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SB477 SUB2 Senate Bill 477 History

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COMMITTEE SUBSTITUTE

FOR

 COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 477

(By Senators Kessler (Mr. President), Unger, Browning, Yost, Klempa and Beach)

____________

[Originating in the Committee on the Judiciary;

reported February 14, 2012.]

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A BILL to amend and reenact §20-2-51 and §20-2-52 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §20-9-1, §20-9-2, §20-9-3, §20-9-4, §20-9-5, §20-9-6, §20-9-7 and §20-9-8, all relating to limiting the possession of wild and exotic animals; revising pet and roadside menagerie permits; expressing legislative intent; stating agency jurisdiction; defining certain terms; permitting expansion of the definitions; limiting custody and control of wild and exotic animals; permitting the Division of Natural Resources to issue a permit for a wild and exotic animal legally possessed prior to the effective date; setting forth permit requirements; requiring a notarized permit application and fee; involving the county animal control officer or the sheriff for inspections; requiring an emergency plan; requiring relinquishment of animal prior to euthanization; compliance with the Animal Welfare Act; providing exemptions; providing for confiscation and disposition of animals; requiring interagency cooperation; providing rule-making and emergency rule-making authority; requiring the division to report to the Joint Committee on Government and Finance; and providing criminal penalties and fines.

Be it enacted by the Legislature of West Virginia:

    That §20-2-51 and §20-2-52 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §20-9-1, §20-9-2, §20-9-3, §20-9-4, §20-9-5, §20-9-6, §20-9-7 and §20-9-8, all to read as follows:

CHAPTER 20. NATURAL RESOURCES.

ARTICLE 2. WILDLIFE RESOURCES.

§20-2-51. Permit for keeping pets.

    The director may issue a permit to a person to keep and maintain in captivity as a pet a wild animal or wild bird that has been acquired from a commercial dealer or during the legal open season. The fee therefor shall be $2: Provided, That after July 1, 2012, the division shall not issue these permits and shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to establish a biennial permit application with owner and animal identification information, permit fees and requirements, as well as a system to track all permitees. All persons subject to the emergency rules shall have one hundred eighty days to come into compliance after promulgation of the rules.

§20-2-52. Permits for roadside menageries.

    The director may issue a permit for the keeping and maintaining in captivity of wild animals, wild birds, amphibians or reptiles as a roadside menagerie. A permit shall not be issued unless:

    (1) The animals, birds, amphibians or reptiles have been purchased from a licensed commercial dealer, either within or without the state, or have been taken legally; or

    (2) The director is satisfied that provisions for housing and care of wildlife to be kept in captivity and for the protection of the public are proper and adequate.

    A fee of $25 shall accompany each application for such permit: Provided, That after July 1, 2012, the division shall not issue these permits and shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to establish a biennial permit application with owner and animal identification information, permit fees and requirements, as well as a system to track all permitees. All persons subject to the emergency rules shall have one hundred eighty days to come into compliance after promulgation of the rules.

ARTICLE 9. WILD AND EXOTIC ANIMAL ACT.

§20-9-1. Legislative Intent.

    (a) It is the intent of the State of West Virginia to protect the public against health and safety risks that wild and exotic animals pose to the community, to protect the welfare of the individual animals held in private possession and to track wild and exotic animal possession. Currently, West Virginia is one of only eight states that lack any restrictions for wild and exotic animals kept by private persons.

    (b) Wild and exotic animals shall be regulated for the following reasons:

    (1) To prevent the introduction or spread of disease or parasites harmful to humans, domestic livestock and poultry, native wildlife and captive wild and exotic animals;

    (2) To ensure the physical safety of humans;

    (3) To prevent the escape or release of an animal injurious to or competitive with agricultural, horticultural, forestry, native wildlife and other natural resources; and

    (4) To prevent the mistreatment of wild and exotic animals.

§20-9-2. Jurisdiction.

    (a) The Division of Natural Resources is empowered to regulate and protect the native wildlife of this state, currently issues certain permits for animals and has natural resources police officers to enforce its regulations and permitting requirements. Therefore, the division will be the lead regulatory agency for entry and intrastate movement, permitting, sale, transfer, exhibition, possession and release of wild and exotic animals. Determination of adverse environmental and disease consequences posed by wild and exotic animals to free-living native wildlife is the responsibility of the Division of Natural Resources. The division reserves the right to immediate examination and testing of wild and exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering free-living native wildlife, including examination, testing, quarantine, seizure, indemnification and destruction within the legislative authority of the division, which may be carried out independently of other state agencies. The Department of Agriculture and the Bureau for Public Health will be advised of these activities. Actions taken by the division shall be compatible with the federal Endangered Species Act and other federal laws.

    (b) The Department of Agriculture is empowered to control, suppress and eradicate diseases endangering domestic and livestock animals and agricultural, horticultural and forestry interests. The department reserves the right to immediate examination and testing of wild and exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering domestic and livestock animals or agricultural, horticultural and forestry interests, including examination, testing, quarantine, seizure, indemnification and destruction within the legislative authority of the Department of Agriculture, which may be carried out independently of other state agencies. The Division of Natural Resources and the Bureau for Public Health will be advised of these activities. Actions taken by the Department of Agriculture shall be compatible with the federal Endangered Species Act and other federal laws.

    (c) The Bureau for Public Health reserves the right to an immediate examination and testing of wild and exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering public health. Measures deemed necessary to protect the public health include quarantine, seizure, and destruction may be carried out independently of other state agencies within the legislative authority of the Bureau for Public Health. The Division of Natural Resources and the State Department of Agriculture will be advised of these activities. Actions taken by the Bureau for Public Health shall be compatible with the federal Endangered Species Act and other federal laws.

    (d) Any action taken by the Division of Natural Resources, Department of Agriculture or the Bureau for Public Health is subject to the provisions of the West Virginia Administrative Procedures Act, chapter twenty-nine-a of this code.

§20-9-3. Definitions.

    For the purposes of this article:

    (1) “Bureau” means the West Virginia Bureau for Public Health;

    (2) “Department” means the West Virginia Department of Agriculture;

    (3)“Division” means the West Virginia Division of Natural Resources;

    (4) “Domestic animal”, or the plural, means an animal which, through extremely long association with humans, has been bred to a degree which has resulted in genetic changes affecting the temperament, color, conformation or other attributes of the species to an extent that makes them unique and distinguishable from wild individuals of their species, and includes animals that have been bred as companion animals and pets. A comprehensive list of “domestic animals” shall be set forth by the division, in consultation with the department and the bureau, pursuant to the rulemaking authority of this article;

    (5) “Person” means any individual, partnership, corporation, organization, trade or professional association, firm, limited liability company, joint venture, association, trust, estate or any other legal entity and any officer, member, shareholder, director, employee, agent or representative thereof;

    (6) “Possessor” means any person who owns, possesses, breeds, transports, releases or has custody or control of a wild and exotic animal;

    (7) “Wild and exotic animals”, “animals”, or the singular mean mammals, birds, reptiles, amphibians and fresh-water fish, including hybrids thereof, that are dangerous to humans, other animals and the environment due to their inherent nature. “Wildlife”, as defined by section two, article one of this chapter, “agricultural animals”, as defined in section two, article ten-b and section two, article twenty-nine, chapter nineteen of this code, and “domestic animals”, as defined herein, are excluded. A comprehensive list of “wild and exotic animals” shall be set forth by the division, in consultation with the department and the bureau, pursuant to the rule-making authority of this article;

    (8) “Wildlife sanctuary” means a nonprofit organization, and a 501(c)(3) tax-exempt public charity, IRS Section 170 (b)(1)(A)(vi), Internal Revenue Code 1986, and its subsequent amendments, that operates a facility that is a place of refuge where abused, neglected, unwanted, impounded, abandoned, orphaned or displaced animals are provided care for their lifetime or released back to their natural habitat and is a facility with the following characteristics:

    (i) No activity that is not inherent to the animal's nature, natural conduct or the animal in its natural habitat is conducted except as needed for routine animal husbandry;

    (ii) No commercial activity involving any animal occurs including, but not limited to, the sale of or trade in animals, animal parts, animal byproducts or animal offspring or the sale of photographic opportunities involving any animal or the use of any animal for any type of entertainment purpose;

    (iii) No unescorted public visitations or direct contact between the public and any animal;

    (iv) No breeding of animals occurs at the facility; and

    (v) The sanctuary has filed their official incorporation papers and contact information with the division and is willing to be inspected by the division.

§20-9-4. Possession of wild and exotic animals limited.

    (a)Unless the activity is specifically exempted, no person may own, possess, breed, harbor, transport, sell, transfer, release or have custody or control of a wild and exotic animal.

    (b) Permit.-- The division may issue a permit for a wild and exotic animal legally possessed prior to the effective date of this article if the possessor completes a notarized permit application for each wild and exotic animal biennially containing:

    (1) The name, address, telephone number and date of birth of the possessor;

    (2) A description of each animal the applicant possesses, including the scientific name, sex, age, color, weight and any distinguishing marks or coloration that would aid in the identification of the animal;

    (3) The exact location where the animal is kept and an accurate description of the secure, safe and humane enclosure where the animal is housed;

    (4) The names, addresses and telephone number of the person from whom the possessor obtained the animal, if known;

    (5) The name, address and phone number of the veterinarian providing veterinary care to the animal and a certificate of good health, including proof that the animal has been sterilized when feasible, from the possessor’s veterinarian;

    (6) Certification that the possessor is eighteen years of age or older and that the possessor has not been convicted of or found responsible for violating a local or state law prohibiting cruelty, neglect or mistreatment of an animal and has not within the past ten years been convicted of a felony or been convicted for possession, sale or use of illegal narcotics;

    (7) A fee of $200. The division shall keep fifty percent of the fee for handling its duties and remit the remaining fifty percent of the fee to the county humane or animal control officer, or the sheriff in the alternative, to offset the cost of assisting in inspecting and controlling these animals. This will also provide the counties with important information about the wild and exotic animals in their vicinities;

    (8) A plan for the quick and safe recapture of the wild and exotic animal if the animal escapes; and

    (9) Documentation that the possessor maintains liability insurance coverage in an amount of not less than $250,000 per animal for up to an aggregate of $1 million for multiple animals, for damages stemming from destruction of property and death and bodily injury to a person caused by a wild and exotic animal.

    (c) The county humane and animal control officers, or the sheriffs in the alternative, may be asked by the above agencies to inspect the wild and exotic animal and its enclosure. An inspection may be required by the division prior to issuing a permit. The possessor shall allow the division, department, bureau, county humane and animal control officers, and sheriffs, and their agents, to enter the premises where the animal is kept to ensure compliance with this article and other applicable laws.

    (d) The division shall provide all possessor information obtained in the application to the department, bureau, county humane and animal control officers, or the sheriffs in the alternative, and shall create a database tracking wild and exotic animals that these agencies can access.

    (e) The division, department, bureau, county humane and animal control officers, or the sheriffs in the alternative, shall work together to share information regarding wild and exotic animals and to devise emergency response plans for emergent situations involving wild and exotic animals. Emergency contact information shall be provided to possessors in the application.

    (f) The possessor shall follow the emergency plan and use the emergency contact information immediately if it suspects the wild or exotic animal has a disease, injures a person, escapes or if any emergency arises involving the animal.

    (g) Any possessor granted a permit shall notify the division of any changes to the stated information in the permit application at any time. Any changes will be disseminated to the other agencies.

    (h) The possessor shall state in its notarized application that it will contact the division, the department, a wildlife sanctuary or an Association of Zoos and Aquariums accredited facility if the possessor can no longer care for the wild and exotic animal prior to relinquishing the animal to the division or euthanizing the animal.

    (i) Possessors that exhibit wild and exotic animals for public viewing shall comply with the Animal Welfare Act, 7 U. S. C. §2132, as amended.

    (j) The division may refuse to issue a permit, may revoke a permit or may confiscate an animal at any time if the possessor violates this article.

§20-9-5. Exemptions.

    The provisions of this article do not apply to:

    (1) Institutions accredited by the Association of Zoos and Aquariums (AZA) or any AZA-certified facility;

    (2) Duly incorporated nonprofit animal protection organizations housing a wild and exotic animal at the written request of the division;

    (3) Animal control or law-enforcement agencies or officers acting under the authority of this article;

    (4) Licensed veterinary hospitals or clinics treating wild and exotic animals;

    (5) A wildlife sanctuary as defined herein;

    (6) A licensed or accredited research or medical institution;

    (7) A research facility as defined in the Animal Welfare Act, 7 U. S. C. §2132(e), as amended;

    (8) A circus that is an incorporated, class C licensee under the Animal Welfare Act, 7 U. S. C. §2132, as amended;

    (9) A person displaying wild and exotic animals at a fair or festival approved by the department;

    (10) Licensed dealers, exhibitors and transporters under the Animal Welfare Act, 7 U. S. C. §2132, as amended; and

    (11) A person temporarily transporting a wild and exotic animal through the state if the transit time is not more than forty-eight hours and the animal is at all times confined sufficiently to prevent the wild and exotic animal from escaping.

§20-9-6. Confiscation and Disposition.

    (a) The division, department or bureau may immediately confiscate any wild and exotic animal if the animal is kept in contravention of this article. The possessor is liable for the costs of placement and care for the wild and exotic animal from the time of confiscation until the time of return to the possessor or until the time the animal has been relocated to a wildlife sanctuary or an institution accredited by the Association of Zoos and Aquariums.

    (b) If a wild and exotic animal is confiscated due to the animal being kept in contravention of this article, the possessor must post a security bond or cash with the division, department or bureau in an amount sufficient to guarantee payment of all reasonable expenses expected to be incurred in caring and providing for the animal including, but not limited to, the estimated cost of feeding, medical care and housing for at least thirty days. The security bond or cash does not prevent the division from disposing of the animal after thirty days unless the person claiming the animal posts an additional security bond or cash with the division, department or bureau to secure payment of all reasonable expenses expected to be incurred in caring and providing for the animal for an additional thirty days and does so prior to the expiration of the first thirty-day period. The amount of the security bond or cash shall be determined by the division and based on the current rate to feed, provide medical care and house the animal.

    (c) If the possessor of a confiscated animal cannot be located or if a confiscated animal remains unclaimed, the division, department or bureau may contact a wildlife sanctuary or an institution accredited by the Association of Zoos and Aquariums, may allow the animal to be adopted by a person who currently possesses a permit or may euthanize the animal in compliance with federal and state laws.

    (d) If the wild and exotic animal cannot be confiscated or recaptured safely by the division, department or bureau, or if proper and safe placement cannot be found, the division, department or bureau may immediately euthanize the animal in compliance with federal and state laws.

§20-9-7. Rule-making authority and agency cooperation.

    (a) The division, department and bureau may develop inter-agency agreements or propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this article and to take other action as may be necessary for the proper and effective enforcement of these provisions: Provided, That on or before July 1, 2012, the division shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to establish the list of domestic animals and wild and exotic animals and other rules as necessary for the prompt implementation of this article. All persons subject to the emergency rules shall have one hundred eighty days to come into compliance after promulgation of the rules.

    (b) The division, department and bureau shall cooperate to implement the provisions of this article and to take other action as may be necessary for the proper and effective enforcement of these provisions.

    (c) The division shall report by July 1, 2012, to the Joint Committee on Government and Finance its actions to effectuate and enforce the provisions of this article.

§20-9-8. Criminal penalties.

    (a) A person who violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $2,000 for each animal with respect to which there is a violation.

    (b) A person who knowingly and intentionally releases multiple wild and exotic animals endangering the public, or knowingly and intentionally releases a wild and exotic animal that injures a person, is guilty of a felony and, upon conviction, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $5,000, or both fined and imprisoned.


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    (NOTE: Article 9 is new; therefore, strike-throughs and underscoring have been omitted.)


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