Saturday, July 14, 2012

Title 9 - The Hot Potato Nobody Wants

As we near the end of week 2 on our chaotic journey without dog control, our laws continue to be interpreted by one of our Kent County Levy Court Commissioners in such a way that he and his entourage could actually endanger future prosecutions under this title by their public argument over the intention of the law.

Below is just a reiteration of the laws in question from my last post.

Title 9 - Counties - Chapter 9 Dog Control 
(Safe Haven is the current vendor for Kent County, contract believed to be $830,000 a year)
§ 904. Specifications for the humane handling, care and treatment of dogs.
(3) Shelter from sunlight. -- In addition to the shelter structure, 1 or more separate outside areas of shade shall be provided to allow the dogs to protect themselves when sunlight is likely to cause overheating or discomfort.

Title 11 - Criminal Code - Cruelty To Animals  
(Kent County SPCA & Delawrare SPCA are authorized by state to investigate - Unpaid)
§ 1325. Cruelty to animals; class A misdemeanor; class F felony.
(5) "Cruel neglect" includes neglect of an animal, which is under the care and control of the neglector, whereby pain or suffering is caused to the animal or abandonment of any domesticated animal by its owner or custodian. By way of example, cruel neglect shall also include allowing an animal to live in unsanitary conditions, such as keeping an animal where the animal's own excrement is not removed from the animal's living area and/or other living conditions which are injurious to the animal's health.

(6) "Cruelty to animals" includes mistreatment of any animal or neglect of any animal under the care and control of the neglector, whereby unnecessary or unjustifiable physical pain or suffering is caused. By way of example this includes: Unjustifiable beating of an animal; overworking an animal; tormenting an animal; abandonment of an animal; failure to feed properly or give proper shelter or veterinary care to an animal.

Commissioner Sweeney's Letter To The Editor

In a recent letter to the editor, Commission Jody Sweeney now argues that Title 9 Chapter  § 904. Specifications for the humane handling, care and treatment of dogs, is only applicable to commercial shelters and kennels.  
"This code gives the county or its appointees the authority to pick up dangerous dogs and at-large dogs, and to investigate commercial shelters and kennels, NOT YOUR HOME! Safe Haven was not completely ready to assume the dog-control function, so, the county had to reduce our required coverage to dangerous dogs and injured strays for a short period of time." - Commissioner Sweeney
The caps you see are the way it was written on the letter posted, so I guess he really means it.  I don't know where he obtained his legal opinion from, but the following was posted on the new Facebook page setup by the group of complainers mentioned in a previous post that he has been working with, and he has also Facebook Liked the page.   
"Everyone is entitled to their opinion - but feelings and facts do not always agree. For those that are still open-minded - if you haven't already, go online to the Delaware Code and read it for yourself. The authority given to the DE SPCA and KCSPCA for animal cruelty in Title 3 is NOT connected in anyway to Title 9 and/or contracts. I have heard from 2 separate sources - one a lawyer, the other experienced in this field - that Title 9 Para. 904 IS referring to Para. 903 - NOT private homes. A contract for dog control does NOT affect the authority given by the State for animal cruelty, rabies compliance and animal to human bite investigations and enforcement." - Kent County Dog Control Pro/Con Facebook Admin
If you watched the commission meeting referenced on that previous post, it's pretty clear that there weren't any Clarence Darrow's in the bunch.  Now granted, I'm not an attorney, but I think there is enough documentation to say otherwise.

The Issues With Their Argument

If you look at Title 9, the paragraphs are clearly separate subjects.  If § 904 was intended to apply to § 903, then it would have been included within § 903.  
§ 901. Definitions.
§ 902. Fees for dog and kennel licenses; terms.
§ 903. Inspections of facilities and premises; suspension of kennel or retail dog dealer license.
§ 904. Specifications for the humane handling, care and treatment of dogs.
§ 905. Licensing agents; bond requirements; service charge; negotiations.
§ 906. Reciprocity of dog license.
§ 907. Rules and regulations.
§ 908. Dogs running at large.
§ 909. Destruction of muskrat dens, poultry or livestock.
§ 911. Injuring or killing dogs for certain acts.
§ 912. Poisoning of dogs.
§ 913. Liability of dog owner for damages.
§ 914. Impounding of dog running at large.
§ 915. Penalties; fines.
§ 916. Unauthorized acts against a service dog; penalties.
§ 917. County dog law management.
§ 918. Rules and regulations.
As I've stated previously, there is overlap on some of these laws with Cruelty laws under Title 11.  But clearly dog control is the first line of defense in these cases.  Especially since the Title 11 cruelty investigations are not funded by the state or county government.  I think we would all agree that  § 912. Poisoning of dogs is another item that could be interpreted as cruelty, but it can also be just stupidity and negligence which would not necessarily constitute a cruelty conviction. And waiting for simple negligence to become outright cruelty is just ludicrous.

I don't know who this group's "one a lawyer, the other experienced in this field" were, but considering the attorneys that we've seen dealing with animal law here, I certainly haven't been impressed.  Remember, CAPA was written by an attorney with only one section that contains any enforcement, and another attorney who leads the "no-kill" movement referred to our CAPA as "the most sweeping, progressive companion animal protection legislation in the United States", despite the fact that it lacked enforcement.  

For clarification from our own legislature, one merely needs to look at the synopsis of that years tether bill amendment that was nixed when some counties had the sense to realize that the enforcement of this would cost counties even more.  The section being amended was clearly noted as applying to "persons", so Commissioners Sweeney might find our legislative records a little more informative than his crew.
This bill amends the minimum standards set forth in Chapter 9, Title 9 of the Delaware Code with respect to the primary enclosures and tethering of dogs.  The bill establishes a formula for calculating the proper enclosure size for housing a dog in lieu of the current provision, which requires consultation of the Code of Federal Regulations.  It also clarifies when the space requirements and limitations do not apply.  The bill further establishes more detailed requirements for persons who tether their dogs, including a prohibition on tethering of dogs under 4 months of age and a prohibition of tethering any dog between the hours of 11:00 p.m. and 6:00 a.m., unless it is only for a period of less than fifteen minutes.
Why Is This Argument Dangerous?

By arguing that § 904 (Humane Care) only applies to kennels and commercial facilities, Commissioner Sweeney and his cohorts are providing the abusers with a possible legal argument against the the few laws that we currently have in place to protect dogs.  For example, there is no other code that dictates the size of a tether or cage size, so it those laws become null and void over this ridiculous game of hot potato, because the county does not want to accept it's responsibility under the current laws, then they also need to take responsibility for the next animal that is tied to a 2 foot chain, or crammed into a cage that it can barely move in.
Cruelty Investigations Are Not Mandated or Obligated

Here is another point that this new complainer group clearly has wrong.
"The KCSPCA is still empowered and arguably obligated to investigate cruelty complaints, the correct department for wildlife is DNREC, and errant livestock should be referred to Delaware State Police." Kent County Dog Control Pro/Con Facebook Admin
The state empowering an organization does not amount to mandating or obligating an organization to provide manpower that the shelter pays to investigate cruelty in every case.  While I believe Kent County SPCA will continue to handle cruelty investigations, dog control is still the first line of defense.  Animal cruelty is always difficult to prove, and that's why the dog control investigation portion must first be undertaken to establish whether there is sufficient cause to proceed with cruelty charges.  By attempting to argue away the counties responsibility under the law for the humane care portion of Title 9, the county is the one who is negligent.  CAPA and the games surrounding it caused a substantial loss for Kent County SPCA, and the only way they remain a viable entity is to use their resources wisely.  Clearly that is not by covering the shortcomings due to the counties decision to contract with a vendor that was not ready to take on the task.

Kent County Should Provide Residents With A Realistic Timetable

The fact that Safe Haven posted the following on their Facebook page does not instill confidence that Kent County residents will have full dog control services within the 2-3 weeks listed on the county website.
"Safe Haven is holding a job fair at the Kent County Levy Court on Tuesday, July 17 from 11 am to 6 pm. Please call 302-856-6460 with questions." - Safe Haven No-Kill Animal Sanctuary Facebook
Obviously the staff hired will still need to be trained, and I can't imagine that Safe Haven will be able to go through resumes, hire, wait for the person to give their 2 weeks notice, and train them in 4 days to be ready by July 21st.  So unless there is a time machine involved, the commission and county administrator should provide residents with updates on their news section.  Residents have every right to know, especially since our tax dollars are paying for staffing levels that don't exist yet.  Residents also have a right to know whether the county intends to hold it's current vendor to the same requirements under Title 9 that Kent County SPCA previously provided, include the humane care section.  If that section is not going to be handled by the new vendor Safe Haven, then clearly the cost savings did not justify the emergency procurement process.

Onto Week 3.  Let's hope the game of hot potato ends soon for the sake of the animals.  It's shameful that state leadership is underground in the bunker avoiding the battle, especially since they led us into the shelter wars.