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«THE BIG BOOK OF WOOF TABLE OF CONTENTS ABOUT THIS HANDBOOK INTRODUCTION CHAPTERS I. DOG IMMUNIZATION AND LICENSING IMMUNIZATION LICENSING 1. ...»

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Options for what measures the selectboard can order or impose upon the owner or keeper of the dog in its protective order include that the dog be “disposed of in a humane way, muzzled, chained, or confined.” These, however, are not the selectboard’s only choices, for the law uses the phrase “without limitation.” These measures are only examples meant to illustrate what actions may be appropriate, not an exhaustive list. All of the legislature’s examples have one thing in common: the punishment is to the dog (humanely destroying it, or restricting its ability to interact), and not a punishment of the owner’s behavior. Speaking generally to these types of laws, Dr. Randall Lockwood, Senior Vice President for Anti-Cruelty Initiatives and Legislative Services for The American Society for the Prevention of Cruelty to Animals (ASPCA) commented that “existing laws tend to ignore the needs of the animals and place the burden of punishment on the animals, rather than on the irresponsible owners who are ultimately responsible for the problems caused by their pets.”26 What’s worse than imposing an inequitable sanction is imposing one that is ineffectual or even detrimental to the public’s safety.

An owner who fails to understand how or refuses to take responsibility for his or her dog is unlikely to do so in the future when he or she comes into possession of another dog that does not fall under the previous dog’s protective order. Moreover, some so-called remedies actually do more harm than good.27 Numerous attacks on people by tethered dogs have been documented.

Tragically, the victims of such attacks are often children who are unaware of the chained dog’s presence until it is too late. Furthermore, a tethered dog that finally does escape from its chain may remain aggressive, and is likely to chase and attack any unsuspecting passersby or pet. This certainly supports why the U.S. Department of Health, Centers for Disease Control, found that Id at 105.

Girgen, at 131.

For example, ordering that a dog be chained at all times in response to a complaint that the animal is running off its owner’s property and biting people is at first glance an eminently rationale response. After all, if the dog is chained, it can’t escape its owner’s property and can’t bite someone. The problem comes in what chaining does to a dog. Dogs are social, intelligent, animals that crave interaction and stimulation to be happy and healthy. Chaining a dog for prolonged periods of time elevates its abnormal aggressive behavior by forcing it to revert to instinctive or even neurotic behavior due to lack of socialization and territorialism (both major reasons why dogs attack in the first place). According to The Humane Society of the United States, “(d)ogs feel naturally protective of their territory;

when confronted with a perceived threat, they respond according to their fight-or-flight instinct. A chained dog, unable to take flight, often feels forced to fight, attacking any unfamiliar animal or person who unwittingly wanders into his or her territory.”

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According to Vermont’s animal cruelty law, “[a] dog chained to a shelter must be on a tether chain at least four times the length of the dog as measured from the tip of its nose to the base of its tail, and shall allow the dog access to the shelter.” 13 V.S.A. § 365(f). If your order includes restricting the dog’s movement, The Humane Society of the United States (HSUS) recommends that you keep the dog indoors. If it must be outside, you should place it in a well fenced yard or a pen of suitable square footage which includes access to shelter from the elements. If chaining or tethering is absolutely necessary, HSUS recommends instead using a pulley run, which is a long line to which the dog’s leash is attached. You might also consider enabling legislation from states like Massachusetts that are following an emerging trend in dog control by putting the responsibility where it rightly belongs: on the owner.29 Fortunately, the Vermont Legislature had the foresight to recognize that the examples of enforcement that it provided may change over time and not effectively protect the public. It did this by enabling you to enact protective measures “without limitation.” Unfortunately, when specific examples aren’t provided, they tend to be out-of-sight and out-of-mind, meaning that most towns simply impose sanctions that are expressly referenced by the legislature. This is where there is an opportunity for you to use some imagination when issuing a protective

measure, such as:

1. Ordering an unaltered dog to be neutered, unless a veterinarian deems the animal unfit due to a medical condition. Most dog attacks are perpetrated by unaltered dogs.

2. Requiring the owner to successfully complete a responsible dog owner course. Oftentimes, the aggressiveness a dog demonstrates is attributable to irresponsible ownership.

3. Requiring the dog to successfully complete the American Kennel Club’s “Canine Good Citizen Program.” This program – which promotes responsible dog ownership and well mannered dogs that are accepting of friendly strangers, interact positively with other dogs, and react appropriately in public – is recognized by the Vermont Legislature in Joint Resolution No. R053 in the 2009-2010 Legislative Session.





4. Requiring that the owner provide proof of an adequate amount of insurance (say, $100,000) to protect the owner against any loss, damage or injury to persons, domestic animals and pets, or property resulting from the acts of its dog.

Having found that a dog bit someone without provocation is not sufficient justification to order its humane disposal, though such an order may be appropriate and necessary if the circumstances Little Rock, Arkansas, which has had a vicious dog problem, prohibits the tethering of dogs to a stationary object, legislation that it credits in part to reducing vicious dog attacks by half.

Originally, issues such as these were left to the courts; they were civil suits between private parties addressed by application of negligence theories of the common law. The elements of negligence include (1) a duty of care, (2) breach of that duty, and (3) damages. Absence a duty of care, an action in negligence will fail. Here the duty of care rests with the owner or keeper of the dog, not the town, as it is the owner who is responsible for properly restraining his or her dog. A duty of care derives from the idea that is the party in control who can best protect against harm.

This emerging trend in dog control recognizes that unless this responsibility is returned to the owner, then a town’s costs in enforcing against repeat offenders will continue to spiral out of control.

VLCT Big Book of Woof, May 2014 Page 35 of your hearing call for it. Ordering a dog to be humanely destroyed is the easiest and surest solution to preventing the animal from posing any threat to the public, but it’s also overly relied upon. Massachusetts and other states now recognize that the best way to control dogs is to impose responsibility upon their owners. A refusal to, for example, commit to a responsible dog ownership class, is indicative of a lack of commitment to their dog and, hence, to their neighbors and their community. That is why your order should condition relinquishment of their property interest in their dog upon satisfactory proof of completion of the conditions you impose.

Requiring dog owners to exercise the duty of care that they should have exercised from the beginning will make them more mindful of their responsibilities now and in the future.

THE APPEAL

Vermont’s vicious dog law is silent as to appeals from vicious dog hearings, so any appeal of a selectboard’s decision may be brought in superior court. “Any action or failure or refusal to act by an agency of the state or a political subdivision thereof, including any department, board, commission, or officer, that is not appealable under Rule 74 may be reviewed in accordance with this rule if such review is otherwise available by law.” Vermont Rules of Civil Procedure (V.R.C.P.) Rule 75. This is the process of appeal for any decision of “an agency of the state or a political subdivision thereof, including any department, board, commission, or officer” when there is no statutory appeal process. When no time limit is specified by statute, “the complaint shall be filed [with the Court] within 30 days after notice of any action or refusal to act of which review is sought... and, in the event of a failure to act, within six months after expiration of the time in which action should reasonably have occurred.” V.R.C.P. 75(c). If a timely appeal is filed, the superior court for the town’s county will conduct what is called a “de novo” trial. At a de novo (which is Latin for “anew”) hearing, the court will take evidence, make findings and conclusions, and essentially proceed as if the selectboard’s hearing had not been previously heard and decided. The court may “affirm, reverse, or modify” the selectboard’s decision.

V.R.C.P. Rule 75(d). Until that time, any decision and/or protective order rendered by the selectboard will remain in force and effect unless a motion to stay (i.e., a suspension of the selectboard’s decision) is granted by the court. V.R.C.P. Rule 75(c). If the selectboard receives a complaint seeking an appeal of its decision, it should seek legal help from its attorney.

FAILURE TO COMPLY WITH THE PROTECTIVE ORDER

But what happens if the selectboard issues a protective order, no appeal is filed, and the dog owner fails to comply with the order’s terms? The governing law states that “[a] person who, after receiving notice, fails to comply with the terms of the order shall be subject to the penalties provided in Section 3550 of this chapter.” 20 V.S.A. § 3546(c). Title 20, Section 3550 is a little used provision of state law which provides a self-executing enforcement mechanism for violations of state licensing and inoculation laws, as well as municipal ordinances that regulate the “keeping, leashing, muzzling, restraint, impoundment, and destruction of domestic pets or wolf-hybrids and their running at large...” 20 V.S.A. § 3549. Typically, towns opt to follow the enforcement provisions in their own ordinances rather than the complex and time-consuming process laid out in 20 V.S.A. § 3550 for determining the civil penalty to be issued against the violator. Since the protective order already sets forth the necessary remedial action to protect public safety, the only provision of 20 V.S.A. § 3550 that is applicable when an order is not followed is 20 V.S.A. § 3550(j), which provides that on “application of a municipality or the commissioner, the superior court shall have jurisdiction to enjoin the violation of any provision VLCT Big Book of Woof, May 2014 Page 36 of this chapter. The court may also authorize the seizure and disposition of domestic pets or wolf-hybrids when owners refuse to have the pets or wolf-hybrids inoculated or licensed, or when the court determines that there is a threat to the public welfare.” Selectboards should work closely with their town attorneys if they are considering bringing an enforcement action in superior court.

VOTER ENABLED ORDINANCE

There is one alternative to the vicious dog hearing: the voters, at a duly warned special or annual town meeting, may authorize the selectboard to adopt or amend its dog control ordinance to lay out a different process. 20 V.S.A. § 3546(e). This section of the statute, which was added in 2007, represents one of the few instances in Vermont law in which voters must first empower its selectboard to adopt or amend an ordinance. If the voters do vest this authority with its selectboard, that selectboard is under no obligation to act upon that authorization. On the other hand, if a selectboard wanted to take a different approach to handling vicious dog hearings, it would have to first seek approval from its voters to do so. What makes this section particularly puzzling is that the voters would still retain their authority to file a petition for permissive referendum with the selectboard to override the selectboard’s action... as if things weren’t already confusing enough.

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