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BILL AS INTRODUCED 2007-2008

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H.358

Introduced by   Representatives Kilmartin of Newport City, Andrews of Rutland City, Barnard of Richmond, Donovan of Burlington, Errecart of Shelburne, French of Randolph, Grad of Moretown, Head of S. Burlington, Hosford of Waitsfield, Jerman of Essex, Koch of Barre Town, LaVoie of Swanton, Marcotte of Coventry, McDonald of Berlin, Morrissey of Bennington, Oxholm of Vergennes, Pellett of Chester, Perry of Richford, Pugh of S. Burlington, Shaw of Derby, Valliere of Barre City, Wheeler of Derby and Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  Crimes; humane and proper treatment of animals; service animals

Statement of purpose:  This bill proposes to:  (1) prohibit a person from interfering with any service animal in the course of the performance of its duties or training as a service animal; (2) establish penalties for cruelty to a service animal or for the killing of a service animal; and (3) permit an owner or user of a service animal who has been harmed in violation of this act to obtain restitution from or file a civil action against the person who violated this act.

AN ACT RELATING TO INTERFERENCE WITH OR CRUELTY TO A SERVICE ANIMAL

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

Sec. 1.  13 V.S.A. § 355 is added to read:

§ 355.  INTERFERENCE WITH OR CRUELTY TO A SERVICE ANIMAL

(a)  As used in this section, “service animal” includes:

(1)  An animal that a person who has an impairment or disability that substantially limits the performance of major life activities relies upon for assistance in performing major life activities or as an alert signal regarding the onset of a person’s medical condition and which has been trained to provide these services to a human being.

(2)  An animal used by law enforcement, fire departments, or other federal, state, or local officials in an official capacity for law enforcement purposes, investigation of fires, search and rescue, seeking missing persons, or security services.

(3)  An animal used by an essential public service, a nuclear power plant, or public or private utility for the purpose of securing the site against sabotage or terrorism.

(4)  An animal being trained for the purposes set forth in subdivisions (1), (2), and (3) of this subsection.

(b)  No person shall interfere with or permit an animal that he or she owns or is in immediate control of to interfere with the use or training of a service animal by obstructing, intimidating, teasing, or otherwise jeopardizing the safety of the service animal or its user if the person knows or reasonably should know that the animal is a service animal.  A person who violates this subsection shall be:

(1)  for a first offense, imprisoned not more than one year or fined not more than $1,000.00, or both. 

(2)  for a second or subsequent offense, imprisoned not more than two years or fined not more than $2,000.00, or both. 

(c)  No person shall intentionally torment, torture, beat, strike, or administer a desensitizing drug, chemical, or substance to a service animal.  The duty status of a service animal at the time of the offense is not a factor in the application of this subsection.  A person who violates this subsection shall be:

(1)  for a first offense, imprisoned not more than two years or fined not more than $2,000.00, or both. 

(2)  for a second or subsequent offense, imprisoned not more than three years or fined not more than $3,000.00, or both. 

(d)  No person shall recklessly kill or permit an animal that he or she owns or is in immediate control of to kill a service animal.  The duty status of a service animal at the time of the offense is not a factor in application of this subsection.  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $3,000.00, or both.  For a second or subsequent offense, a person shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

(e)  No person shall intentionally kill or permit an animal that he or she owns or is in immediate control of to kill a service animal.  The duty status of a service animal at the time of the offense is not a factor in application of this subsection.  A person who violates this subsection shall be imprisoned not more than five years or fined not more than $10,000.00, or both.  For a second or subsequent offense, a person shall be imprisoned not more than ten years or fined not more than $20,000.00, or both.

(f)  The penalty for a violation of this section which was committed during the commission of a felony shall be the same as the penalty for the felony but shall not exceed more than 10 years in prison.

(g)  It shall be an affirmative defense to any criminal prosecution under this section that the service animal was being used during the commission of a felony, or to any criminal prosecution for a service animal as defined in subdivision (a)(1) of this section that the service animal posed a significant and imminent danger to another human being or domestic animal when the actions being prosecuted are alleged to have occurred and that the actions taken by the accused were to protect against the danger posed by the service animal.  Proof of the affirmative defense shall be by clear and convincing evidence.

(h)  As provided in section 7043 of this title, restitution shall be considered by the court in any sentencing under this section if the victim has suffered any material loss.  Measure of material loss shall include veterinary medical expenses, costs of temporary replacement assistance services whether provided by a person or an animal, replacement value of an equally trained service animal without any differentiation for the age or experience of the animal, loss of income and wages, and any other costs and expenses incurred by the person as a result of the injury to the service animal.

(i)  A person who uses a service animal or who is the owner of a service animal may bring, in addition to any penalties provided herein, an action for compensatory and punitive damages against any person who violates this section with regard to the person’s service animal.  It shall be an affirmative defense to any civil action under this subsection that the service animal was being used during the commission of a felony, or to any civil action for a service animal as defined in subdivision (a)(1) of this section, that the service animal posed a significant and imminent danger to a human being or another domestic animal when the actions being charged are alleged to occur and that the actions taken by the accused were to protect against the danger posed by the service animal.  Proof of the affirmative defense shall be by a preponderance of the evidence.  The court shall award reasonable attorney fees and expert witness fees to the prevailing plaintiff in an action under this subsection.  The court may award reasonable attorney fees and expert witness fees uncured by a defendant who prevails in the action if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no objectively reasonable basis for appealing an adverse decision of a trial court.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us