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House Bill 24 Establishes Care Bond & Restitution for Livestock Cruelty Cases

House Bill 24 was signed by Governor DeWine on December 29, 2020. This lengthy bill goes into effect in 90 days. Most critically, HB 24 creates “care bond” hearings for livestock and allows courts to order convicted offenders to pay restitution for the care of those animals.

Care bond/cost of care laws help prevent humane societies and other law enforcement from incurring debilitating costs in animal cruelty cases and can help rescued animals find their new homes sooner, saving both money and animal lives.

Under current Ohio law, the seizure of a companion animal (generally cats, dogs, and some other animals kept in a residential dwelling) results in a judicial hearing within 10 days of seizure to determine whether the officer had probable cause to seize the companion animal, and if so, the amount of money (bond) necessary for the animal owner to pay for that companion animal’s care while it is impounded pending trial. If the owner does not pay the care bond, the animal may be forfeited to the impounding agency.

Livestock are not currently subject to the same care bond hearings and are held for an indefinite period of time pending trial. Restitution to the impending agency has not been upheld in these cases, causing the impounding agency to bear all costs of rescuing a neglected or abused livestock animal. Thus, under current law, it is an extreme burden for impounding agencies to rescue/care for livestock and livestock often endure long holds in a facility when they could otherwise be placed in a new home. HB 24 now ensures quick due process for the livestock owner, that livestock will not be held needlessly, and that the impounding agency may be justly compensated for care provided.

Here are some additional highlights:
⏩Reenacts current law provisions governing animal fighting, bestiality, and humane agent residency requirements, which were struck down in the Ohio Sixth Appellate District; thus making those provisions now enforceable in that district again
⏩Allows dog wardens to use chemical capture on companion animals
⏩Clarifies that a dog warden can “donate” or “adopt” out dogs that are not redeemed by their owner and may charge an adoption fee
⏩Codifies humane society procedures for appointment and removal of humane agents, nonprosecution agreements, and public records that were previously only determined by case law
⏩Creates a yearly report of humane society activity that is submitted to the county sheriff
⏩Removes the antiquated “Ohio Humane Society” and provisions regarding humane society enforcement of crimes related to children
⏩Specifies that a humane agent is a public servant for the purposes of bribery law
⏩Increases the minimum monthly salary of humane agents to $150 a month

The full text can be found here: https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_133/bills/hb24/EN/05?format=pdf

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Flying with an Emotional Support Animal? Airlines no longer required to give ESAs in-cabin access.

Yesterday, the U.S. Department of Transportation (DOT) announced revisions to the Air Carrier Access Act (ACAA) rule on the transportation of “emotional support” and service animals on airplanes. This decision comes after years of tension surrounding emotional support animals being allowed to fly in plane cabins for free.

Unlike service animals, there is no requirement that emotional support animals have any kind of training. There is also no restriction on the type of animal that provides emotional support, while service animals are dogs or, in limited cases, miniature horses. In recent years, individuals have attempted to bring a range of animals, including turtles, a pig, a squirrel, and even a peacock, onto flights as emotional support animals.

The new rule is in keeping with the Americans with Disabilities Act in that airlines can treat emotional support animals as pets and do not need to give such animals public access rights. Now, airlines must only allow task-trained service dogs to fly for free in plane cabins. Airlines are also permitted to require that the service dog fit within the handler’s foot space, which means they can preclude service miniature horses.

DOT also stood by its earlier decision that prohibits airlines from banning service animals who are of a certain breed. Delta currently bans pit bull service dogs.

Specifically, the new rule, which goes into effect in 30 days:

  • Defines a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability (no longer requiring airlines to accommodate miniature horses, cats, rabbits, birds and all other “service animals” that airlines are currently required to transport);
  • No longer considers an emotional support animal to be a service animal;
  • Requires airlines to treat psychiatric service animals the same as other service animals;
  • Allows airlines to require forms developed by DOT attesting to a service animal’s health, behavior and training, and if taking a long flight attesting that the service animal can either not relieve itself, or can relieve itself in a sanitary manner;
  • Allows airlines to require individuals traveling with a service animal to provide the DOT service animal form(s) up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time;
  • Prohibits airlines from requiring passengers with a disability who are traveling with a service animal to physically check-in at the airport instead of using the online check-in process;
  • Allows airlines to require a person with a disability seeking to travel with a service animal to provide the DOT service animal form(s) at the passenger’s departure gate on the date of travel;
  • Allows airlines to limit the number of service animals traveling with a single passenger with a disability to two service animals;
  • Allows airlines to require a service animal to fit within its handler’s foot space on the aircraft;
  • Allows airlines to require that service animals be harnessed, leashed, or tethered at all times in the airport and on the aircraft;
  • Continues to allow airlines to refuse transportation to service animals that exhibit aggressive behavior and that pose a direct threat to the health or safety of others; and
  • Continues to prohibit airlines from refusing to transport a service animal solely based on breed.

The full rule can be found here: https://www.transportation.gov/sites/dot.gov/files/2020-12/Service%20Animal%20Final%20Rule.pdf

And, as always, if you have questions about this new rule, consult an attorney.

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Being a volunteer is no defense to animal cruelty

The 11th District Court of Appeals rejected the argument that a volunteer cannot be criminally liable for animal cruelty or neglect.

Facts.  Jo Ann Brantweiner was charged with 8 counts of companion animal cruelty involving a total of 97 dogs and cats.  The animals were kept by a nonprofit organization known as the Animal Rescue Center in conditions of extreme filth.  The odor of urine and fecal ammonia caused their eyes and throat to burn.  Many animals were suffering from untreated illnesses, untreated, open wounds, emaciation and dehydration.  One had an exposed tendon.

Brantweiner was one of the main volunteers who cared for the animals. 

Brantweiner took her case to the Court of Appeals, claiming that a volunteer cannot be criminally responsible for animal neglect.  The Court rejected that argument.  A defendant can be a “custodian” or “caretaker” of an animal, subject to animal cruelty laws, even though she was an unpaid volunteer.

Brantweiner was ordered as part of sentencing to pay $85,000 restitution for the care of the animals prior to trial.  The Court of Appeals held that a trial court is not required to warn a defendant about the possibility of being ordered to pay restitution for care of neglected animals prior to trial, and failure to do so does not make the plea involuntary.  [Her restitution order was later reduced to $1,000 due to inability to pay.]

The case was investigated by the Eastlake Police Department with assistance from Lake Humane Society.

The Case citationState v. Brantweiner, 11th Dist. Lake Nos. 2019-L-155, 2019-L-156, 2019-L-157, 2019-L-158, 2019-L-159, 2019-L-160, 2019-L-161, 2019-L-162, 2020-Ohio-5235.

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Special sanctions for Ohio animal hoarders

Inside the ARC facility

The 11th District Court of Appeals upheld a number of notable, special sanctions in an animal hoarding case we prosecuted in the Willoughby Municipal Court for the Eastlake Police Department.

Facts:  Defendant Nadine Betchel operated a loosely organized nonprofit animal rescue operation called the Animal Resource Center in Eastlake, Ohio.  Officers executed a search warrant at the property.  Officers found 97 dogs and cats living in conditions of filth with high concentrations of urine and fecal ammonia.  Many were suffering from untreated medical issues.  All were deemed to be suffering unnecessarily by the veterinarian on scene and were removed and impounded at the Lake Humane Society.

Defendant was found guilty of eight counts of companion animal cruelty involving all 97 animals.

Here are the highlights from the Court of Appeals:

(a) A court may impose a lifetime ban on possessing companion animals.
(b) A court may order an offender to reimburse a humane society for costs of care and rehabilitation of victims of companion animal cruelty.
(c) $85,296.10 in restitution is not an unconstitutionally excessive fine, especially where the defendant makes efforts to prevent the humane society from adopting out the animals.
(d) A prosecution for companion animal cruelty does not require a finding of probable cause in an R.C. 959.132 civil forfeiture hearing. The two proceedings are separate and distinct.
(e) A court may only order 18 months in jail as the maximum term of consecutive misdemeanors.  If the trial court errs by ordering a longer term, the sentence may be simply modified and reduced to 18 months by the appellate court.

The Case:  State v. Bechtel, 11th Dist. Lake Nos. 2019-L-145, 2019-L-146, 2019-L-147, 2019-L-148, 2019-L-149, 2019-L-150, 2019-L-151, 2019-L-152, 2020-Ohio-4889

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Remote notary services now available!

We’re excited to announce that Holland & Muirden is now offering online notary services in Ohio!

Online notarization became legal in Ohio in September 2019 and requires the individual notary complete special training and pass an examination. Our notary public is authorized by the Secretary of State’s Office to perform these services.

An online notarization is performed by an authorized Ohio notary public when a signer personally appears before the notary using audio-visual technology instead of being physically present in the same location as the notary.  An online notarization requires the use of an online notarization system to perform the act, as the signer is not located in the same location as the notary. The ability to have a document notarized online is convenient and simplifies the entire process for notaries and clients alike. It also provides additional benefits such as:

➡️Providing a service to clients who simply are not able to make it to an office.

➡️Maintaining social/physical distancing.

➡️Saving trees! In addition to eliminating travel, online notarization can be a green service with digital-only copies of the documents being notarized.

In addition, this process offers clients additional security measures and creates a video recording of the entire notarization process. There is a state maximum fee of $25.00 per notarization.

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COVID-19: Responsible RestartOhio and Pets

The Ohio Department of Health and Gov. Mike DeWine issued a plan to restart Ohio’s economy during the ongoing COVID-19 pandemic on April 27, 2020.

How does Responsible RestartOhio pertain to pets and pet-related business?
✔️On May 1, 2020, veterinary services can resume. Yes, this means “non-essential” spay/neuters can be performed! Facilities that plan to resume providing services must adhere to infection control practices and have sufficient PPE.

✔️On May 12, 2020, consumer, retail, and services, may reopen. Consumer, retail, and services are not further defined, but many services that are often essential for pets, including retail grooming shops, dog walkers, and training centers, are NOT included on the continued closure list. Continued closures include:
-Schools and daycares
-Dine-in restaurants and bars (carry-out is still permitted)
-Personal appearance and beauty businesses
-Older adult daycare serveries and senior centers
-Adult day support or vocational rehabilitation services in group settings
-Entertainment, recreation, and gyms
The full list of continued business closures is available here: https://coronavirus.ohio.gov/…/responsible-restart-ohio/Co…/

Thus, previously closed pet-related businesses such as retail grooming shops and doggie daycares are likely not prohibited from re-opening on May 12. Pet-related businesses that plan to resume providing services must adhere to the Sector Specific Operating Requirements, which include protocols such as ensuring a minimum of 6 ft between people and/or having barriers, employee symptom checks, handwashing, accessible sanitizer, cleaning protocols, and maximum occupancy limits. As of April 28, 2020, face coverings are recommended for employees and guests. The full list of Sector Specific Operating requirements can be found here: https://coronavirus.ohio.gov/…/Sector-Specific-Operating-R…/

Businesses with questions about operating procedures can contact the ODH COVID-19 hotline (1-833-4-ASK-ODH) and/or an attorney for guidance.

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Covid-19: Connecting to loved ones in lock down

How do you connect with loved ones in lock down at nursing homes? Residents in nursing homes, assisted living, group homes or other care facilities are isolated in the best of times. Now, with the lock down of facilities to protect against Covid-19 infection, they are completely cut off from family and loved ones. What can you do to help?

Lockdowns protect the fragile

The elderly are the most likely to die from the Covid-19 virus. Most already have underlying conditions and the ravages of aging itself makes it harder to fend off virus symptoms that may be very severe.

Some of the very first precautions taken during the pandemic was the screening of visitors to nursing homes. A masked employee would take your temperature, give you a survey about recent travel and ask if you had any symptoms. Very soon after that, facilities completely closed to visitors and any other unnecessary personnel. Non-medical staff moved off site, and medical staff were screened before each shift. They would wear masks for their entire shifts.

Know what’s happening inside

Visiting a loved one in a nursing home is the best way to ensure they are being treated properly and are doing well. But, there are other ways to check on them during this lock down.

In Ohio, the Department of Health issued an order that nursing homes must notify family members within 24 hours if someone in the facility tests positive for Covid-19. Ohio also provides a list of facilities with reported cases at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards/long-term-care-facilities/cases

Family members also may wish call the facility and ask. Specific questions may include: Are patients confined to their rooms or allowed to be in the halls? Are they eating in their rooms? Have you had any cases? Have you had any deaths? What are you doing with those who test positive? Are you taking in new residents? Are you quarantining them before they are mixed in with current residents?

Also ask questions about your loved one’s general wellness: How is he/she? Is he/she eating properly? Do they seem worried or depressed? Are they less active than before? Is their health good? Are they showing any symptoms?

You may want to call every 7 to 10 days in most circumstances. Care facility staff are busy, but most will take a few minutes to update you on your loved one.

Some facilities have a web page available only to family members and loved ones to give updates on the facility and its response to the pandemic.

Connecting with your loved one

While you can’t visit, there are other ways to connect with your loved ones. The news is full of families standing outside windows waving or holding signs for their loved ones. Many facilities are offering Skype or other video sessions so you can see your loved one as you speak to them. Phone calls cheer up residents who can speak on the phone.

You might also try sending cards or letters. Having a child write a letter or draw a picture for their grandparent, uplifts the spirit of the child and the elder. If you usually bring a favorite snack to your loved one, ask the facility if you can mail it.

Keeping your loved one safe

The safest place for your elderly loved one is in a care facility which is taking the utmost precautions to prevent spread of the virus. As much as you would like to visit or take them out for a day, the most thoughtful thing you can do is to leave them in place until the virus threat is past. Meanwhile, keep in touch with the facility and your loved one.

For information about specific areas of law, see our web page: http://holland-muirden.com/

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COVID-19: Saving Pets with Special Contracts and Addendums

As a result of the coronavirus crisis, rescues, shelters, animal control facilities, dog wardens, and humane societies have an increased need for volunteer foster homes, who are a lifeline to alleviate overcrowding and economic hardships, as employees and volunteers are unable to come in and care for pets as they normally do.

Complicating matters is that in some situations, routine spay/neuter surgeries have been deemed “non-essential” in order to preserve supplies, such as PPE and oxygen, and to promote staff safety by encouraging social distancing.

Some rescue and shelter operations do not release pets into foster homes until they are spayed or neutered. Most do not release pets into permanent adoptive homes until they are spayed or neutered. Given the lack of available spay/neuter surgeries, a strong foster home, foster-to-adopt, or adoption contract with special spay/neuter provisions can be used to ensure that rescue and shelter operations are able to continue to place pets into foster and adoptive homes while still safeguarding their mission of reducing pet overpopulation. Such agreements give the shelter or rescue the ability to enforce the delayed spay/neuter and reclaim the pet (and/or its unintended offspring) if necessary.

The following sample language is a volunteer foster home agreement addendum. This is a supplement to a foster home contract and is only as strong as the foster home contract is itself. This addendum is not formatted to be used on its own and may not be legally enforceable on its own.  An effective and enforceable foster home contract will include additional critical provisions pertaining to the foster program, such as jurisdiction for enforcement and reimbursement for expenses such as food, transport, and medical care.

This sample addendum is provided for informational use only and should be reviewed by legal counsel in conjunction with the organization’s foster home contract. Rescues and shelters may also consider foster-to-adopt or adoption contracts with special addendums related to spay/neuter and COVID-19.

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Animal Care Exemption Letter during Coronavirus

Image result for dog with letter

Some animal shelter, rescue, and humane society employees and volunteers have reported that they are uncomfortable traveling during Ohio’s Stay at Home COVID-19 order, effective March 24th, because they fear being pulled over by law enforcement without documentation about their activities.

While most law enforcement agencies do not seem to be aggressively questioning citizens, a letter explaining that animal care activities are exempt may help quell these fears.

Here is a sample which you may wish to review with your own legal counsel:

To Whom It May Concern:

Please be advised that _____________ is a current employee/volunteer at ABC ANIMAL RESCUE (the Rescue) located at ___________________.  The Rescue is committed to taking responsible action to combat the spread of the COVID-19 virus, including compliance with all orders from the Ohio Department of Health (ODH.)

The Rescue is aware of the “Director’s Stay at Home Order” issued by ODH requiring all persons to stay at home unless they are engaged in an “essential work or activity.”  Paragraph 12(c) of that order specifically exempts “businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, kennels, and adoption facilities.”  Furthermore, Paragraph 7 of the order permits travel for the purpose of providing “veterinary care and all healthcare services provided to animals.”  Finally, Paragraph 5(e) permits travel in order to provide care for and the transportation of pets. 

The Rescue is an organization described in Paragraph 12(c) and is therefore exempt for the activities described above.  The person named above is authorized by the Rescue to travel for the purpose of providing these essential services.

Please call _______________ if you have questions or concerns.

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Ohio’s Coronavirus “Stay at Home” order and Animal Care

Image result for dog at home alone

Ohio’s COVID 19 “Stay at Home” order does not prevent you from caring for animals.

The Ohio Department of Health issued an emergency order effective March 24, 2020 requiring all Ohio citizens to shelter at home to prevent the spread of the coronavirus. But there are exceptions:

  • Paragraph 5(e) permits a person to travel in order to provide care for or for the transportation of pets.
  • Paragraph 7 permits travel for the purpose of providing “veterinary care and all healthcare services provided to animals.
  • Paragraph 12(c) specifically permits people to engage in “essential work or activity,”  including “businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, kennels, and adoption facilities.”  This means that humane societies, dog shelters, animal rescues and animal boarding facilities can continue their important work.

Remember, anyone who keeps, harbors or confines an animal has a legal duty to provide care to prevent unnecessary suffering. Failure to do so could result in criminal penalties. (See O.R.C. 959.13 and 959.131.)

We urge everyone in this time of emergency to use social distancing and to take extra efforts to clean and sanitize to avoid spreading the virus while you care for your pets, and while you continue the vital work of animal rescue.

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