Animal and Equine Law Practice

I am on Facebook now. Sort of:>

2009-06-09T08:26:00.000-07:00

I just haven't found a single picture of me to add as my face! In the mean time, enjoy a de-motivational poster in its place. Stop on by and see if I am friend worthy. But please remember I will be as slow getting around to that as I am at posting my latest blog entry. I have not been posting comments on facebook. I swear I am not cheating on you readers!

Which really really is coming ANY DAY! We have actual rain this year. Who knew the grass could grow THAT much! Mow mow mow the fields,all the live long day! Merrily merrily merrily blah blah blah I got dust in my hair.

The LSAT was yesterday. I teach LSAT students. They are easier then training horses, but unlike horses, they KNOW they are being tested. But the guys rock and I think they did great!!!!!

Update on the FL Pig Case. Late but interesting.

2009-05-28T14:16:00.000-07:00

This was an event that happened a few weeks ago during the start of the Swine Flu scare. Things have calmed down and then the whole area flooded so everyone remembered what they should be worried about. They live in a swamp and in the path of hurricanes and tornadoes when they are not in a drought. However, its such a stunning example of mass hysteria and stupidity I just wanted to post it even if it is old news by now. If you own animals, you never know when the villagers will come up the hill carrying torches and pitchforks:<

NEIGHBORS SHOOTING PIG TAILS PIGS
Posted: 05/12/2009 at 8:17am
Swine flu fears grip neighbors of pig sanctuary

A Bunnell auto parts store owner is offering free masks to anyone living near a Flagler County swine farm, angering the owner of the Pig Tales Sanctuary who said the offer falsely implies her porkers carry the swine flu.

"I've got a couple people telling me that they heard my pigs have swine flu, so now this thing is going to get people crazy," said Lory Yazurlo, who runs Pig Tales Sanctuary.

But things already seem crazy around Pig Tales Sanctuary at 596 County Road 90. Last week, annoyed neighbors shot to death 10 or 12 trespassing pigs. One of those neighbors said Yazurlo -- who is confined to a wheelchair -- threatened to kill his wife and 1 1/2-year-old son and burn his house down. Yazurlo denies making any threats and says someone is "maliciously" cutting the chain on her gate and setting the pigs free.

Ed Smith, who placed the free mask ad in The Flagler/Palm Coast News-Tribune, said he is trying to draw attention to problems at the 20-acre sanctuary, which he describes as a smelly eyesore and mosquito breeding ground. The ad offers a free mask "if you live or work within 10 miles of a Flagler County Swine Farm County Road 90 East." Smith said he has 5,000 masks at his Bunnell Auto Supply Store, 119 N. Bay St. He said he will give one to anyone who asks, whether or not they live near Yazurlo's pigs.

"I think there's a good possibility that at some point they could be a carrier for the swine flu," Smith said in a phone interview Monday.

But there haven't been reports of swine flu in any pigs, said Terence McElroy, a spokesman for the state Department of Agriculture and Consumer Services. "There hasn't been any swine flu in any swine herd in America," McElroy said Monday.

The Centers for Disease Control and Prevention in Atlanta doesn't even call the virus swine flu anymore; it's now officially referred to as the H1N1 flu because it's so different from what normally circulates in North American pigs, a CDC web site reports.

The swine at Pig Tales have been quarantined, McElroy said, but that's due to pseudorabies, a contagious viral disease that causes a high mortality rate among infant pigs. Pseudorabies does not pose a threat to humans, according to the U.S. Department of Agriculture Web site.

Nevertheless, Smith said he has given out a number of the free masks. "I've had quite a few people come in," Smith said Monday.

Smith's son-in-law, Andrew King, said hogs get loose every day from Pig Tales. He said the Flagler County Sheriff's Office told him and other neighbors that they can shoot trespassing pigs.

"When they get out and tear our property up, we kill them," King said.

He said in a police report that he took a shot at one of the pigs with his handgun on Thursday morning but missed.

About 15 minutes later, an angry Yazurlo wheeled her way onto his property.

He said he asked Yazurlo to leave, but she didn't.

"I was on my property and she came down there cussing and threatened to burn my house down and kill my wife and my baby," King said in an interview Monday, repeating what he said in a police report.

He said Yazurlo kept cussing and circling in her wheelchair.

"She's acting crazy. I just sat in my truck the whole time till the police got there," Smith said in the interview.

The Flagler Sheriff's Office has forwarded an assault complaint against Yazurlo to the State Attorney's Office, which will decide whether to charge her.

Yazurlo denied threatening King or his wife or son but admits being irate.

"I told him to go to hell or burn in hell and that was all I said to him," Yazurlo said Monday.

Yazurlo adds that she felt threatened by King and plans to file her own complaint, because she said King fired his rifle or shotgun in her direction. She said King claimed he was firing at a pig.

"He shot his shotgun in my direction and I never saw a pig," Yazurlo said.

King said that never happened.

"I did not fire in her direction," King said. "She was not even there when we ran the hog off my property."

King asked a deputy to warn Yazurlo not to trespass on his land anymore. Another neighboring property owner, Roy Hawkins, a potato farmer, also had her warned for trespassing. Hawkins issued the warning after spotting wheelchair tracks on his land.

Hawkins said about eight or 10 different people were shooting at the pigs, which did not do much damage to his potato crop.

"Not too badly, we got there before they could ruin it," Hawkins said.

Read Swan's post first, then read up. Finding the code.

2009-05-28T11:48:00.000-07:00

So, I am a lawyer and I am usually pretty good about finding and reading code law. You have been given very good advice by Ms. Swan, but how do you go about finding out the rules and regulations in your area?

I tried it out myself for my County. I googled my County’s website. On the website was a link to the county code of laws. Most Counties have their laws posted on-line now in Muni-code or just on their own website. I started at the obvious chapter—Animals. Nothing there. So then I looked under Garbage, Trash and Refuse disposal. Nothing. Then Land Management. Nada. Then I googled what to do with dead horse and come up with my own blog. Obviously I cannot fill that blog with every possible county and state and local code.

My next move was to call the local extension office. I waited for 5 minutes to get an open line. Then I waited for 5 more minutes to hear a computer tell me all my options. None of them were what I wanted. Then I was transferred to an operator who transferred me to an agent when I requested “information about large animal disposal” That led to an answering machine.

My next move would have been to call my Vet and ask him/her, but that information may have been useful, but not necessarily in compliance with any code. I did not call just to test out the theory because Vets are busy and I am not that clueless to waste their time just to write a blog. Next I checked the state code. Nothing. I know there is nothing in my covenants prohibited except for raising swine.

Now if this had been a real emergency and my horse had just died the time and effort to try and track down information on where and how I was allowed to dispose of him would have sent me right over the edge. When my real horse died last year I could hardly even walk into my house before I just collapsed from grief and exhaustion after being awake with him for 48 hours of colic. My Vet took care of everything and knew who to call and what to do, so I did not even have to see any of it. If I had been required to search code or wait for computers to suggest gardening tips or wait for a call back from the county extension agent while my horse cooled in the back yard, it would have been unbearable. An absolute nightmare. I can’t even imagine how horrible that would be for a parent trying to make a child’s dead horse go away.

So REALLY REALLY take the good advice posted by Ms. Swan and do your homework now!!! Do not wait until you need to know. Although I doubt black booted government thugs will break down your door for an unlawful burial violation, the last thing you will want after you horse passes on is to spend all day trying to find out what is legal and then getting a citation and having to start all over with a now decomposed animal.

Have a death plan and start it now. When the time comes just getting up off the floor might be all you can manage. And you should have not only your plan, but the money to pay for it on hand. Take it from me, the last thing you need to be doing an hour after Dobbin’s demise is driving to the bank to get money for the disposal. And the choices you make in that hell time of grief may not be the choices you would make if your heart was not being ripped out.

Guest Post by Jessica Swan: AKA JSwan on "What Remains"

2009-05-27T21:15:00.000-07:00

OK, I did not post as I promised. I am a bad blogger. I can't even make up an excuse because then I would be a bad dis-honorable bad blogger. So The truth is I went out searching for more guest bloggers to talk about things YOU need to know even when I do not have time to tell you. They think about this stuff all the time. They are experts in their fields. It was so nice having Jennifer Williams do a guest blog on her area of expertise I got another guest blogger for this post and a few more lined up. I have a blog from a criminal attorney lined up, a bankruptcy attorney to talk about our dreaded debt, and hopefully a sports and entertainment attorney to talk about the ins and outs of these new fangeled sponsorship deals some of the upper level riders are getting these days. And I am working on a post about the employee/private contractor distinction, liability and the tax consequences. Without further delay, today's blog:

After We Say Goodbye: Disposing Of Equine Remains

Jessica Swan

For all the joy that horses bring to our lives, we pay a price. We must endure the pain of parting with our equine friends when they become ill, old, or suffer a traumatic injury. Sometimes, the issue of disposal is not addressed before death occurs, or the chosen method may not be available due to circumstances beyond the owner’s control.

A horse owner should know what options are available in his area, evaluate the pros and cons of each, and observe any statutory or regulatory requirements, before faced with a euthanasia decision; which is a difficult and emotional time for everyone involved.

Increasingly, disposal of animal remains is regulated or restricted. Improper or incomplete disposal of remains may pollute groundwater, attract scavengers, rodents, or pose a health hazard to humans, pets, or wildlife. Authorities or neighbors may take exception to an owner’s choice and take action against the horse owner if the remains cause any of the above to occur.

You do not need to be an attorney or veterinarian to locate information on this subject, most or all the information you need is freely available from reliable sources:

1. Statutes, ordinances or restrictive covenants:
A. Depending upon your location, on-site disposal of animal remains may be regulated, restricted, or prohibited. For those who live in equestrian subdivisions, covenants may restrict or prohibit disposal of livestock remains. Check your state code, local ordinances, and any covenants before making your decision. An additional resource may be your county/town zoning administrator or homeowners association.

2. Your State Department of Agriculture or Extension Service
A. These agencies offer free information for livestock owners. The Agriculture Department may restrict burial, composting, or burning of livestock that died of reportable diseases. It may also oversee cremation facilities or renderers that operate in your state.
B. The Extension Service and its agents may provide support, guidance, and information to horse owners seeking education in on-site composting of livestock mortalities, assistance in locating a renderer, or may be able to put a horse owner in touch with other owners, farmers, or ranchers who can be a resource.

3. Veterinarians, equine hospital/veterinary college, animal shelter, equine rescues
A. Veterinary and lay professionals may be a resource for locating a backhoe operator, renderer, or cremation facility, and may have that information for you when they pay their final visit.
B. Clinics, equine hospitals, or veterinary colleges may offer cremation for a fee; even if the fatality did not occur in their facility.
C. Your animal shelter or local equine rescue may be able to provide a referral for pickup, burial, or cremation. Some rescues may offer euthanasia clinics, which defers some of the final costs and resolves the issue of disposal.

After the owner identifies the available options, their choice is essentially an emotional and/or a financial one. There is no single “right” answer. The key is to ensure the method is permissible; a mistake may cost you dearly and cause great heartache.

This article is not a comprehensive resource; only a starting point for horse owners unfamiliar with disposing of livestock remains, but who wish to educate themselves.

Since restrictions and prohibitions are increasingly common, horse owners should stay informed and provide feedback and input to their horse industry board so their voice is heard within government. Farmers and ranchers are long accustomed to dealing with farm mortalities; and usually have the equipment, facilities, and knowledge to dispose of them. Some horse owners, especially those in less rural areas or in subdivisions, may not have the same background.

Although improper or incomplete disposal of remains can be a legitimate concern for the public, when armed with good information horse owners are fully capable of disposing of the remains of their cherished equine partners.

Jessica Swan is a retired development professional, working primarily within conservation and agriculture. A lifelong equestrian, she is fortunate to share her life with three wonderful horses on her small farming operation in Virginia.

"Equine Law Degree"

2009-05-18T09:29:00.000-07:00

Hi! Remember me? The blogger on this blog? I have been really really busy, but I will start blogging again soon. I had work to do, real actual work and lots of it! I also got my house painted and my tiny tractor fixed and have been working on mowing my 5 acre yard for what seems like a lifetime. But I will be posting this week!

Here is a quick answer to a question some of you have been googling and trying to find on my site. I assume those someones are high school kids looking for career information. There is NO DEGREE in “equine law”. You go to undergrad school and get a degree there. Then you take the tests for law school and go to law school. Then if you are lucky you take a few classes in equine and animal law. You graduate with a law degree and then if you want, you practice, among other things that actually pay the bills, some equine law. Equine law is just regular old law, but it is when that law has horses in the facts.

There is no other degree in “equine law.” If you try and take an online horse course that includes equine law, that information is for your own use. You cannot charge others for legal advice unless you are a lawyer. If you do, you break the law and you will need to find a “criminal lawyer” to defend you.

So you have at least 7 years of higher education to complete before you can practice equine law. Then what? Do you just hang out a shingle and start collecting all those legal fees? Ummmmmnope. You do as much equine law as you can, but you do not get a “job” as an equine lawyer unless you get very, very lucky and possibly have a trust fund to actually support yourself. It’s not the exciting high paid career you might be looking for. It’s just being a lawyer, like all other lawyers, but if you are lucky about 50% of your cases might have horses or animals in them.

What if you have already gone to undergrad school and started law school and now want to know about equine law? If your school teaches equine law you can ask your professor. If it doesn’t, you can ask them to start teaching it. That is what I had to do. I had to ask the Dean and the vice dean of my law school to start teaching animal law so I could take the class. I had to support this request with evidence that almost half of other law schools taught at least 1 course in animal law. I even had to find and hire the professor to teach the course. But after just 6 months of constantly harassing and bugging and planting myself in the reception area of the Deans’ offices my school suddenly decided such a great course was a much better alternative to seeing me EVERY DAY and having me bug them again. I think it helped that the Dean’s daughter rode horses and that the vice dean loved his cats.

I only had to wait an extra year for the actual class. It was scheduled for my 2L year, but the professor had to have emergency back surgery and I ended up in “state and local taxation”, the only class left when my seminar in equine law got canceled. After sitting through a 3 hour tax class taught on Friday afternoons, there was no way I was going to leave law school without getting my animal law course! I had earned it. I DESERVED it!

And in my last semester I got to take the class and it was wonderful:> Not only did we have the best professor in the world for equine law, but she also had lots of actual experience as a real live litigator and even gave us the most useful tips on taking the VA Bar exam we had ever heard.

So, in conclusion, if you are googling “equine law degree” you have a lot to learn. You will have to go to law school. You will become a lawyer and then try and get clients with horses who need a lawyer. Sometimes your years of experience will help you serve your clients better then just some un-equine lawyer, but sometimes you will still just be drafting deeds or working on trusts or having to earn your keep doing family or criminal law. There is no special degree and there is no job waiting for you when you get out that will be exclusively equine law. Maybe 1 person every 15 years gets the one job that may exist, but with those odds you might just want to keep working on that dream of competing your OTTB in the Olympics? In time there will be more work in the field since once one lawyer starts suing people then other lawyers get work defending the other side, but if you are looking for a career in horses then you have to want a career in law and the horses are a rare bonus that makes the rest of the work worth it.

Texas from a Texan Rescue Worker

2009-04-05T17:42:00.000-07:00

I am having a guest post from Jennifer Williams of Blue Bonnet rescue for this weeks post. Not only is it a great honor and pleasure to have such a respected and experienced horse rescue expert on my blog, but both my computers are crashing and I have no word processing abilities at all right now. You think my posts are scary now, you should see them if I try to post without going through Word first.I will be lucky if I can get this posted at all and boy is my tech guy gonna be busy tomorrow!

"In general, when law enforcement officers (sheriff’s deputies, policemen, animal control officers or livestock officers) seize horses in Texas, they do so under the Texas Health and Safety Code, Title 10. Health and Safety of Animals, Chapter 821. Treatment and Disposition of Animals. They must obtain a warrant from the courts to seize the horses, and there must be a hearing within 10 calendar days of the warrant to determine whether or not the horses were “cruelly treated”. If a judge or justice of the peace finds that the horses were cruelly treated, he can order them euthanized, send them to auction or give them to a non-profit animal welfare group. If the judge orders the animals euthanized or given to a non-profit, the owner cannot appeal. After the civil hearing, the county or district attorney’s office may also decide to press criminal charges under the Texas Penal Code.

As a rescuer, this set-up has advantages. In some cases, we work with law enforcement officers to investigate reports of neglect or abuse. When we find neglected horses, the officers obtain the warrants and we go with them to pick the horses up, document their condition, obtain a veterinary report and veterinary care, and prepare for court. We provide testimony in court, and I can provide expert testimony as a Ph.D. Animal Scientist and Certified Humane Investigator. Other times, law enforcement officers investigate the report of neglect or abuse, get the warrant, seize the animals and go to court. They call us only after the horses have been awarded to us.

The benefit of the civil code is that a) the hearing must be held within 10 days of the warrant and b) there are no appeals if the horses are awarded to a non-profit rescue. This means as a rescue we don’t end up stuck holding horses for court for months. And once the horses are awarded to us, we can get the males gelded and begin adopting out the horses without fear that the owner will appeal and we’ll be stuck holding the horses for months or even years. It allows us to move the horses on into adoptive homes more quickly so we can free up space to help more horses.

When I began first working on neglect cases in 2000, the counties rarely pressed criminal charges. They seemed to feel that the owners suffered enough by losing their horses. However in the past several years, I’ve seen an increased willingness to press criminal charges, and I’ve seen more people convicted of animal abuse. That allows us to better track repeat offenders – its hard to tell if someone is a repeat offender if they lose their horses but have no criminal record.

There are drawbacks to working in rescue in Texas. Many counties still don’t consider horse neglect to be a serious issue and are unwilling to spend manpower or money investigating neglect reports, seizing horses or presenting cases to the courts. However, this is slowly changing.

While currently the law does not allow for an appeal if horses are awarded to a nonprofit welfare group, House Bill 1046 would allow owners to appeal. This will make it much harder for animal welfare organizations to assist with seizures as they could be stuck holding horses for months, or even years, as the owners appeal. Many counties will be unwilling to seize horses and other animals as they will not want to be forced to pay the expenses of animals being held for an extended period of time. Rescues will be forced to turn away neglect cases horses as they will soon fill up and have no more space.

Texas residents, please contact your state representative and ask him to vote against this bill. Lets not make it any harder for animals to get help in Texas."

Next Up: Texas and Anmal Welfare Laws

2009-03-27T08:56:00.000-07:00

I saved Texas for last. I think going through a few states and seeing the code and seeing how the states apply the code gives you a good overview of how states treat animal neglect and abuse cases. Texas should be up this weekend.

REMEMBER: THIS is A BLOG--NOT YOUR LAWYER.

This is my rants and ramblings about issues I see in Animal Law. You should no more use this blog as legal advice then you should expect Alan Shore to come to court and save your ass in one hour or less. Just because a lawyer says it does not make it set in stone. It takes 2 lawyers, a judge, a set of facts and a whole lot of words to decide any case. I tend to not post a lot of actual case law because it will make your brain bleed. Its already all out there and most of it online. What you read here--and any time you DO NOT HIRE ME AND PAY and create an attorney client relationship, is just what I think on that day about that subject and what I may argue for my client to kick your clients ass.

THE CODE is only half the story in any legal issue. The CASE LAW, as discussed way back in the first few posts, is just as important as the Code. The code is applied to people and facts with lots of discretion and flexibility. That is intentional. Code law and case law must be taken together to form a whole picture for any predictive value on how any particular case gets handled. Because laws are subject to interpretation and sometimes do not get changed for years after the courts have moved on, you can't take the code as being a complete set of instructions any more then you can take a courts ruling with no basis in a code of laws to go unchallenged. I have half a ton of case law books that are made up of appeals because this is not science, its an art form.

Once you have code and case law understood, then you begin to see how it applies to the facts in your case. Its is the job of an attorney to make arguments based on the code and the case law that will favor her client. Its the job of the opposing counsel to make opposite arguments in favor of his client. Then a judge and or jury decides who is more convincing. Judges also much spend a lot of time trying to decide which lawyer is making a better argument about what the code says and what judges that came before him did. Most of this happens in papers exchanged before anyone steps into a courtroom. Same code, same case law, but years of arguments to decide the same set of facts.

That is what we are taught in law school--not how to fill out the paper work, but to be able to see the same words and make then say our client is right and the other guy is wrong. In recent years, like the last 2, there has been a move to teach law students other skills too like knowing 1/100th of what a paralegal does about filling out forms, but making the winning argument is what we do. Or at least try to.

If law were just a matter of plugging in the Code to a case we would have no need for our legal system. A computer could do that. That is not how the game is played. But in all cases, the first place to look should be the Code. Not the last and only place, but the first. Then let the games begin.

Updates on NH & FL cases "Swine and Pigs"

2009-03-27T08:55:00.001-07:00

2 new developments in the NH case: Charges and Video of the horses seized

http://unionleader.com/article.aspx?...6-79a67a3c620e

http://www.wmur.com/video/19023226/index.html

http://www.chronicleforums.com/Forum/showthread.php?p=3979148&posted=1#post3979148

The horses look bad, but not at deaths door. However, this is after 3 weeks of proper care. Had they been left at the farm they may be three weeks skinnier and knock knock knocking on heaven’s door.

If you look closely (and I have watched it about 10 times), you will see what appears to be very thin yearlings or rising 2 year olds. But look at their tails. Not baby tails. Those are the tails of late 2 to early 3 year olds. These horses might be forever stunted by the lack of proper nutrition they had with the accused.

On the bright side I do know of a few TB race horses that had it even worse. Clint and Josey were like line drawings at 3 and were bought by a kind and experienced trainer. While neither went on to win the KY Derby. Clint, although tiny, did win quite a few races in his day and Josie went off to become a children’s hunter and won many championships. Both were well loved and overcame such a bad start. I hope good outcomes for these little guys and gals too.

Update on the Pig Case I blogged about Last Fall.

This is not a hoarder. It’s a good contrast to the NH case. Things got bad for a short time and the owner did everything she could in the best interest of the animals. Never ranted about conspiracies, she worked with the Humane Society, she worked with the authorities, she never made it about HER, HER, HER and HER RIGHTS to HER PROPERTY. It was always about what could do the most for the welfare of the animals. Turned out the best thing for the pigs was HER and all parties agree.

Pig sanctuary owner, state agree on terms

BUNNELL -- Lory Yazurlo, who runs Pig Tales Sanctuary, reached an agreement with the state Thursday resulting in one charge against her related to her swine herd being dropped and outlining how she can have a second charge dropped.

After the hearing, Yazurlo sat in her wheelchair and said she was relieved she will be keeping her approximately 390 pigs. She said her biggest worry had been that the state would want to kill the pigs.

"I'm happy it's over with," Yazurlo said. "I don't want to take a chance on them for some reason taking the pigs away, so I'd just rather have it over with."

Assistant State Attorney Scott Westbrook dropped a charge of cruelty to animals. And Yazurlo, 45, pled no contest to a charge of unlawful abandonment or confinement of animals. If she has no legal or pig problems in the next 12 months, that charge will also be dropped.

As part of the agreement to drop the misdemeanor charges she must comply with requirements already in place by the state Department of Agriculture for the pigs' care. No pigs can be taken off her property and no new pigs added; all male pigs must be castrated; she must have fencing to keep wild pigs out and she must provide sufficient feed and fresh water for the pigs.

Yazurlo's agreement with prosecutors will be monitored by the Flagler Humane Society, which initiated the complaint against her in November, saying the pigs at her 20-acre sanctuary in rural Flagler County were emaciated and malnourished.The next month the Flagler Humane Society and Yazurlo reached their own agreement, including some of the same requirements she agreed to with the state.

Thursday's agreement to drop one charge and eventually drop the second is the best resolution, public defender Judith Davidson said.

"It's a for-sure outcome as opposed to a trial where you can never know what can happen," Davidson said. "But she maintains her innocence."

Westbrook said he dropped the cruelty to animals charge, because it had a connotation that Yazurlo was somehow torturing the pigs and that was not the case.

"One can't help but have some sympathy for the circumstances that she finds herself in," Westbrook said.

Charlene Yazurlo said her daughter didn't do anything wrong. She said her daughter is all about the pigs.

"Lory's main concern is the pigs and she's very willing to accept this offer because it benefits the pigs," Yazurlo said. "It's the best thing for the pigs.

Yazurlo and her family are asking for volunteers to help them with some work around the Pig Tales Sanctuary, such as putting up an electric fence, and for donations of feed. They said they could also use a volunteer who has a bucket-loader backhoe. To help, call Yazurlo's mother, Charlene, at 386-439-4583 or send an e-mail to jyazurlo@cfl.rr.com.

AL Case Continued: Part V. Who you gonna call?

2009-03-23T15:46:00.000-07:00

In my personal experience, I have met several Animal Control Officers who have no knowledge of proper horse husbandry and defend the very people you are trying to report. I have also met many good ones. The fact there is no training or standards is a big problem. Especially in a state like AL where neglect is a criminal offense yet the people in charge of enforcing those laws seem to be no better themselves.

Nothing has been done at all and no real proof was offered as a defense. The people with the horses said they had wormed them once a month for 4 months. There should be no skinny horses after 4 months with proper care. The DA should have dug deeper and not taken the word of 1 Vet. Doesn’t the NH system seem better now?

This is a series of posts on a BB by the person who found the horses. There were at least 2 dead—one dead for quite a long time and 1 recently dead just lying on the ground where the horses were grazing. 1 horse was in good shape. The rest disappeared. The owners never suggested they buried the horses at all. But the Sheriff supplies that as their defense? Who you gonna call if Law Enforcement is not doing their job?

1)Hey Everyone,

I have had a very upsetting weekend. Went to help a friend catch a loose pony yesterday and found several dead and starving horses. These animals belong to Kenny Price, Colbert County Animal Control Officer. I immediately called and filed a report with the Sheriff and Officer Joe Shanes was out today. Officer Shanes did speak with the owner. I gave Officer Shanes a copy of the pictures I took yesterday. Officer Shanes is going to present his finding to the District Attorney tomorrow. I would like to ask everyone to send an e-mail to the DA asking them to prosecute the owner. I am VERY Concerned that nothing is going to be done and the remaining horses will die. VERY GRAPHIC Pictures Attached

2)The horses had NO FOOD when I found them and have received NO Vet Care! The "owner" told me in front of Officer Shanes that half of the horses were given to him. We are all e-mailing and requesting copies of the paperwork showing when & where confiscated, plus Vet Records. This ACO has had warnings in the past for not caring for his animals. Conditions at the animal shelter where he works are deplorable as well. Horses have been seen at the shelter with no food or water for days. This has been an ongoing issue, But I have been the first one to make a fuss.

3)I don't know where the horses are now I saw the guy moving two of them last night. They were on County Rd 301 in Florence, AL. I called the Sheriff's Office and reported that he was moving the horses, but they did nothing. Channel WHNT 19 is the only one who has contacted me back. Am SO disappointed!!!

4)Here is a copy of the most recent e-mail from the DA. There was a total of 8 horses to start. They moved 5 of them yesterday. There are 2 horses still up there and a pony who goes through the fence to a friends house.

From: XXXXXXXXX
To: XXXXXXXXXX
Sent: 3/9/2009 5:44:09 P.M. Central Standard Time
Subj: RE: Starving Horses

I regret that you are disappointed in me. Please know that this matter is not over. We are continuing to try to ascertain the facts. I have received several emails about this situation. In an effort to be responsive to them, I sent out a quick “status report” earlier today. Apparently, I should have emphasized that this was merely a status report and that we are continuing to look into it.

CEC

5) http://www.waff.com/Global/story.asp?S=9989965

Nothing else was ever heard of the fate of these horses.

AL Case Continued: Part IV

2009-03-23T14:31:00.000-07:00

A Vet writes a letter saying the horses came to the Animal Control Officer in the state they were. He condemns people for reporting it. He condemns the press for reporting on it. But he never actually says how long the horses had been there or why some were dying. And it does not take 6 months to get a horse form a BCS of 1 to at least 3 or 4. Just because you are a Vet does not mean you know what you are talking about. I know lots of lawyers who do not know what they are talking about. I am sure there are people out there saying the same thing about me. This Vet did not know what year it is.

Letter from DVM about horses

March 10, 2008

To Whom it May Concern:
This letter is written in response to a situation related to us by Kenny Price and a subsequent farm visit made to a group of horses under his care. Mr. Price has been involved with the rescue and rehabilitation of neglected and undernourished horses for several years. He has other horses under his care that were found to exhibit good body condition. The group in question involves 5-6 horses that are kept together at a rehab pasture at the end of Lauderdale County Road 302 in Alabama. We had been contacted at the behest of Mr. Price due to a complaint of abuse charges against him and the resultant media hype generated by such.
There appeared to be more than 25 acres of land including some wooded land with at least two sources of water. After a couple of days of near 80 degree weather in March, the grasses were greening and all horses were grazing as we arrived. A half eaten roll of sorella mix hay was present and an earlier roll eaten down could be observed. The white horse in the group was in the best condition and has been there since summer. The majority had body condition score of two and appeared to be responding happily though still in a serious state. The critical individual was a sorrel with a BCS of 1 and who is one of the newest additions this winter. This individual is frail but actively grazing. Anemia, which is common in rehab horses, is exhibited via oral mucus membranes. Vitamin B-12 or complexes injections every two weeks were recommended on all individuals for this reason. This individual has received some special care and may require more as her condition evolves.
We discussed the need to de-worm monthly which Mr. Price was already doing. The need to rotate families of de-worming agents was also encouraged. W are both agreed that a sick horse needs fiber from hay and grazing, not abundant grain. (The re-feed phenomenon observed at the end of World War II where several concentration camp survivors were subsequently killed by the generosity of their liberators who gave them too much food too quickly, is very real.) Horses that are rescued are often foundered or caused to colic by their well intentioned new handlers. Mr. Price has avoided these pitfalls in almost twenty years of dealing with such situations. We briefly talked about concurrent illnesses that afflict debilitated horses. This group is battling a common skin infection know as "Rain Rot". Though there are many possible treatments available, we tried to recommend a high yield, easily performed option for this group. As we near the end of winter, many animals need the best quality of feed at this time. Therefore, the supplementation of range cubes from Alfalfa based forage or the introduction of a Bermuda hay source would be advisable. When grain is introduced it should be in small amounts and at frequent intervals.
We briefly alluded to the need to verify by picture future animals that enter the program and initiate the charting of their progress to avoid any confusion by the uninformed. We also recommended that some sort of simple sign be mounted at the gate to designate this pasture as a rescue, rehabilitation effort.
O feel a need to offer a personal opinion on this situation. All would agree that these are thin horses. However, there is a dramatic difference between one who has allowed a healthy horse to become thin through neglect, and one who is trying to recover a thin horse back to health. This nutritional recovery process in Equines usually is a six month minimum project, if no set backs are encountered. The above situation is neither pristine nor perfect, but it is adequate.
Where do most people believe such nutritional rehab occurs? There is no dream barn and yard in Lexington, Kentucky that magically takes in and cares for horses rescued from dire circumstances.
Many folks desire that such rehab be available to needy horses, but they have no clue what is demanded either in terms of time, money, nor effort to obtain such. The overzealous media person with a microphone and a camera and a spin will do nothing but discourage those who are already involved. The unknowledgeable well intentioned citizen who reports such honest efforts like the above as abuse is not capable of such care. However, such accusations may well scare those who are capable away from their labor of love because of the potential for bad press and its repercussions. It is incumbent upon the powers-that-be to recognize these issues and distinguish wisely in the discharge on their duties. If folks like Mr. Price do not perform rehab on a grass roots effort it will not be done with any success.
These in brief are my findings and assessments. If any further explanation is required please contact me.
Yours truly,
T. C. Hammond, DVM

<span style="font-weight:bold;">Next we have the AL code. Nothing in the Ag code applies but the rights to take and seize animals. But not when and why.

TITLE 3. ANIMALS
CHAPTER 1. GENERAL PROVISIONS

3-1-8. Destruction of certain abandoned animals by members, etc., of societies for prevention of cruelty to animals
Any agent, officer or member of a duly incorporated society for the prevention of cruelty to animals may lawfully destroy or cause to be destroyed any animal found abandoned and not properly cared for which may appear, in the judgment of two reputable citizens called by him to view the same in his presence, to be superannuated, infirm, glandered, injured or diseased past recovery for any useful purpose.

3-1-10. Wanton, malicious, etc., destruction, injury, etc., of animal or article or commodity of value of another -- Prohibited
Any person, who unlawfully, wantonly or maliciously kills, disables, disfigures, destroys or injures any animal or article or commodity of value which is the property of another must, on conviction, be fined not less than twice the value of the injury or damage to the owner of the property nor more than $1,000.00 and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months, and so much of the fine as may be necessary to repair the injury or loss shall go to the party injured.

3-1-11. Wanton, malicious, etc., destruction, injury, etc., of animal or article or commodity of value of another -- Proof of trespassing by animal in mitigation or justification of offense; tender of compensation
Upon the trial, the defendant may prove in mitigation or justification, as the jury may determine, that, at the time of the killing, disabling, disfiguring, destruction or injury, the animal killed, disabled, disfigured, destroyed or injured was trespassing and had within six months previously thereto trespassed upon a growing crop, inclosed by a lawful fence or while such animal was running at large in violation of law. No conviction must be had, if it is shown that, before the commencement of the prosecution, compensation for the injury was made or tendered to the owner.

3-1-11.1. Killing or disabling livestock; penalty
(a) Any person, who unlawfully, wantonly or maliciously, kills, disables, disfigures, destroys, or injures the livestock of another while said livestock is on the premises of the owner of said livestock or on the premises of a person having charge thereof shall be guilty of a Class "C" felony.
(b) In addition to being guilty of a Class "C" felony, any person who unlawfully, wantonly or maliciously, kills, disables, disfigures, destroys, or injures the livestock of another while such livestock is on the premises of the owner of the livestock, or on the premises of a person having charge thereof, shall be liable for damages sustained by the killing, disabling, disfiguring, or destroying of said livestock in an amount equal to double the value thereof.
(c) For purposes of this section, livestock is defined as horses, cows, swine, goats, sheep, mules, and asses.

3-1-13. Right of officers, etc., of humane societies to take charge of and care for neglected or abused animals; written notice to owner from whom animal taken; lien for expenses for care and keeping of animal
Any duly authorized officer or employee of a recognized humane society shall have the right to take charge of any animal which is sick or disabled due to neglect or is being cruelly treated or abused and to provide care for such animal until it is deemed to be in suitable condition to be returned to its owner or to the person from whose custody such animal was taken. The officer so taking such animal shall at the time of taking the animal give written notice to the owner or person from whose custody it was taken. The necessary expenses incurred for the care and keeping of the animal after such notice by the humane society shall be a lien thereon and, if the animal is not reclaimed within 10 days from the giving of such notice, the humane society may sell the animal to satisfy such lien. If the humane society determines that the animal cannot be sold, it may cause the animal to be otherwise disposed of.

3-1-16. Employment by county commissions of persons to enforce laws for prevention of cruelty to animals; compensation, oath and powers of same
The county commissions of the respective counties of this state may employ a suitable person or persons who shall be charged specially with the duty of enforcing all laws for the prevention of cruelty to animals, and to fix the compensation of such officer or officers, which shall be paid in the same manner as other salaries of county employees are paid, and such officer or officers, upon taking the oath as required to be taken by deputy sheriffs, shall be vested with all powers now vested by law in deputy sheriffs.

3-1-23. Burning, cauterizing, etc., of teeth of horse, mule, etc., for purpose of fraudulently making horse, etc., appear younger -- Prohibited
Any person burning, cauterizing or mechanically changing the natural appearance or condition of the teeth of any horse, mule or other soliped in order to fraudulently make such animal appear younger than the animal really is shall be guilty of a misdemeanor.

3-1-24. Burning, cauterizing, etc., of teeth of horse, mule, etc., for purpose of fraudulently making horse, etc., appear younger -- Evidence as to burning, etc., of teeth to be substantiated by veterinarian
The evidence required for the conviction of any person for violating any provision of section 3-1-23 must be substantiated as to the burning, cauterizing or changing of the natural appearance or condition of the teeth of such horse, mule or other soliped by a graduate licensed veterinarian and, when necessary, the state veterinarian or a graduate veterinarian selected by the state veterinarian shall determine and testify to the changes that have been made in the teeth of such animal or animals.

3-1-25. Burning, cauterizing, etc., of teeth of horse, mule, etc., for purpose of fraudulently making horse, etc., appear younger -- Effect of possession of such horse, etc
The possession of any horse, mule or other soliped which has had its teeth burned, cauterized or mechanically changed in order to make such animal appear younger than it really is shall be prima facie evidence of intent to violate the provisions of section 3-1-23.

3-1-26. Burning, cauterizing, etc., of teeth of horse, mule, etc., for purpose of fraudulently making horse, etc., appear younger -- Transportation, etc., of such horse into state
Any person transporting or moving into Alabama, for any purpose whatsoever, any horse, mule or other soliped which has had its teeth burned, cauterized or changed in any manner to make such animal appear younger than it really is shall be guilty of a misdemeanor.

Lastly we have the actual cruelty statues. Please notice they are found in the CRIMINAL CODE. Not under animals and not under Ag and not under Morals. Its a CRIMINAL CODE and thus requires knowingly or recklessly committing the crime of neglect. This differs from any of the other states we have looked at.
And they did not give much guidance to know when you are neglecting an animal and when you are not. It a very bad law and the criminal standard is huge to overcome. What? They need feed every day? I didn't know that. Not guilty.

TITLE 13A. CRIMINAL CODE

CHAPTER 11. OFFENSES AGAINST PUBLIC ORDER AND SAFETY
ARTICLE 1. OFFENSES AGAINST PUBLIC ORDER AND DECENCY

13A-11-14. Cruelty to animals
(a) A person commits the crime of cruelty to animals if, except as otherwise authorized by law, he intentionally or recklessly:
(1) Subjects any animal to cruel mistreatment; or
(2) Subjects any animal in his custody to cruel neglect; or
(3) Kills or injures without good cause any animal belonging to another.
(b) Cruelty to animals is a Class B misdemeanor.

Alabama needs to clean this mess up, get things defined, and find out what happened at the farm in question. But AL has not said one word about this case since the day after it hit the news. Nobody has.

Stealing Fugly for Case #2. AL and AC out of Control.

2009-03-23T13:12:00.000-07:00

Next case is out of Alabama. Its the first time I have ever tried to add pictures and also the first time I have just cut and pasted someone else's blog entry. Its from Fugly Horse of the Day and its a great place for me to start this case. I did not write this text. I did edit it for naughty words and calls for action. You can read the original entry on its own blogsite.

Like most cases its gone and forgotten from the general press in a few weeks. I will do another post to see how things turned out and to see what the actual Alabama law has to say about this.

Wednesday, March 11, 2009

A few days ago, in the middle of an escaped pony drama, some ladies came upon the horses you see here. And more. I'm not posting the picture of the dead ones.

Now, at this point everybody knows what to do when you see horses like this, right? Take pictures - which the ladies did - and call animal control!

Er, um, slight problem with the second part: The owner of the horses is an animal control officer. Actually, he's the A.C. Supervisor. Joy.

Yeah, you heard me. Fortunately, these were smart ladies and they did the smart thing, which was run screaming to the Sheriff and the D.A. The D.A. promptly turned it over to the State Vet to investigate and that is where we are at today.

Now, to answer your first question, no, I don't think these horses were newly rescued, although that's certainly what these asshats, Kenny and Aleshia Price (he's the A.C. officer) have to say. Witness the usual round of "but we're a RESCUE" excuses: http://www.waff.com/Global/story.asp?S=9974888&nav=menu62_4

Aleshia even has an excuse for the two half-eaten dead horses on the place. She says they shot them (I assume they have some argument for why this was needed) and left them there to distract those wily coyotes from their live horses.

"We felt the carcasses could not be seen by any house or anywhere," Aleshia Price said. "There are a lot of coyotes. We felt humane to let them feed on something than attacking our horses."

OK, how often does a coyote attack a horse? We had tons of them when I boarded in Topanga. They are skittish creatures and never came near a horse. The funny part is, even Aleshia's husband knows this much - I found an article where he talks about them killing cats and small dogs. Yes, that is exactly what they kill. It is not necessary to leave them a buffet of rotting horse to keep them away from your live ones! You just didn't want to pay for disposal. I wonder if we will, indeed, find a bullet in those carcasses - or if they starved to death?

Kenny likes the media, normally! He is usually all too happy to give interviews about how they just want to educate people and help! Um, Kenny, charity begins at home - I think your horses would have liked some of that help. Particularly the dead ones. It's one thing when you see people in desperate straits with skinny horses - and you know that I think you should give them away before it gets that far. But this guy is (a) EMPLOYED and (b) EMPLOYED TO PROTECT ANIMALS! What exactly is the problem here, and did you think your property was invisible and no one was ever going to see this?

I hope the D.A. throws the book at him AND his b.s.-spewing wifey. Surely, even in Florence, Alabama, you can hire a better A.C. officer. I recommend one of the folks who turned him in!

This Weeks Featured Case Continues:NH part III

2009-03-18T11:40:00.000-07:00

The owners have posted their side of the story for all to see. Its a confession. Its a series of excuses and a demonstrated lack of knowledge. But even though they claim to have paid a lawyer $20K as a retainer, they post this anyway.

http://www.youtube.com/watch?v=VadrDCV0YE8
http://www.youtube.com/watch?v=bb68e3UqS9c

Pretty much all the classic signs of a hoarder. They just do not get it.

Its not our fault, they say. Stuff is expensive. We didn't know the law. We planned on doing it right some day. They don't need to eat every day--just when we can afford it. All the horses are healthy except the old ones, the broodmares who had babies a few years ago, the stallion and the hard keepers. Oh, and most of the ones in the video who are still on the thin side. Its not our fault because nobody can keep weight on those horses in the winter.

FAIL.

If I had any doubts, this new video has removed them.

And the attorney? DOUBLE YOUR RATES!

Its not the worst case I have seen and its not the worst I will show you, but there is clearly a problem there and they do not see it.

NH Case Updates.

2009-03-15T09:23:00.000-07:00

I can see you. I have a stat counter and can see who visits by location and search terms. I cannot (and would not want to) see who any individual is, but I can see a bunch of people doing google searches about animal cruelty and neglect just since I posted this morning.

So HERE IS THE ANSWER. Since I am also reading the super secret forum NHunderground. I am only on page 15, but its has been posted several times that #1 is a warning. We know they got the warning because that whole event was posted on You-tube back in Nov and someone even got arrested at the time. #2 is a seizure and a chance to correct the conditions and get your animals back. That is where things stand now. Build some shelters, get more fenced in areas so they have more room, buy a book about basic horse care so you know about things like feed and Coggins tests and and stallion management and body condition scores and when to find new homes for your horses before you go begging to a rescue to take in your animals. Then you get your horses back. #3 is permanent seizure. We are not on #3 yet.

Stop posting about how unfair it all is and go get the work done to get the place up to code and up to basic standards. Evey comment you make just shows your lack of knowledge and brings up more bad information from the past. But your state is very nice. They give you another chance. You CAN get the horses back by showing you understand how to care for them and bringing your place up to the code.

If it were me I might not give them back based on comments made after the seizure that show a serious lack of concern about the welfare of the animals and a serious lack of knowledge about how to care for horses. But is not me. Its a NH SPCA.

If you show up next week with tons of shelter and plans on how to educate yourself and lots of feed and adequate space for your animals then I will feel sorry for you. Then I will say that's not fair. If you cannot afford to have a decent place or your horses, buy bikes. Nobody will care what you do with them.

But for right now its fair. If you want to play poor me or poor me victim then I suggest you do not post everything that happens on the internet. Because I can see you. And so can the rest of the world.

Lets Look at Some Cases! Case #1, NH.

2009-03-15T05:42:00.000-07:00

Whew! What a crazy couple of weeks. I have been working my posterior off and apologize for taking do so long to get back to posting. I know all 3 of you readers must have been hand wringing, whinging and agonizing about when I would come back and post! That would be. . . now!

Not only has it been a busy couple of weeks at work, but its been a busy couple of weeks for the topic at hand—animal welfare and abuse. There were so many cases from all ends of the spectrum and all over the country that I just wanted to see how some of them turned out.

I think most of us are very much pro-animal welfare legislation. The few that aren’t probably do not read my blog. I am. I am very very much in favor of some kind of regulation and legislation that protects animals and does not leave everything in the hands of uncaring, uneducated, unable or just downright nasty owners.

What I do not know is how to fairly and effectively enforce such legislation. Well, that is not true. I do know: Lots of money, proper training, active oversight and continuing education. Put me in charge. Guidelines and standards to be applied would do a lot of good too. But that is simply not the reality and it is too much to ask for. It’s a very young idea to actually enforce the laws designed to protect animals, so many of the kinks have not been worked out. Oh, hell, that’s not true either. I do court appointed cases for child neglect and abuse and its just as kinky as animal law, but its been around for a lot longer.

I am going to do an around the nation peek at some recent cases with comments. This is not designed to stir up controversy or enrage or engage the masses to revolt, its just to show how the same goals and types of laws get applied in completely random and unexplainable ways as we struggle to learn how to operate the machine of animal welfare laws. But the owners often have the same, predictable reaction.

First case is the most recent on my personal radar—the seizure of some horses in New Hampshire.

CANDIA – Twelve horses were seized from a property in town on Monday over concerns about shelter and welfare, according to police.

Charges are yet to be filed and the investigation is ongoing.

Brian Travis of 456 Critchett Road said the Arabian horses, owned by his wife, Heidi Fredrick, were seized from his horse farm.

He said the horses are perfectly healthy and alleged they were taken because of a dispute with Steve Sprowl of the NHSPCA.

Two veterinarians from the New Hampshire Society for the Protection of Animals were on scene, but NHSPCA director Lisa Dennison referred any questions to the Candia police department.

Police chief Mike McGillen said he could not comment further as the investigation is ongoing.

Here's their own video:

http://www.youtube.com/watch?v=BGjrE36PGzg

So here is what happened. The horse owners moved from Colorado to New Hampshire. There seems to be some information that they had neglected or abandoned or did something to the horses in Colorado too. Or other horses.

NH has laws about the care of animals. The owners violated some of those laws. They were required to have a very specific amount of shelter for each horse from Fall until Spring. Unlike the SC statute I posted, “shelter” was defined down to the square footage per horse. They were required to have current Coggin’s papers on all horses and should have had health certificates before moving the horses into NH from CO. In addition, they were required to provide adequate feed and water.

In November of last year the SPCA came by to do an inspection and advised the horse owners of the shelter regulations. The owners responded by building some shelters, but nowhere near the amount required by law. Then an ice storm hit and the shelters they built became useless.

Next, for some reason, they contacted a local rescue to come and take a large portion of the horses. The rescue could only take 3 horses. So 3 went to the rescue and the rest remained. Last week the SPCA showed up to seize some of the horses. They cited the lack of shelter and some of the horses being in poor condition as their reason in addition to lack of proper paper work like Coggins.

They did not take all the horses. All the horses they took were not in poor condition. They did take all the horses in poor condition, but did not take all the horses without shelter. So about half the horses remained but still did not have adequate shelter.

The owners of the horses are of a political persuasion that holds private property is private and they can do whatever they wish with their private property. Like Kindergarten children, they have thrown fits about the horses being seized not due to any concern over the horses, but because they were MINE MINE MINE and you can’t have them! Not even the ubiquitous “but I love them and they are my babies and you took them!”

The owners are backed up by their political compatriots who make reasoned arguments that any owner of property will make sure that property is kept in its best and most valuable form and therefore its is illogical to need any government intervention to make sure animals are cared for. This does make a tidy thesis, but it does not account for some animal owners being lazy, stupid, cruel or too poor to do what is best for their animals.

As the story unfolds it appears, IMHO, that perhaps it is possible the horse owners in this case were some of the above. They knew the law on shelters and had known it since at least Nov. They chose to ignore it. They did have the community support that is now rallying around them to build shelters before winter came and the horses were seized. They chose not to do that. They at some point did not feel they had the financial ability to support all the horses and looked to a rescue to . . well. . .rescue the horses. They did not try and sell these valuable animals. Instead, they sought to give them away to a place for horses that needed to be saved. They have an excuse for why 1 horses was skinny—he is a stallion and fretted over the mares—but they do not explain why they did not move him away from the mares or just feed him more. No excuse for the other 5 skinny horses has been offered.

Next they say they were unaware of the need for a current Coggin’s test on the horses or the health certificates. However unlikely that is, given their claim of being experts in horse care and that they had valuable show and race horses, ignorance of the law is no defense. They say the government has no right take their horses over some “paperwork”. That is an excellent topic for a philosophy class, but try telling it to the IRS.

So they ignored the laws, some knowingly and willingly, gave substandard care to some of the animals and got caught. At no time have they shown any concern over the horses’ welfare or made any reasonable explanations as to why they had failed to provide shelter or feed. All they do is deny that horses need either shelter or feed.

What makes this case interesting is not that the horses were in horrible shape. They weren’t. They were helped before things got that bad. Its is interesting because if you look for more information and read the BBs and comments and statements made by the owners and their supporters, you get an instant education in the concept that animals are personal property and what you do with them ain’t nobodies business but your own. In their own words and in the extreme. Frankly, I can’t replicate it here and you should go read it yourself. Google the owner’s names and the comments will appear.

The other interesting aspect is that although the SPCA knew since Nov. the horses had inadequate shelter, they left them all though the winter, an ice storm and 3.5 more months before they went to get them. And when they did get them, they did not get them all. I really do not have enough information to know why 12 horses were chosen and not all if only 6 were in poor shape, but it could just be they had nowhere to put them or had hopes that the owners would self correct if given enough time. Remember, the owners themselves recently sought to get rid of the horses because they could not care for them—weeks before the seizure. Perhaps it was felt that they had enough shelter and could care for half the horses, but not all of them.

But its an interesting case and a prime example of the argument that the Government has not right to regulate how you care for your animals. They do not regulate how you care for your car or your boat or your TV unless you infringe upon the rights of others, so why should it be different for animals? The answer is because animals have rights to certain protections as long as those protections are in the code of laws. If you do not like those laws, do not move to that state. If you are already there when the laws are passed, work through the political process to get them changed, but if you just chose to ignore them then do not be surprised when you lose your property.

My personal belief is that I should have a right to all shellfish offered for sale at any time I am hungry because I really like shellfish. I can make up all kinds of arguments about how its my natural right to have that seafood, but if I take it without paying, should it come as a shock to me that I get punished? If I do not understand why I am punished and in fact refuse to understand the whole concept of laws and obeying laws and that laws apply to me no matter what my personal beliefs are, then I should probably get locked up somewhere safe and padded. Somewhere with shrimp.

Part IV: The Old Codes. See?

2009-02-28T20:05:00.000-08:00

This is a code for another state. Notice that animals are lumped together with the moral codes. Just read through the chapter titles. Sex, drugs, tobacco, gambling, abusing animals. . . .all bad for the humans souls. Not a separate chapter just for animals in another section of the state code. Its not to protect animals, it to protect human decency. Hmmmmmmm.

Chapter 167 — Offenses Against

Public Health, Decency and Animals

2007 EDITION

PUBLIC HEALTH AND DECENCY OFFENSES

CRIMES AND PUNISHMENTS

PROSTITUTION AND RELATED OFFENSES

167.002 Definitions for ORS 167.002 to 167.027

167.007 Prostitution

167.012 Promoting prostitution

167.017 Compelling prostitution

167.027 Evidence required to show place of prostitution

OBSCENITY AND RELATED OFFENSES

167.051 Definitions for ORS 167.054 and 167.057

167.054 Furnishing sexually explicit material to a child

167.057 Luring a minor

167.060 Definitions for ORS 167.060 to 167.095

167.062 Sadomasochistic abuse or sexual conduct in live show

167.075 Exhibiting an obscene performance to a minor

167.080 Displaying obscene materials to minors

167.085 Defenses in prosecutions under ORS 167.075 and 167.080

167.090 Publicly displaying nudity or sex for advertising purposes

167.095 Defenses in prosecutions under ORS 167.090

167.100 Application of ORS 167.060 to 167.100

GAMBLING OFFENSES

167.108 Definitions for ORS 167.109 and 167.112

167.109 Internet gambling

167.112 Liability of certain entities engaged in certain financial transactions

167.114 Application of ORS 167.109 and 167.112 to Oregon Racing Commission

167.116 Rulemaking

167.117 Definitions for ORS 167.108 to 167.164 and 464.270 to 464.530

167.118 Bingo, lotto or raffle games or Monte Carlo events conducted by charitable, fraternal or religious organizations; rules

167.121 Local regulation of social games

167.122 Unlawful gambling in the second degree

167.127 Unlawful gambling in the first degree

167.132 Possession of gambling records in the second degree

167.137 Possession of gambling records in the first degree

167.142 Defense to possession of gambling records

167.147 Possession of a gambling device; defense

167.153 Proving occurrence of sporting event in prosecutions of gambling offenses

167.158 Lottery prizes forfeited to county; exception; action by county to recover

167.162 Gambling device as public nuisance; defense; seizure and destruction

167.164 Possession of gray machine; penalty; defense

167.166 Removal of unauthorized video lottery game terminal

167.167 Cheating

OFFENSES INVOLVING CONTROLLED SUBSTANCES

167.203 Definitions for ORS 167.212 to 167.252

167.212 Tampering with drug records

167.222 Frequenting a place where controlled substances are used

167.238 Prima facie evidence permitted in prosecutions of drug offenses

167.243 Exemption contained in drug laws as defense to drug offenses

167.248 Search and seizure of conveyance in which drugs unlawfully transported or possessed

167.252 Acquittal or conviction under federal law as precluding state prosecution

167.262 Adult using minor in commission of controlled substance offense

OFFENSES AGAINST ANIMALS

167.310 Definitions for ORS 167.310 to 167.351

167.312 Research and animal interference

167.315 Animal abuse in the second degree

167.320 Animal abuse in the first degree

167.322 Aggravated animal abuse in the first degree

167.325 Animal neglect in the second degree

167.330 Animal neglect in the first degree

167.332 Prohibition against possession of domestic animal

167.333 Sexual assault of animal

167.334 Evaluation of person convicted of violating ORS 167.333

167.335 Exemption from ORS 167.315 to 167.333

167.337 Interfering with law enforcement animal

167.339 Assaulting law enforcement animal

167.340 Animal abandonment

167.345 Authority to enter premises; search warrant; notice of impoundment of animal; damage resulting from entry

167.347 Forfeiture of animal to animal care agency prior to disposition of criminal charge

167.348 Placement of forfeited animal; preference

167.350 Forfeiture of rights in mistreated animal; costs; disposition of animal

167.351 Trading in nonambulatory livestock

167.352 Interfering with assistance, search and rescue or therapy animal

167.355 Involvement in animal fighting

167.360 Definitions for ORS 167.360 to 167.375

167.365 Dogfighting

167.370 Participation in dogfighting

167.372 Possessing dogfighting paraphernalia

167.375 Seizure of fighting dogs; procedure

167.385 Unauthorized use of livestock animal

167.387 Definitions for ORS 167.387 and 167.388

167.388 Interference with livestock production

167.390 Commerce in fur of domestic cats and dogs prohibited; exception

OFFENSES INVOLVING TOBACCO

167.400 Tobacco possession by minors prohibited

167.401 Tobacco purchase by minors prohibited; exceptions

167.402 Locating tobacco vending machines where minors have access prohibited

167.404 Limitation on right of city or county to regulate tobacco vending machines

167.407 Locating tobacco products where customers can access without store employee prohibited

OFFENSES INVOLVING FIGHTING BIRDS

167.426 Definitions for ORS 167.426 to 167.439

167.428 Cockfighting

167.431 Participation in cockfighting

167.433 Seizure of fighting birds; procedure

167.435 Forfeiture of rights in fighting birds or property

167.437 Constructive possession of fighting birds; procedure

167.439 Forcible recovery of fighting bird

OFFENSES INVOLVING UNUSED PROPERTY MARKETS

167.500 Definitions for ORS 167.502, 167.506 and 167.508

167.502 Sale of certain items at unused property market prohibited; exceptions

167.506 Recordkeeping requirements

167.508 Exemptions from ORS 167.502 and 167.506

MISCELLANEOUS

167.808 Unlawful possession of inhalants

167.810 Creating a hazard

167.820 Concealing the birth of an infant

167.822 Improper repair of vehicle inflatable restraint system

167.824 Unlawful possession of undeployed air bags or air bag canisters

167.830 Employment of minors in place of public entertainment

167.840 Application of ORS 167.830 limited

PROSTITUTION AND RELATED OFFENSES

167.002 Definitions for ORS 167.002 to 167.027. As used in ORS 167.002 to 167.027, unless the context requires otherwise:

(1) “Place of prostitution” means any place where prostitution is practiced.

(2) “Prostitute” means a male or female person who engages in sexual conduct or sexual contact for a fee.

(3) “Prostitution enterprise” means an arrangement whereby two or more prostitutes are organized to conduct prostitution activities.

(4) “Sexual conduct” means sexual intercourse or deviate sexual intercourse.

(5) “Sexual contact” means any touching of the sexual organs or other intimate parts of a person not married to the actor for the purpose of arousing or gratifying the sexual desire of either party. [1971 c.743 §249; 1973 c.699 §5]

167.005 [Repealed by 1971 c.743 §432]

167.007 Prostitution. (1) A person commits the crime of prostitution if:

(a) The person engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee; or

(b) The person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact.

(2) Prostitution is a Class A misdemeanor. [1971 c.743 §250; 1973 c.52 §1; 1973 c.699 §6]

167.010 [Repealed by 1971 c.743 §432]

167.012 Promoting prostitution. (1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly:

(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise; or

(b) Induces or causes a person to engage in prostitution or to remain in a place of prostitution; or

(c) Receives or agrees to receive money or other property, other than as a prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money or other property is derived from a prostitution activity; or

(d) Engages in any conduct that institutes, aids or facilitates an act or enterprise of prostitution.

(2) Promoting prostitution is a Class C felony. [1971 c.743 §251]

167.015 [Repealed by 1971 c.743 §432]

167.017 Compelling prostitution. (1) A person commits the crime of compelling prostitution if the person knowingly:

(a) Uses force or intimidation to compel another to engage in prostitution; or

(b) Induces or causes a person under 18 years of age to engage in prostitution; or

(c) Induces or causes the spouse, child or stepchild of the person to engage in prostitution.

(2) Compelling prostitution is a Class B felony. [1971 c.743 §252]

167.020 [Repealed by 1971 c.743 §432]

167.022 [1971 c.743 §253; repealed by 1979 c.248 §1]

167.025 [Repealed by 1971 c.743 §432]

167.027 Evidence required to show place of prostitution. (1) On the issue of whether a place is a place of prostitution as defined in ORS 167.002, its general repute and repute of persons who reside in or frequent the place shall be competent evidence.

(2) Notwithstanding ORS 136.655, in any prosecution under ORS 167.012 and 167.017, spouses are competent and compellable witnesses for or against either party. [1971 c.743 §254]

167.030 [Repealed by 1971 c.743 §432]

167.035 [Repealed by 1971 c.743 §432]

167.040 [Repealed by 1971 c.743 §432]

167.045 [1953 c.641 §§1, 7; 1955 c.636 §6; repealed by 1971 c.743 §432]

167.050 [1953 c.641 §7; 1955 c.636 §7; 1963 c.353 §1; repealed by 1971 c.743 §432]

OBSCENITY AND RELATED OFFENSES

167.051 Definitions for ORS 167.054 and 167.057. As used in ORS 167.054 and 167.057:

(1) “Child” means a person under 13 years of age.

(2) “Furnishes” means to sell, give, rent, loan or otherwise provide.

(3) “Minor” means a person under 18 years of age.

(4) “Sexual conduct” means:

(a) Human masturbation or sexual intercourse;

(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;

(c) Penetration of the vagina or rectum by any object other than as part of a medical diagnosis or as part of a personal hygiene practice; or

(d) Touching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female.

(5) “Sexually explicit material” means material containing visual images of:

(a) Human masturbation or sexual intercourse;

(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; or

(c) Penetration of the vagina or rectum by any object other than as part of a personal hygiene practice. [2007 c.869 §1]

Note: 167.051, 167.054 and 167.057 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.054 Furnishing sexually explicit material to a child. (1) A person commits the crime of furnishing sexually explicit material to a child if the person intentionally furnishes a child, or intentionally permits a child to view, sexually explicit material and the person knows that the material is sexually explicit material.

(2) A person is not liable to prosecution for violating subsection (1) of this section if:

(a) The person is an employee of a bona fide museum, school, law enforcement agency, medical treatment provider or public library, acting within the scope of regular employment; or

(b) The person furnishes, or permits the viewing of, material the sexually explicit portions of which form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation.

(3) In a prosecution under subsection (1) of this section, it is an affirmative defense:

(a) That the sexually explicit material was furnished, or the viewing was permitted, solely for the purpose of sex education, art education or psychological treatment and was furnished or permitted by the child’s parent or legal guardian, by an educator or treatment provider or by another person acting on behalf of the parent, legal guardian, educator or treatment provider;

(b) That the defendant had reasonable cause to believe that the person to whom the sexually explicit material was furnished, or who was permitted to view the material, was not a child; or

(c) That the defendant was less than three years older than the child at the time of the alleged offense.

(4) In a prosecution under subsection (1) of this section, it is not a defense that the person to whom the sexually explicit material was furnished or who was permitted to view the material was not a child but was a law enforcement officer posing as a child.

(5) Furnishing sexually explicit material to a child is a Class A misdemeanor. [2007 c.869 §2]

Note: See note under 167.051.

167.055 [1955 c.636 §9; 1963 c.513 §1; repealed by 1971 c.743 §432]

167.057 Luring a minor. (1) A person commits the crime of luring a minor if the person:

(a) Furnishes to, or uses with, a minor a visual representation or explicit verbal description or narrative account of sexual conduct; and

(b) Furnishes or uses the representation, description or account for the purpose of:

(A) Arousing or satisfying the sexual desires of the person or the minor; or

(B) Inducing the minor to engage in sexual conduct.

(2) A person is not liable to prosecution for violating subsection (1) of this section if the person furnishes or uses a representation, description or account of sexual conduct that forms merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation.

(3) In a prosecution under subsection (1) of this section, it is an affirmative defense:

(a) That the representation, description or account was furnished or used for the purpose of psychological or medical treatment and was furnished by a treatment provider or by another person acting on behalf of the treatment provider;

(b) That the defendant had reasonable cause to believe that the person to whom the representation, description or account was furnished or with whom the representation, description or account was used was not a minor; or

(c) That the defendant was less than three years older than the minor at the time of the alleged offense.

(4) In a prosecution under subsection (1) of this section, it is not a defense that the person to whom the representation, description or account was furnished or with whom the representation, description or account was used was not a minor but was a law enforcement officer posing as a minor.

(5) Luring a minor is a Class C felony. [2007 c.869 §3]

Note: See note under 167.051.

167.060 Definitions for ORS 167.060 to 167.095. As used in ORS 167.060 to 167.095, unless the context requires otherwise:

(1) “Advertising purposes” means purposes of propagandizing in connection with the commercial sale of a product or type of product, the commercial offering of a service, or the commercial exhibition of an entertainment.

(2) “Displays publicly” means the exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.

(3) “Furnishes” means to sell, give, rent, loan or otherwise provide.

(4) “Minor” means an unmarried person under 18 years of age.

(5) “Nudity” means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and areola only are covered.

(6) “Obscene performance” means a play, motion picture, dance, show or other presentation, whether pictured, animated or live, performed before an audience and which in whole or in part depicts or reveals nudity, sexual conduct, sexual excitement or sadomasochistic abuse, or which includes obscenities or explicit verbal descriptions or narrative accounts of sexual conduct.

(7) “Obscenities” means those slang words currently generally rejected for regular use in mixed society, that are used to refer to genitals, female breasts, sexual conduct or excretory functions or products, either that have no other meaning or that in context are clearly used for their bodily, sexual or excretory meaning.

(8) “Public thoroughfare, depot or vehicle” means any street, highway, park, depot or transportation platform, or other place, whether indoors or out, or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority, or owned or operated by any agency of public transportation that is designed for the use, enjoyment or transportation of the general public.

(9) “Sadomasochistic abuse” means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

(10) “Sexual conduct” means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

(11) “Sexual excitement” means the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity. [1971 c.743 §255]

167.062 Sadomasochistic abuse or sexual conduct in live show. (1) It is unlawful for any person to knowingly engage in sadomasochistic abuse or sexual conduct in a live public show.

(2) Violation of subsection (1) of this section is a Class A misdemeanor.

(3) It is unlawful for any person to knowingly direct, manage, finance or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.

(4) Violation of subsection (3) of this section is a Class C felony.

(5) As used in ORS 167.002, 167.007 and this section unless the context requires otherwise:

(a) “Live public show” means a public show in which human beings, animals, or both appear bodily before spectators or customers.

(b) “Public show” means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded. [1973 c.699 §§2,3; 2007 c.869 §9]

167.065 [1971 c.743 §256; repealed by 2007 c.869 §11]

167.070 [1971 c.743 §257; repealed by 2007 c.869 §11]

167.075 Exhibiting an obscene performance to a minor.(1) A person commits the crime of exhibiting an obscene performance to a minor if the minor is unaccompanied by the parent or lawful guardian of the minor, and for a monetary consideration or other valuable commodity or service, the person knowingly or recklessly:

(a) Exhibits an obscene performance to the minor; or

(b) Sells an admission ticket or other means to gain entrance to an obscene performance to the minor; or

(c) Permits the admission of the minor to premises whereon there is exhibited an obscene performance.

(2) No employee is liable to prosecution under this section or under any city or home-rule county ordinance for exhibiting or possessing with intent to exhibit any obscene motion picture provided the employee is acting within the scope of regular employment at a showing open to the public.

(3) As used in this section, “employee” means any person regularly employed by the owner or operator of a motion picture theater if the person has no financial interest other than salary or wages in the ownership or operation of the motion picture theater, no financial interest in or control over the selection of the motion pictures shown in the theater, and is working within the motion picture theater where the person is regularly employed, but does not include a manager of the motion picture theater.

(4) Exhibiting an obscene performance to a minor is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §258]

167.080 Displaying obscene materials to minors. (1) A person commits the crime of displaying obscene materials to minors if, being the owner, operator or manager of a business or acting in a managerial capacity, the person knowingly or recklessly permits a minor who is not accompanied by the parent or lawful guardian of the minor to enter or remain on the premises, if in that part of the premises where the minor is so permitted to be, there is visibly displayed:

(a) Any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse; or

(b) Any book, magazine, paperback, pamphlet or other written or printed matter, however reproduced, that reveals a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse.

(2) Displaying obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §259]

167.085 Defenses in prosecutions under ORS 167.075 and 167.080. In any prosecution under ORS 167.075 and 167.080, it is an affirmative defense for the defendant to prove:

(1) That the defendant was in a parental or guardianship relationship with the minor;

(2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization;

(3) That the defendant was charged with furnishing, showing, exhibiting or displaying an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some purpose therein other than titillation; or

(4) That the defendant had reasonable cause to believe that the person involved was not a minor. [1971 c.743 §260; 1993 c.18 §27; 2001 c.607 §1]

167.087 [1973 c.699 §4; repealed by 2007 c.869 §11]

167.089 [1975 c.272 §2; repealed by 2007 c.869 §11]

167.090 Publicly displaying nudity or sex for advertising purposes. (1) A person commits the crime of publicly displaying nudity or sex for advertising purposes if, for advertising purposes, the person knowingly:

(a) Displays publicly or causes to be displayed publicly a picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement, or any page, poster or other written or printed matter bearing such representation or a verbal description or narrative account of such items or activities, or any obscenities; or

(b) Permits any display described in this section on premises owned, rented or operated by the person.

(2) Publicly displaying nudity or sex for advertising purposes is a Class A misdemeanor. [1971 c.743 §261]

167.095 Defenses in prosecutions under ORS 167.090. In any prosecution for violation of ORS 167.090, it shall be an affirmative defense for the defendant to prove:

(1) That the public display, even though in connection with a commercial venture, was primarily for artistic purposes or as a public service; or

(2) That the public display was of nudity, exhibited by a bona fide art, antique or similar gallery or exhibition, and visible in a normal display setting. [1971 c.743 §262]

167.100 Application of ORS 167.060 to 167.100. ORS 167.060 to 167.100 shall be applicable and uniform throughout the state and all political subdivisions and municipalities therein, and no local authority shall enact any ordinances, rules or regulations in conflict with the provisions thereof. [1971 c.743 §262a]

167.105 [Repealed by 1971 c.743 §432]

GAMBLING OFFENSES

167.108 Definitions for ORS 167.109 and 167.112. As used in ORS 167.109 and 167.112:

(1) “Credit” and “credit card” have the meaning given those terms under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1601).

(2) “Electronic funds transfer” has the meaning given that term in ORS 293.525.

(3) “Financial institution” has the meaning given that term in ORS 706.008.

(4) “Money transmission” has the meaning given that term in ORS 717.200. [2001 c.502 §4]

167.109 Internet gambling. (1) A person engaged in an Internet gambling business may not knowingly accept, in connection with the participation of another person in unlawful gambling using the Internet:

(a) Credit, or the proceeds of credit, extended to or on behalf of such other person, including credit extended through the use of a credit card;

(b) An electronic funds transfer or funds transmitted by or through a money transmission business, or the proceeds of an electronic funds transfer or money transmission service, from or on behalf of the other person;

(c) Any check, draft or similar instrument that is drawn by or on behalf of the other person and is drawn on or payable at or through any financial institution; or

(d) The proceeds of any other form of financial transaction that involves a financial institution as a payor or financial intermediary on behalf of or for the benefit of the other person.

(2) Violation of subsection (1) of this section is a Class C felony. [2001 c.502 §2]

167.110 [Repealed by 1971 c.743 §432]

167.112 Liability of certain entities engaged in certain financial transactions. Notwithstanding any other provision of law, a creditor, credit card issuer, financial institution, operator of a terminal at which an electronic funds transfer may be initiated, money transmission business or any national, regional or local network utilized to effect a credit transaction, electronic funds transfer or money transmission service that is not liable under ORS 167.109:

(1) May collect on any debt arising out of activities that are illegal under ORS 167.109;

(2) Shall not be deemed to be participating in any activities that are illegal under ORS 167.109 by reason of their processing transactions arising out of such activities or collecting debts arising out of such activities; and

(3) Shall not be liable under any provision of ORS 166.715 to 166.735 or 646.605 to 646.652 by reason of their processing transactions arising out of activities that are illegal under ORS 167.109 or collecting debts arising out of such activities. [2001 c.502 §3]

167.114 Application of ORS 167.109 and 167.112 to Oregon Racing Commission. ORS 167.109 and 167.112 do not apply to activities licensed and regulated by the Oregon Racing Commission under ORS chapter 462. [2001 c.502 §5]

Note: Section 8, chapter 502, Oregon Laws 2001, provides:

Sec. 8. Sections 2 to 5 of this 2001 Act [167.108 to 167.114] apply to debts first occurring on or after the effective date of this 2001 Act [June 21, 2001] and to debts occurring prior to the effective date of this 2001 Act that have not been determined by a court to be uncollectible, unlawful or illegal. [2001 c.502 §8]

167.115 [Repealed by 1971 c.743 §432]

167.116 Rulemaking. (1) The Oregon State Lottery Commission shall adopt rules to carry out the provisions of ORS 167.117 (9)(c)(E) and (20)(b).

(2) Devices authorized by the Oregon State Lottery Commission for the purposes described in ORS 167.117 (9)(c)(E) and (20)(b) are exempted from the provisions of 15 U.S.C. 1172. [1999 c.193 §2; 2001 c.502 §6]

Note: 167.116 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.117 Definitions for ORS 167.108 to 167.164 and 464.270 to 464.530. As used in ORS 167.108 to 167.164 and 464.270 to 464.530, unless the context requires otherwise:

(1) “Bingo or lotto” means a game, played with cards bearing lines of numbers, in which a player covers or uncovers a number selected from a container, and which is won by a player who is present during the game and who first covers or uncovers the selected numbers in a designated combination, sequence or pattern.

(2) “Bookmaker” means a person who unlawfully accepts a bet from a member of the public upon the outcome of a future contingent event and who charges or accepts a percentage, fee or vigorish on the wager.

(3) “Bookmaking” means promoting gambling by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events.

(4) “Casino game” means any of the traditional gambling-based games commonly known as dice, faro, monte, roulette, fan-tan, twenty-one, blackjack, Texas hold-’em, seven-and-a-half, big injun, klondike, craps, poker, chuck-a-luck, Chinese chuck-a-luck (dai shu), wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panquinqui, red dog, acey-deucey, or any other gambling-based game similar in form or content.

(5)(a) “Charitable, fraternal or religious organization” means any person that is:

(A) Organized and existing for charitable, benevolent, eleemosynary, humane, patriotic, religious, philanthropic, recreational, social, educational, civic, fraternal or other nonprofit purposes; and

(B) Exempt from payment of federal income taxes because of its charitable, fraternal or religious purposes.

(b) The fact that contributions to an organization profiting from a contest of chance do not qualify for a charitable deduction for tax purposes or that the organization is not otherwise exempt from payment of federal income taxes pursuant to the Internal Revenue Code of 1986, as amended, constitutes prima facie evidence that the organization is not a bona fide charitable, fraternal or religious organization.

(6) “Contest of chance” means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.

(7) “Gambling” means that a person stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under the control or influence of the person, upon an agreement or understanding that the person or someone else will receive something of value in the event of a certain outcome. “Gambling” does not include:

(a) Bona fide business transactions valid under the law of contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but not limited to contracts of indemnity or guaranty and life, health or accident insurance.

(b) Engaging in contests of chance under the following conditions:

(A) The contest is played for some token other than money;

(B) An individual contestant may not purchase more than $100 worth of tokens for use in the contest during any 24-hour period;

(C) The tokens may be exchanged only for property other than money;

(D) Except when the tokens are exchanged for a beverage or merchandise to be consumed on the premises, the tokens are not redeemable on the premises where the contest is conducted or within 50 miles thereof; and

(E) Except for charitable, fraternal or religious organizations, no person who conducts the contest as owner, agent or employee profits in any manner from operation of the contest.

(c) Social games.

(d) Bingo, lotto or raffle games or Monte Carlo events operated in compliance with ORS 167.118, by a charitable, fraternal or religious organization licensed pursuant to ORS 167.118, 464.250 to 464.380 and 464.420 to 464.530 to operate such games.

(8) “Gambling device” means any device, machine, paraphernalia or equipment that is used or usable in the playing phases of unlawful gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. Lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices within this definition. Amusement devices other than gray machines, that do not return to the operator or player thereof anything but free additional games or plays, shall not be considered to be gambling devices.

(9)(a) “Gray machine” means any electrical or electromechanical device, whether or not it is in working order or some act of manipulation, repair, adjustment or modification is required to render it operational, that:

(A) Awards credits or contains or is readily adaptable to contain, a circuit, meter or switch capable of removing or recording the removal of credits earned by a player, other than removal during the course of continuous play; or

(B) Plays, emulates or simulates a casino game, bingo or keno.

(b) A device is no less a gray machine because, apart from its use or adaptability as such, it may also sell or deliver something of value on the basis other than chance.

(c) “Gray machine” does not include:

(A) Any device commonly known as a personal computer, including any device designed and marketed solely for home entertainment, when used privately and not for a fee and not used to facilitate any form of gambling;

(B) Any device operated under the authority of the Oregon State Lottery;

(C) Any device manufactured or serviced but not operated in Oregon by a manufacturer who has been approved under rules adopted by the Oregon State Lottery Commission;

(D) A slot machine;

(E) Any device authorized by the Oregon State Lottery Commission for:

(i) Display and demonstration purposes only at trade shows; or

(ii) Training and testing purposes by the Department of State Police; or

(F) Any device used to operate bingo in compliance with ORS 167.118 by a charitable, fraternal or religious organization licensed to operate bingo pursuant to ORS 167.118, 464.250 to 464.380 and 464.420 to 464.530.

(10) “Handle” means the total amount of money and other things of value bet on the bingo, lotto or raffle games, the value of raffle chances sold or the total amount collected from the sale of imitation money during Monte Carlo events.

(11) “Internet” means an interactive computer service or system or an information service, system or access software provider that provides or enables computer access by multiple users to a computer server and includes, but is not limited to, an information service, system or access software provider that provides access to a network system commonly known as the Internet, or any comparable system or service and also includes, but is not limited to a World Wide Web page, newsgroup, message board, mailing list or chat area on any interactive computer service or system or other online service.

(12) “Lottery” or “policy” means an unlawful gambling scheme in which:

(a) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones;

(b) The winning chances are to be determined by a drawing or by some other method; and

(c) The holders of the winning chances are to receive something of value.

(13) “Monte Carlo event” means a gambling event at which wagers are placed with imitation money upon contests of chance in which players compete against other players or against the house. As used in this subsection, “imitation money” includes imitation currency, chips or tokens.

(14) “Numbers scheme or enterprise” means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome of a future contingent event otherwise unrelated to the particular scheme.

(15) “Operating expenses” means those expenses incurred in the operation of a bingo, lotto or raffle game, including only the following:

(a) Salaries, employee benefits, workers’ compensation coverage and state and federal employee taxes;

(b) Security services;

(c) Legal and accounting services;

(d) Supplies and inventory;

(e) Rent, repairs, utilities, water, sewer and garbage;

(f) Insurance;

(g) Equipment;

(h) Printing and promotions;

(i) Postage and shipping;

(j) Janitorial services and supplies; and

(k) Leasehold improvements.

(16) “Player” means a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity. A person who gambles at a social game of chance on equal terms with the other participants therein is a person who does not otherwise render material assistance to the establishment, conduct or operation thereof by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises therefor and supplying cards or other equipment used therein. A person who engages in bookmaking is not a player.

(17) “Profits from unlawful gambling” means that a person, acting other than solely as a player, accepts or receives money or other property pursuant to an agreement or understanding with another person whereby the person participates or is to participate in the proceeds of unlawful gambling.

(18) “Promotes unlawful gambling” means that a person, acting other than solely as a player, engages in conduct that materially aids any form of unlawful gambling. Conduct of this nature includes, but is not limited to, conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases or toward any other phase of its operation. A person promotes unlawful gambling if, having control or right of control over premises being used with the knowledge of the person for purposes of unlawful gambling, the person permits the unlawful gambling to occur or continue or makes no effort to prevent its occurrence or continuation.

(19) “Raffle” means a lottery operated by a charitable, fraternal or religious organization wherein the players pay something of value for chances, represented by numbers or combinations thereof or by some other medium, one or more of which chances are to be designated the winning ones or determined by a drawing and the player holding the winning chance is to receive something of value.

(20)(a) “Slot machine” means a gambling device that as a result of the insertion of a coin or other object operates, either completely automatically, or with the aid of some physical act by the player, in such a manner that, depending upon elements of chance, it may eject something of value or otherwise entitle the player to something of value. A device so constructed or readily adaptable or convertible to such use is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability. Nor is it any less a slot machine because apart from its use or adaptability as such it may also sell or deliver something of value on the basis other than chance.

(b) “Slot machine” does not include any device authorized by the Oregon State Lottery Commission for:

(A) Display and demonstration purposes only at trade shows; or

(B) Training and testing purposes by the Department of State Police.

(21) “Social game” means:

(a) A game, other than a lottery, between players in a private home where no house player, house bank or house odds exist and there is no house income from the operation of the social game; and

(b) If authorized pursuant to ORS 167.121, a game, other than a lottery, between players in a private business, private club or place of public accommodation where no house player, house bank or house odds exist and there is no house income from the operation of the social game.

(22) “Something of value” means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein.

(23) “Trade show” means an exhibit of products and services that is:

(a) Not open to the public; and

(b) Of limited duration.

(24) “Unlawful” means not specifically authorized by law. [1971 c.669 §3a; 1971 c.743 §263; 1973 c.788 §1; 1974 c.7 §1; 1975 c.421 §1; 1977 c.850 §1; 1983 c.813 §1; 1987 c.914 §1; 1991 c.962 §7; 1995 c.577 §2; 1997 c.867 §1; 1999 c.193 §1; 2001 c.228 §1; 2001 c.502 §7; 2005 c.57 §1; 2005 c.355 §2]

167.118 Bingo, lotto or raffle games or Monte Carlo events conducted by charitable, fraternal or religious organizations; rules. (1) When a charitable, fraternal or religious organization is licensed by the Department of Justice to conduct bingo, lotto or raffle games or Monte Carlo events, only the organization itself or an employee thereof authorized by the department shall receive money or property or otherwise directly profit from the operation of the games, except that:

(a) The organization operating the games may present a prize of money or other property to any player not involved in the administration or management of the games.

(b) An organization licensed to conduct Monte Carlo events may contract with a licensed supplier of Monte Carlo event equipment to operate the event, including the provision of equipment, supplies and personnel, provided that the licensed supplier is paid a fixed fee to conduct the event and the imitation money is sold to players by employees or volunteers of the licensed charitable, fraternal or religious organization.

(c) A person may sell, rent or lease equipment, including electronic equipment, proprietary computer software and real property to a licensed charitable, fraternal or religious organization. Rent or lease payments must be made in compliance with the provisions of ORS 464.510.

(d) An organization licensed by the department may act as an escrow agent to receive money or property to be awarded as prizes.

(2) A charitable, fraternal or religious organization may not operate bingo, lotto or raffle games or Monte Carlo events except at such locations and upon such days and for such periods of time as the department authorizes pursuant to this section and ORS 464.250 to 464.380, 464.420 and 464.450 to 464.530.

(3)(a) An organization licensed by the department to operate bingo or lotto games may not award a prize exceeding $2,500 in value in any one game. An organization licensed by the department to operate a Monte Carlo event may not present any prize of money, or a cash equivalent, to any player.

(b) Notwithstanding any provision of this chapter to the contrary, a bingo licensee may operate two games per year with a prize not to exceed $10,000 per game and, if approved by the department, may also participate in a linked progressive game involving only Oregon licensees, without regard to the number of games or the size of the prize awarded.

(4) Each charitable, fraternal or religious organization that maintains, conducts or operates any bingo, lotto or raffle game or Monte Carlo event under license of the department must operate such games in accordance with rules adopted by the department.

(5) It is unlawful for a licensee to permit the operating expenses of the games to exceed 18 percent of the annual handle of its bingo, lotto and raffle operation.

(6) It is unlawful for a charitable, fraternal or religious organization licensed by the department to operate bingo, lotto or raffle games if:

(a) The handle of the games and events exceeds $250,000 in a year; and

(b) The games and events do not generate for the organization’s purposes, after the cost of prizes and operating expenses are deducted from the handle, an amount that equals or exceeds five percent of the handle. [1987 c.914 §3; 1991 c.274 §2; 1995 c.331 §1; 1997 c.867 §2; 1999 c.218 §1; 2001 c.228 §2; 2003 c.417 §1]

167.119 [1973 c.788 §3; repealed by 1974 c.7 §2]

167.120 [Amended by 1955 c.514 §1; 1969 c.404 §1; repealed by 1971 c.743 §432]

167.121 Local regulation of social games. Counties and cities may, by ordinance, authorize the playing or conducting of a social game in a private business, private club or in a place of public accommodation. Such ordinances may provide for regulation or licensing of the social games authorized. [1974 c.7 §3]

Note: 167.121 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.122 Unlawful gambling in the second degree. (1) A person commits the crime of unlawful gambling in the second degree if the person knowingly:

(a) Places a bet with a bookmaker; or

(b) Participates or engages in unlawful gambling as a player.

(2) Unlawful gambling in the second degree is a Class A misdemeanor. [1971 c.743 §264; 1997 c.867 §21]

167.125 [Amended by 1969 c.404 §2; repealed by 1971 c.743 §432]

167.127 Unlawful gambling in the first degree. (1) A person commits the crime of unlawful gambling in the first degree if the person knowingly promotes or profits from unlawful gambling.

(2) Unlawful gambling in the first degree is a Class C felony. [1971 c.743 §265; 1997 c.867 §22]

167.130 [Repealed by 1971 c.743 §432]

167.132 Possession of gambling records in the second degree. (1) A person commits the crime of possession of gambling records in the second degree if, with knowledge of the contents thereof, the person possesses any writing, paper, instrument or article:

(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or

(b) Of a kind commonly used in the operation, promotion or playing of a lottery or numbers scheme or enterprise.

(2) Possession of gambling records in the second degree is a Class A misdemeanor. [1971 c.743 §266]

167.135 [Repealed by 1971 c.743 §432]

167.137 Possession of gambling records in the first degree. (1) A person commits the crime of possession of gambling records in the first degree if, with knowledge of the contents thereof, the person possesses any writing, paper, instrument or article:

(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, reflecting or representing more than five bets totaling more than $500; or

(b) Of a kind commonly used in the operation, promotion or playing of a lottery or numbers scheme or enterprise, and constituting, reflecting or representing more than 500 plays or chances therein.

(2) Possession of gambling records in the first degree is a Class C felony. [1971 c.743 §267]

167.140 [Repealed by 1971 c.743 §432]

167.142 Defense to possession of gambling records. In any prosecution under ORS 167.132 or 167.137 it is a defense if the writing, paper, instrument or article possessed by the defendant is neither used nor intended to be used in the operation or promotion of a bookmaking scheme or enterprise, or in the operation, promotion or playing of a lottery or numbers scheme or enterprise. [1971 c.743 §268]

167.145 [Repealed by 1971 c.743 §432]

167.147 Possession of a gambling device; defense. (1) A person commits the crime of possession of a gambling device if, with knowledge of the character thereof, the person manufactures, sells, transports, places or possesses, or conducts or negotiates a transaction affecting or designed to affect ownership, custody or use of:

(a) A slot machine; or

(b) Any other gambling device, believing that the device is to be used in promoting unlawful gambling activity.

(2) Possession of a gambling device is a Class A misdemeanor.

(3) It is a defense to a charge of possession of a gambling device if the slot machine or gambling device that caused the charge to be brought was manufactured:

(a) Prior to 1900 and is not operated for purposes of unlawful gambling; or

(b) More than 25 years before the date on which the charge was brought and:

(A) Is located in a private residence;

(B) Is not operated for the purposes of unlawful gambling; and

(C) Has permanently affixed to it by the manufacturer, the manufacturer’s name and either the date of manufacture or the serial number. [1971 c.743 §269; 1977 c.264 §1; 1983 c.403 §1; 1993 c.781 §1; 1995 c.577 §1]

167.150 [Repealed by 1961 c.579 §2]

167.151 [1961 c.579 §1; 1963 c.480 §1; repealed by 1971 c.743 §432]

167.152 [1955 c.494 §1; repealed by 1971 c.743 §432]

167.153 Proving occurrence of sporting event in prosecutions of gambling offenses. In any prosecution under ORS 167.117 and 167.122 to 167.147 in which it is necessary to prove the occurrence of a sporting event, the following shall be admissible in evidence and shall be prima facie evidence of the occurrence of the event:

(1) A published report of its occurrence in a daily newspaper, magazine or other periodically printed publication of general circulation; or

(2) Evidence that a description of some aspect of the event was written, printed or otherwise noted at the place in which a violation of ORS 167.117 and 167.122 to 167.147 is alleged to have been committed. [1971 c.743 §270]

167.155 [Repealed by 1961 c.503 §3]

167.157 [1969 c.169 §1; repealed by 1971 c.743 §432]

167.158 Lottery prizes forfeited to county; exception; action by county to recover. (1) Except for bingo or lotto operated by a charitable, fraternal or religious organization, all sums of money and every other valuable thing drawn as a prize in any lottery or pretended lottery, by any person within this state, are forfeited to the use of the county in which it is found, and may be sued for and recovered by a civil action.

(2) Nothing contained in ORS 105.550 to 105.600 shall interfere with the duty of officers to take possession of property as provided by subsection (1) of this section. [1971 c.743 §271; 1977 c.850 §3; 1989 c.846 §14]

167.160 [Repealed by 1961 c.503 §3]

167.162 Gambling device as public nuisance; defense; seizure and destruction. (1) A gambling device is a public nuisance. Any peace officer shall summarily seize any such device that the peace officer finds and deliver it to the custody of the sheriff, who shall hold it subject to the order of the court having jurisdiction.

(2) Whenever it appears to the court that the gambling device has been possessed in violation of ORS 167.147, the court shall adjudge forfeiture thereof and shall order the sheriff to destroy the device and to deliver any coins taken therefrom to the county treasurer, who shall deposit them to the general fund of the county. However, when the defense provided by ORS 167.147 (3) is raised by the defendant, the gambling device or slot machine shall not be forfeited or destroyed until after a final judicial determination that the defense is not applicable. If the defense is applicable, the gambling device or slot machine shall be returned to its owner.

(3) The seizure of the gambling device or operating part thereof constitutes sufficient notice to the owner or person in possession thereof. The sheriff shall make return to the court showing that the sheriff has complied with the order.

(4) Whenever, in any proceeding in court for the forfeiture of any gambling device except a slot machine seized for a violation of ORS 167.147, a judgment for forfeiture is entered, the court shall have exclusive jurisdiction to remit or mitigate the forfeiture.

(5) In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until the claimant proves that the claimant:

(a) Has an interest in the gambling device, as owner or otherwise, that the claimant acquired in good faith.

(b) At no time had any knowledge or reason to believe that it was being or would be used in violation of law relating to gambling.

(6) In any proceeding in court for the forfeiture of any gambling device except a slot machine seized for a violation of law relating to gambling, the court may in its discretion order delivery thereof to any claimant who shall establish the right to the immediate possession thereof, and shall execute, with one or more sureties, or by a surety company, approved by the court, and deliver to the court, a bond in such sum as the court shall determine, running to the State of Oregon, and conditioned to return such gambling device at the time of trial, and conditioned further that, if the gambling device be not returned at the time of trial, the bond may in the discretion of the court stand in lieu of and be forfeited in the same manner as such gambling device. [1971 c.743 §272; 1977 c.264 §2; 1999 c.59 §32; 2003 c.576 §391; 2005 c.22 §117]

167.164 Possession of gray machine; penalty; defense. (1) On and after December 1, 1991, a person commits the crime of possession of a gray machine if the person manufactures, sells, leases, transports, places, possesses or services a gray machine or conducts or negotiates a transaction affecting or designed to affect the ownership, custody or use of a gray machine.

(2) Possession of a gray machine is a Class C felony.

(3) Violation of, solicitation to violate, attempt to violate or conspiracy to violate subsection (1) of this section constitutes prohibited conduct for purposes of ORS chapter 475A, and shall give rise to civil in rem forfeiture as provided in ORS chapter 475A. A judgment providing for forfeiture may direct that the machine be destroyed.

(4) It is a defense to a charge of possession of a gray machine if the machine that caused the charge to be brought was manufactured prior to 1958 and was not operated for purposes of unlawful gambling. [1991 c.962 §5; 1999 c.59 §33]

167.165 [Repealed by 1963 c.340 §1 (167.170 enacted in lieu of 167.165)]

167.166 Removal of unauthorized video lottery game terminal. On and after December 1, 1991, any video lottery game terminal that is not authorized by the Oregon State Lottery Commission must be removed from the State of Oregon. [1991 c.962 §8]

Note: 167.166 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.167 Cheating. (1) A person commits the crime of cheating if the person, while in the course of participating or attempting to participate in any legal or illegal gambling activity, directly or indirectly:

(a) Employs or attempts to employ any device, scheme or artifice to defraud any other participant or any operator;

(b) Engages in any act, practice or course of operation that operates or would operate as a fraud or deceit upon any other participant or any operator;

(c) Engages in any act, practice or course of operation with the intent of cheating any other participant or the operator to gain an advantage in the game over the other participant or operator; or

(d) Causes, aids, abets or conspires with another person to cause any other person to violate paragraphs (a) to (c) of this subsection.

(2) As used in this section, “deceit,” “defraud” and “fraud” are not limited to common law deceit or fraud.

(3) Cheating is a Class C felony. [1997 c.867 §20]

167.170 [1963 c.340 §2 (enacted in lieu of 167.165); repealed by 1971 c.743 §432]

OFFENSES INVOLVING CONTROLLED SUBSTANCES

167.202 [1971 c.743 §273; 1974 s.s. c.67 §1; repealed by 1977 c.745 §3 (167.203 enacted in lieu of 167.202)]

167.203 Definitions for ORS 167.212 to 167.252. As used in ORS 167.212 to 167.252, unless the context requires otherwise:

(1) “Apothecary” means a pharmacist, as defined by ORS 689.005, and where the context so requires, the owner of a store or other place of business where controlled substances are compounded or dispensed by a licensed pharmacist.

(2) “Controlled substance” and “manufacture” have the meaning given those terms by ORS 475.005.

(3) “Official written order” means an order written on a form provided for that purpose by the United States Commissioner of Internal Revenue, under any laws of the United States making provision therefor, if such order form is not provided, then on an official form provided for that purpose by the State Board of Pharmacy.

(4) “Practitioner” has the meaning given that term by ORS 475.005.

(5) “Wholesaler” means a person who supplies controlled substances that the wholesaler has not produced or prepared, on official written orders, but not on prescriptions.

(6) “Unlawfully” means in violation of any provision of ORS 475.005 to 475.285 and 475.840 to 475.980. [1977 c.745 §33 (enacted in lieu of 167.202); 1979 c.777 §44; 1995 c.440 §14]

167.205 [Amended by 1961 c.333 §1; repealed by 1971 c.743 §432]

167.207 [1971 c.743 §274; 1973 c.680 §1; 1974 c.67 §2; repealed by 1977 c.745 §54]

167.210 [Repealed by 1971 c.743 §432]

167.212 Tampering with drug records. (1) A person commits the crime of tampering with drug records if the person knowingly:

(a) Alters, defaces or removes a controlled substance label affixed by a manufacturer, wholesaler or apothecary, except that it shall not be unlawful for an apothecary to remove or deface such a label for the purpose of filling prescriptions;

(b) Affixes a false or forged label to a package or receptacle containing controlled substances;

(c) Makes or utters a false or forged prescription or false or forged official written order for controlled substances; or

(d) Makes a false statement in any controlled substance prescription, order, report or record required by ORS 475.005 to 475.285 and 475.840 to 475.980.

(2) Tampering with drug records is a Class C felony. [1971 c.743 §275; 1977 c.745 §34; 1995 c.440 §15]

167.215 [Repealed by 1971 c.743 §432]

167.217 [1971 c.743 §276; 1973 c.680 §2; 1974 c.67 §3; repealed by 1977 c.745 §54]

167.220 [Amended by 1957 c.403 §8; 1961 c.261 §2; repealed by 1971 c.743 §432]

167.222 Frequenting a place where controlled substances are used. (1) A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285 and 475.840 to 475.980.

(2) Frequenting a place where controlled substances are used is a Class A misdemeanor.

(3) Notwithstanding subsection (2) of this section, if the conviction is for knowingly maintaining, frequenting or remaining at a place where less than one avoirdupois ounce of the dried leaves, stems, and flowers of the plant Cannabis family Moraceae is found at the time of the offense under this section, frequenting a place where controlled substances are used is a Class D violation.

(4) As used in this section, “frequents” means repeatedly or habitually visits, goes to or resorts to. [1971 c.743 §277; 1974 c.43 §1; 1977 c.745 §35; 1979 c.641 §1; 1991 c.67 §41; 1993 c.469 §3; 1995 c.440 §16; 1999 c.1051 §160]

167.225 [Repealed by 1971 c.743 §432]

167.227 [1969 c.655 §2; repealed by 1971 c.743 §432]

167.228 [1971 c.743 §278; repealed by 1977 c.745 §54]

167.230 [Repealed by 1971 c.743 §432]

167.232 [1971 c.743 §278a; repealed by 1977 c.745 §54]

167.235 [Amended by 1967 c.527 §1; repealed by 1971 c.743 §432]

167.237 [1967 c.527 §2; repealed by 1971 c.743 §432]

167.238 Prima facie evidence permitted in prosecutions of drug offenses. (1) Proof of unlawful manufacture, cultivation, transportation or possession of a controlled substance is prima facie evidence of knowledge of its character.

(2) Proof of possession of a controlled substance not in the container in which it was originally delivered, sold or dispensed, when a prescription or order of a practitioner is required under the provisions of ORS 475.005 to 475.285 and 475.840 to 475.980, is prima facie evidence that the possession is unlawful unless the possessor also has in possession a label prepared by the pharmacist for the drug dispensed or the possessor is authorized by ORS 475.005 to 475.285 and 475.840 to 475.980 to possess the controlled substance. [1971 c.743 §279; 1977 c.745 §36; 1995 c.440 §17]

167.240 [Repealed by 1971 c.743 §432]

167.242 [1971 c.743 §280; 1977 c.745 §37; 1995 c.440 §18; repealed by 1997 c.592 §6 (167.243 enacted in lieu of 167.242)]

167.243 Exemption contained in drug laws as defense to drug offenses. In any prosecution under ORS 167.212 and 167.222, any exception, excuse, proviso or exemption contained in ORS 475.005 to 475.285 and 475.840 to 475.980 shall be an affirmative defense. [1989 c.791 §16; 1995 c.440 §19; enacted in lieu of 167.242 in 1997]

167.245 [Amended by 1955 c.504 §1; 1959 c.322 §1; repealed by 1971 c.743 §432]

167.247 [1971 c.743 §281; 1977 c.745 §38; 1995 c.440 §20; repealed by 1997 c.592 §6 (167.248 enacted in lieu of 167.247)]

167.248 Search and seizure of conveyance in which drugs unlawfully transported or possessed. A district attorney or peace officer charged with the enforcement of ORS 167.212 and 167.222, having personal knowledge or reasonable information that controlled substances are being unlawfully transported or possessed in any boat, vehicle or other conveyance, may search the same without warrant and without an affidavit being filed. If controlled substances are found in or upon such conveyance, the district attorney or peace officer may seize them, arrest any person in charge of the conveyance and as soon as possible take the arrested person and the seized controlled substances before any court in the county in which the seizure is made. The district attorney or peace officer shall also, without delay, make and file a complaint for any crime justified by the evidence obtained. [1989 c.791 §17; enacted in lieu of 167.247 in 1997]

167.250 [Amended by 1959 c.322 §2; repealed by 1971 c.743 §432]

167.252 Acquittal or conviction under federal law as precluding state prosecution. No person shall be prosecuted under ORS 167.203 to 167.222 if the person has been acquitted or convicted under the federal narcotic laws of the same act or omission which it is alleged constitutes a violation of ORS 167.203 to 167.222. [1971 c.743 §282]

167.255 [Repealed by 1959 c.322 §3]

167.260 [Repealed by 1959 c.322 §3]

167.262 Adult using minor in commission of controlled substance offense. (1) It is unlawful for an adult to knowingly use as an aider or abettor or to knowingly solicit, force, compel, coerce or employ a minor, with or without compensation to the minor:

(a) To manufacture a controlled substance; or

(b) To transport, carry, sell, give away, prepare for sale or otherwise distribute a controlled substance.

(2)(a) Except as otherwise provided in paragraph (b) of this subsection, violation of this section is a Class A felony.

(b) Violation of this section is a Class A misdemeanor if the violation involves delivery for no consideration of less than five grams of marijuana. [1991 c.834 §1]

Note: 167.262 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.265 [Repealed by 1959 c.322 §3]

167.270 [Repealed by 1959 c.322 §3]

167.275 [Repealed by 1959 c.322 §3]

167.280 [Repealed by 1959 c.322 §3]

167.285 [Repealed by 1959 c.322 §3]

167.290 [Repealed by 1959 c.322 §3]

167.295 [Amended by 1963 c.314 §1; repealed by 1971 c.743 §432]

167.300 [Repealed by 1971 c.743 §432]

OFFENSES AGAINST ANIMALS

167.310 Definitions for ORS 167.310 to 167.351. As used in ORS 167.310 to 167.351:

(1) “Animal” means any nonhuman mammal, bird, reptile, amphibian or fish.

(2) “Domestic animal” means an animal, other than livestock, that is owned or possessed by a person.

(3) “Good animal husbandry” includes, but is not limited to, the dehorning of cattle, the docking of horses, sheep or swine, and the castration or neutering of livestock, according to accepted practices of veterinary medicine or animal husbandry.

(4) “Law enforcement animal” means a dog or horse used in law enforcement work under the control of a corrections officer, parole and probation officer, police officer or youth correction officer, as those terms are defined in ORS 181.610, who has successfully completed at least 360 hours of training in the care and use of a law enforcement animal, or who has passed the demonstration of minimum standards established by the Oregon Police Canine Association or other accredited and recognized animal handling organization.

(5) “Livestock” has the meaning provided in ORS 609.125.

(6) “Minimum care” means care sufficient to preserve the health and well-being of an animal and, except for emergencies or circumstances beyond the reasonable control of the owner, includes, but is not limited to, the following requirements:

(a) Food of sufficient quantity and quality to allow for normal growth or maintenance of body weight.

(b) Open or adequate access to potable water in sufficient quantity to satisfy the animal’s needs. Access to snow or ice is not adequate access to potable water.

(c) For a domestic animal other than a dog engaged in herding or protecting livestock, access to a barn, dog house or other enclosed structure sufficient to protect the animal from wind, rain, snow or sun and that has adequate bedding to protect against cold and dampness.

(d) Veterinary care deemed necessary by a reasonably prudent person to relieve distress from injury, neglect or disease.

(e) For a domestic animal, continuous access to an area:

(A) With adequate space for exercise necessary for the health of the animal;

(B) With air temperature suitable for the animal; and

(C) Kept reasonably clean and free from excess waste or other contaminants that could affect the animal’s health.

(f) For a livestock animal that cannot walk or stand without assistance:

(A) Humane euthanasia; or

(B) The provision of immediate and ongoing care to restore the animal to an ambulatory state.

(7) “Physical injury” means physical trauma, impairment of physical condition or substantial pain.

(8) “Physical trauma” means fractures, cuts, punctures, bruises, burns or other wounds.

(9) “Possess” has the meaning provided in ORS 161.015.

(10) “Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of a limb or bodily organ. [1985 c.662 §1; 1995 c.663 §3; 1999 c.756 §13; 2001 c.926 §7; 2003 c.543 §6; 2003 c.549 §1; 2005 c.264 §18]

167.312 Research and animal interference. (1) A person commits the crime of research and animal interference if the person:

(a) With the intent to interfere with research, releases, steals or otherwise causes the death, injury or loss of any animal at or from an animal research facility.

(b) With the intent to interfere with research, damages, vandalizes or steals any property in or on an animal research facility.

(c) With the intent to interfere with research, obtains access to an animal research facility to perform acts not authorized by that facility.

(d) Obtains or exerts unauthorized control over records, data, materials, equipment or animals of any animal research facility with the intent to interfere with research by concealing, abandoning or destroying such records, data, materials, equipment or animals.

(e) With the intent to interfere with research, possesses or uses equipment or animals that the person reasonably believes have been obtained by theft or deception from an animal research facility or without the authorization of an animal research facility.

(2) For the purposes of this section, “animal research facility” means any facility engaging in legal scientific research or teaching involving the use of animals.

(3) Research and animal interference is a:

(a) Class C felony if damage to the animal research facility is $2,500 or more; or

(b) Class A misdemeanor if there is no damage to the facility or if damage to the animal research facility is less than $2,500.

(4) Determination of damages to an animal research facility shall be made by the court. In making its determination, the court shall consider the reasonable costs of:

(a) Replacing lost, injured or destroyed animals;

(b) Restoring the animal research facility to the approximate condition of the facility before the damage occurred; and

(c) Replacing damaged or missing records, data, material or equipment.

(5) In addition to any other penalty imposed for violation of this section, a person convicted of such violation is liable:

(a) To the owner of the animal for damages, including the costs of restoring the animal to confinement and to its health condition prior to commission of the acts constituting the violation;

(b) For damages to real and personal property caused by acts constituting the violation; and

(c) For the costs of repeating an experiment, including the replacement of the animals, labor and materials, if acts constituting the violation cause the failure of an experiment. [1991 c.843 §2; 2001 c.147 §2; 2001 c.554 §1]

167.315 Animal abuse in the second degree. (1) A person commits the crime of animal abuse in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly or recklessly causes physical injury to an animal.

(2) Any practice of good animal husbandry is not a violation of this section.

(3) Animal abuse in the second degree is a Class B misdemeanor. [1985 c.662 §2]

167.320 Animal abuse in the first degree. (1) A person commits the crime of animal abuse in the first degree if, except as otherwise authorized by law, the person intentionally, knowingly or recklessly:

(a) Causes serious physical injury to an animal; or

(b) Cruelly causes the death of an animal.

(2) Any practice of good animal husbandry is not a violation of this section.

(3) Animal abuse in the first degree is a Class A misdemeanor.

(4) Notwithstanding subsection (3) of this section, animal abuse in the first degree is a Class C felony if:

(a) The person committing the animal abuse has previously been convicted of two or more of the following offenses:

(A) Any offense under ORS 163.160, 163.165, 163.175, 163.185 or 163.187 or the equivalent laws of another jurisdiction, if the offense involved domestic violence as defined in ORS 135.230 or the offense was committed against a minor child; or

(B) Any offense under this section or ORS 167.322, or the equivalent laws of another jurisdiction; or

(b) The person knowingly commits the animal abuse in the immediate presence of a minor child. For purposes of this paragraph, a minor child is in the immediate presence of animal abuse if the abuse is seen or directly perceived in any other manner by the minor child. [1985 c.662 §3; 2001 c.926 §8; 2003 c.577 §8]

167.322 Aggravated animal abuse in the first degree. (1) A person commits the crime of aggravated animal abuse in the first degree if the person:

(a) Maliciously kills an animal; or

(b) Intentionally or knowingly tortures an animal.

(2) Aggravated animal abuse in the first degree is a Class C felony.

(3) As used in this section:

(a) “Maliciously” means intentionally acting with a depravity of mind and reckless and wanton disregard of life.

(b) “Torture” means an action taken for the primary purpose of inflicting pain. [1995 c.663 §2; 2001 c.926 §9]

167.325 Animal neglect in the second degree. (1) A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such person’s custody or control.

(2) Animal neglect in the second degree is a Class B misdemeanor. [1985 c.662 §4]

167.330 Animal neglect in the first degree. (1) A person commits the crime of animal neglect in the first degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in the person’s custody or control and the failure to provide care results in serious physical injury or death to the animal.

(2) Animal neglect in the first degree is a Class A misdemeanor. [1985 c.662 §5; 2001 c.926 §10]

167.332 Prohibition against possession of domestic animal. (1) In addition to any other penalty imposed by law, a person convicted of violating ORS 167.315, 167.325, 167.330 or 167.340 or of a misdemeanor under ORS 167.320, may not possess a domestic animal for a period of five years following entry of the conviction. An offense under this subsection is an unclassified misdemeanor punishable by a fine not exceeding $1,000 and forfeiture of the animal as provided in ORS 167.350.

(2) In addition to any other penalty imposed by law, a person convicted of violating ORS 167.322 or of a felony under ORS 167.320, may not possess a domestic animal for a period of 15 years following entry of the conviction. An offense under this subsection is an unclassified misdemeanor punishable by a fine not exceeding $5,000 and forfeiture of the animal as provided under ORS 167.350. [2001 c.926 §3]

167.333 Sexual assault of animal. (1) A person commits the crime of sexual assault of an animal if the person:

(a) Touches or contacts, or causes an object or another person to touch or contact, the mouth, anus or sex organs of an animal or animal carcass for the purpose of arousing or gratifying the sexual desire of a person; or

(b) Causes an animal or animal carcass to touch or contact the mouth, anus or sex organs of a person for the purpose of arousing or gratifying the sexual desire of a person.

(2) Subsection (1) of this section does not apply to the use of products derived from animals.

(3) Sexual assault of an animal is a Class A misdemeanor. [2001 c.926 §5b; 2003 c.428 §1]

167.334 Evaluation of person convicted of violating ORS 167.333. Upon the conviction of a defendant for violation of ORS 167.333, the court may order a psychiatric or psychological evaluation of the defendant for inclusion in the presentence report as described in ORS 137.077. [2001 c.926 §5c]

Note: 167.334 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.335 Exemption from ORS 167.315 to 167.333. Unless gross negligence can be shown, the provisions of ORS 167.315 to 167.333 do not apply to:

(1) The treatment of livestock being transported by owner or common carrier;

(2) Animals involved in rodeos or similar exhibitions;

(3) Commercially grown poultry;

(4) Animals subject to good animal husbandry practices;

(5) The killing of livestock according to the provisions of ORS 603.065;

(6) Animals subject to good veterinary practices as described in ORS 686.030;

(7) Lawful fishing, hunting and trapping activities;

(8) Wildlife management practices under color of law;

(9) Lawful scientific or agricultural research or teaching that involves the use of animals;

(10) Reasonable activities undertaken in connection with the control of vermin or pests; and

(11) Reasonable handling and training techniques. [1985 c.662 §6; 1995 c.663 §4; 2001 c.926 §10a]

167.337 Interfering with law enforcement animal. (1) A person commits the crime of interfering with a law enforcement animal if the person intentionally or knowingly injures or attempts to injure an animal the person knows or reasonably should know is a law enforcement animal while the law enforcement animal is being used in the lawful discharge of its duty.

(2) Interfering with a law enforcement animal is a Class A misdemeanor. [Formerly 164.369]

167.339 Assaulting law enforcement animal. (1) A person commits the crime of assaulting a law enforcement animal if:

(a) The person knowingly causes serious physical injury to or the death of a law enforcement animal, knowing that the animal is a law enforcement animal; and

(b) The injury or death occurs while the law enforcement animal is being used in the lawful discharge of the animal’s duties.

(2) Assaulting a law enforcement animal is a Class C felony. [2003 c.543 §3]

167.340 Animal abandonment. (1) A person commits the crime of animal abandonment if the person intentionally, knowingly, recklessly or with criminal negligence leaves a domestic animal at a location without providing for the animal’s continued care.

(2) It is no defense to the crime defined in subsection (1) of this section that the defendant abandoned the animal at or near an animal shelter, veterinary clinic or other place of shelter if the defendant did not make reasonable arrangements for the care of the animal.

(3) Animal abandonment is a Class B misdemeanor. [1985 c.662 §8; 2001 c.926 §11]

167.345 Authority to enter premises; search warrant; notice of impoundment of animal; damage resulting from entry. (1) As used in this section, “peace officer” has the meaning given that term in ORS 161.015.

(2) If there is probable cause to believe that any animal is being subjected to treatment in violation of ORS 167.315 to 167.333 or 167.340, a peace officer, after obtaining a search warrant or in any other manner authorized by law, may enter the premises where the animal is located to provide the animal with food, water and emergency medical treatment and may impound the animal. If after reasonable effort the owner or person having custody of the animal cannot be found and notified of the impoundment, the notice shall be conspicuously posted on the premises and within 72 hours after the impoundment the notice shall be sent by certified mail to the address, if any, where the animal was impounded.

(3) A peace officer is not liable for any damages for an entry under subsection (2) of this section, unless the damages were caused by the unnecessary actions of the peace officer that were intentional or reckless.

(4) A court may order an animal impounded under subsection (2) of this section to be held at any animal care facility in the state. A facility receiving the animal shall provide adequate food and water and may provide veterinary care. [Formerly 167.860; 1993 c.519 §1; 1995 c.663 §5; 2001 c.926 §12]

167.347 Forfeiture of animal to animal care agency prior to disposition of criminal charge. (1) If any animal is impounded pursuant to ORS 167.345 and is being held by a county animal shelter or other animal care agency pending outcome of criminal action charging a violation of ORS 167.315 to 167.333 or 167.340, prior to final disposition of the criminal charge, the county or other animal care agency may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or other animal care agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney.

(2) Upon receipt of a petition pursuant to subsection (1) of this section, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days after the filing of the petition, or as soon as practicable.

(3)(a) At a hearing conducted pursuant to subsection (2) of this section, the petitioner shall have the burden of establishing probable cause to believe that the animal was subjected to a violation of ORS 167.315 to 167.333 or 167.340. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant, within 72 hours of the hearing, posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the animal from the date of initial impoundment to the date of trial.

(b) Notwithstanding paragraph (a) of this subsection, a court may waive for good cause shown the requirement that the defendant post a security deposit or bond.

(4) If a security deposit or bond has been posted in accordance with subsection (3) of this section, and the trial in the action is continued at a later date, any order of continuance shall require the defendant to post an additional security deposit or bond in an amount determined by the court that shall be sufficient to repay all additional reasonable costs anticipated to be incurred by the petitioner in caring for the animal until the new date of trial.

(5) If a security deposit or bond has been posted in accordance with subsection (4) of this section, the petitioner may draw from that security deposit or bond the actual reasonable costs incurred by the petitioner in caring for the impounded animal from the date of initial impoundment to the date of final disposition of the animal in the criminal action.

(6) The provisions of this section are in addition to, and not in lieu of, the provisions of ORS 167.350. [1995 c.369 §2; 2001 c.926 §13]

167.348 Placement of forfeited animal; preference. If an animal is forfeited according to the provisions of ORS 167.347 or 167.350, in placing the animal with a new owner, the agency to which the animal was forfeited shall give placement preference to any person or persons who had prior contact with the animal, including but not limited to family members and friends of the former owner whom the agency determines are capable of providing necessary, adequate and appropriate levels of care for the animal. [1995 c.369 §3]

167.350 Forfeiture of rights in mistreated animal; costs; disposition of animal. (1) In addition to and not in lieu of any other sentence it may impose, a court may require a defendant convicted under ORS 167.315 to 167.333 or 167.340 to forfeit any rights of the defendant in the animal subjected to the violation, and to repay the reasonable costs incurred by any person or agency prior to judgment in caring for each animal subjected to the violation.

(2) When the court orders the defendant’s rights in the animal to be forfeited, the court may further order that those rights be given over to an appropriate person or agency demonstrating a willingness to accept and care for the animal or to the county or an appropriate animal care agency for further disposition in accordance with accepted practices for humane treatment of animals. This subsection does not limit the right of the person or agency to whom rights are granted to resell or otherwise make disposition of the animal. A transfer of rights under this subsection constitutes a transfer of ownership.

(3) In addition to and not in lieu of any other sentence it may impose, a court may order the owner or person having custody of an animal to repay the reasonable costs incurred by any person or agency in providing minimum care to the animal.

(4) A court may order a person convicted under ORS 167.315 to 167.333 or 167.340 to participate in available animal cruelty prevention programs or education programs, or both, or to obtain psychological counseling for treatment of mental health disorders that, in the court’s judgment, contributed to the commission of the crime. The person shall bear any costs incurred by the person for participation in counseling or treatment programs under this subsection.

(5) ORS 131.550 to 131.600 do not apply to the forfeiture of an animal subjected to a violation of ORS 167.315 to 167.333 or 167.340. Any such animal is subject to forfeiture as provided in subsections (1) to (3) of this section. [Formerly 167.862; 1993 c.519 §2; 1995 c.663 §6; 2001 c.666 §29; 2001 c.926 §§14a,14b; 2005 c.830 §28]

167.351 Trading in nonambulatory livestock. (1) As used in this section:

(a) “Nonambulatory” means unable to stand or walk unassisted.

(b) “Livestock auction market” has the meaning given that term in ORS 599.205.

(2) A person commits the crime of trading in nonambulatory livestock if the person knowingly delivers or accepts delivery of a nonambulatory livestock animal at a livestock auction market. This subsection does not apply to the delivery to, or acceptance by, a licensed veterinarian at a livestock auction market for the purpose of humanely euthanizing or providing appropriate medical care to the animal.

(3) The crime of trading in nonambulatory livestock is a Class A misdemeanor. [2003 c.287 §2]

167.352 Interfering with assistance, search and rescue or therapy animal. (1) A person commits the crime of interfering with an assistance, a search and rescue or a therapy animal if the person intentionally or knowingly:

(a) Injures or attempts to injure an animal the person knows or reasonably should know is an assistance animal, a search and rescue animal or a therapy animal;

(b) Interferes with an assistance animal while the assistance animal is being used to provide assistance to a person with a physical impairment; or

(c) Interferes with a search and rescue animal or a therapy animal while the animal is being used for search and rescue or therapy purposes.

(2) As used in this section, “assistance animal” and “ person with a physical impairment” have the meanings given those terms in ORS 346.680.

(3) As used in this section and ORS 30.822:

(a) “Search and rescue animal” means that the animal has been professionally trained for, and is actively used for, search and rescue purposes.

(b) “Therapy animal” means that the animal has been professionally trained for, and is actively used for, therapy purposes.

(4) Interfering with an assistance, a search and rescue or a therapy animal is a Class A misdemeanor. [1993 c.312 §3; 2007 c.70 §37]

Note: 167.352 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.355 Involvement in animal fighting. (1) A person commits the crime of involvement in animal fighting if the person:

(a) Owns or trains an animal with the intention that the animal engage in an exhibition of fighting;

(b) Promotes, conducts, participates in or is present as a spectator at an exhibition of fighting or preparations thereto;

(c) Keeps or uses, or in any way is connected with or interested in the management of, or receives money for the admission of any person to any place kept or used for the purpose of an exhibition of fighting; or

(d) Knowingly suffers or permits any place over which the person has possession or control to be occupied, kept or used for the purpose of an exhibition of fighting.

(2) For purposes of this section:

(a) “Animal” means any bird, reptile, amphibian, fish or nonhuman mammal, other than a dog or a fighting bird as defined in ORS 167.426.

(b) “Exhibition of fighting” means a public or private display of combat between two or more animals in which the fighting, killing, maiming or injuring of animals is a significant feature. “Exhibition of fighting” does not include demonstrations of the hunting or tracking skills of an animal or the lawful use of animals for hunting, tracking or self-protection.

(3) Involvement in animal fighting is a Class A misdemeanor. [Formerly 167.865; 1987 c.249 §6; 2003 c.484 §9]

167.360 Definitions for ORS 167.360 to 167.375. As used in ORS 167.360 to 167.375:

(1) “Breaking stick” means a device designed for insertion behind the molars of a dog for the purpose of breaking the dog’s grip on another animal or object.

(2) “Cat mill” means a device that rotates around a central support with one arm designed to secure a dog and one arm designed to secure a cat, rabbit or other small animal beyond the grasp of the dog.

(3) “Dogfight” means a fight, arranged by any person, between two or more dogs the purpose or probable result of which fight is the infliction of injury by one dog upon another.

(4) “Dogfighting paraphernalia” means a breaking stick, cat mill, springpole, weighted or unweighted chain collar weighing 10 pounds or more, leather or mesh collar with a strap more than two inches in width, fighting pit or unprescribed veterinary medicine that is a prescription drug as defined in ORS 689.005.

(5) “Fighting dog” means a dog that is intentionally bred or trained to be used in, or that is actually used in, a dogfight. A dog does not constitute a fighting dog solely on account of its breed.

(6) “Fighting pit” means a walled area designed to contain a dogfight.

(7) “Springpole” means a biting surface attached to a stretchable device, suspended at a height sufficient to prevent a dog from reaching the biting surface while touching the ground. [1987 c.249 §1; 2005 c.467 §1]

Note: 167.360 to 167.375 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.365 Dogfighting. (1) A person commits the crime of dogfighting if the person knowingly does any of the following:

(a) Owns, possesses, keeps, breeds, trains, buys, sells or offers to sell a fighting dog, including but not limited to any advertisement by the person to sell such a dog.

(b) Promotes, conducts or participates in, or performs any service in the furtherance of, an exhibition of dogfighting, including but not limited to refereeing of a dogfight, handling of dogs at a dogfight, transportation of spectators to a dogfight, organizing a dogfight, advertising a dogfight, providing or serving as a stakes holder for any money wagered on a fight.

(c) Keeps, uses or manages, or accepts payment of admission to, any place kept or used for the purpose of dogfighting.

(d) Suffers or permits any place over which the person has possession or control to be occupied, kept or used for the purpose of an exhibition of dogfighting.

(2) Dogfighting is a Class C felony. [1987 c.249 §2]

Note: See note under 167.360.

167.370 Participation in dogfighting. (1) A person commits the crime of participation in dogfighting if the person knowingly:

(a) Attends or has paid admission at any place for the purpose of viewing or betting upon a dogfight.

(b) Advertises or otherwise offers to sell equipment for the training and handling of a fighting dog.

(2) Participation in dogfighting is a Class A misdemeanor. [1987 c.249 §3]

Note: See note under 167.360.

167.372 Possessing dogfighting paraphernalia. (1) A person commits the crime of possessing dogfighting paraphernalia if the person owns or possesses dogfighting paraphernalia with the intent that the paraphernalia be used to train a dog as a fighting dog or be used in the furtherance of a dogfight.

(2) Possessing dogfighting paraphernalia is a Class A misdemeanor. [2005 c.467 §3]

Note: See note under 167.360.

167.375 Seizure of fighting dogs; procedure. (1) Pursuant to ORS 133.525 to 133.703, a judge may order the seizure of alleged fighting dogs owned, possessed or kept by any person.

(2) The judge issuing an order for the seizure of a dog as provided in subsection (1) of this section may require the dog to be impounded at an animal shelter if the judge believes it to be in the best interest of the animal and the public to so order. The governmental unit, the agency of which executes the seizure of the dog, shall be responsible for the costs of impoundment at the animal shelter, but the governmental unit is entitled to receive reimbursement of those costs from the owner, possessor or keeper of the impounded dog. If the owner, possessor or keeper of the dog is subsequently convicted of dogfighting under ORS 167.365, the court may order the defendant to pay the costs of animal shelter as restitution in the case.

(3) In lieu of ordering such dogs seized under subsection (1) of this section to be impounded at an animal shelter, the court may order the dogs impounded on the property of their owner, possessor or keeper. If dogs are ordered impounded on the property of their owner, possessor or keeper, the court shall order such person to provide all necessary care for the dogs and to allow regular and continuing inspection of the dogs by any persons designated by the court, or the agents of such persons. The court shall further order the person not to sell or otherwise dispose of any of the dogs unless the court authorizes such sale or disposition, or until the seized dogs are released as evidence by the law enforcement agency that seized them, or restored to the person by the court pursuant to an order under ORS 133.643. [1987 c.249 §4]

Note: See note under 167.360.

167.379 [2001 c.666 §54; repealed by 2005 c.830 §48]

167.380 [1987 c.249 §5; repealed by 2001 c.666 §56]

167.385 Unauthorized use of livestock animal. (1) A person commits the crime of unauthorized use of a livestock animal when the person knowingly:

(a) Takes, appropriates, obtains or withholds a livestock animal from the owner thereof or derives benefit from a livestock animal without the consent of the owner of the animal; or

(b) Takes or holds a livestock animal and thereby obtains the use of the animal to breed, bear or raise offspring without the consent of the owner of the animal.

(2) Except as otherwise provided by law, offspring born to a female livestock animal or hatched from the egg of a female livestock animal belong to the owner of the female livestock animal until the owner transfers ownership of the offspring.

(3) As used in this section, “livestock animal” has the same meaning given that term in ORS 164.055.

(4) Unauthorized use of a livestock animal is a Class A misdemeanor.

(5) In addition to any criminal sanctions, if a defendant is convicted of the crime of unauthorized use of a livestock animal under this section, the court shall order the defendant to pay restitution to the owner of the animal. [1993 c.252 §1]

Note: 167.385 to 167.388 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.387 Definitions for ORS 167.387 and 167.388. As used in this section and ORS 167.388:

(1) “Livestock” has the meaning given in ORS 609.125.

(2) “Livestock production facility” means:

(a) Any facility or organization engaged in animal breeding, production or processing; or

(b) Any facility or institution whose primary purpose is to impound estray animals, as that term is defined in ORS 607.007. [1993 c.252 §4; 1999 c.756 §14]

Note: See note under 167.385.

167.388 Interference with livestock production. (1) A person commits the crime of interference with livestock production when the person, with the intent to interfere with livestock production:

(a) Takes, appropriates, obtains or withholds livestock from the owner thereof, or causes the loss, death or injury of any livestock maintained at a livestock production facility;

(b) Damages, vandalizes or steals any property located on a livestock production facility; or

(c) Obtains access to a livestock production facility to perform any act contained in this subsection or any other act not authorized by the livestock production facility.

(2) The crime of interference with livestock production is:

(a) A Class C felony if damage to the livestock production facility is $2,500 or more; or

(b) A Class A misdemeanor if there is no damage to the livestock production facility or if damage to the facility is less than $2,500.

(3) Determination of damages to a livestock production facility shall be made by the court. In making its determination, the court shall consider the reasonable costs of:

(a) Replacing lost, injured or destroyed livestock;

(b) Restoring the livestock production facility to the approximate condition of the facility before the damage occurred; and

(c) Replacing damaged or missing records, data, material, equipment or substances used in the breeding and production of livestock.

(4) In addition to any criminal sanctions, if a defendant is convicted of the crime of interference with livestock production under subsection (1) of this section, the court shall order the defendant to pay restitution to the owner of the animal or the owner of the livestock production facility. [1993 c.252 §§2,3; 2001 c.554 §2]

Note: See note under 167.385.

167.390 Commerce in fur of domestic cats and dogs prohibited; exception. (1) A person may not take, buy, sell, barter or otherwise exchange for commerce in fur purposes the raw fur or products that include the fur of a domestic cat or dog if the fur is obtained through a process that kills or maims the cat or dog. As used in this section, “domestic cat or dog” does not include coyote, fox, lynx, bobcat or any other wild or commercially raised wild feline or wild canine species or a hybrid thereof that is not recognized as an endangered species by the United States Fish and Wildlife Service.

(2) Violation of subsection (1) of this section, or any rule promulgated pursuant thereto, is a Class A misdemeanor when the offense is committed with a culpable mental state as defined in ORS 161.085. [1999 c.995 §§1,2]

Note: 167.390 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

OFFENSES INVOLVING TOBACCO

167.400 Tobacco possession by minors prohibited. (1) It is unlawful for any person under 18 years of age to possess tobacco products, as defined in ORS 431.840.

(2) Any person who violates subsection (1) of this section commits a Class D violation. [1991 c.970 §1; 1999 c.1051 §161]

Note: 167.400, 167.402 and 167.404 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.401 Tobacco purchase by minors prohibited; exceptions. (1) Except as provided in subsection (4) of this section, no person under 18 years of age shall purchase, attempt to purchase or acquire tobacco products as defined in ORS 431.840. Except when such minor is in a private residence accompanied by the parent or guardian of the minor and with the consent of such parent or guardian, no person under 18 years of age shall have personal possession of tobacco products.

(2) Any person who violates subsection (1) of this section commits a violation.

(3)(a) In lieu of any other penalty established by law, a person who is convicted for the first time of a violation of subsection (1) of this section may be ordered to participate in a tobacco education program or a tobacco use cessation program or to perform community service related to diseases associated with consumption of tobacco products. A person may be ordered to participate in such a program only once.

(b) In addition to and not in lieu of any other penalty established by law, a person who is convicted of a second violation of subsection (1) of this section through misrepresentation of age may be required to participate in a tobacco education or a tobacco use cessation program or to perform community service related to diseases associated with the consumption of tobacco products, and the court shall order that the person’s driving privileges and right to apply for driving privileges be suspended for a period not to exceed one year. If a court has issued an order denying driving privileges under this subsection, the court, upon petition of the person, may withdraw the order at any time the court deems appropriate. The court notification to the Department of Transportation under this subsection may include a recommendation that the person be granted a hardship permit under ORS 807.240 if the person is otherwise eligible for the permit.

(4) A minor acting under the supervision of an adult may purchase, attempt to purchase or acquire tobacco products for the purpose of testing compliance with a federal law, state statute, local law or retailer management policy limiting or regulating the delivery of tobacco products to minors. [1999 c.1077 §8]

Note: 167.401 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.402 Locating tobacco vending machines where minors have access prohibited. (1) No person having authority over such placement shall locate a vending machine from which tobacco products, as defined in ORS 431.840, in any form are dispensed in any place legally accessible to persons under 18 years of age except taverns and cocktail lounges, industrial plants, as defined in ORS 308.408, hotels and motels.

(2) Violation of subsection (1) of this section is a Class B violation. Each day of violation constitutes a separate offense. [1991 c.970 §2; 1999 c.1051 §162]

Note: See note under 167.400.

167.404 Limitation on right of city or county to regulate tobacco vending machines. Cities and counties by ordinance or resolution shall not regulate vending machines that dispense tobacco products, as defined in ORS 431.840, in any form and that are in any manner accessible to minors. [1991 c.970 §3]

Note: See note under 167.400.

167.405 [Repealed by 1971 c.743 §432]

167.407 Locating tobacco products where customers can access without store employee prohibited. (1) A person having authority over the location of cigarettes and other tobacco products in a retail store may not locate cigarettes or other tobacco products in a location in the store where the cigarettes or other tobacco products are accessible by store customers without assistance by a store employee.

(2) Violation of subsection (1) of this section is a Class B violation. Each day of violation constitutes a separate offense.

(3) Subsections (1) and (2) of this section do not apply if the location at which the cigarettes or tobacco products are sold is a store or other establishment at which persons under 18 years of age are prohibited. [2003 c.804 §84]

Note: 167.407 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.410 [Repealed by 1971 c.743 §432]

167.415 [Repealed by 1971 c.743 §432]

167.420 [Repealed by 1971 c.743 §432]

167.425 [Repealed by 1971 c.743 §432]

OFFENSES INVOLVING FIGHTING BIRDS

167.426 Definitions for ORS 167.426 to 167.439. As used in ORS 167.426 to 167.439:

(1) “Cockfight” means a fight between two or more birds that is arranged by a person and that has the purpose or probable result of one bird inflicting injury to another bird.

(2) “Constructive possession” means an exercise of dominion and control over the location and treatment of property without taking physical possession of the property.

(3) “Fighting bird” means a bird that is intentionally reared or trained for use in, or that actually is used in, a cockfight.

(4) “Gaff” means an artificial steel spur designed for attachment to the leg of a fighting bird in replacement of the bird’s natural spurs.

(5) “Slasher” means a steel weapon resembling a curved knife blade designed for attachment to the foot of a fighting bird. [2003 c.484 §1]

Note: 167.426 to 167.439 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.428 Cockfighting. (1) A person commits the crime of cockfighting if the person knowingly:

(a) Owns, possesses, keeps, rears, trains, buys, sells or advertises or otherwise offers to sell a fighting bird.

(b) Promotes or participates in, or performs services in furtherance of, the conducting of a cockfight. As used in this paragraph, “services in furtherance” includes, but is not limited to, transporting spectators to a cockfight, handling fighting birds, organizing, advertising or refereeing a cockfight and providing, or acting as stakeholder for, money wagered on a cockfight.

(c) Keeps, uses or manages, or accepts payment of admission to, a place for the conducting of a cockfight.

(d) Suffers or permits a place in the possession or control of the person to be occupied, kept or used for the conducting of a cockfight.

(e) Manufactures, buys, sells, barters, exchanges, possesses, advertises or otherwise offers to sell a gaff, slasher or other sharp implement designed for attachment to a fighting bird with the intent that the gaff, slasher or other sharp implement be used in cockfighting.

(2) Subsection (1)(a) of this section does not apply to the owning, possessing, keeping, rearing, buying, selling, advertising or otherwise offering for sale of a bird for purposes other than training the bird as a fighting bird, using or intending to use the bird in cockfighting or supplying the bird knowing that the bird is intended to be used in cockfighting.

(3) Cockfighting is a Class C felony. [2003 c.484 §2]

Note: See note under 167.426.

167.430 [Amended by 1961 c.648 §8; repealed by 1971 c.743 §432]

167.431 Participation in cockfighting. (1) A person commits the crime of participation in cockfighting if the person knowingly:

(a) Attends a cockfight or pays admission at any location to view or bet on a cockfight; or

(b) Manufactures, buys, sells, barters, exchanges, possesses, advertises or otherwise offers to sell equipment with the intent that the equipment be used in training or handling a fighting bird or for enhancing the fighting ability of a fighting bird. This paragraph does not apply to a gaff, slasher or other sharp implement designed for attachment to a fighting bird.

(2) Participation in cockfighting is a Class A misdemeanor. [2003 c.484 §3]

Note: See note under 167.426.

167.433 Seizure of fighting birds; procedure. (1) Pursuant to ORS 133.525 to 133.703, a judge may order the seizure of an alleged fighting bird owned, possessed or kept by any person.

(2) A judge ordering the seizure of an alleged fighting bird under subsection (1) of this section may order that the bird be impounded on the property of the owner, possessor or keeper of the bird. If a judge orders an alleged fighting bird impounded on the property of the owner, possessor or keeper of the bird, the court shall order the owner, possessor or keeper to provide all necessary care for the bird and to allow regular and continuing inspection of the bird by a person designated by the court, or the agent of a person designated by the court. The owner, possessor or keeper shall pay the costs of conducting the inspections. The court shall further order the owner, possessor or keeper not to sell or otherwise dispose of the bird unless the court authorizes the sale or disposition, or until the seized bird is forfeited pursuant to an order under ORS 167.435 or restored to the person pursuant to an order under ORS 133.643. [2003 c.484 §4]

Note: See note under 167.426.

167.435 Forfeiture of rights in fighting birds or property. (1) In addition to and not in lieu of any other penalty the court may impose upon a person convicted of cockfighting under ORS 167.428 or participation in cockfighting under ORS 167.431, the court shall include in the judgment an order for forfeiture to the city or county where the crime occurred of the person’s rights in any property proved to have been used by the person as an instrumentality in the commission of the crime, including any fighting bird. This subsection does not limit the ability of the court to dispose of a fighting bird as provided under subsection (2) of this section.

(2) A fighting bird is a public nuisance, regardless of whether a person has been convicted of cockfighting or participation in cockfighting. If a bird is ordered forfeited under subsection (1) of this section or is proved by a preponderance of the evidence in a forfeiture proceeding to be a fighting bird, the court shall order that the bird be destroyed or be otherwise disposed of. Upon the conviction of the person charged, the court shall adjudge all of the seized property of the person to be forfeited and shall order that the property be destroyed or otherwise disposed of. [2003 c.484 §5]

Note: See note under 167.426.

167.437 Constructive possession of fighting birds; procedure. (1) A peace officer having jurisdiction may, upon probable cause to believe that a bird is a fighting bird, take constructive possession of the bird on behalf of the law enforcement agency employing the officer.

(2) A peace officer who takes constructive possession of an alleged fighting bird pursuant to this section must do the following:

(a) Place a tag or other device approved by the law enforcement agency on the cage or other enclosure where the fighting bird is located. The tag or other device must clearly state that it is unlawful to conceal, remove or release the bird for purposes of interfering with law enforcement agency control over the bird.

(b) Notify the owner, possessor or keeper of the bird that the bird has been seized by the law enforcement agency and may not be concealed, removed or released until authorized by a court or as provided in this section.

(c) Promptly apply to an appropriate court for an order described in ORS 167.433.

(3) If a law enforcement agency takes constructive possession of a fighting bird under this section, the owner, possessor or keeper of the bird shall provide all necessary care for the bird.

(4) Constructive possession of an alleged fighting bird pursuant to this section terminates when a court order described in ORS 167.433 is served on the owner, possessor or keeper of the bird, or after 24 hours, whichever occurs first. [2003 c.484 §6]

Note: See note under 167.426.

167.439 Forcible recovery of fighting bird. (1) A person commits the crime of forcible recovery of a fighting bird if the person knowingly dispossesses, or knowingly attempts to dispossess, a law enforcement agency of constructive possession of a fighting bird.

(2) Forcible recovery of a fighting bird is a Class C felony. [2003 c.484 §7]

Note: See note under 167.426.

OFFENSES INVOLVING UNUSED PROPERTY MARKETS

167.500 Definitions for ORS 167.502, 167.506 and 167.508. As used in ORS 167.502, 167.506 and 167.508:

(1) “Baby food” or “infant formula” means food manufactured, packaged and labeled specifically for sale for consumption by a child under the age of two years.

(2) “Medical device” means an object or substance that is:

(a) Required under federal law to bear the label “Caution: Federal law requires dispensing by or on the order of a physician”; or

(b) Defined by federal law as a medical device and is intended:

(A) For use in the diagnosis of disease or other conditions in humans or animals;

(B) For use in the cure, mitigation, treatment or prevention of disease in humans or animals; or

(C) To affect the structure or a function of the bodies of humans or animals without achieving any of its principal intended purposes through metabolism or through chemical action within or on the bodies of humans or animals.

(3) “New and unused property” means tangible personal property:

(a) That was acquired by a person directly from a producer, manufacturer, wholesaler or retailer in the ordinary course of business and has not been used since its production or manufacture; or

(b) That was packaged when it was originally produced or manufactured and the property is in its original and unopened package.

(4)(a) “Nonprescription drugs” means drugs that may be sold without a prescription and that, in accordance with the requirements of the statutes and regulations of this state and the federal government, are:

(A) Prepackaged for use by a consumer;

(B) Prepared by a manufacturer or producer for use by a consumer; and

(C) Labeled and unadulterated.

(b) “Nonprescription drugs” does not include herbal products, dietary supplements, botanical extracts or vitamins.

(5) “Prior conviction” means a conviction that was entered prior to imposing sentence on the current crime, provided that the prior conviction is based on a crime committed in a separate criminal episode.

(6) “Unused property market” means an event:

(a) Where at least two persons offer new and unused property for sale or exchange and the person organizing or conducting the event charges a fee upon the sale or exchange of the new and unused property;

(b) Where at least two persons offer new and unused property for sale or exchange and a prospective buyer must pay a fee for admission to an area where new and unused property is offered for sale or exchange; or

(c) Where new and unused property is offered for sale or exchange for more than 12 days in one 12-month period. [2003 c.338 §1]

Note: 167.500, 167.502, 167.506 and 167.508 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.502 Sale of certain items at unused property market prohibited; exceptions. (1) Except as provided in subsection (2) of this section, a person may not offer for sale or exchange or knowingly permit the sale or exchange of baby food, infant formula, cosmetics, personal care products, nonprescription drugs or medical devices at an unused property market.

(2) A person may sell or exchange the items listed in subsection (1) of this section if the person:

(a) Has a written authorization that identifies the person as an authorized representative of the manufacturer or distributor of those items; and

(b) Makes the written authorization available for public inspection.

(3)(a) A person who violates this section commits a Class C misdemeanor.

(b) A person who violates this section and who has one prior conviction under this section that was entered within the last 10 years commits a Class B misdemeanor.

(c) A person who violates this section and who has two or more prior convictions under this section that were entered within the last 10 years commits a Class A misdemeanor. [2003 c.338 §2]

Note: See note under 167.500.

167.505 [Amended by 1959 c.530 §3; repealed by 1971 c.743 §432]

167.506 Recordkeeping requirements. (1) When a person purchases more than 10 items of new and unused property for resale at an unused property market, the person shall maintain a record for two years after the date of purchase.

(2) The record required in subsection (1) of this section must contain:

(a) The date of the purchase of the new and unused property;

(b) The name and address of the person from which the new and unused property was purchased;

(c) A description and identification of the new and unused property; and

(d) The price paid for the new and unused property.

(3) A person shall, upon request, provide the record described in subsection (2) of this section for the purpose of inspection within a reasonable time.

(4)(a) A person who violates this section commits a Class C misdemeanor.

(b) A person who violates this section and who has one prior conviction under this section that was entered within the last 10 years commits a Class B misdemeanor.

(c) A person who violates this section and who has two or more prior convictions under this section that were entered within the last 10 years commits a Class A misdemeanor. [2003 c.338 §3]

Note: See note under 167.500.

167.508 Exemptions from ORS 167.502 and 167.506. (1) ORS 167.502 and 167.506 do not apply to a person who:

(a) Sells or exchanges new and unused property that was not produced or manufactured within the last five years as indicated by the style of the packaging or of the material itself;

(b) Sells by sample, catalog or brochure for future delivery; or

(c) Makes a sales presentation to a consumer who received an individualized invitation to attend the sales presentation prior to the sales presentation from an owner or legal occupant of the premises where the sales presentation takes place.

(2) The recordkeeping requirements in ORS 167.506 do not apply to:

(a) A person who sells or exchanges new and unused property at an event that is organized and operated:

(A) For the exclusive benefit of a community chest, a fund, a foundation, an association or a corporation; and

(B) For religious, educational or charitable purposes.

(b) A person who sells or exchanges motor vehicles or trailers that are subject to state vehicle registration requirements.

(c) A person who sells or exchanges new and unused property at a gun show as defined in ORS 166.432.

(d) A person who sells or exchanges new and unused property at a livestock auction market as defined in ORS 599.205. [2003 c.338 §4]

Note: See note under 167.500.

167.510 [Amended by 1959 c.530 §4; repealed by 1971 c.743 §432]

167.515 [Repealed by 1971 c.743 §432]

167.520 [Repealed by 1971 c.743 §432]

167.525 [Repealed by 1971 c.743 §432]

167.530 [Repealed by 1971 c.743 §432]

167.535 [Amended by 1959 c.530 §5; repealed by 1971 c.743 §432]

167.540 [Repealed by 1971 c.743 §432]

167.545 [Repealed by 1971 c.743 §432]

167.550 [Amended by 1959 c.426 §8; repealed by 1971 c.743 §432]

167.555 [Repealed by 1971 c.743 §432]

167.605 [Amended by 1963 c.201 §1; repealed by 1971 c.743 §432]

167.610 [Repealed by 1971 c.743 §432]

167.615 [Repealed by 1971 c.743 §432]

167.620 [Repealed by 1971 c.743 §432]

167.625 [Repealed by 1971 c.743 §432]

167.630 [Repealed by 1971 c.743 §432]

167.635 [Repealed by 1971 c.743 §432]

167.640 [Repealed by 1971 c.743 §432]

167.645 [Repealed by 1971 c.743 §432]

167.705 [Amended by 1959 c.503 §6; repealed by 1971 c.743 §432]

167.710 [Repealed by 1971 c.743 §432]

167.715 [Repealed by 1971 c.743 §432]

167.720 [Repealed by 1971 c.743 §432]

167.725 [Repealed by 1971 c.743 §432]

167.730 [Repealed by 1971 c.743 §432]

167.735 [Repealed by 1971 c.743 §432]

167.740 [Amended by 1965 c.370 §1; repealed by 1971 c.743 §432]

167.745 [1959 c.200 §1; repealed by 1971 c.743 §432]

MISCELLANEOUS

167.808 Unlawful possession of inhalants. (1) For the purposes of this section:

(a) “Inhalant” means any glue, cement or other substance that is capable of causing intoxication and that contains one or more of the following chemical compounds:

(A) Acetone;

(B) Amyl acetate;

(C) Benzol or benzene;

(D) Butane;

(E) Butyl acetate;

(F) Butyl alcohol;

(G) Carbon tetrachloride;

(H) Chloroform;

(I) Cyclohexanone;

(J) Difluoroethane;

(K) Ethanol or ethyl alcohol;

(L) Ethyl acetate;

(M) Hexane;

(N) Isopropanol or isopropyl alcohol;

(O) Isopropyl acetate;

(P) Methyl cellosolve acetate;

(Q) Methyl ethyl ketone;

(R) Methyl isobutyl ketone;

(S) Nitrous oxide;

(T) Toluol or toluene;

(U) Trichloroethylene;

(V) Tricresyl phosphate;

(W) Xylol or xylene; or

(X) Any other solvent, material, substance, chemical or combination thereof having the property of releasing toxic vapors or fumes.

(b) “Intoxication” means any mental or physical impairment or incapacity.

(2) It is unlawful for a person to possess any inhalant if the person intends to use the inhalant for the purpose of inducing intoxication in the person who possesses the inhalant or for the purpose of inducing intoxication in any other person.

(3) A person may not use any inhalant for the purpose of inducing intoxication in the person using the inhalant or for the purpose of inducing intoxication in any other person.

(4) The prohibitions of this section do not apply to any substance that:

(a) Has been prescribed by a health practitioner, as described in ORS 31.740, and that is used in the manner prescribed by the health practitioner; or

(b) Is administered or used under the supervision of a health practitioner, as described in ORS 31.740.

(5)(a) Any person who violates this section commits a violation. Violation of this section is punishable by a fine of not more than $300. In addition to or in lieu of a fine, a juvenile court may require that a minor who engages in conduct prohibited by this section be provided with treatment and counseling.

(b) Notwithstanding paragraph (a) of this subsection, a second or subsequent violation of this section by a person is a Class B misdemeanor. If a juvenile court finds that a minor has engaged in conduct prohibited by this section on a second or subsequent occasion, the court shall require that the minor receive treatment and counseling. [1999 c.229 §1; 1999 c.1051 §322f]

Note: 167.808 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.810 Creating a hazard. (1) A person commits the crime of creating a hazard if:

(a) The person intentionally maintains or leaves in a place accessible to children a container with a compartment of more than one and one-half cubic feet capacity and a door or lid which locks or fastens automatically when closed and which cannot easily be opened from the inside; or

(b) Being the owner or otherwise having possession of property upon which there is a well, cistern, cesspool, excavation or other hole of a depth of four feet or more and a top width of 12 inches or more, the owner intentionally fails or refuses to cover or fence it with a suitable protective construction.

(2) Creating a hazard is a Class B misdemeanor. [1971 c.743 §284]

167.820 Concealing the birth of an infant. (1) A person commits the crime of concealing the birth of an infant if the person conceals the corpse of a newborn child with intent to conceal the fact of its birth or to prevent a determination of whether it was born dead or alive.

(2) Concealing the birth of an infant is a Class A misdemeanor. [1971 c.743 §286]

167.822 Improper repair of vehicle inflatable restraint system. (1) A person commits the crime of improper repair of a vehicle inflatable restraint system if the person knowingly:

(a) Installs as part of a vehicle inflatable restraint system an object that is not designed in accordance with federal safety regulations for the make, model and year of the motor vehicle; or

(b) If requested to repair or replace a vehicle inflatable restraint system, fails to install an object that is required to make a vehicle inflatable restraint system comply with federal safety regulations for the make, model and year of the motor vehicle.

(2) Improper repair of a vehicle inflatable restraint system is a Class A misdemeanor. [2001 c.439 §1]

Note: 167.822 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.824 Unlawful possession of undeployed air bags or air bag canisters. (1) A person may not possess more than two undeployed air bags or air bag canisters containing sodium azide that have been removed from a vehicle. This subsection does not apply to motor vehicle dealers, automobile repair facilities or dismantlers certified under ORS 822.110.

(2) A violation of subsection (1) of this section is a Class C misdemeanor. [2005 c.514 §2; 2005 c.654 §13b]

Note: 167.824 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

167.830 Employment of minors in place of public entertainment. Except as provided in ORS 167.840, any person operating or conducting a place of public amusement or entertainment, who employs or allows a child under the age of 18 years to conduct or assist in conducting any public dance, including but not limited to dancing by the child as a public performance, or to assist in or furnish music for public dancing, commits a Class D violation. [1971 c.743 §292; 1987 c.905 §18; 1999 c.1051 §163]

167.840 Application of ORS 167.830 limited. (1) ORS 167.830 does not apply if:

(a) Alcoholic beverages are not permitted to be dispensed or consumed in the place of public amusement or entertainment open to the individuals attending the public dance;

(b) Alcoholic beverages are not permitted to be dispensed or consumed in any place connected by an entrance to the place of public amusement or entertainment;

(c) Applicable laws, regulations and ordinances for the protection of children under the age of 18 years are observed in the conduct of the dance; and

(d) At least one responsible adult is present at all times during the public dance to see that applicable laws, regulations and ordinances for the protection of children under 18 years of age are observed.

(2) ORS 167.830 does not apply if the child has the written permission of the judge of the juvenile court, for the county in which the child resides, to conduct or assist in conducting the public dance. The judge of the juvenile court shall grant such permission only if:

(a) The parents or legal guardians of the child have consented to the child’s participation in such activity; and

(b) The judge has found that participation in such activity will not be inconsistent with the health, safety and morals of the child.

(3) This section is not intended to make lawful any activity that is prohibited within a political subdivision of this state by ordinance or other regulation of the political subdivision.

(4) The requirements of this section are in addition to, and not in lieu of, the requirements of ORS 653.315. [1971 c.743 §293]

167.850 [1971 c.743 §226; repealed by 1985 c.662 §15]

167.860 [1971 c.596 §1; 1973 c.836 §345; 1985 c.662 §7; renumbered 167.345]

167.862 [1983 c.648 §1; 1985 c.662 §9; renumbered 167.350]

167.865 [1977 c.539 §2; renumbered 167.355]

167.870 [1973 c.316 §1; repealed by 1999 c.729 §1]

_______________

Part III: The SC Staute. How does it Compare to Yours?

2009-02-27T19:15:00.000-08:00

Lets breakdown this law line by line. Now mind you, this is only my interpretation of the law, only a court can decide what it really means. Then we will make up a defendant and try to apply the law. My comments in italics. Some day I will learn HTML, but for now italics are the only thing that transfers from word to blog unaltered.

Title 47 - Animals, Livestock and Poultry
CHAPTER 1.
CRUELTY TO ANIMALS
SECTION 47-1-10. Definitions.
As used in this chapter:
(1) "Animal" means a living vertebrate creature except a homo sapien.
That’s pretty clear. ALL animals except humans. But it does not really separate animals we want to have around from animals we don’t. Are we talking about domestic animals or just any animal on your property?
(2) "Sustenance" means adequate food provided at suitable intervals of quantities of wholesome foodstuff suitable for the species and age, sufficient to maintain a reasonable level of nutrition to allow for proper growth and weight and adequate water provided with constant access to a supply of clean, fresh, and potable water provided in a suitable manner for the species.

Wait, what? Do they want adequate water or water at all times? Does that mean a dog in a crate must have water 24/7? If you crate your dog without water, do you feel like you should be criminally charged? As water that has been in the hot SC sun all day still clean and fresh? What is clean? Is a stream clean or do you have to test it? A pond? Is a pond clean? I think the fed section is pretty clear after they get past reasonable because they do define what the goal should be. If your animal is too skinny due to lack of food it was not reasonable.

(3) "Shelter" means shelter that reasonably may be expected to protect the animal from physical suffering or impairment of health due to exposure to the elements or adverse weather.

No way this can be interpreted to be anything but a right to shelter for the animal. Shelter is good. I am all for shelter, but it is not necessary and no doubt all the Ag people exempted do not supply shelter in a feet lot or at pasture. Lets face it, Cattle are woodland creatures like deer. If you see them outside grazing during the day they are being asked to do what they are not designed for. They do not even sweat. But is that cruel or negligence? On the other hand, this sort of makes it law that your animals must be inside during a storm. They must be protected from adverse weather. Not just having it available, but making sure they use it.

SECTION 47-1-20. Acts of agents imputed to corporations.
The knowledge and acts of agents and persons employed by corporations in regard to animals transported, owned or employed by or in the custody of such corporations shall be held to be the acts and knowledge of such corporations.
SECTION 47-1-30. Repealed by 1998 Act No. 367, Section 9, eff May 27, 1998.

SECTION 47-1-40. Ill-treatment of animals generally.
(A) Whoever knowingly or intentionally overloads, overdrives, overworks, ill-treats any animal, deprives any animal of necessary sustenance or shelter, inflicts unnecessary pain or suffering upon any animal, or by omission or commission knowingly or intentionally causes these things to be done, for every offense is guilty of a misdemeanor and, upon conviction, must be punished by imprisonment not exceeding sixty days or by a fine of not less than one hundred dollars nor more than five hundred dollars, or both, for a first offense; by imprisonment not exceeding ninety days or by a fine not exceeding eight hundred dollars, or both, for a second offense; or by imprisonment not exceeding two years or by a fine not exceeding two thousand dollars, or both, for a third or subsequent offense. Notwithstanding any other provision of law, a first offense under this subsection shall be tried in magistrate's or municipal court.

This law applies a knowing and intentional standard. So if you are just stupid and think animals do not need to eat you are not guilty. Some states take the knowingly out. Its hard to prove what people knew. I am not saying this is a bad thing. I think a criminal law should have a mens rhea or intentional element, but where or how do we know what people should have known to not do stupid things? Nobody is required to take a class, get a license on care or take a test. You just go get an animal. I suppose a common sense standard is applied, but common sense is not that common.

(B) Whoever tortures, torments, needlessly mutilates, cruelly kills, or inflicts excessive or repeated unnecessary pain or suffering upon any animal or by omission or commission causes the acts to be done for any of the offenses is guilty of a felony and, upon conviction, must be punished by imprisonment of not less than one hundred eighty days and not to exceed five years and by a fine of five thousand dollars.
This is the cruelty part. But what animals does it apply to? Mice? Are mouse traps illegal? They are cruel. What about poison? What kind of killing is not cruelly?

(C) This section does not apply to fowl, accepted animal husbandry practices of farm operations and the training of animals, the practice of veterinary medicine, agricultural practices, forestry and silvacultural practices, wildlife management practices, or activity authorized by Title 50, including an activity authorized by the South Carolina Department of Natural Resources or an exercise designed for training dogs for hunting, if repeated contact with a dog or dogs and another animal does not occur during this training exercise.

And here is a mindboggling list of exclusions. Fowl is beneath our compassion. And TRAINING??? That’s an odd thing to exclude. Spur a horse until it drips blood but its OK because its for training? What about whipping a dressage horse for an hour non-stop. That is excluded? And here we have agriculture excluded because we are really not talking about ALL non human animals—we are talking about certain non-human animals who’s right exceed their economic value as meat or fiber or other uses. Some accepted practices clearly violate the first 2 clauses. Wildlife, sorry, you do not get protection. So what is really left? Pets and livestock so far gone even the exemption does not apply. I am not sure how this law might apply to cruel wildlife management practices or cruel sport practices.

SECTION 47-1-50. Cruel work; carriage in vehicles; penalties.
(A) An owner, a possessor, or a person having the charge or custody of an animal may not:
(1) cruelly drive or work it when unfit for labor;
(2) carry it, or cause it to be carried, in or upon a vehicle or otherwise in an unnecessarily cruel or inhumane manner.
(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be punished for each offense in the manner prescribed in Section 47-1-40(A).

You can see how these laws evolved over time to address specific concerns. Carriage horses have their own clause, but they are pretty are these days. This is actually addressed in the first clause, but this clause might be a holdover form the days when many horses were draft animals.

SECTION 47-1-60. Cutting muscles of tails of horses, asses, mules, mares, or geldings prohibited.
Any person who (a) cuts the tissue or muscle of the tail of any horse, ass, mule, mare or gelding, or otherwise operates upon it in any manner for the purpose or with the effect of altering the natural carriage of the tail, except when such cutting or operation is necessary for the health or life of the animal, as certified to in writing by a licensed veterinarian, (b) causes, procures or knowingly permits such cutting or operation to be done or (c) assists in or is voluntarily present at such cutting or operation shall be guilty of a misdemeanor.
Any person convicted of violating any of the provisions of this section shall be fined not less than fifty nor more than one hundred dollars or imprisoned not less than fifteen nor more than thirty days.

Again, when did we stop cutting tails? Docking is out for horses, but not for dogs. Random cause driven laws. One cause that was popular in days gone by was the methods used on saddle seat horses to get a desired tail set. It made it in here. But it’s not the cutting off of part of an animal that is the problem, its just certain animals. Cut off bits of your dog all you want. And notice the categories. Are stallions the horses? Or would horses not naturally include mares and geldings? Can you cut fillies and colts?

SECTION 47-1-70. Abandonment of animals; penalties; hunting dog exception.
(A) A person may not abandon an animal. As used in this section "abandonment" is defined as deserting, forsaking, or intending to give up absolutely an animal without securing another owner or without providing the necessities of life. "Necessities of life" includes:
(1) adequate water which means a constant access to a supply of clean, fresh, and potable water provided in a suitable manner for the species;
(2) adequate food which means provision at suitable intervals of quantities of wholesome foodstuff suitable for the species and age, sufficient to maintain a reasonable level of nutrition to allow for proper growth and weight;
(3) adequate shelter which means shelter that reasonably may be expected to protect the animal from physical suffering or impairment of health due to exposure to the elements or adverse weather.
(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five hundred dollars or imprisoned not more than thirty days, or both. Offenses under this section must be tried in the magistrate's or municipal court.
(C) A hunting dog that is positively identifiable in accordance with Section 47-3-510 or Section 47-3-530 is exempt from this section.

Wait, wasn’t all this already covered in the first 2 sections? I think they mean to address literally dumping an animal off or leaving it completely. What is the distinction here and how does it apply to facts to make it a worse offense then the first one warranting harsher penalties?

SECTION 47-1-75. Immunity from civil and criminal liability.
Any person, including a person licensed to practice veterinary medicine, or an animal control officer or agent of the South Carolina Society for the Prevention of Cruelty to Animals or any society incorporated for that purpose, who in good faith and without compensation for services provided, acting without malice, recklessness, or gross negligence, renders emergency care or treatment to a domestic animal which is abandoned, ill, injured, or in distress related to an accident or disaster shall not be liable or subject to any civil or criminal liability for any injuries or harm to such animal resulting from the rendering of such care or treatment, or any act or failure to act to provide or arrange for further medical treatment or care for such animal.
I hate these things. No the laws, but the wording. Any person includes any person, but then having a list follow it makes me think NOT any person but just those listed.

SECTION 47-1-80. Destruction of abandoned infirm animal.
Any agent or officer of the Department of Health and Environmental Control or police officer or officer of the South Carolina Society for the Prevention of Cruelty to Animals or of any society duly incorporated for that purpose may lawfully destroy, or cause to be destroyed, any animal found abandoned and not properly cared for, appearing to be glandered, injured or diseased past recovery for any useful purpose.

I am not sure what glandered is. I could look it up, but they could have just used a word that is understandable. And “appearing to be past recovery for any useful purpose” makes me cringe. That covers a whole lot of pets and pasture puffs. Plus the definition of abandoned is not properly cared for, but its still not defined as anything else. If they drive by my house and see a lame old horse that I just got and is skinny, can they just kill it?

SECTION 47-1-90. Overloading and length of confinement of animals in railroad cars.
No railroad company in the carrying or transportation of animals shall overload the cars nor permit the animals to be confined in cars for a longer period than thirty-six consecutive hours without unloading them for rest, water and feeding for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes beyond the control of such railroad company; provided, however, that when animals shall be carried in cars in which they can and do have proper food, water and space and opportunity for rest, the foregoing provisions in regard to their being unloaded shall not apply.
In estimating such confinement the time during which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of thirty-six hours, except upon the contingencies hereinbefore stated.

Um. . . do a lot of shipping railroad cars lately?

SECTION 47-1-100. Care of animals unloaded during transit.
Animals unloaded as required by Section 47-1-90 shall be properly fed, watered and sheltered during such rest by the owner or person having the custody thereof or, in case of his default in so doing, then by the railroad company transporting such animals at the expense of the owner or person in custody thereof; and the company shall, in such case, have a lien upon such animals for food, care and custody furnished and shall not be liable for any detention of such animals.

SECTION 47-1-110. Violations of Sections 47-1-90 and 47-1-100.
Any company or the owner or custodian of such animals who shall fail to comply with the provisions of Sections 47-1-90 and 47-1-100 shall, for each and every such offense, if found guilty, be fined not less than fifty nor more than five hundred dollars, in any court of competent jurisdiction.

Hey, here’s an idea. Lets see this updated to trucks and trailers, huh?

SECTION 47-1-120. Custody of animals in charge of arrested persons.
When a person arrested is, at the time of the arrest, in charge of an animal, an agent of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, may take charge of the animal and deposit the animal in a safe place of custody or deliver the animal into the possession of the police or sheriff of the county or place where the arrest was made, who shall assume the custody of the animal; and all necessary expenses incurred in taking charge of the animal shall be a lien thereon.

I remember a case about 15 years ago. Police knock down door and raid house. The dog barks at police. They crack him over the head with baton and knock him out. They take him to animal control and refuse to give him back and plan on putting him down. They had the wrong house. There was no crime gong on inside that house at all. Even after this is discovered they will not give dog back. So one night dog is stolen from shelter. All letters to the editor are in favor of the dog thieves.
But back to the law. It costs $$ to bail out an animal. It is unclear whether a friend or relative can go get the animal immediately.

SECTION 47-1-125. Coloring or dying animals prohibited; sale or distribution of certain young animals prohibited; penalty.
(1) It is unlawful for any person to dye or color artificially any animal or fowl, including but not limited to rabbits, baby chickens, and ducklings, or to bring any dyed or colored animal or fowl into this State.
(2) It is unlawful for any person to sell, offer for sale or give away as merchandising premiums, baby chickens, ducklings or other fowl under four weeks of age or rabbits under two months of age to be used as pets, toys or retail premiums.
(3) This section shall not be construed to apply to any animal or fowl, including but not limited to rabbits, baby chickens and ducklings to be used or raised for agricultural purposes by persons with proper facilities to care for them or for poultry or livestock exhibitions.
(4) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than two hundred dollars or imprisoned for not more than thirty days.

This is all stuff dating back about 50 years. Easter chicks and ducks and bunnies were all over dyed in Easter colors. I like the juxtaposition of ITS BAD bit its NOT BAD if you are a farmer. Because Ag chicks can be sent in the mail and sent very young and apparently any color you want. Who is the protection f or and what standard is used to decide what is humane and what is not? Because I am kind of thinking I’d rather be a young pink pet chick then the one headed for the poultry house.

SECTION 47-1-130. Arrest for violation of laws prohibiting cruelty to animals.
Any person violating the laws in relation to cruelty to animals may be arrested and held, without warrant, in the same manner as in the case of persons found breaking the peace.

I wonder why no warrant?

SECTION 47-1-140. Care of animals after arrest of person in charge.
The person making the arrest, with or without warrant, shall use reasonable diligence to give notice to the owner of the animals found in the charge or custody of the person arrested, if the person is not the owner, and shall care and provide properly for the animals. The person making such arrest shall have a lien on the animals for the expense of such care and provision. But if such person making the arrest be an agent of the South Carolina Society for the Prevention of Cruelty to Animals, or other society incorporated for that purpose, the provisions of Section 47-1-120 shall apply in lieu of the provisions of this section. Notwithstanding any other provision of law, an animal may be seized preceding an arrest and pursuant to Section 47-1-150.

Yeah, the SC Supreme Court read this to require a warrant after all and a hearing. They basically voided this and said use 47-1-150 instead.

SECTION 47-1-150. Issuance of search warrant; purpose of section; motions regarding custody of animal; notice; care, disposal of, or return of animal.
(A) When complaint is made on oath or affirmation to any magistrate authorized to issue warrants in criminal cases that the complainant believes and has reasonable cause to believe that the laws in relation to cruelty to animals have been or are being violated in any particular building or place, such magistrate, if satisfied that there is reasonable cause for such belief, shall issue a search warrant authorizing any sheriff, deputy sheriff, deputy state constable, constable or police officer to search such building or place; but no search shall be made after sunset, unless specially authorized by the magistrate upon satisfactory cause shown. If an animal is seized pursuant to this section and the South Carolina Society for the Prevention of Cruelty of Animals, or other society incorporated for that purpose is involved with the seizure, the animal may be held pending criminal disposition of the case at a facility maintained or contracted by that agency.
(B) The purpose of this section is to provide a means by which a neglected or mistreated animal can be:
(1) removed from its present custody, or
(2) made the subject of an order to provide care, issued to its owner by the magistrate or municipal judge, any law enforcement officer, or any agent of the county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose and given protection and an appropriate and humane disposition made.
(C) Any law enforcement officer or any agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose may move before a magistrate for an order to:
(1) lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location if deemed by the court that removal is necessary to prevent further suffering or ill-treatment, or
(2) order the owner of any animal found neglected or cruelly treated to provide certain care to the animal at the owner's expense without removal of the animal from its present location, and shall forthwith petition the magistrate or municipal judge of the county or municipality wherein the animal is found for a hearing, to be set within twenty-four hours after the date of seizure of the animal or issuance of the order to provide care and held not more than two days after the setting of such date, to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal. The hearing shall be concluded, and the court order entered the date the hearing is commenced. No fee shall be charged for the filing of the petition. Nothing herein is intended to require court action for the taking into custody and making proper disposition of stray or abandoned animals as lawfully performed by animal control agents.

The recent case did not really apply the “or”. The “or’ is what they had to go on but the court decided the “or” was an “and”. And thus the importance of every letter and punctuation in a code.

(D) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of any animal pursuant to the provisions of this section shall have written notice served prior to the hearing set forth in subsection (C)(2), upon the owner of the animal, if he is known and is residing in the county where the animal was taken. The sheriff of the county shall not charge a fee for service of such notice. If the owner of the animal is known but is residing outside of the county wherein the animal was taken, notice of the hearing shall be by publication.
(E) If any seized animal held by court order at the owner's premises is removed without notification to the investigating agency, or if an animal becomes sick or dies, and the owner or custodian fails to immediately notify the investigating agency, the owner must be held in contempt of court and fined up to the penalties provided by law.
(F) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either:
(1) The owner is adjudged by the court to be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner upon payment for the care and provision of the animal while in the agent's or officer's custody; or
(2) The animal is turned over to the officer or agent as provided in Section 47-1-170 and a humane disposition of the animal is made.
(G) If the court determines that the owner is able to provide adequately for, and have custody of the animal, the order shall provide that the animal in possession of the officer or agent be claimed and removed by the owner within seven days after the date of the order.
In reality these things take years and the board bills add up to huge amounts of $$$. However, in this state it take so much to get animals seized there are rarely mistakes and so far nobody has been wrongly accused.

SECTION 47-1-160. Disposition of fines.
All fines collected for violations of this chapter must be distributed as follows:
(1) If the trial court finds that there was a nonprofit animal humane organization in the municipality or county materially involved in or aiding in the prosecution of the violation, one-half of the fine must be distributed to the nonprofit animal humane organization and the remaining one-half must be distributed as is otherwise provided by law.

This is great. It’s a way to fund rescues. Does your state do this?

(2) If there is no finding of material involvement or aiding in the prosecution of the violation by a nonprofit animal humane organization, the fine must be distributed as is provided by law.

SECTION 47-1-170. Penalties for violations of chapter.
The owner or person having charge or custody of an animal cruelly used who is convicted of any violation of this chapter forfeits ownership, charge, or custody of the animal and at the discretion of the court, the person who is charged with or convicted of a violation of this chapter must be ordered to pay costs incurred to care for the animal and related expenses.

SECTION 47-1-200. Requirements for transfer of animals and importation or exportation of dog or cat; penalties for violations.
(A) During transportation, an animal must not be confined in one area for more than twenty-four consecutive hours without being adequately exercised, rested, fed, and watered. The time may be extended reasonably when an act of God causes a delay. The animal must be provided adequate space and ventilation.
(B) A dog or cat under eight weeks of age must not be imported or exported without being accompanied by its dam.
(C) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five hundred dollars or imprisoned for not more than thirty days, or both.

SECTION 47-1-210. Live animals as prizes; exceptions; penalties.
(A) It is unlawful to give away a live animal including, but not limited to, a fish, bird, fowl, or reptile, as a prize for, or as an inducement to enter, any contest, game, or other competition, or as an inducement to enter a place of amusement, or for these species to be used as an incentive to enter into any business agreement if the offer made was for the purpose of attracting trade.
(B) Nothing in this section may be construed to prohibit an auction or raffle of a live animal including, but not limited to, a fish, bird, fowl, or reptile. Further, the giving away or the testing of game or fowl for breeding purposes only is lawful and is not prohibited by this section as an incentive to enter into a business agreement if the person giving away or testing game or fowl is engaged in that trade.
(C) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be punished for each separate offense by a fine not to exceed three hundred dollars or imprisonment not to exceed thirty days, or both.
(D) This section does not apply when a live animal is given away as follows:
(1) by individuals or organizations operating in conjunction with a cooperative extension education program or agricultural vocational program sanctioned by the State Department of Education or local school districts;
(2) by individuals or organizations operating in conjunction with field trials approved by the Department of Natural Resources; or
(3) by kennels that advertise in national publications in regard to dogs that are registered with the United Kennel Club or the American Kennel Club.

Now this is just bizarre. That gold fish you won at the fair? GIVE IT BACK AND RUN! Why is it Ok for the AKC kennels to do it? Not sure what the basis for this is, but I am all for giving animals away. Lets ban selling them and see if their welfare improves?

Part II: Animal Rights are Already Here.

2009-02-26T16:30:00.001-08:00

Ok. I have been putting off posting on animal cruelty and welfare because it is highly unlikely I won’t piss someone off. I was chicken. I admit it. I tried to find a way to make everyone happy. I just can’t find it. So now you will be stuck with too much information and of course I will start with a history lesson. My blog. My thoughts.

Regulating the treatment of animals is not a modern concept. It’s in the bible. That’s pretty old. Lot of primitive cultures had certain ways of telling their people what was allowed and what was not. For example, the bible says in what manner animals for food may be killed. I am talking Old Testament here. Part of Kosher is a clean, humane slaughter. First argument; but that was religion and not a law. Wrong, religious beliefs were the law back then. You violate a religious practice and you might get stoned to death. There was no separation of church and state in a really big way. Old Testament does not wait for you to go to hell. They punish you themselves.

However, even back in biblical times the treatment of animals was a hodgepodge of completely random and capricious rules. Some eastern cultures forbid the intentional killing of any living thing—even an insect. Not so in our Judeo-Christian belief system. Kill the steer cleanly with no suffering, stay away from the pigs, fish have no rules unless they have a shell and if its vermin you kill it as fast as you can by any means. That is not a logical system. And its purpose is unclear. I am going to stick to the Judeo-Christian belief system because that is what out modern moral and legal code is derived from. At least for now.

In between biblical times and modern times the role and treatment of animals has mostly been all over the place. Prohibitions on treating animals poorly may have been for economic reasons, moral reasons, or just plain pride in a job well done. At times animals had no protections from ill abuse, but were subject to criminal prosecutions for moral failings. In the Middle Ages and right past the renaissance animals could be and were tried for crimes. If a human was tried for bestiality the animal was right there next to him and tried too. Dogs, cats, rats and all other creatures, even bugs, had court appointed lawyers to make sure they were guilty before they were executed for their crimes. For a long period of time an animal was entitled to much better legal representation than a human. I am just recounting theses facts. I am not even going to begin to try and explain it. Let’s just say morality was so important back then that even a rat had to act according to human social norms. And The Rule of Law was new and sort of cool so maybe they just got carried away.

The basis of our American modern anti-cruelty statutes is about 150 years old. It was considered bad for the morals of women and children to have to see animals beaten to death in the streets of the cities, so the first modern laws were drafted. The laws were not to protect animals, but to protect humans from having to witness such gruesome scenes. The constitutional basis for state police action was to protect the moral good—an allowed use of state powers. Over the years it was to protect moral good and human health and safety. But the key is that it was all about us and not about them. Then, due to changes in the political system, our nation laws started getting written that protected animals from cruelty for the animal’s sake.

Groups of concerned citizens could lobby for laws to be changed. People now had pets and saw some animals in a different light. Women got the vote and they became actively involved in “safe, feminine” causes like animal welfare acts. So on that day when the first anti-cruelty statute was written and put into a code section just for animals like the SC one below, animals had rights.

Commence freaking out now. I mean, we all know that Animal Rights is a future thing that we either support or fear, but most of us are completely blind to the fact AR are not new and are already in place. Isn’t that what PETA and the HSUS want? Certainly I am not lumping supporters of animal welfare among those that support animal rights! Yes, I am. A “right” is something granted by force of law and if there are laws granting certain animals the right to have minimum basic needs met, they have a RIGHT to those needs. They have a right to welfare standards set out by law. They have people assigned that can ask a court to enforce that right. They have rights already, so let that sink in.

Now, which animals have rights and what rights they have is controlled by both state and federal law. There are a lot of laws out there. The easiest way to get a handle on understanding what we are dealing with is to break it up into 2 kinds of crimes—neglect and cruelty. Neglect can be just ignorance or less then ideal conditions while cruelty is usually, but not always, intentional and outrageous. They often carry more severe punishments for intentional cruelty and there is less disagreement in what constitutes cruelty then neglect. Less, but not none.

The laws themselves often create completely artificial divisions between animals. They are based on which animals we have emotional feelings for and which ones we do not care for. They also exclude lots of common farming practices because while we may be outraged at a starving puppy, we do not want that to interfere with out hamburger for dinner. And fur and 4 legs ranks higher in most cases then other life forms, unless they are vermin and then we apply a completely different standard. If they are wild and endangered yet another standard is applied.

There is absolutely no rhyme or reason behind these laws if the object is to protect animals from unnecessary suffering. They reflect a world view of a Disney animation team as much as they do any logical distinctions. So, in many ways they are just like a lot of other laws. Its illegal because we say so, now go eat your pudding. We make it up and then justify it later. As long as most of us agree, it’s all fine and dandy. Because fish can’t feel pain anyway, right? No, not really. I eat raw oysters. That means I eat them ALIVE and they die when they hit my stomach acid. I am pretty sure if I quaffed down a few live kittens I would not be invited to your next dinner party.

So besides the fact that everything we think we know is probably wrong, it may also be unconstitutional to give animals rights without amending the constitution in some way. I know that is pretty far out there, but people go to jail for violating the rights of a non-human animal. But only some animals and some activities are illegal with absolutely no real standard to apply and no real state interest to allow police action. Animals are not supposed to have rights. If they do then don’t all animals have them? It sort of seems like the definition of arbitrary and capricious to me and in many cases the application of these laws is as arbitrary as I can possibly imagine. For example, say you have a pet pig and someone claims you are neglecting it. Just walk outside, shoot it with arrows until its good and dead and eat it. Problem solved. No pig no rights no case. And bacon is yummy. Huh? Or your horses are fine but the rats on our farm and in poor shape. Didn’t the statute say ALL non human animals? But what do they really mean? Is it vague? Like too vague? Like maybe void for vagueness vague?

Here is the SC code. Read it. Really read it. Who is it designed to protect? Who is it designed to punish? Can you see the difference between neglect and cruelty? Can you actually apply this law or see a way to comply with it?

Title 47 - Animals, Livestock and Poultry
CHAPTER 1.
CRUELTY TO ANIMALS
SECTION 47-1-10. Definitions.
As used in this chapter:
(1) "Animal" means a living vertebrate creature except a homo sapien.
(2) "Sustenance" means adequate food provided at suitable intervals of quantities of wholesome foodstuff suitable for the species and age, sufficient to maintain a reasonable level of nutrition to allow for proper growth and weight and adequate water provided with constant access to a supply of clean, fresh, and potable water provided in a suitable manner for the species.
(3) "Shelter" means shelter that reasonably may be expected to protect the animal from physical suffering or impairment of health due to exposure to the elements or adverse weather.
SECTION 47-1-20. Acts of agents imputed to corporations.
The knowledge and acts of agents and persons employed by corporations in regard to animals transported, owned or employed by or in the custody of such corporations shall be held to be the acts and knowledge of such corporations.
SECTION 47-1-30. Repealed by 1998 Act No. 367, Section 9, eff May 27, 1998.
SECTION 47-1-40. Ill-treatment of animals generally.
(A) Whoever knowingly or intentionally overloads, overdrives, overworks, ill-treats any animal, deprives any animal of necessary sustenance or shelter, inflicts unnecessary pain or suffering upon any animal, or by omission or commission knowingly or intentionally causes these things to be done, for every offense is guilty of a misdemeanor and, upon conviction, must be punished by imprisonment not exceeding sixty days or by a fine of not less than one hundred dollars nor more than five hundred dollars, or both, for a first offense; by imprisonment not exceeding ninety days or by a fine not exceeding eight hundred dollars, or both, for a second offense; or by imprisonment not exceeding two years or by a fine not exceeding two thousand dollars, or both, for a third or subsequent offense. Notwithstanding any other provision of law, a first offense under this subsection shall be tried in magistrate's or municipal court.
(B) Whoever tortures, torments, needlessly mutilates, cruelly kills, or inflicts excessive or repeated unnecessary pain or suffering upon any animal or by omission or commission causes the acts to be done for any of the offenses is guilty of a felony and, upon conviction, must be punished by imprisonment of not less than one hundred eighty days and not to exceed five years and by a fine of five thousand dollars.
(C) This section does not apply to fowl, accepted animal husbandry practices of farm operations and the training of animals, the practice of veterinary medicine, agricultural practices, forestry and silvacultural practices, wildlife management practices, or activity authorized by Title 50, including an activity authorized by the South Carolina Department of Natural Resources or an exercise designed for training dogs for hunting, if repeated contact with a dog or dogs and another animal does not occur during this training exercise.
SECTION 47-1-50. Cruel work; carriage in vehicles; penalties.
(A) An owner, a possessor, or a person having the charge or custody of an animal may not:
(1) cruelly drive or work it when unfit for labor;
(2) carry it, or cause it to be carried, in or upon a vehicle or otherwise in an unnecessarily cruel or inhumane manner.
(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be punished for each offense in the manner prescribed in Section 47-1-40(A).
SECTION 47-1-60. Cutting muscles of tails of horses, asses, mules, mares, or geldings prohibited.
Any person who (a) cuts the tissue or muscle of the tail of any horse, ass, mule, mare or gelding, or otherwise operates upon it in any manner for the purpose or with the effect of altering the natural carriage of the tail, except when such cutting or operation is necessary for the health or life of the animal, as certified to in writing by a licensed veterinarian, (b) causes, procures or knowingly permits such cutting or operation to be done or (c) assists in or is voluntarily present at such cutting or operation shall be guilty of a misdemeanor.
Any person convicted of violating any of the provisions of this section shall be fined not less than fifty nor more than one hundred dollars or imprisoned not less than fifteen nor more than thirty days.
SECTION 47-1-70. Abandonment of animals; penalties; hunting dog exception.
(A) A person may not abandon an animal. As used in this section "abandonment" is defined as deserting, forsaking, or intending to give up absolutely an animal without securing another owner or without providing the necessities of life. "Necessities of life" includes:
(1) adequate water which means a constant access to a supply of clean, fresh, and potable water provided in a suitable manner for the species;
(2) adequate food which means provision at suitable intervals of quantities of wholesome foodstuff suitable for the species and age, sufficient to maintain a reasonable level of nutrition to allow for proper growth and weight;
(3) adequate shelter which means shelter that reasonably may be expected to protect the animal from physical suffering or impairment of health due to exposure to the elements or adverse weather.
(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five hundred dollars or imprisoned not more than thirty days, or both. Offenses under this section must be tried in the magistrate's or municipal court.
(C) A hunting dog that is positively identifiable in accordance with Section 47-3-510 or Section 47-3-530 is exempt from this section.
SECTION 47-1-75. Immunity from civil and criminal liability.
Any person, including a person licensed to practice veterinary medicine, or an animal control officer or agent of the South Carolina Society for the Prevention of Cruelty to Animals or any society incorporated for that purpose, who in good faith and without compensation for services provided, acting without malice, recklessness, or gross negligence, renders emergency care or treatment to a domestic animal which is abandoned, ill, injured, or in distress related to an accident or disaster shall not be liable or subject to any civil or criminal liability for any injuries or harm to such animal resulting from the rendering of such care or treatment, or any act or failure to act to provide or arrange for further medical treatment or care for such animal.
SECTION 47-1-80. Destruction of abandoned infirm animal.
Any agent or officer of the Department of Health and Environmental Control or police officer or officer of the South Carolina Society for the Prevention of Cruelty to Animals or of any society duly incorporated for that purpose may lawfully destroy, or cause to be destroyed, any animal found abandoned and not properly cared for, appearing to be glandered, injured or diseased past recovery for any useful purpose.
SECTION 47-1-90. Overloading and length of confinement of animals in railroad cars.
No railroad company in the carrying or transportation of animals shall overload the cars nor permit the animals to be confined in cars for a longer period than thirty-six consecutive hours without unloading them for rest, water and feeding for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes beyond the control of such railroad company; provided, however, that when animals shall be carried in cars in which they can and do have proper food, water and space and opportunity for rest, the foregoing provisions in regard to their being unloaded shall not apply.
In estimating such confinement the time during which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of thirty-six hours, except upon the contingencies hereinbefore stated.
SECTION 47-1-100. Care of animals unloaded during transit.
Animals unloaded as required by Section 47-1-90 shall be properly fed, watered and sheltered during such rest by the owner or person having the custody thereof or, in case of his default in so doing, then by the railroad company transporting such animals at the expense of the owner or person in custody thereof; and the company shall, in such case, have a lien upon such animals for food, care and custody furnished and shall not be liable for any detention of such animals.
SECTION 47-1-110. Violations of Sections 47-1-90 and 47-1-100.
Any company or the owner or custodian of such animals who shall fail to comply with the provisions of Sections 47-1-90 and 47-1-100 shall, for each and every such offense, if found guilty, be fined not less than fifty nor more than five hundred dollars, in any court of competent jurisdiction.
SECTION 47-1-120. Custody of animals in charge of arrested persons.
When a person arrested is, at the time of the arrest, in charge of an animal, an agent of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, may take charge of the animal and deposit the animal in a safe place of custody or deliver the animal into the possession of the police or sheriff of the county or place where the arrest was made, who shall assume the custody of the animal; and all necessary expenses incurred in taking charge of the animal shall be a lien thereon.
SECTION 47-1-125. Coloring or dying animals prohibited; sale or distribution of certain young animals prohibited; penalty.
(1) It is unlawful for any person to dye or color artificially any animal or fowl, including but not limited to rabbits, baby chickens, and ducklings, or to bring any dyed or colored animal or fowl into this State.
(2) It is unlawful for any person to sell, offer for sale or give away as merchandising premiums, baby chickens, ducklings or other fowl under four weeks of age or rabbits under two months of age to be used as pets, toys or retail premiums.
(3) This section shall not be construed to apply to any animal or fowl, including but not limited to rabbits, baby chickens and ducklings to be used or raised for agricultural purposes by persons with proper facilities to care for them or for poultry or livestock exhibitions.
(4) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than two hundred dollars or imprisoned for not more than thirty days.
SECTION 47-1-130. Arrest for violation of laws prohibiting cruelty to animals.
Any person violating the laws in relation to cruelty to animals may be arrested and held, without warrant, in the same manner as in the case of persons found breaking the peace.
SECTION 47-1-140. Care of animals after arrest of person in charge.
The person making the arrest, with or without warrant, shall use reasonable diligence to give notice to the owner of the animals found in the charge or custody of the person arrested, if the person is not the owner, and shall care and provide properly for the animals. The person making such arrest shall have a lien on the animals for the expense of such care and provision. But if such person making the arrest be an agent of the South Carolina Society for the Prevention of Cruelty to Animals, or other society incorporated for that purpose, the provisions of Section 47-1-120 shall apply in lieu of the provisions of this section. Notwithstanding any other provision of law, an animal may be seized preceding an arrest and pursuant to Section 47-1-150.
SECTION 47-1-150. Issuance of search warrant; purpose of section; motions regarding custody of animal; notice; care, disposal of, or return of animal.
(A) When complaint is made on oath or affirmation to any magistrate authorized to issue warrants in criminal cases that the complainant believes and has reasonable cause to believe that the laws in relation to cruelty to animals have been or are being violated in any particular building or place, such magistrate, if satisfied that there is reasonable cause for such belief, shall issue a search warrant authorizing any sheriff, deputy sheriff, deputy state constable, constable or police officer to search such building or place; but no search shall be made after sunset, unless specially authorized by the magistrate upon satisfactory cause shown. If an animal is seized pursuant to this section and the South Carolina Society for the Prevention of Cruelty of Animals, or other society incorporated for that purpose is involved with the seizure, the animal may be held pending criminal disposition of the case at a facility maintained or contracted by that agency.
(B) The purpose of this section is to provide a means by which a neglected or mistreated animal can be:
(1) removed from its present custody, or
(2) made the subject of an order to provide care, issued to its owner by the magistrate or municipal judge, any law enforcement officer, or any agent of the county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose and given protection and an appropriate and humane disposition made.
(C) Any law enforcement officer or any agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose may move before a magistrate for an order to:
(1) lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location if deemed by the court that removal is necessary to prevent further suffering or ill-treatment, or
(2) order the owner of any animal found neglected or cruelly treated to provide certain care to the animal at the owner's expense without removal of the animal from its present location, and shall forthwith petition the magistrate or municipal judge of the county or municipality wherein the animal is found for a hearing, to be set within twenty-four hours after the date of seizure of the animal or issuance of the order to provide care and held not more than two days after the setting of such date, to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal. The hearing shall be concluded, and the court order entered the date the hearing is commenced. No fee shall be charged for the filing of the petition. Nothing herein is intended to require court action for the taking into custody and making proper disposition of stray or abandoned animals as lawfully performed by animal control agents.
(D) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of any animal pursuant to the provisions of this section shall have written notice served prior to the hearing set forth in subsection (C)(2), upon the owner of the animal, if he is known and is residing in the county where the animal was taken. The sheriff of the county shall not charge a fee for service of such notice. If the owner of the animal is known but is residing outside of the county wherein the animal was taken, notice of the hearing shall be by publication.
(E) If any seized animal held by court order at the owner's premises is removed without notification to the investigating agency, or if an animal becomes sick or dies, and the owner or custodian fails to immediately notify the investigating agency, the owner must be held in contempt of court and fined up to the penalties provided by law.
(F) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either:
(1) The owner is adjudged by the court to be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner upon payment for the care and provision of the animal while in the agent's or officer's custody; or
(2) The animal is turned over to the officer or agent as provided in Section 47-1-170 and a humane disposition of the animal is made.
(G) If the court determines that the owner is able to provide adequately for, and have custody of the animal, the order shall provide that the animal in possession of the officer or agent be claimed and removed by the owner within seven days after the date of the order.
SECTION 47-1-160. Disposition of fines.
All fines collected for violations of this chapter must be distributed as follows:
(1) If the trial court finds that there was a nonprofit animal humane organization in the municipality or county materially involved in or aiding in the prosecution of the violation, one-half of the fine must be distributed to the nonprofit animal humane organization and the remaining one-half must be distributed as is otherwise provided by law.
(2) If there is no finding of material involvement or aiding in the prosecution of the violation by a nonprofit animal humane organization, the fine must be distributed as is provided by law.
SECTION 47-1-170. Penalties for violations of chapter.
The owner or person having charge or custody of an animal cruelly used who is convicted of any violation of this chapter forfeits ownership, charge, or custody of the animal and at the discretion of the court, the person who is charged with or convicted of a violation of this chapter must be ordered to pay costs incurred to care for the animal and related expenses.
SECTION 47-1-200. Requirements for transfer of animals and importation or exportation of dog or cat; penalties for violations.
(A) During transportation, an animal must not be confined in one area for more than twenty-four consecutive hours without being adequately exercised, rested, fed, and watered. The time may be extended reasonably when an act of God causes a delay. The animal must be provided adequate space and ventilation.
(B) A dog or cat under eight weeks of age must not be imported or exported without being accompanied by its dam.
(C) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five hundred dollars or imprisoned for not more than thirty days, or both.
SECTION 47-1-210. Live animals as prizes; exceptions; penalties.
(A) It is unlawful to give away a live animal including, but not limited to, a fish, bird, fowl, or reptile, as a prize for, or as an inducement to enter, any contest, game, or other competition, or as an inducement to enter a place of amusement, or for these species to be used as an incentive to enter into any business agreement if the offer made was for the purpose of attracting trade.
(B) Nothing in this section may be construed to prohibit an auction or raffle of a live animal including, but not limited to, a fish, bird, fowl, or reptile. Further, the giving away or the testing of game or fowl for breeding purposes only is lawful and is not prohibited by this section as an incentive to enter into a business agreement if the person giving away or testing game or fowl is engaged in that trade.
(C) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be punished for each separate offense by a fine not to exceed three hundred dollars or imprisonment not to exceed thirty days, or both.
(D) This section does not apply when a live animal is given away as follows:
(1) by individuals or organizations operating in conjunction with a cooperative extension education program or agricultural vocational program sanctioned by the State Department of Education or local school districts;
(2) by individuals or organizations operating in conjunction with field trials approved by the Department of Natural Resources; or
(3) by kennels that advertise in national publications in regard to dogs that are registered with the United Kennel Club or the American Kennel Club.

Animal Welfare Laws: Abuse and Neglect part I

2009-02-18T21:50:00.000-08:00

Ahhhhhh. Finally. Some time to blog. A squall line just passed through tranquil Aiken, SC, shutting down the power for miles around. I know it’s a “squall line” because I was watching actual LIVE TV right before the power went off. The news was saying the “squall line had passed”. The weather was not watching the news, or if it was, it was not going to bow to the puny power of the local news guy and either turned around and came back just for spite or hung around because Aiken is so lovely. This does explain why my Dad sent me a cryptic e-mail at 2 pm saying if I need to go to a hotel to avoid tornadoes, charge it to his credit card. Although last time a hurricane hit my house I did not see it coming and would not have been in a hotel. But it was sweet to offer anyway.

Either way, the TV and lights all went out and the house got silent. Except for 3 things: 1) the panting of the damn dog who is thunder and rain phobic, 2) the soft sounds of The Boxer from Hell continually passing rancid gas and 3) the comforting glow of my lap-top. Because, baby, laptops have batteries and I still have a computer!!! Granted, I am cut off from my hard won AT&T wireless DSL which promised to be faithful through thick and thin yet bounced at the first sign of a power failure, but at least I have some light and can get some work done because heaven forbid I just sit quietly or go to sleep with the damn dog still panting and trying to crawl over the crate of the methane powered Boxer from Hell. And since I have no idea how long laptop batteries last and can’t find my flashlight anywhere, I’d better get to the subject at hand. Or lap. Or whatever.

Animal Abuse and Neglect. Animal abuse and neglect cases are tricky. Cruelty cases are often much easier, because most of us can agree on what is cruel, but unfortunately, like most laws, the codes of many states on animal welfare seem to have been written on a laptop while the power was out and leave too much to the discretions of law enforcement officers. I will eventually insert some examples of state laws (here) but that will have to wait until I have actual internet access.

First, let me say that in the last 10-20 years we have come light-years toward better legal protections for animals. When I was young, there wasn’t much in the way of animal cruelty law enforcement at all. When I was younger, but not as young, cruelty laws were starting to be enforced, but neglect cases were unheard of. We did not have “animal hoarders” and “seizures”. We had the Krazy Kat Lady down the road and most enforcement was done under the human health codes and not separate animal welfare codes. The power just came back on. Thank you Aiken Electric Co-op and you poor men and women out there in the rain making sure my 4 loyal readers have something to see in the next few days!

In the olden days, when Krazy Kat lady down the street had 450 cats in her 3 bedroom, 2 bath ranch house they were taken under the auspices of the health department or a local code limiting the number of house pets one may have. The focus was on protecting human health and welfare. It was not on saving the cats. Now we have animal welfare codes. Well we may have always had them, but they were never enforced, and the focus is on saving the animals—not the humans. But more importantly, the old codes were civil and only quasi-criminal in nature. The new codes are criminal. Criminal prosecutions bring in all those bothersome protections of the Constitution. Old fashioned administrative actions do not. So in order to save animals, you have to protect the constitutional rights of the animal owners. This makes things harder and makes people very passionate and emotional and upset about who will have the power to enforce and how the power will be used. KKL got herself a posse. Or a lynch mob. It depends on whether the TV and internet are working, I guess.

And the power just went on, so I’ll post this and see what happens:>

Re-cap of what has already been posted.

2009-02-16T11:48:00.000-08:00

In the past I have posted about estate planning for animal owners, liability for horse owners and barn owners, proposed legislation to clean up the horse industry, loose livestock, dog law, contracts including leases and waivers and a few other subjects. Click on the archives and open up the indexes.

And remember, I do law, others do tech. There are many web addresses that are not live links. Just cut and paste them into your browser.

This blog is designed to build on previous posts. If you read the section on contracts then cases with contracts in them will be clear. Same with other topics. When I post new stuff you may have to go back and read old stuff to fully understand what I am talking about. Because this blog is for non-lawyers and its is meant to make you readers educated consumers of legal services and help you prevent problems--not solve them once its too late.

As much as I love $$$$$ I would rather be helping people prevent lawsuits by understanding their rights and obligations then making money cleaning up messes that could have been avoided. A little bit of knowledge is a dangerous thing, but its also a good place to start to gain more knowledge.

You can ask 10 different lawyers the same question and get 10 different answers. We have reached a point in which The Law is no longer a big mystery hidden from clients behind a veil of dusty libraries and Latin terms. You can and must think for yourself. Listen to your lawyer, pay your lawyer, but take the time to educate yourself so if you find you are in need of a lawyer you can tell which one you need and not pay $$$$$$$$$$$$ to have concepts explained to you that you can learn yourself. Don't try and be your own lawyer, but you can reduce the stress of a legal action by having some idea of what is going on.

The answer may be that the law dates back to the 15th century and the needs of a King. No way you are going to guess that on your own, but understanding why things are as they are can do a whole lot to lower your blood pressure and demystify that stack of meaningless papers with terms like demurrer and laches and duty and breach.

And please, whenever possible, PREVENT messes instead of paying to clean them up!

Now back to just posting what I hope is a mix of educational material and somewhat amusing examples and cometary.

I am Still Here! Just Behind in Posting.

2009-02-16T11:36:00.000-08:00

So here are the topics I will be posting soon.
1) Animal abuse and neglect--the good, the bad and the ugly.
2) Liability for the Animals in your Care--you have duties to the animals too.
3) Taxes and why I hate tax time--Hobby vs Business and why you already know the answer
4) Employee or Contractor?--Should you be paying taxes and workers comp on that barn help?

I will answer 1 question from a SC resident. It will not be legal advice. I will not tell you what you should do. I will explain what is happening and why and what SC law says on the subject. Your mileage may vary.

Then I will start posting results of real cases. Now that you readers have had a mini version of a first year law school education, you should be able to have thoughts and opinions on the thoughts and opinions of what judges around the country have decided. There are no right answers, but the guy in the robe wins.

Its time to introduce the readers to the real world results.

You be the Judge (or Jury).

2009-01-31T14:10:00.000-08:00

Example #1. http://www.youtube.com/watch?v=jM1Lp51HRjs

I have nothing against people riding horses with no tack. Remember, its not negligence to hurt yourself. I do think in a state with a negligence standard for loose horses, once you leave a safe enclosed environment and go out in the open you will have very hard time convincing a judge or jury your horse was under control if you get dumped and the horse gets away. Its just like a dog off a leash—you may feel your training gives you control, but its not enough.

Example #2 http://www.youtube.com/watch?v=3SBl09gp1sA

Is this fence going to keep horses in?

Example #3 http://www.youtube.com/watch?v=nCwY7rTRN5g
This fence is not keeping any horse in. And what do they do? They film it!

Example #4 http://www.youtube.com/watch?v=bO5FgTY95ww

This one just has it all. The gate is broken. The owners are out of town. They have no horse sitter. They do not seem to know where the halters are. Somehow their clueless neighbors manage to save the day just by being really smart. They know nothing about horses, but they manage to get them back home safely.

Notice all the kids sitting around while horses gallop on the roads out of control. Notice in the end a woman says her horses are out all the time. The State Police call her to come and get them often.

Negligence?? It’s hard to say. That gate looks busted, but the place looks in very good shape. Maybe some kids came and took the halters and tried to play with the horses? In a strict liability state they would be at fault and look how many people could have been hurt! In a negligence state it may just be one of those things and there does not seem to be a history of these horses getting free.

I hope they bought those wonderful neighbors a new car or something!

Lastly, Example #5. http://www.youtube.com/watch?v=Gf83qDtIFpo

Yes, I know my jumper can clear 4 ft. But if I know he will not abide by our domestication agreement that he stay put in a reasonable fence, then I have to do something about it. That something is not make sure I capture it on film to post on the internet.

Loose Horses. Confusing and Complicated.

2009-01-29T16:40:00.000-08:00

Ok. Now you have had some time to digest what a scary liability filled world you live in. You have updated our releases, looked around and lowered your liability exposure and finally feel safe and secure again. Time to get you all worried once more. What if an animal gets off your property and someone gets hurt?

Just like with liability in general, your liability and responsibilities will depend on your state. You have two sources of law: the state code and the case law that interprets what the state code means. For example, the state code may say "[a] person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway. Now the courts must interpret “knowingly, highway, right of way and unattended. Each state will have a code and a big pile of case law to interpret that code. See “equinelaw.alisonrowe.com/2008/05/articles/livestock-laws/is-a-horseowner-liable-for-damages-if-a-horse-gets-loose” for an example of just how complicated this can be.

Some states have strict liability. That means if the animal is out and causes damages you pay. Nobody cares if you were at fault or negligent or knowingly did anything. You go straight from duty to damages with no stopping at breach or causation. Its out, you pay. Some states only hold you responsible for personal injuries if you negligently or knowingly let the animal get out. How they interpret “negligence” can range from “if its out you must have been negligent” (hence it becomes strict liability) to “you must have left a gate open or had ratty old fences or common practices that prove it’s your fault” or you win. Lastly, some states simply do not care. They put the burden on anyone out there to avoid loose livestock and fence it out or swerve around it if it’s on the road. You have no duty at all. They have a duty to not get hurt.

Why so much variation and interpretation about estrays? There are many reasons, but the biggest ones are that loose animals can cause serious damage and that often leads to insurance claims. Insurance companies can afford to fight legal battles as far as they can go. One loose horse can cause wrecked cars, dead people, permanent physical damage and extensive property damage. Someone has to pay and that is usually the insurance company. The other reason is simply the states historical traditions. Western states usually see livestock as having a right to everywhere they are not fenced out. Free range grazing is the norm so if you want a cow free yard or road you need to pay for the fence to keep them away. Eastern states are the opposite. You fence in or else. Depending on how often a code is updated adjoining counties may conflict so your farm may be half fence out and half fence in!

When you read case law you are usually reading the appeal of the original verdict. Most trial courts are not courts of record. You may read a short blurb or a news article about the case, but it is not until the appeal that legal opinions are rendered for publications by the courts. If its gotten as far as an appeal there is either a serious injury or an insurance company involved. A case like that would have taken several years and tens of thousands of dollars to reach an appellate decision. You do not see case law about Dobbin getting loose and eating neighbors Pansy patch. You see case law about horses on the road and smashed cars and broken bones or worse.

Often, the law is pretty clear on property damage from loose animals. You will pay for the Pansy patch or broken fence or ruined crops. When things get fuzzy and expensive is when some human or other animal gets injured. Vet bills and personal injury bills get expensive. The lawyers and insurance companies will try these cases and in some ways they make the judges make the laws. Whoever loses will almost certainly appeal. So you see lots of case law in this area.

So, how to find out the law in your state? First read the code. It’s usually under animals and or livestock. Then check your local county code. They may have something to say about animals too. Next, you will have to read the recent case law in your state. Sometimes it’s sort of surprising. For example, in Georgia they use a negligence standard, but the actual case law defines negligence in ways we might not. A horse got loose by breaking the gate and fence. The judge found that was negligence because the fence posts where not set in concrete. The horse had no history of breaking out or needing special fences, but the judge felt that if the posts had been set in concrete the horse would have not been able to escape. Kind of makes you wonder what a GA judge would think or electric wire fences?

You do not need to be a lawyer to look up case law and you do not need access to a law library or a subscription data base. Use google. Use the terms you are interested in like car+horse+injury but also use Plaintiff or Defendant or appellant and court. That will narrow down your results quite a bit. Don’t try and be your own lawyer if something goes wrong, but you can’t limit your liability if you have no idea what type of system your state uses.

I know the fence requirements in some states as outlined in the code have no bearing on the reality of what we actually use. Minimum of 4ft? Must be all wood? 6 foot for stallions and colts? Is that the reality these days when you look out your door? If you do not meet the state’s code requirements you might find yourself smack dab in the middle of strict liability. Or if the code asks for X and you do Y, that might be proof of your negligence. And guess what—many insurance policies do not cover your own negligence. They will try to avoid paying out the claim at the same time you are being sued by someone else or their insurance company. Nice.

I’ll dig up some You-tube examples for you to decide if you see negligence if you were on the jury or you were the judge.

Next we will talk some about other loose animals besides large livestock. Who is responsible for a dog bite?

How Far does your Duty Reach?

2009-01-25T01:24:00.000-08:00

Your liability for negligence reaches as far as your causation does. In most cases, that means if your negligence created the situation in which damages occurred--directly through your own action or inaction--then whatever you set into motion can come back and bite you in the a$$.

So if you let a horse get loose and it travels 200 miles and 4 months later someone gets hurt, are you still in trouble? Yep.

Next we will talk about liability for animals that get away from you and your property. These loose animals are called estrays.

Estrays can cost you. The people they hurt have signed no sort of release at all.

Not Negligence.

2009-01-25T01:22:00.001-08:00

http://www.youtube.com/watch?v=TeVwzNIfCzc

You may think it's stupid, unwise or asking for trouble, but it ain't negligence. Nobody has a duty to themselves. No duty, no breach, no negligence.

If the horse freaked out and harmed the rider? maybe then, but the woman under the horse has no one to sue. It's her horse, her idea and her choice.

What Negligence Looks Like: Part IV and final. For now.

2009-01-25T01:13:00.000-08:00

http://www.youtube.com/watch?v=gtWbMDZtjuw

Knew or should have known. Should this person have known there was a high risk of a horse bucking when wearing a saddle for the first time? Was the time and place safe and appropriate?

What Negligence Looks Like: Part III

2009-01-22T19:56:00.001-08:00

You are a facility owner. 3 days a week you rent to H/J shows. All mounted people must wear helmets on those days. 3 days a week you rent out to Western sports. Helmets are not required.
Your facility is made out of metal and you like to park tractors in the ring during speed events. But its OK because everyone knows only jumping is dangerous.

I chose one without small children getting smashed into metal fences.

http://www.youtube.com/watch?v=9oGjAcQtg54&feature=related

What Negligence Looks Like: Part II

2009-01-21T22:09:00.000-08:00

Part of being an instructor is knowing when your students are ready to do more challenging tasks. That's part art and part experience. We know if we wait too long to allow our students to jump, they may get bored and go somewhere else. If we let them jump too soon, they may get hurt and you get sued.

Here, IMHO, is too soon. I am not picking on the kids. They are very cute. I am not picking on the useful and saintly horses. They are also cute. I am simply showing an example of "too soon" and if you go to court with a hurt student and this video bring your checkbook. The camera person is out from lessons with a broken arm.

http://www.youtube.com/watch?v=AjsU2Atp_SU

Too soon? Just fine?

What Does Negligence Look Like?

2009-01-20T22:58:00.000-08:00

Negligence is almost by definition a hindsight view. If nothing goes wrong there was probably no negligence, or there was no reason to look for it because there was no damage done. If something goes wrong your every action becomes scrutinized. What you did, when you did it and what you did not do all matter.

Remember, torts 101--duty, breach, causation and damages.

Lets build on that a little and add some more small rules. You have no duty to assist or rescue anyone. However, once you begin or initiate a rescue, you now have a duty to make sure that person is OK until handed off to safety. Safety would be home, a hospital, the police etc. . .

So, lets say you are the instructor of a lesson. Student crashes at fence. Do you have a duty? Yes. You are in charge and giving the directions. But you are not liable unless there is negligence and damages. Student gets up, shakes off dirt, you say nothing, student re-mounts and tries again. More duty? No. But if you attempt a rescue, for example if you step forward to ask if student is OK, then you have a duty to make sure student is actually OK. You have assumed another duty and begun a rescue attempt.

The common law reason behind this rule is that someone else will be discouraged from helping because they believe you have things covered. So if you act like its your duty it becomes your duty.

Student crashes in your lesson and you ask if he is OK and then let him continue and the next day student have massive brain malfunction? Your problem? Yep. You assumed a duty and if you did not see student through to the ER for that CAT scan you might be liable. Remember, all those fancy laws and waivers won't protect you from negligence.

Now you have "what you knew or should have known" plus "what you did or should have done".

Here is an example. Rescue attempt or not? Comments are open.

http://www.youtube.com/watch?v=pu4gyoIvD5I&NR=1

Read the Titles on the Right >>>>>>>>>>

2009-01-14T16:23:00.000-08:00

I posted a really long Dog law entry so look at the titles of older posts if there is something you are looking for. The last post will scroll on forever:> The titles on the right are like a table of contents to the blog entries. And, as always, topics are read from bottom up. Last post on a topic shows up first.