COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 384
(By Senators Edgell, Love and Facemyer)
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[Originating in the Committee on Finance;
reported February 15, 2007.]
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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 and §19-9B-15, all relating to regulating the sale,
possession and breeding of nonnative animals; defining certain
terms; creating the Nonnative Animals Regulation Board;
establishing powers and duties; establishing a special revenue
account and authorizing expenditures; providing rule-making
authority; delineating the jurisdiction of member agencies;
providing owner liable for the cost of care of seized
nonnative animals; requiring pet shop registration, renewal
and fee; requiring pet shop to keep records and provide
certain notification; requiring identification number on
dangerous animals; establishing caging requirements; requiring liability insurance, posting of signs and notification of
escapes and releases; limiting public contact; authorizing
certain inspections; specifying conditions under which
nonnative animals may be seized; setting forth exemptions; and
establishing civil and criminal penalties.
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 and
§19-9B-15, all to read as follows:
ARTICLE 9B. NONNATIVE SPECIES REGULATION ACT.
§19-9B-1. Definitions.
As used in this article:
(1) "Animal" means wildlife, dangerous, domestic animals and
nonnative animals as defined by this article.
(2) "Board" means the Nonnative Animals Regulation Board.
(3) "Dangerous animal" means a lion, tiger, leopard, ocelot,
jaguar, cheetah, margay, mountain lion, lynx, bobcat, jaguarondi,
bear, hyena, wolf, coyote or any poisonous or life-threatening
reptile and includes any species, subspecies or crossbreeds of any
of those animals and includes those species added by the board by
legislative rule.
(4) "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.
(5) "Nonnative animal" means any animal, other than a domestic
animal or wildlife and includes a crossbreed of an animal that do
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.
(6) "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.
(7) "Pet shop" means a facility where an animal is kept for
the purpose of sale.
(8) "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.
(9) "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.
(10) "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.
(11) "Wildlife" means wildlife and game fish as those terms
are defined in section two, article one, chapter twenty of this
code, 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-2. Board created; composition; chairperson; meetings;
duties.
(a) The Nonnative Animals Regulation Board is created.
(b) The board shall consist of three members: The
Commissioner of the Department of Agriculture or his or her
designee; 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 shall designate one of its members in rotation
to be chairperson for a term of two years. In the absence of the
chairperson, any member designated by the members present shall act
as chairperson.
(d) The board shall meet as often as necessary at the time and place designated by the chairperson. Two members shall be present
in order to conduct business. All decisions of the board shall be
determined by a majority of the members of the board.
(e) The board may:
(1) Identify and designate any dangerous, domestic or
nonnative 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;
(2) Establish requirements for the operation of pet shops
selling or breeding nonnative animals;
(3) Establish permit requirements for the possession and
breeding of nonnative and dangerous animals;
(4) Conduct necessary investigations by their respective
agencies to determine which animals should be designated as threats
to the public health or safety;
(5) Cooperate with appropriate state and federal officials in
the investigation and enforcement of violations of this article or
the federal law;
(6) Propose legislative rules for the sole purpose of
designating specific animals that threaten the public health and
safety;
(7) Propose legislative rules designating animals as
dangerous, nonnative or domestic;
(8) Propose legislative rules requiring a permit for
possession of a dangerous animal;
(9) Seize, test, quarantine or destroy any animal which poses
a threat to the health and safety of humans, other animals or plant
life when the threat has been established by scientific findings,
provided the proper warrants have been obtained; and
(10) Establish and maintain a registry of all persons and
businesses engaged in the sale of animals in this state.
§19-9B-3. Establishment of special revenue fund; authorized
expenditures.
(a) There is created in the State Treasury a special revenue
fund to be known as the Nonnative Animals Regulation 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.
(b) Expenditures from the fund shall be made by the
Commissioner of Agriculture for the purposes set forth in this
article.
(c) Any balance, including accrued interest and other returns,
in the fund at the end of each fiscal year shall not expire to the
General Revenue Fund but shall remain in the fund and be expended
as provided by this section.
§19-9B-4. 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.
(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-5. Jurisdiction of member agencies.
(a) The Department of Agriculture is responsible for the
administration and enforcement of the provisions of this article.
(b) Each member agency may examine, test, seize, quarantine or
destroy a nonnative animal which poses a threat to humans,
livestock, poultry, other animals, wildlife or the state's
agricultural or forestry industries or other natural resource
interests. In all cases in which a nonnative animal is destroyed,
the member agency shall safely dispose of the remains in accordance
with all applicable laws and rules. The agency shall advise the
board of action taken pursuant to this subsection no later than
forty-eight hours after the incident.
(c) 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 this chapter and chapters sixteen and twenty of this
code.
§19-9B-6. Costs of care for seized animal; placement.
(a) The owner of nonnative or dangerous 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
nonnative or dangerous animal is under the control of the board.
(b) The board shall determine the appropriate placement of the
seized animal based upon the threat posed by the animal.
(c) An animal seized by the board in accordance with the
provisions of this article may be returned to the possessor only if
the board determines that the nonnative or dangerous animal poses
no threat to humans, other animals or plant life.
§19-9B-7. Pet shop registration required.
Effective the first day of January, two thousand eight, a
person may not operate a pet shop in this state unless he or she
has registered with the board.
§19-9B-8. Registration; renewal; fee.
(a) Each pet shop owner or operator shall register on forms
supplied by the board and provide all information required by the
board.
(b) Registrations expire on the thirty-first day of December
of each year and shall 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 assess a late fee when a renewal is received
more than sixty days after the expiration of the current registration.
(c) A pet shop owner or operator shall:
(1) Pay the applicable registration or renewal fee;
(2) Keep all records required to be kept by the board; and
(3) Notify the board of the sale of certain animals as
specified by the board.
§19-9B-9. Identification number.
The possessor of a dangerous animal shall have an
identification number placed on the dangerous animal, at his or her
expense, by or under the supervision of a veterinarian. The board
shall prescribe the methods of identification for use by
veterinarians:
Provided, That this provision does not apply to the
dangerous animal if a veterinarian determines that the methods of
identification will endanger the well-being of the dangerous
animal.
§19-9B-10. Caging requirements.
(a) The board shall establish specific caging requirements for
the keeping and confinement of a dangerous animal. A person
possessing a dangerous animal shall keep and confine the dangerous
animal in strict compliance with the caging requirements
established by the board.
(b) All caging requirements shall ensure that the dangerous
animal is confined in a primary enclosure that protects the
public's safety and health and ensures the safety and well-being of the dangerous animal.
§19-9B-11. Insurance; signs; and notification.
(a) A possessor of a dangerous animal shall maintain liability
insurance in an amount to be determined by the board and shall
provide a copy of the policy annually to the board, unless exempted
by the board.
(b) The possessor of a dangerous 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 a dangerous animal on the premises. The board shall
prescribe the content and size of the sign.
(c) If a dangerous animal escapes or is released, either
intentionally or unintentionally, the possessor of the dangerous
animal shall immediately contact a law-enforcement officer 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-12. Public contact.
Unless specifically authorized by the board, a possessor may
not take a dangerous animal to a public place, except to a
veterinarian or a veterinarian clinic.
§19-9B-13. Inspection.
During reasonable hours and with a proper warrant the employees of the Department of Agriculture, the Division of Natural
Resources or the Bureau for Public Health may enter any premises to
access a domestic, dangerous or nonnative animal for the purpose of
inspection to further the provisions of this article. A person may
not obstruct or hinder the employees in the discharge of their
duties.
§19-9B-14. Seizure and return.
(a) A nonnative animal may be seized immediately by the board
if:
(1) The possessor is not in compliance with the provisions of
this article; or
(2) A nonnative animal poses a threat to humans, other
animals, wildlife or the state's agricultural or forestry
industries or other natural resource interests.
(b) A nonnative animal which was seized by the board may be
returned to the possessor only if the possessor is in compliance
with this article and the nonnative animal poses no threat to
humans, other animals or plant life.
§19-9B-15. Penalties for violation of article.
(a) Any person violating a provision of 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 confined in 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
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 West Virginia 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 same 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 civil penalties and assessed costs collected pursuant
to this article shall be deposited in the Nonnative Animal
Regulation Fund.
(6) A state court may not 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 probable cause did not exist for an action and that
compensation is necessary, the compensation shall not exceed the
fair market value of the nonnative animal at issue. The board
shall pay damages as determined by a state court provided funds are
available.
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