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NO. 130. AN ACT RELATING TO AGRICULTURAL ADMINISTRATIVE PENALTIES AND FEES.

(H.540)

It is hereby enacted by the General Assembly of the State of Vermont:

* * * Administrative Penalties * * *

Sec. 1. 6 V.S.A. § 15 is amended to read:

§ 15. ADMINISTRATIVE PENALTIES

(a) In addition to other penalties provided by law, the commissioner may assess administrative penalties, not to exceed $1,000.00, for each violation of:

* * *

(11) 20 V.S.A. chapter 194, "welfare of animals."

(12) 20 V.S.A. chapter 199, "the sale of dogs and cats."

* * *

Sec. 2. 20 V.S.A. § 3911 is amended to read:

§ 3911. PENALTIES

(a) Any person licensed or registered under this chapter, who fails to provide animals under his care or custody with adequate food or adequate water, as defined in section 3901 of this title, or who fails to house animals in his care or custody in a manner which is adequate for their welfare, shall be fined not more than $500.00.

(b) Any person who operates a fair, public auction, or who transacts business as a pet merchant, without being duly licensed or without possessing a proper certificate of registration, as the case may be, as required under this chapter, or who violates any provision of this chapter or of any rule lawfully adopted under its authority for which no other penalty is provided, shall be fined not more than $300.00 or imprisoned for not more than six months, or both.

(c) The commissioner may assess administrative penalties under sections 15-17 of Title 6, not to exceed $1,000.00, for violations of this chapter.

Sec. 3. 20 V.S.A. § 4304 is added to read:

§ 4304. ADMINISTRATIVE PENALTIES

The commissioner may assess administrative penalties under sections 15-17 of Title 6,not to exceed $1,000.00, for violations of this chapter.

Sec. 4. 13 V.S.A. § 351(11), (12), (13) and (14) are added to read:

(11) "Livestock" means cattle, bison, horses, sheep, goats, swine, cervidae, ratites and camelids.

(12) "Poultry" means meat and egg producing chickens, exhibition (fancy) chickens, turkeys, domestic ducks, geese, pheasants, chicken partridge and cotarnix quail.

(13) "Livestock and poultry husbandry practices" means the raising, management and using of animals to provide humans with food, fiber or transportation in a manner consistent with:

(A) husbandry practices recommended for the species by agricultural colleges and the U.S. Department of Agriculture Extension Service;

(B) husbandry practices modified for the species to conform to the Vermont environment and terrain; and

(C) husbandry practices that minimize pain and suffering.

(14) "Agricultural or sporting association" means an organization or association determined by the commissioner.

Sec. 5. 13 V.S.A. § 351a is added to read:

§ 351a. PURPOSE OF SUBCHAPTER

The purpose of this subchapter is to prevent cruelty to animals. In implementing this subchapter, enforcement officers are encouraged to educate the public on requirements of the subchapter and, when appropriate, to seek voluntary resolution of violations.

Sec. 6. 13 V.S.A. § 351b is added to read:

§ 351b. SCOPE OF SUBCHAPTER

This subchapter shall not apply to:

(1) activities regulated by the department of fish and wildlife pursuant to part 4 of Title 10;

(2) scientific research governed by accepted procedural standards subject to review by an institutional animal care and use committee;

(3) livestock and poultry husbandry practices for raising, management and use ofanimals;

(4) veterinary medical or surgical procedures; and

(5) the killing of an animal as provided by sections 3809 and 3545 of Title 20.

Sec. 7. 13 V.S.A. § 352 is amended to read:

§ 352. CRUELTY TO ANIMALS

(1) intentionally kills or attempts to kill any animal belonging to another person without first obtaining legal authority or consent of the owner*[, or attempts to kill or kills an animal with or without the owner's consent by a means causing undue suffering]*;

(2) overworks, overloads, tortures, torments, abandons, administers poison to, cruelly beats or mutilates an animal, exposes a poison with intent that it be taken by an animal;

(3) ties, tethers, or restrains an animal, either a pet or livestock, in a manner that is inhumane or is detrimental to its welfare. *[Accepted agricultural methods]* Livestock and poultry husbandry practices are exempted;

(4) deprives an animal which a person owns, possesses or acts as an agent for, of adequate food, water, shelter, rest or sanitation, or necessary medical attention, or transports an animal in overcrowded vehicles;

(5) owns, possesses, keeps or trains an animal engaged in an exhibition of fighting, or possesses, keeps or trains any animal with intent that it be engaged in an exhibition of fighting, or permits any such act to be done on premises under his or her charge or control;

(6) acts as judge or spectator at events of animal fighting or bets or wagers on the outcome of such fight;

(7) as poundkeeper, officer, agent of a humane society or as an owner or employee of an establishment for treatment, board or care of an animal, knowingly receives, sells, transfers or otherwise conveys an animal in his or her care for the purpose of research or vivisection;

(8) intentionally torments or harasses an animal owned or engaged by a police department or public agency of the state or its political subdivisions, or interferes with the lawful performance of a police animal;

(9) knowingly sells, offers for sale, barters or displays living baby chicks, ducklingsor other fowl which have been dyed, colored or otherwise treated so as to impart to them an artificial color, or fails to provide poultry with proper brooder facilities;

*[(10) fails to ensure that a crate or other container used to transport, hold or ship in commerce live poultry is maintained in sanitary condition and so constructed as to provide sufficient ventilation and warmth; or]*

*[(11)]*(10) uses a live animal as bait or lure in a race, game or contest or in training animals in a manner inconsistent with part 4 of Title 10 or the rules adopted thereunder.

Sec. 8. 13 V.S.A. § 352a is added to read:

§ 352a. AGGRAVATED CRUELTY TO ANIMALS

A person commits the crime of aggravated cruelty to animals if the person intentionally kills an animal by means causing the animal undue pain or suffering.

Sec. 9. 13 V.S.A. § 352b is added to read:

352b. RULES; AFFIRMATIVE DEFENSE

(a) An enforcement officer implementing the provisions of section 352 or 352a of this title shall be guided by rules established by the commissioner.

(b) Except as provided in subsection (c) of this section, an affirmative defense to prosecution under section 352 or 352a of this title may be raised when:

(1) except for vivisection or research under section 352(7) of this title, the defendant was a veterinarian whose conduct conformed to accepted veterinary practice for the area, or was a scientist whose conduct was a part of scientific research governed by accepted procedural standards subject to review by an institutional care and use committee;

(2) the defendant's conduct was designed to control or eliminate rodents, ants or other common pests on the defendant's own property;

(3) the defendant was a person appropriately licensed to utilize pesticides under chapter 87 of Title 6;

(4) the defendant humanely euthanized any animal as a representative of a duly organized humane society, animal shelter or town pound according to rules of this subchapter, or as a veterinarian destroying animals under chapter 193 or sections 3511 and 3513 of Title 20; or

(5) a state agency was implementing a rabies control program.

(c) An affirmative defense to a charge of abandonment under section 352 of this title shall not be recognized where a person abandons an animal at or near an animal shelter or veterinary clinic, farm or other place of shelter, without making reasonable arrangements for the care of the animal.

(d) The authority to enforce this chapter shall not be construed in a mannerinconsistent with the animal control or disease control eradication programs in Title 6, or chapters 191, 193, 194 and 195 of Title 20 or the provisions of part 4 of Title 10, or the rules adopted thereunder.

Sec. 10. 13 V.S.A. § 353 is amended to read:

§ 353. DEGREE OF OFFENSE; SENTENCING UPON CONVICTION*[; APPEAL]*

(a) Penalties.

(1) Except as provided in *[subdivisions (2) and]* subdivision (3) of this subsection,*[ ]*cruelty to animals under section 352 of this title shall be punishable by a sentence of imprisonment of not more than one year, or a fine of not more than $2,000.00, or both. Second and subsequent convictions shall be punishable by a sentence of imprisonment of not more than two years or a fine of not more than $5,000.00, or both.

(2) Aggravated cruelty under section 352a of this title shall be punishable by a sentence of imprisonment of not more than three years or a fine of not more than $5,000.00, or both. Second and subsequent offenses shall be punishable by a sentence of imprisonment of not more than five years or a fine of not more than $7,500.00, or both.

(b) In addition to any other sentence the court may impose, the court may require a defendant convicted of a violation under section 352 or 352a of this title to *[forfeit]* :

(1) Forfeit any rights to the animal subjected to cruelty, *[to repay]* and to any other animal, except livestock or poultry owned, possessed, or in the custody of the defendant.

(2) Repay the reasonable costs incurred by any person, municipality or agency for providing care for the animal prior to judgment*[, and to enjoin further possession of other animals by the defendant]*. If the court does not order a defendant to pay all the applicable costs incurred or orders only partial payment, it shall state on the record the reasons forthat action.

(3) Forfeit any future right to own, possess, or care for any animal for a period which the court deems appropriate.

(4) Participate in available animal cruelty prevention programs or educational programs, or both, or obtain psychiatric or psychological counseling, within a reasonable distance from the defendant's residence. The court may impose the costs of such programs or counseling upon the defendant when appropriate.

(5) Permit periodic unannounced visits for a period up to one year by a humane officer to inspect the care and condition of any animal permitted by the court to remain in the care, custody, or possession of the defendant. Such period may be extended by the court upon motion made by the state.

(c) Upon an order of forfeiture of an animal under this section or section 354 of this title, the court shall order custody of the animal remanded to a humane society or other individual deemed appropriate by the court, for further disposition in accordance with accepted practices for humane treatment of animals. A transfer of rights under this section constitutes a transfer of ownership, and shall not constitute or authorize any limitation upon the right of the humane society, individual, or other entity, to whom rights are granted to dispose of the animal.

Sec. 11. 13 V.S.A. § 354 is amended to read:

§ 354. ENFORCEMENT; POSSESSION OF ABUSED ANIMAL; SEARCHES AND

SEIZURES; FORFEITURE

(a) The commissioner of agriculture, food and markets shall be consulted prior to any enforcement action brought pursuant to this chapter which involves livestock and poultry.

(b) Any humane officer as defined in section 351 of this title may enforce this chapter. As part of an enforcement action, a humane officer may seize an animal being cruelly treated in violation of this chapter. *[A humane officer having probable cause to believe an animal is being subjected to cruel treatment in violation of this chapter outside of the officer's presence and wishing to enter the premises where the animal is kept to seize the animal shall obtain a search warrant.]*

(1) Voluntary surrender. A humane officer may accept animals voluntarily surrendered by the owner anytime during the cruelty investigation. The humane officer shall have a surrendered animal examined and assessed within 72 hours by a veterinarian licensed to practice in the state of Vermont.

(2) Search and seizure using a search warrant. A humane officer having probable cause to believe an animal is being subjected to cruel treatment in violation of this subchapter may apply for a search warrant pursuant to the Rules of Criminal Procedure to authorize the officer to enter the premises where the animal is kept and seize the animal. The application and affidavit for the search warrant shall be reviewed and authorized by an attorney for the state when sought by an officer other than an enforcement officer defined in 23 V.S.A. § 4(11). A veterinarian licensed to practice in Vermont must accompany the humane officer during the execution of the search warrant.

(3) Seizure without a search warrant. If the humane officer witnesses a situation in which the humane officer determines that an animal's life is in jeopardy and immediate action is required to protect the animal's health or safety, the officer may seize the animal without a warrant. The humane officer shall immediately take an animal seized under this subdivision to a licensed veterinarian for medical attention to stabilize the animal's condition and to assess the health of the animal.

(d) If an animal is seized under this section, the state may file a motion in the criminal action for an order requiring the defendant to forfeit any and all rights in the animal prior to final disposition of the criminal charge.

(e) Upon the filing of a motion under subsection (c) of this section, the court shall set a hearing to be held as soon as practicable.

(f) At the hearing on the motion, the state shall have the burden of establishing by clear and convincing evidence that the animal was subjected to cruelty, neglect or abandonment in violation of section 352 of this title. The court shall make findings of fact and conclusions of law and shall issue a final order. If the state meets its burden of proof, the motion shall be granted and the court shall order the immediate forfeiture of the animal in accordance with the provisions of subsection 353(c) of this title. If the defendant, within 48 hours after the hearing, posts a security deposit in an amount of $30.00 per animal, the animal shall remain in custodial care until final disposition of the criminal charges. After 30 days, the defendant shall post an additional security deposit in the amount of $30.00 per animal until resolution of the criminal charges. If the defendant fails to post therequired security deposit, the court, upon motion by the state, shall order immediate forfeiture of any unsecured animals, unless such deposit requirement is waived by the court for good cause shown.

(g) If the defendant is convicted of criminal charges under this chapter, the defendant shall be required to repay all reasonable costs incurred by the custodial caregiver for caring for the animal, including veterinary expenses.

(h) If the defendant has posted a security deposit in accordance with subsection (e) of this section and is subsequently acquitted of charges of violating the provisions of this chapter, the agency or person with whom the security deposit was posted shall return the security deposit to the defendant, less the reasonable cost of caring for the animal.

(i) The provisions of this section are in addition to and not in lieu of the provisions of section 353 of this title.

Sec. 12. 13 V.S.A. § 365(a) is amended to read:

(a) All *[animals customarily known as]* livestock*[, including cattle, sheep, goats, horses and other equidae and camelids]* which are to be predominantly maintained out-of-doors must be provided with adequate shelter to prevent direct exposure to the elements.

Sec. 13. 13 V.S.A. § 366(a) is amended to read:

(a) *[A]* No live animal shall be used as a fund-raising device or award in a contest, lottery, game, or promotion by any person or entity other than at an event recognized by an agricultural or sporting association. An alternative cash prize shall be offered. A person or entity shall not *[be transferred or awarded]* transfer or award an animal without reasonable assurance that the person receiving the animal will provide proper transportation and adequate care.

Sec. 14. 20 V.S.A. § 3903 is amended to read:

§ 3903. REGISTRATION OF ANIMAL SHELTERS

(a) No person may operate an animal shelter after the expiration of six months following the effective date of this chapter unless a certificate of registration for the animal shelter has been granted by the commissioner. Application for the certificate shall be made in the manner provided by the commissioner. No fee shall be required for the certificate. Certificates of registration shall be valid for a period of one year or until revoked, and may be renewed for like periods upon application in the manner provided.

(b) An animal shelter registered under this chapter shall not accept an animal unless the donor provides the following information: the name and address of the donor and, if known, the name of the animal, its vaccination history and other information concerning the background, temperament and health of the animal.

Approved: April 27, 1998