HomeMy WebLinkAboutCOM 0798.033 2004-2006
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FRED C. IIOLSCHUIL M.D. Phone No.: (808) 961-8264
Council Member 1ey~ Fax No.: (808) 961-8912
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HAWAII COUNTY COUNCIL
County of Hawai `i
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii 96710
November 27, 2006
The Honorable Stacy K. Higa, Chair,_
and Members of the County Council
County of Hawaii
Hilo, Hawaii 96720
RE: Bill No. 258, Draft 4
Relating to Animals
After consideration of the testimony received during our November 15, 2006 meeting, I propose
amendment of draft 4. The proposed amendments would accomplish the following:
1. Remove imprisonment as a possible penalty for all violations except for those related to
dangerous dogs and cockfighting.
2. Standardize penalties for animal nuisances, regulation of dogs, and defecation &
nuisance. This schedule of graduated penalties includes the following fines:
- $25 for a first offense;
- $50 for a second offense within the preceding two years; and
- $100 to $1,000 for repeat offenders who have had two or more prior offenses within
the preceding two years.
3. Clarify that bill 258 prohibits "unreasonable animal noise" as opposed to all animal noise.
4. Combine sections addressing standard enforcement procedure and places standard
enforcement language in a new article of general applicability, to improve the bill's
clarity. (Enforcement procedures relating to dangerous dogs would remain with that
article.)
5. Incorporate a number of changes suggested in public testimony and by the Legislative
Research Branch.
Comm. NO* '79$• 33
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Ref. Cate NOV 2 5 2006
Hawaii County Is An Equal Opportunity Provider And Employer
Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 2
The bill that results addresses the following areas of concern:
Article 1: Prohibits cockfighting
Article 2: Prohibits unreasonable animal noise, biting, stinging, or defecating
in inappropriate places.
Article 3: Requires dogs to be licensed
Article 4: Prohibits dogs from straying
Article 5: Regulates dangerous dogs
Article 6: Requires cats to be identified
Article 7: General provisions - prohibits cruelty to animals
Article 8: Establishes animal pounds
Article 9: Establishes general enforcement provisions
This bill creates a sound basic program for animal control in the County of Hawaii. Passage of
this basic framework will enable the council and community to focus future discussions on any
specific complex issues that may remain of interest.
This proposed draft 5 makes the following changes to draft 4: (Proposed changes are
ramseyered)
Overall Changes
1. Imprisonment deleted and penalties standardized regarding animal nuisances, regulation
of dogs, and cat identification. (Defecation and nuisance is also affected by this change
as it has been moved into the animal nuisance section.) This schedule of graduated
penalties includes the following fines:
- $25 for a first offense;
- $50 for a second offense within the preceding two years; and
- $100 to $1,000 for repeat offenders who have had two or more prior offenses within
the preceding two years.
Comment: At the last council meeting, opposition was expressed to prison time as a
sanction for violating the animal noise prohibitions. As this sanction
seems unreasonable, it was removed from all penalties sections in this
chapter except for those relating to cockfighting and dangerous dogs.
2. Enforcement provisions standardized and moved into separate article. Enforcement
provisions from Articles 2 (Animal Nuisances) and 4 (Regulation of Dogs), were
standardized and moved into an article that will apply to all articles except for Article 5
(Dangerous Dogs). Sec. 4-12 from draft 4 of this bill, "Annual report required" was
moved into this new article and made applicable to all enforcement actions affected by
this new article. This new article will read:
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 3
"Article 9. Enforcement
Section 4-51A. Applicability.
These provisions shall apply to enforcement actions initiated
pursuant to articles I (Cockfighting), 2 (Animal Nuisances), 3 (Dog
License), 4 (Regulation of Dogs), 6 (Cat ldentification Program), and 7
(General Provisions).
Section 4-52. Definitions.
As used in this article, unless the context otherwise requires:
"Animal control contractor" means the duly incorporated humane
society or organization formed for the prevention of cruelty to animals
which is contracted by the County to perform animal control services.
"Animal control officer" means any employee or trained volunteer
of the animal control contractor or the Hawai `i County police department
who is authorized to carry out and enforce the provisions of this chapter.
Such individual shall also be known as and may bear the title of
"enforcement officer. "
Section 4-53. Training, appointment, powers of animal control
contractor.
(a) Pursuant to section 143-2.5, section 143-7, and section 46-1.5(15),
Hawai `i Revised Statutes, an enforcement officer shall be
authorized to issue a complaint and summons or other form of
citation as the police chief may deem to be appropriate to enable
an enforcement officer to carry out and to perform the duties of an
enforcement officer pursuant to this chapter and any contract
between the County and the animal control contractor.
(b) The police chief shall verify that a person designated by the animal
control contractor to serve as an enforcement officer is qualified
and trained to serve in that capacity. The police chief shall be
empowered to establish minimum requirements for qualification
and training, which may be revised from time to time, provided
that a copy thereof, and of any revisions, shall be kept on file with
the police chiefs office thereof at all times. All County agencies,
officers and employees shall render their cooperation and
assistance to the police chieffor purposes of this subsection.
(c) The police chief, upon verification of an enforcement officer's
qualification and training, shall issue an oath of office and
identification badge or insignia to the enforcement officer.
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 4
(d) An enforcement officer's appointment, power and authority shall
be for a period of not more than two years unless the same is
sooner terminated by the enforcement officer's discharge as an
employee of the animal control contractor or discharge as an
enforcement officer by the police chief The police chief may
terminate and discharge an enjorcement officer's appointment
upon recommendation of the animal control contractor of which
the enforcement officer is an employee or upon a finding by the
police chief that the enforcement officer has failed to comply with
the minimum qualification and training requirements established
for enforcement of
ficers by the police chief
(e) No proceeding for the appointment, termination or discharge of
enforcement officers shall be subject to laws governing civil
service or public employees.
Section 4-54. Complaint and summons or other form of citation.
(a) There shall be provided for use by enforcement officers authorized
to enforce laws relating to the regulation and control of animals, a
form of complaint and summons or other form of citation for use in
citing violators of the provisions of chapter 143, Hawaii Revised
Statutes and this chapter. Said complaint and summons or other
form of citation shall be printed in a form commensurate with the
form of other complaints and summonses or other forms of
citations used in modern methods of arrest, so designed to include
all necessary information to make the same valid and legal within
the laws and regulations of the State of Hawai `i and the County of
Hawaii. The form and content of such complaint and summons or
other form of citation shall be as adopted or prescribed by the
administrative judge of the district courts.
(b) In every case when a complaint and summons or other form of
citation is issued, the original of the same shall be given to the
violator; provided that the administrative judge of the district
courts may prescribe the giving to the violator a copy of the
complaint and summons or other form of citation, and provide for
the disposition of the original and any other copies.
(c) Every complaint and summons or other form of citation shall be
consecutively numbered and each copy shall bear the number of its
respective original.
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 5
Section 4-55. Failure to obey complaint and summons or other form of
citation.
(a) It shall be unlawful, for any person to fail to appear at the place
and within the time specified in the complaint and summons or
other form of citation issued to such person by an officer for any
violation of any section of this article, regardless of the disposition
of the charge for which such person was originally cited.
However, if the minimum payment set by the issuing officer is paid
in full prior to the scheduled court date, then this section will not
apply.
(b) If the alleged violator does not appear at the respective district
court as designated by the complaint and summons or other form
of citation, or pay the fine assigned to the particular violation
prior to the court appearance date, a bench warrant for the arrest
of the alleged violator will be issued.
Section 4-56. Annual report required.
The animal control contractor shall render a full report of its
activities and operations relating to the enforcement of this chapter to the
mayor and the council within one month after the end of each fiscal year. "
3. Definitions found in secs. 4-4, 4-13, 4-26, and 4-32 were amended by replacing the
existing variety of phrases with the standard phrase, "As used in this article, unless the
context otherwise requires.-" prior to the first definition.
Comment: This change does not change the meaning of the definitions but does make
the chapter easier to understand.
Article 2. Animal Nuisances.
4. Sec. 4-4. Added definition of "Animal control officer."
This definition reads:
"Animal control officer" means any employee or trained volunteer of the animal control
contractor or the Hawaii County police department who is authorized to carry out and
enforce the provisions of this chapter. Such individual shall also be known as and may
bear the title of "enforcement officer.
"
Comment: This language was taken from Bill 4, draft 6 (with minor changes.)
4.a. Sec. 4-4. Amended definition of "Animal nuisance."
a) As amended, this definition now reads:
"Animal nuisance, "for the purposes of this section, shall include but not be limited to
any animal, farm animal, or poultry which:
(1) Makes unreasonable noise continuously and/or incessantly for a period of twenty
minutes; or
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 6
[(2) Barks-, whines, hew4, erows, eries, or make5 any i9ther unreasonable naise as
[q)]QNotwithstanding the provisions of section 142-75, Hawai `i Revised Statutes, or
any other applicable law, bites, or stings a person.
4.b. Sec. 4-4. Moved definition of "Unreasonable noise" from sec. 4-6(b), "Exceptions" to
definitions section. Incorporated "Barks, whines, howls, crows, cries..." from paragraph
(2) into this definition and added "unreasonably" before "interferes with reasonable
individual or group activities...."
This definition now reads:
"Unreasonable noise" means noise, including barking, whining, howling, crowing, or
crying, that considering the nature and the circumstances surrounding the noise,
including the nature of the location and the time of the day or night, unreasonably
interferes with reasonable individual or group activities such as, but not limited to,
communication, work, rest, recreation, or sleep. "
4.c. Sec. 4-5. Add term "unreasonable" before "noise, biting, or stinging...."
Comment regarding changes 4.a., 4.b., and 4.0;
Six persons submitted written testimony expressing concern that the prohibition
against continuous animal noise for twenty minutes would unreasonably punish
residents on agricultural land. As their testimony indicated, animal noise is a
usual and foreseeable part of life in agricultural areas.
To address these concerns, the provision was amended to prohibit "unreasonable"
noise for twenty minutes. The term "unreasonable noise" was:
a) Taken from the sec. 4-6 "Exceptions;"
b) Amended to incorporate barking, whining, howling, crowing, etc.;
c) Amended to prohibit noise that "considering the nature and the circumstances
surrounding the noise, including the nature of the location and the time of the
day or night, unreasonably interferes with reasonable individual or group
activities..."; and
d) Moved into the definitions section. (Sec. 4-4)
This change thus removes the straight prohibition against animal noise for twenty
minutes and replaces it with a prohibition against "unreasonable noise" for twenty
minutes. This change allows enforcement officials to consider noise complaints
on a case-by-case basis that allows consideration of all factors, including the
location on agricultural zoned land. This "case-by-case" approach to complaints
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 7
about animal noise in agricultural areas was suggested in testimony submitted by
Frances M. Moniz, regarding draft 4. (Comm. 798.27)
4.d. Sec. 4-4, Removes paragraph (4) relating to "noxious and/or offensive odors." This
provision reads:
"(4) Notwithstanding the provisions of section 142-75, Hawaii Revised
Statutes, or any other applicable law, noxious and/or offensive odors shall
be deemed a prohibited nuisance in accordance with HRS 322-2."
Comment: Removal of this provision was suggested by written testimony submitted by
the Big Island Gun Dogs. (Comm. 798.23) In part, this testimony made the
following persuasive arguments in favor of removing this paragraph:
"Draft 3 adds `noxious and/or offensive odors' under Section 4-5,
Definitions, but does not define what they are. It references HRS Section
142-75, which is unrelated to the subject (sec. 142-75 Human bitten by
dog; duty of dog owners; action against owner.)...
It would appear that the State Department of Health has a statutory
responsibility to handle the noxious odor issue, and it is unclear why it is
included in a County animal control bill.
Regarding `offensive' odors, it would be interesting to see how they would
be defined. Perfume samples are deemed offensive to some, to the extent
that warnings are issued when they are included in newspaper mailings.
Ill-defined, subjective, and redundant, it is suggested that this amendment to
Draft 2 be removed in its entirety. "
5. Sec. 4-6. The existing sec. 4-6, "Exceptions" was deleted. Subsec. (a) was moved into
sec. 4-5, subset. (b), "Animal nuisance-prohibited." The initial portion of Subsec. (a),
that contains a definition for unreasonable noise was moved into see. 4-4, "Definitions."
In addition, the last part of Subsec. (b) includes failing to "heed the admonition of a police
officer or an enforcement officer... that noise is unreasonable and should be stopped or
reduced" within the definition of unreasonable noise. This provision was deleted because
it is inconsistent with the revised definition of unreasonable noise, which now considers
the totality of circumstances in determining whether noise is unreasonable.
6. Sec. 4-5. Moves subset. (a) from sec. 4-6 (Exceptions) into this sec. 4-5, Animal
nuisance-prohibited, as a new subset. (b). This section now reads:
"Section 4-5. Animal nuisance prohibited
(a) It is unlawful to be the owner of an animal, farm animal, or poultry
engaged in animal nuisance as defined in section 4-4; provided, however,
that it shall not be deemed to be animal nuisance for purposes of this
article if, at the time the animal, farm animal, or poultry is making
unreasonable noise, biting, or stinging, a person is trespassing or
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 8
threatening trespass upon private property in or upon which the animal,
farm animal or poultry is situated, or for any other legitimate cause which
teased or provoked said animal, farm animal, or poultry.
(b) This article shall not apply to animals, farm animals, or poultry raised,
bred, or kept as a commercial enterprise or for food purposes where
commercial kennels or the keeping of livestock is a permitted use. "
7. Sec. 4-6 (new). Sec. relating to "Defecation and nuisance prohibited" from sec. 4-41 of
draft 4, was moved in this article. The title of this section was then amended to read:
"Section 4-6 Defecation [and-nuisane-e] prohibited "
Comment: This provision was placed within article 2, relating to animal nuisances. The
term "nuisance" was removed from the title and the terms "or commit any
nuisance" were removed from subsec. (a). This focuses the provision more
clearly on prohibiting owners from allowing their dog or other small
domesticated animal from defecating in streets, public places, or private
property without property owner approval.
8. Secs. 4-8 through 4-11(a). Enforcement sections were removed and placed in article 9, as
discussed earlier.
9. Sec. 4-11(b) & (c). Provisions relating to imprisonment were removed. Provisions
relating to penalties were amended, as discussed earlier. Subsections were renumbered.
Article 4. Regulation of Dogs.
10. Section 4-19. "Impounding." Amended beginning of second sentence to read as follows:
[A speeial] An enforcement officer of the animal control contractor
shall be authorized to enforce this article if deputized by the chief of
police to do so."
11. Secs. 4-21 through 4-25. Enforcement sections were removed and placed in article 9 and
standardized provisions relating to penalties were inserted, as discussed earlier. Sec. 4-25
was renamed "Penalties."
Article 6. Cat Identification Program.
12. Sec. 4-39 relating to penalties was amended, as discussed earlier. Sec. 4-39 was renamed
"Penalties."
Article 7. General Provisions.
13. Sec. 4-41 relating to defecation and nuisance was moved to article 2, as discussed earlier.
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Stacy K. Higa, Chair
Hawaii County Council
November 27, 2006
Page 9
Article 9. Enforcement.
14. New enforcement article created, as discussed earlier.
Section numbers within the text of the bill were left unchanged (from those in draft 4) to
facilitate the review of these proposed changes. If these proposed amendments should pass, I
request that the Legislative Research Branch renumber the sections as necessary prior to
codification of this measure.
Thank you for your consideration of this matter.
Sincerely,
t -11Z4 (--D- -
Fred C. Holschuh, M.D.
Council Member
FCH/lsc
Att.
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