Although most rescue and foster care organizations have the best interests of the animals in mind and at heart, traditionally, there has been a lack of regulation and supervision in monitoring these groups. The lack of laws signify that the groups are not subject to inspections nor do they have a mandated minimum set of standards of care for the animals. This means that the rescues and fosters are functioning on an honor system. In some areas of the country, rescues will violate zoning laws and hoarders will set up a rescue organization as a 501(c)(3) non-profit, and without regulatory oversight, the good intentions can get out of hand. A few bad rescues that are unregulated can give all rescues and fosters a bad reputation. Requiring licensing of the organizations will subject the groups to inspections and hold them accountable for the animals they take in (Ron Fonger, Growing pains: Animal rescues grow in Genesee County with little oversight or rules, Michigan Live, (Feb. 6, 2013) available at http://www.mlive.com/news/flint/index.ssf/2013/02/without_a_net_in_michigan_anim.html).
However, in places where laws do exist for rescues and foster care programs, the laws can come from various levels: the state, county, and city ordinance level. The laws can vary from one state to another as well as from one city to another. Even in states where laws are in place, enforcement can be a problem. In Georgia, 19 inspectors must cover the 159 counties within the state (Animal Protection FAQs, Georgia Department of Agriculture, available at http://www.agr.georgia.gov/animal-protection-faqs.aspx). Moreover, in Colorado, the Pet Animal Care Facilities Report of 2012 indicated that there were just four inspectors to monitor the whole state of Colorado (available at http://www.colorado.gov/cs/Satellite/ag_Animals/CBON/1251621118507); however, they have just added a fifth inspector this year. There is a need for laws to protect the animals that are placed in rescue and foster care, and there is a need for those laws to be strongly enforced.
This need is exhibited when rescue groups and foster homes take in animals from shelters. It can be difficult for the shelter to inspect and maintain supervision of each rescue and foster placement. This happened when the Fort Worth Texas Animal Shelter continued to give animals to a rescue group even though the animals were living in deplorable conditions (Andrew Mclemore, Animal Behavior: Shelter is Caught Between a Rock and a Hard Place, Fort Worth Weekly, (Dec. 19, 2012) available at http://www.fwweekly.com/2012/12/19/animal-behavior/).
While there is already a decent amount of information available concerning animal shelters and the law, less information is available about how the law impacts rescue groups and foster care programs. This article will focus primarily on the rescue and foster care issues. Some of the types of laws that impact companion animal rescue and foster care organizations include legislative definitions, licensing, sterilization and vaccination, pet limit laws, zoning and nuisance laws, tethering laws, Breed Specific Legislation (or BSL), tort liability, and reimbursement for medical care in cruelty cases. While some examples will be given here, a rescue organization or foster care provider should check the specific state and city laws where they are located.
II. General Definitions and History of Rescue Organizations and Foster Care Programs
In order to understand the detailed discussion below, a quick overview of the history of animal welfare will be given to briefly sketch the evolution of animal shelters and how the movement has created the need for additional types of organizations to assist with the pet overpopulation problem. Definitions will describe how the organizations differ from one another and how those groups receive the animals in their facilities.
In colonial times, wandering livestock were gathered up and held in animal pounds until the owner would come to reclaim the animal for a fee. Animal shelters evolved out of these pounds and began to collect and impound the stray dogs and cats, but since the economic value of dogs and cats was not equivalent to livestock, the dogs and cats often went unclaimed. The focus of animal pounds then became euthanasia for the unwanted animals (Lila Miller, Animal Sheltering in the United States: Yesterday, today, and tomorrow, Veterinary Medicine, (Oct. 1, 2007), available at http://veterinarymedicine.dvm360.com/animal-sheltering-united-states-yesterday-today-and-tomorrow?id=&pageID=1&sk=&date=).
The animal welfare movement began in the 1860s with the implementation of anti-cruelty laws in the states. In 1866, the American Society for the Prevention for Cruelty to Animals (ASPCA) was established in New York. The focus of humane societies was on education, welfare, veterinary care, and later euthanasia and homeless animals. The movement originally started for horses, but later as the role of cats and dogs evolved in our society, the focus of animal welfare expanded to these other companion animals (Rebecca J. Huss, Rescue Me: Legislating Cooperation Between Animal Control Authorities and Rescue Organizations, 39 Conn. L. Rev. 2059 (2007)).
However, it was not until the late 1970s that the veterinary community began to provide input to shelter management policies, and shift the focus away from euthanizing the impounded cats and dogs. With veterinary input, the shelters began to focus on providing humane care, treatment, and effective community programs and public services (Lila Miller, Animal Sheltering in the United States: Yesterday, today, and tomorrow, Veterinary Medicine, (Oct. 1, 2007), available at http://veterinarymedicine.dvm360.com/animal-sheltering-united-states-yesterday-today-and-tomorrow?id=&pageID=1&sk=&date=). Shelters today are now offering micro-chipping, behavior evaluations and training, educational workshops, foster care programs, and spay/neutering programs.
Although there have been improvements in the animal sheltering system in recent decades, the popularity of dogs and cats in our society as companion animals has tripled from 67 million households having pets in the 1970s to 164 million households with pets in 2012. While the new role of shelters reduced the number of dogs and cats euthanized, there is still an estimated 3-4 million dogs and cats that are euthanized each year (Pets by the Numbers, The Humane Society of the United States, (January 30, 2014) http://www.humanesociety.org/issues/pet_overpopulation/facts/pet_ownership_statistics.html#). Shelters that have created rescue group partnerships and foster care programs are working to continue to reduce the number of pets euthanized. These two types of programs are important to help place unwanted animals into adoptive homes.
B. Types of Organizations: What They Are and How They Differ
As our society continues to face a pet overpopulation problem, there has been an increase in the various types of shelters and organizations to combat this issue. These organizations are often broadly referred to as “shelters” but it is important to note that there are differences involved in these various groups. The four main types of animal sheltering organizations mentioned in this paper are municipal shelters, private shelters, rescue organizations, and foster homes.
Municipal shelters, which evolved out of the animal pounds, are one type of shelter that provides animal control services. These shelters are typically funded through local taxes and dog license fees. These can also be subdivisions of the local police, health, or sanitation departments, or the city may contract the services out to private agencies like an SPCA or other humane society. Municipal shelters will pick up stray animals and these shelters tend to be open admissions, which means that they must take in any animal that an owner surrenders. Open admissions can cause an increase in overcrowding, which can sometimes lead to an increase in disease, which then may lead to the need for euthanasia.
In contrast, private shelters are typically 501(c)(3) non-profit organizations that must fundraise from the public to provide their animal services. These also differ from municipal shelters because they can chose to be open admissions, limited admission, or a no-kill shelter. No-kill shelters do not use euthanasia to control the population or disease outbreak.
Next, there are rescue groups that are non-profit organizations dedicated to re-homing animals. Each group may focus only on a specific species (i.e. horse rescue or rabbit rescue) or only a certain breed for rescue (i.e. a Pug Rescue or a Shiba Inu Rescue) (Lila Miller, Animal Sheltering in the United States: Yesterday, today, and tomorrow, Veterinary Medicine, (Oct. 1, 2007), available at http://veterinarymedicine.dvm360.com/animal-sheltering-united-states-yesterday-today-and-tomorrow?id=&pageID=1&sk=&date=). Rescues often get their animals from owner surrenders or by working with the large local shelters.
Lastly, there are foster homes that are temporary homes for animals needing adoption. Volunteers offer to open their homes up to the animals in need. Rescue organizations that do not have their own building to house the companion animals will utilize a network of volunteer foster care homes to take care of the animals until a suitable adoptive family is located.
C. Animal Rescue Acts
In addition to receiving animals from owner surrenders or through cooperative agreements with shelters, in states where the legislature has enacted an Animal Rescue Act, the rescue organizations or foster homes can step up and force a shelter to transfer the animal over to prevent euthanasia. In 1998, California passed what came to be known as Hayden’s law. Part of the code requires animal shelters that have intentions of euthanizing an animal must transfer the animal to another rescue organization if the 501(c)(3) requests the animal (Cal. Food & Agr. Code § 31108(b)). Rather than killing the animal, the shelter can then charge a fee for the rescue organization to take the animal, as long as it is the not more than the adoption fee that a member of the public would pay for the animal. This law gives rights to the rescue organizations to claim any animals that are slated for euthanasia. The policy reasoning behind this law was to encourage shelters to work with rescue groups and to increase the adoption rates of companion animals.
The state of Delaware also passed a law for new shelter standards in 2010. The Delaware law states that an animal may be transferred to another animal shelter or rescue organization (3 Del. Code § 8003(b)). In addition, the law states that an animal shall not be euthanized if a foster home is available or if a 501(c)(3) rescue organization is willing to take the animal (3 Del. Code § 8004). Again, like in California, the law here aims to allow rescues and foster care programs the ability to help save the lives of animals left at shelters by allowing the non-profit organizations to intervene and take ownership of the animals.
As more states are looking for methods to increase the adoption rates from shelters, rescue and foster care groups should check to see if any law in their state grants them the ability to claim companion animals from shelters once they become slated for euthanasia. Requiring shelters to work with rescue and foster groups shifts the costs from government funded shelters to the non-profit organizations that are funded through donations.
III. Defining the Types of Animal Organizations Under State Law
The municipal shelters or animal control, private animal shelters, rescues, and foster care programs, all work to take in companion animals and to find the animals new homes. Although they share this same goal, it is important to note the methods used, facilities, and operations of these types of organizations will be different. A major difference is the source of funding, between those that are funded through local taxes and those that are funded through donations. Some states still broadly categorize each type of organization as a “shelter” or “kennel” while other states have begun to recognize the fundamental differences between these various types of animal organizations.
A few states have begun the process of re-defining these terms in their statewide legislation to reflect the differences between these various types of animal organizations. In March 2014, the Virginia Governor approved house bill 1067 which replaced the terms "private animal shelter" for "animal shelter" and "public animal shelter" for "pound" (2014 Session: HB 1067 Animal Shelters; definitions, Virginia’s Legislative Information System, available at http://lis.virginia.gov/cgi-bin/legp604.exe?ses=141&typ=bil&val=HB1067&submit=GO). In addition, the law changed the definitions for "foster care provider," "foster home," and "home-based rescue."
A. Animal Control Shelters or Public Shelters
Animal control shelters are facilities with enclosures for housing homeless animals and they are typically managed and funded through contracts with the local government. Virginia law now defines public animal shelter to mean “a facility operated by the Commonwealth, or any locality, for the purpose of impounding or sheltering seized, stray, homeless, abandoned, unwanted, or surrendered animals or a facility operated for the same purpose under a contract with any locality” (Va. Code. Ann. § 3.2-6500). As mentioned above, these organizations are often funded through local taxes and dog license fees and can be subdivisions of police, health, or sanitation departments. Paid employees in the animal control department will typically enforce the rules and regulations.
For example, Colorado Revised Statute 30-15-101 states that the board of county commissioners may adopt resolutions concerning pet animal control and licensing. The statute specifically allows the local government to “[e]stablish a dog pound, or other animal holding facility, and engage personnel to operate it and otherwise to enforce the county dog control resolution or any other resolution concerning the control of pet animals” (C.R.S. 30-15-101(1)(IV)). To execute the law, counties or municipalities may enter inter-governmental agreements for services of animal control, licensing, impounding, or disposition of dogs or other pet animals (C.R.S. 30-15-101(2)). A specific example is available in Adams County, Colorado. The Adams County Board of Commissioners provide animal control services and shelter operations in Brighton, Colorado to several nearby cities through the inter-governmental contract agreements (see, Animal Shelter/Adoption Center, Adams County Colorado, available at http://www.co.adams.co.us/index.aspx?nid=333). The city of Northglenn is one city that contracts with Adams County for the use of their animal control services and shelter. In 2012, Northglenn paid $40,000 out of the Police Department’s proposed budget for this inter-governmental agreement for animal control, sheltering, and adoption services with Adams County (Council Memorandum #2011-13, Northglenn, (Nov. 17, 2011), available at http://webdocs.northglenn.org/file/17967/packet/Cr-117.pdf).
B. Private Animal Shelters
Besides the public or government run animal shelters, there are also private animal shelters that are often managed by a humane society. Again, Virginia has recently re-defined this term to reflect the modern understanding. A private animal shelter is defined as “a facility that is used to house or contain animals and that is owned or operated by an incorporated, nonprofit, and nongovernmental entity, including a humane society, animal welfare organization, society for the prevention of cruelty to animals, or any other organization operating for the purpose of finding permanent adoptive homes for animals” (Va. Code. Ann. § 3.2-6500). Private animal rescues in Virginia are subject to inspection by the State Veterinarian and each State Veterinarian’s representative just as a public shelter would be (Va. Code. Ann. § 3.2-6502).
The Nebraska state law also differentiates between public and private shelters. Nebraska defines a public facility as an animal control facility that “means a facility operated by or under contract with the state or any political subdivision of the state for the purpose of impounding or harboring seized, stray, homeless, abandoned, or unwanted animals” (Neb. § 54-626(1)). In contrast, Nebraska defines a private shelter as an animal shelter that “means a facility used to house or contain dogs or cats and owned, operated, or maintained by an incorporated humane society, an animal welfare society, a society for the prevention of cruelty to animals, or another nonprofit organization devoted to the welfare, protection, and humane treatment of such animals” (Neb. § 54-626(3)). The main difference between the two types of shelters again is the source of funding. The local government shelter will be financed through tax dollars and a non-profit run shelter will be funded through donations.
C. Rescue Organizations
Rescues are non-profit organizations that are managed by volunteers and funded through charitable donations. Animal control and private humane society shelters typically have a building or kennel-type facility to house the animals. Rescue groups may have facilities as well, or the groups will house companion animals through a network of private homes or foster homes. Few states define animal rescues in the law; however, Nebraska again is a state that separately defines these organizations, including a definition of an animal rescue. Under Nebraska law an “[a]nimal rescue means a person or group of persons who hold themselves out as an animal rescue, accept or solicit for dogs or cats with the intention of finding permanent adoptive homes or providing lifelong care for such dogs or cats, or who use foster homes as the primary means of housing dogs or cats” (Neb. § 54-626(2)).
Virginia also offers a definition for a rescue organization, but only those that are home based. It does not include those rescues that may have their own building facilities to house the animals. Virginia defines a home-based rescue as “an animal welfare organization that takes custody of companion animals for the purpose of facilitating adoption and houses such companion animals in a foster home or a system of foster homes” (Va. Code. Ann. § 3.2-6500). Although Nebraska and Virginia both offer a definition for rescue, most states do not define it under the law.
D. Foster Care Homes
Foster homes are houses where individuals volunteer to shelter and care for the animals as a temporary placement until the animals can be adopted by a new family. While most states do not define foster homes; there are two sample definitions in Illinois and Virginia. The Illinois Animal Welfare Act defines foster homes and offers insight in how the state regulates the homes. Illinois defines a foster home to mean “an entity that accepts the responsibility for stewardship of animals that are the obligation of an animal shelter, not to exceed four animals at any given time. Permits to operate as a "foster home" shall be issued through the animal shelter" (225 ILCS 605/2). This definition places a limit on the number of animals that can be housed in a foster home, and explains that the animals remain the obligation of the animal shelter, and that the home must pass an animal shelter’s approval to be permitted to operate.
Virginia also offers two definitions concerning foster care programs; it defines a foster care provider and a foster care home, both of which are straightforward. The law states that a foster care provider “means a person who provides care or rehabilitation for companion animals through an affiliation with a public or private animal shelter, home-based rescue, releasing agency, or other animal welfare organization” (Va. Code. Ann. § 3.2-6500).
It additionally defines a foster home to mean “a private residential dwelling and its surrounding grounds, or any facility other than a public or private animal shelter, at which site through an affiliation with a public or private animal shelter, home-based rescue, releasing agency, or other animal welfare organization care or rehabilitation is provided for companion animals” (Va. Code. Ann. § 3.2-6500).
A foster home essentially can be any person who wishes to volunteer their home for animal care. This can be done as long as the foster care provider is giving the animal adequate shelter, food, water, and medical attention; as well as, abiding by any other local laws and regulations. Funding for foster care programs and the associated food, supplies, and vet care that an animal in foster care needs can come from a variety of sources, either through a public shelter’s budget, the private shelter’s donations, animal welfare grants, or from the volunteer foster care provider. A shelter that is overseeing a foster care program will typically require a foster care provider to first fill out an application, then attend an orientation, care for the animal at home, and bring it to scheduled vet appointments and adoption events until the animal can be placed in a permanent home.
The way in which a state has decided to define a rescue or foster home under the law can impact the methods used for regulating such organizations. In some states, the rescues and foster homes may be licensed similarly to commercial kennels. Foster homes may be subject to inspections from the Department of Agriculture in a state that still defines a foster to be included in a broad category with animal shelters, but in another state, local authorities may instead require a licensee, such as a shelter or rescue, to oversee the foster homes. Understanding these types of variations under the law will help prepare volunteer rescues and foster homes to comply with all requirements.
IV. Forms of Licensing
While only a few states (i.e., Nebraska and Virginia) define foster care and rescue organizations in their laws or regulations, other laws that cover animal care facilities in general may still apply. Becoming licensed to operate a rescue or foster care program is often the first step for those that want to work with animals. Typically states will require an annual application and associated fee to be licensed and may subject the organization to inspections to ensure the animals are treated humanely. On the other hand, some states may also offer the option for rescues and foster care providers to work under contract to avoid licensing, or some states may leave the licensing applications, fees, and inspections to local government and local animal control for enforcement.
A. Kennel Licensing
Some states may require rescue groups to apply for and pay for a kennel license just as a breeder or commercial kennel would be required to do. For example, Pennsylvania passed Act 119 (“the dog law”) in 2008 to improve the welfare of dogs in the state (Kennel Licensing, Pennsylvania Department of Agriculture, available at http://www.agriculture.state.pa.us/portal/server.pt/gateway/PTARGS_0_2_24476_10297_0_43/AgWebsite/ProgramDetail.aspx?palid=62&). The Act defines “kennel” as “[a]ny establishment in or through which at least 26 dogs are kept or transferred in a calendar year, or a boarding kennel as defined in this act.” Therefore, if a rescue or non-profit handles more than 26 dogs in a year this law will apply. The kennels are then divided in to types such as a research kennel, boarding kennel, commercial kennel, private kennel, pet shop kennel, rescue kennel, or non-profit kennel. The licensing fee will be determined based on which type the kennel is classified as, plus “the number of dogs housed, kept, harbored, boarded, sheltered, sold, given away or transferred in or by the kennel.” According to the Pennsylvania Department of Agriculture, each location must have a separate license and the licenses expire on December 31st of each year, requiring that the annual renewal of applications for the new year be submitted by January 1st.
B. Broad State Licensing Schemes
In Colorado, the Pet Animal Care and Facilities Act or also referred to as PACFA, (C.R.S. §§ 35-80-101 et seq.), regulates any place that is used for the keeping of pet animals for the purpose of adoption, breeding, boarding, grooming, handling, selling, sheltering, trading or transferring pets. Similar to the Pennsylvania law, the Colorado law regulates a wide range of different types of facilities, including pet shops, breeders, shelters, and rescues. All of these types of facilities must obtain a license from the Commissioner of Agriculture; this includes the non-profit animal rescues. The statute defines an "animal rescue" as “any person licensed pursuant to this article who accepts pet animals for the purpose of finding permanent adoptive homes for animals and does not maintain a central facility for keeping animals, but rather uses a system of fostering in private homes or boarding or keeping pets in licensed pet animal facilities.” Foster homes do not need to be individually licensed, but the licensee (the rescue group) is responsible for ensuring that the foster homes meet PACFA standards and must maintain a list that is available to inspectors upon request.
While some states have recognized the nuanced differences in the way these various animal organizations and facilities differ, others will simply regulate the rescues and fosters in a similar manner as the animal shelters. Wisconsin treats both shelters and animal rescues the same. Each organization must be licensed if they take in 25 dogs or more per year, and it does not matter if the organization is in one central facility or several foster homes. The rescues and foster homes may be subject to inspection, and will need to provide a veterinary certificate and vaccination record upon adopting out or selling the animals, and must meet certain standards of care (W.S.A. §173.41).
In Georgia, rescues and fosters are subject to inspections by the Department of Agriculture just like a shelter, and must pay the equivalent licensing fees based on the number of animals the facility is capable of holding (Animal Protection FAQs, Georgia Department of Agriculture, available at http://www.agr.georgia.gov/animal-protection-faqs.aspx). In addition, all facilities must abide by the Georgia Animal Protection Act (O.C.G.A. § 4-11-1) to be considered for licensing. Rescues and foster care programs in Georgia must also check local zoning ordinances first before inspections from the Department of Agriculture will happen. However, if a rescue does not want to be licensed as an animal shelter, the other option in Georgia is to work under contract with an animal shelter. Under the contract, the rescues and fosters work as an agent of the shelter.
C. Impact of No Licensing Scheme
In contrast to states with specific licensing schemes, in some states the licensing laws have been so lax that any oversight of animal operations was basically non-existent. Ohio had so many commercial breeding facilities that in 2012, for the first time, a law was passed requiring registration and annual inspections for commercial breeding kennels (Kathy Antoniotti, Puppy mills in Ohio to face regulations, but so will rescue-group volunteers, Akron Beacon Journal, available at http://www.ohio.com/news/local/puppy-mills-in-ohio-to-face-regulations-but-so-will-rescue-group-volunteers-1.353742 (last updated Dec. 1, 2012)). This law also required rescue volunteers that foster animals to register and would subject the volunteers to an inspection if someone files a complaint. Some believe this may deter some volunteers from wanting to foster any animals; however, others believe it will have little to no effect on rescue groups since the law does not impose new fees or any new standards; it only requires that the rescues and fosters register.
A recent story out of the Midwest reports that as foster programs have risen in popularity, the states have struggled to keep up with the laws and rules for these programs. This problem could allow animal abusers, hoarders, and dog fighting rings to potentially take advantage of the lack of regulations. In addition, without clear rules on foster programs legal disputes can occur. A woman in Kansas volunteered to foster a dog for a rescue group, but both parties had a misunderstanding over the approved veterinarian provider and reimbursement costs for medical care, and as a result, both parties are now in dispute over who should be given custody of the dog (Melissa Yeager, Pet foster parent, Unleashed Pet Rescue organization fight over dog's health care bills, KSHB 41 Kansas City Local News, (July 24, 2014), available at http://www.kshb.com/news/local-news/investigations/pet-foster-parent-unleashed-pet-rescue-organization-fight-over-dogs-health-care-bills). This is an example of how unclear rules and regulations can lead to legal disagreements in the rescue and foster care adoption process.
D. Local Licensing Scheme
While statewide legislation is updated in certain states and now newly enacted in others (i.e. Ohio), other states still may not have statewide regulations for rescues and foster care providers to be licensed. Even if there is no statewide licensing scheme, the organizations may need to comply with local licensing schemes. For example, Utah does not currently appear to have any statutes pertaining to these organizations; however, a rescue organization can become incorporated as a 501(c)(3) and those wishing to foster animals can be regulated on the local level. Salt Lake City, for example, requires a “pet rescue permit” to foster animals in a residential area (Salt Lake City Code § 8.04.130). The law further enumerates the requirements for receiving a permit.
VI. Ownership, Contracts, and Property Rights
Once a rescue or foster home is licensed, the group will need to acquire companion animals to start their work. Under the law, animals are still considered property and therefore are subject to ownership claims. When a rescue takes in companion animals surrendered by current owners, it is a good idea to have owners sign over their ownership, as well as find out about the animal’s behavior and medical history. Rescues and fosters can also work under contract with shelters to take in animals, but depending on how the contract is drafted, the animals may still remain the property of the shelter or may be transferred over to the new organization. Because the animals are property, disagreements over who the companion animals belong to can lead to legal disputes between shelters, rescue organizations, breeders, and past or prospective owners involved in the adoption process. There is little case law available on these types of disputes but in these situations, an attorney would likely apply state civil, property, and contract law to the problem.
A. Contract Concerns
Many shelters will have contract agreements with local rescues and foster care providers. Ownership of the animals will depend on the wording placed in those contracts. New York City’s Animal Care and Control offers a partnership program called New Hope, which works with rescue groups and other animal welfare organizations. The shelter transfers ownership of the animals over to the rescue groups. The contract specifically states, “[o]wnership of and full legal responsibility for the animal will transfer to the New Hope partner at the time of the physical transfer including full liability for any further/future costs associated with the care, health and behavior, and/or recuperation from damage or injury associated with the animal(s)” (New Hope Partner Eligibility Requirements, Policies, Procedures & Agreement, Animal Care and Control of NYC (March 2011), at 7, available at http://www.nycacc.org/pdfs/NewHope/Eligibility.pdf).
By contrast, Georgia makes a foster home an agent of the animal shelter. A sample contract from the Department of Agriculture specifically states that the animals remain shelter property; the sample contract reads, “(3) All pets will remain the property of the above licensed Animal Shelter until an outgoing pet transaction is completed. While property of the above licensed Animal Shelter all pets must be returned to the Animal Shelter upon request;” (Foster Home/Animal Shelter Agent Agreement, Georgia Department of Agriculture, available at http://www.agr.georgia.gov/rescue-groups.aspx). However, even with a contract in place arguments over animal ownership can occur between the various animal organizations that work on adopting out these companion animals.
One example of an ownership dispute would be when a rescue places an animal in foster care and later finds the individual foster provider refusing to return the animal back to the rescue organization. This recently occurred in Lakewood, Washington. Purrrsons United for the Rescue, Rehabilitation and Relocation of Animals (a.k.a. PURRR) had placed a Black Lab mix named Chance in foster care with a woman named Tracee Kirby. The group filed a lawsuit in 2013 against Ms. Kirby. The lawsuit stated that she had filled out a foster agreement and was told to bring the pet back for adoption events, but failed to return the dog. Police officers do not typically become involved in these types of situations because it is a civil matter, so the rescue group filed the lawsuit to have a judge order the dog be returned or to grant authority to break in and retrieve the dog from Kirby’s property. (Adam Lynn, Lakewood animal rescue group sues to get dog returned, The Columbian, (Oct. 7, 2013) available at http://www.columbian.com/news/2013/oct/07/lakewood-rescue-group-sues-for-dog/). With the case against her pending, she eventually did return the dog. If the case had gone to trial however, the court would look to see if there was in fact a valid contract and whether or not she had breached the contract terms and agreement.
Although Kirby had denied the existence of a foster agreement, typically to avoid future problems, a rescue organization should draft these types of contracts with their foster care providers. A sample of a foster contract that could be used by shelters or rescue organizations is available on the Animal Legal Defense Fund’s website at http://aldf.org/resources/natural-disasters/sample-foster-care-agreement/. The agreement specifically states the foster parent acknowledges that they have no ownerships rights in the animal and must immediately return an animal if requested for any reason. Having a contract in place is a good idea should a shelter or rescue organization need to enforce their ownership rights against a foster care provider.
Disputes of ownership can occur when certain contract terms are in place. For example, an unpublished case from Connecticut arose between two Newfoundland dog breeders, one of whom also ran a rescue (Wiederhold v. Derench, 2003 Conn. Super. LEXIS 1795, (Conn. Super. Ct. June 17, 2003)). The owner had bought the dog, Sage, from the breeder for $1,000 and signed a contract that specifically stated she would agree to return the dog to the breeder if she could no longer care for it, and would not attempt to re-sell or re-home the dog. After Sage attacked another dog, the owner’s friend attempted to return the dog to the breeder. The breeder was busy on that particular day with another litter and could not pick up the dog. The owner then sold the dog to the defendant dog breeder and co-chair of the Newfoundland Club of New England Rescue. The court found that the original breeder had not given up her contract rights. She was handling an emergency delivery of puppies, which made it reasonable that she could not pick up Sage right away. The defendant knew the breeder had not relinquished her contractual ownership rights and so the court held that the plaintiff was the sole owner and entitled to sole possession.
This case can be analogous to what could occur when a rescue or foster care provider takes in an animal that is an owner surrender. The rescue or foster care provider may find itself in a dispute if the owner has in place a contract with a breeder to return the animal if the owner can no longer care for it. Rescues and foster care providers should discuss this issue with owners wishing to hand over their pets. The rescue groups should also attempt to investigate whether such a contract exists. The non-profit groups should not take in any animals that are under the contract rights of a breeder, unless the breeder decides to explicitly relinquish his or her ownership rights in writing over to the rescue or foster care provider.
B. Adoption Contracts and Preventing Pet Flipping
In addition to contract disputes, animal rescue organizations may face the issue commonly known as “pet flipping. Pet flipping is where someone finds a pet for sale or for adoption online or simply steals one from an owner, and then re-lists the pet online to sell for a profit (Brad Tuttle, ‘Pet flipping’ is Now a Thing, Time, (July 16, 2013), available at http://business.time.com/2013/07/16/pet-flipping-is-now-a-thing/). As this issue is becoming more common, it may be a good idea to have contract terms that prohibit the re-selling or re-homing of the animals.
Recently in Hawaii, a woman adopted a 10-year-old Jack Russell for $85 from the Hawaii Humane Society and then quickly re-listed it for sale on Craigslist for $200. The Humane Society did have contracts for adopters to sign but did not have any terms stating an owner could not re-sell the dog. As a result, the Humane Society may change its future adoption contracts and policies. However, trying to enforce the contract and catch people doing this could be difficult. Most non-profits do not have the time or financial resources to constantly monitor the endless Internet outlets for scammers (Manolo Morales, Craigslist dog ad sparks public outrage, disappointment, (June 24, 2014), available at http://khon2.com/2014/06/24/craigslist-dog-ad-sparks-public-outrage-disappointment/). However, if a rescue organization were to have a contract right to ownership of all companion animals adopted out of their facilities, it could help when this type of situation arises. A rescue organization could sue the adopters for failing to comply with the specific terms detailed in the signed contract; this is considered a breach of contract.
On the other hand, having a contract where a breeder, shelter, or rescue group retains ownership rights may also raise other issues. For example, an animal adopter may not be fully committed to their pet if they can simply return the animal on a whim. The contract terms may also leave the shelter or rescue group open to liabilities for injuries or neglect and animal cruelty caused by an adopter if the shelter or rescue organization retains some ownership rights (See, Nancy E. Halpern, Concerns About “Contracts” For Pet Adoption, Animal Law Update, (Aug. 1, 2013), available at http://animallaw.foxrothschild.com/2013/08/01/change-of-ownership-upon-adoption-of-pets/).
Foster care providers may face similar concerns when entering into fostering relationships. While the goal is different from rescue adoption agencies (e.g., fostering is for a limited time), the ultimate goal of providing homes to pets is similar. A foster parent who had invested time, resources, and compassion into the companion animal would likely be upset to find out if the pet had been re-homed or used as a pet flip. Most foster parents want to ensure that the animals end up in good homes, and if the pet is re-sold, the new pet owner may not meet the foster care program’s standards for adoption. If a foster care provider drafted a contract to retain some ownership rights should an adopter violate the prohibition against re-homing a pet, then the foster parent could take action if the adopter re-homed the animal. However, like a rescue organization, if the foster parent contracts for a continued ownership interest after an animal has been adopted out, there could be similar problems of liabilities for an animal not under their immediate control.
C. Animals as Property and Third Party Liability
Although animals are property, most state legislatures have provisions that require the animals receive adequate care. If there are suspicions that an animal rescue or foster home is not properly caring for their animals, those rescue organizations or foster care individuals can risk losing their ownership rights. Although an unpublished opinion, a lawsuit arose when a Pennsylvania dog rescue, Sixth Angel Shepherd Rescue, had contracted with a transporter to have several dogs from North Carolina brought to Pennsylvania. A tip to the Dog Law Enforcement suggested the vehicle and its contents were in poor condition, thus the dogs were intercepted, seized, and placed with the Pennsylvania Society for the Prevention of Cruelty to Animals (PSPCA). Sixth Angel filed a lawsuit against PSPCA for state law conversion, seeking the return of three of their dogs. Conversion is the deprivation of another's right in property without the owner's consent or lawful justification. The court held that although Sixth Angel had made a poor selection in a contract transporter, it did not affect the rescue organization’s ownership of the dogs. By retaining possession of the dogs, the PSPCA was depriving Sixth Angel’s right to its property. There was no evidence that Sixth Angel could not care for the animal’s health and welfare, therefore the decision to return the dogs to the rescue group was affirmed (Sixth Angel Shepherd Rescue, Inc. v. Bengal, 448 Fed. Appx. 252 (3d Cir. Pa. 2011)). In this case, the rescue organization made a mistake in their selection of an animal transporter but were given the chance to remedy the situation and care for the animals. Even though animals are considered property, the issue of animal cruelty would supersede a personal property interest. Animal rescues and foster care providers should be sure to abide by the standards of adequate care and make certain that all contract workers and volunteers do so as well.
VII. Laws Impacting Rescues and Foster Care
While rescue and foster care programs will first want to be licensed and second acquire animals to bring in to their care, there are also other considerations should be noted. Rescues and foster care programs may also face issues when handling the other areas of running their non-profit organizations. Rescues and foster care programs need to be aware of other laws concerning the sterilization and vaccination requirements, importing animals from across state lines, laws that limit the number of pets permitted on private property, zoning and nuisance laws, tethering restrictions, breed specific legislation, tort liability, and financial reimbursement when they are involved in aiding animals during criminal animal cruelty cases. In some states the laws that apply to dog owners will be applied exactly the same to rescue and foster groups. Texas for example will apply Dangerous Dog Laws and Cruelty laws to rescues groups just as they would to an individual because the laws are meant to affect not just the legal owner but also any possessor of the animal. Each state may apply the law differently, but below are some examples of considerations for rescue and foster care groups when it comes to complying with certain legal requirements.
A. Sterilization and Vaccination
In order to curb the pet overpopulation issue and decrease the amount of homeless animals, many state statutes require shelters and animal rescue organizations to sterilize all animals before they can be released for adoption. A majority of the states have a spaying and neutering requirement that applies to both shelters and other releasing agencies (see, Cynthia Hodges, Brief Summary of State Spay and Neuter Laws, Michigan State University: Animal Legal and Historical Center). One example is the Colorado Pet Animal Care Facilities Act, which requires either that the animal be sterilized by a licensed veterinarian before being released or that the adopter sign an agreement to have the animal sterilized within 90 days and pay a deposit fee to the shelter or rescue, which will be refunded upon receipt of proof that the sterilization procedure was completed (C.R.S. 35-80-106.4).
Texas has in place a similar sterilization statute. The code requires releasing agencies, which includes public and private pounds, shelters, and humane organizations, but not individual foster care homes, to sterilize the animal before adoption or have the new owner sign an agreement to sterilize an adult animal 30 days after the adoption (§§ 828.001 - 828.003). Although the definition of releasing agency does not explicitly state “rescue” the term “humane organization” would likely be interpreted to include rescues. The Texas Administrative Code also requires all animal custodians to vaccinate against rabies (§169.22). The term custodian refers to “[a] person or agency which feeds, shelters, harbors, owns, has possession or control of, or has the responsibility to control an animal” (§169.22(6)). This definition is broad enough to include not just dog owners and shelters, but also rescue organizations and foster care providers.
B. Importing Rescue Animals from Another State
When shelters are overcrowded and are forced to euthanize animals, some rescue groups will travel across state lines to pick up the animals from these high-kill shelters and transfer them to new rescue facilities or foster homes in other states. Concerns over this practice resulted in additional requirements for the rescue groups to comply with before the transfers can take place. Connecticut passed a law in 2011 to track how many animals are being imported into the state and to confirm that the animals being sold or adopted from out of state are healthy (Janice Podsada, Rescue Groups Decry New Animal Importation Law, The Hartford Courant, (July 14, 2011), available at http://articles.courant.com/2011-07-14/business/hc-dog-rescue-bill-protest-20110714_1_animal-rescue-rescue-groups-susan-linker). The law requires all animal importers, including rescue groups, to give the state a 10-day notice before bringing an animal into the state (Conn. Gen. Stat. § 22-344e). In addition to the health certificate required to import an animal into the state, once the animal arrives it must be seen by a Connecticut veterinarian within 48 hours of importation and must receive follow up examinations every 90 days until sold or adopted (Conn. Gen. Stat. § 22-344f). A violation in the law can lead the rescue group vulnerable to fines, therefore, it is important for rescue groups and foster care providers to be aware of these requirements to save financial resources and avoid unintentional fines.
In 2005, Massachusetts issued an emergency order in response to rescue groups importing animals from the south without proper medical care or quarantine (see, Emergency Order 1-AHO-05, (May 26, 2005), available at http://www.mass.gov/eea/agencies/agr/animal-health/shelter-and-rescue/). The order requires imported animals to have a health certificate from its place of origin, and then to immediately spend 48 hours in quarantine. After quarantine, the animals must be examined by a Massachusetts veterinarian and declared in good health, before they can be released to foster homes. The order also requires the maintenance of records. The state also proposed new regulations to codify the emergency order, however the regulations have not been enacted just yet, but if they pass, it again will require the out of state animals to have an Official Certificate of Veterinary Inspection issued within the thirty days prior to being imported (330 CMR 30.08(2)). Also, once the new animals arrive, they must be placed in isolation or quarantine for 48 hours (330 CMR 30.08(1)). The animal must then be examined again by a veterinarian and given a health certificate if free from illness. If the animal is sick, it must remain in quarantine. However, animals imported from other New England states or New York would be exempt for the isolation importation requirement (330 CMR 30.08(1)(g)). The regulations would serve a similar purpose as those in Connecticut. The hope is to reduce the spread of contagious disease to other animals and ensure that animals that are adopted out to new families first receive proper veterinary care before being released.
Whether or not the animal transport services done by rescues is actually helping the overall euthanasia and adoption rates remains to be seen, as figures and data connecting the dots is currently lacking (see, Ivy Collier, Rescue Transport – Does it help?, Humane Research Council, (June 24, 2014), http://spot.humaneresearch.org/content/rescue-transport-does-it-help). Despite the lack of data on the impact of animal transport services, rescues and foster groups that intend to transport animals from high-kill shelters across state lines to their no-kill rescue should be sure to have health certificates, rabies vaccination documents, and comply with any other requirements that their state law may specify before importing the animals.
C. Pet Limit Laws
Many cities and counties have pet limit ordinances. These laws limit how many animals a person can keep on their property. This can impact the work of rescue groups and foster care programs by limiting how many pets the volunteer members will be allowed to take in and care for until they are adopted. The pet limit laws are aimed at reducing animal hoarding and the accompanying neglect that the animals endure from hoarders. Pet limit laws are also likely implemented to help reduce noise and smells in neighborhood communities.
The constitutionality of these types of laws have been challenged in court (Holt v. City of Sauk Rapids, 559 N.W.2d 444, (Minn. Ct. App. 1997). In Sauk Rapids, Minnesota the city passed an ordinance limiting the number of dogs that could be kept per residential home (Id. at 444-445). Appellants were dog owners, breeders, and Ms. Holt, who also rescued Newfoundland dogs. Minnesota law granted the municipality the authority to regulate public and private property. The Sauk Rapids ordinance was passed to reduce dog odor and noise, accordingly the court found that there was a rational relationship between the ordinance and the problems caused by excessive dogs in residential homes (Id. at 446-447). The constitutionality was upheld as the ordinance was rationally related to the health, safety, and general welfare of the community. The court also noted that many other jurisdictions have upheld such ordinances.
In Gold Bar, Washington (an hour outside of Seattle) local ordinance § 6.02.019 provides limits on keeping foster pets. It states that an individual providing care on behalf of a licensed shelter may not shelter more than four dogs at a time. The ordinance also limits the length of time that a dog or cat may be considered a foster. At the end of six months the animal loses its identity as a foster, rescue, or placement animal and will be subject to licensing. In addition, if the individual or a facility provides care for four dogs for more than six continuous months than a private kennel license must be obtained.
Another example of a city ordinance that restricts the number of pets permitted on an individual’s property comes from Carrollton, Texas, just outside of Dallas. Municipal Code § 91.003A (1) prohibits the keeping of more than three pets on a property within the city limits (Garza v. State, 2007 Tex. App. LEXIS 8953). The ordinance was challenged in court by Garza, who was a member of a rescue organization that took in dogs and cats from shelters that were scheduled for euthanization. An animal control officer found 5 – 6 dogs on Garza’s property, which exceeded the three pet limit. She was cited with a violation of the ordinance, found guilty, and fined.
Garza attempted to appeal and argue that the code’s term “keep” was unconstitutionally vague. The court disagreed and found that the term keep, although not defined in the statute, is defined in the dictionary and is a term that has a meaning that is so well known a person of ordinary intelligence would understand. The word keep has a common sense, plain, ordinary meaning. Garza also attempted to argue for an exemption of necessity because the animals were to be euthanized; however, she failed to provide any evidence of when the euthanization was scheduled to occur therefore failing to provide the elements of a necessity defense.
While some locations will restrict the number of pets to just three or four, other states and cities may be more lenient on how many foster pets are permitted on an individual’s property. In Colorado, a foster home may keep up to eight dogs or cats at one time (8 C.C.R. 1201-11(18.00)(U)). In Virginia, a foster home may keep a maximum of 50 companion animals at one time (Va. Code Ann. § 3.2-6550). It is likely that the law is really aimed at rescue groups and is not meant to be a hoarding loophole. However, as these examples demonstrate, the regulations on how many pets may be kept at one time can vary by location, and some cities may have requirements that kick in depending on how long an animal is in foster care (i.e. the Gold Bar, Washington ordinance). Consequently, all rescue and foster care organizations should check their state and local ordinances for guidance and encourage all volunteer members to comply with the legal limitations.
D. Zoning and Nuisance Laws
Similar to pet limit laws, zoning laws and actions of private nuisance can be used to limit the number of animals that a homeowner can keep in residential areas. Zoning laws is an area of the law where it can be particularly important to understand how the organization is defined under the law. Mentioned above, some states may define what it means to be a kennel, shelter, rescue, or foster slightly differently and with different requirements. Some states may allow kennels only in areas zoned as “agricultural” while most states will likely allow fostering in “residential” zones but there may be limits on the number of animals that can be taken in. Rescue organizations will need to be sure that the land that is being used for their operations and facilities are zoned for that particular purpose. If the rescue is not set up in the right zoning area, the organization may be forced to move a large number of animals off the premises, which could be very stressful.
In addition, private nuisance is something to consider. When setting up facilities, rescues need to think about how the land will be used and how close the neighbors are to the buildings. Private nuisance is a legal action to redress harm arising from one person’s continuous use of his land, which indirectly interferes with another person’s use or enjoyment of his personal property. Landowners have a right to the reasonable comfort and convenience to occupy their own property. Conflicts can occur when rescue groups or foster homes house an excessive amount of animals on their property. The noise and smells can cause the neighbors to complain of the nuisance, for example if the noise and the smells are disturbing their sleep and their ability to enjoy and use their property.
In Larsen v. McDonald, twelve neighbors brought a private nuisance claim against another neighbor for keeping twenty dogs in a residential area of Des Moines, Iowa (Larsen v. McDonald, 212 N.W.2d 505, 507 (Iowa 1973)). Ms. McDonald rescued unwanted dogs and took them in. She provided food and shelter and attempted to place the dogs in new homes. At the time of trial there were 40 dogs on the property (Id. at 508). The neighbors had complained of frequent barking, which could be heard through closed windows and late at night. And despite the McDonalds efforts to clean up waste, the smell of urine could not be avoided. The McDonalds tried to argue that they had priority of location over the defendants but neighborhoods are amenable to change. The character of the neighborhood had changed to a residential zone and while many of the neighbors had dogs, none of them exceeded three dogs (Id. at 509). Operating a shelter or kennel style facility was inconsistent with the character of the neighborhood, and so the court found that the evidence in this case was sufficient to show a normal person would find the situation was a nuisance. The court upheld the lower court’s injunction to limit the McDonalds to owning only five dogs (Id. at 508-09).
A case such as this demonstrates that over time conditions in a neighborhood can change. Rescue and foster homes must be aware of the law and note that the circumstances in their neighborhood may change. While it is desirable to help as many animals as possible, the rights of neighbors nearby must also be taken into account to avoid conflict.
Rescue and foster volunteers should also be aware of tethering laws that control how an animal may or may not be permitted to be housed. Tethering is a practice of chaining or fastening a dog to a stationary object, such as a tree, fence, dog house, or stake to keep the animal under control in a yard space. Some states have enacted anti-tethering laws to limit the amount of time and the type of conditions under which a dog may be tethered. For example, Texas Health and Safety Code § 821.077 makes it unlawful to leave a dog unattended and to unreasonably restrain a dog on a chain or tether during the hours between 10 p.m. and 6 a.m. and when the temperature drops below 32 degrees Fahrenheit, when a heat advisory has been issued, and when a tropical storm, hurricane, or tornado warning have been issued.
Other states may have their own variations on anti-tethering laws (see the Table of State Tether Laws). Delaware law permits tethering a dog so long as certain requirements are met (See, 9 Del. Code § 904(d)(4)). The law requires that the tether be attached so that the dog does not become entangled with another object or physically touch with other dogs, and must allow the dog to use the full range of the tether. It must be a minimum of 10 feet in length and made of material not susceptible to being severed through chewing. The tether must also be attached to a well fitted collar so as not to cause trauma or injury. On the other hand, in other states such as California, the law prohibits tethering and only allow it under certain enumerated exceptions. (See, California Health and Safety Code § 122335). In Colorado, tethering is prohibited except when grooming a cat or dog (8 C.C.R. 1201-11(18.00)(I)). The use of a dog house with a chain for tethering the dog is also prohibited as an enclosure (8 C.C.R. 1201-11(18.00)(J)).
People wishing to work with rescues and foster care programs by offering their homes for the foster dogs should be sure to check what the limitations and exceptions are in their state and city laws. All rescue and foster care volunteers that may be considering tethering a dog in the yard during certain times should make sure they understand those limitations in the law. Volunteers should make sure they have the proper amount of space and proper type of housing available for the companion animals so that they can be in compliance with all laws and regulations.
F. Breed Specific Legislation (BSL)
Another issue rescue groups can face is the prohibition to own or keep certain breeds of dogs that are viewed as dangerous. This makes it difficult for private rescue groups to help save those breeds of dogs that the city council has labeled as vicious. For example, many cities prohibit the ownership of pit bulls. In Denver, Colorado municipal code § 8-55 (a) states that “[i]t shall be unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull.” This ordinance defines pit bull to include American Pit Bull Terriers, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog that displays a majority of the physical traits of those breeds (See, § 8-55(b)). According to the law, a private humane society registered and licensed by the city may only temporarily hold a pit bull until the city’s municipal animal shelter is contacted and either the animal is handed over to the shelter or the humane society receives permission to destroy the pit bull (See, § 8-55 (c)(3)).
Because of the breed restrictions, any rescue groups or foster homes that wish to take in American Pit Bulls and the associated breeds would need to operate outside of the Denver city limits. This can be difficult still because many surrounding cities also have restrictions that include licensing, pit bull fees, requirements for secured enclosures, microchips, muzzles, and $100,000 insurance policies (See, Aurora, Colorado ordinance § 14-75; Louisville, Colorado ordinance § 6.12.160; Commerce City, Colorado ordinance § 4-2011). These laws typically only offer exceptions for dogs travelling through the city, dogs that were licensed and living in the city prior to the legislation, or for dogs in exhibitions, such as dog contests or dog shows sponsored by a dog club association. The laws do not offer any explicitly stated exemptions for private foster homes or volunteer rescue groups; therefore, before starting a specific breed rescue organization or foster care program, the group should investigate if there are any local laws restricting the ownership of particular dog breeds that have been deemed to be vicious or dangerous.
G. Tort Liability
Many times rescue organizations and foster homes will take in stray dogs or dogs from dog-fighting rings. Little to no history may be available on the behavior and temperament of each dog. Many dogs may need rehabilitation and training but taking in these types of dogs could put a rescue organization and its members at risk should the dogs bite anyone. This is why it is important for rescues and foster groups to acquire liability insurance.
A case out of Maryland’s Court of Appeals two years ago, in Tracey v. Solesky, held that pit bull dogs owners and their landlords would be responsible for damage done by a tenant’s pit bull terriers. The court deemed the breed to be inherently dangerous (Tracey v. Solesky, 50 A.3d 1075, 1079-80 (Md. 2012)). The result to this ruling led to fewer adoptions of pit bulls from shelters, rescues, and fosters, as well as an increase in more pit bulls surrendered by their owners. Some pit bull foster families even faced eviction (Julie Kincaid, Rescues already feeling the impact of Breed Specific Legislation targeting pit bulls, Examiner, (May 10, 2012), http://www.examiner.com/article/rescues-already-feeling-impact-of-breed-specific-legislation-targeting-pit-bulls). Landlords did not want to rent properties to pit bull guardians and were telling tenants to get rid of their dogs (Becky Starr, Breed Discrimination Turning Around, Examiner, (May 15, 2014), http://www.examiner.com/article/breed-discrimination-turning-around). However, with the work of a coalition of shelters, rescue groups, animal welfare organizations, and rental housing providers, a compromise was recently reached to overturn the ruling; the advocates accomplished this with the passage of new legislation. The new law is breed-neutral, holding dog owner’s liable regardless of the type of dog that attacks and injures someone (Maryland Passes Breed Neutral Dog Bite Liability Legislation, Reverses Tracey v. Solesky Decision, The Humane Society of the United States, (April 3, 2014), http://www.humanesociety.org/news/press_releases/2014/04/md_neutral_dog_bite_law_040314.html?credit=web_id80919688). This type of breed-neutral law ensures that dog owners, including rescues and foster care providers, will be treated equally under the law regardless of which type of dog they own, rescue, and re-home.
Regardless of the type of dogs that a rescue works with there can be liability and consequences for violating local ordinances. For example, Christina Francis was operating a non-profit rescue in Indianapolis called Luv-A-Dog. In 2010 she had adopted out 190 dogs (Francis v. City of Indianapolis, 2011 Ind. App. Unpub. LEXIS 1605, 1 (Ind. Ct. App. 2011)). She has indoor and outdoor enclosures that had reinforced five and six foot fences. However, one dog managed to escape, possibly by climbing over the fence. The dog was discovered in the neighbor’s yard in some brush, trying to lunge and run, barking and aggressively growling. Francis was found to be in violation of the local ordinance for having a dog at large in the city that was approaching a person in a menacing manner (Id. 2 – 4).
The statute is applied with strict liability, meaning that even if she did not intend for the dog to get out, she is still in violation of the law whenever the dog simply is at large. In addition, the court did not believe that her conduct was wholly passive as she voluntarily ran the rescue facility, took in certain dogs, housed them, and apparently had inadequate fencing on this occasion (Id. 4 – 7). The court notes that although she had done good work for stray dogs in the city, the violation resulted in regulatory restrictions; she had to dissolve her rescue operation and was no longer permitted to own or keep more than two dogs (Id. 13 – 15).
This case demonstrates that even if a rescue operator does not intend for someone to get hurt, or even if a dog escapes accidentally, liability and consequences may follow. A majority of states have strict liability dog bite statutes (36 states and D.C.) (see, Table of Dog Bite Strict Liability Statutes, Michigan State University: Animal Legal and Historical Center). These laws will likely apply to many rescues and fosters in various jurisdictions because the laws often broadly define the owner of a dog with one or more of these associated terms: one who keeps, possesses, harbors, or who is responsible for or exercises control over the dog. While many statutes broadly include “keepers” of dogs, some statutes may be more vague in whether or not a rescue or foster care provider would be a liable party for damages (see, Tennessee Code Ann. § 44-8-413(e)(1), which includes one who regularly harbors, keeps, or exercises control of a dog but excludes a person who temporarily harbors, keeps, or exerts control of the dog). It is crucial for rescue groups to check the state and local laws and understand how the law could be applied in these types of situations.
While a rescue and foster care provider in several states may be liable for any legal violations while they possess or harbor a dog, it is possible in some jurisdictions that they may not be liable for any issues that occur after the dog has been transferred or adopted out to a new family. At least one case out of Connecticut held that the rescue was not liable to the plaintiffs (Dutka v. Cassady, 2012 Conn. Super. LEXIS 1901). The “For the Love of Dogs – Rottweiler Rescue” had adopted out a dog to the defendants, the Cassady family. The family was in possession of the dog and while walking it unleashed in the neighborhood it attacked the plaintiff’s dog (Id. at 1). The plaintiff’s complaint alleged that the rescue agency should have known and should have warned of the dog’s dangerous and aggressive tendencies (Id. at 2-3). The Connecticut dog bite statute imposes strict liability to the “owner” or “keeper” of a dog. But the statute has not been expanded to include liability for the seller or transferor or such a dog (Id. at 3-4). The court also found at common law negligence that there is no duty of care arising from the knowledge of a dog’s dangerous propensities to warn the buyer of a dog (Id. at 4-6). A rescue organization may be liable in other factual circumstances but it will not be liable in common law negligence for harm caused by a dog that it did not own, possess, harbor, or control under the facts alleged in this case (Id. at 6).
While the above case demonstrates that in some situations there may not be liability for problems that arise from a dog after the rescue organization no longer owns the dog, however, rescue groups may still want to consider the ethical component of disclosing as much information as possible to potential adopters. Making sure that the organization and all volunteers abide by an ethical code of conduct when adopting out dogs or cats will help to ensure that the organization maintains a respected reputation in the community, with local shelters, law enforcement, and other rescue groups as well. Of course, when an animal is in rescue or foster care figuring out the age or exact breed of the animal may not be possible, but not letting someone know that the animal had an aggressive incident in the past will likely damage the rescue’s reputation and possibly cause the dog to end up back in a shelter (See, Vicki DeGruy, Ethical Issues Confront Purebred Rescue Groups, National Animal Interest Alliance, (June 30, 1998), available at http://www.naiaonline.org/articles/article/ethical-issues-confront-purebred-rescue-groups).
H. Reimbursement for Care in Cruelty Cases
When an animal rescue organization takes in sick animals from cruelty cases, they typically will need to provide the necessary health care. Some state statutes explicitly declare that a convicted defendant may be liable to those animal organizations that took custody and responsibility for the neglected animals and the costs incurred for their care. For example, Washington’s animal anti-cruelty statute says:
In addition to fines and court costs, the defendant, only if convicted or in agreement, shall be liable for reasonable costs incurred pursuant to this chapter by law enforcement agencies, animal care and control agencies, or authorized private or public entities involved with the care of the animals. Reasonable costs include expenses of the investigation, and the animal’s care, euthanization, or adoption (Wash. Rev. Code § 16.52.200(6)).
In an unpublished opinion, an Ohio court upheld a decision to grant a local humane society, various rescue groups, and individual volunteers the right to collect reimbursement costs for caring and providing for the welfare of over one hundred companion animals from a kennel operator found guilty of animal cruelty, (Lay v. Chamberlain, 2000 Ohio App. LEXIS 5783, (Ohio Ct. App., Madison County Dec. 11, 2000)). The dogs had been seized by court order and Ohio law gave statutory authority for “any person” to recover the necessary expenses of providing food, water, and attention to an animal that belongs to another person when it is necessary to protect the animal from neglect (Ohio Rev. Code Ann. § 1717.13). The court held that the term “any person” would extend to include any volunteers, rescue organization, or humane society (Lay v. Chamberlain, at 15).
Furthermore, rescue groups may be able to recover those health care costs from the defendant charged with animal cruelty even if the rescue group receives donations from the community. Restitution serves two goals: to restore the victims and to make the defendant pay for the crime caused (Mahan v. State, 51 P.3d 962, 968-69, (Alaska App. 2002)). In Mahan v. State, the defendant had over 130 animals that were ill and not adequately cared for. Alaska Equine Rescue and Alaskan State Troopers removed the animals and placed them in foster care homes. Mahan was convicted and attempted to appeal the conviction and certain aspects of the sentence (Id. at 963-64).
Mahan wished to reduce the costs owed to the rescue because members of the community had made monetary donations. The Alaskan Court of Appeals affirmed the district court and held that a defendant that is ordered to pay restitution should not receive a credit simply because sympathetic volunteers donated to a victim (Id. at 969-70). The court held that when a victim receives money from a third party, whether it is from an insurance company or donations from the public, the defendant should not receive a credit or an offset for their restitution obligation (Id.).
While some states require rescues and foster care providers to be licensed and regulated under state and local laws, each of those states and cities may have slight variations on what is specifically required. However, a majority of the states have not created regulatory regimes that specifically define rescue organizations or foster homes separately from shelters and kennels. In many states, rescues will be lumped into the legislation along with shelters and kennels instead of recognizing the nuanced differences between these types of organizations. Foster care is usually less regulated than rescues and often monitored by the shelters, which have few resources to begin with. Many issues with rescue and foster care do not surface unless someone files a complaint with authorities. Although there are not many laws directly covering the regulation of rescues and foster homes, volunteers should pay attention to the broader laws that can apply and take note of changing trends in the law. In areas where the law covering rescue and foster groups is unclear, if a state or local government provides new definitions and new licensing schemes in the future, it will likely include annual fees, record-keeping requirements, and possible inspections for rescue groups and foster care providers.
In addition to those laws covering licensing, these types of organizations and their volunteers should also be aware of many other laws that could impact their daily operations as a non-profit. For example, rescues and fosters should understand their state and local legal framework concerning the ownership of the animals, sterilization and vaccination requirements, importing animals from across state lines, laws that limit the number of pets permitted on private property, zoning and nuisance laws, tethering restrictions, breed specific legislation, tort liability, and financial reimbursement when they are involved in aiding animals during criminal animal cruelty cases. Many of the issues with rescues, foster care, adoptions, and animal custody are new areas of the law with few cases available and the laws are always subject to future changes. Therefore, a non-profit organization looking to develop its policies and procedures may want to consult with a local animal law attorney to ensure they are fully in compliance with the laws and are adequately minimizing the risks and liability associated with working with animals.