Saturday, January 19, 2013

Animal Control Code, Law, Ordinance, Section 3-15, Wrongfully Charged? Gloucester, VA

We are going to open this post with the statement; We are not attorney's and the following information does not constitute legal advice.  Only an attorney can give you legal advice.  The purpose of this article is to openly discuss issues we have found with Gloucester County Ordinance 3-15 as it presently exists as of January 18th, 2013 on the Gloucester County, Virginia site.

  If you have been charged and or convicted under Gloucester County Animal Control Ordinance Section 3-15, you may want to seriously consider getting legal advice as soon as possible.  We would suggest finding a competent attorney that is not, I repeat, not practicing in Gloucester County.  You will learn soon why we are making this suggestion.

  In December, 2012 we started arguing the legality of Gloucester County Animal Control Ordinance section 3-15.  We started looking at the ordinance from every standpoint as we felt that there was something seriously wrong with it.  Looks like we were right.  We will cover all of that in this article.  In our opinion, this ordinance is the most abused code in Gloucester County, designed to bypass and overstep state laws causing serious misuse, malicious abuse, and serious charges and or convictions on a section of the population of Gloucester County citizens in a serious violation of the public trust.

Here is the Gloucester County Animal Control Code section 3-15 as it presently stands;

Sec. 3-15.  Failure to perform duties of ownership; penalty.
(a)       Each owner or custodian of an animal shall provide for each of his animals all the following as defined in section 3.2-6500 of the Code of Virginia:
(1)       Adequate feed;
(2)       Adequate water;
(3)       Adequate shelter that is properly cleaned and sanitized;
(4)       Adequate space in the primary enclosure for the particular type of animal depending upon its age, size, species, and weight;
(5)       Adequate exercise;
(6)       Adequate care, treatment and transportation; and
(7)       Veterinary care when needed for disease control or to prevent suffering or disease transmission.
The provisions of this section shall apply to an owner or custodian of any animal, fowl, or reptile, including every private owner, animal shelter, pound, dealer, pet shop, exhibitor, kennel, groomer, and boarding establishment. This section shall not require that animals used as food for other animals be euthanized.
(b)       Game and wildlife species shall be cared for in accordance with current regulations promulgated by the Virginia Department of Games and Inland Fisheries.
            (c)        Violation of this section is a Class 4 misdemeanor.

This is still on the Gloucester County government web site under Animal Control as of January 18th, 2013.  Here is what the state law reads that the ordinance is required to emulate.  The State Law is 3.2-6503

§ 3.2-6503. Care of companion animals by owner; penalty.

A. Each owner shall provide for each of his companion animals:

1. Adequate feed;

2. Adequate water;

3. Adequate shelter that is properly cleaned;

4. Adequate space in the primary enclosure for the particular type of animal depending upon its age, size, species, and weight;

5. Adequate exercise;

6. Adequate care, treatment, and transportation; and

7. Veterinary care when needed to prevent suffering or disease transmission.

The provisions of this section shall also apply to every pound, animal shelter, or other releasing agency, and every foster care provider, dealer, pet shop, exhibitor, kennel, groomer, and boarding establishment. This section shall not require that animals used as food for other animals be euthanized.

B. Violation of this section is a Class 4 misdemeanor. A second or subsequent violation of subdivision A 1, A 2, A 3, or A 7 is a Class 2 misdemeanor and a second or subsequent violation of subdivision A 4, A 5, or A 6 is a Class 3 misdemeanor.

Note the major differences between the two.  Under 3-15, 3.) Gloucester added the term sanitized.  Not found in state law. under the corresponding section.  Under provisions highlighted on both 3-15 and 3.2-6503 above, there are again major discrepancies.  Gloucester uses the term all animals that is not found in state law.  That means if you have an elephant, Gloucester considers it to be a domestic pet?  Really?  It falls under 3-15 so yes it does appear that way.
  Also, Gloucester is saying that agricultural animals, fowl and reptiles are also considered the same as domestic pets. Again, this is all well above the state law.  The state of Virginia from what we know, does not allow any locality to create ordinances that are broader than state law.   The ordinance must emulate the state law.  Does anyone see an emulation here?  At first glance maybe, but upon inspection, not that we see.  So what happens when a county ordinance is above and beyond it's scope with state law?  It becomes a non law or null and void from what we understand.  
Here is what state law says about county ordinances.
§ 3.2-6543. Governing body of any locality may adopt certain ordinances.

A. The governing body of any locality of the Commonwealth may adopt, and make more stringent, ordinances that parallel §§ 3.2-6521 through 3.2-65393.2-6546 through 3.2-65553.2-65623.2-65693.2-65703.2-6574 through 3.2-6580, and 3.2-6585 through 3.2-6590. Any town may choose to adopt by reference any ordinance of the surrounding county adopted under this section to be applied within its town limits, in lieu of adopting an ordinance of its own.

Any funds collected pursuant to the enforcement of ordinances adopted pursuant to the provisions of this section may be used for the purpose of defraying the costs of local animal control, including efforts to promote sterilization of cats and dogs.

B. Any locality may, by ordinance, establish uniform schedules of civil penalties for violations of specific provisions of ordinances adopted pursuant to this section. Civil penalties may not be imposed for violations of ordinances that parallel §3.2-6570. Designation of a particular violation for a civil penalty shall be in lieu of criminal sanctions and preclude prosecution of such violation as a criminal misdemeanor. The schedule for civil penalties shall be uniform for each type of specified violation and the penalty for any one violation shall not be more than $150. Imposition of civil penalties shall not preclude an action for injunctive, declaratory or other equitable relief. Moneys raised pursuant to this subsection shall be placed in the locality's general fund.
An animal control officer or law-enforcement officer may issue a summons for a violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the department of finance or the treasurer of the locality issuing the summons or ticket prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged.

  The above section shows what a locality may adopt, and make more stringent.  Not what a locality may adopt, and make broader terms for.  Ted Wilmot proposed changes to the local ordinances here in 2013 to reflect Animal Control law changes made by the state of Virginia back in 2011.  Are we a little behind here? So what that suggests is that Ted Wilmot has opened the county up to the potential of lawsuits for failing to maintain proper county ordinances?   3-15 of Gloucester County Animal Control is presently in violation of state law as we see it.  How many people have been charged with and or convicted of a violation to county ordinance 3-15 that in itself looks like it's a violation of state law?  So people have misdemeanor convictions against them based on an ordinance that itself was in violation of state laws?  This is what you bring to your attorney.

  The potential for a class action lawsuit against the county here is incredible as well as all the individual lawsuits from what we are looking at.  You can view the new proposed changes to section 3-15 on the following embedded PDF.

This is just one of 26 summons filed against one family here in Gloucester, VA.  20 of those charges were filed under Gloucester County Ordinance 3-15.  Ted Wilmot prosecuted this case knowing that the county ordinance was in violation of state law in our view.  19 charges under 3-15 were dropped but one was still charged and convicted putting a misdemeanor charge, fine and court costs against a person here in Gloucester.  The court allowed the charge and conviction proving to be a potential problem and not a potential solution.  So potential lawsuits against the county can not take place in the county.

  The funny part about all of this, in December, the Gloucester Mathews Gazette Journal reported that Gloucester Animal Control served 32 summons during the month of November.  What the paper did not tell you was that 26 of the summons were to only one family that Animal Control Officers pretty much destroyed  in our view.  See our story on this through this internal link.

  It is in our opinion that the county may want to start looking at all the cases filed in court under 3-15 and consider reversing all the misdemeanor charges, fines and court costs.  Where should the money come from for all of this?  The Animal Control Budget of course.  Strip the county down to one Animal Control officer with no secretary.  Oldest out first as that is where the highest payroll is.  Keep the newest person as they have not jumped the pay grade yet, so the budget can be kept in line.  Replace Ted Wilmot with a new attorney with a lower pay grade that won't leave the county open on areas like this.

Again, we are not attorney's and this is not legal advice.  Only an attorney can legally advice you.  We recommend seeking legal advice if you or someone you know has been a victim of Gloucester County Ordinance 3-15.  We do not recommend attorney's from Gloucester as we are not aware of any that have argued the legality of 3-15 making any of them a potential part of the problem and not a part of the potential solution, but keep in mind not every attorney in Gloucester has had to defend clients against this code.  So it's a personal judgement call.  Also, not being attorney's we are not able to foresee all the issues that surround this controversy.

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