COMMITTEE SUBSTITUTE

FOR

H. B. 2861


(By Delegates Houston, Marshall,

Yeager and Compton)
(Originating in the Committee on the Judiciary)


[March 5, 1999]


A BILL to amend and reenact sections four and five, article ten, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend and reenact sections six and eight, article twenty, chapter nineteen of said code, all relating to prohibiting the shooting of dogs or cats at county pounds or animal shelters that receive county or state funds; and clarifying criminal penalties for inhumane destruction of cats and dogs.

Be it enacted by the Legislature of West Virginia:
That sections four and five, article ten, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections six and eight, article twenty, chapter nineteen of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS

ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or cruelly treated; hearing; liability for costs; exclusions.

(a) A humane officer shall take possession of any animal, including birds or wildlife in captivity, known or believed to be abandoned, neglected, deprived of necessary sustenance, shelter or medical care or cruelly treated or used, as defined in sections nineteen and nineteen-a, article eight, chapter sixty-one of this code.
(b) The owner, or person in possession, if his or her identity and residence is known, of any animal seized pursuant to subsection (a) of this section, shall be provided written notice of such seizure, their liability for the cost and care of the animal seized as herein provided, and the right to request a hearing before a magistrate in the county wherein the animal was seized. The magistrate court shall schedule any hearing so requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a hearing within five working days of the seizure shall be deemed prima facie evidence of the abandonment of said animal. At the hearing, if requested, the magistrate shall determine if probable cause exists to believe that such animal was abandoned, neglected or deprived of necessary sustenance, shelter or medical care, or otherwise treated or used cruelly as set forth herein.
(c) Upon finding of such probable cause, or if no hearing is requested, if the magistrate finds probable cause based upon the affidavit of the humane officer, the magistrate shall enter an order authorizing any humane officer to maintain possession of the animal pending further proceedings, appeal or the disposition of any criminal charges pursuant to chapter sixty-one of this code.
(d) Any person whose animal is seized and against whom a finding of probable cause is rendered pursuant to this section is liable for the costs of the care, medical treatment and provisions for such animal during any period it remains in the possession of the humane officer.
(e) If, after the humane officer takes possession of the animal pursuant to the finding of probable cause, it is determined by a licensed veterinarian that the animal should be humanely destroyed to end its suffering, the veterinarian may order the animal to be humanely destroyed according to acceptable humane standards and neither the humane officer nor the veterinarian may be subject to any civil or criminal liability as a result of any such determination.
(1) The terms "humanely destroyed" and "destroyed according to acceptable humane standards" as used in this section mean humane euthanasia of dogs and cats in the following order of preference: (A) A lethal solution of sodium pentobarbital, a sodium pentobarbital derivative, or the most recent "euthanasia drug of choice" as defined in section eight, article ten-a, chapter thirty, to be administered by intravenous injection by hypodermic needles by a licensed veterinarian, or by a certified animal euthanasia technician in accordance with the provisions of article ten-a, chapter thirty of this code; and (B) any other procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(2) Emergency method. -- The following method shall be used only in an emergency situation in which the mandatory method of euthanasia of cats and dogs cannot be implemented expeditiously and will cause undue suffering. The following method shall not be used as a substitute for the mandatory method: The animal may be destroyed by shooting, provided that:
(A) The animal is restrained in a humane manner;
(B) The shooting is performed by a highly skilled and trained personnel utilizing a weapon and ammunition of suitable caliber and other characteristics to produce instantaneous death by a single shot; and
(C) Maximum precaution is taken to protect the general public, employees and other animals.
(f) The provisions of this section do not apply to farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl, wildlife or game farm production and management, nor to the humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. § 2131 et seq. and the regulations promulgated thereunder, as both such statutes and regulations are in effect on the effective date of this section.
§7-10-5. Destruction of animals.

(a) Any such officer may lawfully destroy or cause to be destroyed any animal in his charge, when in the judgment of such humane officer, and by the written certificate of a regularly licensed veterinary surgeon, such animal appears to be injured, disabled, diseased past recovery, or the animal is unclaimed.
(b) The terms "destroy" or "cause to be destroyed" as used in this section mean humane euthanasia of dogs and cats in the following order of preference: (1) A lethal solution of sodium pentobarbital, a sodium pentobarbital derivative, or the most recent "euthanasia drug of choice" as defined in section eight, article ten-a, chapter thirty, to be administered by intravenous injection by hypodermic needles by a licensed veterinarian, or by a certified animal euthanasia technician in accordance with the provisions of article ten-a, chapter thirty of this code; and (2) any other procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(c) Emergency method. -- The following method shall be used only in an emergency situation in which the safety of people or other animal life is threatened or in a situation in which the mandatory method of euthanasia of cats and dogs cannot be implemented expeditiously and will cause undue suffering. The following method shall not be used as a substitute for the mandatory method: The animal may be destroyed by shooting, provided that:
(1) The animal is restrained in a humane manner;
(2) The shooting is performed by a highly skilled and trained personnel utilizing a weapon and ammunition of suitable caliber and other characteristics to produce instantaneous death by a single shot; and
(3) Maximum precaution is taken to protect the general public, employees and other animals.
CHAPTER 19. AGRICULTURE.

ARTICLE 20. DOGS AND CATS.
§19-20-6. County dog warden; rules for dog control; prosecution and penalties for violation of ordinances.
(a) The county commission of each county may appoint and employ a county dog warden, and such any number of deputies, for such a time, and at such compensation, as such county commission shall deem consider reasonable and necessary to enforce the provisions of this code with respect to the control and registration of dogs, the impounding, care and destruction of unlicensed dogs. Such The county dog warden may be appointed a deputy assessor for the purpose of collecting the dog tax and registration fees, taking the dog registration and providing the tags authorized by this article. The county dog warden or any deputies may, in the discretion of the county commission, be regularly employed officers or agents of any humane society or society for the prevention of cruelty to animals, organized and operating under the laws of this state and owning, controlling and operating a suitable place within the county for impounding and destroying dogs. In addition to the compensation provided for above, a bounty of fifty cents per dog shall be paid to the county dog warden or deputy who captures an unregistered dog. Such The county dog warden and deputy wardens shall each give bond in a sum of not less than one thousand dollars and not more than two thousand dollars conditioned on the faithful performance of their duties. Such The bonds shall be filed with the county commission by which such the persons are appointed.
The county dog warden and his or her deputies shall patrol the county in which they are appointed and shall seize on sight and impound any dog more than six months of age found not wearing a valid registration tag, except dogs kept constantly confined in a registered dog kennel. They shall be responsible for the proper care and final disposition of all impounded dogs. The county dog warden shall make a monthly report, in writing, to the county commission of his or her county. When any dog shall have has been seized and impounded, the county dog warden shall forthwith give notice to the owner of such the dog, if such the owner be known to the warden, that such the dog has been impounded and that it will be sold or destroyed if not redeemed within five days. If the owner of such the dog be not known to the dog warden, he or she shall post a notice in the county courthouse. The notice shall describe the dog and the place where seized and shall advise the unknown owner that such the dog will be sold or destroyed if not redeemed within five days.
(b) Any county commission may promulgate and enforce such ordinances and rules, and regulations not inconsistent with the provisions of this article, as it considers necessary or convenient for the control and management of all dogs in the county, or any portion thereof, regardless of the age of any such dog: Provided, That the county commissions may promulgate and enforce such ordinances and rules, and regulations to the extent necessary for the implementation of the provisions contained in this article.
(c) The county commission of each county may provide in such an ordinance for the arrest, conviction and punishment of any person who violates the provisions thereof. The county commission of each county may provide in any such ordinance that any person who violates the provisions of the ordinance is guilty of a misdemeanor and, upon conviction thereof, that such the person is subject to a fine or fines. The amount of such the fine for a single violation of any such ordinance may not exceed one hundred dollars. Magistrate courts and circuit courts shall have concurrent jurisdiction with respect to such misdemeanors.
(d) The terms "destruction," "destroy," "cause to be destroyed," "humanely destroyed" and "destroyed according to acceptable humane standards" as used in this section and in section twenty-three, article twenty, chapter nineteen of this code, mean humane euthanasia of dogs and cats in the following order of preference: (1) A lethal solution of sodium pentobarbital, a sodium pentobarbital derivative, or the most recent "euthanasia drug of choice" as defined in section eight, article ten-a, chapter thirty, to be administered by intravenous injection by hypodermic needles by a licensed veterinarian, or by a certified animal euthanasia technician in accordance with the provisions of article ten-a, chapter thirty of this code; and (2) any other procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(e) Emergency method. -- The following method shall be used only in an emergency situation in which the safety of people or other animal life is threatened or in a situation in which the mandatory method of euthanasia of cats and dogs cannot be implemented expeditiously and will cause undue suffering. The following method shall not be used as a substitute for the mandatory method: The animal may be destroyed by shooting, provided that:
(1) The animal is restrained in a humane manner;
(2) The shooting is performed by a highly skilled and trained personnel utilizing a weapon and ammunition of suitable caliber and other characteristics to produce instantaneous death by a single shot; and
(3) Maximum precaution is taken to protect the general public, employees and other animals.
§19-20-8. Impounding and disposition of dogs; costs and fees.
All dogs seized and impounded as provided in this article, except dogs taken into custody under section two of this article, shall be kept housed and fed in the county dog pound for five days after notice of seizure and impounding shall have has been given or posted as required by this article, at the expiration of which time all dogs which have not previously been redeemed by their owners as herein provided, shall be sold or humanely destroyed: Provided, That no dog or cat housed at a shelter or pound that receives county or state funds shall be destroyed by being shot, and the same is hereby declared to be inhumane. No dog sold as herein provided shall be discharged from the pound until such the dog shall have has been registered and provided with a valid registration tag.
The owner, keeper or harborer of any dog seized and impounded under the provisions of this article may, at any time prior to the expiration of five days from the time that notice of the seizure and impounding of the dog shall have has been given or posted as required by this article, redeem the same by paying to the dog warden or his or her authorized agent or deputy all of the costs assessed against such the dog, and by providing a valid certificate of registration and registration tag for such the dog.
Reasonable costs and fees, in such an amount as may be determined from time to time by the county commission, shall be assessed against every dog seized and impounded under the provisions of this article, except dogs taken into custody under section two of this article. Such The cost shall be a valid claim in favor of the county against the owner, keeper or harborer of any dog seized and impounded under the provisions of this article and not redeemed or sold as herein provided, and such the costs shall be recovered by the sheriff in a civil action against such the owner, keeper or harborer.
A record of all dogs impounded, the disposition of such the dogs, and a statement of costs assessed against each dog shall be kept by the dog warden and a transcript thereof shall be furnished to the sheriff quarterly.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.