HB204 - POUND SPONSORED LEGISLATION

SPONSOR: Rep. Lynn & Sen. PetersonReps. Bennett, Bolden, Keeley, Kowalko, K. Williams

HOUSE OF REPRESENTATIVES148th GENERAL ASSEMBLY

HOUSE BILL NO. 204

AN ACT TO AMEND TITLES 3 AND 11 OF THE DELAWARE CODE RELATING TO ANIMAL CRUELTY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend 7905, Title 3 of the Delaware Code by making deletions as shown by strike through and insertions

as shown by underline as follows and redesignate accordingly:

7905 Impoundment.

(a) Any agent in Sussex and New Castle Counties of this State, so appointed by the Delaware Society for the

Prevention of Cruelty to Animals, or in Kent County of this State, so appointed by the Kent County Society for the Prevention

of Cruelty to Animals, or any law enforcement officer as defined in 222 of Title 11, may, in instances of an alleged acts act of

animal cruelty or fighting or baiting, and as provided for by the laws of Delaware relating to seizure of property, impound in the

appropriate S.P.C.A. shelter or, if required, in an appropriate veterinarian facility, any animal subjected to cruel mistreatment or

cruel neglect or other cruelty to an animal, including fighting or baiting, and any other animal of the same owner or custodian.

Should the owner or custodian of an animal not be available at or near the premises where the animal is located, upon taking an

animal under this section the agent shall leave in an appropriate place written notice to the animal's owner or custodian of such

action. Societies for the prevention of cruelty to animals shall take all reasonable action to insure ensure that owners or

custodians of an animal, impounded under this section, shall have received notice of such action as soon as possible and no later

than 24 hours after the impoundment.

(b) An animal impounded under this section shall not remain in the custody of the appropriate Society for the

Prevention of Cruelty to Animals longer than 48 hours unless in the meantime a legal proceeding, civil or criminal, shall be

instituted with respect to that animal or any other under common ownership or custody in the appropriate court under an

applicable animal cruelty law or under section 1325 or section 1326 of Title 11 of the Delaware Code and shall be returned to its

owner or custodian unless a complaint is filed within the 48-hour period in the appropriate court under the animal cruelty laws

against the owner or custodian, except that upon good cause shown a court may permit a reasonable extension of the 48-hour

period not to exceed 30 days upon a showing of need for animal protection while investigation continues in anticipation of a

legal proceeding. The period of 48 hours in this subsection shall not include any time on days when the civil courts in Delaware

are not open for the transaction of business. After a legal proceeding shall be instituted under an applicable cruelty law or under

Title 11 of the Delaware Code, 1325 or 1326, suchWhen a complaint is filed in the appropriate court, the impounded animal

http://legis.delaware.gov/LIS/lis148.nsf/vwLegislation/HB+204/...

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shall remain in the custody of the appropriate Society for the Prevention of Cruelty to Animals pending the outcome of the

action and exhaustion of appeals. If the owner or custodian is found to be in violation of the animal cruelty laws the court shall

make a final determination as to the disposition of the animalshall be determined in such legal proceeding with respect to that

animal to have committed cruelty to an animal contrary to an applicable animal cruelty law, civil or criminal, of this jurisdiction

or any equivalent civil or criminal animal cruelty law of another jurisdiction or a violation of 1325 or 1326 of Title 11 of the

Delaware Code, the court in such legal proceeding shall make a final determination as to the disposition of the impounded

animal such as may be required by the applicable statute and such as will provide reasonable assurance against the possibility of

any future cruelty to or mistreatment of that animal. Should the complaint all such legal proceedings be withdrawn, prior to final

judgment in a court hearing, the animal shall be immediately made available to its owner or custodian.

(c) In any civil action under this chapter alleging that cruelty to an animal has been committed by the owner or

custodian of any impounded animal, or in any criminal action under 1325 or 1326 of Title 11 with respect to an impounded

animal, if a court determines that, at the time that animal was impounded, probable cause existed to believe that the animal had

been subjected to cruelty to an animal or that an animal fighting or baiting law had been violated by the owner or custodian of

the impounded animalUpon a determination that probable cause exists to believe that the animal cruelty or animal fighting laws

have been violated by the owner or custodian of any impounded animal, the State and/or the appropriate Society for the

Prevention of Cruelty to Animals or both shall have the right to recover the costs of holding and caring for any animal

impounded under this section from the owner or custodian of the animal for that animal and all others of that owner or custodian

impounded under this section, notwithstanding the final disposition of the civil or criminal matter. Upon a determination in such

a civil or criminal action that probable cause did not exist at the time of impoundment to believe that the animal cruelty or

animal fighting or baiting laws had been violated by the owner or custodian, there shall be no right to recover from the owner or

custodian the costs of holding and caring for any animal impounded under this section. Upon impoundment, the State or

appropriate Society for the Prevention of Cruelty to Animals shall submit a detailed billing to the owner or custodian of the

animal, listing the monthly costs of boarding, evaluation, veterinary and other costs associated with care. Notwithstanding any

provision of this section or any other law to the contrary, failure of the animal's owner or custodian to pay these costs within 30

days of the receipt of a detailed monthly billing will result in ownership of the animal reverting to the State or to the appropriate

Society for the Prevention of Cruelty to Animals (S.P.C.A.). The provisions of this subsection shall be applicable

notwithstanding the final disposition of the criminal charges or civil proceeding.

(d) An owner or custodian of an animal impounded under this section who is found guilty of cruelty to the animal, and

the court orders the animal returned to such owner or custodian, shall, prior to taking the animal, reimburse the appropriate

Society for the Prevention of Cruelty to Animals its regular standard fees charged for the care of animals while in the Society's

custody plus any veterinary fees incurred for the animal during the period of impoundment. Failure of the animal's owner or

custodian to pay such fees within 5 days 7 days after a finding of guilty will result in ownership of the animal reverting to the

appropriate S.P.C.A... The S.P.C.A. may then dispose of the animal in accord with its procedures for such disposition.

(e) Should an animal which has been impounded under this section expire while in the custody of the Society for the


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Prevention of Cruelty to Animals, the animal shall, as soon as possible, be turned over to the State Veterinarian at the

Department of Agriculture. The State Veterinarian shall take whatever action necessary, including autopsy if required, to

determine cause of the animal's death and shall record such cause. The cause of death shall, if requested, be furnished to the

animal's owner and to the court handling the complaint relative to the animal. Disposition of the animal's remains shall be

coordinated with the animal's owner and, provided a complaint has been filed, with the court handling the complaint.

Section 2. Amend Chapter 79, Title 3 of the Delaware Code adding a new 7908 by making deletions as shown by

strike through and insertions as shown by underline as follows and redesignating accordingly:

7908. Cruelty to an animal; civil action.

(a) For the purpose of this section, the following words and phrases shall include, but not be limited to, the meanings

respectively ascribed to them as follows:

(1) "Abandonment" includes completely forsaking or deserting an animal originally under one's ownership or

custody or care without making reasonable arrangements for care and custody of that animal, including its proper

feeding and watering, to be assumed by another person. Abandonment shall not include releasing cats after

participation in the Trap, Neuter and Release Program.

(2) "Animal" shall not include any fish, crustacean, or molluska.

(3) "Cruel" includes every act or omission to act whereby unnecessary or unjustifiable physical pain or

suffering is caused or permitted.

(4) "Cruel mistreatment" includes any treatment whereby unnecessary or unjustifiable physical pain or

suffering or serious injury is caused or permitted.

(5) "Cruel neglect" includes abandonment or neglect of an animal which is under the ownership or custody or

care or control of the neglector, whereby the neglector fails to feed the animal properly or to give proper shelter or

proper veterinary care to the animal or whereby pain or suffering is caused to the animal. 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 or secretion is not removed from the animal or its living area and/or other living conditions

which are injurious to the animal's health.

(6) "Cruelty to an animal" includes cruel mistreatment of any animal or cruel neglect of any animal under the

ownership or care or custody or control of the neglector, whereby unnecessary or unjustifiable physical pain or

suffering is likely caused. By way of example this includes: Unjustifiable beating of an animal; overworking an animal;

tormenting an animal; abandonment of an animal; tethering of a dog for 18 hours or more in any 24-hour period, except

on land owned or leased by the dog's owner that is not less than 10 acres; tethering any dog for any amount of time if

the dog is under 4 months of age or is a nursing mother while the offspring are present, except on land owned or leased

by the dog's owner that is not less than 10 acres; failure to feed properly or give proper shelter or veterinary care to an

animal; owning, possessing, keeping, training, or using a bull, bear, dog, cock, or other animal or fowl for the purpose

of fighting or baiting; being a party to or who causing the fighting or baiting of a bull, bear, dog, cock, or other animal


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or fowl; or cruel mistreatment or cruel neglect of any animal found in Delaware, where such mistreatment or neglect

occurred, partly or wholly, in another state under that other states equivalent civil or criminal cruelty to animals laws,

or under federal law; or killing or injuring any animal belonging to another person without legal privilege or consent of

the owner.

(7) "Custody" includes the responsibility for the welfare of an animal subject to one's care or control whether

one owns it or not.

(8) "Person" includes any individual, partnership, corporation or association living and/or doing business in

the State.

(9) "Proper feed" includes providing each animal with daily food and water of sufficient quality and quantity

to prevent unnecessary or unjustifiable physical pain or suffering by the animal.

(10) "Proper shelter" includes providing each animal with adequate shelter from the weather elements as

required to prevent unnecessary or unjustifiable physical pain or suffering by the animal.

(11) "Proper veterinary care" includes providing each animal with veterinary care sufficient to prevent

unnecessary or unjustifiable physical pain or suffering by the animal.

(12) "Serious injury" shall include any injury to any animal which creates a substantial risk of death, or which

causes prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

(13) "Tethering" shall include fastening or restraining with a rope, chain, cord, or similar device creating a

fixed radius; tethering does not include walking a dog on a leash, regardless of the dog's age.

(b) A person engages in conduct within the meaning of this section, actionable as provided herein, when that person

engages in cruelty to an animal as described in subsection (a) of this section.

(c) A persons conduct also constitutes cruelty to an animal when the person cruelly or unnecessarily kills or injures

any animal whether belonging to the actor or another. This section does not, however, apply to the killing of any animal

normally or commonly raised as food for human consumption, provided that such killing is not cruel. A person acts

unnecessarily if the act is not required to terminate an animal's suffering, to protect the life or property of the actor or another

person or the life of another animal while being attacked, or if other means of disposing of an animal exist which would not

impair the health or well-being of that animal.

(d) A persons conduct also constitutes cruelty to an animal when the person captures, detains, transports, removes or

delivers any animal known to be a domestic farm animal, pet or companion animal, or any other animal of scientific,

environmental, economic or cultural value, under false pretenses to any public or private animal shelter, veterinary clinic or

other facility, or otherwise causes the same through acts of deception or misrepresentation of the circumstances and disposition

of any such animal.

(e) The provisions of this section are inapplicable to accepted veterinary practices and activities carried on for scientific

research.

(f) Notwithstanding any provision to the contrary, for a first violation of this section relating solely to the tethering of


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dogs, a warning shall be issued.

(g) This section shall not apply to the lawful hunting or trapping of animals as provided by law.

(h) Conditioned upon the receipt of written confirmation by the Delaware Department of Justice that no criminal

prosecution is contemplated, or that criminal prosecution has concluded, regarding a particular incident, the Delaware Society

for the Prevention of Cruelty to Animals and the Kent County Society for the Prevention of Cruelty to Animals are each

empowered to institute as plaintiff a civil action against any person who engages in conduct constituting cruelty to an animal

within the meaning of this section. Any such civil action may be instituted and maintained in the name of such plaintiff by one

of its authorized employees, including its president, executive director, one of its animal control or enforcement officers, or its

Delaware licensed attorney, except that any appellate proceedings may be maintained only by its Delaware licensed attorney.

The findings, orders and judgments of the court in any such civil action, both at the trial level and at the appellate level, shall be

deemed matters of public record. The written confirmation by the Department of Justice as set forth herein shall be a required

exhibit to any pleading that institutes a civil action for animal cruelty as authorized by this section.

(i) A person found to have engaged in cruelty to an animal within the meaning of this section shall be liable to the

plaintiff in such civil action for liquidated damages of $2,500 to cover its litigation costs, and such award shall be reduced to a

money judgment; the prevailing party shall be awarded its court costs.

(j) A person found to have engaged in cruelty to an animal within the meaning of this section shall forfeit ownership

and possession of the animal that was victim of the cruelty, and the Court may order forfeiture of any other animal owned by or

in the custody of such person where such forfeiture shall be found to be reasonable and necessary to protect it against future

such cruelty.

(k) Any person who commits cruelty to an animal within the meaning of this section shall be prohibited from owning or

possessing or from having in such persons care or custody any animal for up to 5 years, except for animals grown, raised or

produced within the State for resale, or for sale of a product thereof, where the person has all necessary licenses for such sale or

resale, and receives at least 25 percent of the person's annual gross income from such sale or resale. Any person who commits a

second concurrent or subsequent act of cruelty to an animal within the meaning of this section shall be prohibited from owning

or possessing or from having in such persons care or custody any animal for an additional 5 years, without exception. Any

person who commits a third concurrent or subsequent act of cruelty to an animal within the meaning of this section shall be

prohibited permanently from owning or possessing or from having in such persons care or custody any animal, without

exception.

(l) Upon forfeiture of ownership or possession of any animal under this section, ownership and possession of such

animal shall be with the plaintiff in the civil action in which the forfeiture was ordered.

(m) Exclusive jurisdiction of civil actions under this section shall be in the Justice of the Peace Court, and a civil action

shall be filed in that county where any defendant is known to reside. For purposes of Delaware Supreme Court Rule 57, neither

the First State Animal Center nor an S.P.C.A. shall be deemed to be either an artificial entity or a public body. Where no

defendants identity or residence has been determined by the time suit is filed, the suit may be filed in any county where plaintiff


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maintains an animal shelter facility.

(n) There shall be a right of appeal to Court of Common Pleas, which shall be filed in the same county as the Justice of

the Peace Court entering the judgment from which appeal is taken. Where the alleged cruelty was committed against an animal

impounded in the care of the plaintiff or at its expense, the defendant taking an appeal shall be required to post a secured appeal

bond in an amount sufficient to cover all likely costs for boarding and veterinary fees from the first time of impound through the

duration of the appeal; and that requirement shall apply both to those costs for an impounded animal victimized by cruelty and

also to the costs for all other animals under the same ownership or care or custody and which were impounded in accordance

with 7905 of this title.

(o) A civil action under this section shall not bar a subsequent criminal proceeding based on the same facts, nor shall a

prior criminal proceeding bar a civil action under this section based on the same facts.

Section 3. Amend 1325(c), Title 11 of the Delaware Code by making deletions as shown by strike through and

insertions as shown by underline as follows:

1325 Cruelty to animals; class A misdemeanor; class F felony.

(c)(1) Any person convicted of a misdemeanor violation of this section shall be prohibited from owning or

possessing any animal for 5 years after said conviction, except for animals grown, raised or produced within the State

for resale, or for sale of a product thereof, where the person has all necessary licenses for such sale or resale, and

receives at least 25 percent of the person's annual gross income from such sale or resale. Any person convicted of a

second or subsequent misdemeanor violation of this section shall be prohibited from owning or possessing any animal

for 5 years after said conviction, without exception. Any person convicted of a third misdemeanor violation of this

section shall be prohibited permanently from owning or possessing any animal, without exception.

(2) A violation of this subsection is subject to a fine in the amount of $1,000 in any court of competent

jurisdiction and to forfeiture of any animal illegally owned in accordance with the provisions of 7904 of Title 3.

Section 4. Amend 1325(d), Title 11 of the Delaware Code by making deletions as shown by strike through and

insertions as shown by underline as follows:

1325 Cruelty to animals; class A misdemeanor; class F felony.

(d)(1) Any person convicted of a felony violation of this section shall be prohibited from owning or

possessing any animal for 15 years after said conviction, except for animals grown, raised or produced within the State

for resale, or for sale of a product thereof, where the person has all necessary licenses for such sale or resale, and

receives at least 25 percent of the person's annual gross income from such sale or resale. Any person convicted of a

second or subsequent felony violation of this section shall be prohibited from owning or possessing any animal for 15

years after said conviction without exception. Any person convicted of a third felony violation of this section shall be

prohibited permanently from owning or possessing any animal, without exception.

(2) A violation of this subsection is subject to a fine in the amount of $5,000 in any court of competent

jurisdiction and to forfeiture of any animal illegally owned in accordance with the provisions of 7904 of Title 3.


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Section 5. This bill shall take effect immediately upon its enactment and shall apply to any alleged act of animal

cruelty, fighting, or baiting after the date of its enactment.

SYNOPSISThis bill revises the procedure for impounding an animal which has allegedly been the subject of cruelty. The

bill also creates a civil cause of action for Society for the Prevention of Cruelty to Animals to file suit against any personwho engaged in cruelty to an animal. There is an express exemption from the ground of abandonment for releasing a catas part of the Trap, Neuter and Release Program. Upon a finding of cruelty, the defendant is liable to the plaintiff forliquidated damages of $2,500 to cover the plaintiffs litigation costs, as well as court costs. Also, any person who commitscruelty to an animal is then prohibited from owning or possessing an animal for up to 5 years, except for commercialfarms. A second concurrent or subsequent act of cruelty extends the prohibition another 5 years. A third concurrent orsubsequent act of cruelty results in a permanent prohibition of owning or possessing an animal, without exception.


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HB204 - POUND SPONSORED LEGISLATION

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