H. B. 4546
(By Delegates D. Poling, Hartman, Azinger,
Evans, Ross, Williams, Hamilton, Smith,
Ellem and Border)
[Introduced February 18, 2010; referred to the
Committee on Agriculture then the Judiciary.]
A BILL to amend and reenact §7-10-4 of the Code of West Virginia,
1931, as amended, relating to livestock in dire or extreme
condition.
Be it enacted by the Legislature of West Virginia:
That §7-10-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or
cruelly treated; hearing; bonds; liability for costs;
liens; exclusions.
(a) Subject to the provisions of subsection (h) of this
section, 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,
medical care or reasonable protection from fatal freezing or heat
exhaustion 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 persons in possession, if his or her identity
and residence are known, of any animal seized pursuant to
subsection (a) of this section shall be provided written notice of
the seizure, his or her liability for the cost and care of the
animal seized as provided in this section and the right to request
a hearing in writing before a magistrate in the county where the
animal was seized. The magistrate court shall schedule any hearing
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 is prima facie
evidence of the abandonment of the animal. At the hearing, if
requested, the magistrate shall determine by a preponderance of the
evidence if the animal was abandoned, neglected or deprived of
necessary sustenance, shelter, medical care or reasonable
protection from fatal freezing or heat exhaustion or otherwise
treated or used cruelly as set forth in this section.
(c) (1) If a hearing is requested and the magistrate finds by
a preponderance of the evidence that the owner did abandon, neglect
or cruelly treat the animal, or if no hearing is requested and the
magistrate finds by a preponderance of the evidence, based upon the
affidavit of the humane officer, that the owner did abandon,
neglect or cruelly treat the animal, the magistrate shall enter an
order awarding custody of the animal to any humane officer for
further disposition in accordance with reasonable practices for the humane treatment of animals. After hearing the evidence, if the
magistrate is not convinced the animal was neglected or cruelly
treated, he or she may dismiss the action and order the animal be
returned to the owner. If the magistrate finds in favor of the
humane officer, the owner of the animal shall post a bond with the
court in an amount sufficient to provide for the reasonable costs
of care, medical treatment and provisions for the animal for at
least thirty days. The bond shall be filed with the court within
five days following the court's finding against the owner. At the
end of the time for which expenses are covered by the original bond
if the animal remains in the care of the humane officer and the
owner desires to prevent disposition of the animal by the humane
officer, the owner shall post an additional bond with the court
within five days of the expiration of the original bond. During
this period the humane officer is authorized to place the animal in
a safe private home or other safe private setting 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.
(2) If a bond has been posted in accordance with subdivision
(1) of this subsection, the custodial animal care agency may draw
from the bond the actual reasonable costs incurred by the agency in
providing care, medical treatment and provisions to the impounded
animal from the date of the initial impoundment to the date of the
final disposition of the animal.
(d) Any person whose animal is seized and against whom the magistrate enters a finding pursuant to this section is liable
during any period it remains in the possession of the humane
officer for the reasonable costs of care, medical treatment and
provisions for the animal not covered by the posting of the bond as
provided in subdivision (1), subsection (c) of this section. The
magistrate shall require the person liable for these costs to post
bond to provide for the maintenance of the seized animal. This
expense, if any, becomes a lien on the animal and must be
discharged before the animal is released to the owner. Upon
dismissal or withdrawal of the complaint, any unused portion of
posted bonds shall be returned to the owner. Upon a finding in
favor of the humane officer, all interest in the impounded animal
shall transfer to the humane officer for disposition in accordance
with reasonable practices for the humane treatment of animals. Any
additional expense above the value of the animal may be recovered
by the humane officer or custodial agency.
(e) After the humane officer takes possession of the animal
pursuant to a finding by a magistrate that the animal has been
abandoned, neglected or cruelly treated and 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 and neither the humane officer, animal euthanasia
technician nor the veterinarian is subject to any civil or criminal
liability as a result of the action.
(f) (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 an animal euthanasia technician
certified in accordance with the provisions of article ten-a,
chapter thirty of this code; or
(B) Any other humane euthanasia procedure approved by the
American Veterinary Medical Association, the Humane Society of the
United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing
an animal by means of a gas chamber:
Provided, That any county
which has a gas chamber in operation as of the effective date of
this section may continue to operate the gas chamber subject to the
following: (1) The gas chamber shall be operated by an animal
euthanasia technician certified pursuant to article ten-a, chapter
thirty of this code; and (2) the gas chamber shall have been
manufactured and installed by a person who regularly manufactures
and installs gas chambers. The Board of Veterinary Medicine shall
promulgate emergency rules regarding the inspection of gas
chambers, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
(g) In case of an emergency in which an animal cannot be
humanely destroyed in an expeditious manner, an animal may be
destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of
firearms with a weapon and ammunition of suitable caliber and other characteristics designed to produce instantaneous death by a single
shot; and
(2) Maximum precaution is taken to minimize the animal's
suffering and to protect other persons and animals.
(h)
(1) The provisions of this section do not apply to farm
livestock, as defined in subsection (d), section two, article ten-
b, chapter nineteen of this code; 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.
(2) In the case of livestock, as defined in subsection (d),
section two, article ten-b of chapter nineteen:
(A) Each county commission shall establish a livestock
committee, to handle complaints of inhumane livestock treatment.
The committee shall be appointed by the county commission and shall
include three recognized farmers within the county;
(B) If during the course of an investigation a humane officer
finds livestock in dire or extreme condition, the humane officer
shall contact a licensed veterinarian for further examination. If
the veterinarian finds that the livestock are in such poor
condition to be at imminent risk, the humane officer shall notify
the county commission and the livestock committee of the situation and make a recommendation to the county commission and livestock
committee;
(C) If during the course of an investigation the humane
officer finds livestock to be in an unacceptable condition but not
in imminent danger and are unable to rectify the situation with the
owner without legal action, the humane officer will notify the
county commission for assistance. The county commission shall then
remedy the situation with the owner. The humane officer shall
assist the county commission and follow up to ensure that the
problems have been remedied.
(i) All persons or entities in the state performing euthanasia
under this article shall register with the Board of Veterinary
Medicine by December 31, 2009, in a manner to be prescribed by the
board. The Board of Veterinary Medicine shall promulgate emergency
rules relating to the registration of those performing animal
euthanasia, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
NOTE: The purpose of this bill is to provide a procedure for
livestock that are in dire or extreme condition.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.