, all
relating to regulating the possession and sale of domestic and
exotic animals; creating animal health safety control board
and technical advisory committee; creating special revenue
fund; duties; rulemaking; jurisdiction of member agencies;
bonding requirements; requiring pet shop registration;
requiring recordkeeping; requiring possession permit to keep
certain animals; permitting requirements; exemptions;
establishing care and treatment requirements; requiring insurance; authorizing inspections; denial, suspension or
revocation of permits; seizing and quarantining animals; and
establishing civil and criminal penalties and fees.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §19-9B-1, §19-9B-2,
§19-9B-3, §19-9B-4, §19-9B-5, §19-9B-6, §19-9B-7, §19-9B-8,
§19-9B-9, §19-9B-10, §19-9B-11, §19-9B-12, §19-9B-13, §19-9B-14,
§19-9B-15, §19-9B-16, §19-9B-17, §19-9B-18, §19-9B-19, §19-9B-20,
§19-9B-21, §19-9B-22 and §19-9B-23, all to read as follows:
ARTICLE 9B. ANIMAL HEALTH SAFETY CONTROL ACT.
§19-9B-1. Purpose; short title.
(a) It is the intent of the Legislature to prevent the
introduction or spread of disease or parasites harmful to humans,
wildlife, livestock, poultry and other animals; to prevent the
escape or release of an animal injurious to or competitive with the
state's agricultural and forestry industries, wildlife and other
natural resource interests; to prevent the mistreatment of animals;
and to ensure the physical safety of humans by regulating the
possession and sale of domestic and exotic animals.
(b) This article may be cited as the "West Virginia Animal
Health Safety Control Act".
§19-9B-2. Definitions.
As used in this article:
(1) "Animal" means wildlife, domestic animals and exotic
animals as defined by this article.
(2) "Board" means the animal health safety control board.
(3) "Domestic animal" means an animal which, through extremely
long association with humans, has been bred to a degree that
resulted in genetic changes affecting the temperament, color,
conformation or other attributes of the species to an extent that
makes the animal unique and distinguishable from wild members of
the species and the animal has federally approved biologics for the
treatment and prevention of disease.
(4) "Exotic animal" means an animal, other than a domestic
animal or wildlife, and includes a crossbreed of an animal that
does not occur naturally either presently or historically within
the boundaries of this state, as well as all species listed as
threatened or endangered in accordance with 16 U. S. C. §1533 not
presently or historically native to this state.
(5) "Person" means, but is not limited to, an individual,
partnership, limited partnership, corporation, organization, firm,
limited liability company, joint venture, association, trust,
estate and any officer, member, shareholder, director, employee,
agent or representative who is under a duty to perform or is
responsible for the performance of an act prescribed by the
provisions of this article.
(6) "Pet shop" means a facility where an animal is kept for the purpose of sale or breeding.
(7) "Possess" means to own, harbor, keep, release, exhibit,
bring into the state, offer for sale, offer for trade or have
custody or control of an animal.
(8) "Possessor" means the person who owns, harbors, keeps,
releases, exhibits, brings into the state, offers for sale, offers
for trade or has custody or control of an animal.
(9) "Sale" means and includes, but is not limited to, any
transfer of ownership or title, whether for money, exchange for
other property or services or without any remuneration.
(10) "Wildlife" means wildlife and game fish, as those terms
are defined in section two, article one, chapter twenty of this
code, and fish and all animals commonly accepted and documented to
live in the wild as part of the present or historic natural fauna
of West Virginia.
§19-9B-3. Board created; composition; duties.
(a) The animal health safety control board is created.
(b) The board shall consist of three members: The
commissioner of the department of agriculture, or his or her
designee, who shall serve as chair; the director of the division of
natural resources or his or her designee; and the commissioner of
the bureau for public health or his or her designee.
(c) The board may:
(1) Establish requirements for the operation of pet shops, including standards of care for the animals offered for sale or
breeding;
(2) Establish permit requirements for the possession of exotic
animals and grant, deny, suspend, revoke and reinstate permits;
(3) Establish standards for the care and treatment of exotic
animals;
(4) Prohibit the importation of any domestic or exotic animal
that threatens the public health and safety, endangers wildlife or
livestock or may be injurious to the agricultural and forestry
industries or other natural resource interests;
(5) Investigate alleged violations of the provisions of this
article, applicable rules and orders and final decisions of the
board;
(6) Conduct necessary hearings;
(7) Cooperate with appropriate state and federal officials in
the investigation and enforcement of violations of this article or
comparable acts of other states or the federal government;
(8) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code;
(9) Seize, quarantine or destroy an animal which poses a
threat to the health and safety of humans or other animals or plant
life;
(10) Grant exemptions from the requirements of this article;
and
(11) Take all other actions necessary and proper to effectuate
the purposes of this article.
(d) The members of the board may delegate the duties set forth
in this article to other members of their staff.
§19-9B-4. Technical committee created; composition; duties.
(a) The technical committee to the board is created.
(b) The technical committee shall consist of nine members:
Three members will be representatives of the department of
agriculture designated by the commissioner of agriculture; three
members will be representatives of the division of natural
resources designated by the director of natural resources; and
three members will be representatives of the bureau for public
health designated by the commissioner of the bureau for public
health.
(c) The technical committee may make recommendations to and
advise the board on matters within its jurisdiction.
§19-9B-5. Establishment of special revenue fund; authorized
expenditures.
There is created in the state treasury a special revenue fund
to be known as the "animal health safety fees fund" which shall
consist of all fees, civil penalties, assessed costs, any
appropriations of moneys to the fund made by the Legislature and
all interest or other return earned from investment of the fund.
Expenditures from the fund shall be made by the commissioner of agriculture for the purposes set forth in this article. Any
balance, including accrued interest and other returns, in the fund
at the end of each fiscal year shall not expire to the general fund
but shall remain in the fund and be expended as provided by this
section.
§19-9B-6. Rule-making authority.
(a) The board may propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to implement the provisions of this
article, including, but not limited to:
(1) The operation of pet shops;
(2) The standards of care for domestic and exotic animals
offered for sale;
(3) The importation and transportation of domestic and exotic
animals;
(4) The possession of exotic animals;
(5) The permitting process;
(6) The amount of any fee authorized by the provisions of this
article;
(7) The keeping, maintenance and inspection of records;
(8) The seizure, quarantine or destruction of an animal;
(9) The minimum caging requirements for each animal species or
family including all requirements necessary for the safe and humane
caging of an exotic animal and safety of humans and other animals; and
(10) The procedures for the imposition and collection of
bonds, civil penalties and assessed costs.
(b) The board may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code to implement the provisions of this article.
§19-9B-7. Jurisdiction of member agencies.
(a) The department of agriculture is responsible for the
administration and enforcement of the provisions of this act.
(b) The bureau for public health may examine and test a
domestic or exotic animal at any time when there is probable cause
to believe that the animal is harboring disease or parasites
suspected of endangering public health.
(c) The division of natural resources may examine and test a
domestic or exotic animal or wildlife at any time when there is
probable cause to believe that the animal may pose a threat to
wildlife.
(d) Nothing in this article shall affect or abrogate the
authority of the department of agriculture, the bureau for public
health or the division of natural resources to carry out the duties
set forth in chapters nineteen, sixteen and twenty of this code,
respectively. Each agency shall advise the board of any action
taken to protect the health and safety of humans and animals under
their jurisdiction from any harm posed by an animal.
(e) Each member agency may immediately seize, quarantine or
destroy an animal which poses a threat to humans, other animals,
wildlife or the state's agricultural or forestry industries or
other natural resource interests. The agency shall advise the
board of its action.
§19-9B-8. Costs of care for seized animal; bond; placement.
(a) The owner of an animal seized because it poses a threat to
the health and safety of humans or other animals is liable for all
costs of treatment and care while the animal is under the control
of the board.
(b) The owner of the seized animal shall post a bond, within
five days of the date of the seizure, with the board in an amount
determined by the board which is sufficient to provide for the
reasonable costs of treatment and care of the animal during the
period of confinement. The board may prescribe the form of the bond
by rule.
(c) The board shall determine the appropriate placement of the
seized animal based upon the threat posed by the animal.
§19-9B-9. Pet shop registration required.
Effective the first day of January, two thousand five, no
person shall operate a pet shop in this state unless he or she has
registered with the board.
§19-9B-10. Registration; renewal; fee.
(a) A pet shop operator shall register on forms supplied by the board and provide all information required by the board by
rule.
(b) Registrations expire on the thirtieth day of June of each
year and must be renewed annually. The board shall mail renewal
forms to current registrants. The failure to receive the renewal
form does not relieve a registrant of the obligation to renew. The
board may require a late fee when a renewal is received more than
sixty days after the expiration of the current registration.
(c) A pet shop operator shall pay the applicable registration
or renewal fee.
§19-9B-11. Recordkeeping; notifications required.
(a) Pet shops shall keep all records required to be kept by
the board.
(b) Pet shops shall notify the board of the sale of an animal
as required by the board.
(c) Pet shops shall notify all customers purchasing an animal
of the permitting requirements of this article.
§19-9B-12. Possession, breeding of exotic animals prohibited.
It is unlawful for any person to possess or breed an exotic
animal, except in compliance with this article.
§19-9B-13. Possession permit.
(a) No person may own or possess an exotic animal unless the
person applies for and is granted a possession permit.
(1) A person who possesses an exotic animal on the effective date of this act shall apply for a possession permit within ninety
days of the effective date of this article.
(2) A person buying an exotic animal shall apply for a
possession permit within ten days of the date of purchase.
(b) A possession permit shall be renewed annually.
(c) An applicant shall file an application to receive a
possession permit with the board on forms supplied by the board.
The application shall include, but is not limited to:
(1) The name, address and telephone number of the applicant;
(2) A description of each exotic animal, including the
scientific name, sex, age, color, weight and any distinguishing
marks or coloration that would aid in the identification of the
animal;
(3) A photograph of the exotic animal;
(4) The exact location and a detailed description of the
holding facility where the exotic animal is to be kept;
(5) The name, address and telephone number of the person from
whom the applicant obtained the exotic animal;
(6) The identification number of the exotic animal required in
accordance with the provisions of section fifteen of this article
or a verified statement from a veterinarian that placement of an
identification number would endanger the exotic animal or an
exemption from this requirement granted by the board;
(7) The name, address and phone number of the veterinarian who is to provide veterinary care to the exotic animal; and
(8) Any additional information required by the board.
(d) The application for a possession permit shall be
accompanied by the applicable permit fee.
(e) The board shall not grant a permit unless it finds that:
(1) The requirements set forth in subsection (a) of this
section are met;
(2) The applicant has not been convicted of or found
responsible for violating a state or federal law prohibiting
cruelty, neglect or mistreatment of an animal or any state or
federal law relating to the possession of wildlife or endangered
species;
(3) The facility and the conditions in which the exotic animal
will be kept are in compliance with this article; and
(4) The applicant has obtained liability insurance for the
possession of an exotic animal as required by section eighteen of
this article.
(f) A permit holder shall notify the board of any changes in
the information on the permit, including the death of the exotic
animal and any additions through births or acquisitions throughout
the permit period.
(g) Possession permits expire on the thirtieth day of June of
each year and must be renewed annually. The board shall mail
renewal forms to current permit holders. The failure to receive the renewal form does not relieve the permit holder of the
obligation to renew. The board may require a late fee when a
renewal is received more than sixty days after the expiration of
the current permit.
(h) The board shall keep records of the permits issued.
§19-9B-14. Exemptions.
(a) The possession permit provisions of this act do not apply
to:
(1) Institutions accredited by the American zoo and aquarium
association (AZA);
(2) A facility subject to the provisions of article twenty or
twenty-three of this chapter;
(3) A licensed or accredited research or medical institution;
(4) A veterinary hospital or clinic; or
(5) A licensed or accredited educational institution.
(b) These facilities are subject to all other provisions of
this article unless determined exempt by the board.
§19-9B-15. Identification number.
The possessor of an exotic animal shall have an identification
number placed in the exotic animal, at his or her expense, by or
under the supervision of a veterinarian in accordance with a method
prescribed by the board.
§19-9B-16. Caging requirements.
(a) The board shall establish specific caging requirements for the keeping and confinement of exotic animals. Persons possessing
exotic animals shall keep and confine the exotic animal in strict
compliance with the caging requirements established by the board.
(b) All caging requirements shall ensure that the exotic
animal is confined in a primary enclosure that protects the
public's safety and health and ensures the safety and well-being of
the exotic animal.
§19-9B-17. Care and treatment of exotic animals.
(a) An exotic animal shall not be tethered, leashed or chained
outdoors or allowed to run at-large.
(b) No exotic animal shall be released into the wild.
(c) No exotic animal shall be mistreated, neglected, abandoned
or deprived of necessary food, water and sustenance.
(d) A person transporting an exotic animal in a vehicle shall
keep the animal securely caged in the vehicle at all times.
(e) Each possessor of an exotic animal shall have a plan for
the quick and safe recapture of the exotic animal if it escapes and
a plan for the destruction of the exotic animal if recapture
becomes impossible. This plan is not a substitute for notification
of law-enforcement officials required by section eighteen of this
article and the plan is not binding on law-enforcement officials
who may be required to destroy the animal if considered necessary
to protect the public health and safety.
(f) If a possessor of an exotic animal realizes that he or she can no longer care for the exotic animal, the possessor shall
contact an approved animal rescue facility or an American zoo and
aquarium association accredited facility for possible placement of
the animal. The proper permits shall be obtained to transfer any
animal. If the possessor is unable to care for the exotic animal
and cannot find a permitted facility to accept the exotic animal,
the animal shall be humanely euthanized at the possessor's expense.
§19-9B-18. Insurance; signs; notification.
(a) A possessor of an exotic animal shall maintain liability
insurance in an amount of not less than one hundred thousand
dollars for each occurrence and shall provide a copy of the policy
annually to the board.
(b) The possessor of an exotic animal shall post and display,
at each possible entrance to the premises, a conspicuous sign,
clearly legible and easily readable by the public warning that
there is an exotic animal on the premises. In addition, the
possessor shall conspicuously display a sign with a warning symbol
that informs children of the presence of an exotic animal. The
content and size of the sign shall be prescribed by the board.
(c) If any exotic animal escapes or is released, either
intentionally or unintentionally, the possessor of the exotic
animal shall immediately contact a law-enforcement officer of the
city or county in which the possessor resides and the department of
agriculture to report the escape or release. The possessor is liable for all expenses associated with efforts to recapture the
animal. The animal may be destroyed if necessary to protect the
public health or safety.
§19-9B-19. Public contact.
Unless specifically authorized by the board, a possessor may
not take an exotic animal to a public place except to a
veterinarian or a veterinarian clinic.
§19-9B-20. Inspection.
During reasonable hours, the employees of the department of
agriculture, the division of natural resources or the bureau for
public health may enter any premises to access domestic or exotic
animals for the purpose of inspection. No person shall obstruct or
hinder the employees in the discharge of their duties to enforce
this article.
§19-9B-21. Denial of possession permit; appeal.
(a) If the board finds that an applicant for an original or
renewal possession permit does not meet the requirements set forth
in this article, it may deny the applicant a possession permit. The
board shall give the applicant written notice of the denial and the
reasons for this denial.
(b) If the board finds that a person has not complied with
this article the board may suspend or revoke the possession permit.
The board shall give the possessor written notice of the suspension
or revocation and the reasons for the suspension or revocation.
(c) A person who is denied a possession permit, denied a
renewal of a possession permit or who has had a permit suspended or
revoked shall be afforded a hearing before the board to be held in
accordance with the contested case provisions of article five,
chapter twenty-nine-a of this code.
§19-9B-22. Seizure; return; bond.
(a) An exotic animal or an animal possessed by a pet shop may
be immediately seized by the board if:
(1) The possessor does not have a possession permit as
required by section twelve of this article;
(2) The possessor does not secure and maintain liability
insurance as required by section eighteen of this article;
(3) The possessor is not in compliance with the provisions of
this article and rules promulgated under this article; or
(4) The animal poses a threat to humans, other animals,
wildlife or the state's agricultural or forestry industries or
other natural resource interests.
(b) An exotic animal or an animal possessed by a pet shop
which was seized by the board may be returned to the possessor only
if the possessor has a possession permit, is in compliance with
this article and rules promulgated under this article and the
animal poses no threat to humans or other animals.
(c) If an exotic animal or an animal possessed by a pet shop
is seized under this section, the possessor shall post bond in accordance with the requirements of section eight of this article.
§19-9B-23. Penalties for violation of article.
(a) Any person violating a provision of this article or a rule
promulgated under this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars for the first offense
and for each subsequent offense, shall be fined not less than five
hundred dollars nor more than one thousand dollars or imprisoned in
the county or regional jail not more than six months, or both.
Magistrates have concurrent jurisdiction with circuit courts to
enforce the provisions of this article.
(b) Any person violating the provisions of this article or a
rule promulgated pursuant to this article may be assessed a civil
penalty by the board. In determining the amount of the civil
penalty, the board shall give due consideration to the history of
previous violations by the person, the seriousness of the
violation, including any hazards to agriculture, natural resources
or public health in this state and the demonstrated good faith of
the person charged in attempting to achieve compliance with this
article after written notification of the violation.
(1) The board may assess a penalty of not more than one
hundred dollars for the first offense or less serious violation, as
determined by the board, and not more than one thousand dollars for
a serious, repeat or intentional violation as determined by the board.
(2) In addition to the civil penalty, the board may assess the
costs to the state to recover the animal, house the animal, dispose
of the animal or moneys otherwise expended by the state to control
the spread of or to prevent the introduction of disease and
parasites.
(3) The board may negotiate and enter into a settlement
agreement for the payment of civil penalties and assessed costs.
(4) The civil penalty and assessed costs are payable to the
state of West Virginia and are collectable in any manner authorized
by law for the collection of debts. Any person liable to pay a
civil penalty or any assessed costs who neglects or refuses to pay
the civil penalty or assessed costs within thirty days of written
notice of demand for payment shall be assessed interest at the rate
of ten percent per year from the date the penalty and assessed
costs were imposed to the date of payment. The penalty, costs and
interest constitute a lien in favor of the state of West Virginia
and shall attach on the person's property when a lien is properly
recorded in the county in which the property is situated. There
shall be no cost as a condition precedent to recording.
(5) All penalties and assessed costs collected pursuant to
this act shall be deposited in the exotic animal fees fund created
under section five of this article.
(6) No state court may allow the recovery of damages for administrative action taken if the court finds that there was
probable cause for the action. In the event that a court
determines that no probable cause existed for an action and that
compensation is necessary, the compensation shall not exceed the
fair market value of the animal at issue. The board shall pay
damages as determined by a state court provided funds are
available.