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Gloucester, VA Board of Supervisors Guilty of Willful Misconduct?

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Reprint of our article over at Gloucester, Virginia Links and News website. We are not attorney;s and are simply asking questions based on our research of law and input from the Gloucester County Attorney, Ted Wilmot.

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Gloucester, VA Board of Supervisors Guilty of Willful Misconduct?

  1. 1. First we want to thank Ted Wilmot, Gloucester County Attorney for supplying us with the codes that the county is in violation of. Now we will once again briefly cover this story so that everyone understands it. Earlier this month we complained that there are a number of ordinance on the county books that look to us to be in violation of state code. One that we have started out with is Gloucester, Animal Control Ordinance 3- 17 which reads as follows; Sec. 3-17. Animals riding in open vehicles. It shall be unlawful for the operator of any motor vehicle on a pubic road to place or keep an animal in any portion of such vehicle that is open in such a manner so as to permit such animal to jump out of or escape the vehicle or to be thrown from the vehicle by acceleration or stopping of the vehicle or by an accident involving the vehicle. The prohibited portions of a motor vehicle shall include, but not be limited to: (1)The open bed of a truck or upon a motorcycle; or (2)The rear storage portion of a vehicle with the tailgate, truck, or hatchback portion open or down. For the purposes of this section, the operator of a motor vehicle shall be deemed to have control of any animal found there. First: There is no corresponding state code for this ordinance. It was our opinion it was made up. Ted Wilmot, Gloucester County Attorney did in fact confirm that there is no state code to
  2. 2. correspond with this code. We complained that this is then a violation of the Dillon rule. None of the officials commented on that at all. But here is the defensive argument we received back from Ted Wilmot. There does not appear to be one specific Virginia State Code section constituting enabling legislation for Gloucester County Code Section 3-17. However, that code section’s requirements are legally defensible regulatory measures in light of the following: 1. The section is limited to public roads and public places, and does not regulate activity on private property; 2. Va. Code Section 3.2-6570 prohibits the carrying by vehicle of any animal in a cruel or inhumane manner; 3. The County has the authority to prohibit cruelty to and abuse of animals and fowl, see Va. Code Sections 3.2-6544(B) and 3.2-6543; 4. The County has the authority to prohibit animals running at large (see, e.g., Va. Code Sections 15.2-1218, 3.2-6538, 3.2-6543, and 3.2-6544) ; 5. The County has the authority to require that animals have “adequate shelter.” “Adequate shelter” is defined, in part, by Va. Code Section 3.2-6500, to include shelter that is “safe and protects each animal from injury.”; 6. No case or opinion of the Attorney General of which I am aware demonstrates the unlawfulness of Gloucester County Code Section 3-17; and 7. Va. Code Section 15.2-1201 generally vests in the County Board of Supervisors the same authority and powers as are vested in City Councils. Va. Code Section 15.2-1102 vests in municipal corporations (here, cities) the authority to legislate to protect welfare, safety and health. I hope that you can understand and appreciate that one of my roles is to defend and assist in enforcing the ordinances passed by the Board the citizens have elected, at least unless such an ordinance has been declared unlawful by a court of competent jurisdiction, or is clearly unlawful even without a court determination. Mr. Thompson’s assertion the Section 3-17 is unlawful is not sufficient for me to agree. Ted Wilmot Ted's argument number 2, 3.2-6570 prohibits the carrying by vehicle any animal in a cruel and inhumane manner. What Ted forgot to include was the rest of the sentence there which reads further, so as to produce torture or unnecessary suffering. Argument does not fly. The code is below. § 3.2-6570. Cruelty to animals; penalty. A. Any person who: (i) overrides, overdrives, overloads, tortures, ill-treats, abandons, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation, or cruelly or unnecessarily beats, maims, mutilates, or kills any animal, whether belonging to himself or another;
  3. 3. (ii) deprives any animal of necessary food, drink, shelter or emergency veterinary treatment; (iii) sores any equine for any purpose or administers drugs or medications to alter or mask such soring for the purpose of sale, show, or exhibition of any kind, unless such administration of drugs or medications is within the context of a veterinary client-patient relationship and solely for therapeutic purposes; (iv) willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal; (v) carries or causes to be carried by any vehicle, vessel or otherwise any animal in a cruel, brutal, or inhumane manner, so as to produce torture or unnecessary suffering; or (vi) causes any of the above things, or being the owner of such animal permits such acts to be done by another is guilty of a Class 1 misdemeanor. In addition to the penalties provided in this subsection, the court may, in its discretion, require any person convicted of a violation of this subsection to attend an anger management or other appropriate treatment program or obtain psychiatric or psychological counseling. The court may impose the costs of such a program or counseling upon the person convicted. B. Any person who: (i) tortures, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation, or cruelly and unnecessarily beats, maims, mutilates or kills any animal whether belonging to himself or another; (ii) sores any equine for any purpose or administers drugs or medications to alter or mask such soring for the purpose of sale, show, or exhibit of any kind, unless such administration of drugs or medications is under the supervision of a licensed veterinarian and solely for therapeutic purposes; (iii) maliciously deprives any companion animal of necessary food, drink, shelter or emergency veterinary treatment; (iv) instigates, engages in, or in any way furthers any act of cruelty to any animal set forth in clauses (i) through (iv); or (v) causes any of the actions described in clauses (i) through (iv), or being the owner of such animal permits such acts to be done by another; and has been within five years convicted of a violation of this subsection or subsection A, is guilty of a Class 6 felony if the current violation or any previous violation of this subsection or subsection A resulted in the death of an animal or the euthanasia of an animal based on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, and such condition was a direct result of a violation of this subsection or subsection A. C. Nothing in this section shall be construed to prohibit the dehorning of cattle conducted in a reasonable and customary manner. D. This section shall not prohibit authorized wildlife management activities or hunting, fishing or trapping as regulated under other titles of the Code of Virginia, including Title 29.1, or to farming activities as provided under this title or regulations adopted hereunder. E. It is unlawful for any person to kill a domestic dog or cat for the purpose of obtaining the hide, fur or pelt of the dog or cat. A violation of this subsection is a Class 1 misdemeanor. A second or subsequent violation of this subsection is a Class 6 felony. F. Any person who: (i) tortures, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation or cruelly and unnecessarily beats, maims or mutilates any dog or cat that is a companion animal whether belonging to him or another; and (ii) as a direct result causes the death of such dog or cat that is a companion animal, or the euthanasia of such animal on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, is guilty of a Class 6 felony. If a dog or cat is attacked on its owner's property by a dog so as to cause injury or death, the owner of the injured dog or cat may use all reasonable and necessary force against the dog at the time of the
  4. 4. attack to protect his dog or cat. Such owner may be presumed to have taken necessary and appropriate action to defend his dog or cat and shall therefore be presumed not to have violated this subsection. The provisions of this subsection shall not overrule § 3.2-6540, 3.2-6540.1, or 3.2-6552. G. Any person convicted of violating this section may be prohibited by the court from possession or ownership of companion animals Ted's argument number 3: The County has the authority to prohibit cruelty to and abuse of animals and fowl, see Va. Code Sections 3.2-6544(B) and 3.2-6543; § 3.2-6544. Regulation of keeping of animals and fowl. A. Any locality may, for the preservation of public health, regulate by ordinance the keeping of animals or fowl, other than dogs and cats, within a certain distance of residences or other buildings or wells, springs, streams, creeks, or brooks, and provide that all or certain of such animals shall not be kept within certain areas. B. Any locality may, by ordinance, prohibit cruelty to and abuse of animals and fowl; and may regulate or prohibit the running at large and the keeping of animals and fowl and provide for the impounding and confiscation of any such animal or fowl found at large or kept in violation of such regulations. Any such ordinance may require that owners of any exotic or poisonous animal found running at large pay a fee to cover the locality's actual cost in locating and capturing or otherwise disposing of the animal. Ted is arguing B. above, read the top of the state code, Regulation of keeping of animals and fowl. Keeping them is having them on your land or in your house, not having them ride in a vehicle, unless of course that is where both animal and owner live. We are talking about transporting of animals, not keeping them. § 3.2-6543. Governing body of any locality may adopt certain ordinances. A. The governing body of any locality of the Commonwealth may adopt, and make more stringent, ordinances that parallel §§ 3.2-6521 through 3.2-6539, 3.2-6546 through 3.2-6555, 3.2-6562, 3.2- 6569, 3.2-6570, 3.2-6574 through 3.2-6580, and 3.2-6585 through 3.2-6590. Any town may choose to adopt by reference any ordinance of the surrounding county adopted under this section to be applied within its town limits, in lieu of adopting an ordinance of its own. Any funds collected pursuant to the enforcement of ordinances adopted pursuant to the provisions of this section may be used for the purpose of defraying the costs of local animal control, including efforts to promote sterilization of cats and dogs. B. Any locality may, by ordinance, establish uniform schedules of civil penalties for violations of specific provisions of ordinances adopted pursuant to this section. Civil penalties may not be imposed for violations of ordinances that parallel § 3.2-6570. Designation of a particular violation for a civil penalty shall be in lieu of criminal sanctions and preclude prosecution of such violation as a criminal misdemeanor. The schedule for civil penalties shall be uniform for each type of specified violation and the penalty for any one violation shall not be more than $150. Imposition of civil penalties shall not preclude an action for injunctive, declaratory or other equitable relief. Moneys raised pursuant to this
  5. 5. subsection shall be placed in the locality's general fund. An animal control officer or law-enforcement officer may issue a summons for a violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the department of finance or the treasurer of the locality issuing the summons or ticket prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. We went through all the codes that every county is allowed to adopt and make more stringent and found nothing that could be considered a parallel to Gloucester Animal Control 3-17. We also read 3.2-6544 (B) and could not see where that section gives Gloucester County the right to create 3-17. § 3.2-6538. Governing body of any locality may prohibit dogs from running at large. The governing body of any locality may prohibit the running at large of all or any category of dogs in all or any designated portion of such locality during such months as they may designate. Governing bodies may also require that dogs be confined, restricted or penned up during such periods. For the purpose of this section, a dog shall be deemed to run at large while roaming, running or self-hunting off the property of its owner or custodian and not under its owner's or custodian's immediate control. Any person who permits his dog to run at large, or remain unconfined, unrestricted or not penned up shall be deemed to have violated the provisions of this section. 3.2-6538 is the closest we could get to 3-17 and one is restricted to certain months that first must be set. Also, 3.2-6538 only relates to dogs. 3-17 relates to all animals. Ted's argument number 3 just does not stand. 4. The County has the authority to prohibit animals running at large (see, e.g., Va. Code Sections 15.2-1218, 3.2-6538, 3.2-6543, and 3.2-6544) ; § 15.2-1218. Prevention of trespassing; animals running at large on highways. Any county may prevent trespassing by persons and animals and prevent animals from running at large upon the public highways, whether such highways are enclosed by a fence or not. What does this have to do with 3-17? I really do not understand the point here. Ted's argument makes no sense on this one. It simply states that playing in the middle of a highway is detrimental to one's being and that of others. Common sense. 3.2-6538 and 3.2-6544, see above. Ted's argument number 4 just does not stand once again.
  6. 6. 5. The County has the authority to require that animals have “adequate shelter.” “Adequate shelter” is defined, in part, by Va. Code Section 3.2-6500, to include shelter that is “safe and protects each animal from injury.”; § 3.2-6500. Definitions. "Adequate care" or "care" means the responsible practice of good animal husbandry, handling, production, management, confinement, feeding, watering, protection, shelter, transportation, treatment, and, when necessary, euthanasia, appropriate for the age, species, condition, size and type of the animal and the provision of veterinary care when needed to prevent suffering or impairment of health. "Adequate shelter" means provision of and access to shelter that is suitable for the species, age, condition, size, and type of each animal; provides adequate space for each animal; is safe and protects each animal from injury, rain, sleet, snow, hail, direct sunlight, the adverse effects of heat or cold, physical suffering, and impairment of health; is properly lighted; is properly cleaned; enables each animal to be clean and dry, except when detrimental to the species; and, for dogs and cats, provides a solid surface, resting platform, pad, floormat, or similar device that is large enough for the animal to lie on in a normal manner and can be maintained in a sanitary manner. Under this chapter, shelters whose wire, grid, or slat floors: (i) permit the animals' feet to pass through the openings; (ii) sag under the animals' weight; or (iii) otherwise do not protect the animals' feet or toes from injury are not adequate shelter. Once again, Ted is only using part of the entire structure of state code to try and argue some form of logic. Adequate shelter is defined above in it's entirety and deals with where an animal lives not how an animal is transported. For that matter, Gloucester Animal Control trucks must be in violation to the above code and others as it does not provide the proper lighting in the bed of the truck nor the proper comfort, or sanitary floor matts we would imagine. If they do, we would like to see a daily inspection of such on each vehicle. 6. No case or opinion of the Attorney General of which I am aware demonstrates the unlawfulness of Gloucester County Code Section 3-17; and Ted knows that the Attorney General, Cuccinelli, does not give opinions on law unless it is a case he is trying. We are working on getting Ken's objective view on this anyway. 7. Va. Code Section 15.2-1201 generally vests in the County Board of Supervisors the same authority and powers as are vested in City Councils. Va. Code Section 15.2-1102 vests in municipal corporations (here, cities) the authority to legislate to protect welfare, safety and health. § 15.2-1102. General grant of power; enumeration of powers not exclusive; limitations on exercise of power. A municipal corporation shall have and may exercise all powers which it now has or which may
  7. 7. hereafter be conferred upon or delegated to it under the Constitution and laws of the Commonwealth and all other powers pertinent to the conduct of the affairs and functions of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof, and the enumeration of specific powers shall not be construed or held to be exclusive or as a limitation upon any general grant of power, but shall be construed and held to be in addition to any general grant of power. The exercise of the powers conferred under this section is specifically limited to the area within the corporate limits of the municipality, unless otherwise conferred in the applicable sections of the Constitution and general laws, as amended, of the Commonwealth. Is Ted Trying to argue that Gloucester is a municipal corporation in the state? It would still limit areas in the county that would fall under such if it were. This part of the argument makes no sense. In the United States, such municipal corporations are established by charters that are granted either directly by a state legislature by means of local legislation, or indirectly under a general municipal corporation law, usually after the proposed charter has passed a referendum vote of the affected population. § 15.2-1201. County boards of supervisors vested with powers and authority of councils of cities and towns; exceptions. The boards of supervisors of counties are hereby vested with the same powers and authority as the councils of cities and towns by virtue of the Constitution of the Commonwealth of Virginia or the acts of the General Assembly passed in pursuance thereof. However, with the exception of ordinances expressly authorized under Chapter 13 of Title 46.2, no ordinance shall be enacted under authority of this section regulating the equipment, operation, lighting or speed of motor-propelled vehicles operated on the public highways of a county unless it is uniform with the general laws of the Commonwealth regulating such equipment, operation, lighting or speed and with the regulations of the Commonwealth Transportation Board adopted pursuant to such laws. Nothing in this section shall be construed to give the boards of supervisors any power to control or exercise supervision over signs, signals, marking or traffic lights on any roads constructed and maintained by the Commonwealth Transportation Board. No powers or authority conferred upon the boards of supervisors of counties solely by this section shall be exercised within the corporate limits of any incorporated town except by agreement with the town council. In the County of Fairfax an ordinance may be adopted by the board of supervisors under this section after a descriptive notice of intention to propose the same for passage has been published once a week for two successive weeks in a newspaper having a general circulation in the county. After the enactment of such ordinance by the board of supervisors, no publication of the ordinance shall be required and such ordinance shall become effective upon adoption or upon a date fixed by the board of supervisors.
  8. 8. Chapter 13 - Powers of Local Governments 46.2-1300 Powers of local authorities generally; erection of signs and markers; maximum penalties 46.2-1301 Designation of stop and yield right-of-way intersections 46.2-1302 Regulation of operation of vehicles in snow, sleet, etc.; designation of play areas; penaltie... 46.2-1303 Issuance of permits to perform construction or repair work within right-of-way lines of public road... 46.2-1304 Local regulation of trucks and buses 46.2-1304.1 Localities may regulate construction and parking of commercial motor vehicles used to transport mun.. .46.2-1305 Regulation of vehicular and pedestrian traffic on roadways and parking areas in residential subdivi... 46.2-1306 Prohibiting parking near certain fire hydrants 46.2-1306.1 Prohibiting parking so as to prevent the use of curb ramps 46.2-1307 Designation of private roads as highways for law-enforcement purposes 46.2-1307.1 Designation of private roads as highways for law-enforcement purposes in Warren County 46.2-1308 Disposition of fines in traffic cases; failure or neglect to comply with section 46.2-1309 Officers may direct traffic; signals 46.2-1310 Authority to deputize persons to direct traffic in certain circumstances 46.2-1311 Applicability of county ordinances within towns 46.2-1312 Size, design, and color of signs, signals, and markings erected by local authorities 46.2-1313 Incorporation of provisions of this title, Article 9 ({ 16.1-278 et seq.) of Chapter 11 of Title .. .46.2-1314 Traffic schools; requiring attendance by persons convicted of certain violations Ted's argument about having the authority under 15.2-1201 to create Gloucester Animal Control ordinance 3-17 does not fly as seen here. In fact, it shows yet another violation from what we see. 15.2-1201 would seem to state that the county can not make up such an ordinance and that to do so is in violation of 15.2-1201. In fact, let's also look at 15.2-1200. § 15.2-1200. General powers of counties. Any county may adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants which are not inconsistent with the general laws of the Commonwealth. Such power shall include, but shall not be limited to, the adoption of quarantine regulations affecting both persons and animals, the adoption of necessary regulations to prevent the spread of contagious diseases among persons or animals and the adoption of regulations for the prevention of the pollution of water which is dangerous to the health or lives of persons residing in the county. So we seem to have a county ordinance that is in total violation of the Dillon rule and it's fabrication would seem to violate 15.2-1200 and 15.2-1201 as well as 49.1 which reads as follows below;
  9. 9. § 24.2-120. Oath of office. The oath of office for the members of the electoral board, registrars, and officers of election shall be the oath stated in Article II, Section 7, of the Constitution. Each member of the electoral board, registrar, and officer of election shall take and sign the oath before performing the duties of his office. Each member of an electoral board and general registrar shall file the original signed oath in the clerk's office of the circuit court of his county or city. The general registrar shall file a copy with the secretary of his electoral board. The oath of office for assistant and substitute registrars, officers of election, and voting equipment custodians may be administered by a general registrar or a notary as well as by persons authorized to administer oaths under § 49-3. The oath of office for officers of election may be administered by a member of the electoral board, the general registrar, an assistant or substitute registrar, as well as by notaries and persons authorized to administer oaths under § 49-3. § 49-1. Form of general oath required of officers. Every person before entering upon the discharge of any function as an officer of this Commonwealth shall take and subscribe the following oath: "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as .......... according to the best of my ability, (so help me God)." Any person reappointed to any office filled by gubernatorial appointment for a subsequent term to begin immediately upon expiration of an existing term shall not be required to renew the oath set out in this section; however, the original oath taken shall continue in effect with respect to the subsequent term. § 15.2-1405. Immunity of members of local governmental entities; exception. The members of the governing bodies of any locality or political subdivision and the members of boards, commissions, agencies and authorities thereof and other governing bodies of any local governmental entity, whether compensated or not, shall be immune from suit arising from the exercise or failure to exercise their discretionary or governmental authority as members of the governing body, board, commission, agency or authority which does not involve the unauthorized appropriation or misappropriation of funds. However, the immunity granted by this section shall not apply to conduct constituting intentional or willful misconduct or gross negligence. Still more state code violations would be seen under the above 15.2- 1405. Creating false ordinances in violation of state codes would
  10. 10. seem to us as willful misconduct. Failing to take them off the books would seem to us to be gross negligence. GOD GAVE MAN DOMINION OVER ANIMALS Genesis 1:26-28 And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth. So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. And Man gave animals and fowls domain over his fellow man. We are not attorneys and this is only our questions of our opinions and research. Comments are welcome. Opinions from attorneys are very welcome especially if from a Virginia attorney.

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