Pet Legal

How Much is that Doggie on the Corner

posted July 15th, 2007 by
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Story by D. Faith Orlowski

If anyone drives down the 71st Street corridor, as well as numerous parking lots and flea markets around town, you can find person after person offering all variety of dogs and puppies for sale.  Many claim their animals are AKC registered, purebred or “papers available.”  Others rely on the “cuteness factor” – just about any puppy is cute.  Still others tout their “designer dogs.”  But is this any way to buy a dog?

Notwithstanding that these street vendors are almost always in violation of city ordinances, there are several reasons why street sales of dogs and cats should not be allowed.  First, one should question the quality of the animal itself.  Reputable breeders do not sell their animals out of the backs of trucks!  Good breeders ask a multitude of questions of the prospective buyer and they expect the buyer to also have numerous inquiries of them.  This exchange does not occur in street sales because the goal is to sell the dog not necessarily to find it a good home.  The fact that a dog is “registered” or “purebred” truly means nothing as far as obtaining a healthy, socialized companion animal.  The breeders that sell on the street may not have bad intentions but their goal is to obtain a profit period.  Low overhead and quantity sales are their priority – not the breeding of quality dogs.  “Quality” here has nothing to do with show quality but with understanding the genetic health traits that exist in many purebred dogs and then trying to breed animals that do not perpetuate these negative characteristics.

Often, backyard breeders have decided that selling “living property” is a good way to make money, so they have may have purchased or acquired a male and one or two females and then they let nature take its course as early in the dogs life and as often as possible.  Many of these breeders do not concern themselves with in-breeding or breeding closely-related animals.  As long as the dame and sire are registered, the offspring can be registered too – regardless of the fact that the parents may be mother and son, brother and sister or otherwise closely related.  In-breeding increases the possibility of health problems and undesirable traits.  Also, AKC registration is typically done through the mail and involves the honor system.  It does not guard against the unethical breeders who do not honestly complete the forms, nor does it indicate the quality of the dog.  To complicate matters, a female dog can be impregnated by more than one male dog during the fertility cycle.  Street sellers are not concerned with who purchases their puppies nor with maintaining any type of reputation so they are not there to guarantee the health of their “merchandise.”

Second, bringing a dog purchased off the street into your home with your family and other pets is a public health hazard.  The seller may tell you that the dog has had all or some of his shots or has been vaccinated, but how do you know?  I am unfamiliar with any sellers that I have observed in this situation handing out the information of the veterinarian who administered these preventatives.  Due to the transient nature of these vendors, facts and statistics are difficult to compile, but based on the citations written over the past three years, more than half of these vendors are not local individuals.  Many of these people operate “puppy mills” or other undesirable breeding situations, unsanitary and often inhumane, and if your new dog or puppy becomes ill, the “bargain” price you paid will seem like anything but.  If a person has other dogs in their household, they could be exposing all of them to illness.  Last year, a family bought a puppy from a street seller in Ft. Worth, only to find that it was infected with rabies and all members of the household had to go through a series of rabies shots.

Third is the fact that many of these purchases are “impulse buys.”  Passing a gauntlet of wide-eyed, bouncy puppies is near impossible for many of us to resist.  Especially if you have been thinking about getting Sarah or Johnny a puppy but had been agonizing about the several hundred dollar price tag and now, right in front of you, is an adorable lab puppy for only $50!  What a deal!  (See the “second” point above.)  Unfortunately, many people who buy from the street dealers do so with the attitude of “”Well, if it doesn’t work out, I can always take it to the shelter.  And this is the sad result for many of these animals.  And many times these dogs do not work out because these types of breeders fail to socialize the puppy and bad behavioral problems often lead owners to surrender their animal to the nearest shelter.  Sadly, the municipal shelter has the option to take owner surrenders immediately back to the euthanasia area without even giving the animal a chance to find a new home.

Finally, this entire process just perpetuates the pet overpopulation problem and the continued euthanasia of many good dogs and cats because there are not enough good homes in which to place these animals.  Shelters and rescues are literally overrun with many wonderful companions and often a large portion of these are purebred dogs.  Euthanasia is the single largest cause of death for dogs and cats in the United States – we spend over a billion dollars a year destroying “Mans Best Friend.” Street vendors, backyard breeders and puppy mills are only part of the problem – but they are a major part.  It is not logical to allow people to continue to profit from the breeding of animals when they do not contribute to the financial, emotional and ethical burden that results from overpopulation.  While I loathe to recommend additional legislation, several groups and individuals are investigating new ordinances that will impact the profitability of unfettered breeding, and such measures are necessary.  However, the overpopulation can only be effectively dealt with when coupled with a community-based aggressive spay and neuter campaign and public education regarding animal health and welfare.

Have a legal-related question for October?   Email [email protected]

How Many Are Too Many?

posted April 15th, 2007 by
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Story by D. Faith Orlowski

Have you ever wondered just how many dogs or cats your neighbor really has?  If you are an animal lover and have noticed nothing amiss, then you probably have not.  However, not everyone is so accepting and often someone is reported for having too many pets.  But just how many are too many?

 

If you live within the Tulsa city limits, you may keep and possess a combined total of five dogs and cats over the age of four months.  However, no more than three of such animals can be dogs over the age of four months.  So five cats are allowed and so is no more than three dogs – just not all together at the same residence.  There is a fine of up to $500 and/or 30 days in jail if you are found guilty of a violating this ordinance, which is codified at Section 101.4, Chapter 1, Title 2 of the City of Tulsa Revised Ordinances.  

But how can a city or county impose such conditions and, thereby, infringe on people’s rights to have pets?  A city (or governmental body) has a recognized police power to regulate matters of health and safety, to define what constitutes a nuisance and to provide for the abatement of that nuisance.  Municipal ordinances are presumed to be constitutional unless the party challenging these laws can prove otherwise.  Generally, in order to prove that an ordinance is unreasonable, the complaining party must show that the ordinance has no substantial relationship to the public health, safety, or general welfare.  There are no reported cases in Oklahoma where anyone has challenged a municipal ordinance limiting the number of pets.  There is authority elsewhere that certain ordinances that do not allow a “grandfathering” period could constitute an illegal taking of property and I certainly believe those ordinances should be challenged.

In Tulsa, there are certain exceptions which allow someone to keep more dogs and cats in their household.  The first is the “Grandfather Clause” – if immediately preceding January 1, 1998, the household possessed more than the ordinance limit and such dogs and/or cats were all legally licensed and the existing animals still living in the household are the same animals that were there immediately prior to January 1, 1998, then you (more specifically, your pets) are “grandfathered” in and are allowed to remain.  As you can see, this will phase out over time, since few pets live longer than 15-20 years, even under the best of circumstances.

The second exception applies to those persons who qualify and apply for a hobbyist exemption.  The term “hobbyist” refers to an individual or an organization who is not a commercial breeder but is (1) actively involved in any nationally recognized, organized animal sport or hobby for a period of at least one year prior to making application; or (2) participates in field trials, owns nationally-recognized breeds used specifically as hunting dogs, participates in hunting activities, has held (and continues to hold) a current valid Oklahoma hunting license and has held such license for at least one year prior to making application; or (3) qualifies as a “rescuer.”  A “Rescuer” is defined as someone – either an individual or organization – who regularly harbors dogs or cats which have no readily identifiable owner.  An individual rescuer shall be named as such on a roster of recognized rescuers furnished by a local welfare organization to the City (the Director of Finance) and recognized by the Animal Shelter.  

Once an animal rescue organization has been approved by the Chief of Police, the organization can submit a list of individual households that are authorized to serve as rescuers for that group under that organization’s permit.  You should bear in mind, however, that Tulsa is in the process of selecting a new Chief of Police, and the Police Department regulates the Animal Shelter.

If you obtain a hobbyist exemption permit, you may keep more dogs and/or cats than would normally be allowed, but you may not allow more than the number that is otherwise permitted (e.g., no more than three dogs) to remain out-of-doors.

If you are serious about obtaining a hobbyist exemption, call any of the local rescue groups or apply to be a foster care home with any of the existing animal rescue organizations.  The fee for obtaining a hobbyist exemption permit is $25.00, which must be paid along with your notarized application.  Any person who has been convicted within the last ten years of any offense related to (i) the illegal commercial breeding of dogs or cats, (ii) dog fighting, or (iii) a nuisance, cruelty or negligence offense will be disqualified from consideration for a hobbyist permit.  Persons who have two or more violations for allowing dogs or cats to roam at-large are also ineligible.  A background check will be conducted to verify the lack of violations, so a permit will not be granted immediately.  If you are serious about applying for a hobbyist exemption permit, please see the information at the end of this article.

You should be aware that as a rescuer, the permit is to allow you to do just that – foster and rescue homeless dogs and cats.  The ordinance is truly not for the purpose of allowing you to own more than the designated allowable pets.  The ordinance states that such dogs and cats are not to be kept longer than 90 days each while permanent placements are actively investigated.  Many times, rescued animals must be medically treated, socialized, or trained.  The time frame for harboring a rescued animal may be extended under those circumstances, provided certain notification requirements are met.  Rescued animals must be spayed or neutered prior to adopting them out to new homes.

Other neighboring cities and towns have similar ordinances.  If you live in a city other than Tulsa, you should contact the city attorney, animal shelter or police department (or check to see if the local library has a copy of the city ordinances) and find out exactly how many pets you are allowed.  If you receive a citation in violation of a city ordinance, please seek the advice of an attorney immediately.  He or she can advise you of your rights and help you make an informed decision on how you may want to proceed.

If you wish to apply for a Hobbyist Exemption Permit, contact the City of Tulsa, License & Collections, 111 South Greenwood Avenue, Tulsa  74120.  If you have questions about the permit, please contact the Tulsa Animal Shelter at 669-6276 and speak with Garl Willis.

Estate Planning for Pets

posted January 15th, 2007 by
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Story by D. Faith Orlowski

Do you have furry or feathered children and worry what might become of them if something happens to you? Well, you should. Animals within the control of humans are considered personal property. Ownership of property is fundamental to our legal system. The reason d’être for all attorneys practicing in the area of estate planning is to provide for the orderly transfer of property after the death of a person to his or her heirs and/or beneficiaries. Ideally, as part of your estate planning, it is wise to advise your attorney if you have pets and if you would like arrangements made for your pets after your death.

Options for Pets in the Estate Planning Process
If you have pets, there are a number of alternatives for the care of those pets in the event of your death or disability:
A. Gift the pet(s) to a caregiver;
B. Adoption through a shelter, veterinarian or rescue group;
C. Creation of a trust for the care of the pet(s);
D. Placement in a “retirement home”; or E. Euthanasia (the “If I die, so do you” philosophy).

Gift the Pet(s) to a Caregiver
This is the most common solution in an estate plan because it is the simplest with little advance planning or expense required. The problem is often, however, that you have no assurance that the pets will be properly cared for or, more specifically, that the pets will be cared for in the same manner that you have provided. This is the same quandary that you must face when choosing a guardian for your human children. Most estate planning attorneys – if they do anything at all – may just insert one sentence that says “I give all my pets to my daughter, Betty Sue.”

Designation of the Caregiver:
Just as with naming a guardian for your minor children, you should name a primary caregiver and an alternative caregiver. Obviously, they should be consulted in advance and agree to undertake the responsibility, especially if more than one pet is involved. Also, make sure you discuss with your potential caretaker whenever a new pet is added to the mix or replaces a deceased pet.

Should the Caregiver be funded:
You next need to decide whether or not to provide funds to reimburse or compensate the caregiver for caring for the pets. If a lump sum is provided, then there is always the question of whether the money will be used for the care of the pets and/or whether the caregiver agreed to the arrangement because it was funded. In certain instances, you may want to specify that your estate will fund certain “improvements” to the caregiver’s residence, such as dog doors and fences.

Adoption
But many times people that come in for estate planning tell me that they do not have a friend or family member to be a caretaker or “pet custodian.” If that happens, then we discuss adoption through an animal shelter, veterinarian or rescue organization. The availability of this option will depend on the breed, age, special needs/requirements and temperament of the animal. A list of local animal rescue groups can be found in the directory section of TulsaPets Magazine, and also at www.tulsapets.com/specialty.asp. Also, many veterinarians, for a fee, take in animals for adoptions. Be sure to verify with the veterinarian that the animal will not be euthanized after a period of time.

Trust
In many instances, I recommend a Trust for the benefit of the pet(s). This can be a section of a Revocable Living Trust that the client may need anyway, or it can be a Trust specifically for the care of the animals. In Oklahoma, a trust where the pet is the named beneficiary is not allowed. The trust statutes state that a trust must be for the benefit of a “person” (individual, partnership, corporation, etc.). A trust with an animal beneficiary is unenforceable or void. Most states follow this same theory.

Just think of these critters as four-legged, minor children and the same rules apply. Establish the trust with a caretaker (“guardian” or “custodian”) and instruct the Trustee to distribute the funds to that person for the care of the pets.
The hard questions are:
How much money to fund the trust?
What happens to the money when the animals die? (Obviously, this again can create a conflict of interest).
How explicit do you get with the instructions of how to care for the animals?

Does the client want to leave instructions for the final disposition
of the pet upon its death? (Pet Cemeteries and Crematories are
in most major cities. The Tulsa area has at least three.)

Should the trustee be given the power to name a new caregiver if the primary and successor caregivers named in the trust fail?
Just as with trusts for human beneficiaries, trusts for animals can be established during the pet owners’ life (intervivos) or by will (testamentary). The benefit of having it established as a Revocable Living Trust is that it is in place and available for the care of the pet(s) if the owner becomes disabled or must be moved into a facility prior to their death which does not allow pets.

With either a testamentary or intervivos (“Living”) trust, the Trustee can fund the care of the pets either by a lump sum or by periodic payments. You can also leave instructions to the Trustee to check on the animals or you can leave it to the complete discre- tion of the caregiver. If your caregiver is out of state, your Trust should also fund the transportation of your pets to their new home. Remember, the good thing about a Living Trust is that it is private and does not go through probate. It is not published anywhere, so you can be as “eccentric” as you like and no one will be the wiser. Remember also to name a remainder beneficiary upon the death of the pets. If the caretaker is named as the remainder, it could create a conflict of interest in that there would always be a suspicion if the animal met a quick demise. If someone other than the caretaker is named as the remainder beneficiary, this creates someone with an interest who would have standing to question how the trust is being administered – which can be a good thing or a bad thing, depending on the people involved.

Pet “Retirement” Home
For certain people and certain pets, a viable alternative is the pet retirement home. This alternative will also give peace of mind if you would worry about who may adopt your pet(s) once you are gone and whether they would be cared for appropriately (i.e., to your liking).

These facilities usually offer lifetime care and nurturing for a pet in a home-like environment in exchange for a contribution to the organization. OSU offers such a program and there are other programs available out of state. The OSU program is called the Cohn Family Shelter for Small Animals (www.cvm.okstate.edu/development/CohnFamilyShelter.htm). This facility currently takes cats, dogs and horses. The “contribution” is tax deductible and can be made during your lifetime so you can use the tax benefit now. You can also instruct your trustee or personal representative to make these arrangements after your death. The “contribution” is per animal and begins at $10,000 for cats and increases from there. If this is something that you may be interested in, contact the Cohn Family Shelter and they will be happy to give you a tour of the facilities.

Euthanasia
There is really no reason for someone to request that their healthy pet should be destroyed at their death. If you know someone who says that this is what they want, at least discuss with them why he/she thinks this is the best alternative. If the pet owner’s answer is that they do not have anyone to take care of the pet when they are gone, they are probably unaware of all the various options that have been outlined here.

Immediate Care in Case of Emergency
Making arrangements in your estate planning for the long-term care of your pets is wonderful, but first someone must know that in cases of emergency, there are pets involved who are relying on their owner to come home and take care of them. To take care of the immediate emergency, you should have an emergency card in your wallet and an emergency notification in a conspicuous place in your home. A convenient place is on or near the front door, on the refrigerator and/or in a medical information jar in the refrigerator.

If you are injured while away from the house, the card will notify the emergency personnel that your animals may need immediate attention. If you die or are injured while in the home, the emergency personnel will know who to call. This is especially important if you live alone, or do not have family in the immediate vicinity. It is not uncommon for emergency personnel to notify the local animal shelter if they see animals on the premises and by the time the family is contacted and arrive on site, the animals may have been euthanized by the shelter.

You should also prepare an “animal information document” and keep it with your important papers. This document should list the veterinarians who have the pets’ medical records as well as any medical needs of the pets. It should also list their breed, age and any other pertinent details as to the care and condition of the pets.

Since proper estate plans also include a Durable Power of Attorney in most instances, the agent under a general durable power of attorney has the authority to act for the principal. The attorney-in-fact under this document should also have the authority to act to care for the pets. If you already have a Durable Power of Attorney but do not desire for that person to deal with your pets, you may wish to discuss with your attorney a special Durable Power of Attorney for pet care purposes only.
Examples of the Pet Card and Pet Emergency Sign are shown on page 29.

Important Animal Tidbits
Be sure to correctly name (the legal name) any organization, shelter and/or rescue group to avoid confusion. Many groups become known by a handy “catch phrase” (like “ARF”). If in question, designate the current address or at least the city.

If a shelter, specify a “no-kill” shelter, if you are attempting to save the life of your pet. Many shelters euthanize on a regular schedule or if over-crowding occurs.

If all else fails, consider leaving a “Letter of Direction” even if you do not want to include one of the above described methods in your estate plans. The Letter of Direction is not legally enforceable but is written by you and kept with your estate planning documents and/or other important papers. It directs your Personal Representative or trustee to whom the animals should go and any special instructions regarding the animals. This is well suited for younger individuals who may outlive several generations of pets but who still want to let someone know how they wish their pets cared for should something happen to them.

Most importantly, print off or post by your phone or on your refrigerator the phone numbers and addresses of emergency veterinarians for after-hours animal injuries. That is not the time that you want to try to fumble with a phone book to locate a vet. Put this information where you can get to it immediately. Also call your veterinarian and see what his or her policy is on emergencies. They may tell you to call them if anything ever happens and they will meet you at their office.


Conclusion
The Bottom Line – Your pets need you to provide for them. Do not be intimidated to bring this up with your attorney. If your attorney needs assistance, I can provide them with forms and articles. Many attorneys understand the importance of providing for your pets and can help you make the correct decisions. Others just need you to educate them that this is an important area that they need to be aware of and offer assistance. This is the only property that you have that will miss you when you are gone.

Faith Orlowski is with the law firm of Sneed Lang, P.C., in Tulsa, Oklahoma.
She practices in the areas of commercial real estate, oil and gas law, estate planning, probate, and animal law.

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