How can a local government recover costs incurred in sheltering and caring for an animal while a civil or criminal case is pending?

Does this law apply every time a government seizes an animal?

No. G.S. 19A-70 applies only if an animal shelter takes custody of an animal after:

• The person is arrested for animal cruelty, abandoning an animal, animal fighting, or certain other cruelty-related crimes (see GS Ch. 14, Art. 47); or
• The person is the defendant in a civil animal cruelty action (see GS Ch. 19A, Art. 1) brought by (1) a local government, (2) a county-approved animal cruelty investigator, (3) a local government official, or (4) an organization operating a local government shelter under contract.

Who is eligible to recover costs under this law?

An “operator” of an animal shelter is eligible to petition court to recover sheltering costs. The law does not define the term “operator” but a common sense interpretation of the term suggests that it is the person or organization who owns, runs or manages the shelter. Sheltering arrangements vary widely across the state. Some local governments own and operate their own shelters, some contract with other local governments for sheltering services, and others contract with private entities such as animal welfare organizations. When the local government owns and manages its own shelter, the local government would be the shelter operator and would need to file the petition to recover costs. If a private entity owns and manages the shelter, that entity would likely be considered the shelter operator even if it receives funding from a local government to house animals in certain circumstances. If, however, a different, more integrated relationship existed and the local government has a hand in the management of the shelter, it is conceivable that the local government could be considered the shelter operator instead of or in addition to the private organization.

Where and when should the shelter operator file the petition?

The law is unclear. It simply states that the shelter operator “may file a petition with the court.” It does not specify which court should hear the petition and does not impose a deadline for filing the initial petition. Operations are taking a variety of approaches. In civil cruelty cases, the attorney representing the shelter operator may wish to file a motion in the pending case. If the defendant is charged with criminal cruelty, some prosecutors may not want to address this type of petition in the context of a criminal case. In some of these cases, attorneys representing shelter operators are filing separate civil actions.  

What should the petition say?

The petition should explain the situation, describe the animal(s) housed by the shelter, cite to G.S. 19A-70, and request that the judge order the defendant to deposit enough money with the court to cover the reasonable expenses in caring for the animal while the case is pending. The law defines the term “reasonable expenses” to include “the cost of providing food, water, shelter, and care, including medical care, for at least 30 days.” The petition should include an estimate of reasonable expenses, including an itemization of the specific items identified in the definition.

What will happen after the petition is filed?

The law clearly outlines the timeline of events that will follow the filing of a petition. Once the court receives the petition, it must hold a hearing in 10-15 business days (no less than 10 and no more than 15 days). Prior to the hearing, the shelter operator must (1) mail notice of the hearing and a copy of the petition to the defendant and (2) if the defendant is in jail, provide notice of the hearing to the custodian of the jail.

What will happen during the hearing?

The judge will need to review the petition and will likely provide an opportunity for the shelter operator’s attorney and the defendant or the defendant’s attorney to speak on the issue. The judge will evaluate the entire situation, including the facts and circumstances of the case, the need to care for the animal(s) while the case is pending, the cost of providing such care, and the defendant’s ability to pay. The judge may order the defendant to either

• Deposit enough money with the clerk of superior court to cover the reasonable expenses related to caring for the animal(s) for 30 days or Provide care for the animal (presumably at the defendant’s home).
• If the judge orders the defendant to deposit money with the clerk, the order must explain the process for extending the order. 3 – January 2009

Who is required to pay the amount ordered by the judge?

The law allows the judge to order the defendant to pay for the care of the animal(s). If the defendant does not own or otherwise have financial responsibility for the animal, it is unlikely that the judge will order another person to make payments pursuant to this law.

How can the shelter operator get the money?

If the judge orders the defendant to pay, the defendant must do so within five business days of the initial hearing. The law provides that the shelter operator may draw enough money from the funds to cover the actual costs incurred in caring for the animal. The clerk of superior court will establish the process for transferring the funds to the shelter operator.

What if the judge orders the defendant to pay but the case lasts longer than 30 days?

If the case lasts longer than 30 days, the law imposes obligations on both the shelter operator and the defendant. The defendant must either:

• Request a hearing no less than five days before the expiration of the 30-day period or
• Pay for 30 more days of care within five business days of the expiration of the
  previous 30-day period.

If the defendant fails to take one of these two steps, the animal is automatically forfeited.

While the defendant’s obligation to continue paying every 30 days appears automatic, the law does require the shelter operator to take action to have the order renewed every 30 days. Not later than two business days prior to the expiration of each 30-day period, the shelter operator must file an affidavit with the clerk of superior court explaining that, to the best of the shelter operator’s knowledge, the case has not been resolved. Once this affidavit is filed, the original order will automatically be renewed.

If the judge orders the defendant to pay, can the judge later change the order?

Yes. After the initial 30-day period has ended, the defendant may request a hearing to review the order. The hearing request must be submitted no less than 5 business days before the end of the 30-day period.

What if the defendant refuses to pay?

The law provides that if the defendant fails to comply with the judge’s order to pay
within five days of the initial hearing or within five days of any 30-day period, the animal is automatically forfeited. Once the animal has been forfeited, the shelter is allowed to decide how to dispose of it. If the shelter concludes that the animal is suitable for adoption, the animal may be adopted by any person other than the defendant or a person living in the defendant’s household. If the shelter concludes that the animal is unsuitable for adoption or the animal is not adopted, the shelter may humanely euthanize the animal.

What if the judge does not order the defendant to pay?

The judge is required to consider several factors when evaluating the petition, including the estimated cost of caring for the animals and the defendant’s ability to pay. The judge may decide that the defendant is “unable” to pay for the shelter operator to care for the animal. In such cases, the law allows the judge to order the defendant to provide necessary food, water, shelter and care (including medical care).

Note that the law provides that the animal may be kept at its “existing location” when the judge issues this type of order. In some instances, the animal has already been removed and taken to a shelter. While the law says that the animal should be kept at its “existing location,” the implication is that an animal at a shelter should be returned to the defendant’s custody or home.

If the judge issues this type of order, an animal control or law enforcement official must regularly visit the location to check on the animal and make sure that it is receiving necessary food, water, shelter, and care. The law does not specify a schedule for these visits but does indicate that they need to be regular – which means on a relatively structured schedule. If the official encounters difficulty making the inspections, the official could ask a magistrate to issue an administrative search and inspection warrant pursuant to G.S. 15A-27.2.

What if the defendant does not own the animal seized?

The law assumes that the defendant is the owner of the animal(s) and is financially
responsible for it. It is relatively easy to imagine situations in which the defendant:

• Has custody of but does not own the animal,
• Jointly owns the animal (e.g., a married couple), or
• Does not own or have custody of the animal.
  If the defendant has no ownership interest in the animal, the court will probably not order
  the defendant to pay or provide for the animal’s care nor will an automatic forfeiture be
  triggered under this statute.

What other options are available to help a shelter limit and recover costs?

• In animal cruelty cases, a civil suit can be filed under G.S. Chapter 19A, Article 1in order to allow a judge to issue an injunction relatively quickly to address (1) ownership interest in the animal and (2) cost recovery. This type of civil remedy may allow a judge to step in and decide the fate of the animal more quickly than waiting for a criminal case to work its way through the judicial system.
• Before G.S. 19A-70 was enacted, some judges were ordering defendants to pay
  for sheltering and care of animals. It is possible that a judge will still issue such an order outside the context of this new statute.
• The shelter operator could try to avoid incurring extensive costs by encouraging
  the owner to surrender the animal to the shelter or the county, thus allowing the animal to be euthanized or adopted out. In criminal cases, however, the shelter may not be able to dispose of the animal until the prosecutor is satisfied that she has all of the evidence she needs to proceed with the case.

Statute

§ 19A-70. Care of animal subjected to illegal treatment.

(a) In every arrest under any provision of Article 47 of Chapter 14 of the General Statutes or under G.S. 67-4.3 or upon the commencement of an action under Article 1 of this Chapter by a county or municipality, by a county-approved animal cruelty investigator, by other county or municipal official, or by an organization operating a county or municipal shelter under contract, if an animal shelter takes custody of an animal, the operator of the shelter may file a petition with the court requesting that the defendant be ordered to deposit funds in an amount sufficient to secure payment of all the reasonable expenses expected to be incurred by the animal shelter in caring for and providing for the animal pending the disposition of the litigation. For purposes of this section, "reasonable expenses" includes the cost of providing food, water, shelter, and care, including medical care, for at least 30 days.

(b) Upon receipt of a petition, the court shall set a hearing on the petition to determine the need to care for and provide for the animal pending the disposition of the litigation. The hearing shall be conducted no less than 10 and no more than 15 business days after the petition is filed. The operator of the animal shelter shall mail written notice of the hearing and a copy of the petition to the defendant at the address contained in the criminal charges or the complaint or summons by which a civil action was initiated. If the defendant is in a local detention facility at the time the petition is filed, the operator of the animal shelter shall also provide notice to the custodian of the detention facility.

(c) The court shall set the amount of funds necessary for 30 days' care after taking into consideration all of the facts and circumstances of the case, including the need to care for and provide for the animal pending the disposition of the litigation, the recommendation of the operator of the animal shelter, the estimated cost of caring for and providing for the animal, and the defendant's ability to pay. If the court determines that the defendant is unable to deposit funds, the court may consider issuing an order under subsection (f) of this section. Any order for funds to be deposited pursuant to this section shall state that if the operator of the animal shelter files an affidavit with the clerk of superior court, at least two business days prior to the expiration of a 30-day period, stating that, to the best of the affiant's knowledge, the case against the defendant has not yet been resolved, the order shall be automatically renewed every 30 days until the case is resolved.

(d) If the court orders that funds be deposited, the amount of funds necessary for 30 days shall be posted with the clerk of superior court. The defendant shall also deposit the same amount with the clerk of superior court every 30 days thereafter until the litigation is resolved, unless the defendant requests a hearing no less than five business days prior to the expiration of a 30-day period. If the defendant fails to deposit the funds within five business days of the initial hearing, or five business days of the expiration of a 30-day period, the animal is forfeited by operation of law. If funds have been deposited in accordance with this section, the operator of the animal shelter may draw from the funds the actual costs incurred in caring for the animal. In the event of forfeiture, the animal shelter may determine whether the animal is suitable for adoption and whether adoption can be arranged for the animal. The animal may not be adopted by the defendant or by any person residing in the defendant's household. If the adopted animal is a dog used for fighting, the animal shelter shall notify any persons adopting the dog of the liability provisions for owners of dangerous dogs under Article 1A of Chapter 67 of the General Statutes. If no adoption can be arranged after the forfeiture, or the animal is unsuitable for adoption, the shelter shall humanely euthanize the animal.

(e) The deposit of funds shall not prevent the animal shelter from disposing of the animal prior to the expiration of the 30-day period covered by the deposit if the court makes a final determination of the charges or claims against the defendant. Upon determination, the defendant is entitled to a refund for any portion of the deposit not incurred as expenses by the animal shelter. A person who is acquitted of all criminal charges or not found to have committed animal cruelty in a civil action under Article 1 of this Chapter is entitled to a refund of the deposit remaining after any draws from the deposit in accordance with subsection (d) of this section.

(f) Pursuant to subsection (c) of this section, the court may order a defendant to provide necessary food, water, shelter, and care, including any necessary medical care, for any animal that is the basis of the charges or claims against the defendant without the removal of the animal from the existing location and until the charges or claims against the defendant are adjudicated. If the court issues such an order, the court shall provide for an animal control officer or other law enforcement officer to make regular visits to the location to ensure that the animal is receiving necessary food, water, shelter, and care, including any necessary medical care, and to impound the animal if it is not receiving those necessities.