HB4761 94TH GENERAL ASSEMBLY

LRB094 18883 RSP 54327 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4761

Introduced 01/18/06, by Rep. Mark H. Beaubien, Jr.

SYNOPSIS AS INTRODUCED:

510 ILCS 5/2.19b
510 ILCS 5/15	from Ch. 8, par. 365

Amends the Animal Control Act. Authorizes the animal control warden to find a dog vicious if (i) the dog without justification, attacks a person and causes serious physical injury or death, (ii) the dog is found to be a "dangerous dog" upon 3 separate occasions, or (iii) the animal control warden determines that the dog constitutes an undue danger to the public. (now, only a circuit court may determine that a dog is "vicious"). Sets forth certain factors that must be considered in determining whether the dog is an undue danger, including: (i) the circumstances of the dog's infraction; (ii) whether the dog's behavior was justified; (iii) the breed, prior history, and physical characteristics of the dog; (iv) the recommendation of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field; (v) the report of the investigating animal control warden, deputy administrator, or law enforcement officer; and (vi) Department guidelines. Requires that the animal control warden give notice of the infraction that is the basis of the investigation to the owner and conduct a thorough investigation prior to a vicious determination. Provides that the owner of a dog found to be vicious by the animal control warden shall be subject to a fine in the amount of $5,000, for each vicious finding, to be assessed by local law enforcement. Prohibits an order that a vicious dog be euthanized without judicial review. Authorizes the State's Attorney or any citizen of the county in which the dog exists to file a complaint in the circuit court asking that the court find the dog to be a vicious dog. Sets forth that all costs of impoundment, disposition, boarding, medical, or other costs related to the determination shall be borne by the owner. Requires the petitioner to prove the dog is a vicious dog by clear and convincing evidence; however, if animal control warden has found the dog to be vicious then there is a mandatory presumption that the dog is vicious. Sets forth conditions for appealing vicious dog determinations. Provides that the court proceeding for determining a dog vicious shall be an available remedy in addition to and independent of the determination of the animal control warden. Authorizes the finder of fact to consider the breed of the dog in any determination as to whether an individual dog is vicious. Requires the animal control warden to follow guidelines promulgated by the Department for determining that a dog is vicious. Sets forth that in adopting the guidelines, the Department shall follow the rulemaking procedures of the Illinois Administrative Procedure Act. Makes other changes. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning animals.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Animal Control Act is amended by changing Sections 2.19b and 15 as follows:

(510 ILCS 5/2.19b)

Sec. 2.19b. "Vicious dog" means a dog found to be vicious under Section 15 of this Act a dog that, without justification, attacks a person and causes serious physical injury or death or any individual dog that has been found to be a "dangerous dog" upon 3 separate occasions.

(Source: P.A. 93-548, eff. 8-19-03.)

(510 ILCS 5/15) (from Ch. 8, par. 365)

Sec. 15. Vicious dog determination.

(a) The animal control warden shall find a dog vicious if (i) the dog without justification, attacks a person and causes serious physical injury or death, (ii) the dog is found to be a "dangerous dog" upon 3 separate occasions, or (iii) the animal control warden determines that the dog constitutes an undue danger to the public. Factors that must be considered in determining whether the dog is an undue danger include:

(i) the circumstances of the dog's infraction;

(ii) whether the dog's behavior was justified;

(iii) the breed, prior history, and physical characteristics of the dog;

(iv) the testimony or written opinion of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field who has examined the dog;

(v) the recommendation of the investigating animal control warden, deputy administrator, or law enforcement officer; and

(vi) Department guidelines as provided under subsection (f) of this Section.

No determination of "vicious" dog shall occur under this Section without an animal control warden In order to have a dog deemed "vicious", the Administrator, Deputy Administrator, or law enforcement officer giving must give notice of the infraction that is the basis of the investigation to the owner and conducting , conduct a thorough investigation of the incident. The investigation shall include interviewing the owner and , interview any witnesses, including the owner, gathering gather any existing medical records, veterinary medical records, or behavioral evidence, and making and make a detailed written report. The animal control warden must make a declaration, in writing, that the dog is a vicious dog. recommending a finding that the dog is a vicious dog and give the report to the States Attorney's Office and the owner.

An owner of a dog found to be vicious by an animal control warden under this subsection (a) shall be subject to a fine in the amount of $5,000, for each vicious finding, to be assessed by local law enforcement. Amounts collected pursuant to this subsection shall be deposited in the county's animal control fund.

A final vicious dog determination by the animal control warden under this subsection (a) is an administrative decision subject to judicial review pursuant to the provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

An order that a vicious dog be euthanized may not be issued without judicial review under subsection (a-5) of this Section.

(a-5) The Administrator, State's Attorney, Director or any citizen of the county in which the dog exists may file a complaint in the circuit court in the name of the People of the State of Illinois asking that the court find the to deem a dog to be a vicious dog.

Testimony of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert may be relevant to the court's determination of whether the dog's behavior was justified.

The petitioner must prove the dog is a vicious dog by clear and convincing evidence, however, if the animal control warden has found the dog to be vicious under subsection (a) of this Section, then there shall be a mandatory presumption that the dog is vicious. The animal control warden Administrator shall determine where the animal shall be confined during the pendency of the case. All costs of impoundment, disposition, boarding, medical, or other costs related to the determination of a vicious dog shall be borne by the owner if the animal is found to be a vicious dog under this subsection.

A final vicious dog determination by the circuit court under this subsection (a-5) may be appealed pursuant to the civil appeals provisions of the Illinois Supreme Court Rules. If the owner of the dog has not appealed the vicious dog determination within 15 working days, the dog may be euthanized. Upon filing a notice of appeal, the order of euthanasia shall be automatically stayed pending the outcome of the appeal. The owner shall bear the burden of timely notification to animal control in writing. The court proceeding under this subsection (a-5) shall be an available remedy in addition to and independent of the determination of the animal control warden under subsection (a) of this Section.

(a-10) A dog may not be declared vicious if the court determines the conduct of the dog was justified because:

(1) the threat, injury, or death was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog, or was committing a willful trespass or other tort upon the premises or property owned or occupied by the owner of the animal;

(2) the injured, threatened, or killed person was abusing, assaulting, or physically threatening the dog or its offspring, or has in the past abused, assaulted, or physically threatened the dog or its offspring; or

(3) the dog was responding to pain or injury, or was protecting itself, its owner, custodian, or member of its household, kennel, or offspring.

Testimony of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert may be relevant to the court's determination of whether the dog's behavior was justified.

(a-15) No dog shall be deemed "vicious" if it is a professionally trained dog for law enforcement or guard duties. Vicious dogs shall not be classified in a manner that is specific as to breed, but the breed of the dog may be relevant in a determination as to whether an individual dog is vicious under this Section.

If the burden of proof has been met, the court shall deem the dog to be a vicious dog.

(a-20) If a dog is found to be a vicious dog, the owner shall pay a $100 public safety fine to be deposited into the Pet Population Control Fund, the dog shall be spayed or neutered within 10 days of the finding at the expense of its owner and microchipped, if not already, and the dog is subject to enclosure. If an owner fails to comply with these requirements, the animal control agency shall impound the dog and the owner shall pay a $500 fine plus impoundment fees to the animal control agency impounding the dog. The judge has the discretion to order a vicious dog be euthanized. A dog found to be a vicious dog shall not be released to the owner until the Administrator, an Animal Control Warden, or the Director approves the enclosure. No owner or keeper of a vicious dog shall sell or give away the dog without approval from the Administrator or court. Whenever an owner of a vicious dog relocates, he or she shall notify both the Administrator of County Animal Control where he or she has relocated and the Administrator of County Animal Control where he or she formerly resided.

(b) It shall be unlawful for any person to keep or maintain any dog which has been found to be a vicious dog unless the dog is kept in an enclosure. The only times that a vicious dog may be allowed out of the enclosure are (1) if it is necessary for the owner or keeper to obtain veterinary care for the dog, (2) in the case of an emergency or natural disaster where the dog's life is threatened, or (3) to comply with the order of a court of competent jurisdiction, provided that the dog is securely muzzled and restrained with a leash not exceeding 6 feet in length, and shall be under the direct control and supervision of the owner or keeper of the dog or muzzled in its residence.

Any dog which has been found to be a vicious dog and which is not confined to an enclosure shall be impounded by the Administrator, an Animal Control Warden, or the law enforcement authority having jurisdiction in such area.

If the owner of the dog has not appealed the impoundment order to the circuit court in the county in which the animal was impounded within 15 working days, the dog may be euthanized.

Upon filing a notice of appeal, the order of euthanasia shall be automatically stayed pending the outcome of the appeal. The owner shall bear the burden of timely notification to animal control in writing.

Guide dogs for the blind or hearing impaired, support dogs for the physically handicapped, and sentry, guard, or police-owned dogs are exempt from this Section if ; provided, an attack or injury to a person occurs while the dog is performing its duties as expected. To qualify for the exemption under this paragraph Section, each such dog shall be currently inoculated against rabies in accordance with Section 8 of this Act. It shall be the duty of the owner of such exempted dog to notify the Administrator of changes of address. In the case of a sentry or guard dog, the owner shall keep the Administrator advised of the location where such dog will be stationed. The Administrator shall provide police and fire departments with a categorized list of such exempted dogs, and shall promptly notify such departments of any address changes reported to him.

(c) If the animal control agency has custody of the dog, the agency may file a petition with the court requesting that the owner be ordered to post security. The security must be in an amount sufficient to secure payment of all reasonable expenses expected to be incurred by the animal control agency or animal shelter in caring for and providing for the dog pending the determination. Reasonable expenses include, but are not limited to, estimated medical care and boarding of the animal for 30 days. If security has been posted in accordance with this Section, the animal control agency may draw from the security the actual costs incurred by the agency in caring for the dog.

(d) Upon receipt of a petition, the court must set a hearing on the petition, to be conducted within 5 business days after the petition is filed. The petitioner must serve a true copy of the petition upon the defendant.

(e) If the court orders the posting of security, the security must be posted with the clerk of the court within 5 business days after the hearing. If the person ordered to post security does not do so, the dog is forfeited by operation of law and the animal control agency must dispose of the animal through adoption or humane euthanization.

(f) The animal control warden shall follow guidelines promulgated by the Department for determining that a dog is vicious under subsection (a) of this Section. The purpose of these guidelines shall be to promote uniformity in the application of this Section. In adopting these guidelines, the Department shall follow the rulemaking procedures of the Illinois Administrative Procedure Act. The guidelines shall be made available to the public via Department website.

(Source: P.A. 93-548, eff. 8-19-03; 94-639, eff. 8-22-05.)

Section 99. Effective date. This Act takes effect upon becoming law.