(a) Definitions.
(1) A dangerous or vicious animal shall be defined to mean a dog or cat that:
A. Without provocation has killed or inflicted injury on a person; or
B. Killed or inflicted severe injury upon a domestic animal, horse or livestock, when not on the offending animal owner's real property; or
C. Approached a person when not on the offending animal owner's property in a vicious or terrorizing manner, in an apparent attitude of attack, as determined by a Humane Officer or his or her designee, upon the sworn affidavit of at least two eye witnesses; or
D. Owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting.
(2) Owner shall mean any person, partnership or corporation owning, keeping or harboring one or more animals. An animal shall be deemed to be harbored if it is fed or sheltered for three consecutive days or more.
(3) Owners' real property shall mean any real property owned or leased by the owner or owners of the animal, but does not include any public right-of-way or a common area of a condominium, apartment complex, town-house or subdivision development.
(4) Severe injury shall mean any physical injury that results in broken bones or disfiguring lacerations or which required surgery or hospitalization.
(5) Injury shall mean any breaking of the skin, which results in bleeding, caused by bite.
(6) Business days for purposes of calculating time periods pursuant to this ordinance shall be Monday through and including Friday, NOT including any day which the City Building is closed for any reason.
(7) The term "humanely destroyed" as used in this section means humane euthanasia of an animal by hypodermic injection by a licensed veterinarian or by an animal euthanasia technician certified in accordance with provisions of the West Virginia Code; or any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(b) Enforcement.
(1) Any Humane Officer, Police Officer, or Animal Warden or their designee (hereafter "officer") shall have authority for making a preliminary determination that an animal is dangerous or vicious.
(2) If, in the discretion of the officer, such animal determined to be dangerous or vicious cannot safely be captured and detained, the officer, is authorized to take immediate and, if necessary, lethal action, against such animal notwithstanding the fact that no written notice has been communicated to the owner of the animal and that no hearing into said determination has been requested or held.
(c) Notice. The owner, if able to be identified and located, of any animal seized pursuant hereto shall be provided written notice, by citation or otherwise, of the seizure, liability for the cost and care of the animal seized as provided herein and the right to attend a hearing before the municipal court judge. Any such notice shall include information that a preliminary determination has been made that the animal is dangerous or vicious and shall give a brief narrative providing the owner with the reasons for such determination. If the owner is unknown or unable to be determined after diligent inquiry, the notice shall be published one time in a newspaper of general circulation in the City.
(d) Temporary Possession of Dangerous or Vicious Animal. At the time a preliminary determination is made that an animal is dangerous or vicious, it shall be seized by an officer who shall impound it in an animal shelter or with a veterinarian in a humane manner. Such animal may be apprehended and impounded without court action or warrant until such time as a hearing is held and decision rendered.
(e) Hearing Procedure.
(1) The municipal court shall schedule and conduct a hearing within fifteen business days after the citation or written notice is given to the owner or published, unless continuance is granted for good cause.
(2) If the court finds by a preponderance of the evidence that the animal is dangerous or vicious as defined by this ordinance it shall enter an order:
A. Requiring that the animal be humanely destroyed; or
B. Awarding custody of the animal to any officer, shelter, or veterinarian for further disposition in accordance with reasonable practices for the humane treatment of animals; or
C. Returned to the owner ordering and requiring that the animal be confined by the owner within a secure building or enclosure, and when off the owner's premises shall be securely muzzled or caged.
(3) After hearing the evidence, if the court is not convinced the animal is dangerous or vicious as defined by this article, the court shall dismiss the action and order the animal be returned to its owner.
(4) Notwithstanding any other provision of any ordinance or state statute to the contrary, the detention of any animal found by the court to be vicious or dangerous, shall continue without disposing of said animal for such time as necessary for the conclusion of all appeals, either by the city or the animal owner.
(f) Appeal Bond.
(1) Any owner aggrieved by the municipal court's decision may appeal the same to the circuit court. In addition to other requirements for appeal, the owner shall post a cash bond with the City Clerk in an amount sufficient to provide for the reasonable costs of care, medical treatment and provisions for the animal for at least thirty days, said amount to be determined by the court. The said cash bond shall be filed within ten days following the court's finding against the owner.
(2) At the end of the time for which expenses are covered by the original cash bond if the animal remains in the care of the humane officer and the owner desires to prevent disposition of the animal by the officer, the owner shall post an additional cash bond with the clerk within five days of the expiration of the original cash bond in the same amount as the prior bond to cover a period of thirty more days.
(3) During this period the officer shall retain the said animal in an animal shelter or a veterinary facility. If said appeal is not successful and the municipal judge's determination is not reversed, the person whose animal is seized is liable for all costs of the care of the seized animal.
(4) If a cash bond has been posted in accordance with this section, the custodial animal care agency may draw from the bond the actual reasonable costs incurred by the agency in providing care, medical treatment and provisions to the impounded animal from the date of the initial impoundment to the date of the final disposition of the animal.
(5) Any person whose animal is seized and against whom the municipal court enters a finding pursuant to this article shall be liable during any period it remains in the detention, for the reasonable costs of care, medical treatment and provisions for the animal, beyond and not covered by the amounts of the cash bond posted. Any unused portion of a cash bond shall be returned.
(6) The City shall have the right to appeal any adverse ruling by the municipal court without posting bond. Any costs incurred for care, medical treatment and provisions for the animal during an appeal by the City shall be borne by the City.
(g) Disposition. Any animal finally determined to be dangerous or vicious and not returned to its owner as provided above herein, may be disposed of in the same manner as other animals at an animal shelter or veterinary establishment, including but not limited to the humane destruction of said animal, except that animals determined vicious or dangerous pursuant to this article may not be made available to the public.
(h) Law Enforcement Exception.
(1) No police dog which was engaged in the performance of its duties at the time of the acts complained of shall be found to be a dangerous or vicious animal.
(2) No animal shall be found to be dangerous or vicious if a bite, attack or injury was sustained by a person who was (i) committing at the time a crime upon premises owned, leased, or occupied by the animal's owner, (ii) committing, at the time, a willful trespass or other tort upon premises owned, leased, or occupied by the animal's owner, or (iii) provoking, tormenting, or physically abusing the animal.
(i) Article Not Breed Specific. No animal shall be found to be a dangerous or vicious animal solely because of its breed, nor is a particular breed of dog prohibited by this article.
(j) Criminal Acts. Any person harboring or keeping a vicious animal, except as permitted by this article or by court approval, shall be guilty of a misdemeanor.
(Ord. 5-1-12)