Now we will once again briefly cover this story so that everyone understands it. Earlier this month we complained that there are a number of ordinance on the county books that look to us to be in violation of state code. One that we have started out with is Gloucester, Animal Control Ordinance 3-17 which reads as follows;
Sec. 3-17. Animals riding in open vehicles.
on a pubic road to place or keep an animal in any portion of such vehicle that is open in such a manner so as to permit such animal to jump out of or escape the vehicle or to be thrown from the vehicle by acceleration or stopping of the vehicle or by an accident involving the vehicle. The prohibited portions of a motor vehicle shall include, but not be limited to:
(2)The rear storage portion of a vehicle with the tailgate, truck, or hatchback portion open or down. For the purposes of this section, the operator of a motor vehicle shall be deemed to have control of any animal found there.
There does not appear to be one specific Virginia State Code section constituting enabling legislation for Gloucester County Code Section 3-17. However, that code section’s requirements are legally defensible regulatory measures in light of the following:
1. The section is limited to public roads and public places, and does not regulate activity on private property;
2. Va. Code Section 3.2-6570 prohibits the carrying by vehicle of any animal in a cruel or inhumane manner;
3. The County has the authority to prohibit cruelty to and abuse of animals and fowl, see Va. Code Sections 3.2-6544(B) and 3.2-6543;
4. The County has the authority to prohibit animals running at large (see, e.g., Va. Code Sections 15.2-1218, 3.2-6538, 3.2-6543, and 3.2-6544) ;
5. The County has the authority to require that animals have “adequate shelter.” “Adequate shelter” is defined, in part, by Va. Code Section 3.2-6500, to include shelter that is “safe and protects each animal from injury.”;
6. No case or opinion of the Attorney General of which I am aware demonstrates the unlawfulness of Gloucester County Code Section 3-17; and
7. Va. Code Section 15.2-1201 generally vests in the County Board of Supervisors the same authority and powers as are vested in City Councils. Va. Code Section 15.2-1102 vests in municipal corporations (here, cities) the authority to legislate to protect welfare, safety and health.
I hope that you can understand and appreciate that one of my roles is to defend and assist in enforcing the ordinances passed by the Board the citizens have elected, at least unless such an ordinance has been declared unlawful by a court of competent jurisdiction, or is clearly unlawful even without a court determination. Mr. Thompson’s assertion the Section 3-17 is unlawful is not sufficient for me to agree.
Ted Wilmot
Ted's argument number 2, 3.2-6570 prohibits the carrying by vehicle any animal in a cruel and inhumane manner. What Ted forgot to include was the rest of the sentence there which reads further, so as to produce torture or unnecessary suffering. Argument does not fly. The code is below.
§ 3.2-6570. Cruelty to animals; penalty.
A. Any person who: (i) overrides, overdrives, overloads, tortures, ill-treats, abandons, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation, or cruelly or unnecessarily beats, maims, mutilates, or kills any animal, whether belonging to himself or another; (ii) deprives any animal of necessary food, drink, shelter or emergency veterinary treatment; (iii) sores any equine for any purpose or administers drugs or medications to alter or mask such soring for the purpose of sale, show, or exhibition of any kind, unless such administration of drugs or medications is within the context of a veterinary client-patient relationship and solely for therapeutic purposes; (iv) willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal; (v) carries or causes to be carried by any vehicle, vessel or otherwise any animal in a cruel, brutal, or inhumane manner, so as to produce torture or unnecessary suffering; or (vi) causes any of the above things, or being the owner of such animal permits such acts to be done by another is guilty of a Class 1 misdemeanor.
In addition to the penalties provided in this subsection, the court may, in its discretion, require any person convicted of a violation of this subsection to attend an anger management or other appropriate treatment program or obtain psychiatric or psychological counseling. The court may impose the costs of such a program or counseling upon the person convicted.
B. Any person who: (i) tortures, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation, or cruelly and unnecessarily beats, maims, mutilates or kills any animal whether belonging to himself or another; (ii) sores any equine for any purpose or administers drugs or medications to alter or mask such soring for the purpose of sale, show, or exhibit of any kind, unless such administration of drugs or medications is under the supervision of a licensed veterinarian and solely for therapeutic purposes; (iii) maliciously deprives any companion animal of necessary food, drink, shelter or emergency veterinary treatment; (iv) instigates, engages in, or in any way furthers any act of cruelty to any animal set forth in clauses (i) through (iv); or (v) causes any of the actions described in clauses (i) through (iv), or being the owner of such animal permits such acts to be done by another; and has been within five years convicted of a violation of this subsection or subsection A, is guilty of a Class 6 felony if the current violation or any previous violation of this subsection or subsection A resulted in the death of an animal or the euthanasia of an animal based on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, and such condition was a direct result of a violation of this subsection or subsection A.
C. Nothing in this section shall be construed to prohibit the dehorning of cattle conducted in a reasonable and customary manner.
D. This section shall not prohibit authorized wildlife management activities or hunting, fishing or trapping as regulated under other titles of the Code of Virginia, including Title 29.1, or to farming activities as provided under this title or regulations adopted hereunder.
E. It is unlawful for any person to kill a domestic dog or cat for the purpose of obtaining the hide, fur or pelt of the dog or cat. A violation of this subsection is a Class 1 misdemeanor. A second or subsequent violation of this subsection is a Class 6 felony.
F. Any person who: (i) tortures, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation or cruelly and unnecessarily beats, maims or mutilates any dog or cat that is a companion animal whether belonging to him or another; and (ii) as a direct result causes the death of such dog or cat that is a companion animal, or the euthanasia of such animal on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, is guilty of a Class 6 felony.
If a dog or cat is attacked on its owner's property by a dog so as to cause injury or death, the owner of the injured dog or cat may use all reasonable and necessary force against the dog at the time of the attack to protect his dog or cat. Such owner may be presumed to have taken necessary and appropriate action to defend his dog or cat and shall therefore be presumed not to have violated this subsection. The provisions of this subsection shall not overrule §
3.2-6540,
3.2-6540.1, or
3.2-6552.
G. Any person convicted of violating this section may be prohibited by the court from possession or ownership of companion animals
Ted's argument number 3: The County has the authority to prohibit cruelty to and abuse of animals and fowl, see Va. Code Sections 3.2-6544(B) and 3.2-6543;
§ 3.2-6544. Regulation of keeping of animals and fowl.
A. Any locality may, for the preservation of public health, regulate by ordinance the keeping of animals or fowl, other than dogs and cats, within a certain distance of residences or other buildings or wells, springs, streams, creeks, or brooks, and provide that all or certain of such animals shall not be kept within certain areas.
B. Any locality may, by ordinance, prohibit cruelty to and abuse of animals and fowl; and may regulate or prohibit the running at large and the keeping of animals and fowl and provide for the impounding and confiscation of any such animal or fowl found at large or kept in violation of such regulations. Any such ordinance may require that owners of any exotic or poisonous animal found running at large pay a fee to cover the locality's actual cost in locating and capturing or otherwise disposing of the animal.
Ted is arguing B. above, read the top of the state code, Regulation of keeping of animals and fowl. Keeping them is having them on your land or in your house, not having them ride in a vehicle, unless of course that is where both animal and owner live. We are talking about transporting of animals, not keeping them.
§ 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
3.2-6539,
3.2-6546 through
3.2-6555,
3.2-6562,
3.2-6569,
3.2-6570,
3.2-6574 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.
We went through all the codes that every county is allowed to adopt and make more stringent and found nothing that could be considered a parallel to Gloucester Animal Control 3-17. We also read 3.2-6544 (B) and could not see where that section gives Gloucester County the right to create 3-17.
§ 3.2-6538. Governing body of any locality may prohibit dogs from running at large.
The governing body of any locality may prohibit the running at large of all or any category of dogs in all or any designated portion of such locality during such months as they may designate. Governing bodies may also require that dogs be confined, restricted or penned up during such periods. For the purpose of this section, a dog shall be deemed to run at large while roaming, running or self-hunting off the property of its owner or custodian and not under its owner's or custodian's immediate control. Any person who permits his dog to run at large, or remain unconfined, unrestricted or not penned up shall be deemed to have violated the provisions of this section.
3.2-6538 is the closest we could get to 3-17 and one is restricted to certain months that first must be set. Also, 3.2-6538 only relates to dogs. 3-17 relates to all animals.
Ted's argument number 3 just does not stand.
4. The County has the authority to prohibit animals running at large (see, e.g., Va. Code Sections 15.2-1218, 3.2-6538, 3.2-6543, and 3.2-6544) ;
§ 15.2-1218. Prevention of trespassing; animals running at large on highways.
Any county may prevent trespassing by persons and animals and prevent animals from running at large upon the public highways, whether such highways are enclosed by a fence or not.
What does this have to do with 3-17? I really do not understand the point here. Ted's argument makes no sense on this one. It simply states that playing in the middle of a highway is detrimental to one's being and that of others. Common sense.
3.2-6538 and 3.2-6544, see above.
Ted's argument number 4 just does not stand once again.
5. The County has the authority to require that animals have “adequate shelter.” “Adequate shelter” is defined, in part, by Va. Code Section 3.2-6500, to include shelter that is “safe and protects each animal from injury.”;
§ 3.2-6500. Definitions.
"Adequate care" or "care" means the responsible practice of good animal husbandry, handling, production, management, confinement, feeding, watering, protection, shelter, transportation, treatment, and, when necessary, euthanasia, appropriate for the age, species, condition, size and type of the animal and the provision of veterinary care when needed to prevent suffering or impairment of health.
"Adequate shelter" means provision of and access to shelter that is suitable for the species, age, condition, size, and type of each animal; provides adequate space for each animal; is safe and protects each animal from injury, rain, sleet, snow, hail, direct sunlight, the adverse effects of heat or cold, physical suffering, and impairment of health; is properly lighted; is properly cleaned; enables each animal to be clean and dry, except when detrimental to the species; and, for dogs and cats, provides a solid surface, resting platform, pad, floormat, or similar device that is large enough for the animal to lie on in a normal manner and can be maintained in a sanitary manner. Under this chapter, shelters whose wire, grid, or slat floors: (i) permit the animals' feet to pass through the openings; (ii) sag under the animals' weight; or (iii) otherwise do not protect the animals' feet or toes from injury are not adequate shelter.
Once again, Ted is only using part of the entire structure of state code to try and argue some form of logic. Adequate shelter is defined above in it's entirety and deals with where an animal lives not how an animal is transported. For that matter, Gloucester Animal Control trucks must be in violation to the above code and others as it does not provide the proper lighting in the bed of the truck nor the proper comfort, or sanitary floor matts we would imagine. If they do, we would like to see a daily inspection of such on each vehicle.
6. No case or opinion of the Attorney General of which I am aware demonstrates the unlawfulness of Gloucester County Code Section 3-17; and
Ted knows that the Attorney General, Cuccinelli, does not give opinions on law unless it is a case he is trying. We are working on getting Ken's objective view on this anyway.
7. Va. Code Section 15.2-1201 generally vests in the County Board of Supervisors the same authority and powers as are vested in City Councils. Va. Code Section 15.2-1102 vests in municipal corporations (here, cities) the authority to legislate to protect welfare, safety and health.
§ 15.2-1102. General grant of power; enumeration of powers not exclusive;
limitations on exercise of power.
A municipal corporation shall have and may exercise all powers which it now has or which may hereafter be conferred upon or delegated to it under the Constitution and laws of the Commonwealth and all other powers pertinent to the conduct of the affairs and functions of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof, and the enumeration of specific powers shall not be construed or held to be exclusive or as a limitation upon any general grant of power, but shall be construed and held to be in addition to any general grant of power.
The exercise of the powers conferred under this section is specifically limited to the area within the corporate limits of the municipality, unless otherwise conferred in the applicable sections of the Constitution and general laws, as amended, of the Commonwealth.
Is Ted Trying to argue that Gloucester is a municipal corporation in the state? It would still limit areas in the county that would fall under such if it were. This part of the argument makes no sense.
In the United States, such municipal corporations are established by charters that are granted either directly by a state legislature by means of local legislation, or indirectly under a general municipal corporation law, usually after the proposed charter has passed a referendum vote of the affected population.
§ 15.2-1201. County boards of supervisors vested with powers and authority of councils of cities and towns; exceptions.
The boards of supervisors of counties are hereby vested with the same powers and authority as the councils of cities and towns by virtue of the Constitution of the Commonwealth of Virginia or the acts of the General Assembly passed in pursuance thereof.
However, with the exception of ordinances expressly authorized under Chapter 13 of Title 46.2, no ordinance shall be enacted under authority of this section regulating the equipment, operation, lighting or speed of motor-propelled vehicles operated on the public highways of a county unless it is uniform with the general laws of the Commonwealth regulating such equipment, operation, lighting or speed and with the regulations of the Commonwealth Transportation Board adopted pursuant to such laws.
Nothing in this section shall be construed to give the boards of supervisors any power to control or exercise supervision over signs, signals, marking or traffic lights on any roads constructed and maintained by the Commonwealth Transportation Board. No powers or authority conferred upon the boards of supervisors of counties solely by this section shall be exercised within the corporate limits of any incorporated town except by agreement with the town council.
In the County of Fairfax an ordinance may be adopted by the board of supervisors under this section after a descriptive notice of intention to propose the same for passage has been published once a week for two successive weeks in a newspaper having a general circulation in the county. After the enactment of such ordinance by the board of supervisors, no publication of the ordinance shall be required and such ordinance shall become effective upon adoption or upon a date fixed by the board of supervisors.
