COMMITTEE SUBSTITUTE
FOR
H. B. 4025
(By Delegates Houston and Fleischauer)
(Originating in the Committee on the Judiciary)
[January 31, 2000]
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; to amend and reenact
sections six, eight and twelve, article twenty, chapter
nineteen of said code; to amend section twenty-seven,
article three, chapter sixty-one of said code; and to amend
section nineteen, article eight, chapter sixty-one of said
code, all relating to humane treatment of animals; providing
for humane destruction of animals by humane officers, animal
shelters and dog wardens; modifying applicability of
criminal penalties for mistreating, poisoning or otherwise
harming certain animals; requiring the provision of shelter
to animals in certain conditions; increasing criminal
penalties for killing, stealing, poisoning or otherwise
harming certain animals; providing for bonding of persons whose animal has been seized for care cost of animals; and
providing limited punitive damages for loss of animals in
certain circumstances.
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; that sections six, eight
and twelve of article twenty, chapter nineteen of said code be
amended and reenacted; that section twenty-seven, article three,
chapter sixty-one of said code be amended and reenacted; and that
section nineteen, article eight, chapter sixty-one, 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 the seizure, their liability for the cost and care of the
animal seized as herein provided in this section, and the right
to request a hearing before a magistrate in the county wherein
where 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 is prima facie evidence of the abandonment of
said the animal. At the hearing, if requested, the magistrate
shall determine if probable cause exists to believe that such the
animal was abandoned, neglected or deprived of necessary
sustenance, shelter or medical care, or otherwise treated or used
cruelly as set forth herein in this section.
(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. During this period the humane officer, in cooperation with
the humane society, is authorized to place the animal in a safe
private home or other safe private setting for foster care in lieu of retaining the animal in an animal shelter. The person
whose animal is seized is liable for all costs of the care of the
seized animal.
(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 the animal during any period it remains in
the possession of the humane officer. The magistrate may require
the person liable for these costs to post bond to provide for the
maintenance of the seized animal.
(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 determines 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, humane society representative, animal foster care
provider nor the veterinarian may be is subject to any civil or
criminal liability as a result of any such determination. such
action.
(1) The term "humanely destroyed" as used in this section
means:
(A) humane euthanasia of an animal by hypodermic injection
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, or
(B) other humane euthanasia procedure approved by the
American Veterinary Medical Association, the Humane Society of
the United States, or the American Humane Association.
(2) In cases of emergency, where euthanasia of cats and dogs
cannot be implemented expeditiously and will cause undue
suffering, the animal may be destroyed by shooting, if:
(A) The shooting is performed by someone properly trained,
using a weapon and ammunition of suitable caliber and other
characteristics to produce instantaneous death by a single shot;
and
(B) Maximum precaution is taken to minimize the animal's
suffering and 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 enactment of this section.
§7-10-5. Destruction of animals.
Any such humane officer may lawfully humanely destroy or
cause to be humanely destroyed any animal in his or her charge,
in a manner consistent with the provisions of section four of
this article, when in the judgment of such the humane officer,
and by the written certificate of a regularly licensed veterinary
surgeon, such the animal appears to be injured, disabled,
diseased past recovery or the animal is unclaimed.
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 the county
commission shall deem considers 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 by the county commission, 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 is 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 is 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 of the county, regardless of the
age of any such the 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 of the ordinance. The
county commission of each county may provide in any such the
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 the
ordinance may not exceed one hundred dollars. Magistrate courts
and circuit courts shall have concurrent jurisdiction with respect to such the misdemeanors.
(d) The county dog warden must "humanely destroy" all dogs
when authorized by this section. If case of emergency, a
properly trained dog warden or other qualified individual may
shoot a dog when the euthanasia of the dog cannot be implemented
expeditiously and will cause undue suffering of the animal, using
a weapon and ammunition of suitable caliber and other
characteristics to produce instantaneous death by a single shot
while using maximum precaution to minimize the animal's suffering
and protecting the general public.
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 in this article, shall be sold or
humanely destroyed. pursuant to the provisions of section six of
this article. No dog sold as herein provided shall in this
section may 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 dog 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 to 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 in this
section, 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.
§19-20-12. Animals protected by law; unlawful killing thereof;
aggrieved owner's remedy; penalties; penalties for unlawful stealing of pets.
(a) Any dog which is registered, kept and controlled as
provided in this article or any dog, cat, or other animal or any
reptile which is owned, kept and maintained as a pet by any
person, irrespective of age, shall be protected by law; and any
person who shall intentionally and unlawfully kill, injure or
poison any such dog, cat, other animal, or any reptile as
specified above, or shall, in any other manner, intentionally and
unlawfully cause the death or injury of any such dog, cat, other
animal or any reptile shall be is guilty of a misdemeanor and,
upon conviction thereof, shall be ordered to provide public
service for not less than thirty nor more than ninety days, or
fined not more than three hundred dollars, or both fined not less
than five hundred dollars nor more than two thousand dollars, or
confined in the county or regional jail not more than one year,
or both fined and imprisoned. Any person whose dog, cat, other
animal or reptile as specified herein shall be killed or injured
wrongfully or unlawfully by any other person, or whose animal is
stolen as provided in subsection (b) of this section shall have
a right of action against the person who shall so kill, steal or
injure such dog, cat, animal, or reptile and where the animal
was stolen, or the killing or injuring was intentional, damages
may include punitive damages not to exceed one thousand dollars,
plus costs and attorney fees. but in no case involving a dog can recovery be had in excess of the assessed value of such dog.
(b) Any person who shall intentionally and unlawfully steal
a dog, cat, other animal or reptile as specified in subsection
(a) of this section, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be ordered to provide public service
for not less than thirty nor more than ninety days or fined not
less than three hundred nor more than five hundred dollars, or
both fined not less than five hundred dollars nor more than two
thousand dollars, or confined in the county or regional jail not
more than one year, or both fined and imprisoned. Any person
violating the provisions of this subsection or subsection (a),
shall for second or subsequent offense, be is guilty of a
misdemeanor felony and, upon conviction thereof, shall be
confined in the county jail for a period of not less than ninety
days nor more than six months, or shall be ordered to provide
public service for not more than one year, and fined not less
than one thousand dollars imprisoned in a state correctional
facility not less than one nor more than ten years. In no case
can any action or prosecution relating to death, injury or theft
of a dog under the provisions of this section be maintained if
the dog concerned shall not have been duly registered pursuant to
the provisions of this article or owned and kept pursuant to the
provisions of this section or owned and kept pursuant to the
provisions of this section at the time the cause of action shall have arisen. Nothing in this section may be construed to
prohibit a person from lawfully killing a dog pursuant to section
sixteen of this article.
(c) The commissioner of agriculture is hereby authorized to
designate such reasonable number of his or her present employees
as may be necessary to investigate alleged incidents of the
unlawful stealing of dogs, other domestic animals or reptiles as
specified in subsection (a) of this section, alleged incidents of
cruelty to such animals or reptiles and the alleged incidents of
the unlawful stealing of such animals or reptiles for the purpose
of sale to medical or other research companies. Such The
deputies shall make the results of their investigations known to
any law-enforcement officers who have authority to enforce the
provisions of this article.
(d) It shall be the duty of all members of the department of
public safety West Virginia state police, sheriffs, and other
police officers to aid in the enforcement of the provisions of
this article, and, for services rendered in the enforcement
thereof, such persons shall be entitled to fees in the amounts
set forth in section eight of this article. Such The fees shall
be paid by the county commission from the dog and kennel fund.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-27. Malicious killing of animals by poison or otherwise; penalty.
If a person maliciously knowingly and without the consent of
the owner administers poison to, or exposes poison with the
intent that it should be taken by, any horse, cow or other
animal of another person, or if any person maliciously maims,
kills, or causes the death of any horse, cow or other animal of
another person, of the commercial value of one hundred dollars or
more, the person is guilty of a felony, and, upon conviction,
shall be imprisoned in the penitentiary state correctional
facility not less than one year nor more than ten years; and, if
the horse, cow or other animal is of less commercial value than
one hundred dollars, the person is guilty of a misdemeanor and,
upon conviction, shall be confined in the county or regional jail
not more than three months one year and fined not more than five
hundred dollars less than five hundred dollars nor more than two
thousand dollars: Provided, That this section shall not be
construed to include dogs. Any person convicted of a second or
subsequent offense pursuant to this section is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility no less than one year nor more than ten
years.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.
(a) If any person cruelly mistreats, abandons or withholds proper sustenance, including food, water, shelter or medical
treatment necessary to sustain normal health and fitness or to
end suffering or abandons any animal to die, during extreme
weather conditions fails to take special measures to prevent
freezing, heat exhaustion or other severe injury, or uses, trains
or possesses any domesticated animal for the purpose of seizing,
detaining or maltreating any other domesticated animal, he or she
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one five hundred nor more than one two
thousand dollars, or confined in the county or regional jail not
more than six months one year, or both so fined and confined
imprisoned.
(b) Any person, other than a licensed veterinarian or a
person acting under the direction or with the approval of a
licensed veterinarian, who knowingly and willfully administers or
causes to be administered to any animal participating in any
contest any controlled substance or any other drug for the
purpose of altering or otherwise affecting said animal's
performance is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one five hundred nor more
than one two thousand dollars, or confined in the county or
regional jail not more than one year, or both fined and
imprisoned.
(c) Any person convicted of a violation of this section shall forfeit his or her interest in any such animal and all
interest in such animal shall vest in the humane society or
county pound of the county in which said conviction was rendered,
and such person shall, in addition to any fine imposed, be liable
for any costs incurred or to be incurred by the humane society or
county pound as a result.
(d) For the purpose of this section, the term "controlled
substance" shall have the same meaning ascribed to it by
subsection (d), section one hundred one, article one, chapter
sixty-a of this code.
(e) The provisions of this section do not apply to lawful
acts of hunting, fishing, trapping or animal training or 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 or wildlife
or game farm production and management, nor to 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.
(f) Notwithstanding the other provisions of subsection (a)
of this section, any person convicted of a second violation of
said subsection under the provisions of this section is guilty of
a misdemeanor and shall be confined in jail for a period of not less than ninety days nor more than one year, fined not less than
five hundred dollars nor more than one thousand dollars, or both.
Any person convicted of a third or subsequent violation under
this section or any combination of violations under this section;
section twelve, article twenty, chapter nineteen relating to
unlawful killing, injuring, poisoning or stealing of protected
animals or; section twenty-seven, article three, chapter sixty-
one relating to malicious killing of animals by poison or
otherwise is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less
than one nor more than ten years. The incarceration set forth in
this subsection shall be mandatory unless the provisions of
subsection (g) are complied with.
(g) Notwithstanding any provision of this code to the
contrary, no person who has been convicted of a second or
subsequent violation of the provisions of subsection (a) of this
section may be granted probation until the defendant has
undergone a complete psychiatric or psychological evaluation and
the court has reviewed such evaluation. Unless the defendant is
determined by the court to be indigent, he or she shall be
responsible for the cost of said evaluation.
(h) In addition to any other penalty which can be imposed
for a violation of this section, a court may, as a condition of
probation, prohibit any person so convicted from possessing or owning any animal or type of animal during the period of
probation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.