HomeMy WebLinkAboutAgenda - 04-08-2014 - 2 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: April 8, 2014
Action Agenda
Item No. 2
SUBJECT: Decision Items for the Unified Animal Control Ordinance
DEPARTMENT: Animal Services PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
A) Summary of Recommendations Bob Marotto, Animal Services Director,
B) Work Sheets 919.968.2287
1. Livestock & Public Nuisance Michele Walker, JD, Chair, Animal
2. Appeal Process Services Advisory Board,
3. Trespass & Vicious Animals 919.448.8029
4. Watch Dogs Susan Elmore, DVM, Past Chair, Animal
C) School of Government Documents Services Advisory Board,
1. Trespass in Animal Control 919.541.3474
Ordinance
2. Trespass Decision Diagram
3. Parental Responsibility When Dog
Bites Child
D) ASAB My Dog Scenarios
E) Excerpt from Approved October 1,
2013 BOCC Meeting Minutes
F) Excerpt from Approved June 4, 2013
BOCC Meeting Minutes
G) Clean Draft Unified Animal Control
Ordinance
PURPOSE: To consider recommendations from staff and the Animal Services Advisory Board
regarding the most challenging issues arising from prior discussion of the proposed unified
animal ordinance and to provide direction to the County Attorney in making revisions in the
proposed ordinance.
BACKGROUND: The Board most recently discussed the proposed unified animal control
ordinance at its October 4, 2013 meeting. There was appreciation for the effort of Animal
Services staff and the Animal Services Advisory Board (ASAB) and the overall effort to create a
more coherent and comprehensible animal control code for Orange County residents.
At the same time, the Board asked staff and the ASAB to further consider several particularly
challenging issues arising from the ordinance and to return to the Board with recommendations
for addressing and ideally resolving these issues. These issues are:
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1. Trespass: The issue of trespass is how to define trespass since a dog that bites a
person who enters the dog owner's property may not be declared a vicious animal under
the proposed ordinance if the bitten person is "trespassing".
2. Watchdog. There are additional exceptions to application of a vicious animal declaration
for a dog that bites a person on the dog owner's property in the circumstance where a
dog is acting in a security capacity. The formulation of one of those exceptions — if the
dog is being a "watch dog" — concerns the need to recognize a necessary and lawful role
for a dog watching over its owner's property.
3. Administrative appeal: Some procedural issues, such as whether there should be sworn
testimony, are in need of clarification; and more generally, there is the question of the
best format for appeals in the absence of an established standard.
4. Livestock and Public Nuisance: The issue of whether there should be a special provision
for livestock in the public nuisance provision of the ordinance is included among these
issues because historically it has needed clarification.
Each of these issues is addressed in more detail in separate work sheets (attached) which may
serve to structure Board discussion. Each sheet includes background information, the pertinent
portion of the proposed ordinance, and specific recommendations for Board consideration. A
"Summary of Recommendations" including specific recommendations for each issue is also
provided for convenience and ease of review.
Staff and the ASAB have worked closely in developing the recommendations being presented to
the Board. The recommendations have been presented to the ASAB on two different occasions
since the October 4, 2013, BOCC meeting and the ASAB unanimously voted in favor of the
recommendations both times. At another meeting, the ASAB developed a list of scenarios
involving "my dog" to help clarify issues and guide further discussion of the trespass and watch
dog issues. It was believed that doing so would inform a policy discussion that should balance
the rights of property and pet owners and the health and safety of the public.
In addition, this effort helped create the basis for a request for assistance from Aimee Wall, JD,
Associate Professor, School of Government, University of North Carolina-Chapel Hill. As others
pointed out in the various discussions of the proposed ordinance, Professor Wall is a recognized
authority on animal control regulations (and the author of A North Carolina Guide to
Animal Control Law).
Professor Wall and her associate, Christopher Tyner, analyzed the complex and critical issue of
trespass in law and in the course of their analysis considered whether there might be a different
approach to the watch dog issue. Based on their analysis they developed a flow diagram to
help staff decide whether or not a trespass has occurred in a particular case (attachment).
Professor Wall and Mr. Tyner also interviewed expert colleagues at the School of Government
about the issue of administrative appeal and provided not only some procedural
recommendations, but an overall word of caution.
Professor Wall and Mr. Tyner met with Animal Services staff and ASAB officers to discuss their
analysis of trespass in the proposed ordinance, and the issues of watch dogs and administrative
appeal. On this basis, they also revised and broadened their written analysis of trespass
(attachment) to include children whose relation to negligence and hence trespass differs from
adults. This is a welcomed addition since children are disproportionately represented among
dog bite victims, and there is justified concern with how children are treated under the proposed
ordinance.
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Staff and ASAB officers identified specific revisions in the ordinance that could and should be
made on the basis of the analysis provided by Professor Wall and her associate. They obtained
confirmation from School of Government staff that these revisions were consistent with their
written analysis in the case of trespass and watchdog and their verbal guidance regarding
administrative appeal. With the exception of one or two consistent ideas emerging from prior
discussions by the Board, these are the recommendations presented in the work sheets referred
to above.
FINANCIAL IMPACT: There is no financial impact from the Board's discussion of the
recommendations provided by staff and the ASAB or from the Board providing the direction
needed to make the revisions required for further consideration of the proposed ordinance.
RECOMMENDATION(S): The Manager recommends that the Board discuss the
recommendations and provide direction to the County Attorney in revising the proposed
ordinance for further consideration by the Board.
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Attachment A
SAmmary of Fboommendations:
Proposed Unified Ordinance
BOCCWork Session
April 8,2014
LIVESTOCK&PUBLICNUISDNCE
Affected section of proposed ordinance: Sec.4-45.-Public nuisance.
SAbstitute the following language into the public nuisance section(Sec.4-45)of the proposed ordinance
for(b)(6):
Except in the case of domestic livestock, any animal at large off the premises of the owner or
keeper.At large domestic livestock will be considered a public nuisance when it, in the judgment
of the Animal %rvices Director, or designee,presents an immediate public danger, is destroying
or damaging property, is violating property rights, or has been habitually at large.
APPEAL PROCESS SX)PEAND FORM (PART I)
Affected section of the proposed ordinance: Sec.4-42.-Control of vicious animals; security dogs; Sec.
4-45. -Public nuisance; Sec.4-54.Appeals; Sec.4-71.amass I kennels.
1. Limit the process of administrative appeal in the proposed ordinance to two issues: (1)
potentially dangerous dog declarations under state law(such appeals are currently conducted
by a committee of the ASAB)and(2)vicious animal declarations. Identify any alternative appeal
mechanism for administrative actionsthat would be taken under the proposed ordinance, i.e.,
an order to remove a nuisance animal or the revocation of a kennel permit.)
2. Define thejudicial processes available for the appeal of civil citationsfor code violations and
certain administrative actions in a manner that is readily available to residents.
3. Consider in due time whether there is a need for a more general administrative appeal process
to be included in the unified animal ordinance.
APPEALPROCESS PROCBDURALGUIDB.INES(PARTII)
Affected section of the proposed ordinance: None
1. Animal Services staff and the County Attorney should develop procedural guidelines for any
administrative appeal processes conducted under the proposed ordinance.
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Simmaryof Reowmmendations
Page 2
2. The procedural guidelines should include delineation of:
a. The role of Animal Services staff
b. The general structure of hearings
c. The swearing in process for witnesses
d. A process of indirect cross-examination
3. There should be appropriate training for ASAB members and/or others who are members of a
body responsible for administrative appeals
4. Fbview of the procedural guidelines and proposed training should be requested from S�hool of
Government staff
TFISPASS
Affected section of the proposed ordinance: Sec.4-42.-Gontrol of vicious animals; security dogs.
1. Develop ordinance language that defineswillful trespass more explicitly according to whether
there is
a. Apparent consent to enter onto the property in the absence of overt or express
permission to do so, i.e.,the absence of express consent.
b. Gross negligence on the part of the bite victim.
2. Consider further whether there can be ordinance language that that discriminates between
children and others for the purposes of determining whether awillful trespass has occurred and
if so develop such language for Board discussion
3. Develop language for a two-step processfor"non-severe bites' on the property of the dog
owner under the Unified Ordinance's vicious animal provisions
a. A citation for a first bite that serves to notify the owner of his or her dog's propensity
without declaring the dog vicious in a manner that imposes conditions and restrictions.
b. Avicious animal declaration for a bite occurring after the issuance of the citation at step
one that imposes conditions and restrictions on the dog.
WATCH DOG
Affected section of the proposed ordinance: Sec.4-37. -Definitions.; Sec.4-42.-Control of vicious
animals; security dogs.
1. Exclude watchdogs from the general category of security dogs in the proposed ordinance
2. Develop language to exempt a dog from being deemed vicious if the dog is being protective of
person or property in circumstances in which either or both of the following apply:
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Simmaryof Reowmmendations
Page 3
a. There is an absence of consent (expressed or implied)for the bite victim to have
entered the property on which si he was bitten
b. The bite victim could have avoided the bite by responding to signal behaviors from the
dog and removing him or herself from the property(or some portion thereof)of the
owner of the biting dog.
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Attachment B(1)
LIVESTOCK&PUBUCNUIS4NCE
Background
There has been an ongoing discussion of whether livestock should have a different statusthan
companion animals such as dogs and cats in the public nuisance provision of the proposed unified
ordinance. This discussion predates the presentation of the ordinance but it has continued since the
ordinance was brought forward.
At the October 4,2014, BOOCmeeting, no Commissioner voiced opposition to making such a change in
the proposed ordinance. Some spoke in favor of making such a change and one asked that the
conditions under which livestock were excepted from general nuisance provisions be articulated more
clearly in subsequent versions of the ordinance. The Commissioner specifically suggested that it would
be beneficial to explicitly indicate that exceptionswould be due to circumstances or factors outside of
the control of a farmer.
There has been a fair amount of back and forth between the AS4B and the Agricultural Preservation
Board (APB)about this concern.' After the October 5 Board meeting the AS4BChair communicated
with a member of the APB about this matter. Subsequently,the APB drafted the language that they
preferred for the livestock exception (see below)and it was then reviewed and endorsed by the ASAB.
Fboommendation
1. Substitute the following language into the public nuisance section(Sec.4-45)of the proposed
ordinance for(b)(6) (highlighted in the following section):
Except in the case of domestic livestock, any animal at large off the premises of the owner or
keeper.At large domestic livestock will be considered a public nuisance when it, in the judgment
of the Animal %rvices Director, or designee,presents an immediate public danger, is destroying
or damaging property, is violating property rights, or has been habitually at large.
Proposed Ordinance Subject to Change
Only one provision of the proposed ordinance would need to be changed as a result of the
recommendations being made to the Board. This provision from the version of the ordinance the Board
reviewed on October 4,2014 appears below.
DIVISON 1. -GENERALLY
Sec.4-45. -Public nuisance.
(a) In General. It shall be unlawful for an owner or keeper to permit an animal or animalsto create
a public nuisance,or to maintain a public nuisance created by an animal or animals.
1 Animal SanAces staff and ASAB officers did not discussthis issue with BDGstaff.
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Livestock&Public Nuisance
Page 2
(b) Prima Fade Evidence. Actions deemed prima fade evidence of a public nuisance include the
following activities of any animal, or conditions maintained or permitted by the animal's owner or
keeper:
(1) Habitually or repeatedly,without provocation, chasing, snapping at or attacking pedestrians,
bicydes, persons lawfully entering the property to provide a service, other animals being walked on a
leash, or vehides even if the animal never leaves the owner's property, except that this provision shall
not apply if such animal is restrained by a pen,fence, or other secure enclosure. For purposes of this
section,an"underground fence" shall only be considered secure if it in fact contains the animal and a
small sign or other notification is present to alert others that the animal is restrained.
(2) Interferingwith the reasonable use and enjoyment by neighboring residents of their property
because of its odor or excessive noise making. For purposes of this subsection, excessive noise making
shall include repeated episodes of barking, howling,whining, crying, and crowing only if the rooster is
within the town limits or Carrboro,Chapel Hill,or Hillsborough.
(3) Afemale dog that is not confined while in heat in a building or secure endosure in such a
manner that she will not be in contact with another animal, provided that this section shall not be
construed to prohibit the intentional breeding of animalswithin an endosed area on the premises of the
owner or keeper of an animal involved in the breeding process.
(4) Damages the property of anyone other than its owner or keeper, induding but not limited to,
turning over garbage containers or damaging gardens,flowers, shrubbery,vegetables or trees,fences or
gates,or causing injury to domesticated livestock or pets.
(5) Without provocation, inflicts on any person a serious injury requiring treatment by a physidan,
induding but not limited to a bite or scratch that breaks the skin.
(6) At large off the premises of the owner or keeper; except in the case of domestic livestock the
Animal Services Director,or designee,shall have the discretion to determine a violation.
(7) The provisions of subsections(1)through (5)above of this section shall not apply to cats.
However, cats may be deemed a public nuisance when off the premises of its owner or keeper when
they:
9
Attachment B(2)
APP6AL PROCESS(Part 1)
Scope and Form of Appeal
Background
Commissioners appeared to support the availability of an appeal process for civil citations for code
violations(e.g.,failure to vacci nate a dog or cat for rabies)and administrative actions taken under the
authority of the ordinance(e.g., a vicious animal declaration). Also,there were no strong concerns
voiced about the process being quasi judicial,that is, involving residentswho had been appointed to a
board with the function of providing an appeal venue for administrative decisions.
However,there was no agreement on how to provide administrative appeal. Some Commissioners
favored having the Animal Services Advisory Board provide the appeal process(as it now does for
potentially dangerous dog declarations made under North Carol ina's statutes) recognizing the subject
matter familiarity of board members and in order to avoid creating another county board.
Other Commissioners asked about the merits of other formats for the appeal processor whether there
should be a two-step process of administrative appeal. Fblated tot his approach are concerns raised by
some residents that the dose relationship between Animal Services staff and theAS4B may bias any
administrative appeal process offered under the proposed ordinance.
The meeting with Professor Wall and Mr.Tyner made Animal Services staff and the ASAB realize the
downsidesto a comprehensive administrative appeal process for the proposed ordinance. Two
especially notable concerns are 1)the potential liability to the county of providing such an appeal, and
2)the administrative burden that such a processwould place upon Animal Services and other county
staff.
Agreement emerged from the discussion with Professor Wall and M r.Tyner that it would be beneficial
to better define(or articulate)what appeals exist for residents through the court system. These are not
well known to residents and Animal Services staff has been counseled to not refer residents to civil court
to appeal civil citations and penalties. There was also agreement that it made the most sense to begin
by extending the scope of administrative appeal in the proposed ordinance to the area in which such an
appeal now applies in state law, namely, animals posing a danger to the public.
Animal Services presently declares dogs potentially dangerous or dangerous under state law on the
basis of reports of bites or aggressive incidents that occur off the property of a dog owner. Animal
Services may also declare an animal vicious under a county or municipal ordinance and in some
circumstances this declaration is made to fill a void because state law does not apply even though there
has been a bite. This is especially true with bites that occur on the property of the dog owner which do
not result in"broken bones or disfiguring lacerations or require cosmetic surgery or hospitalization."
Mate law guarantees the owner of a dog declared potentially dangerous a right of appeal and a
committee of the AS4B constitutes a three person board for such appeals. By contrast,there is no right
or mechanism of appeal for the owner of a dog declared vicious under the county's current animal
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Appeal Process
Page 2
control ordinance. The extension of the existing appeal for potentially dangerous dog declarationsto
also allow for appeal of vicious animal declarations thus has precedent and it is further justified by the
fact that dogs deemed potentially dangerous and/or vicious become subject to additional restrictions
under the proposed ordinance.
More generally, it was agreed that the costs and benefits of an administrative appeal needed to be
examined more carefully before it became a general process but that approval of the proposed
ordinance need not be dependent upon such examination. The reasoning for proceeding in thisway is
that there is no administrative appeal under the county's present animal control ordinance.
F;bcommendations
1. Limit the process of administrative appeal in the proposed ordinance to two issues: (1)
potentially dangerous dog declarations under state law(such appeals are currently conducted
by a committee of the ASAB)and(2)vicious animal declarations. (Identify any alternative appeal
mechanism for administrative actionsthat would be taken under the proposed ordinance, i.e.,
an order to remove a nuisance animal or the revocation of a kennel permit.
2. Define thejudiaal processes available for the appeal of civil citations for code violations and
certain administrative actions in a manner that is readily available to residents.
3. Consider in due time whether there is a need for a more general administrative appeal process
to be included in the unified animal ordinance.
Proposed Ordinance Section Sabiect to Change
Three different provisions of the proposed ordinance would need to be changed based upon the
recommendations being made to the Board. These provisions are from the version of the ordinance the
Board reviewed on October 4,2014, and they appear below.
DIVISON 1. -GENERALLY
Sec.4-42. -Control of vicious animals;security dogs.
0) Appeal. Any declaration that an animal is"vicious" may be appealed to the Orange County
Animal Services Advisory Board as provided in this Chapter.
Sec.4-45. -Public nuisance.
(c) Violation.
(1) Failure to Abate a Violation. If the public nuisance has not been abated after the time indicated
in the Abatement Order,then the Animal Service Director shall notify the owner or keeper in writing
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Appeal Process
Page 3
that the animal may be impounded or a civil penalty may be issued and/or a criminal summons may be
issued.
(2) Animals F;bmoved from County. The Owner or Keeper of any animal who has been required to
remove the animal pursuant to this Section shall,within five(5)days after removal, inform the
Administrator or designee in writing of the animal's present location, including the name, address and
telephone number of the animal's owner or keeper. If the animal has been destroyed,the Administrator
shall be informed of the name, address,and telephone number of the person who destroyed such
animal.
(3) Sbbsequent Violations. The Animal Services Director or designee may impound an animal if a
third verified violation occurswithin one year of any other previous violations of this Section.
(4) Right of Appeal. An Owner or Keeper shall have a right to appeal a citation or removal of an
animal under this Section in accordance with Section 4-54 of this Chapter.
Sec.4-54. -Appeals.
Any appeals of the Chapter shall be to the Orange County Animal Services Advisory Board within
5 days of the final decision of the action. The Animal Services Advisory Board shall adopt rules regarding
the appeals of violations of the Chapter.
DIVISION 2. -KEMNR-AND PI7SHOPSTANDARDS
Sec.4-71.—Class I kennels.
(f) Fbvocation. Apermit issued in accordance with this section maybe revoked by the
Administrator after notice and hearing,for any reason that would havejustified denial of the permit in
the first instance or for violation of another section of the Chapter. If the Administrator denies or
revokes a permit in accordance with this section,the owner or operator shall be notified of their right to
apppeal such decision in accordance with Saction 4-54.
Sec.4-72. -Class II kennels
(g) A permit issued in accordance with this section may be revoked by the Administrator after
notice and hearing,for any reason that would havejustified denial of the permit in the first instance or
for other violations of this Chapter. If the Administrator denies or revokesa permit in accordance with
this section,the owner or operator shall be notified of their right to appeal such decision in accordance
with Section 4-54.
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APP64L PROCESS(Part 11)
Procedural Guidelines
Background
In the Commissioners' discussion of the proposed ordinance, some issues arose concerning proper
procedure for conducting administrative appeals. One issue was whether testimony should be sworn in
administrative appeal and it was suggested that sworn testimony should be the standard for these
appeal hearings.
Fblatedly,there was a question of why testimony is not presently sworn in the potentially dangerous
dog appeal hearings offered understate law by an ASAB committee. The County Attorney explained
that one reason was that there were no appeals per se of the rulings of this committee but that second
step appeals were conducted de novo to SAperior Court.
More generally,there seemed to be a concern with what standards should apply in the administrative
appeal process to ensure that the process was fair and conformed to due process principles. The
question of standards may not have been formally and thoroughly discussed but ultimately it seemed to
be a significant concern.
A significant outcome of the discussion with Professor Wall and her associate was to clarify some of the
different issues entangled in the discussion of standards. As noted in the abstract, she had conferred
with some of her S�hool of Government colleagues regarding the issue of standards as well as the
personnel who could and/or should be responsible for appeals.
There were a number of "take-aways" from the discussion with S�hool of Government staff. One was
that testimony should be sworn to ensure that witnesses had an obligation to be truthful in their
testimony.There was mention that certain Animal Services staff could become notaries and swear in
witnesses at hearings.
Another point was that there needed to bean appropriate form of cross-examination. It wasagreed
that indirect cross-examination by members of the appeal body combined with an opportunity for
rebuttal by the involved parties in their dosing statements,would ensure adequate cross-examination.
All believed that this is the preferred approach given the high level of emotion that often characterizes
discussion of pets and the distinct possibility that there could be safety concernsfor those involved.
Two other notable"take-aways" are closely related. One was that the role of Animal Services staff
should be carefully circumscribed, and even more specifically,that they should only be involved in the
strictly administrative aspects of appeal hearings, e.g. scheduling and distribution of case files. Any role
greater than this administrative role risks conflicts of interest since what essentially is at issue in a
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Appeal Process
Page 5
hearing is the action of Animal Services staff(as in the decision to deem a dog potentially dangerous
and/or vicious).
The other was that there needed to be proper training for members of the hearing body to ensure that
administrative appealswere conducted satisfactorily. The discussion strongly suggested that this
training should not be limited to substantive aspects of regulations and rules of evidence. In addition,
there would need to be training on the procedures for the administrative appeal process itself.
Recommendations
1. Animal Services staff and the County Attorney should develop procedural guidelines for any
administrative appeal processes conducted under the proposed ordinance.
2. The procedural guidelines should include delineation of:
a. The role of Animal Services staff
b. The general structure of hearings
c. The swearing in process for witnesses
d. A process of indirect cross-examination
3. There should be appropriate training for ASAB members and/or otherswho are members of a
body responsible for administrative appeals
4. Fbview of the procedural guidelines and proposed training should be requested from School of
Government staff
Proposed Ordinance Section Subject to Change
No provisions of the proposed ordinance include or make reference to procedures for the administrative
appeal process. The above recommendations are not envisioned as revisions in the ordinance itself but
there maybe a question as to whether the documents that are developed should be included by
reference in the proposed ordinance.
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Attachment B(3)
TFEEPASS& WOOUSAN/MALS
Background
Acomplex and challenging issue arising in the Gommissioners' discussion is the way in which"trespass'
should be defined and understood in the context of the Unified Ordinance. A primary reason for this is
that how trespass is defined has consequences for whether a dog will be declared as a vicious animal
when it bites someone who has come on its owner's property without invitation or permission.
Currently,the county's ordinance has a basic notion of trespass, namely, a person entering onto
property without invitation or permission from a property owner. If a person is trespassing in this sense
and si he is bitten by a dog,the dog may not be regarded as a vicious dog(Sec.4-37). By contrast,the
Unified Ordinance proposed a more complex notion, recognizing that many different people enter onto
other people's property without permission for many different reasons. Specifically, it used"willful
trespass" in place of the essentially binary(or black and white)notion of trespassfound in the existing
ordinance as a basisfor making exceptionsto declaring a dog dangerous. '
At the October 4,2013, Board meeting,therewas a thorough discussion of trespass in relation to the
flux of daily life in in our own and other communities. Some parts of the discussion were concerned
with how people's own dogs would be affected if they behaved protectively on their property. Other
parts of the discussion underscored the wide variety of diverse but entirely lawful reasons a person
enters onto the property of another without permission or explicit invitation.
The discussion suggested that ideally the notion of trespass used in the proposed ordinance should be
deepened in order to allow consistent and meaningful distinction between justifiable and unjustifiable
bites to uninvited persons that occurred on the private property of a dog owner. The full range of such
incidents was further suggested in the discussion"my dog scenarios" developed by the ASAB after the
Commissioner's October 4,2013 meeting to serve as an aid to further analysis of trespass and ultimately
its definition in the Unified Ordinance.
It was in this context that Professor Aimee Wall and her associate, Christopher Tyner, responded to our
request for assistance by providing a detailed analysis of the notion of trespass and developing a flow
diagram for decision-making.2 They met with staff and ASAB representatives to discusstheir analysisof
trespass(among other issues)and its implications for the Unified Ordinance. SAbsequently,they revised
their written analysis.The final version of their analysis and their decision-making diagram are among
the attachments for this agenda item.
Among other things,their revised analysis addresses the legal issue of whether children can and should
be held to the same standards of conduct as adults with regard to trespass. This was another issue that
emerged at the Board's October meeting with Commissioners expressing varied opinions.
In doing so, it constructed the ordinance on the basis of the precedent provided by and in a manner parallel to
North Carolina's dangerous dog law(674.1),which usesthe notion"willful trespass" aswell.
2 The diagram was not intended to become part of the ordinance but rather to serve as instrument staff would use
in analyzing the"totality of circumstances" in particular cases.
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Trespass& ViaousAnimals
Page 2
Professor Wall and Mr.Tyner's analysis reveals that children and adults are not, in fact,treated the
same in law, and at least suggests that social policy codified in the County's ordinance should somehow
reflect their significant difference in standing, competencies, and responsibility.
Fundamental to the approach recommended by Professor Wall and Mr.Tyner isthat it is not sufficient
to determine whether or not thevictim of a bite ison the property of the owner without some explicit
permission from the owner. 3 The reason is that there is a substantial body of applicable law recogniang
that there are many lawful reasons for a person to be on another person's property without explicit
and/or prior permission.Acritical question is,then,whether there isawillful trespass, i.e.,atrespass in
which a person willingly enters onto the property of another despite indications that s/he should not do
so or should have reservations about doing so.
Whether there isawillful trespass, according to Professor Wall and Mr.Tyner, depends upon prevailing
social customs. As a result of civil codesthat have come into existence historically,there are many
situations in which it is permissible or even expected that a stranger or uninvited person may enter onto
the property of another. Going to a neighbor's house to borrow something is a very simple illustration.
In situations of this kind,there iswhat Professor Wall and Tyner describe as"apparent (or implied)
consent" based upon social (or community)custom, and according to their analysis,this iswell
recognized in trespass laws.
Determining whether an uninvited person has the apparent consent of an owner to enter onto his or her
property depends upon various characteristics of the property. Sbme of these are quite explicit and
unequivocal , e.g., signs declaring"No Trespass" or"Beware of Dog." Others take very material forms,
e.g., fences and gates. Varied characteristics can and do combine in some powerful messages,for
instance, stockade fencingwith no trespass signs at frequent intervals.
Others characteristics of a property may indicate not only whether there is apparent consent but the
scope of such consent. One illustration is a sidewalk from a public street that ends at a front door or
breezeway. In this situation, it maybe readily apparent that a person may approach the house but not
nearly so apparent that that there is an implied consent for them to go elsewhere on the property.
Another illustration is a paved or gravel driveway that comes up to a house and then transitionsto a dirt
road that Ieadsto outbuildingswell beyond the house. As in the first illustration,the apparent consent
for an uninvited guest to come onto the property may well end when s/he comes to the house and
transition in the driveway.
3 In no way doesthis approach discount the importance of knowing whether a person has been invited onto the
property on which they were bitten by the dog owner. 3ich invitation is what Professor Wall and Mr.Tyner refer
to as"express consent" and such consent essentially means that the victim of the bite was not trespassing. There
could well be other reasons why the biting dog is not declared a vicious dog,e.g.,the bite victim has tormented or
abused the animal in the past or somehow provoked the person at the time of the bite. However,an exception
may not be made to declaring the dog vicious because of trespassing when a bite victim has permission or express
consent to enter onto private property.
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Trespass& ViaousAnimals
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An important corollary of Rofessor Wall and Mr.Tyner's analysis of the meaning of trespass in
applicable law is that the behavior of the bite victim is not immaterial in the analysis of whether there is
a willful trespass. Aperson's gross negligence in evaluating and acting on their perception of either
express or implied consent to enter property should necessarily enter into an evaluation of whether a
willful trespass has occurred. Negligence of this kind is varied and it may involve a variety of property
characteristics including the presence of a dog and its behavior.
With regard to express consent,there maybe a misunderstanding of the terms or scope of the
permission someone has received from a property owner. For instance,a person may enter into a
fenced backyard when they were actually told to come to the front yard to have the children play.
Customary understanding of property characteristics will be most prominent in cases involving the
question of whether someone had the apparent consent of an owner to enter his or her property. One
illustration is a person opening a dosed fence behind to approach a residence. Another illustration is a
person who walks pasta house and through a fence gate toward some distant outbuildings even as they
hear dogs barking in the distance.
Two observations need to be made before dosing this discussion. One is that during Commissioners'
discussion at their meeting on October 4,2013, one suggestion made was that a dog's first bite without
justifiable cause on the owner's property could be addressed with a citation under Unified Ordinance.
In this approach,the citation would serve to notify the owner of the dog of its propensity to bite and the
owner's responsibility to ensure that the dog did not have the opportunity to do so absent ajustifiable
cause. Only the second time the dog bit on the owner's property without some justifiable cause would
the dog be deemed vicious and subject to the conditions and requirements of a vicious animal as
defined in the Unified Ordinance.
The second observation is about the role of local government in assuring public health and safety.
Many dog bites occur on private property but these bites are only subject to action under the North
Carolina's Dangerous Dogs law(67-4.1 through 67-4.4)if a bite results in"broken bones or disfiguring
lacerations or require(s)cosmetic surgery or hospitalization." What this means is that under the statute
it is not possible to place restrictions on the dog(such as being in a secure enclosure on the owner's
property) in an effort to prevent someone else from being bitten by the same dog unless the bite is
severe. Historically,this gap has been filled by local ordinances such as county and town vicious animal
ordinances which can be constructed to cover the significant gap instate law that exists for bites that
occur on the dog owner's property that do not reach the threshold of breaking bones,causing
disfiguring lacerations or requiring hospitalization or cosmetic surgery.
17
Trespass& ViaousAnimals
Page 4
Fboommendation
1. Develop ordinance that defines willful trespass more explicitly according to whether there is
a. Apparent consent to enter onto the property in the absence of overt or express
permission to do so, i.e.,the absence of express consent.
b. Gross negligence on the part of the bite victim.
2. Consider further whether there can be ordinance language that that discriminates between
children and others for the purposes of determining whether awillful trespass has occurred and
if so develop such language for Board discussion
3. Develop language for a two-step process for"non-severe bites" on the property of the dog
owner under the Unified Ordinance's vicious animal provisions
a. A citation for a first bite that serves to notify the owner of his or her dog's propensity
without declaring the dog vicious in a manner that imposes conditions and restrictions.
b. Avicious animal dedarat ion for a bite occurring after the issuance of the citation at step
one that imposes conditions and restrictions on the dog.
Proposed Ordinance SAbiect to Change
Only one section of the proposed Unified Ordinance needs to be changed as a result of the
recommendations being made to the Board. SAbsections that we would expect to be directly affected
appear below. They are from the version of the Unified Ordinance the Board reviewed on October 4,
2014.
DIVISON 1. -GENERALLY
Sec.4-42. -Control of vicious animals;security dogs.
(a) In General. It shall be unlawful for any person to keep any vicious animal within the County, unless
under restraint and on the premises of the owner or keeper.
(b)Vicious Animal. Any animal,on or off the premises of its owner or keeper,which is three(3)months
of age or older and who:
(1)Without provocation has bitten, killed or caused physical harm through bite(s)to a person;
or
(2)Without provocation has attempted to bite a person or cause physical harm through bite(s)
to a person; or
18
Trespass&ViciousAnimals
Page 5
(3) Without provocation has injured, maimed or killed a pet or domestic livestock, except where
such animal has bitten or killed a pet or domestic livestock that is on the land of another without
permission or is defending a person; or
(4)Has been deemed potentially dangerous or dangerous in accordance with N.G Gen. 8tat.
Chapter 67,Article 1A. Dangerous Dog.
(e) Exceptions. The provisions of this Section do not apply to:
(1)Adog being used by a law enforcement officer to carry out the law enforcement officer's
official duties;
(2)Adog being used in a lawful hunt;
(3)A dog where the injury or damage inflicted by the dog was sustained by a domestic animal
while the dog wasworking as a hunting, herding or predator control dog on the property of,or
under the control of, its owner or keeper, and the damage or injury was to a species or type of
domestic animal appropriate to the work of the dog; or
(4)Adogwhere the injury inflicted by the dog was sustained by a person who, at the time of the
injury was:
a. On the owner or keeper property that has been posted with placards or signs noting the
presence of such animal or"No Trespassing' in a manner reasonably likely to come to
the attention of an intruder'
b. Committing awillful trespass or other;
c. Tormenting, abusing,or assaulting the dog or has attempting to torment, abuse,or
assault the dog; or
d. Committing or attempting to commit a crime.
(5)5ecurity dogs are subject to all other provisions of this Ordinance while off the premises of
their owner or keeper.
19
Attachment B(4)
WATCHDOGS
Background
Differences of opinion emerged between Commissioners and others in regard to whether there should
be an exception to vicious animal dedarations for a dog that bit someone on its owner's property while
watching over the property. While closely related to discussions of trespass, it became dear in the
course of further consideration and consultation that the issue of watch dogs is best treated separately
(as it is in this section).
Under the existing ordinance, security dogs are generally defined as dogsthat are kept by an"owner or
keeper for the purpose of protecting any person or property' (Sec.4-37). They are dassified into patrol
dogs,which must be registered and which are trained or conditioned to act aggressively upon
command; sentry dogswhich must be registered and which are trained or conditioned to act
aggressively without command; and watch dogs,which act protectively but do not require registration
or training.Awatch dog is more specifically defined as a"dog that barks and threatensto bite any
intruder that has not been specially trained or conditioned for that purpose."
Under the county's existing ordinance, a"security dog' (5rc.4-37)may not be deemed a vicious animal
for"causing physical harm through bitesto people(a person)" or biting or killing another animal except
in limited circumstances. Thus the exclusion of watchdog from security dogs in the Unified Ordinance
raises the question of whether dogs may legitimately watch over and protect a person or property
without the risk of being deemed vicious for their behavior
In discussion of the Unified Ordinance,those who favored preserving the exception for watchdogs
expressed the view that many dogs are kept to watch over private property(and persons on a property)
and should not suffer consequences if they bite someone in performing their function. One
Commissioner maintained that under the proposed ordinance residentswould only be able to have dogs
as watchdogs if these dogs qualified as security dogs. 9nce qualification as a security dog requires the
costly training and registration of dogs, he lamented that many residentswould no longer be able to
keep dogs to watch over their property and persons.
Those opposed to keeping the category of watch dogsexpressed the view that their exemption from
being dedared vicious in the current ordinance amounted to a"blanket" exception. They stressed that
there was not a cogent way to distinguish between watchdogs and other kinds of dogs. Because a ii
dog that bit someone on its owner's property can be described as a watchdog(provided it barks or
threat ens to bite),there ends up being a general rather than limited exception. This results in a lads of
effective authority for exerdsing control over dogs that bite someone on their owner's property wi t hout
cause in an effort to limit the future risk that the same dog may bite again without cause.
The discussion with Professor Wall and her associate cut both ways in the context of these opposing
views. On the one hand, it affirmed the original decision to exdude watchdogs as a distinctive category
of security dog because it essentially was the"exception that swallowed the rule" in the current
20
Watch Dogs
Page 2
ordinance. In practical terms, it makes it impossible for the county's animal control authority to
deem any vicious that bites someone on its owner's property if the owner says the dog isa
watchdog.
On the other hand, a strong sense emerged from the discussion with S�hool of Government staff that
their trespass analysis could provide a way to allow that a watchful dog could justifiably bite someone
on the owner's property even when that person had no criminal intent. This is so because the more
general analysis of trespass suggested that social customs and apparent consent must betaken into
account and that they include the behavior of a dog watching over property and the behavior of the
person who enters that property.
Whether there is apparent consent to enter on private property depends, among other things, on the
presence and behavior of a dog on the property. Barking, growling and other observable behavior are
one indication that there is not an implied consent for any visitor to enter onto the property without
invitation or prior arrangement. Thus the behavior of a watchful dog must be considered as part of the
array of factors that determine whether consent exists for someone to enter onto the property of
another.
9milarly,the behavior of the person who entered onto private property without invitation or prior
arrangement would need to be factored into the analysis of a given bite case. How a person behaved in
the face of a dog exhibiting alerting or protective behavior would be essential to ascertaining whether
the visitor had (knowingly or not)contributed to the bite that had occurred. Whether a dog was
deemed a vicious animal under the ordinance could well depend upon whether a bite victim disregarded
a barking dog when s/he walked up a driveway or exited a vehicle that they had pulled into the same
driveway.
Fboommendation
1. Exclude watchdogs from the general category of security dogs in the proposed ordinance
2. Develop language to exempt a dog from being deemed vicious if the dog is being protective of
person or property in circumstances in which either or both of the following apply:
a. There is an absence of consent (expressed or apparent)for the bite victim to have
entered the property on which s/he was bitten
b. The bite victim could have avoided the bite by responding to signal behaviors from the
dog and removing him or herself from the property(or some portion thereof)of the
owner of the biting dog.
21
Watch Dogs
Page 3
Proposed Ordinance SAbiect to Change
Three provisions of the proposed Unified Ordinance refer to security dogs(absent the classification of
watchdog' that appears in the county's current ordinance. These provisions are from the version of the
ordinance the Board reviewed on October 4,2014, and they appear below.
Division 1.-GENERALLY
Sec.4-37. -Definitions.
Security Dog:Any dog used, kept or maintained on the premisesof itsowner or keeper for the purpose
of protecting any person or property.Any such dog shall be further classified as a patrol dog or sentry
dog.
(a) Patrol dog:A dog that is trained or conditioned to attack or otherwise respond aggressively, but
only upon command from a handler either off or on lead.
(b) Sentry dog:Adog that is trained or conditioned to attack or otherwise respond aggressively
without command.
Sec.4-42. -Control of vicious animals;security dogs.
(e) Exceptions. The provisions of this Section do not apply to:
(1)Adog being used by a law enforcement officer to carry out the law enforcement officer's
official duties;
(2)Adog being used in a lawful hunt;
(3)A dog where the injury or damage inflicted by the dog was sustained by a domestic animal
while the dog wasworking as a hunting, herding or predator control dog on the property of,or
under the control of, its owner or keeper, and the damage or injury was to a species or type of
domestic animal appropriate to the work of the dog; or
(4)Adogwhere the injury inflicted by the dog was sustained by a person who, at the time of the
injury was:
22
Watch Dogs,
Page 4
a. On the owner or keeper property that has been posted with placards or signs noting
the presence of such animal or"No Trespassing' in a manner reasonably likely to
come to the attention of an intruder'
b. Committing a willful trespass or other;
c. Tormenting, abusing,or assaulting the dog or has attempting to torment, abuse,or
assault the dog; or
d. Committing or attempting to commit a crime.
(5)Security dogs are subject to all other provisions of this Ordinance while off the premises of
their owner or keeper.
(h) Effect of Otation.
(1) Upon payment of a citation or the conviction of the owner or keeper for having an animal
which without provocation has committed any of the acts described in subsection (b)above,
said animal is declared a vicious animal.
(2) Upon the payment of a citation or the conviction of the owner or keeper for having an
animal which on or off the property of the owner or keeper and without provocation has killed
or caused life threatening injuries through bite(s)to a person,the animal will be seized by the
animal control officer and destroyed in a humane manner.
(3)Any animal previously declared vicious upon the payment of a citation or by conviction of the
owner or keeper for a violation of this subsection,that commits a subsequent violation of the
subsection,will cause the owner or keeper to be charged with that violation. Upon the owner or
keeper's conviction of that violation,the animal will be destroyed in a humane manner.
(4)Any violation of this section may be a misdemeanor and subject to a fine of five hundred
dollars($500.00)or imprisonment of not more than thirty(30)days.
(5)All persons owning security dogs as defined by this Ordinance shall register such animals
with the Animal Services Director; the owner or keeper of any such dog shall place signs or
placards on his premises noting"Beware of Dog" or other information noting the presence of
security dog(s).
0 1
Attachment C(1)
23
Wall—"Trespass" in Animal Control Ordinance 2-5-2014
Question:
Evaluate the implications of the exception from classification as a vicious animal for dogs that
inflict injuries to persons committing a"willful trespass."
I. Overview
Correspondence from Orange County Animal Services indicates that in the process of
drafting a Unified Animal Control Ordinance staff members have determined that a draft
exception from the "Vicious Animal"provisions of the Ordinance for dogs that attack or bite
individuals who are committing a"willful trespass"presents difficult policy questions. Staff
members are concerned that there is not a uniform legal definition of the term"trespass," and
that the definitions which do exist include some relatively innocent behaviors,the doing of
which may not reasonably justify a person being attacked by a dog.
Staff members have expressed a desire to intelligently balance the rights of property and dog
owners with the safety of the community at large, and,to this end,Animal Services has asked for
an explanation of legal principles related to trespass law which may guide the construction and
interpretation of this portion of the ordinance.
The draft provision at issue is reproduced below:
-----------------------------------------------------------,
Sec. 4-42.-Control of vicious animals;security dogs.
Subsections(a)—(d)are not reproduced here.
(e) Exceptions.The provisions of this Section do not apply to:
Sub-subsections(1)—(3)are not reproduced hero.
(4)A dog where the injury inflicted by the dog was sustained by a person who,at the time of the
injury was:
a. On the owner or keeper property that has been posted with placards or signs noting the
presence of such animal or"No Trespassing"in a manner reasonably likely to come to the
attention of an intruder '
' b. Committing a willful trespass or other tort;
' c.Tormenting, abusing,or assaulting the dog or attempting to torment, abuse,or assault the
dog;or '
d.Committing r attempting to commit a crime.
9 P 9 �
(5)Security dogs are subject to all other provisions of this Ordinance while off the premises of their
'
' owner or keeper.
1
24
Wall—"Trespass"in Animal Control Ordinance 2-5-2014
II. Similar Provisions in Other States
It appears that exceptions in animal control regulations for dogs that attack trespassers are
relatively common. At least eight other states have exceptions in state animal control law that
specifically exempt dogs that attack or bite individuals who are committing a"willful trespass"
from classification as a vicious or dangerous animal. See S.D. Codified Laws § 40-34-15 ("No
dog may be declared vicious if an injury or damage is sustained to any person who was
committing a willful trespass or other tort"); Cal. Agric. Code § 31626(a) ("No dog may be
declared potentially dangerous or vicious if any injury or damage is sustained by a person who,
at the time the injury or damage was sustained, was committing a willful trespass or other tort");
Va. Code Ann. § 3.2-6540.1(C.) ("No animal shall be found to be a vicious dog if the threat,
injury, or damage was sustained by a person who was . . . (ii) committing, at the time, a willful
trespass upon the premises occupied by the animal's owner or custodian"); 3 Pa. Stat. Ann. §
459-507-A(b) ("This article shall not apply if the threat, injury or damage was sustained by a
person who, at the time, was committing a willful trespass or other tort"). See also Minn. Stat.
Ann. § 347.51; 510 IL,CS 5/15.1(Elinois); Okla. Stat. Ann. tit. 4, § 46.
Unfortunately, as is the case in Article 67 of the North Carolina General Statutes, most of the
other jurisdictions which specifically identify an exception for attacks on willful trespassers do
not explicitly define the behavior which constitutes a"willful trespass." One exception to this
general trend is Nebraska's dangerous dog statute which contains an exception for injuries
inflicted by a dog upon "an individual who, at the time, was committing a willful trespass as
defined in section 20-203, 28-520, or 28-521, [or] was committing any other tort upon the
property of the owner of the dog."Neb. Rev. Stat. § 54-617. The cross references in Nebraska's
statute reference the statutory tort of invasion of privacy (requiring a trespass which "would be
highly offensive to a reasonable person") and the crimes of first and second-degree trespass.
This Nebraska scheme is similar to a cross reference to the NC statutes for criminal trespasses
that appears to have been at one time included in a draft version of the Unified Ordinance.
Given that the animal control regulations of other states tend to be as vague as North
Carolina's provision in G.S. 67-4.1 (b)(4) (analogous to the exception in the draft Unified
Ordinance), it is helpful to examine the broad concept of trespass in tort law in order to better
understand what behavior may constitute a"willful trespass."i
III. Trespass Generally & Within the Context of the Ordinance
Trespass in civil tort law is an "ancient action" and the term has been used to describe all
manner of wrongs ranging from the general to the specific. Fowler v. Valencourt, 334 N.C. 345,
348 (1993). At its most general, "a trespass is sometimes said to include any wrongful invasion
i For a case looking to the traditional legal meaning of the term "trespass"in the absence of an explicit
definition see State v. Johnson, 628 P.2d 789,790(Or.App. 1981)("The Portland City Code does not define
the term `trespasser.' It is a term,however,that has a well defined legal meaning, and it should be given that
meaning in construing the ordinance.")
2
25
Wall—"Trespass"in Animal Control Ordinance 2-5-2014
of the rights of another,"but North Carolina law has long recognized that the "more natural and
usual meaning" of the term trespass is "restricted to unlawful acts done to the person or property
of another." Brown v. Walker, 188 N.C. 52 (1924).
It is probably reasonable, for purposes of the Unified Ordinance, to further restrict the
interpretation of the term "trespass," to trespasses against real property because the other
common forms of trespass, those to personal property and to persons, tend to be criminal
offenses as well as other specifically identified torts. See e.g., Fowler, 334 N.C. at 349 (noting
that the torts of assault and false imprisonment, each of which is also a crime in North Carolina,
fall within the "umbrella" of trespass). The Unified Ordinance provides a separate exception for
dogs inflicting injury to individuals committing or attempting to commit crimes, as well as
catchall language referring to "other tort[s]," and these separate exceptions may be better suited
to handling forms of trespass other than trespasses to real property.2
Another area of tort law where the concept of trespass frequently arises is that of premises
liability for injuries to others occurring on a land occupier's property. Largely, the definitions of
trespass in the law of premises liability and in the law of the trespass tort overlap. A person who
commits the tort of trespass to real property such that she may be liable to an occupier of the
property for damages would, with narrow exception, typically be considered a trespasser under
the law of premises liability. See 2 DAN B. DOBBS ET AL.,THE LAW of TORTS 68 (2d ed.2011)
(explaining that historically the"trespassers category . . . included all those who might be sued
for trespass") [hereinafter DOBBS]. While this notion is perhaps obvious,it is important to note
because the bodies of law often do not look to each other for guidance, and the cases in each area
tend to focus on different issues.
The conceptual similarity between premises liability legal theory and the policy
considerations which likely underlie the trespasser exception in the Unified Ordinance provides
further support for the proposition that the trespass exception in the Unified Ordinance is likely
meant to be understood as applying to trespasses to real property rather than other forms of
trespass. The general theory of premises liability law is that the standard of care owed by a
landowner to others to prevent injuries from occurring on her property varies depending on
whether the injured person has permission to be at the place where he is injured. See Nelson v.
Freeland, 349 N.C. 615 (1998) (discussing the historical development of and modern trends in
premises liability law). This idea seems to comport with the likely justification for the trespass
exception.
2 For examples of the broad circumstances implicated by interpreting the willful trespass exception as
encompassing trespasses other than those to real property, see Kirby v. Jules Chain Stores Corp.,210 N.C. 808
(193 6)(characterizing a civil action for damages for a miscarriage allegedly caused by defendant's frightening
and profane admonishment of plaintiff regarding a debt as a"willful trespass to the person"), and Meibus v.
Dodge,38 Wis. 300,306(1875) (defendant argued that an"act of trespass upon the defendant's sleigh [parked
on a public street and guarded by a dog]...by interfering with the property...would protect the defendant from
liability"where a child was bitten by the dog).
3
26
Wall—"Trespass"in Animal Control Ordinance 2-5-2014
As email correspondence identified, trespass to real property encompasses a broad range of
actions including behaviors that are relatively innocent. See e.g., 2 DOBBs at 69 ("[T]respassers
could be quite different one from another. One might be a burglar...another might be...a
neighbor who takes an uninvited shortcut across the lawn."). The North Carolina Supreme Court
has stated that "every unauthorized entry on land in the peaceable possession of another
constitutes a trespass, without regard to the degree of force used and irrespective of whether
actual damage is done." Matthews v. Forrest, 235 N.C. 281, 283 (1952). It is common to find
the elements of an actionable trespass to real property identified in case law as (1)possession of
the property by the plaintiff when the alleged trespass was committed;3 (2) an unauthorized entry
by the defendant; and (3) damage to the plaintiff from the trespass. See Broughton v. McClatchy
Newspapers, Inc., 161 N.C. App. 20, 32 (2003); Singleton v. Haywood Elec. Membership Corp.,
357 N.C. 623, 627 (2003). A relatively similar definition is offered in premises liability cases
where it is often stated that "[a] trespasser is one who enters the land of another without
permission." Hoots v. Pryor, 106 N.C. App. 397, 407 (1992).
For purposes of analyzing and interpreting the Unified Ordinance, the common factor
between the definitions —an entry which is unauthorized—is likely the most important to
consider.4
IV. State of Mind
The Unified Ordinance, by its use of the phrase "willful trespass," may set a higher standard
for the degree of culpability of the state of mind of a potential trespasser than that required under
traditional tort law. A question arises as to why the Unified Ordinance (or the General Statutes
which contain the same language)would join the term "willful"with "trespass"unless some
degree of culpability greater than that of the traditional tort was intended. Were this not the
intent of the Ordinance, the exception could be written to apply to individuals committing any
tort without need to specifically identify trespass as among those torts covered.
While the term "willful trespass"is not uncommon in tort law, its precise definition is
elusive. See e.g., Wood v. Weaver, 92 S.E. 1001, 1004 (Va. 1917) ("The legal meaning of the
word `willful' in [trespass law] is a technical one, which the courts and text-writers have found it
impossible to define in set terms which will fit every case."; "the act which constitutes a willful
3 Throughout this document the individual who is aggrieved by a trespasser is referred to by various terms
including landowner and land occupier. It is not necessary that the aggrieved party actually own the land or
premises in question. Control of the land under right,by a tenant for example,is sufficient to bring a trespass
action.
4 With regard to the other elements identified by the trespass tort definition,possession by the plaintiff will
probably be relatively easy to ascertain and damage is presumed when the first two elements are proved. See
Whitley v. Jones,238 N.C. 332,336(1953)(explaining that every unauthorized entry constituting a trespass
entitles the aggrieved parry to "at least nominal damages"). Likewise,in premises liability cases the issue of
possession tends to be relatively binary, and damages caused by the trespass are not considered as the issue in
contention tends to be recovery for damages caused to the trespasser.
4
27
Wall—"Trespass"in Animal Control Ordinance 2-5-2014
trespass may be anywhere in the domain of the law which extends from the region of felonies
down to gross negligence, but is never found below the border line of the latter in the region of
mere negligence"); Barnes v. Moore, 98 S.E.2d 683, 686 (Va. 1957) ("if the evidence was
sufficient to justify the belief that [defendant's] error or mistake was committed in bad faith, or
recklessly, or in willful disregard of the rights of others, or induced by his utter failure to do what
an ordinary, reasonable, and prudent man would have done, in view of all the surrounding
circumstances, then his conduct constituted gross negligence" sufficient to find a willful
trespass);Richardson v. Flowers, 11 So. 2d 808, 809 (Miss. 1943) (suggesting willful trespass is
equivalent to gross negligence); Tennessee, Alabama & Georgia R. Co. v. Zugar, 18 S.E.2d 758,
762 (Ga.1942) ("A wilful trespass has been characterized as a wanton trespass and as one made
in bad faith."); Welty v. Indianapolis & V.R. Co., 4 N.E. 410, 412 (Ind. 1886) (a willful trespass
requires "something more than mere negligence"). The preceding cases suggest that, in at least
some jurisdictions, a willful trespass requires, at minimum, a grossly negligent action.
It should be noted that the phrase "willful trespass"was used in some North Carolina cases in
the early Twentieth Century to refer to criminal trespass, but the language of the Unified
Ordinance linking "willful trespass" to "other torts," along with the separate provision for
criminal acts, suggests that the ordinance contemplates willful trespass as being a civil tort.
The Unified Ordinance's exception for dogs causing injury to a person committing a willful
trespass arguably requires that the trespasser have a more culpable or blameworthy state of mind,
relative to that required for a traditional trespass, with respect to two distinct factors: (1) the act
of entry, and (2) the existence of authorization to enter or engage in certain actions after entry.
A. State of Mind Regarding the Act of Entry
The traditional rule for civil trespass liability is that the tortfeasor need not intend to interfere
with the possession of another's property in order to incur liability so long as she intends the act
which constitutes the unauthorized entry. By way of example, an actionable trespass occurs
were a person intentionally enters onto the land of another under either the mistaken belief that
he is entitled to do so, or the mistaken belief that he owns the land. See York Indus. Ctr., Inc. v.
Michigan Mut. Liab. Co., 271 N.C. 158, 163 (1967) (so stating). This traditional rule of trespass
law has been characterized as imposing "a limited kind if strict liability"upon the intruder. 1
DOBBs at 131. In contrast, it has been recognized that a"willful trespass"requires something
more than an entry which is caused by an intentional act because, if it did not, "every trespass
would be willful." Wood at 1004. An intruder's entry, in addition to being intentional, may need
to constitute wrongful or grossly negligent behavior in order to rise to the level of a willful
trespass.
The distinction between an intentional entry and a willful entry onto land has been made in
North Carolina case law in an attempt to illustrate the traditional rule that an individual may be
liable for trespass even when she did not mean to go onto another's land. The Supreme Court
explained that"trespass to land requires an intentional entry thereon . . . [i]t does not, however,
require that such entry be willful." York Indus. Ctr., Inc., 271 N.C. at 163. The defendants in
5
28
Wall—"Trespass"in Animal Control Ordinance 2-5-2014
York bulldozed trees and shrubs, a behavior that they would certainly have known to be
prohibited on land belonging to another individual absent authorization. The defendants,
however, were under the mistaken belief that they were on their own land. Though the court
found that a trespass occurred, by distinguishing a willful entry from an intentional entry, York
may demonstrate that a willful trespass requires knowledge that the land entered belongs to
another. See also Payne v. Consolidation Coal Co., 607 F. Supp. 378, 382 (W.D. Va. 1985) ("If
an act of trespass is done accidentally, by inadvertence or by mistake not induced by gross
negligence, it is not willful.") (citing Wood, 92 S.E. at 1003). Compare York 271 N.C. 158, with
Weitz v. Green, 230 P.3d 743, 756 (Idaho 2010) (where it was "apparent that under the facts of
this case the [appellants] were not committing an innocent mistake in re-entering the property,
cutting down vegetation, and erecting a fence," such action constituted a willful trespass).
The cases above suggest that a willful trespass occurs where, in addition to intending the act
which constitutes entry, an intruder knows or reasonably should know that the act of entry is
wrongful or grossly negligent.5
(i) The Special Case of Children
North Carolina law contains special rules regarding the capacity of children for contributory
negligence. Contributory negligence is a tort law concept that essentially limits the liability of an
individual who has negligently injured another when the injured person contributed to the injury
through their own negligent behavior. For example, a motorist who strikes and injures a person
crossing the street may argue that the injured person's manner of crossing was reckless, and as a
result the injured person's contributory negligence limits the motorist's liability. See Coley v.
Phillips, 224 N.C. 618, 620 (1944). While perhaps not directly applicable to the willful
trespasser exception in the Unified Ordinance, the law's willingness to account for the unique
nature of children in the contributory negligence context may be helpful in a willful trespass
analysis with respect to child trespassers because of the arguable requirement that a state of mind
evidencing gross negligence accompany an intentional entry.
In North Carolina, children under seven years of age are incapable of contributory negligence
as a matter of law. State v. Harrington, 260 N.C. 663, 666 (1963). Children between ages seven
and fourteen are presumed to be incapable of contributory negligence, but the presumption is
rebuttable "by evidence showing capacity [for negligence]." Id. at 648. For children over the
age of fourteen there is a rebuttable presumption that the child has the same capacity for
contributory negligence as an adult. Hoots v. Beeson, 272 N.C. 644, 647 (1968). The question
of whether the presumptions of negligent capacity or incapacity can be rebutted is approached on
5 Connecticut's statute imposing liability on dog owners for injury caused by their dogs to persons or property
contains an exception for liability where the person injured was committing a"trespass or other tort." Conn.
Gen. Stat. § 22-357. The courts of that state have interpreted the provision as requiring"more than a mere
entry[because]the plain intent of the statute is to bar recovery where the plaintiff was committing or intending
to commit some injurious act." See Verrilli v. Damilowski,100 A.2d 462,464(Conn. 1953).
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a case-by-case basis. In the analysis, "[t]he child's discretion, maturity, knowledge, and
experience interact in rebutting the presumption." In re T.S., 133 N.C. App. 272, 277 (1999).
The special contributory negligence rules provide at least two guiding principles which may
be useful to a person tasked with making a determination about whether the willful trespass
exception applies to a given dog bite case. First, the rules recognize that, as a general matter, the
capacity of children to appreciate and avoid negligent behavior develops over time and is
distributed along a spectrum. A very young child may not be capable of recognizing and
understanding certain boundaries whether they be between properties or behaviors. In contrast,
an older child may have accumulated sufficient experience in the world to conform her actions to
societal norms.
The second useful principle, illustrated by the rebuttable presumptions for children over
seven, is that individual children have varying capacities that must be accounted for on a case-
by-case basis by analyzing characteristics of both the particular child and the circumstance. A
very mature child, for example, may understand that societal custom suggests that she should not
wander onto her neighbor's property without consent. Likewise, a child who has been
specifically warned against going onto a neighbor's property, or who has been warned of the
presence of a territorial dog may be more culpable than an ordinary child when those warnings
are disregarded.
As the preceding examples suggest, each case where a dog bites a child will present unique
facts, but borrowing notions from North Carolina's contributory negligence law may provide a
decision maker with flexible parameters within which to evaluate a given situation.
B. State of Mind Regarding Authorization to Enter
The previous discussion of state of mind regarding the act of entry is perhaps most applicable
to situations where the nature of property makes it difficult for a person to discern whether she
has entered upon the property of another. Another common situation that arises in trespass law
is when a person is on property which she knows belongs to another, but acts under some claim
of privilege or permission to be in the place.
Authorization to enter onto land may be obtained by either express or implied consent.
Holcomb v. Colonial Associates, L.L.C., 358 N.C. 501, 510 (2004). Implied consent may arise
where societal custom grants an individual the privilege to enter property, or where an owner,
upon becoming aware of an entry, makes no objection. Id. Express consent, on the other hand,
exists where an owner makes an affirmative manifestation to another authorizing entry onto the
owner's property.
(i) Implied Consent
In Holcombe, a premises liability case, the defendant property management corporation
contended that it was shielded from liability for plaintiff s dog-related injuries due to the fact that
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plaintiff was a trespasser on defendant's property at the time of being injured. Id. The court
explained that"[w]hether a person has implied permission to enter another's land must be
evaluated on the basis of the reasonableness of the visitor's entry, with due regard given `to
customs prevailing in the community."' Id. at 510 (citation omitted). At trial the jury found that
plaintiff was not a trespasser at the time at which he suffered injuries while fleeing from
aggressive dogs on defendant's property. Evidence showed that defendant "placed a `For Sale'
sign on its property and allowed buyers and their agents to inspect the property . . . [and]
[p]aaintiff, an employee of a prospective buyer, entered the property for the sole purpose of
inspecting it for a potential purchaser." The court found that this evidence supported the jury's
finding that plaintiff was not a trespasser at the time of his injury despite the fact that he had not
been given express permission to enter defendant's property. The court reasoned that the
plaintiff was a lawful visitor by virtue of an implied consent customarily recognized in society to
enter and inspect property which is publicly advertised for sale.
Implied consent to enter property based on societal custom was also found in Smith v.
VonCannon, 283 N.C. 656, 661 (1973). In Smith, the court found that the defendant cab driver
was not a trespasser at plaintiff's house when he drove his cab into the driveway in the process of
dropping off a passenger who claimed to live at the residence. Upon entering the driveway, the
cab driver was attacked by his passenger, who had lied about living at the house, and the taxi
rolled into plaintiffs' house causing damage. The court reasoned that societal custom is such that
"the construction of a driveway or a walkway leading to the entrance of a residence may, in the
absence of notice to the contrary, be reasonably construed, not only by acquaintances of the
landowner but also by strangers, as an expression of the landowner's consent to their entry
thereon for the purpose of approaching and entering the house on any lawful mission." Id. at
662. Under this reasoning, the court found that the plaintiffs could not recover for damages
under a trespass theory.
Implied consent to approach a home's front door in an effort to interact with the occupants is
a commonly recognized societal custom. In Garrard v. McComas, 450 N.E.2d 730 (Ohio Ct.
App. 1982), the court found that there was evidence of implied consent for the plaintiff to
approach the defendant's home, and that the lower court erred by determining that the plaintiff
was a trespasser as a matter of law at the time that she was injured while being chased by
defendant's dogs. The court explained:
It is probably a matter of judicial notice in this community that a person has implied
consent, absent an express warning contrary, to approach a residence to ask for directions
or to find out if she is at her friend's home. The alternative of remaining at the curb
honking or hollering is not attractive. 450 N.E.2d at 733.
Similarly, In Jones v. Manhart, 585 P.2d 1250, 1253 (Ariz. Ct. App. 1978), the plaintiff was
knocked down and bitten by the defendant's dog while conducting a door-to-door commercial
survey. The dog owner argued that he was not liable for the plaintiff's injuries due to the fact
that plaintiff was a trespasser at the time she was injured. The court found that where "[t]here
was nothing putting appellee on notice that she could not come up the walk and knock on the
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door,"6 she had the implied consent of the dog owner to do so and could not be considered a
trespasser.
In Messa v. Sullivan, 209 N.E.2d 872 (Ill. App. Ct. 1965), the court found implied consent to
enter certain areas of a building because, due to the appearance of the building, "people like the
plaintiff could only surmise that the entire building was devoted to business purposes and that it
was intended that they should come there on business." Id. at 875. As it turned out, certain areas
of the building were used for residential purposes and upon wandering into such an area,plaintiff
was attacked by the defendant's dog. Despite the presence of signs warning about the dog, the
court found that the plaintiff was lawfully on the defendant's premises because of the nature of
the building.
In Bramble v. Thompson, 287 A.2d 265 (Md. 1972), a premises liability case, the plaintiffs
docked their boat at and disembarked onto the defendants' pier whereupon they "were attacked
and injured by the [defendants'] dog which was known by its owners to have vicious
propensities." Id. at 267. The court rejected the plaintiffs' contention that, despite established
premises liability law whereby property owners owe a minimal duty of care to trespassers, the
defendants were "nonetheless liable for the attack . . . because the trespass was inadvertent, not
willful." Id. While the plaintiff's claim in Bramble was unsuccessful as recovery was precluded
under the applicable law even if plaintiffs were inadvertent trespassers, the distinction that the
plaintiffs attempted to draw between an inadvertent and willful trespass is illustrative, and
similar to that recognized by the court in York.
Garrard, Jones, Holcombe, VonCannon,Messa, and Bramble are all cases where implied
consent was analyzed by reference to general societal custom.7 Consent may also be implied,
however, by specific behavior of a property holder. This particular type of implied consent is
sometimes referred to as apparent consent. See Rawls &Associates v. Hurst, 144 N.C. App. 286,
292 (2001) ("There does not have to be an invitation to enter the land,it is sufficient that the
possessor's conduct indicates that he consents to the entry.").
In Rawles, the court found apparent consent where a property owner knew, due in part to the
fact that he attended a groundbreaking ceremony, that various construction items including a
mobile office had been placed on his property. The plaintiff failed, however, to make any
objection regarding the trespass for several months. Consequently, the court found that he had
exhibited apparent consent to the intrusion. Id. at 292-93.
While the apparent consent found by the court in Rawles was based the land occupier's
inaction in the face of knowledge of a trespass, apparent consent may, of course, also be found
6 The court dismissed the presence of a"`cartoon type' sign depicting a dog's head with teeth bared saying,
`Trespassers will be eaten"'due to the fact that such a sign could be interpreted as a joke.
It is also important to note here that in all of the cases discussed in this section except Bramble,it was
determined that the individual alleged to be a trespasser was in fact not a trespasser whatsoever,much less a
"willful trespasser."
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due to a land occupier's actions. In Harris v. Carbonneau, 685 A.2d 296 (Vt. 1996), for
example, the court upheld a jury's finding of apparent consent to enter a home where the
occupant opened the front door for a deputy serving a summons and backed up her wheelchair as
the deputy stepped through the door. Id. at 299. Though the plaintiff had not affirmatively
invited the defendant to enter her home, her actions could be reasonably interpreted as an
invitation or consent to enter.
(ii) Presence of a Dog as a Component of Implied Consent
An interesting case where the presence of a dog influenced the court's evaluation of a claim
for damages suffered by a door-to-door salesman is Gomes v. Byrne, 333 P.2d 754 (Cal. 1959).
The Gomes court presented the facts of the case as follows:
As [the plaintiff salesman] walked along the sidewalk approaching the gate leading to
defendant's door, the dog in the enclosed yard followed him along the inside of the fence
for about fifty feet, barking continuously all the way. Plaintiff nevertheless opened the
gate and walked into the yard, whereupon the dog bit him on the right lower leg, causing
a puncture wound and superficial abrasions. 333 P.2d at 754-55.
On appeal, the plaintiff argued that he was lawfully on the defendant's premises at the time of
the attack, and, therefore, the lower court erred by denying him recovery. The court found it
unnecessary to reach this contention, and found that plaintiff assumed the risk of injury by
entering the fenced area. While this holding clearly does not bear directly on the question of
implied consent, one could reasonably argue that in the obvious presence of a continuously
barking dog, societal custom suggests that a visitor may need to obtain some clear indication
from the landowner that the visitor is authorized to approach the front door. To put it another
way, in an implied consent analysis, both the visitor and the landowner are charged with
conforming to societal custom. While a landowner must expect unannounced visitors from time
to time, such visitors should carefully consider a decision to stride headlong into enclosed areas
containing barking dogs.
The implications of Gomes as described in the previous paragraph may have some relation to
the concerns expressed by Animal Services regarding the removal of"watch dog" as a
subdivision of the"security dog" definition. Correspondence from Animal Services suggests
that there was a concern that the definition of watch dog was too broad, and, therefore, the
definition was removed. An apprehension in response to the removal was that removing the
watchdog subdivision may deprive property owners of the right to have a dog protect their
property. These competing positions may be able to be resolved through the willful trespass
exception if it is accepted that the presence of a"dog that barks and threatens to bite an intruder"
(a partial quote from the removed definition of"watchdog")influences societal custom with
respect to implied authorization to enter property. First, it is important to note that a"watch
dog"—like any other dog—is exempt from classification as a vicious animal in the event the dog
bites a willful trespasser(whatever that term may mean). Beyond this, as discussed above,
societal custom may suggest that a dog which barks and threatens to bite intruders is a signal to
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visitors that some greater degree of implied consent is required to enter the property than that
which exists from simply having a driveway or a walkway to the front door. An unannounced
visitor who encounters a threatening barking dog should perhaps reasonably become aware that,
absent a clear invitation, the land occupier has suggested by implication that he does not consent
to an entry upon the land.
(iii) Express Consent
Situations of express consent have the potential to be relatively straightforward for purposes
of trespass analysis. The email correspondence offers the hypothetical of a person entering a
fenced portion of his neighbor's property to borrow something he has permission to borrow.
Most likely, this entry is not a trespass because it was explicitly authorized.
While situations of express consent often present factual circumstances where it is relatively
easy to identify the moment of manifestation of consent as well as the scope of consent, they are
not altogether without complication. There are cases, for example, which hold that a defendant
is insulated from trespass liability by way of the land occupier's express consent to enter even
where the consent is obtained by misrepresentation. In Keyzer v. Amerlink, Ltd., 173 N.C. App.
284, 290 (2005) affd, 360 N.C. 397 (2006), the Court of Appeals found that defendants who
falsely represented themselves to an attorney as prospective clients, specifically denied working
for a certain party, and secretly taped interactions within the attorney's law office could not be
held liable for trespass because plaintiff, though pursuant to deception, consented to their entry.
The court noted its agreement with the Fourth Circuit that "`consent gained by misrepresentation
is sometimes sufficient' as a defense to a claim of trespass."Id. (citation omitted). But see Food
Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 519 (4th Cir. 1999) (although consent based
on misrepresentation was initially sufficient to defeat trespass claim, the consent was nullified by
defendants' subsequent tortiuous conduct).
Another situation where express consent can be problematic is where one receives express
consent to enter onto land from a person who has no authority to grant such consent, but the
would-be trespasser has no reason to know the grantor lacks authority.8 This situation occurred
in Sligo Furnace Co. v. Hobart-Lee Tie Co., 134 S.W. 585 (Mo. 1911), where an individual
granted to defendants the timber rights to a piece of land which the grantor did not own. In the
resulting suit for damages —where a designation of defendants as willful trespassers would
substantially affect the amount of recoverable damages —the appellate court agreed with the trial
court's finding "that the agents of defendant were not willful trespassers, but had cut the timber
s It is worth briefly noting that a related issue in situations of express consent occurs where a person other than
the owner or occupier of land has the permission to grant consent to others to enter the land,but may exceed
such permission by authorizing certain objectionable actions. See e.g.,Miller v. Brooks, 123 N.C.App. 20,28,
(1996) ("Defendants assert that, as plaintiffs wife, defendant Miller was authorized to enter the house and
could give others the right. . . . Even if she had permission to enter the house and to authorize others to do so,
there is also evidence to create a genuine issue of material fact as to whether defendants'entries exceeded the
scope of any permission given.")
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by mistake, believing it to be located on land from which they had bought the timber." Id. at
586.
(iv) Scope of Consent
Whether consent is express or implied, the scope of consent circumscribes the activities
authorized. Sometimes an individual who has authorization to enter onto land commits
"subsequent wrongful acts in excess or abuse of his authority to enter" and thereby becomes a
trespasser. Blackwood v. Cates, 297 N.C. 163, 167 (1979). In Blackwood, for example, the
North Carolina Supreme Court found that the defendant was liable for trespass where he had
implied authorization to enter a home but upon entry caused the plaintiff to be falsely arrested.
The Court noted that the defendant's liability was the result of this "later wrongdoing." Id. See
also Smith v. VonCannon, 283 N.C. 656, 660 (1973) ("One who enters upon the land of another
with the consent of the possessor may, by his subsequent wrongful act in excess or abuse of his
authority to enter, become liable in damages as a trespasser.");Freeman v. Gen. Motors
Acceptance Corp., 205 N.C. 257 (1933) ("it is the law of this jurisdiction that although an entry
on lands may be effected . . .with permission of the owner, yet if, after going upon the premises
of another, the defendant . . . commits such acts as are reasonably calculated to intimidate or lead
to a breach of the peace, he would be liable for trespass"). If, for example, the person who
entered his neighbor's fenced property to borrow something which he had permission to borrow
proceeded to traipse around areas of the property which he had not been authorized to enter, he
may become a trespasser despite the fact that his initial entry was authorized if he had reason to
know he had exceeded the scope of his authorization.
In Allstate Ins. Co. v. U.S. Associates Realty, Inc., 464 N.E.2d 169, 171 (Ohio Ct. App.
1983), the trial court denied the plaintiff recovery for injuries she sustained in the backyard of
the defendants' house. The plaintiff was inspecting the defendants' house, which was for sale,
with a real estate agent when she entered the backyard, encountered the defendants' large dog,
and fell breaking her wrist. The defendants had expressly prohibited potential buyers from
entering the backyard unless accompanied, and, thus, the trial court found that "[plaintiff] was a
trespasser at the time of her canine encounter." Id. The appellate court disagreed and found that,
while a land occupier can "expressly limit"the scope of an invitation to enter land, because such
limitation was not communicated to the plaintiff, she was not a trespasser at the time of her
injury and was entitled to recover damages.
V. Conclusions Regarding Civil Trespass
The preceding discussion reveals certain guidelines which may be useful to an individual
tasked with evaluating a dog bite case under the draft Unified Ordinance in its current form. If
the decision to declare a dog a vicious animal hinges upon a determination of the status of an
injured individual as a"willful trespasser,"without any further explanation within the Ordinance
of the term, case law from across the country suggests that the term describes a trespass that is
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more blameworthy than the inadvertent unauthorized entry which characterizes the traditional
tort.
One method of evaluating the blameworthiness of the trespasser is by analyzing her state of
mind with regard to the entry itself(is it inadvertent or purposeful?), and also analyzing her state
of mind with regard to her authorization to enter or act(does she have express or implied
consent?). Within each of these analyses there are gradients of behavior which may have to be
explored on a case by case basis. Determining whether an entry is the result of negligence, gross
negligence, recklessness, or some other state of mind, and deciding which of these states of mind
justifies a vicious animal exception are important issues for Animal Services to consider.
Likewise,particular societal conventions or specific behaviors of the parties involved need to be
evaluated in order to determine whether express or implied consent authorizes an entry onto
land.
VL Criminal Trespass
In comparison to the behaviors which amount to civil trespass, those which constitute
criminal trespass are relatively discrete as they are defined by statute and constrained by the
elemental approach of the criminal law. Additionally, criminal trespasses tend to require factual
circumstances which evidence that the trespasser was engaged in behavior which she knew or
should have known was prohibited. These realities combined with the fact that the Unified
Ordinance has a specific exception to the vicious animal provisions for dogs inflicting injuries to
persons committing or attempting to commit a crime, suggest that criminal trespasses are less
likely to present the policy difficulties which may arise in the context of civil trespasses. That is,
it is less likely as a factual matter that a dog that bites a person engaged in criminal trespass will
have bitten an innocent visitor or passerby as could be the case where a civil trespasser is bitten.
The following trespass crimes may be relevant to understanding the term for purposes of the
Unified Ordinance(descriptions ¬es from JESSICA SMITH,NORTH CAROLINA CRIMES: A
GUIDEBOOK ON THE ELEMENTS OF CRIME(UNC School of Government, 7t' ed. 2012)):
A. First Degree Trespass
§14-159.12. First degree trespass.
(a) Offense. A person commits the offense of first degree trespass if, without authorization, he
enters or remains:
(1) On premises of another so enclosed or secured as to demonstrate clearly an intent to
keep out intruders; or
(2) In a building of another.
(b) Classification.—First degree trespass is a Class 2 misdemeanor.
Notes
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Element (3)(a). The premises include the entire piece of real estate—not just the building but the
land as well,provided it is so enclosed or secured as to clearly demonstrate an intent to keep
intruders out. A locked six-foot-high chain link fence, for example, is likely to demonstrate such
an intent.
Defenses. It is an affirmative defense to trespass that a defendant entered with reasonable
grounds to believe in a legal right to enter, even though the defendant did not actually have such
a right. State v. Baker, 231 N.C. 136 (1949); State v. Faggart, 170 N.C. 737 (1915).
B. Second Degree Trespass
§14-159.13. Second degree trespass.
(a) Offense. A person commits the offense of second degree trespass if, without authorization,
he enters or remains on premises of another:
(1)After he has been notified not to enter or remain there by the owner, by a person in
charge of the premises, by a lawful occupant, or by another authorized person; or
(2)That are posted, in a manner reasonably likely to come to the attention of intruders,
with notice not to enter the premises.
(b) Classification.—Second degree trespass is a Class 3 misdemeanor.
Notes
Element (4)(a). This element would be satisfied if a homeowner tells a defendant to leave the
homeowner's front yard and the defendant refuses, or if a homeowner tells a defendant never to
come back onto the homeowner's property but the defendant re-enters the property. However, if
the unauthorized entering or remaining occurs in a building, first-degree trespass should be
charged.
C. Domestic Criminal Trespass
§14-134.3. Domestic criminal trespass.
(a) Any person who enters after being forbidden to do so or remains after being ordered to leave
by the lawful occupant, upon the premises occupied by a present or former spouse or by a person
with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the
complainant and the person charged are living apart; provided, however, that no person shall be
guilty if said person enters upon the premises pursuant to a judicial order or written separation
agreement which gives the person the right to enter upon said premises for the purpose of
visiting with minor children. Evidence that the parties are living apart shall include but is not
necessarily limited to:
(1)A judicial order of separation;
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(2)A court order directing the person charged to stay away from the premises occupied by
the complainant;
(3)An agreement, whether verbal or written, between the complainant and the person
charged that they shall live separate and apart, and such parties are in fact living separate
and apart; or
(4)Separate places of residence for the complainant and the person charged.
Except as provided in subsection (b) of this section, upon conviction, said person is guilty of a
Class 1 misdemeanor.
(b) A person convicted of a violation of this section is guilty of a Class G felony if the person is
trespassing upon property operated as a safe house or haven for victims of domestic violence and
the person is armed with a deadly weapon at the time of the offense.
D. Forcible Trespass
Statute
This is a common law offense. State v. Bates, 70 N.C. App. 477, 480 (1984); David J.
Sharpe, Forcible Trespass to Real Property, 39 N.C. L. REV. 121 (1960-61).
Elements
A person guilty of this offense
(1) (a)makes an unpermitted and unlawful entry on premises or
(b)willfully refuses to leave the premises after being ordered to do so
(2) (a)using force against the occupant,
(b)threatening to use force, or
(c)appearing so as to inspire fear
(3)when the occupant is present on the premises and
(4)is in peaceful possession of the premises.
Punishment
Class 1 misdemeanor. G.S. 14-3(a). See the heading "Offense Class" under"Misdemeanors"
in Chapter 4 (Punishment under Structured Sentencing).
E. Trespass to Land on Motorized All Terrain Vehicle
Statute
§ 14-159.3. Trespass to land on motorized all terrain vehicle.
(a)No person shall operate any motorized all terrain vehicle:
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(1) On any private property not owned by the operator, without the consent of the owner;
or
(2) Within the banks of any stream or waterway, but excluding a sound or the Atlantic
Ocean, the adjacent lands of which are not owned by the operator, without the consent of
the owner or outside the restrictions imposed by the owner.
(b) A "motorized all terrain vehicle", as used in this section, is a two or more wheeled
vehicle designed for recreational off-road use.
(c) A violation of this section shall be a Class 2 misdemeanor.
F. Trespass for Purposes of Hunting, Etc.
§ 14-159.6. Trespass for purposes of hunting, etc.,without written consent a misdemeanor;
defense.
(a) Any person who willfully goes on the land, waters,ponds, or a legally established waterfowl
blind of another that has been posted in accordance with the provisions of G.S. 14-159.7, to hunt,
fish or trap without written permission of the landowner, lessee, or his agent shall be guilty of a
Class 2 misdemeanor. Written permission shall be carried on one's person, signed by the
landowner, lessee, or agent, and dated within the last 12 months. The written permission shall be
displayed upon request of any law enforcement officer of the Wildlife Resources Commission,
sheriff or deputy sheriff, or other law enforcement officer with general subject matter
jurisdiction. A person shall have written permission for purposes of this section if a landowner,
lessee, or agent has granted permission to a club to hunt, fish, or trap on the land and the person
is carrying both a current membership card demonstrating the person's membership in the club
and a copy of written permission granted to the club that complies with the requirements of this
section.
(b) Any person who willfully goes on the land of another that has been posted in accordance with
the provisions of G.S. 14-159.7(l), to rake or remove pine needles or pine straw without the
written consent of the owner or his agent shall be guilty of a Class 1 misdemeanor.
(c) It is an affirmative defense to a prosecution under subsection (a) or(b) of this section that the
person had in fact obtained prior permission of the owner, lessee, or agent as required by those
subsections but did not have on his or her person valid written permission at the time of citation
or arrest.
16
Attachment C(2)
39
Q: Under both state law (G.S. 67 -4.1) and Orange County's draft ordinance, a dog that bites, attacks or threatens someone who is committing
a willful trespass will not be considered a dangerous, potentially dangerous, or vicious dog. How can animal control officials decide when this
exception applies?
Start
o
Attachment C(3) 4a
Parental Responsibility When Do g Bites Child 3-3-2014
Question.From Bob's Email:
The practical question is how we respond to the objection that the parent is responsible for the
child who enters the property of another and gets bitten even if the child was not in the company
of a parent(or other adult)at the time of the bite. The theoretical question is more or less the
same but probably has to do with whether in law there is-an absence of-contributory negligence
on the part of the parent of the child who suffers harm in a variety of scenarios given the parents
different duties.
Response:
The question regarding how the responsibilities of a parent of a child who has been bitten by a
dog interface with a vicious animal determination under the Unified Ordinance is difficult as a
matter of both practice and theory. On one hand,there is a general societal interest in preventing
harm to a child who is not acting with a blameworthy state of mind even when the child may be
committing a technical trespass. On the other, it is not reasonable to expect a dog to distinguish
between the various possible states of mind or capacities for negligent behavior of a child who
has entered upon the property of the dog's owner. Resolving the tension between these points is
largely a policy determination that must be made by Animal Services.
From a legal perspective,the law does not contemplate a parent's poor supervision of her child
changing the nature of a tort committed by the child while being poorly supervised. For
example, a technical trespass by a five-year old child(an age at which the law attributes to the
child no capacity for negligence)does not become a-willful trespass by virtue of a parent's
negligent or grossly negligent supervision. Instead,the law provides for an independent civil
remedy against a parent if a plaintiff proves that the parent's negligent supervision proximately
caused(by way of the child's tort)damage for which recovery is allowed. See e.g.,Anderson v.
Canipe, 69 N.C.App. 534, 537(1984) (recognizing a cause of action against a parent for
negligent supervision where child allegedly committed an intentional tort). Strong's North
Carolina Index, a publication which provides a general overview of North Carolina law in many
areas, describes the State's view on parental liability as follows:
Ordinarily,a parent may not be held liable for a tort committed by his or her
child solely by reason of the relationship.However,the parent may be liable if the
child, in committing the tort, acts in some way in a representative capacity. A
parent's liability for acts of an unemancipated child is not limited to those
situations in which the parent specifically approved the child's act or in which the
child acted strictly in the capacity of the parent's agent or employee; rather, the
parent of an unemancipated child may be held liable in damages for failing to
exercise reasonable control over the child's behavior if the parent had the ability
and the opportunity to control the child and knew or should have known of the
necessity for exercising that control.Before it may be found that a parent knew or
should have known of the necessity of exercising control over the child, it must be
41
Parental Responsibility When Dog Bites Child 3-3-2014
shown that the parent knew, or in the exercise of due care, should have known of
the child's propensities and could have reasonably foreseen that failure to control
those propensities would result in injurious consequences.
Liability for the torts of their minor children may be imposed on parents if
they know, or in the exercise of reasonable care should have known of the child's
habits, tendencies or propensities toward the commission of a particular tort, have
the opportunity and ability to control the child, and have made no reasonable
effort to correct or restrain the child.
The parent may also be liable for directly aiding, abetting, soliciting, or
encouraging the wrongful act,participating in, or commanding, advising, or
encouraging the commission of the tort.
23 N.C. Index 4th Parent and Child § 15 (Liability of Parent for Torts of Child) (citation omitted)
An example within the context of the Unified Ordinance may be helpful in assessing the state of
affairs where a negligently supervised trespassing child has been bitten by a dog. Suppose a five
year old child entered upon her neighbor's property in a manner that could be considered grossly
negligent if done by an adult, and while on the property was bitten by her neighbor's dog without
provoking the dog. Arguably, the willful trespass exception would not shield the dog from
categorization as a vicious animal because the child lacks the capacity for negligent behavior in
the eyes of the law. The dog's owner, however, may assert that the child's parents were
responsible for the child being bitten because the parents should have been supervising the child
more effectively. In this case, under the current proposed Unified Ordinance, one interpretation
of a practical answer to the dog owner's assertion of parental responsibility is that no exception
prevents the dog from being classified as a vicious animal under the Ordinance, but the dog
owner may have an independent claim against the child's parent's for damages which are the
consequence of the incident. These damages could theoretically include, among other things, the
cost to the dog owner of complying with the vicious animal restrictions of the Ordinance.
As can be seen from the hypothetical example, neither party is likely to be satisfied by the
outcome of an incident where a negligently supervised child has been bitten. The dog owner
may be upset by the potential categorization of the dog as a vicious animal, while the parents of
the child—in addition to their displeasure with any injury suffered by the child—may be upset
by their potential exposure to independent civil liability.
42
Attachment D
WHAT IF MY DOG BITES A PERSON ON MY PROPERTY THAT:
• Note: unless indicated, no criminal intent is assumed
• 1 think is trying to break into my house but I have no proof?
• is clearly trying to break into my house (i.e. is climbing through my
window(assume criminal intent)
• accidently stepped on his paw while walking through the yard?
• looks different from me so the assumption is criminal intent?
• opened and walked through a closed gate of my front fence
(uninvited and invited)
• opened and walked through a closed gate of my back fence
(uninvited and invited)
• walked through my front or back gate with a no trespassing or
beware of dog sign (uninvited and invited)
• came into my fenced backyard to swim in my pool uninvited?
• Same scenario but uninvited and had frequently swum in the pool
before
• walked into my house through an unlocked door by mistake
• was fleeing through my property. [A woman carrying a baby flees
through my property.]
• walked through the electric fence that confines my dog onto my
property. Marked? Unmarked? (uninvited and invited)
• entered my property to provide me with service, i.e. mail delivery,
meter reader, UPS, etc.
• entered my property to canvass, petition, solicit, campaign. If a "no
soliciting" sign posted? If a "no soliciting" sign is NOT posted?
• is a neighbor who came onto my property to borrow a household
item.
• came onto my property after having an accident or other emergency
and required assistance..
• came onto my property to ask permission to do something, i.e.
photograph a waterfall?
• 1 don't know but who came to my back door instead of my front door?
• is a child who was walking on the sidewalk leading to my front porch,
or was on my front porch?
• is a child who came over my fence into my backyard to retrieve a
ball.
• Is a child who came over my fence to retrieve a ball after tormenting
my dog from the other side of the fence?
• Is a child who came onto my property who had previously tormented
my dog.
• What if my dog bit a neighbor that often visits but took the liberty of
letting herself in without knocking?
• What if my old dog sleeping on his bed bit the repair man that
accidentally stepped on his foot when he was moving a large piece of
43
equipment through the house?
• What if I posted a sign saying "no trick or treaters" on my mailbox and
a neighbor thought that it didn't include her kids and sent them down
my long driveway in costumes in the dark for candy?
• What if my fenced backyard backs up to a neighborhood park and
the kids playing ball there hit the ball into the yard repeatedly and
climbed over the fence to grab it and one scares the dog and gets
bitten?
• What if I send my kid out to my car with my dog on a leash and
another kid sees him and runs up my driveway, into my yard to say hi
and the dog protects his kid by biting the one running into the yard?
Y �
44
Attachment E -- Excerpt
from Approved October
APROVED 12/10/2013 1, 2013 BOCC Meeting
Minutes
MINUTES
BOARD OF COMMISSIONERS
REGULAR MEETING
October 1, 2013
7:00 p.m.
The Orange County Board of Commissioners met in regular session on Tuesday,
October 1, 2013 at 7:00 p.m. at the DSS offices, in Hillsborough, N.C.
COUNTY COMMISSIONERS PRESENT: Chair Jacobs and Commissioners Mark Dorosin,
Alice M. Gordon, Earl McKee, Bernadette Pelissier, Renee Price and Penny Rich
COUNTY COMMISSIONERS ABSENT:
COUNTY ATTORNEYS PRESENT: John Roberts
COUNTY STAFF PRESENT: Interim County Manager Michael Talbert, Assistant County
Managers Clarence Grier, Cheryl Young and Clerk to the Board Donna Baker(All other staff
members will be identified appropriately below)
NOTE: ALL DOCUMENTS REFERRED TO IN THESE MINUTES ARE IN THE PERMANENT
AGENDA FILE IN THE CLERK'S OFFICE.
1. Additions or Changes to the Agenda
Chair Jacobs noted that Commissioner Pelissier would be arriving late.
Chair Jacobs reviewed the following items at the Commissioner's places:
• Two hand outs from individuals speaking on Veterans' affairs
• White-PowerPoint for item 7a, Unified Animal Control Ordinance
PUBLIC CHARGE
The Chair dispensed with the reading of the public charge.
2. Public Comments
a. Matters not on the Printed Agenda
Jesse Torres is an Orange County resident and a member of the military order of the
Purple Heart, Chapter 637. He reviewed the history of the Purple Heart. He indicated the
hand out at the Commissioner's places, which is a proposed proclamation to have Orange
County designated as a Purple Heart county. He noted that the back side of the sheet lists all
the counties that have already gone through this process.
Marshall Morris is here on behalf of Jesse Torres. He noted the handout at the
Commissioner's places from the Veteran's Administration, indicating that there are 7000
veterans in Orange County who receive compensation. He said this equals $26 million per
year in compensation and pensions given to wounded veterans. He said this information is to
support Jesse Torres' request.
Don O'Leary said he agreed with most of the Board's decisions, with the exception of
the topic of ICLEI. He said the government has shut down the wrong departments, and all
three branches of the government should have been shut down.
b. Matters on the Printed Agenda
45
Chair Jacobs said maybe this can be analyzed when there is more staff support
available, to see if Orange County can help out more financially.
PUBLIC COMMENT:
Marshall Morris said, being a disabled veteran, he was unaware of this mode of
transportation. He asked if there is a schedule posted for this transportation entity so he can
share it with other veterans, especially amputees. He asked if the transportation is handicap
and wheelchair accessible.
Craig Benedict said there is information available. He said he would provide phone
numbers for door to door service with handicap accessibility. He said there is a circulator route
and a 420 bus to take people down to UNC Hospitals.
He said information is available on the website, through the Planning and Inspections
Department and Orange Public Transportation.
A motion was made by Commissioner Rich, seconded by Commissioner McKee to
close the public hearing.
VOTE: UNANIMOUS
A motion was made by Commissioner Gordon, seconded by Commissioner McKee to
approve the annual FY 2013/2014 ROAP grant application and certified statement and
authorize the Chair and Interim County Manager to sign.
VOTE: UNANIMOUS
7. Regular Agenda
The Board considered approving revisions to the current Orange County Animal Control
Ordinance to make it a Unified Animal Control Ordinance.
Chair Jacobs said he has asked staff to track some of the language changes that are
made as this goes along. He said if a good stopping point cannot be reached tonight, this will
be moved to the next meeting. He noted that there are some grammatical and typographical
mistakes to be corrected.
Commissioner Pelissier arrived at 7:44 pm.
Bob Marotto reviewed the following PowerPoint slides:
Unified Animal Control Ordinance
October 1, 2013 presentation
Background
• Orange County's Animal Control ordinance has not been updated since it was created
in 1987
• Orange County Animal Services (OCAS) was created as a department in 2004/2005
— part of the BOCC timeline included updating the ordinance
— ordinance has yet to be updated to reflect the changes involved in the county
integrating sheltering and animal control operations
46
Municipalities
• Historically, Animal Control provided service to the unincorporated parts of the County
— Hillsborough has received service from the county since the 1987 ordinance's
adoption
— Chapel Hill contracted with Animal Protection Society prior to OCAS creation
(2004)
— Carrboro had separate Animal Control officer until 2013 (on-call provided
previously by OCAS)
— Mebane continues to provide its own Animal Control services (despite overtures
from OCAS)
Reasons to Unify
• To create a coherent and integrated ordinance for Orange County as a whole
— The municipalities that receive animal control services each have different
ordinances
— Ordinances are confusing to public, staff and judiciary process
• To provide necessary & overdue updates
— Reflect consolidation of sheltering and animal control operations in OCAS
• To fill critical gaps
— Years of judicial process have identified important gaps within each of the
ordinances
— Hampers department's ability to protect the public and animals of the county
Staff Attorney Annette Moore, presented the following slides:
Summary of Recommendations
• Updating ordinance to reflect OCAS department creation
• Keeping & displaying of wild animals
• Creating an appeal process for administrative orders and civil citations
• Designating only animal control staff as cruelty investigators
• Creating authority for assuring humane treatment of animals and humane euthanasia
• Adding differentiation of public nuisances created by cats
• Establishing authority sufficient to effectively regulate potentially dangerous dogs
Summary of Public Concerns
• Livestock as nuisance animals
— § 4-45. (b) (6) added: "at large off the premises of the owner or Keeper, exce t
in the case of domestic livestock the Animal Services Director shall have the
discretion to determine a violation" [pg 23, strikethrough version of
recommended ordinance
• Dangerous vs. Vicious
— Existing county ordinance includes vicious animals
— Any added language comes from Chapel Hill and Carrboro ordinances
• No appeal process for vicious dog declaration
— Existing ordinance has no appeal process, but proposed unified ordinance does
contain an appeal process for vicious dog declarations, as well as other
administrative orders
• Dual declaration appeals
47
— Existing ordinance has no appeal process for vicious dog declarations.
Proposed ordinance allows the appeal of both declarations to be considered in
a single appeal hearing.
• That proposed ordinance makes it responsibility of owner to prove intruder came onto
property with criminal intent
— § 4-42. (e) (4) deleted: "Committing a willful trespass or other tort as provided in
N.C. Gen. Stat. Chapter 14, Article 226" [pg. 18 in strikethrough version of
recommended ordinance]
— Language now similar to that found in state statute and Carrboro ordinance
— Summary of Public Concerns cont.
• Watchdog definition
— Existing language in current ordinance: § 4-37. "A dog that barks and threatens
to bite any intruder that has not been specially trained or conditioned for that
purpose." [pg 8 in strikethrough version of recommended ordinance]
— Barking and threatening to bite on owner's property does not qualify the dog as
potentially dangerous or vicious- hence the definition is meaningless. Once a
dog bites, it no longer meets requirements of watchdog
— This language was removed from proposed ordinance
• The distinction between rural and urban has been removed
— Where significant differences occur between the municipal and county
ordinances, they will be retained in the municipal code of ordinances
• Examples: tethering, crowing roosters, livestock, chicken coops
• none of these examples are included in the unified ordinance
Chair Jacobs acknowledged Susan Elmore's work on the ASAB and with this process.
Susan Elmore, ASAB Chair, DVM presented the following slides:
Summary of Public Concerns cont.
• No School of Government involvement and no public input
— Susan Elmore, ASAB Chair, DVM
ASAB and Public Process
• ASAB Chair spoke with Associate Professor Aimee Wall, UNC School of Government
• ASAB & Agricultural Preservation Board officers, along with senior staff of Animal
Services and DEAPR, met to discuss livestock concerns with ordinance
• ASAB Chair also spoke with a local farmer on matters related to at-large livestock and
other issues that might affect county farmers
• ASAB considered the ordinance 3 times prior to June 4th BOCC meeting
— ASAB is comprised of Orange County residents who have been appointed by
the BOCC to review such issues
— One meeting dedicated to vicious/dangerous dog declarations and residents
were invited to speak and their concerns were heard
• Since June 4th BOCC meeting, ASAB met again to discuss ordinance and they
unanimously recommended BOCC adoption
• The ASAB 2014 work plan will include a review of targeted items on the unified
ordinance
Bob Marotto reviewed the following slide:
48
What the Unified Ordinance Is
• A unification of the existing ordinances that
— fills gaps
— makes it possible to efficiently protect the public and carry out services
— avoids existing confusion within department, public and court system
• A fluid document that still allows for differences between municipalities and county
where needed
Annette Moore said there needs to be a due process for administrative orders and civil
citations.
She said the designation of cruelty investigators will be helpful in instances of large
scale seizures. She said there needs to be a balance of sheltering and keeping these animals
as well.
Chair Jacobs said the Board has requested attachment 3, pages 20-21 at agenda
review, and it was useful information.
She said additional language has been added with regard to dangerous and vicious
dogs, and this language was taken from Chapel Hill and Carrboro's ordinances. She said
language has also been added to designate repeat offenders, which expands the authority to
restrict this dog to the property. She said there is also a new requirement to micro-chip repeat
offenders, in order to prove their identity.
Annette Moore reviewed the slides regarding public concerns. She reviewed
background regarding livestock as nuisance and said the new language captures the concern
over whether the Animal Services Director has discretion in these situations.
She reviewed the background and reasons for further definition of the term
"trespasser." She said the new language clarifies willful trespass.
Susan Elmore said Amy Wall agreed that it was a good idea to unify first with minimal
but critical changes.
She said discussions about the livestock concerns were productive. She said no one
wants a farmer to be cited for livestock that is off their property for reasons beyond their
control. She said the hope is that this new language will suffice. She said the Agricultural
Preservation Board will meet later this month to discuss this further.
Bob Marotto said he feels that a framework has been created that will allow for some
differences within the unincorporated areas of the county and the towns.
Commissioner McKee asked about the appeals process, as listed on page 49 of the
packet, section 4. He asked if this is assumed to be after the Animal Services Director has
had a chance to review.
Bob Marotto said yes.
Chair Jacobs asked if this designates 5 business days or 5 calendar days.
Annette Moore said it is 5 calendar days.
Commissioner Price asked about the appeals process and who would be involved in
this process. She feels this would be more of a quasi-judicial action, similar to the Board of
Adjustment. She said the people on these boards are specifically chosen. She asked if the
people doing appeals would need to have certain qualifications. She said this seems to tread
into legal matters.
Annette Moore said the ASAB does currently provide a quasi-judicial function, and all
members have received annual training. She said she and Bob Marotto provide the training
regarding the law and the consideration of dangerous dog appeals.
49
John Roberts said it is not unusual for an advisory board to also serve as a quasi-
judicial body, or for a legislative board to also serve as quasi-judicial body. He said there is
not usually extra training, but there is legal counsel available.
Bob Marotto said his experience with the ASAB in other locales is that these boards
hear dangerous dog appeals and are obligated to act within the law with the provision of
evidence.
Commissioner Price asked if there is a rigid schedule of issues in making decisions.
Annette Moore said this is done now.
Susan Elmore said she has served on the appeals board for many years, and the law is
followed very rigidly. She said statements are heard from both parties, and all documents are
read. She said this is taken very seriously and it has been 100% fair in her experience.
Bob Marotto said the board does have findings of fact that are the basis for a final
determination. He said, in the case of a hearing, the elements are conducted and a document
is completed, signed by the board and given to both parties. He said these are quasi-judicial
hearings that are mandated by state law. He said the Board of County Commissioners has
given this authority to the ASAB. He said there is an option to appeal to the Superior Court as
a second step in the appeal process.
Commissioner Dorosin referred to page 445, regarding the at-large language. He said
one issue with the language is the broad discretion it offers. He noted that Susan Elmore used
more specific language — "domestic livestock at large, through no fault of the owner." He said
this specificity is needed to make things more clear.
Commissioner Pelissier said some of the concerns of the public relate to the watchdog
issue. She asked if cases have occurred where the owner ends up with a dog labeled vicious
when the owner did not know that the dog would bite, because this not a normal behavior for
the animal.
Bob Marotto said there may be a known propensity of the owner that the dog will bite or
it may be a trait that has not been seen yet. He said there may be a trigger that sets off the
behavior, such as chasing a bike. He said the number of bites is large and the reasons are
varied.
Commissioner Pelissier asked for clarification on the legal definitions for what would be
considered provocation.
Annette Moore said a definition for provocation is included on page 29 of the packet,
and this is a new definition that did not exist before.
Bob Marotto gave an example of a child who was bitten after going into a house with a
dog who had not previously bitten.
Commissioner Gordon asked if people who testify are sworn in when the ASAB hears
appeals. She asked if all cases can be appealed to the Superior Court.
Bob Marotto said that the NC general statue provides the right to an appeal process
with the local government, and there is an opportunity for a second step appeal within ten days
of that first decision
Commissioner Gordon asked if this applies to all cases.
Bob Marotto said yes.
John Roberts said this would be the final administrative piece of the process, and for
any final decision, there is the option to go to the courts after that.
Commissioner Gordon asked if all testimony is sworn.
Annette Moore said this is not currently in place, but it can be.
Commissioner Gordon asked why this is not in place.
John Roberts said it goes to the courts in the form of a de novo appeal; which means
everything is repeated again, so there is no need for this first appeal to have sworn testimony.
50
He said if the Board of County Commissioners wanted sworn testimony then that could be
provided.
Commissioner Rich asked why the watch dog definition is being taken out. She also
asked for the definition of"specially trained and conditioned" and clarification on who is
responsible for this training and conditioning. She said she is referring to the strikethrough on
page 30, item c.
Bob Marotto said this is a point of contrast with the preceding two types of security
dogs, which are professionally trained attack dogs. He said this can be done in private training
or police training for security or police dogs. He said this would be the kind of training for
those first two other types, and not to the watch dog. He said, in addition to the training that
would be professionally done to certify a dog as a sentry or patrol dog, there would be required
registration for these types of dogs. He said the watch dog is neither conditioned, trained or
registered in contrast to these two types.
Commissioner Rich asked if a watchdog is considered to be a dog that bites, versus
just a dog who barks.
Annette Moore said this can include any dog that barks to keep an intruder out, which
includes any dog. She said this makes the definition is meaningless.
Commissioner Rich asked about a case where someone tries to enter her house and
her dog bites the person in response.
Annette Moore said once the dog bites it is not a watch dog, according to the definition.
Commissioner Rich said she disagrees with this.
Commissioner McKee said if the term watch dog is generic and meaningless, then why
not leave it in. He disagreed with taking it out.
Annette Moore said this term makes the reader think that there are greater or fewer
rights given. She said that any dog that barks or threatens to bite an intruder on personal
property is a watchdog. She said there is nothing wrong with a dog that barks or threatens to
bite on your property; there is no legal issue with that.
Commissioner Price said her fear is that if someone has a watch dog that is barking,
and a person comes onto the property, and the dog bites this person, then the County can say
this is a dangerous dog.
Annette Moore said the board is looking at the terms in isolation. She said if an intruder
comes on to property and the dog bites, under the ordinance this is not a vicious dog - it is a
trespass. She said if an intruder innocently trespasses, and the watch dog barks or threatens
them, that has no legal meaning.
Commissioner Price asked if micro-chipped animals need to have rabies tags.
Bob Marotto said this differs for dogs and cats. He said state law does not require cats
to wear a rabies tag. He said the County does not require it as long as proof of vaccination
can be provided. He said the statute does not allow this for dogs. He said the microchip only
provides identification if a scanner is available.
Commissioner Rich asked about input from municipalities, since there are no animal
control officers in those towns. She asked who was contacted for input.
Bob Marotto said the board spoke with the members of the Carrboro police department.
He said the board spoke with Chapel Hill Police Chief Blue, as well as staff and the town
attorney. He said it has been a holistic approach with the municipalities from the beginning.
Commissioner Rich asked if the municipalities have seen this draft ordinance.
Bob Marotto said the municipalities have seen it and are fully on board. He noted that
it will still have to go back to the elected bodies for a vote. He said there has been an
enormous amount of work from all of these entities.
Commissioner Price said dog fighting is illegal in Orange County. She asked why the
ordinance lists precautions rather than a statement that it is illegal.
51
Bob Marotto said there was a case a few months ago, where the County had to ride
with police on a drug warrant. He said there was information that there were 15 dogs involved
with illegal dogfighting. He said there was no direct testimony available, but paraphernalia
was found, and it was used to build a case. This is the reasoning for the precautions.
Commissioner Price asked where the ordinance against dog fighting is located.
Bob Marotto said the County resorts to state statutes for that.
Chair Jacobs asked if there are fire standards for kennels.
Bob Marotto said, for most kennels, there is a planning and zoning process. He said
Animal Services has been responsible for the animal welfare and less for the building
structure.
PUBLIC COMMENT:
Kris Bergstrand has been a Veterinarian for 33 years. She said she has experience in
small animal practice, academia, pharmaceutical research and toxicology. She said she has
been on the ASAB in the past, and during that period of time she heard many dangerous dog
appeals. She said there was always a veterinarian on board, with ordinance in hand during
the process.
She said she was here to show support for this unified ordinance. She said there has
been a tremendous amount of work and cooperation between the County and the towns. She
found during the tethering ordinance-process, that residents on both sides criticized the board,
and made wrongful assumptions.
She gave the Commissioners a hand out regarding statistics about dog bites in rural
versus urban areas.
Ed Johnson said he is submitting public comment on behalf of Bob Epting, who was
unable to attend. He submitted the following written statement from Bob Epting:
FROM BOB EPTING:
I have just received the materials you are being provided for your agenda item pertaining to
revision of the animal control ordinances into a Unified Ordinance.
While the original idea of consolidating the several Town and County ordinances into a
Unified Ordinance was a good one, the revised drafts go far beyond the simple consolidation
the Board envisioned and directed. We appeared and complained about this gross
enlargement of authority, resulting in the elimination of citizens' rights under the existing
laws,at your meeting before the summer break.
Sadly,the draft "Unified"ordinance retains the features we complained about, and still
exceeds your charge of simplification and consolidation.
In particular, I note that the provision in the existing law permitting a person to keep a
watchdog, and protecting the animal and its owner from vicious animal designation and legal
liability, (if the animal bites a trespasser on the owner's property), has been deleted. Thus,
the intruder is to be protected, while the owner is directed to lock up his dog for the rest of
its life, all for doing what the owner expected to protect his family and property.
Those who propose the "Unified"ordinance say they have retained the "sentry dog"
designation, which requires the animal to be trained or conditioned (no definition, discretion
of the AS Director, I suppose), and the property to be marked "No Trespassing." They argue
52
this will make it easier to enforce the law. I have seen the way these squishy provisions,
leaving discretion in the hands of AS Officers and the AS Director,are simply avenues for
uneven treatment of citizens from one case to the next.
In a case I was in last summer; defending a property owner whose dogs were declared
vicious animals" because one of the two had bitten a trespasser who had crept up from the
distant rural road through adjacent woods to the very steps of my client's home, we found
that the AS Officer was not even aware of the watchdog provision in the existing ordinance,
had no idea how his being an intruder affected the case, and had no interest in his having
been arrested several times in Alamance County for criminal trespass, or how that affected
the matter. WE DO NOT NEED MORE DISCRETION IN THE AS OFFICERS OR THEIR
DIRECTOR.
What we need is to have you act to preserve the citizen's right to keep a watchdog, especially
in rural Orange County, a natural human right that has existed since before there were laws,
and ought to continue to be recognized and defended by our elected officials.
Please do not vote to remove the present watchdog category, as the "Unified" ordinance
proposes to do.
Secondly, please be sure that the appeals Board,to which a citizen may appeal arbitrary,
baseless, or otherwise patently incorrect decisions that affect their animals, their homes
and their purses, is an independent appeals Board. The "Unified" ordinance requires that
appeals be heard by the Animal Services Board. In my opinion, the appeal ought to go to a
judicial authority, and I believe the "Unified" ordinance is unconstitutional because the right to
appeal agency decisions to judicial review is fundamental to the principle of due process. But
at least make the appeal's first step to a body consisting of a majority of citizens not directly
associated with the AS Board.
Finally,there are many places in the proposed "Unified" ordinance where sentences are
incomplete or nonsense words or phrases remain, even after our pointing them out
previously. Couldn't we at least expect that their product would have been edited so as to
be in a form you might adopt, rather than still needing the assistance of outside editors?
Bob Epting
Ed Johnson read his own statement, as follows:
I am glad that Animal Control has listened to both the Board and to us citizens who
have made complaints and offered suggestions. My appearance last time was
prompted by my dog's being declared "vicious" for biting someone. After I pointed
out that my dog was acting as a watchdog and had bitten a trespasser, the
declaration was rescinded.
In the June draft of the unified ordinance, Animal Control deleted the category of
watchdog and watered down the idea of a trespass. Under the new ordinance, my
dog would be nailed as "vicious." You told Animal Control to come back with a new
draft that makes no new laws.
53
Animal Control has now presented you with a new draft that presumably makes no
substantive changes from what already exists. Presumably, substantive changes will
be added later.
On page 2 of the Agenda Abstract, Animal Control says that rather than presenting
the ordinance for an up or down vote, the Board is given a "menu of choices" where
they can say yea or nay on each of seven issues. This is a quote: For example, it is
possible to adopt the ordinance while preserving watchdogs as a category of security
dog." The "menu" is on page 14. It does not contain the promised watchdog issue.
People in the country have dogs for two reasons: As pets and as guardians. I rely on my
dog's bark to alert me that someone is approaching. This is part of her job. So I would
like to see the category of watchdog retained. I'd even be willing to have her officially
registered with Animal Control as a watchdog.
In the new ordinance, my dog would be off the hook for biting a trespasser if my property
had placards "noting the presence of such animal." What does this mean? What should
the sign say? And in regards to placards, I'd like to say two things: 1. Do we really want
to clutter the countryside with the thousands of signs necessary to protect dog owners
from having their dog called vicious. And, 2, any competent lawyer will tell you that by
posting a "beware of dog" sign, you are admitting that you regard your dog as dangerous
and opening yourself up to legal liability.
I could say a lot more with extra time but I want to close with an amazing example of why
the draft ordinance needs more work. Take at look at the definition section on pages 69
and 70. Imagine you are bitten by a dog. Would you rather have an "injury" or a "severe
injury?" In the definition section a severe injury entails broken bones and lacerations. But
an iniury requires "immediate medical attention to prevent death."
OTHER POINTS I'D LIKE TO MAKE
1. Why does Animal Control want to retain both categories, "vicious animal" and
"dangerous dog??" The County's designation "vicious animal" is only slightly different from
the State's designation of "dangerous dog. The double designation leads to cases such as I
cited at the June BOCC meeting where a single event led to an animal's being called both
"vicious" and "dangerous." This caused the dog's owner a lot of unnecessary grief and
caused Animal Control to have to spend a whole lot of additional time on the case.
2. The proposed ordinance is filled with dozens of instances where the public is at the
mercy of the judgment or discretion of an Animal Control officer or of the Animal Services
Director. In my own case from last winter, my wife and I fell victim to this discretion issue
when we opted to keep our dog at home for the required 10-day quarantine after she bit a
trespasser. I had no argument with the quarantine. But I did have to leave the county for a
short trip and asked if Animal Control could keep the dog overnight and then return her to
my custody.They said yes but when I went to pick her up, they said no. After a heated
discussion,they said yes again.Then they said no once more and finally after a face-to-face
meeting said yes again.Five changes of mind is four too many. Certainly there must be
some provision for experts to exercise professional judgment. But it would help the
ordinance if some of these discretionary points were fleshed out so as to let the public
know what to expect.
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3. The designation of a dog as"vicious" is really serious. In essence it terminates any
freedom the dog previously enjoyed. He must be kept inside the owner's house.
When kept outside, it must be in a specially constructed pen built to Animal Control's
specifications and inspected annually for which the owner must pay an inspection
fee. When off the owner's property, the dog has to be on leash and wear a muzzle.
When outside on its owner's property, it must be on a leash. It is crucial that the
owner be provided an opportunity to appeal the designation to a quasi-judicial body
that is independent of Animal Control. The current Advisory Board certainly has the
expertise to serve as an appeal board but it is so intimately concerned with the inner
workings of Animal Control and its Director (and other personnel) that it simply
cannot qualify as an independent judicial body.
END.
Bonnie Hauser said it is hard to have an ordinance that satisfies both rural and urban
areas. She said direction is needed to get this on sound footing. She said this is not the time
to introduce changes or to increase the authority of Animal Services. She said this ordinance
does not accurately reflect the public's concerns. She discussed several examples of this.
She asked for a unified ordinance without changes and with assurance to the public
that there would be a transparent public process to change any ordinance. She said an
independent appeal process needs to be a priority. She said once an appeal process is in
place, then the other issues can be discussed.
Michelle Walker is the Vice Chair of the ASAB and is an attorney. She wanted to
address the appeals' process. She said this is a critical due process need that is supported by
state statutes for dangerous dogs. She said it is good to have the ASAB as the appeals'
board, because it is made up of Orange County residents from different backgrounds. She
said the board does not issue citations, so the people reviewing the decisions are not the
same people who made the original charge. She said there is an established process that it is
working.
She said changes are sometimes necessary for operations and due process purposes.
She said the background behind the watchdog and trespass involved consideration of a lot of
scenarios. She said another way of describing this watchdog issue is to say that it creates an
exception that swallows the rule, as it means any dog that bites anyone on its property could
be considered a watchdog. She said the goal is to identify dogs that have bitten people
without provocation.
Don O'Leary said dogs have different personalities. He said micro-chipping of dogs
has statistically been shown to cause cancer, and he encouraged people to try to avoid
chipping of animals.
Chair Jacobs said Don O'Leary brought this up last time and he asked him to send his
citations to the county.
Kris Bergstrand noted that the health services director oversees quarantine of animals,
and not animal services.
Chair Jacobs referred to page 3 and noted that unless all of the Board approves this
ordinance, it will come back at the next meeting. He said it is not necessary to resolve all of
the issues tonight.
Commissioner Dorosin asked John Roberts for clarification on the approval process for
this ordinance
John Roberts said any ordinance that does not require a public hearing, is required to
have a unanimous vote to pass on the first meeting. Otherwise, it must come back to the
Board.
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Commissioner Dorosin asked if the ordinance could pass without unanimous vote at a
subsequent meeting.
John Roberts said yes.
Commissioner McKee asked for clarification on Michelle Walker's comment regarding
lack of a due process for appeals.
Annette Moore said the state statute requires an appeal process for dangerous dogs;
she said the current ordinance does not have an appeal process.
Commissioner Price asked for clarification regarding the terminology of owner versus
keeper. She asked why it is required that someone over 18 be the person responsible for
caring for the animal.
Bob Marotto said experience shows that there will be some people who are keepers,
rather than designated owners. He said the keeper notion has some applications that can be
helpful, such as in transfers of ownership.
Annette Moore supported Bob Marotto's statement with past examples.
John Roberts referred back to Commissioner Dorosin's earlier question. He said if the
board votes on this tonight and it does not pass, it is defeated. However, if the Board votes
tonight and it passes without a unanimous vote, then it will need to come back for a second
reading, where it will only need a majority vote to pass.
He said if this is sent back with further changes and no vote, the vote at the next
meeting will still have to be unanimous.
Commissioner Dorosin referred to the watch dog issue. He noted that under current
ordinance, there is a blanket lack of liability for an owner if someone comes onto their land.
He said the concern of dog owners is that this will be turned 180 degrees to imply a strict
liability if the dog bites anyone. He said these are two extreme positions. He said the case of
a break-in is clear, but the case of a neighbor's child is not so clear.
He said he does not think the goal is to give land owners blanket liability, but to give
language that allows for a case by case analysis. He is not in favor of this "blanket immunity."
He said the purpose of the appeals process is to make case by case determinations.
Commissioner Dorosin said if the appeals process is honed, it is reasonable that it be
done with the ASAB. He said members of the public serve on this board and advice is
available from legal counsel. He said if this quasi-judicial process is implemented, this is the
place to do it.
Chair Jacobs noted that time is limited and it seems that Commissioner Dorosin has
brought up the issues that most Board members are concerned with -watch dog/trespassing
and the appeals process with the ASAB. He asked if these items could be discussed in order.
Commissioner Rich said she likes this idea. She agrees with Commissioner Dorosin on
the watch dog issue. She would like an expanded definition of a watch dog. She said she is
in the middle of the two extremes. She would like to find out what happens to that person in
the middle- the owner with the dog that doesn't normally bite and then does bite.
She said she would like to keep the ASAB as the appeals board.
Commissioner Pelissier said she agrees with the other Commissioners' comments.
She said taking out the watch dog definition will take out one of the extremes, as people will
not be able to excuse any aggression because their dog is a "watchdog." She said people are
upset that their dog may be deemed dangerous, when the only requirement is that residents
put up signs or fence the dog.
She said the ASAB will assess each case individually and will look at the whole
situation. She asked that the board look at how many cases have come under the new
ordinance and then assess how it is working with balancing people's right to have dogs.
Commissioner McKee said the wording will be hard to define. He said security dogs
are trained to attack. He said there are hundreds or thousands of dogs in the County that are
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kept for the purpose of increasing a feeling of security; however, only a small percentage of
those dogs bite. He said the problem with taking out the definition of watch dog is that it only
leaves the option for people to spend thousands of dollars and increase their liability by having
a trained attack dog on their property. He said no dogs are allowed to run free, and these
dogs will have to be contained. He said he agrees that a middle ground needs to be found,
but he wants to keep the watch dog definition in there, with a way to define it.
Commissioner McKee said Durham County has a different solution for appeals. He
said their appeals board resides in the sheriff's office and is made up of three members of
county staff and two members of the general public. He is in favor of an independent appeals
board. He does not question any motives of the ASAB, but he feels that residents will be more
comfortable if these two boards are separate.
Commissioner Price echoed Commissioner McKee's comments. She said she would
like to keep the watch dog definition and come up with better definition of trespassing.
She said her concern about the appeals board is that the members should be vetted if
their responsibilities are to be expanded.
Commissioner Gordon said good points have been made regarding the two extremes
related to the watch dog definition. She thinks this issue should be addressed.
She feels the appeals process needs to be worked on, and there should be sworn
testimony. She has not made up her mind yet about who should be the appeals board, but
she does feel there should be work done on the definition of trespassing;
Chair Jacobs said he originally thought there should be another step between ASAB
and the courts, and he still thinks this is a possibility. He is comfortable with the ASAB hearing
appeals at the current time. He said he is also amenable to another step.
He said he is very uncomfortable with the issue of trespassing. He said there are very
few innocent trespassing incidents in the rural areas. He said, in the case of a trespassing
child, a parent should be in a position of supervision. He said there is a middle ground that
needs to be found.
He said there may not need to be a definition of a watchdog, but there needs to be
definition of an animal that is on its property minding its own business when a human comes
on to the property and is not minding their own business. He said things do not have to reach
a point of going so quickly from a benign situation to a quasi-judicial situation.
Commissioner Dorosin said the problem with the current definition of watch dog is that
it encompasses every single dog that exists. He does not see a way to make a separate
category.
He thinks that the idea of some intermediate step before the vicious dog determination
is a good one. He said all of the facts need to be looked at per case.
He said there is an implicit invitation to be solicited unless there is a sign that says
otherwise; and this is one reason why the appeals process is so important for providing a case
by case analysis.
Commissioner Pelissier said she feels the watch dog definition is useless. She asked
the attorney if there could be a different definition of trespassing.
John Roberts said the trespassing definition can be modified. He said the best idea is
to modify it to refer to the criminal trespass statutes, as provided in NC General Statute 14,
article 22b. He said there are two different trespass statutes provided in that article; one would
cover someone who climbs over your fence, and the other would cover someone who comes
onto or stays on your property after being told to leave.
Commissioner Pelissier gave the example of someone being bitten by a dog when it
was not a case of trespass. She asked if this dog is automatically declared vicious if it is not
normally aggressive. She said this needs to be clearer.
57
Bob Marotto said there is a review process, and all circumstances are reviewed to see
if there is provocation. He said there are routine instances of this, and these are evaluated
individually.
Bob Marotto said the language regarding dangerous dogs is permissive and allows for
decisions by qualified staff, based on the facts of evidence.
Commissioner McKee said the general public identifies with the term watch dog. He
noted that dogs are not supposed to run free in Orange County. He said this ordinance shifts
responsibilities to the owner rather than to the person trespassing.
Commissioner Gordon thanked all the individuals who drafted the ordinance and she
recognized that it is a difficult task. She said there are certain basic aspects of the ordinance
that need to be addressed before the Board can effectively consider it. She said some of
these issues have already been discussed, and noted two specific issues, as follows:
• Use of the word "injury" on page 28 and page 30 —The definitions of"injury" (page 28)
and "severe injury" (page 30) need to be revised.
• Lack of clarity in wording on page 42, section 4-43, regarding Impoundment. The
paragraph beginning "Any animal found at large..." needs to be revised.
Commissioner Gordon recommended that the Board ask ASAB and staff to look at the
substantive issues. She said there are fundamental issues that need to be addressed, along
with consideration of written comments from the Board of County Commissioners and the
public. She suggested there should be no vote tonight, and that staff should bring the
ordinance back for first reading, with the proposed revisions.
Commissioner Gordon said she has one other issue. She questioned why there is a
difference between dogs and other animals, and she referred to pages 45 and 47.
Commissioner Gordon said staff needs to go through and deal with the internal
inconsistencies in the ordinance, and then deal with the substantive issues.
She said she has read through all of this, and she realizes that it is very difficult to
merge three different ordinances.
Chair Jacobs referred to page 49 and said the section on the appeals process should
say "5 working days" rather than "five days."
He referred to the language on page 42 regarding animals put to death. He said there
should be language noting that the owner be notified to be made aware of what has
happened. Chair Jacobs said he would rather not assume that the planning department has
approved the fire standards of kennels and facilities. He would rather the Animal Services go
back and find this information and bring it back to the Board.
Chair Jacobs reviewed the following list:
Main issues:
• General comfort level of ASAB being part of appeals process — Is there need for an
intermediate step?
• Watch dog issue- Is it too extreme? Can the term be related to trespassing?
• Term of trespassing —This needs to be addressed and clarified.
• Dog bites — How are these regarded? Is there another mechanism of punishment to be
considered for the owner, if not the animal?
• Notes and suggestions — Board members and staff are directed to give hand written
notes and suggestions to the board.
Chair Jacobs suggested staff address the main sticking points, and bring this back in
two weeks or however long it takes to satisfy the majority of the Board.
58
Annette Moore referred to Commissioner Gordon's question about the definition
section. She said a lot of these definitions come directly from state statutes, and efforts were
being made to conform to these. She asked if this was a request to change that language.
Chair Jacobs said if the statutes seem contradictory then that should be indicated, and
there should be some clarifying language to bridge what makes sense and what the statutes
say.
Commissioner Gordon said some of the definitions used in the ordinance do not
conform to established factors. She said some of these things are common sense issues,
such as the idea that "injury" should be less severe than "severe injury." She said a key
provision to the whole ordinance is the issue of injury, and this definition must be addressed.
Commissioner Price said the definition of wild animals needs to be clarified. She said
there also needs to be a limit for cold weather as it relates to animal cruelty.
Commissioner Pelissier said she is concerned that the Board is not giving clear
direction for the watch dog issue.
Chair Jacobs said the Board is not clear on that point, and that is why there is a request
for more clarity from the experts.
A motion was made by Commissioner Price, seconded by Commissioner McKee to
table this item for staff/ASAB to have time to review proposed suggestions from the Board and
provide responses to Board concerns.
Commissioner Gordon asked John Roberts if this motion is acceptable.
John Roberts said yes.
Commissioner McKee suggested that Professor Wall from the School of Government
might be made available to provide more direction.
Commissioner Gordon asked how the Commissioners can provide additional written
comments.
Michael Talbert said any written comments should be sent to the Manager's office.
VOTE: UNANIMOUS
b. Orange County Volunteer Application-Proposed Revisions
The Board considered proposed revisions to the Orange County Volunteer Application
for boards and commissions. A committee including Commissioner Gordon, Commissioner
Pelissier and Clerk to the Board Donna Baker had been charged by the Board to bring back
recommendations for Board consideration.
Commissioner Pelissier said she petitioned the Board in the spring to bring this forth to
add additional questions for particular boards. She said, for each of these five boards there
were some suggested additions. She talked with some board members and Donna Baker did
a survey of other boards and commissions.
She noted that there was an additional question suggested, outside of the charge. She
said this is included in the packet.
Commissioner Gordon said Donna Baker provided examples from other governmental
entities in the region and out of state.
She said the main discussion should be regarding the additional questions for the
selected boards.
Commissioner Price had concerns about the questions. She asked for an explanation
of the goal or purpose of these additional questions. She liked the four basic questions, but
she said she does not understand the need for some of the others.
She said the question regarding gender and ethnicity should be optional.
She said the term "domicile" is a bit ambiguous.
Attachment F -- Excerpt
from Approved June 4, 2013 59
BOCC Meetinq Minutes
APPROVED 9/5/2013 MINUTES
BOARD OF COMMISSIONERS
REGULAR MEETING
June 4, 2013
7:00 p.m.
The Orange County Board of Commissioners met in regular session on Tuesday, June 4, 2013 at
7:00 p.m. at the DSS offices, in Hillsborough, N.C.
COUNTY COMMISSIONERS PRESENT: Chair Jacobs and Commissioners Mark Dorosin, Alice M.
Gordon, Barry Jacobs, Earl McKee, Bernadette Pelissier, Renee Price and Penny Rich
COUNTY COMMISSIONERS ABSENT:
COUNTY ATTORNEYS PRESENT: John Roberts
COUNTY STAFF PRESENT: County Manager Frank Clifton, Assistant County Managers Michael Talbert,
Clarence Grier and Clerk to the Board Donna Baker (All other staff members will be identified appropriately
below)
NOTE: ALL DOCUMENTS REFERRED TO IN THESE MINUTES ARE IN THE PERMANENT AGENDA
FILE IN THE CLERK'S OFFICE.
1. Additions or Changes to the Agenda
The Chair went through the items at the County Commissioners' places:
- Pink sheet — for Item 7c, additional information for Refund Requests for Inaccurate Square
Footage Calculation
- White sheet- PowerPoint — for Item 4-b, Potential Orange County Fair — Preliminary Background
Report
- White sheet- for item 7b, Unified Animal Control Ordinance
- White sheet - for Item 6a, Executive Summary - CDBG Program — North Carolina Tomorrow Grant
A motion was made by Commissioner Price, seconded by Commissioner Gordon to add a closed
session to the agenda for the purpose of:
"To consider the qualifications, competence, performance, character, fitness, conditions of appointment,
or conditions of initial employment of an individual public officer or employee or prospective public officer
or employee" NCGS § 143-318.11(a) (6).
VOTE: Ayes, 3 (Commissioner Price, Commissioner Gordon and Chair Jacobs); Nays, 2 (Commissioner
Pelissier and Commissioner McKee)
Commissioner Rich and Commissioner Dorosin had not yet arrived.
PUBLIC CHARGE
The Chair dispensed with the reading of the public charge.
Commissioner Dorosin arrived at 7:04pm.
2. Public Comments
a. Matters not on the Printed Agenda
Bill Holmberg read the following prepared letter:
Hello Commissioners and thank you for hearing me.
In regard to the proposed site of the White Cross fire station on Neville Rd., I simply want to state
the following.
60
space. She said that the wings of the building have memories' and because of this the community would
like to see if it is financially feasible to save the wings for future uses.
She agreed that there should be a defined group who can be given a charge. She said that this
will not prevent others from giving feedback into the group discussion.
Commissioner McKee said the moment the sign-up sheet for input was laid out, a formal group was
established. He said it is worrisome to see the proposed expansion costs. His main concern is that a very
expensive structure will be built that won't provide any services, which is not the point. He said the
services that will be available are important, as is the historical significance of the facility. He said one way
to kill a project is to make it too expensive
Commissioner Rich said it would be nice to see budget figures on some proposed services such as
a library, Cybrary and others.
Jeff Thompson said as part of the preliminary plan process, this can be vetted out and brought
back in the fall.
Chair Jacobs said this is a circular argument. He said that investigating more possibilities creates
more expenditure. He said the cost of looking at the three proposed alternative uses is $40,000' versus
the $168,000 for the other consulting. He feels this is a comparatively small additional cost.
Chair Jacobs said the community simply wanted a library/Cybrary, and a community resource; and
it was someone else who brought up all these other services. He said this is not about duplicating other
service models. He said the main reason, other than safety issues, that staff recommended closing the
old library was because it cost $125,000 to heat/cool that one room. He said the people criticizing the
board for spending money should know that the library was closed to save money. He summarized that
the Board wants a formal structure, scope of services, charge, time, and specific membership, with
background information presented at the next meeting.
Commissioner Gordon said there should be a formal group established and nothing should be
done between now and 18th.
Commissioner Dorosin asked what is going to come back on the 18th if there are no meetings
between now and then.
Commissioner Gordon said the formal charge, timeline, structure and the membership list will be
established. She said none of this exists now, so this information should come back on June 18th
Commissioner Price asked when the community will have input.
Commissioner Dorosin said there have already been community meetings.
Commissioner Price said more are needed and this needs to move forward with community input.
Chair Jacobs said there is still an issue with understanding what the community said and staff will
bring back these notes on June 18th
Frank Clifton said there were several community meetings with Commissioners participating in
them. He said a variety of issues were discussed, including services. He mentioned the overriding issue
of the septic system and reviewed engineering issues that limit expansion. He said many of the decisions
are not staff driven and these issues and the discussion points can be presented at the next meeting.
Chair Jacobs said the Board wants background information, including a review of past public
comments; formal structure; timeline; cost; membership; and scope of services within the current septic
limitations.
This was agreed to by Board Consensus.
Chair Jacobs said the discussion group is open to general public and interested parties should sign
up.
The Board considered amending the Orange County Animal Control Ordinance to make it a Unified
Animal Control Ordinance.
Bob Marotto introduced himself and Annette Moore, staff attorney. He said this is an amendment
to set the basis for a more unified animal control ordinance' and the backbone is the existing county
ordinance. He said this effort has involved staff from Carrboro and Chapel Hill Animal Control, as well as
61
the town manager, the police chief of Hillsborough and the Animal Services Advisory Board (ASAB). He
said staff met with the ASAB three times this year in developing the ordinance being presented tonight.
Annette Moore said the court system was confused about which ordinances would apply to a case.
The issue was confusing for Animal Services itself, since there are three ordinances in effect in Orange
County. She said the advisory board used Orange County's ordinance as a base and merged the three
ordinances into one; but there were still missing pieces. She referenced examples, such as no set appeal
process and no humane euthanasia plan for suffering animals. She reviewed information from the
ordinance and the abstract below:
Background: Beginning July 1, 2013, Orange County Animal Services will be providing Animal Control
Services to all parts Orange County except for the portion of Orange County within Mebane. Despite the
increasing integration of animal services through Orange County Animal Services, there are three different
animal ordinances in force (all available onIinhttp://orangecountync.gov/AnimalServices/info.asp).
Orange County, Chapel Hill and Carrboro all have their own ordinances, while Hillsborough has adopted
the County's ordinance. The differences in the local Ordinances have proven to be complicated and
confusing, not only for staff charged with responsibility for regulatory functions and the Court system, but
perhaps most importantly for the residents of Orange County.
Because animal services within the County have become more unified and integrated than they
have been in the past, for the past year County staff has been working on a proposed Unified
Animal Control Ordinance with the Towns of Chapel Hill and Carrboro.
In this context, County staff initiated the effort to create a unified animal ordinance by convening a work
group of staff from the involved jurisdictions. Staff from Chapel Hill and Carrboro have been integral to the
process responsible for the proposed ordinance, and upon County adoption of the ordinance, the towns'
staffs will present the ordinance for consideration by their respective governing boards.
More specifically, the work group has consisted of the staff attorney for the Chapel Hill Police
Department with animal control responsibilities, the Carrboro Police Chief and a Carrboro Police
Captain, the staff attorney for County Animal Services, and the County's Animal Services
Director and Animal Control Manager. Hillsborough staff elected not to participate in the work
group but are fully aware of this project. Most recently, the Town Manager and Police Chief
received a copy of the draft unified ordinance and an invitation to offer comment.
The objectives of the work group were to:
1. Create a unified ordinance. The group's work practice has essentially been to compare the same or
similar sections of the three existing ordinances and decide which made the most sense in light of
experience providing effective animal services in the different jurisdictions. The County's current Animal
Control Ordinance remains the backbone for the proposed unified ordinance. In addition, the comparative
methodology assured a finished product that was complete, strong and worthy of designation as a unified
ordinance for the County.
2. Fill in necessary "gaps" in the Ordinance to create the needed authority to assure the public health and
safety and welfare of animals within Orange County. One illustration of such authority would be to have an
animal euthanized for humane reasons in exigent circumstances. Another illustration would be the
authority to hold a vicious animal that has repeatedly bitten or attacked members of the public. While there
may well be a need for new laws under the animal control ordinance, staff did not make any effort to
create new laws but deferred such efforts until it could occur under a unified ordinance. Throughout the
process requests to create new law were resisted to ensure there was no "scope creep". Staff attempted
to propose changes to the existing Ordinances that would not be controversial, refined existing services
being provided, and assured the public health and the safety of animals.
During the initial process, the existence of"gaps" in the existing ordinances become apparent in
trying to address and resolve the concerns of residents in different parts of Orange County.
62
Staff has tried to work around the gaps in the Ordinance in close collaboration with staff attorneys from the
County and municipalities to respond to animal control issues and to protect public safety and the welfare
of the animals. In addition to Staff review of the Ordinance changes, the Animal Services Advisory Board
("ASAB") also reviewed and suggested changes to the draft Unified Ordinance.
The ASAB discussed the proposed changes to the Ordinance on three occasions:
• At the initial meeting (February 20, 2013), the Animal Services staff attorney discussed the effort to
create a unified ordinance, its rationale and its scope.
• In a subsequent meeting (March 20 2013), the Animal Services Director and staff attorney went through
a draft version of the proposed ordinance distributed in advance of the meeting for review by board
members. This was a page-by-page review in which feedback was provided for additional consideration.
• At the May 15, 2013 ASAB meeting, the focus was on the status of vicious animals in the proposed
unified ordinance. The Animal Services Director presented a summary to identify the "gaps" that were
being in-filled by the proposed ordinance as well as the logic of state and local laws and their articulation
and limitations. At the meeting the ASAB made some suggestions for further consideration (which staff
has incorporated) and unanimously recommended that staff bring its effort to create the unified ordinance
to
as soon as possible.
This detailed examination of the Vicious Animal section of the Ordinance was done to assure that issues
voiced by concerned residents about the laws surrounding vicious animals at the March 20, 2013 meeting
were fully discussed. It also had the added benefit of completely clarifying how the unified ordinance
would strengthen the County ordinance given that the BOCC Chair and Vice-Chair had previously
requested such
consideration from staff and the ASAB in response to resident concerns about the death of a dog as a
result of an attack by a declared dangerous dog in the resident's neighborhood.
The only area in which amendments that would be considered a change are being proposed is in the area
of animal recovery. These changes are being proposed on the basis of the recommendations made by the
ASAB and Animal Services staff to the BOCC at the Board's February 12, 2013 Work Session. The
changes are part and parcel of the County's five year plan for managing pet overpopulation in order to
both reduce the euthanasia of potentially adoptable animals and to contain and control the medium and
long-terms costs of providing animal services. There are three specific changes that are incorporated into
the unified ordinance on the basis of this effort. These changes are to create:
1. A requirement for micro chipping stray cats and dogs upon their first recovery;
2. A tiered and differential fee schedule for the recovery of cats and dogs depending upon the number of
times they have been recovered and whether they are reproductive or sterilized;
3. A refundable spay/neuter deposit for cats and dogs recovered three or more times.
Bob Marotto said subsequent to County adoption of the ordinance, as previously indicated, staff from the
towns of Chapel Hill and Carrboro will present the unified ordinance for consideration by their respective
governing boards. There has already been legal review of the Ordinance in each jurisdiction and there is
ongoing consideration of the best way for the towns to enact the Unified Ordinance. Significantly, the
towns of Carrboro and Chapel Hill are expected to retain some portion of their ordinances that have been
designed to address unique circumstances specific to that jurisdiction or where there is no corresponding
component in the Unified Ordinance in the other jurisdictions: (i.e. tethering, permitting chicken, and
keeping livestock). Where a Municipality may have a more restrictive Ordinance in an urban area than the
County does for rural areas, the Ordinance provides for the greater restriction in the municipalities than in
the County. Communication from the Hillsborough Town Manager indicates that Hillsborough will
essentially adopt the County's new unified ordinance. The Town has done and will continue to do so on
the
63
basis of the action of the Town Board of Commissioners, as it is codified in the Town's own animal
ordinance, which allows it to depart from the County's code where they wish to do so.
Presently, the Town of Hillsborough does so only through the prohibition of roosters and permitting
requirements for farm animals within city limits.
The North Carolina General Statute §153A-45 provides that in order for an ordinance to be adopted on its
first reading it "must receive the approval of all the members of the Board of Commissioners. If the
ordinance is approved by a majority of those voting but not by all the members of the board... it shall be
considered at the next regular meeting of the board." The Board then has 100 days after introduction of
the ordinance to adopt the change to the Ordinance.
Staff Attorney Annette Moore said that if this is approved, the advisory board would like to take this
to Chapel Hill, Carrboro, Hillsborough and the small portion of Durham in Orange County.
Bob Marotto said the board has resisted the scope creep of creating new laws. He said there was
one exception to this, where a recommendation was made for an amendment on animal recovery. This
amendment requires a micro-chip fee for dogs and cats recovered for the first time; a refundable
sterilization deposit for people whose pets have been impounded and recovered two times; and a
differential recovery fee structure for the recovery of animals sterilized, versus those that are reproductive-
with higher rates for non-sterilized animals. He said this was done to address the pet overpopulation in
the county and reduce reliance on euthanasia.
PUBLIC COMMENT:
Allan Green is an Orange County farmer. He addressed several handouts at the Commissioner's
places and read from the following statement:
I want to thank the commissioners for this opportunity to speak. I am Allan Green, an Orange
County farmer, and member of the Agriculture Preservation Board (APB), although I am not here tonight
representing the Board.
I will be addressing two related issues described in the background material I provided to you. The
first originated over 4 years ago, on March 3 d 2009 when an ice storm shorted out our electric fence. One
of our small Dexter cows went through the fence, and was grazing outside my fences next to Orange
Grove road on property I partially own. A helpful passer-by called Animal Control, and even though the
cow was quickly confined, I was cited and subsequently fined because my cow as at-large, and by
definition, a public nuisance. Because the animal represented no real nuisance or public danger, I
appealed to both the manager and director of Animal Services; but they refused to void the citation, citing
the language of our ordinance: an animal at-large is a public nuisance, period.
As a farmer, this narrow definition seemed inconsistent with my experience and common sense,
and worth investigating. I began by researching similar provisions of the animal control ordinances of
surrounding counties. Attachment 2 summarizes the results: including our 10 neighboring counties, only
Orange County categorically defines at at-large animals as a nuisance, at least in unincorporated
jurisdictions. While ordinances vary, our neighboring counties reserve violations for actual nuisance
behavior while an animal is at-large. I then brought the issue to the APB, and in March 2010, our
chairperson met with the ASAB and requested a meeting to discuss our position.
Which brings be to my second issue. Attachment 1 is Director Marotto's response to that request.
He describes the issue as a waste of staff resources and unnecessary because animal control officers
have the discretion we are recommending. But, that is not what our ordinance says, and no discretion was
exercised in my case in 2009. Keeping and ordinance on the books so that it can be selectively enforced
is simply wrong.
I am therefore asking the Commissioners to direct Animal Services staff and the Animal Services
Advisory Board to work cooperatively with the Agriculture Preservation Board to make our Animal Control
Ordinance more consistent with the realities of rural life. Thank you.
Ed Johnson lives on 60 acres of land in the Orange Grove community. He said this proposed
ordinance is not ready yet and needs more work. He said last year, two of his dogs were declared vicious
animals, when an intruder came into his yard and one of his dogs bit the intruder during a confrontation.
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The intruder ran away, and later, without revealing a past criminal record for trespassing, the intruder filed
a complaint against Ed Johnson. He said that state law allows an animal to be declared dangerous and
has a built in appeal process, while the county ordinance has a provision for vicious animals and has no
appeal process. He said it is unclear to him how animal control can make the decision between calling an
animal dangerous or vicious. He wrote to animal control pointing out that the county ordinance does not
allow an animal to be declared vicious if a trespasser is declared dangerous and if the animal is acting as
a watchdog. He said the latest version of the ordinance has no category for watchdog and the category of
trespass now puts the burden on the land owner to prove the trespasser had criminal intent. He feels
these changes are significant and require more public debate and input. He feels that most rural
residents regard their dogs as watchdogs and this provision should be saved. He said the ordinance
should allow for differences between town and country' and the question should be asked regarding why
there are categories for both dangerous and vicious dogs.
Bonnie Hauser is speaking for Orange County Voice. She has dogs, and has come to know many
of the people on the ASAB. She said her dealings with animal control have been positive and
professional. She said she was very surprised and uncomfortable watching the county attorney lead a
discussion of the new unified ordinance without any legal framing of the issues or their implications. She
said the attorney did her job well but did not explain that her role is to represent the County's interests, and
this may not be the same as the citizens' rights or interests. She said that the Animal Services Advisory
Board is a group of committed and impassioned animal services professionals who need more than a one
sided briefing on these issues. She said the workgroup had no citizen representation. She said that she
met with a professor who specializes in animal control law at the UNC School of Government. The
professor expressed concern with overlapping and contradictory language, lack of due process and
missed opportunities to distinguish urban and rural issues. The professor offered to advise the ASAB, but
this offer was rejected. She said the draft ordinance takes away important protections and property rights
from citizens. She urged the Board not to endorse the ordinance, but to thank the ASAB and Annette
Moore for their work, while acknowledging there is more input and more protection for citizens needed.
Ann Meade said she reviewed the ordinance. She said that it contains numerous internal
inconsistencies; is poorly worded; has ambiguous statements and severe organizational problems. She
gave several examples of this, including the use of the definitions of vicious animals and its placement in
the ordinance. She also noted section 4, page 16 regarding dangerous animals and the appeal process
that allows an animal to remain classed as vicious while no longer being classed as dangerous.
Bob Epting is an Orange County resident and has two dogs. He read from the following statement:
My name is Bob Epting, and I am an Orange County resident. I keep two wonderful Labrador
retrievers as company. They are a very real part of my family. They protect me, my home, and my
property from intruders. I am here to urge to you protect them, and the watchful animals of others in
Orange County, from being arbitrarily designated as vicious animals.
When I am staying in town, I expect visitors to come and go across my front porch. The way my
house is located along the street, with a sidewalk leading up to my front porch, invites guests, postmen,
and neighbors, even unknown ghost and goblins at Halloween to visit. They may expect not to be bitten
by my dogs. On the other hand, persons roaming around inside my fenced-in back yard, without invitation,
especially at night, are trespassers and should expect to be chased, barked at, and even bitten if they do
not flee.
When I am out in the country, I expect my dogs to know the boundaries of my 40 acres, and to
bark to alert me of persons who come there unexpectedly. Here is nothing about that rural tract that
invites any passerby to come onto my land, and they should do so at their own risk. My dogs know to
protect me and my home in the country and are given free run of the farm to do so.
At either place, they are watchdogs and their attention, barking, and physical threats protect me,
my family and friends, not to mention my property.
Trespassers who enter my property without civil intent should expect to be barked at, even bitten,
to prevent harm to me or my property. And they should not be protected, as this draft ordinance would
do, unless I am able to prove they were there to commit a specific crime.
I mention watchdogs and trespassers, because this draft ordinance turns these expectations on
their head, and instead gives Animal Services officers the power to declare my dogs vicious animals if they
bite a trespasser, even once, unless I can prove the intruder's intent was to commit a crime.
65
Understand, it is clear as a bell, that the existing ordinance recognizes that the Animal Services
officers may not declare watchdogs that bite in protection of their property to be vicious dogs.
It is also clear in the existing ordinance that dogs who bite trespassers may not be declare vicious
animals.
The "Unified Ordinance" does away with both of these provisions, though the narrative
accompanying this agenda item fails to mention to you either of these very major changes.
He urged the County not to adopt this Ordinance tonight but to allow the opportunity for citizens to
give public comment and suggestions for changes to make it better.
Time expired. More written comments are included in the statement attached to this abstract item.
Don O'Leary said he also lives in a rural area and he has a large black lab who is friendly, but a
good watchdog. He said that if his dog were to bite someone, it would be in defense. He referenced a Dr.
Albright, and the RFID chipping practice. He said this chip causes cancer and he would like the Board to
do research on this issue before moving forward.
Susan Elmore, Chair of ASAB, said the board did meet on occasion and did review this potential
ordinance very carefully before giving input. She said the board did consider inviting Professor Wall, but
did not, because it did not seem necessary. She said the board does have an attorney who facilitated a
discussion and review of the ordinance and the vicious dog issue among others. The board gave feedback
to staff and unanimously approved the ordinance. She said the board did consider potential exemption for
livestock that were loose, but the board felt that these animals are a potential human health hazard,
especially near the road where there may be contact with a car. She said that the ASAB understood that if
it is the case of an act of God, it would be up to the discretion of the Animal Control Officer whether to
issue a citation.
Patrick Mulkay is a resident of Bingham Township. He referenced the definition of a trespasser
and said that in the rural part of the county you can take lethal action against a trespasser if you are in fear
of your life. He said that this is not so in the towns, where the trespasser has to be in your house. He
wonders how this affects the lay enforcement community. He said he has two watchdogs that help protect
his family. He said that he hears people talking about farm animals and he remembers helping his family
gather cows when they escaped the fence. He said this is discussion of city folks making a determination
of what farm animals are thinking. He feels the Board needs to put this ordinance off and seek more input
in to this ordinance.
Michelle Walker is the vice chair of the ASAB. She said the board did hold a specific meeting that
deals with vicious and dangerous dogs' and there was ample opportunity for public participation. She said
that there was no clear definition or standard for what is a watchdog, and the proposed ordinance does
maintain an exemption for sentry dogs that have been trained and registered with the county. She said
that she is also a licensed attorney in North Carolina and she knows that the word trespass is fraught with
legal issues. She said that there are concerns with the kind of civil litigation that the County could be
involved in, and the new ordinance seeks to address that. She said that the designation between
dangerous and vicious dogs is done to give the Animal Control more ability to impound certain animals in
the county than the state allows.
Commissioner McKee said it was his understanding that it was a compilation of ordinances only
and not an expansion, but he sees an expansion of the scope. He referenced the changes made, against
the objections of many citizens, to county tethering laws in the past and asked if tethering still applies to
Chapel Hill and Carrboro. He asked how a unified document could not be unified across the County.
Annette Moore said there are certain parts of the ordinance that could be controversial in certain
jurisdictions, and thus those areas were exempted out of this process. She said the same is true of issues
like chicken coops in Carrboro.
Bob Marotto said Chapel Hill and Carrboro both have a tethering ordinance that is more prohibitive
than Orange County's ordinance. He said there are some significant gaps in the ordinance and these
gaps can be filled in by Animal Control with consultation from the advisory board and colleagues. He said
there are efforts being made to identify those gaps.
Commissioner McKee said that rather than fight a difficult fight on tethering again, it seems that this
unified document has picked soft targets like the vicious dog issue. He said he has a real problem with
making regulatory changes while creating a unified document. He said he is seeing many things that have
been taken out and others that have been added in. He is concerned with the decision not to take advice
66
from the School of Government. He said that he realizes that the farm animals can be destructive, but they
are not the only animals that can damage a car on the road.
Bob Marotto said that the farm animals issue was brought to the ASAB several years ago, and it
was carefully studied. This was followed by the development of a set of recommendations for the Board
of County Commissioners that preceded this one. He said he realizes that there are several large animals
that can cause harm, but this issue involved litigation and assessment of a policy issue. He said this
history is an important part of the process that needs to be recognized.
Annette Moore said that the board thought about not filling the gaps, such as the appeal process.
However, it was felt that this was one of several glaring missing pieces. She said the same is true of the
issue of trespass, and that is why these gaps were filled.
Commissioner McKee said he knows there will be gaps; however it should have been consolidated
and then each individual gap addressed after the consolidation, not before. This would have made it clear
to the public. He said the fact that this wasn't done makes it impossible for him to support this. This would
mean supporting not just the consolidation document, but also new recommendations and regulations.
Commissioner Price referenced the section regarding penalties and spay/neutering for animals
picked up by animal services. She said she understands the overpopulation issue, but she does not
understand the correlation between an animal that strays and the practice of spaying/neutering without
owner consent.
Bob Marotto said that the correlation is that reproduction can occur in the case of unattended
animals. He said it is not a requirement of the proposal that the animal be spayed or neutered, but it is a
requirement that the owner put down a deposit that is refundable if the procedure is done within a 60 day
period. He said this also allows for education to the owner regarding the available services and the
benefits.
Commissioner Rich asked about the criteria for classification of vicious and dangerous dogs.
Bob Marotto said the decision is made in accordance with the criteria set in law and the totality of
the circumstances and facts of the case. He said there is a review conducted when a report is made and
an investigation is done in accordance with a set of standards.
Commissioner Rich asked about the appeal process.
Bob Marotto said the NC General statute gives a general appeal to the owner of a dog declared
"potentially dangerous", but there is no appeal for a dog declared "dangerous." He said that the proposal
this evening is the first appeal process in an ordinance. This has been created in this ordinance out of
concern for the necessity of due process and checks and balances.
Commissioner Pelissier said she appreciates the work that has been done. She said the point
made about definitions being deleted is valid and definitions need to be made up front.
She said she does have a concern about the farm animals, as she does not want to send the
wrong message to farmers in rural Orange County. She said that escaped cows are not an uncommon
occurrence and this is not something farmers want. She is concerned and would like to see this issue
reexamined.
Chair Jacobs said the he has decided to defer the closed session to the June 11th work
session. He also deferred the Work Group and Charge for an Assessment of Jail Alternative
Programs to the June 18th BOCC Meeting.
Chair Jacobs suggested staff should highlight the gaps and to come back to the Board, addressing
the points the public made and why the board agrees or disagrees with these points. He said there were
valid arguments made, and he could not decide on a direction at this point. He said this should come back
on the 18th and he said the official schedule will be decided at agenda review. He said that this will not get
the go ahead until September.
Bob Marotto said the recommended amendment changes for animal recovery are part of the
Animal Services recommended budget and he asked if these can be considered separately.
Frank Clifton said there is a proposal in the budget where Carrboro has asked the County to
absorb its animal control operations. He said some of these changes may be a result of that and the town
of Carrboro will have to be dealt with in this process.
Bob Marotto said that services can begin to be delivered in Carrboro on July 1 without the changes,
but this will be done under 2 or 3 different ordinances until the single ordinance is established throughout
the County.
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Commissioner Rich expressed concern about the number of items being deferred until the 18tH
She asked if the financial parts will be separated out or if it can be done as one item.
Frank Clifton said the financial aspects won't impact budget.
Commissioner Gordon suggested this be deferred until fall.
Chair Jacobs summarized the plan.
A motion was made by Commissioner Gordon, seconded by Commissioner McKee to defer
consideration of this item until fall, when staff is asked to come back with a digested form highlighting
changes to the ordinance, addressing points made by the public and why the work group agrees or
disagrees with these points.
Commissioner Dorosin asked if this motion includes bringing back the recovery fees issue before
the fall.
Commissioner Gordon clarified that she would prefer to bring it all back in the fall, since the June
18th meeting may be too full. She said she would defer the decision about the animal recovery issue/fees
to the agenda review team.
VOTE: UNANIMOUS
c. Refund Requests for Inaccurate Square Footage Calculation
The Board was to consider five taxpayers' refund requests for the years 2008 through 2012.
A motion was made by Commissioner Dorosin, seconded by Commissioner Gordon to defer this
item to the June 18th BOCC meeting.
VOTE: UNANIMOUS
d. Work Group and Charge for an Assessment of Jail Alternative Programs
The Board was to consider the creation of a Work Group and Charge for the Assessment of Jail
Alternative Programs.
DEFERRED
8. Reports NONE
9. County Manager's Report
Chair Jacobs had asked Frank Clifton to reaffirm with towns on a solid waste inter-local
agreement.
Frank Clifton said right now the towns are waiting for an analysis of their current services studies.
He said that both are taking waste to a private transfer station in Durham County. He said the Town of
Chapel Hill is still analyzing pursuit of its own transfer station and the possible inclusion of Carrboro in this.
He said Hillsborough is still just as close to Durham. He said the towns are still interested in a construction
and debris landfill, and there is continued discussion of Chapel Hill having its own recycling program. He
said that all of this means there is no ongoing effort for a solid waste agreement until the towns have
sorted through these considerations.
Commissioner Rich asked if this means the County is not considering an inter-local agreement.
Frank Clifton said there have been some preliminary staff discussions. He said the primary issue
is what an agreement would entail and recycling is the main topic. He said much of this depends on what
direction the County decides to take.
Commissioner Rich encouraged everyone to keep those conversations going and keep a positive
tone to encourage a partnership.
Frank Clifton said one thing that has been discussed is the legal authority to operate within the
Chapel Hill section of Durham County. He said this requires Chapel Hill to include a provision in its budget
ordinance to allow the County to levy a fee and collect for the services within the town's authority. He
(ATTACHMENT G 68
Animal Control Ordinance
DIVISION 1. - GENERALLY
Sec. 4-31.-Authority.
This Ordinance is adopted pursuant to the power granted Orange County in N.C. Gen.
Stat. §§ 153A-121, 153A-127, 153A-153 and 153A-442.
(Or•d. of 6-16-1987, ¢'I, eff. 1-1-1988)
Sec. 4-32. -Applicability to animal shelter.
Orange County shall operate and maintain a County Animal Shelter for the purpose of
impounding or caring for animals held under the authority of state law,this Ordinance or
any other county or municipal ordinance. Orange County may contract for the operation
of the Animal Shelter as it deems appropriate.
(Ord. of 6-16-1987, §XVIII, eff. 1-1-1988)
Sec. 4-33. -Animal control officers.
(a) Orange County may appoint one or more Animal Control Officers.Any County
employee designated by the County Manager with the duties of an Animal Control
Officer shall also be designated as Animal Cruelty Investigators. Only Orange
County employees shall be designated as an Animal Cruelty Investigators.
(b) Animal Control Officers shall have only the following powers and duties within
Orange County and within any municipality therein that has given prior approval
therefore:
(1) The responsibility for the enforcement of all state and local laws including
ordinances,resolutions and proclamations pertaining to the ownership and
control of dogs and other animals.
(2) To cooperate with the County Health Director and all law enforcement
officers in the county and the towns therein and assist in the enforcement of
the laws of the state with regard to animals,the vaccination of dogs and cats
against rabies,the confinement and leashing of vicious animals, and any other
state law applicable to animals or animal control.
(3) To investigate reported or observed animal cruelty or animal abuse and make
written reports of such investigations and,when requested,provide such
reports to animal ,appropriate law enforcement officers or the District
Attorney's office.
(4) To investigate reports of observed harassment or attacks by dogs or other
animals against domesticated livestock and to assist in locating those persons
owning or harboring the attacking animals.
(5) Animal Control Officers shall not have the power to arrest.
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Sec. 4-34. -Animal lice se privilege taxes.
The Owner of every dog or cat over four(4) months of age that is kept within the County
shall annually pay to the County, through Orange County Animal Services, a tax on the
privilege of keeping such animal within the County.
Orange County may set animal license privilege taxes as allowed by law and set the tax
amounts annually as part of the Budget. In order to further the goals of controlling animal
population, the taxes of unspayed or unneutered dogs and cats shall be higher than those
of neutered animals. Within 30 days of acquisition of an animal for which a license is
required, the owner or keeper shall purchase the appropriate county license.
(Ord. of 3-15-88, §IV, eff. 3-15-88;Amend. of 12-2-96, eff. 1-1-97)
Sec. 4-35. -Licenses,permits, registrations, and fees required by this ordinance.
(a) The following licenses,permits, and registrations are required by this Ordinance:
(1) Licenses for dogs, cats, or other animals designated by either the Board of County
Commissioners or other local government body, in their respective Budget
Ordinance (see Section 4-34).
(2) Registration of patrol dogs or sentry dogs (see Section 4-42(d)).
(3) Rabies vaccination tags for dogs and cats (see Section 4-47).
(4) Permits for collecting of dogs and cats for sale(see Section 4-96).
(5) Permits for commercial (Class 11) kennels, non- commercial (Class I) kennels and
pet shops (see Sections 4-71 and 4-73).
(b) The amount of license privilege tax shall be recommended by the Animal Services
Director and approved by the Board of Commissioners, or other local government
body, in their respective Budget Ordinance. The Animal Services Director may
propose for approval by the Board of Commissioners or other local government body
such policies or procedures as may be necessary or appropriate to allow for payment
of privilege taxes over extended periods of time, at reduced rates, or a waiver of
privilege taxes. Additionally, dog and cat owners or keepers who furnish to the
Animal Services Director a statement from a licensed veterinarian that the animal,
due to age,physical reasons, or chronic health problems cannot withstand spay/neuter
surgery, shall be allowed to pay the license privilege taxes provided for spayed or
neutered animals.
(c) When an animal is impounded under this Ordinance there shall be paid, in accordance
with Section 4-43, a redemption privilege tax.
(1) The Redemption Privilege Tax shall be:
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Number of Redemption or Impoundment Redemption or Impoundment
Prior Privilege Tax Privilege Tax
Incidents
Sterilized Animal Reproductive Animal
0 $25.00 $50.00
1 $50.00 $100.00
2 $100.00 $200.00
3 or more $200.00 $400.00
(2) For reproductive animals with two or more prior incidents $100 of the
redemption privilege tax shall be a sterilization deposit, which may be refunded to the
owner if they provide to Animal Services proof of sterilization in the form of a
veterinarian record within 90 days of recover of the animal.
(d) In order to defray the costs of administering and enforcing ordinances adopted under
this Chapter, and in order to account for the additional costs of locating, responding to
and caring for unvaccinated and unlicensed animals found within the County,
additional fees shall be assessed as follows if the Owner or Keeper of an animal fails
to pay the following fees within the time specified in the Ordinance:
Failure to Vaccinate for Rabies (Section 4-46) $ 200.00
Failure to Wear Rabies Tag (Section 4-47) $ 50.00
Failure to License (Section 4-35) $ 200.00
(e) For any stray animal that has been impounded by Animal Services there shall be a
microchip fee that shall be determined by the Board of County Commissioners in the
Budget Ordinance.
(f) Inspection fees, as provided in this Chapter, shall be set by the Board of County
Commissioners in the Budget Ordinance.
(Ord. of 6-16-1987, § V, eff. 1-1-1988;Amend. of 12-2-1996, eff. 1-1-1997; Ord. of 12-3-2007,
eff. 7-1-2008)
Sec. 4-36. - Ordinance.
All other Orange County ordinances in conflict with this Ordinance are hereby repealed
to the extent they conflict with this Ordinance. The Ordinance to Provide for Animal
Control and Protection in Orange County, adopted May 15, 1979, as amended October 3,
1983, is hereby repealed.
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Animal Control Ordinance
Ord of 6m..i6m..i987, � V1, c�ft' 1-4-49 88)
See. -37. -Definitions.
As used in this Chapter, the following terms mean:
Adequate Food: The provision at suitable intervals, not to exceed 24 hours, of a
quantity of wholesome foodstuff suitable for the species and age, sufficient to maintain a
reasonable level of nutrition in each animal. Such foodstuff shall be served in a
receptacle, dish, or container that is physically clean and in which agents injurious to
health have been removed or destroyed to a practical minimum.
Adequate Shelter: That shelter which will keep a nonaquatic animal dry, out of
the direct path of winds and out of the direct sun, at a temperature level that is healthful
for the animal. For dogs, cats and other small animals, the shelter shall be a windproof
and moisture-proof structure of suitable size to accommodate the animal and allow
retention of body heat. It shall include four walls, a roof and a solid floor raised up off of
the ground, with an opening entrance large enough to allow access to the animal, but
placed in such a way as to keep the animal out of the direct path of winds. Metal barrels
do not provide adequate shelter for a dog, cat or other small animal and are prohibited for
that purpose. The structure shall be provided with a sufficient quantity of suitable
bedding material consisting of hay, straw, cedar shaving, or the equivalent. For all
animals the containment area shall be free of accumulated waste and debris so that the
animal shall be free to walk or lie down without coming in contact with any such waste
or debris, and a suitable method of draining shall be provided to rapidly eliminate excess
water or moisture. Aquatic or semi-aquatic animals shall have an adequate amount of
clean water in which to move.
Adequate Water: A constant access to a supply of clean, fresh water provided in a
sanitary manner. In near or below freezing temperatures the water must be changed
frequently to prevent freezing, unless heated.
Administrator: The Animal Services Director, or their designee, as designated by
the County Manager to perform the responsibilities assigned by this chapter to the
Administrator.
Animal: Any live,vertebrate creature specifically including but not limited to
dogs, cats, farm animals, birds, fish, livestock, and reptiles.
Animal Services Director: That person designated by the County Manager in
Orange County, and where appropriate, his or her designee, charged with the
responsibility and authority to implement and enforce the Animal Control program in
Orange County.
Animal Shelter: A place provided and operated by Orange County directly or by
contractual agreement, whether jointly with another governmental unit or independently,
for the restraint, care, adoption, and disposition of animals.
At Large: Any animal shall be deemed to be at large when it is off the property of
its owner or its keeper and not under the restraint of a competent person. For purposes of
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Animal Control Ordinance
this definition, the term "real property of its owner or keeper" shall include any property
owned or occupied by the owner or keeper of such animal but shall not include any of the
common areas (including without limitation, walks, drives, recreation and open space
areas, etc.)within any subdivision or multifamily residential development.
Competent Person: A person of suitable age and discretion to keep an animal
under sufficient restraint and control in order to prevent harm to the animal, to persons, to
other animals, including but not limited to domesticated livestock, or to property.
Cruel and Cruel Treatment: Every act, omission, or neglect whereby unjustifiable
physical pain, suffering, or death is caused or permitted. Such acts or omissions shall
include, but not be limited to: beating, kicking, hanging, submerging under water,
suffocating, poisoning, setting on fire, confining in a closed vehicle without functioning
air conditioning or ventilation whenever the ambient temperature exceeds seventy (70)
degrees Fahrenheit, confining in the closed trunk of a vehicle and depriving of food,
water, and medical treatment, or otherwise subjecting the animal to conditions
detrimental to its health or general welfare. Such terms, however, shall not be construed
to include lawful taking of animals under the jurisdiction and regulation of the Wildlife
Resources Commission, lawful activities sponsored by agencies conducting biomedical
research or training, lawful activities for sport.
Display: Display shall mean any exhibition, act, circus,public show, trade show,
photographic opportunity, carnival ride,parade, race,performance, or similar undertaking
in which animals are required to perform tricks, fights, wrestle or participate in
performances for the amusement or entertainment of an audience, whether or not a fee is
charged. "Display" shall not include the use or exhibition of animals for animal-related
educational purposes by non-profit groups or institutions or individuals. "Displayed"
means to be the subject thereof.
Domestic Animal: A domesticated or tame animal that is kept principally as a pet,
except that livestock(other than rabbits kept as pets and not for productive purposes) and
wild animals shall not be regarded as domestic animals.
Domesticated Livestock: Livestock raised for the production of meat, milk, eggs,
fiber, or used for draft or equestrian purposes, including but not limited to cattle, sheep,
goats, swine,horses, mules, rabbits, and poultry.
Educational Purposes: Teaching and instructing with the intent and effect of
imparting knowledge to others.
Exotic animals: Exotic animals are animals other than domestic animals, farm
animals, and wild animals which are not native to North Carolina, or are native to North
Carolina but have been captive-bred.
Exposed to Rabies: An animal has been exposed to rabies within the meaning of
this Ordinance if it has been bitten by, or otherwise come into contact with the saliva or
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nervous tissue of a proven rabid animal or animal reasonably suspected of having rabies
that is not available for laboratory diagnosis.
Harbor: An animal shall be deemed to be harbored if it is fed or sheltered by the
same person or household for 72 consecutive hours or more.
Health Department: Orange County Health Department.
Health Director: Director of the Orange County Health Department.
Injury: Any injury which is serious enough to require immediate medical
attention to preserve the life of the injured person.
Keeper: A person having custody of an animal or who keeps or harbors an animal
or who knowingly permits an animal to remain on or about any premises occupied or
controlled by such person, whether or not that person literally "owns" the animal. Every
person 18 years or older residing in the dwelling unit where a pet is harbored and/or kept
shall be deemed a keeper for purposes of this Ordinance.
Leash free Area: An area in a Town or County designated by the governing body
of said Town or County which permits an animal to go free from physical restrain. Does
not apply to animals deemed vicious,potentially dangerous or dangerous.
Other Local Government Body: Other local government authority shall include
the Towns of Carrboro, Chapel Hill and Hillsborough and those parts of the City of
Durham located in Orange County.
Owner: Any person who owns any animal and is responsible for its care, actions,
and behavior.
Owner or Keeper's Premises: Any real, owned or leased,property of the owner
of an animal; excluding any public right-of-way, or common area of a condominium,
apartment complex or townhouse development.
Person: Any individual, family, group of individuals, corporation,partnership,
organization, or institution recognized by law as a person.
Provocation: Any act that would reasonably be expected to cause an animal to
defend itself, its young, its owner or keeper or the property of said owner or keeper.
Restraint: An animal is under restraint if it is under sufficient physical restraint
such as a leash, cage, bridle, or similar effective and humane device which restrains and
controls the animal, or within a vehicle, or adequately contained by a fence on the
premises or other secure enclosure as permitted in this Ordinance. If a competent adult is
physically outside on the land with the animal, on land where the owner or keeper of the
animal resides, then the animal shall be deemed to be under restraint during the time the
animal is in the company of and under the control of that competent person and the
animal is on the premises. If any unattended animal is restrained by a chain, leash or
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similar restraint, it shall be designated and placed to prevent choking or strangulation.
Such chain or restraint shall not be less than ten feet in length and shall be on a swivel
designed to prevent the animal from choking or strangling itself. The restraint of
unattended dogs by a fence, kennel, outdoor enclosure, chain, leash or similar restraint is
further regulated under this Ordinance.
Security Dog: Any dog used, kept or maintained on the premises of its owner or
keeper for the purpose of protecting any person or property. Any such dog shall be
further classified as a patrol dog or sentry dog.
(a) Patrol dog: A dog that is trained or conditioned to attack or otherwise respond
aggressively, but only upon command from a handler either off or on lead.
(b) Sentry dog: A dog that is trained or conditioned to attack or otherwise
respond aggressively without command.
Secure Enclosure: An enclosure from which an animal cannot escape by means of
digging under or jumping over the enclosure, or otherwise becoming free unless freed by
the owner or keeper. A motor vehicle shall not constitute a secure enclosure. Minimum
space and height requirements and other specifications for secure enclosures shall be
obtained from the Animal Services Director based on breed, age, height, weight,
temperament, and history of the animal.
Severe injury: Any physical injury that results in broken bones, or disfiguring
lacerations or requires cosmetic surgery or hospitalization.
Steel Jaw Trap: Spring-powered devices or traps which capture or hold an animal
by exerting a lateral force with fix mounted jaws on the leg, toe,paw, or any other part of
the animal's body.
Stray: Any domestic animal that is not under restraint or is not on the property of
its owner and is wandering at large, or is lost, or does not have an owner, or does not bear
evidence of the identification of any owner.
Suspected of Having Rabies: An animal which has bitten a person or another
animal.
Tethering: To restrain a dog outdoors by means of a rope, chain, wire or other
type of line for holding a dog one end of which is fastened to the dog and the opposite
end of which is connected to a stationary object or to a cable or trolley system. This does
not include walking a dog with a handheld leash.
Veterinary Hospital: Any place or establishment which is maintained and
operated under the supervision of a licensed veterinarian as a hospital where animals are
harbored, boarded and cared for incidental to the treatment, prevention or alleviation of
disease processes during the routine practice of the profession of veterinary medicine for
surgery, diagnosis and treatment of diseases and injuries of animals.
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Wild Animals: An animal (other than livestock) that typically is found in a non-
domesticated state and that, because of its size or vicious propensity or because it is
poisonous, venomous or for any other substantial reason,poses a potential danger to
persons, other animals or property, whether bred in the wild or in captivity and includes
any or all hybrids bred with these animals and domestic species.
(0r(J. q 6-46-1987 ��Y V11, c'ff' /m../-/98 ° ffien<. qf' � ��
b b b � /�m.�m..�.^r%"1.� Q�. .^' Am../m..�/'?'(y I'/k Q�fM(.
Y � A
Sec. 4-38. -Animal co trol program.
The Orange County Animal Control Program, as herein described and as
otherwise described in other County ordinances related to animals and as otherwise
described in the laws of North Carolina, shall be administered by the Animal Services
Director. Specifically:
(a) The Animal Services Director shall have the duties of Animal Control Officer
and direct the duties of designated County employees or agents in carrying the
enforcement of this Ordinance as Animal Control Officers including the duties
of a Rabies Control Officers and Animal Cruelty Investigator.
(b) Except as may be otherwise provided by law, no officer, agent, or employee of
the County charged with the duty of enforcing the provisions of this Ordinance
or other applicable laws, shall be personally liable for any damage that may
accrue to persons or property as a result of any act required or permitted in the
discharge of such duty unless he or she acts with actual malice.
(c) It shall be unlawful for any person to interfere with, hinder, or molest any
Animal Control or police officer while in the performance of any duty
authorized by this Ordinance or to seek to release any animal in the custody of
said agents, except in the manner as herein provided.
(d) Animal Control Officers are not authorized to carry on their person firearms of
any kind except as provided herein. The Orange County Animal Control
Program may store firearms at the Animal Services Department and use those
firearms when necessary to enforce sections of this Chapter or under
applicable law for the control of wild, vicious, or diseased animals.
(1) Any Animal Control Officer or law enforcement officer, in carrying out
their duties under this Chapter, shall make every effort to deal humanely
with all animals.
(2) An Animal Control Officer or law enforcement officer may inject an
animal with a chemical tranquilizer which will result in limiting the
activity of an animal, when in the officer's judgment any attempt to seize
the animal would be dangerous to the person attempting the seizure, the
animal, or the public at large.
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(3) An Animal Control Officer or law enforcement officer may humanely put
an animal to death, if in the judgment of the officer an attempt to otherwise
seize or impound the animal would be dangerous to the officer or others. It
is the intent of this subsection that the killing of an animal would be done
only after, within the sole discretion of the officer, other reasonable
procedures are judged impossible.
(e) The Animal Control Program shall:
(1) Have the responsibility along with law enforcement agencies and where
applicable with animal control officers to enforce all laws of North
Carolina and all ordinances of Orange County pertaining to animals and
shall cooperate with all law enforcement officers within Orange County in
fulfilling this duty. Animal Control Officers in the performance of their
duties, shall have all the power, authority, and immunity granted under this
Ordinance and by the general laws of this State to enforce the provisions of
this Ordinance, and the laws of North Carolina as they relate to the care,
treatment, control or impounding of animals. All investigations of reported
or observed animal cruelty or animal abuse shall be the responsibility of
and shall be carried out by the Animal Control Officers.
(2) Enforce and carry out all laws of North Carolina and all ordinances of
Orange County pertaining to rabies control.
(3) Be responsible for the investigation of all reported animal bites, for the
quarantine of any dog or cat exposed to or suspected of having rabies, for a
period of not less than ten days, and for reporting to the Health Director as
soon as practicable the occurrence of any such animal bite and the
condition of any quarantined animal.
(4) Be responsible for the investigation of reports or observations of incidents
of harassment of or injuries to domesticated livestock caused by animals.
(5) Be responsible for the seizure and arranging for the impoundment, where
deemed necessary, of any dog or other animal in Orange County involved
in a violation of this or any other County ordinance or state law.
(6) Investigate cruelty or abuse with regard to animals.
(7) Make such investigations or inquiries as necessary for the purpose of
ascertaining compliance with this Ordinance or applicable state statute.
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(8) Keep, or cause to be kept, accurate and detailed records of-
i. Seizure, impoundment, and disposition of all animals coming into the
custody of the animal control program.
ii. Bite cases, violations and complaints, and investigation of same,
including names and addresses of persons bitten, date, circumstances,
and breed.
iii. Any other matters deemed necessary by the Animal Services Director.
(9) Be empowered to issue citations or notices of violation of this Ordinance
in such form as the Animal Services Director may prescribe.
(10)Have employees who are trained to standards to be established by the
Animal Services Director, which training shall include, but not be limited
to, training in animal first aid taught by a licensed veterinarian.
(11)The premises for all Animal Shelters operated by or for the County shall
meet the standards prescribed for commercial (Class 11) kennels set out in
Section 4-72 of this Ordinance.
(12)The standards applicable to vehicles and care in transportation set out in
Section 4-98 apply to Animal Control Officers collecting, transporting, or
g holding animals
g qin this County.
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Sec. -39. -Relation to hunting laws.
Nothing in this Ordinance is intended to be in conflict with the laws of the State
of North Carolina regulating,restricting, authorizing or otherwise affecting dogs while
used in hunting, but this exception applies only while the dogs are under the control of
the owner, keeper, or competent person, and are actually lawfully being used for hunting
or training for hunting in compliance with applicable statutes, regulations, or ordinances.
This Ogrdin/anyc/es�hyoyuylde bep read aynd enforced consistent with any such law.
Sec. 4-40. -Notice in case of injury.
It shall be unlawful for any person who causes injury to an animal, including but
not limited to, running over or hitting the animal with any vehicle, to fail to notify
immediately at least one of the following:
(1) The owner(s) or keeper(s) of the animal (if known or ascertainable with reasonable
efforts made to locate the owner or keeper),
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(2) An Animal Control Officer,
(3) Local law enforcement agency, or
(4) Orange County Animal Services.
(O (J. q fpm46-4987, � X, c�ft' 1-4-.88)
Sec. 4-41. -Mistreatment of animals la f 1.
The following acts or failure to act relating to the mistreatment of animals are
unlawful and violations of this Ordinance:
a. It shall be unlawful for any person to subject or cause to be subjected any animal
to cruel treatment or to deprive or cause to be deprived any animal of adequate
food and water, with respect to domesticated animals or wild animals in captivity
or under restraint, it shall additionally be unlawful to deprive or cause to be
deprived any such animal of adequate shelter or veterinary care.
b. It shall be unlawful for any person to sell or offer for sale,barter or give away
within the County baby chickens, baby ducklings or other fowl under six weeks of
age or rabbits under eight weeks of age as pets, toys,premiums or novelties;
provided, however, that this section shall not be construed to prohibit the sale or
display of such baby chickens, ducklings or other fowl or such rabbits in proper
facilities with adequate food, water, and shelter, by breeders or stores engaged in
the business of selling the animals for purposes other than as pets or novelties.
C. It shall be unlawful to color, dye, stain or otherwise change the natural color of
baby chickens or other fowl or rabbits.
d. It shall be unlawful for any person to tether any fowl.
e. It shall be unlawful to restrain any animal except in a humane fashion as set forth
in Section 4-37 above and Section 4-41 below. (Does not apply to Chapel Hill and
Carrboro) (See also Carrboro Code of Ordinances § and Chapel Hill
Code of Ordinances § )
f. It shall be unlawful for any person to entice or lure any animal out of an enclosure
or off the property of its owner or keeper, or to seize, molest or tease any animal
while the animal is held or controlled by its owner or keeper or while the animal
is on or off the property of its owner or keeper, except a stray animal may be
seized when trying to capture it.
g. It shall be unlawful to possess any paraphernalia related to dog, cock or other
animal fighting with the intent that the paraphernalia be used to train or feature in
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an exhibition the baiting of dog, cock or other animal or the fighting of a dog,
cock or other animal with another dog, cock or other animal.
h. It shall be unlawful for any person to transport an animal in the closed trunk of a
vehicle, or closed compartment on a vehicle or trailer when the ambient
temperature in the vicinity of the vehicle or trailer is greater than or equal to 70
degrees F.
i. It shall be unlawful for any person to commit any of the acts made unlawful under
the pro visions of North Carolina General Statutes §§ 14-360 and 14-362, as the
same relate to a dog or dogs, or to commit any other act made unlawful by any
other law of the State of North Carolina relating to animal fighting or animal
baiting. The repeal of such law or laws of the State of North Carolina shall have
no effect upon this Section, and the acts herein made unlawful shall, in the event
of such repeal, be those referred to in said law or laws immediately prior to such
repeal.
j. It shall be unlawful for any person to abandon or forsake any animal within the
County.
k. It shall be unlawful for any person to restrain a dog using a chain, wire or other
type of tethering device in a manner prohibited by this subsection. (Does not
apply in Chapel Dill or Carrboro)
(1) No person shall tether, fasten, chain, tie, or restrain a dog, or cause such
restraining of a dog, to a tree, fence,post, dog house, or other stationary object
for more than a total of three hours in a 24-hour period. During periods of
tethering that are not unlawful under this subsection, any tethering device used
shall be at least ten feet in length and attached in such manner as to prevent
strangulation or other injury to the dog and entanglement with objects. In no
event shall the time limitations established by this subsection 4-41(k)(1) & (2)
below be added together to allow for tethering, fastening, chaining, tying, or
restraining to either a stationary object or to a cable trolley system for more
than a total of three hours in a 24-hour period.
(2) No person shall tether, fasten, chain, tie, or restrain a dog, or cause such
restraining of a dog, to a cable trolley system, that allows movement of the
restraining device, for more than a total of three hours in a 24-hour period.
During periods of tethering that are not unlawful under this subsection, the
length of the cable along which the tethering device can move must be at least
ten feet, and the tethering device must be of such length that the dog is able to
move ten feet away from the cable perpendicularly and attached in such a
manner as to prevent strangulation or other injury to the dog and entanglement
with objects.
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(3) No person shall tether a dog with a chain or wire or other device to, or cause
such attachment to, any collar other than a buckle type collar or body harness.
(4) No person shall tether with a chain or wire or other device to, or cause such
attachment to, a head harness, choke-type collar or pronged collar to a dog.
(5) No person shall tether with a chain, wire or other device to a dog where the
weight of the tethering device and the collar combined exceeds ten percent of
the dog's body weight.
(6) No person shall tether with a chain or wire or other device a dog in such
manner that does not allow the dog access to adequate food, water, and
shelter.
(7) Notwithstanding the provisions of subsections 4-41(k)(1) & (2) of this
subsection, a person may, subject to the provisions of subsections 4-41(k)(3
(6), and subject to the requirement that any stationary tethering devise used
shall be at least ten feet in length, and subject to the requirement that for any
cable trolley system used the length of the cable along which the tethering
device can move must be at least ten feet, and the tethering device must be of
such length that the dog is able to move ten feet away from the cable
perpendicularly:
a. Tether and restrain a dog while actively engaged in:
i. Use of the dog in shepherding or herding livestock, or
ii. Use of the dog in the business of cultivating agricultural
products, if the restraining is reasonably necessary for the
safety of the dog, or
iii. Use of the dog in lawful hunting activities if the restraint is
reasonably necessary for the safety of the dog, or
iv. Use of the dog at dog training or performance events,
including but not limited to field trials and obedience trials
where tethering does not occur for a period exceeding seven
consecutive days, or
v. Camping or other recreation where tethering is required by the
camping or recreational area where the dog is located, or
vi. Any activity where a tethered dog is in visual range of its
Owner or Keeper, and the Owner or Keeper is located outside
with the dog.
b. After taking possession of a dog that appears to be a stray dog and
after having advised animal control authorities of the capture of the
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dog, tether and restrain the dog in accordance with the provisions of
Section 4-41 for a period not to exceed seven days as the person
having taken possession of the dog is seeking the identity of the owner
of the dog.
c. Walk a dog with a handheld leash.
d. Any dog that is kept in violation of Section 4-41 of this Ordinance
may be seized and subsequently impounded in accordance with
Section 4-43 of this Ordinance until such a time as the Animal
Services Director is reasonably assured that the dog will not be subject
to restraint in violation of this Ordinance. The Animal Services
Director shall post a notice at the place of the illegal restraint, or at
such other location, that is designed to reasonably apprise the Owner
or Keeper of the dog, the place, date and time the dog was seized along
with the location where the dog was taken. Such notice shall clearly
state that the dog may be returned to the Owner or Keeper upon
providing reasonable assurances to the Animal Services Director that
the dog will not be subject to restraint in violation of this Ordinance.
(C1ra1 (?f 6..86 198 7, 4S X1, (.r.�' 8...1..88, Aivend of 11 IS 2008, (.r%:11-19...09)
Sec. 4-42. - Control of vicious animals; sec ri dogs.
(a) In General. It shall be unlawful for any person to keep any vicious animal within the
County, unless under restraint and on the premises of the owner or keeper.
(b) Vicious Animal. Any animal, on or off the premises of its owner or keeper, which is
three (3)months of age or older and who:
(1) Without provocation has bitten, killed or caused physical harm through bite(s) to
a person; or
(2) Without provocation has attempted to bite a person or cause physical harm
through bite(s) to a person; or
(3) Without provocation has injured, maimed or killed a pet or domestic livestock,
except where such animal has bitten or killed a pet or domestic livestock that is on
the land of another without permission or is defending a person; or
(4) Has been deemed potentially dangerous or dangerous in accordance with N.C.
Gen. Stat. Chapter 67, Article IA. Dangerous Dog.
(c) Declaration of Vicious Animal.
(1) Upon observation by an Animal Control or law enforcement officer or receipt of a
written complaint that an animal is behaving or has behaved viciously and is at
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large or is off the premises of its owner or keeper and is not restrained by a
competent person, an Animal Control Officer may impound the animal and
investigate the complaint and, upon a finding that there is probable cause to
believe a violation of this Ordinance or other applicable law or regulation has
occurred, shall take any action allowed by this Ordinance or State law as the
circumstances may require.
(2) Any animal who, after investigation by an Animal Control officer, is found by the
Animal Services Director to have committed any act described in (b) above may,
in the Animal Services Director's sole discretion, be declared vicious and is
subject to this Section of the Ordinance.
(d) Effect of Declaration.
(1) Permitted Locations. A vicious animal shall be permitted at the following
locations only:
(a) On the premises of the owner or keeper either confined indoors or in a secure
enclosure when outdoors:
i. Secure Enclosure. The owner or keeper of a declared vicious animal is
required to keep the animal securely confined indoors or in a securely
enclosed and locked pen or structure. The pen or structure must be
suitable to prevent the entry of young children and designed to prevent
the animal from escaping; it must provide the animal with protection
from the elements; and must be inspected by an animal control officer
and approved by the Animal Services Director prior to use by the
animal declared vicious.
ii. Annual Inspection. An Animal Control Officer shall inspect the
secured enclosure of all animals deemed vicious at least once a year to
assure that the standards are maintained. There will be an inspection
fee as provided by the Orange County Board of Commissioners.
(b) On private property, with the authorization of the owner of the property;
(c) At a licensed veterinarian for treatment;
(d) In a motor vehicle while being transported;
(e) Off the owner's or keeper's property provided it is muzzled and controlled by
means of a chain, leash or other like device by a competent adult able to
restrain the animal.
(2) When going to and from a Permitted Location or a Secured Enclosure an animal
declared vicious off the owner's or keeper's property must be muzzled and
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controlled by means of a chain, leash or other like device by a competent adult
able to restrain the animal.
(3) There must be posted on the premises of the owner or keeper placards or signs
noting "Beware of Dog" or other information noting the presence of a vicious
animal placed in a manner reasonable likely to come to the attention of an
intruder,
(4) Any animal declared vicious must receive a microchip prior to the animal being
reclaimed if impounded. If the animal was not impounded and it is declared
vicious the owner must provide proof to animal services that the animal has
received a microchip within 30 days of having received notice that the dog has
been declared vicious.
(e) Exceptions. The provisions of this Section do not apply to:
(1) A dog being used by a law enforcement officer to carry out the law enforcement
officer's official duties;
(2) A dog being used in a lawful hunt;
(3) A dog where the injury or damage inflicted by the dog was sustained by a
domestic animal while the dog was working as a hunting, herding or predator
control dog on the property of, or under the control of, its owner or keeper, and
the damage or injury was to a species or type of domestic animal appropriate to
the work of the dog; or
(4) A dog where the injury inflicted by the dog was sustained by a person who, at the
time of the injury was:
a. On the owner or keeper property that has been posted with placards or
signs noting the presence of such animal or"No Trespassing"in a
manner reasonably likely to come to the attention of an intruder'
b. Committing a willful trespass or other;
c. Tormenting, abusing, or assaulting the dog or Iras attempting to
torment, abuse, or assault the dog; or
d. Committing or attempting to commit a crime.
(5) Security dogs are subject to all other provisions of this Ordinance while off the
premises of their owner or keeper.
(f) An animal which has been declared vicious may be impounded by the Animal
Control Officer, either upon direct observation of the Animal Control Officer or law
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enforcement officer or receipt of written complaint that the animal is at large, or off
the premises of its owner or keeper and not restrained by a competent person, or not
confined in a manner permitted in subsection (d) above.
(1) Written Complaint. Upon receipt of a written complaint that an animal previously
declared vicious was off the owner or keeper property while not properly
restrained and there is probably cause to believe a violation of this Ordinance or
other applicable law or regulation has occurred, an Animal Control Officer may
impound the animal and investigate the complaint.
(2) If an animal is impounded as vicious, authorization for reclamation after any
required holding period shall be granted when in the Animal Services Director, or
their designee's sole discretion, is reasonably assured that either the animal is not
vicious or the vicious animal will be properly restrained on the premises of its
owner or keeper.
(3) Upon a finding that there is probable cause to believe a violation of this
Ordinance or other applicable law or regulation has occurred, the Officer may
seize the animal and take any action allowed by this Ordinance or State law as the
circumstances may require.
(g) Citation. The Animal Control Officer shall issue a citation to the owner or keeper for
actions described in section b. 1 - 4. Citations may be delivered in person or by
registered mail if the owner or keeper is not readily found. The citation issued shall
impose upon the owner or keeper a civil penalty of one hundred dollars ($100.00), or
any other amount prescribed by the Orange County Board of Commissioners.
(1) The violator must pay the citation to the Orange County Animal Services within
fourteen (14) days of receipt in full satisfaction of the assessed civil penalty. This
penalty is in addition to any other fees or remedies authorized under this Chapter.
(2) In the event that the owner or keeper of the animal does not appear in response to
the described citation, the civil penalty is not paid within the time period
prescribed, or if the animal previously has been declared vicious upon payment of
a citation or the conviction of the owner or keeper a criminal summons may be
issued against the owner or keeper for violation of this chapter and upon
conviction, the owner or keeper shall be punished as provided by this Ordinance.
(3) Upon the issuance of a citation for an animal which has committed any of the acts
described in this Section, the animal must be confined either in the home of the
owner or keeper, at an animal shelter, a kennel as provided in Sections 4-71 and
4-72 below or a veterinarian's office until such time that the required pen is
constructed, the animal is destroyed, or a judge finds that the animal is not a
vicious animal.
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(4) The Animal Services Director has the authority at any time to require that a
vicious animal not be kept in the owner or keeper's home. The animal must stay
confined through any legal appeals. The owner or keeper shall be responsible for
the costs incurred in the animal's confinement. If the animal is found not to be a
vicious animal, the County shall be responsible for the cost of animals kept at the
Animal Services facility for that purpose.
(h) Effect of Citation.
(1) Upon payment of a citation or the conviction of the owner or keeper for
having an animal which without provocation has committed any of the acts
described in subsection (b) above, said animal is declared a vicious animal.
(2) Upon the payment of a citation or the conviction of the owner or keeper for
having an animal which on or off the property of the owner or keeper and
without provocation has killed or caused life threatening injuries through
bite(s) to a person, the animal will be seized by the animal control officer and
destroyed in a humane manner.
(3) Any animal previously declared vicious upon the payment of a citation or by
conviction of the owner or keeper for a violation of this subsection, that
commits a subsequent violation of the subsection, will cause the owner or
keeper to be charged with that violation. Upon the owner or keeper's
conviction of that violation, the animal will be destroyed in a humane manner.
(4) Any violation of this section may be a misdemeanor and subject to a fine of
five hundred dollars ($500.00) or imprisonment of not more than thirty (30)
days.
(5) All persons owning security dogs as defined by this Ordinance shall register
such animals with the Animal Services Director; the owner or keeper of any
such dog shall place signs or placards on his premises noting "Beware of
Dog" or other information noting the presence of security dog(s).
0) Appeal. Any declaration that an animal is "vicious" may be appealed to the Orange
County Animal Services Advisory Board as provided in this Chapter.
Sec. 4-43. -Impoundment of animals.
Any animal either found at large, found not to be wearing a currently valid rabies tag, is public
nuisance, has been declared vicious and is out-of-doors, not in a secure pen or on a restraint, is
a danger to the public or for any other reason designated in this Chapter may be impounded and
confined in the Animal Shelter in a humane manner for a period hereinafter prescribed:
(a) Owner notification. Immediately upon impounding any animal, the Animal Services
Director or designee shall attempt to notify the owner or keeper by either telephone or
in person to inform that person of such impoundment, and the conditions whereby the
animal may be redeemed. If unable to give notice by telephone, an official, dated,
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written notice shall be mailed to the registered owner by certified mail, return receipt
requested, giving notice of the impoundment and the conditions whereby the animal
may be redeemed.
(b) Reclamation. A domesticated animal impounded under this Chapter may be reclaimed
by its owner or keeper according to procedures of Animal Services. The owner or
keeper of an impounded domesticated animal shall be responsible for and shall pay all
expenses, boarding costs, redemption privilege taxes and costs associated with such
impoundment prior to reclaiming the animal. Unless reclaimed, the impounded
domesticated animal may be allowed to be adopted or humanely euthanized according
to Animal Service procedures after five days of impoundment. Feral dogs and cats may
be held for 72 hours and then euthanized pursuant to Animal Services procedures for
humane euthanasia. The owner or keeper of an impounded domesticated animal shall
also comply with any vaccination and licensing directives and be responsible for the
payment to Orange County of all civil penalties and license privilege taxes imposed or
associated with the animal's impoundment as prescribed in any citation or notice issued
by the Animal Services Director. Animals who have impounded in accordance with
N.C. Gen. Stat. 130A-196, after having bitten a person not reclaimed within 72 hours
after the end of the quarantine period will be considered abandoned and will become
the property of the Orange County and disposed of according to standard Animal
Services procedures.
(c) Release to Owner. An owner or an impounded animal may reclaim the animal after it
has been impounded, upon compliance with this Section and in accordance with
requirements set forth by the Animal Services Director. Nothing in this Chapter shall
require the Animal Services Director to release an animal that has been impounded
who is need of protection because of cruel treatment.
(d) Diseased or injured animals. Severely diseased or badly injured animals may be
euthanized in a humane manner, if authorized by a licensed veterinarian, without
waiting the required redemption or adoption period.
(e) Confinement Order. In lieu of impoundment, the Animal del Services Director is
authorized to issue a Confinement Order to the animal owner or keeper that would
require the owner or keeper to confine a vicious animal or an animal otherwise
violating provisions of the Ordinance. Failure to thus confine the animal would
constitute a further violation of the Ordinance, subjecting the owner to appropriate
criminal or civil penalties.
(Ord. of 6-16-1987, §XIII, eff. 1-1-88;Amend. of 12-2-96, eff. 1-1-97)
Sec. 4-44. -Handling of stray animals.
It shall be unlawful for any person, without the consent of the Owner or Keeper,
knowingly and intentionally to harbor, feed, keep in possession by confinement or otherwise
any animal that does not belong to him, unless he has,within 72 hours from the time such
animal came into his possession, notified Animal Services.
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(a) Any animal at large may in a humane manner be seized, impounded, and confined in the
Animal Shelter and thereafter adopted out or disposed of pursuant to procedures of the
Animal Services and applicable State law.
(b) Impoundment of such an animal shall not relieve the owner or keeper thereof from any
penalty which may be imposed for violation of this Chapter.
(c) Any animal seized and impounded that is badly wounded or diseased and has no
identification, may be euthanized pursuant to procedures of Animal Services. If the
animal has rabies or is suspected of having rabies, the body shall be disposed of in
accordance with applicable state regulations. If the animal has identification, Animal
Services shall attempt to notify the owner or keeper before euthanizing such animal; in
any event, and except as may be otherwise provided by law, Animal Services shall have
no liability for euthanizing wounded or diseased animals when such action is taken upon
the advice or recommendation of a veterinarian who has been advised of the animal's
condition.
(d) Any cat or dog impounded must receive a microchip, at the expense of its owner,prior
to recovery by its owner.
(Ord y 6 1 1987, 45 aV, e 1..1..88)
Sec. 4-45. - Public nuisance.
(a) In General. It shall be unlawful for an owner or keeper to permit an animal or animals to
create a public nuisance, or to maintain a public nuisance created by an animal or
animals.
(b) Prima Facie Evidence. Actions deemed prima facie evidence of a public nuisance
include the following activities of any animal, or conditions maintained or permitted by
the animal's owner or keeper:
(1) Habitually or repeatedly, without provocation, chasing, snapping at or attacking
pedestrians, bicycles, persons lawfully entering the property to provide a service,
other animals being walked on a leash, or vehicles even if the animal never leaves the
owner's property, except that this provision shall not apply if such animal is
restrained by a pen, fence, or other secure enclosure. For purposes of this section, an
"underground fence" shall only be considered secure if it in fact contains the animal
and a small sign or other notification is present to alert others that the animal is
restrained.
(2) Interfering with the reasonable use and enjoyment by neighboring residents of their
property because of its odor or excessive noise making. For purposes of this
subsection, excessive noise making shall include repeated episodes of barking,
howling, whining, crying, and crowing only if the rooster is within the town limits or
Carrboro, Chapel Hill, or Hillsborough.
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(3) A female dog that is not confined while in heat in a building or secure enclosure in
such a manner that she will not be in contact with another animal, provided that this
section shall not be construed to prohibit the intentional breeding of animals within
an enclosed area on the premises of the owner or keeper of an animal involved in the
breeding process.
(4) Damages the property of anyone other than its owner or keeper, including but not
limited to, turning over garbage containers or damaging gardens, flowers, shrubbery,
vegetables or trees, fences or gates, or causing injury to domesticated livestock or
pets.
(5) Without provocation, inflicts on any person a serious injury requiring treatment by a
physician, including but not limited to a bite or scratch that breaks the skin.
(6) At large off the premises of the owner or keeper; except in the case of domestic
livestock the Animal Services Director, or designee, shall have the discretion to
determine a violation.
(7) The provisions of subsections (1) through (5) above of this section shall not apply to
cats. However, cats may be deemed a public nuisance when off the premises of its
owner or keeper when they:
i. Habitually or repeatedly defecates or urinates in children's sandboxes,
gardens, flower beds or other private property without the permission of the
property owner;
ii. Habitually or repeatedly injures or kills animals or birds, whether
domesticated or not;
iii. Is a female in heat not confined in a building or secure enclosure in such a
manner as to prevent contact with another cat;
iv. Habitually or repeatedly, without provocation, chases or attacks pedestrians,
bicyclists or other animals being walked on a leash;
v. Seriously interferes with the reasonable use and enjoyment by neighboring
residents of their property because of its howling, whining, crying, or other
noise making;
vi. Without provocation, inflicts on any person a serious injury requiring
treatment by a physician, including but not limited to a bite or scratch that
breaks the skin.
vii. Habitually or repeatedly walks or sleeps on or damages vehicles owned by
another.
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viii. Is off the owner's or keeper's property except when the cat can be identified
through a currently registered microchip.
(8) Subsection (7)(viii) applies also to ferrets.
(c) Violation.
(1) Determining Violations.
i. Animal Control or Law Enforcement Officer. An Animal Control Officer
or law enforcement officer who observes a violation, of this section, shall
provide the owner or keeper of the animal written notification of the
nature of the violation(s) in the form of an Abatement Order that shall
indicate that unless these violations are abated and measures are taken to
prevent their reoccurrence within twenty-four (24) hours or such lesser
time as the designated in the notice, the owner shall be required to remove
the animal from the County.
ii. Written Complaint.
1. Upon receipt of a written detailed and signed complaint alleging
that any person is maintaining a public nuisance as defined in this
Ordinance, the Animal Services Director shall cause the owner or
keeper of the animal or animals in question to be notified that a
complaint has been received, and shall cause the situation
complained upon to be investigated and a written report thereon to
be prepared.
2. If the written findings indicate that the complaint is justified, the
Animal Services Director shall provide the owner or keeper of the
animal written notification of the nature of the violation(s) in the
form of an Abatement Order that shall indicate that unless these
violations are abated and measures are taken to prevent there
reoccurrence within twenty-four (24) hours or such lesser time as
the designated in the notice, the owner shall be required to remove
the animal from the County.
(2) Failure to Abate a Violation. If the public nuisance has not been abated after the
time indicated in the Abatement Order, then the Animal Service Director shall,
notify the owner or keeper in writing that the animal may be impounded or a civil
penalty may be issued and/or a criminal summons may be issued.
(3) Animals Removed from County. The Owner or Keeper of any animal who has
been required to remove the animal pursuant to this Section shall, within five (5)
days after removal, inform the Administrator or designee in writing of the
animal's present location, including the name, address and telephone number of
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the animal's owner or keeper. If the animal has been destroyed, the Administrator
shall be informed of the name, address, and telephone number of the person who
destroyed such animal.
(4) Subsequent Violations. The Animal Services Director or designee may impound
an animal if a third verified violation occurs within one year of any other
previous violations of this Section.
(5) Right of Appeal. An Owner or Keeper shall have a right to appeal a citation or
removal of an animal under this Section in accordance with Section 4-54 of this
Chapter.
Sec. 4-46. -Rabies control.
It shall be unlawful and a violation of this Ordinance for any animal owner,
keeper or other person to fail to comply with the laws of North Carolina relating to the
control of rabies.
(Ord y 6 1 1987, 45 err, e x..1..88)
Sec. 4-47. -Rabies vaccination tag.
All dogs shall wear a valid rabies vaccination tag. Cats and ferrets are not required to
wear tags but the owner or custodian of such animal shall provide proof that the cat or ferret
has been vaccinated against rabies. The owner or custodian of all animals required to be
vaccinated against rabies shall provide proof of vaccination upon demand of a law enforcement
or animal control officer if an animal required to be vaccinated is not wearing a rabies
vaccination tag. Failure to produce proof of vaccination may result in such animal being
impounded subject to redemption in the manner provided in this Chapter. Such proof being the
certificate of vaccination from a licensed veterinarian or a certified rabies vaccinator.
(Ord (?f 6 16 198% 4 XV11, c�f`12-2 8996, .r. ' 8...1...9 7)
Sec. 4-48. -Applicability to veterinarians.
Hospitals, clinics and other premises operated by licensed veterinarians for the
care and treatment of animals are exempt from the provisions of this Ordinance except
for the provisions relating to cruelty to animals and rabies control.
Sec. 4-49. -Reserved.
L'Xfa S note------
Section 4-49 entitled kennel standards replaced by Sections 4-71 and 4-72 and derived
from Ord. of 6-16-1987, § VIII, eff. 1-1-88; Amend. of 12-3-2007, eff. 7-1-08.
Sec. 4-50. -Reserved.
L'Xfa S note------
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Section 4-50 entitled permits and standards for animal collection replaced by Sections 4-
96 through 4-99 and derived from Ord. of 6-16-1987, § XX, eff. 1-1-88; Amend.
of 12-3-07, eff. 7-1-08.
See. 4-51. -Penalties.
The following penalties shall pertain to violations of this Ordinance.
(a) The violation of any provision of this Ordinance shall be a misdemeanor and any
person convicted of such violation shall be punishable as provided in North Carolina
General Statutes § 14-4, or other applicable law. Each day's violation of this
Ordinance is a separate offense. Payment of a fine imposed in criminal proceedings
pursuant to this subsection does not relieve a person of his liability for taxes, fees or
civil penalties imposed under this Ordinance.
(b) Enforcement of this Ordinance may include any appropriate equitable remedy,
injunction or order of abatement issuing from a court of competent jurisdiction
pursuant to North Carolina General Statutes § 153A-123 (d) and(e).
(c) In addition to and independent of any criminal penalties and other sanctions provided
in this Ordinance, a violation of this Ordinance may also subject the offender to the
civil penalties hereinafter set forth.
(1) The Animal Services Director (or designee)may issue to the known owner or
keeper of any animal, or to any other violator of the provisions of this Ordinance,
a ticket or citation giving notice of the alleged violation(s) and of the civil penalty
imposed. Tickets or citations so issued may be delivered in person or mailed by
first class mail to the person charged if that person cannot readily be found. The
following civil penalties shall be assessed for each violation of this Ordinance.
(i) Mistreatment of Animals (Section 4-41) $200.00
(ii) The civil penalty for a nuisance violation (Section 4-45) shall be as
follows:
Number of Prior Amount
Nuisance Violations
1 $100.00
2 $200.00
3 or more $400.00
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(2) This civil penalty shall be paid to the Animal Services Director or his or her
designee within 14 days of receipt. This civil penalty is in addition to any other
fees, taxes, costs or fines imposed that are authorized by this Ordinance.
(3) In the event that the applicable civil penalty is not paid within the time period
prescribed, a civil action may be commenced to recover the penalty and costs
associated with collection of the penalty, and/or a criminal summons may be
issued against the owner or keeper or other alleged violator of this Ordinance, and
upon conviction, the owner shall be punished as provided by State law. Failure on
the part of the owner or keeper of an animal or other alleged violator to pay the
applicable civil penalty within the time period prescribed is unlawful and a
violation of the Ordinance. Unless otherwise provided the civil penalty for
violation of this subsection is $25.00, except where the original violation was for
Failure to Vaccinate for Rabies in which case the civil Penalty for violation of this
subsection is $100.00.
(C1ra1 (?f 6...16..8 7,,SS X 1; (.rf q 15 88 /$rrac:raa;1 (f'12-3-07, (:rf 7...1..(} )
Sec. -52. - Severa ility.
If any part of this Ordinance shall be held invalid, such part shall be deemed
severable and the invalidity thereof shall not affect the remaining parts.
Sec. -53. -Effective date.
This Ordinance shall be effective January 1, 1988. Adopted this the 16th day of
June, 1987. Upon motion of Commissioner Carey, seconded by Commissioner Hartwell,
the foregoing Animal Control Ordinance was adopted this the 16th day of June, 1987.
This Ordinance was amended effective
(Ord (rf'6 16 1987, 4S,YYIIJ <f.'1-1-8)
Sec. 4-54. -Appeals.
Any appeals of the Chapter shall be to the Orange County Animal Services Advisory
Board within 5 days of the final decision of the action. The Animal Services Advisory Board
shall adopt rules regarding the appeals of violations of the Chapter.
Secs. 4-53-4-70. -Reserved.
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NISI . - KENNEL AND PET SHOP STANDARDS
Sec. -71. —Class I kennels.
(a) In General. A noncommercial or not for profit establishment maintained by any
person where animals of any species, excluding domesticated livestock, are kept for
the purpose of showing, competition, hunting or sport, and which establishment is so
constructed that the animals cannot stray therefrom, and which maintains more than
six but less than 19 animals.
(b) Standards for Class I Kennels. All noncommercial kennels shall,in addition to other
requirements of this article, comply with the minimum standards of this section. The
premises at noncommercial kennels shall meet the following standards:
(1) All enclosures housing animals must provide adequate shelter.
(2) The food shall be free from contamination, wholesome,palatable and of sufficient
quantity and nutritive value to meet the normal daily requirements for the
condition and size of the animal.
(3) All animals shall have fresh potable water available at all times.
(4) All areas housing animals shall be free of accumulated waste and debris and shall
be maintained regularly so as to promote proper health.
(5) All areas housing animals shall be free of accumulated or standing water.
(6) All animals housed shall be provided with proper veterinary care to promote good
health.
(c) Owners or operators of class I kennels must apply to the Animal Services Director for
a Class 1 Kennel Permit and pay any designated privilege tax to receive a permit to
own or operate a noncommercial kennel in the county.
(d) Kennel facilities shall be subject to inspection during reasonable hours by the animal
control officer upon his request.
(e) Failure to meet the standards set out in this section shall be grounds for the issuance
of a citation subjecting the owner to the penalties described in this article, and/or the
issuance of an abatement order to comply with the provisions of this article.
(f) Revocation. A permit issued in accordance with this section may be revoked by the
Administrator after notice and hearing, for any reason that would have justified denial
of the permit in the first instance or for violation of another section of the Chapter. If
the Administrator denies or revokes a permit in accordance with this section, the
owner or operator shall be notified of their right to appeal such decision in accordance
with Section 4-54.
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See. -72. - Class II kennels.
(a) In General. Any person maintaining any commercial establishment where animals of any
species excluding domesticated livestock, kept for the purpose of breeding, buying,
selling, grooming or boarding such animals or engaged in the training of dogs for guard
or sentry purposes, and which establishment is so constructed that the animals cannot
stray therefrom; or any person owning or keeping 20 or more animals, excluding
domesticated livestock, each of which is four months of age or older.
(b) Standards for a Class lI Kennel. All commercial kennels shall,in addition to the other
requirements of this article including those for a 4-71 above, comply with the minimum
standards of this subsection. The premises of commercial kennels shall meet the
following standards:
(1) Buildings or enclosures must be provided, which shall allow adequate protection
against extreme weather conditions. Floors of buildings and runs, and walls shall
be of a nonporous material or otherwise constructed as to permit proper cleaning
and disinfecting. Temperatures in animal containments shall be maintained at a
level that is healthful for every species of animal in the containment.
(2) Cages, kennels or runs shall have sufficient space for each animal to sit, stand up,
lie down,turn around and stretch out to its full length without touching the sides
or tops of the cage, kennel or run. Cages, kennels and runs are to be of a material
and construction that permits cleaning and disinfecting, and shall have an
impervious surface. Cage, kennel and run floors of concrete shall have a resting
board or some type of bedding. Cages, kennels and runs shall provide protection
from the weather. All animal quarters are to be kept clean, dry and in a sanitary
condition. Cages, kennels and runs shall be structurally sound and maintained in
good repair to protect animals from potential injury, contain the animals, and
restrict the entrance of other animals and people.
(3) Animals shall not be placed in cages, kennels or runs less such cages, kennels or
runs are so constructed to prevent animal excreta from entering other cages,
kennels or runs.
(4) Sufficient shade shall be provided to allow all animals kept outdoors to protect
themselves from the direct rays of the sun.
(5) Each animal shall be given the opportunity for vigorous daily exercise as
appropriate.
(6) Litter boxes shall be provided for cats and kittens.
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(7) Food shall not be contaminated and shall be wholesome,palatable, and of
sufficient quantity and nutritive value and offered at appropriate intervals to meet
the normal daily requirements for the condition, size and age of the animal. Food
for all animals shall be served in a clean container so mounted that the animals
cannot readily tip it over or defecate or urinate in it.
(8) Supplies of food and bedding shall be stored in facilities that adequately protect
such supplies against infestation or contamination by vermin. Refrigeration shall
be provided for supplies of perishable food.
(9) All animals shall have fresh, potable water available at all times. Water containers
shall be of a removable type and be mounted or secured so that the animals cannot
readily tip them over or defecate or urinate in them.
(10) All food and water containers shall be cleaned and disinfected daily.
(11) All animals must be fed and watered, and all cages and kennels cleaned each day,
including Sundays and holidays.
(12) Adequate veterinary care shall be provided as needed for each animal.
(13) Provisions shall be made for the removal and disposal of animal and food waste,
bedding and debris.
(14) Facilities such as a washroom, sink or basin shall be provided to maintain
cleanliness among animal caretakers and animal food and water containers.
(15) Facilities for animals shall be adequately ventilated to provide for the health and
comfort of the animals at all times. Such facilities shall be provided with fresh air,
either by means of windows, doors,vents or air conditioning, and shall be
ventilated so as to minimize drafts, odors and moisture condensation.
(16) Facilities for animals shall have ample light by natural or artificial means or both,
of good quality and well distributed and as appropriate for each animal's health
and well-being. Such lighting shall provide uniformly distributed illumination of
sufficient light intensity to permit routine inspection and cleaning during the
entire working period. Enclosures shall be so placed as to protect the animals
from excessive illumination.
(17) Every person maintaining such a facility shall post a notice clearly visible from
the ground level at the main entrance to the facility containing the names,
addresses and telephone numbers of persons responsible for the facility where
they may be contacted during any hour of the day or night.
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(c) Owners or operators of Class 11 kennels must apply to the Animal Services Director for a
Class 11 Kennel Permit, pay any designated fee, to receive a permit to own or operate a
Class 11 Kennel in Orange County.
(d) Kennel Facilities shall be subject to inspection during reasonable hours by an animal
control officer upon his or her request. A fee in the amount of$25.00 shall be assessed
against the owners or operators of a facility for failing to permit an inspection pursuant to
this subsection in order to defray the costs of repeat travel to the facility.
(e) Failure to meet the standards set out herein shall be grounds for the issuance of a citation
subjecting the owner to the penalties described herein, and/or the issuance of an
abatement order to comply with the provisions of this article.
(f) No person may own or operate a Class 11 Kennel within the County unless and until such
person satisfies the requirements of this section and has been issued any privilege license
if required.
(g) A permit issued in accordance with this section may be revoked by the Administrator
after notice and hearing, for any reason that would have justified denial of the permit in
the first instance or for other violations of this Chapter. If the Administrator denies or
revokes a permit in accordance with this section, the owner or operator shall be notified
of their right to appeal such decision in accordance with Section 4-54.
(Ord (?f 6...16 8 7, ( (A) F.l' B...B 1988; A nlien r f'82-3-: PJPJ%; <<f f: 7-8-2�)PJ9ti)
Sec. -73. -Pet shops.
(a) In general. A person that acquires for the purposes of resale animals, excluding
domesticated livestock, bred by others whether as owner, agent, or on consignment, and
that sells, trades or offers to sell or trade such animals at retail or wholesale, or a person
that holds or keeps animals, excluding domesticated livestock, for the purpose of cleaning
or grooming.
(b) Standards for Pet Shops. All pet shops, including pet shops run in conjunction with
another animal facility, shall, in addition to the other requirements of this article, comply
with the minimum standards of this section. The premises for pet shops shall meet the
following standards:
(1) There shall be available hot water at a minimum temperature of 140
degrees Fahrenheit for washing cages and disinfecting, and cold water
easily accessible to all parts of the shop.
(2) Fresh water shall be available to all species at all times. Containers are to
be cleaned and disinfected each day. All water containers shall be
removable for cleaning and be mounted so the animal cannot turn them
over or defecate in them.
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(3) The temperature of the area around the animal enclosures in the shop shall
be maintained at a level that is healthful for every species of animals kept
in the shop.
(4) All cages and enclosures are to be of a nonporous material for easy
cleaning and disinfecting. Each cage must be of sufficient size that the
animal will have room to stand, turn, lie down and stretch out to its full
length without touching the sides or tops of the enclosure, and floors of
sufficient strength and design to ensure the animal's limbs or paws cannot
pass through the floor material.
(5) All animals under three months of age are to be fed at least two times per
24 hours. Food for all animals shall be free from contamination,
wholesome,palatable and of sufficient quantity and nutritive value to meet
the normal daily requirements for the condition and size of the animal.
Food for all animals shall be served in a clean dish so mounted that the
animal cannot readily tip it over, and shall be of the removal type.
(6) Each bird must have a perch and sufficient room to sit on a perch. Perches
shall be placed horizontal to each other in the same cage. Cages and
perches must be cleaned every day, and cages must be disinfected when
birds are sold or as otherwise transferred. Parrots and other large birds
shall have separate cages from smaller birds.
(7) There shall be sufficient clean, dry bedding to meet the needs of each
individual animal. Provision shall be made for the removal and disposal of
animal and food waste, bedding and debris, to ensure the enclosure is
maintained in a clean and sanitary manner.
(8) All animals must be fed and watered and all cages cleaned every day,
including Sundays and holidays.
(c) Failure to meet these standards shall be grounds for the issuance of a citation subjecting
the owner to the penalties described in this article, and/or the issuance of an abatement
order to comply with the provisions of this article.
(d) Owners or operators of pet shops must apply to the Animal Services Director for a Pet
Shop Permit, pay any designated privilege tax and receive a permit to own or operate a
pet shop in the county.
(e) Facilities shall be subject to inspection during reasonable hours by the animal control
officer or other appropriate representative of the animal control officer or other
appropriate representative of the animal protection program upon his request.
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(f) No person may own or operate a Pet Shop within the County unless and until such person
satisfies the requirements of this section and has been issued any privilege license if
required.
(g) A permit issued in accordance with this section may be revoked by the Administrator
after notice and hearing, for any reason that would have justified denial of the permit in
the first instance or for other violations of the Chapter. If the Administrator denies or
revokes a permit in accordance with this section, the owner or operator shall be notified
of their right to appeal such decision in accordance with Section 4-54.
See. -7 - Permit procedures.
The Animal Services Director shall establish procedures to govern the permitting process.
Sees. 4-74-4-95. -Reserved.
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DIVSION 3.—ANIMAL COLLECTION
See. 4-96. -Permit required.
A permit for the collecting of dogs and cats for sale shall be required before any
individual may engage in any action in the county in furtherance of any action involving
or relating to the collection or procurement of dogs and cats for sale or disposal. A permit
allowing such actions will be issued only upon payment of a privilege tax set by the
board of commissioners and demonstration by the applicant that the requirements of this
division shall be met.
(C)ra1 (?f 6..86 198 7, 4S YY($)Wa'c:xrrafr( ), (.r. ' B B 1988)
See. -97. - Permit application.
(a) An application for a collection permit shall be made by each individual involved in
the collecting of dogs and/or cats in the county for the purpose of sale or other
disposal. Any such application for the purpose mentioned in this section shall have to
be made to the Animal Services Director on a form prescribed by the Animal Services
Director.
(b) An investigation may then be conducted by the Animal Services Director which may
include inspection of the premises where the animals are to be kept and any vehicles
in which animals are to be transported. A fee in the amount of$25.00 shall be
assessed against an applicant or permit holder for failing to permit an inspection
pursuant to this subsection in order to defray the costs of repeat travel.
(c) Upon the determination by the Animal Services Director or person duly authorized by
the Animal Services Director that the requirements of this section have been met and
are capable of continuing to be met during the duration of the permit, a permit for no
more than one year shall be issued, upon payment of applicable privilege taxes, to the
individual applicant only for the specific individual applicant,premises and vehicles
listed on the application.
(d) Application for a permit renewal is the responsibility of the permit holder and shall be
made no later than 30 days prior to the expiration of the current permit. Failure to
reapply prior to the 30-day limit may result in a civil penalty.
(e) No individual shall be issued a collection permit unless:
(1) The individual is properly licensed by the U.S. Department of Agriculture and/or
the state department of agriculture, and such license is unsuspended and
unrevoked.
(2) The individual complies with this article and all other applicable laws and
regulations.
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(3) All requirements of this section have been met.
(4) The following information shall be provided on or with the application for a
collection permit:
i. The name, address and telephone number of the applicant.
ii. U.S. Department of Agriculture and/or state department of agriculture
license number under which the applicant operates.
iii. A basic description of the applicant's background, including but not limited
to all licenses he may have had for handling or keeping of animals, and all
arrests or convictions involving any matter or law in any way pertaining to
animals.
iv. A complete description, including vehicle identification number and vehicle
license number of each vehicle that will be used to collect and/or transport
animals.
v. The address and location where the animals will be kept or maintained for
the five days after collection.
(C1ra1 (?f 6..86 1987, 4S (,@)(d), (.r. ' B B B?88, /$rr end (.?f 123 2007, c.r' 7...1..(} )
Sec. 4-98. - Permit requirements.
No permit shall be issued or remain valid unless the Animal Services Director or
person duly authorized by the Animal Services Director is satisfied that both the vehicles
in which the animals will be collected and transported and/or the premises where the
animals will be housed meet the following requirements:
(1) Premises. All premises shall meet the same standards as set for class 11
commercial kennels in section 4-72.
(2) Vehicles.
a. Vehicles used to transport animals must be mechanically sound and
equipped to provide fresh air to all animals without harmful drafts.
b. The sections of the vehicles where the animals are placed are to be
constructed and maintained so that engine exhaust fumes cannot get to the
animals.
C. The sections of the vehicles where the animals are to be kept should be
cleaned and disinfected after each use and as needed.
(3) Enclosures in or on vehicles.
a. Enclosures, including compartments, cages, cartons or crates, used to
transport animals are to be well constructed, well ventilated, and designed
in such a way to protect the health and ensure the safety of the animals.
b. These enclosures must be constructed or placed on the vehicles so that:
1. Every animal in the vehicle has sufficient fresh air for normal
breathing.
2. The openings of these enclosures are easily accessible for
emergency removals at all times.
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3. The animals are adequately protected from the elements, including
heat and cold.
4. The animals are adequately protected from one another.
c. Only animals of the same species shall be transported in the same
enclosure. Puppies and kittens under six months of age shall not be
transported in the same enclosure with adult animals, other than their
mother.
d. Each enclosure used to transport animals shall be large enough for each
animal to stand erect, sit, turn about freely and lie down in a normal
position.
e. Animals shall not be placed in enclosures over other animals while being
transported unless each enclosure is so constructed to prevent animal
excreta from entering the other enclosures.
f. All enclosures used to transport animals shall be disinfected after each use
and as needed.
(4) Care in transit.
a. The attendant or driver shall be responsible for inspecting the animals
frequently enough to ensure the health and comfort of the animals and to
determine if emergency care is needed and to obtain emergency care if
needed.
b. If any animal is in a vehicle for more than three hours, it shall be provided
fresh, drinkable water, and food as appropriate.
c. Each animal in transit shall have a tag affixed to its collar of a type
approved by the U.S. Department of Agriculture.
(Ora) q/`6..I6 1987, XXXX(A)(2), Fff' B B 1988)
Sec. -99. -Records.
(a) Every person who sells, gives, exchanges or otherwise delivers any animal to a
collector must receive from the collector a written receipt, a copy of which is to be
kept by the collector, signed by both the owner or keeper and the collector, stating the
following:
(1) The number of animals received by the collector.
(2) The sex, breed and a general description of each animal received and the U.S.
Department of Agriculture number assigned to each animal.
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(3) The name, address and telephone number of the location to which the animal will
be taken for the following five days.
(4) The name, address and telephone number of the collector.
(5) The name, address and telephone number of the person surrendering the animal.
(b) A written report containing the information in subsection (a) of this section shall be
delivered by the person collecting the animals to Animal Services within 24 hours of
the surrender of the animal.
(c) A record shall be kept of the disposition of every animal collected.
(d) Every collector shall maintain a copy of all receipts and disposition records for one
year.
(C)ra) (?f 6 16 1987,,45 (,$)(?), (:rl B B 1988)
Sec. 4-100. - Quality assurance program.
A quality assurance program to ensure adherence to this division shall be carried
out within the animal control division.
Sec. 4-101. -Application and enforcement of division.
The Animal Services Director shall be responsible for the full and proper
application of this division. Questions concerning the applicability or interpretation of
this division shall be the responsibility of the Animal Services Director.
Secs. 4-102-4-130. -Reserved.
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DIVISION 1. -DISPLAY OF WILD AND EXOTIC ANIMALS
See. 4-131. -Repealed
8 14 0 1)
See. 4-132. -Display of it or exotic animals prohibited.
It shall be unlawful for any person to display or sponsor a display of wild or
exotic animals on any public or private property within Orange County.
(Ord (?f 8 14 20010), §Z e
8 14 0 1)
See. 4-133. -Enforcement.
Any person displaying or sponsoring a display of a wild or exotic animal at the
date that this Ordinance is adopted to prohibit such display shall comply with the
Ordinance's prohibition on the display of wild or exotic animals within 30 days of the
effective date of this Ordinance. No wild or exotic animals may be displayed that are not
permitted by the United States Department of Agriculture nor shall any exotic or wild
animal that has been designated a rabies vector species in North Carolina be displayed,
except when approved by the Animal Services Director they may be displayed in a
manner so as to not come into contact with the public.
(a) Investigations. The Orange County Animal Service Department shall investigate any
complaints, reports or information that wild or exotic animals are being displayed or
will be displayed in Orange County in violation of this Ordinance to determine
whether or not a violation has occurred.
(1) If the Orange County Animal Services Department determines that wild or exotic
animals are being displayed in Orange County in violation of this Chapter, the
investigating officer(s) shall issue a written warning to the person displaying the
wild or exotic animal(s). The written notice shall be delivered, via hand delivery
to a responsible person or via posting at the site of the display.
(2) The person against whom the warning is issued shall desist all activities in
violation of this Ordinance as of the business day the written notice is given.
(h) Penalties.
(1) Criminal Offenses - A violation of any provision of this Section constitutes a
Class 3 Misdemeanor and shall be punishable as provided in North Carolina
General Statutes § 14-4. Each day's continuing violation shall constitute a
separate offense.
(2) Civil penalty - A person who violates any of the provisions of this Section
shall be subject to a civil penalty of$250 per animal for each day of the
violation. No penalty shall be assessed until the person alleged to be in
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violation has been notified of the existence and nature of the violation by
letter. Each day of a continuing violation shall constitute a separate violation.
The Administrator shall make or cause to be made a written demand for
payment to be served upon the person in violation,which shall set forth in
detail a description of the violation for which the penalty has been imposed. If
payment is not received or equitable settlement reached within 14 days after
demand for payment is made, the matter may be referred to the County
Attorney for institution of a civil action in the name of the County of Orange
in the appropriate division of the general court of justice for recovery of the
penalty.
(3) Injunctive Relief.
a. Whenever the Orange County Animal Services Department or the North
Carolina Wildlife Resources Commission has cause to believe that any
person is violating or threatening to violate this Section, the agency shall
report the violation or threatened violation to the Administrator. The
Administrator may, either before or after the institution of any other action
or proceeding authorized by this Section, institute a civil action in the
name of the County of Orange for injunctive relief to restrain the violation
of threatened violation.
b. Upon determination by a court that an alleged violation is occurring or is
threatened, it shall enter such orders or judgments as are necessary to
abate the violation or to prevent the threatened violation. The institution of
any action for injunctive relief under this section shall not relieve any civil
or criminal penalty prescribed for violations of this Section.
('()rd gf'8.14-2001(1), §3, F 8..14 0r)
Sec. 4-134. - Severa ility.
If any provision of this Ordinance or the application thereof to any person or
circumstance is declared to be invalid, such invalidity shall not affect other provisions or
applications of the Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of the Ordinance are declared to be severable.
Secs. 4-135-4-180. -Reserved.
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DIVISION 2.-KEEPING OF WILD ANIMALS DANGEROUS TO PERSONS AND PROPERTY[41
See. 4-181. -Definitions.
As used hereinafter, the following term shall mean:
Wild Animals Dangerous to Persons and Property, hereinafter referred to as
"Wild and Dangerous Animals": The term applies to the following animals: all felines
(other than the domestic house cat), nonhuman primates,bears, wolves, coyotes,reptiles
(poisonous, crushing and giant), and any crossbreed of such animals which have similar
characteristics of the animals specified herein. In order to properly administer the
provisions of this Ordinance, the Board may add to or remove from the classification of
wild animal any bird, mammal, reptile, aquatic and amphibious forms, or other members
of the animal kingdom. Additions to or deletions from the animals regulated herein may
be made only if the Board determines, after receiving evidence, that such animals
because of habit, mode of life or natural instinct are either capable or incapable of being
domesticated, requires the exercise of art, force or skill to keep them safely in subjection,
and would or would not create a reasonable likelihood of hazard to the public.
(Ord (?f 8.14...2r}042), .45 1, (.ff S..r4..01)
See. 4-182. - Keeping of wild and a gero s animals pro i ite .
No person, firm or corporation shall keep, shelter, feed, harbor, or take care of
any wild and dangerous animal within Orange County.
(Ord (?f 8..14...2001(2), §'Z e X5..14..01)
See. 4-183. -Exemptions.
The provisions of this Ordinance shall not apply to the keeping of wild and
dangerous animals as follows,provided, such keeping is in all respects in compliance
with applicable federal and state rules and regulations:
(a) Animals used for teaching and/or research purposes at The University of North
Carolina at Chapel Hill.
(b) Wildlife rehabilitators licensed by the state or the federal government to provide
such services.
(Ord (?f 8...14...001(2)} §3, f/. 844 01)
See. 4-184. -Enforcement.
(a) Investigations. The Orange County Animal Services Department or the North
Carolina Wildlife Resources Commission shall investigate any complaints that a
wild animal is possessed or harbored in Orange County in violation of this
Ordinance to determine whether or not a violation has occurred.
(h) Penalties.
(1) Criminal Offenses - A violation of any provision of this Section
constitutes a misdemeanor and shall be punishable as provided in North
Carolina General Statutes § 14-4. Each day's continuing violation shall
constitute a separate offense.
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(2) Civil penalty - A person who violates any of the provisions of this Section
shall be subject to a civil penalty of$50.00 per animal. No penalty shall be
assessed until the person alleged to be in violation has been notified of the
existence and nature of the violation by letter. Each day of a continuing
violation shall constitute a separate violation. The Administrator shall
make or cause to be made a written demand for payment to be served upon
the person in violation, which shall set forth in detail a description of the
violation for which the penalty has been imposed. If payment is not
received or equitable settlement reached within 14 days after demand for
payment is made, the matter may be referred to the County Attorney for
institution of a civil action in the name of the County of Orange in the
appropriate division of the general court of justice for recovery of the
penalty. Any sums recovered shall be used to carry out the purposes and
requirements of this Ordinance.
(3) Injunctive relief.
a. Whenever the Orange County Animal Services Department and the
North Carolina Wildlife Resources Commission has cause to believe
that any person is violating or threatening to violate this Section, the
agency shall report the violation or threatened violation to the
Administrator. The Administrator may, either before or after the
institution of any other action or proceeding authorized by this
Ordinance, institute a civil action in the name of the County of Orange
for injunctive relief to restrain the violation or threatened violation.
b. Upon determination by a court that an alleged violation is occurring or
is threatened, it shall enter such orders or judgments as are necessary
to abate the violation or to prevent the threatened violation. The
institution of any action for injunctive relief under this section shall
not relieve any civil or criminal penalty prescribed for violations of
this Section.
Sec. 4-185. - Severe ility.
If any provision of this Ordinance or the application thereof to any person or
circumstance is declared to be invalid, such invalidity shall not affect other provisions or
applications of the Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of the Ordinance are declared to be severable.
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