Chapter 636 Oregon Laws 2001

AN ACT

SB 166

Relating to animals; creating new provisions; and amending ORS 433.345, 433.365, 433.385, 433.990, 609.010, 609.090, 609.093, 609.095, 609.097 and 609.990.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) Any person may establish a pet trust for the care of designated domestic or pet animals. A pet trust may provide for the care of individually named animals or for a class of animals, but any animal provided for under the trust must be living at the time of the trustor’s death. Wills and other instruments shall be liberally construed in favor of finding the creation of a pet trust, and there is a presumption against merely precatory or honorary disposition on behalf of domestic and pet animals.

(2) The terms and conditions of a pet trust may be enforced by an individual designated for that purpose in the trust instrument. If the trust instrument does not designate a person to enforce the terms and conditions of the pet trust, the circuit court may appoint a person for that purpose. Reasonable compensation for a person appointed by the court may be paid from the assets of the trust.

(3) If a trustee is not designated in a pet trust or the person designated to act as trustee is unwilling or unable to serve, the circuit court shall name a trustee. A pet trust may designate one or more persons to serve as successor trustee. The court may order the transfer of the property to a person other than the designated trustee or successor trustee if the transfer is required to ensure that the trustor’s intent is carried out. The court may also make such other orders as the court deems necessary to carry out the intent of the trustor and the purposes of this section.

(4) Upon termination of a pet trust, the trustee shall transfer the unexpended trust property in the following order:

(a) As directed by the trust instrument;

(b) If the trust was created in a nonresiduary clause in the trustor’s will, under the residuary clause in the trustor’s will; or

(c) If paragraphs (a) and (b) of this subsection do not apply, to the persons to whom the estate of the trustor would pass by intestate succession under ORS 112.025 to 112.055.

(5) Except as ordered by a circuit court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment or fee is required by reason of the existence of the fiduciary relationship of the trustee.

(6) A pet trust terminates as provided by the terms of the trust instrument. If the trust instrument makes no provision for termination of the trust, the trust terminates when no living animal is covered by the trust or when all trust assets are exhausted, whichever occurs first.

SECTION 2. ORS 433.345 is amended to read:

433.345. (1) [Whenever] If an animal bites [any] a person and the bite causes a break in the skin, or if an animal is suspected of rabies or has been in close contact with an animal suspected of rabies, the facts shall be immediately reported to the local health officer by any person having direct knowledge.

(2) The Health Division, in consultation with the State Department of Agriculture, shall promulgate rules relating to the handling and disposition of animals that have bitten [any] a person or are suspected of rabies or that have been in close contact with an animal suspected of rabies. Such rules may include requirements for confinement, isolation and inoculation. Owners or persons in possession of animals subject to such rules, shall handle or dispose or allow the handling or disposal of such animals strictly in accordance with such rules.

SECTION 3. ORS 433.365 is amended to read:

433.365. (1) [All dogs] A dog that has permanent canine teeth or that is six months of age or older must be inoculated against rabies, unless specifically exempted by rule of the Health Division or the State Department of Agriculture.

(2) Unless pursuant to conditions specified in ORS 430.357, any [regulations] rules of the State Department of Agriculture or the Assistant Director for Health with respect to inoculation shall:

(a) Not apply to animals brought temporarily into the state for periods of less than 30 days but [they] may require that [such] the animals be kept under strict supervision by [their] the owners of the animals.

(b) Not apply to dogs or to any other animal specifically exempted from the inoculation requirement by rule of the Health Division or the State Department of Agriculture.

(3) The costs of all such required inoculations shall be borne by the owners of the animal.

SECTION 4. ORS 433.385 is amended to read:

433.385. (1) Any animal in violation of ORS 433.365 shall be apprehended and impounded.

(2) All animals apprehended and impounded under this section shall be held in adequate and sanitary pounds to be established or contracted for in each county by the governing body of the county. All animals so impounded shall be given proper care and maintenance.

(3) When an animal is apprehended and impounded, the owner, if known, shall be given notice of not less than five days from the date of such impounding before the animal is destroyed or otherwise disposed of. An owner appearing to redeem the animal may do so if the provisions of ORS 433.365 are complied with and if the owner pays the expense of keeping the animal during the time it was impounded and in addition thereto, the sum established by the county governing body. If the animal is subject to any other impounding law the requirements for release under that law shall also be met except that the expense of keeping the animal shall be payable only once for the period of impoundment. If the owner does not appear to redeem the animal after the notice provided for herein, or otherwise, after five days, or if the owner is not known, after three days, the governing body of the county may provide for animals impounded to be released to any other person upon the conditions outlined in this subsection or otherwise disposed of in a humane manner.

(4) [Where] If the owner desires to redeem an animal impounded pursuant to this section or the animal is to be released to any other person as provided in subsection (3) of this section, the person shall post a $20 deposit with the county and obtain possession of the animal for the purpose of complying with ORS 433.365. [Upon demonstrating] The county shall refund the deposit to a person who, on or before the eighth day after obtaining possession of the animal, demonstrates proof of rabies inoculation or exemption from the inoculation requirement and, if applicable, proof of purchase of a license as required under ORS 609.100.[, within eight days of obtaining possession of the animal, the $20 deposit shall be refunded to the person posting the deposit.] Failure to demonstrate proof of rabies inoculation or exemption and proof of licensing within the prescribed time shall forfeit the deposit to the county.

(5) The governing body of the county shall designate persons responsible for the enforcement of this section.

SECTION 5. ORS 433.990 is amended to read:

433.990. (1) Violation of ORS 433.004 or 433.008, 433.255, 433.260 or 433.715 is a Class A misdemeanor.

(2) Violation of ORS 433.010 is punishable, upon conviction, by imprisonment in the custody of the Department of Corrections for not more than three years.

(3) Violation of ORS 603.059 is a Class D violation. If the nuisance is not removed within five days after the first offense, it is considered a second offense and every like neglect of each succeeding five days thereafter is considered an additional offense.

(4) Violation of ORS 433.035 is punishable upon conviction by a fine of not less than $10 nor more than $100, or by imprisonment for not less than 10 days nor more than 30 days, or by both.

(5) Violation of ORS 433.850 (2) or (4) is a Class D violation punishable by fines totaling not more than $100 in any 30-day period.

(6) Violation of ORS 433.345 or 433.365 [or] is a Class B violation. Failure to obey any lawful order of the Assistant Director for Health issued under ORS 433.350 is a Class C misdemeanor.

(7) Any organizer, as defined in ORS 433.735, violating ORS 433.745 is punishable, upon conviction, by a fine of not more than $10,000.

SECTION 6. ORS 609.010 is amended to read:

609.010. (1) As used in ORS 609.040 to 609.110, “running at large” means a dog is off or outside of the premises occupied by the keeper of the dog, or is not in the company of and under the control of its keeper. “Running at large” does not include:

(a) The use of a dog to legally hunt, chase or tree wildlife while under the supervision of the keeper;

(b) The use of a dog:

(A) To control or protect livestock; or

(B) For other activities related to agriculture; or

(c) A dog that is within any part of a vehicle.

(2) As used in this section and ORS 609.040 to 609.110 and 609.990:[,]

(a) “Keeper” means a person who owns, possesses, controls or otherwise has charge of a dog.

(b) “Menaces” or “menacing” means lunging, growling, snarling or other behavior by a dog that would cause a reasonable person to fear for the person’s safety.

SECTION 7. ORS 609.090 is amended to read:

609.090. (1) When a dog is found running at large in a county, precinct or city that is subject to ORS 609.040 to 609.110 or when a dog is a public nuisance described by ORS 609.095 or subsection (5) of this section, a constable, sheriff, deputy, police officer or dog control officer shall impound it or cite the keeper to court or do both.

(2) All dogs impounded under this section and ORS 609.030 shall be held in an adequate and sanitary pound to be provided by the county governing body from the general fund or out of funds obtained from dog licenses and from the redemption of dogs so impounded. However, in lieu of the establishment of a dog pound, the county governing body may contract for the care of the dogs. Unless claimed by its keeper, a dog shall be impounded for at least three days if the dog is without a license or identification tag and for at least five days if it has a license or identification tag. A reasonable effort shall be made to notify the keeper of a dog before the dog is removed from impoundment.

(3) Unless the dog control board or county governing body provides otherwise, if the keeper appears and redeems the dog, the keeper shall pay a sum of not less than $10 for the first impoundment and not less than $20 for each subsequent impoundment and also pay the expense of keeping the dog during the time it was impounded. If the dog is unlicensed the keeper shall also purchase a license and pay the applicable penalty for failure to have a license. If the keeper is not the owner of the dog, the keeper may request that a license purchased by the keeper under this subsection be issued in the name of the dog owner.

(4) In addition to any payment required pursuant to subsection (3) of this section, a dog control board or county governing body may require as a condition for redeeming the dog that the keeper agree to reasonable restrictions on the keeping of the dog. The keeper must pay the cost of complying with the reasonable restrictions. As used in this subsection, “reasonable restrictions” may include, but is not limited to, sterilization.

(5) A keeper of a dog maintains a public nuisance if the keeper fails to comply with reasonable restrictions imposed under subsection (4) of this section. If a keeper fails to provide acceptable proof of compliance to the dog control board or county governing body on or before the 10th day after issuance of the order imposing the restrictions, there is a rebuttable presumption that the keeper has failed to comply. If the board or governing body finds the proof submitted by the keeper unacceptable, the board or governing body shall send notice of that finding to the keeper no later than five days after the proof is received.

(6) If no keeper appears to redeem a dog within the allotted time, the dog may be killed in a humane manner. The dog control board or county governing body may release the dog to a responsible person upon receiving assurance that the person will properly care for the dog and upon payment of a sum established by the county governing body plus cost of keep during its impounding, and purchase of a license if required. The person shall thereafter be liable as owner of the dog as provided by ORS 609.040 to 609.110.

(7) If the keeper of a dog is not charged with violating ORS 609.095 (2) or (3), upon finding that the dog has menaced or chased a person when [not on] on premises other than the premises occupied exclusively by the keeper or has bitten a person, the dog control board or county governing body may order that the dog be killed in a humane manner. [In determining whether the dog should be] Before ordering that the dog be killed, the board or governing body shall consider the factors described in ORS 609.093 and issue written findings on those factors. Notwithstanding ORS 34.030, if the disposition order issued by the board or governing body provides that the dog is to be killed, a petition by the keeper for a writ of review must be filed no later than the 10th day after the dog control board or county governing body sends notice of the order to the keeper. Notwithstanding ORS 19.270, 19.330 and 34.070, the order for the killing of the dog may not be carried out during the period that the order is subject to review or appeal. If the dog is not killed, the board or governing body may impose reasonable restrictions on the keeping of the dog. The keeper must pay the cost of complying with the reasonable restrictions.

(8) If the keeper of a dog is charged with violating ORS 609.095 (2) or (3), upon conviction of the keeper the court may determine the disposition of the dog as provided under ORS 609.990.

(9) Notwithstanding the provisions of subsections (2), (3), (6), (7) and (8) of this section, any dog impounded for biting a person shall be held for not less than 10 days before redemption or destruction to determine if the dog is rabid.

(10) A dog control board or county governing body may impose lesser fees or penalties under subsections (3) and (6) of this section for certain senior citizens under certain circumstances.

SECTION 8. ORS 609.093 is amended to read:

609.093. [(1)] In determining whether a dog should be killed as provided under ORS 609.090 (7) or 609.990, a dog control board, county governing body or court shall consider the following factors:

[(a)] (1) The circumstances of the bite, including whether the dog was provoked by the person bitten;

[(b)] (2) Whether the keeper has a history of maintaining dogs that are a public nuisance;

[(c)] (3) The impact of keeper actions on the behavior of the dog;

[(d)] (4) The severity of the bite;

[(e)] (5) The ability and inclination of the keeper to prevent the dog from chasing or menacing another person on premises other than the premises occupied exclusively by the keeper or from biting another person;

[(f)] (6) Whether the dog can be relocated to a secure facility;

[(g)] (7) The effect that a transfer of ownership would have on ensuring the health and safety of the public;

[(h)] (8) Whether the dog has unjustifiably chased or menaced a person on a prior or subsequent occasion; and

[(i)] (9) Any other factors that the board, governing body or court may deem relevant.

[(2) A dog control board, county governing body or court has discretion in making the decision described in subsection (1) of this section and is not required to treat any factor listed in subsection (1) of this section as controlling.]

SECTION 9. ORS 609.095 is amended to read:

609.095. (1) A dog is a public nuisance if it:

(a) Bites a person;

(b) [Chases vehicles or persons] Chases or menaces persons or chases vehicles on premises other than premises occupied exclusively by the keeper of the dog;

(c) Damages or destroys property of persons other than the keeper of the dog;

(d) Scatters garbage on premises other than premises occupied exclusively by the keeper of the dog;

(e) Trespasses on private property of persons other than the keeper of the dog;

(f) Disturbs any person by frequent or prolonged noises;

(g) Is a female in heat and running at large; or

(h) Injures or kills a pet or domestic animal as defined in ORS 167.310 (4).

(2) The keeper of a dog in a county, precinct or city that is subject to ORS 609.030 and 609.040 to 609.110 maintains a public nuisance if the dog commits an act described under subsection (1) of this section or the keeper does not comply with reasonable restrictions as described in subsection (3) of this section. Except as provided under ORS 609.990 [(4)] (3), maintaining a dog that is a public nuisance is a violation.

(3) A keeper of a dog maintains a public nuisance if the keeper fails to comply with reasonable restrictions imposed under ORS 609.990. If a keeper fails to provide acceptable proof of compliance to the court on or before the 10th day after issuance of the order imposing the restrictions, there is a rebuttable presumption that the keeper has failed to comply. If the court finds the proof submitted by the keeper unacceptable, the court shall send notice of that finding to the keeper no later than five days after the proof is received.

(4) Any person who has cause to believe a keeper is maintaining a dog that is a public nuisance may complain, either orally or in writing, to the county, precinct or city. The receipt of any complaint is sufficient cause for the county, precinct or city to investigate the matter and determine whether the keeper of the dog is in violation of subsection (2) or (3) of this section.

SECTION 10. ORS 609.097 is amended to read:

609.097. A dog [shall not be considered] is not a public nuisance under ORS 609.090 (5) or 609.095 [or] and may not be destroyed under ORS 609.090 or 609.990 if the dog menaces, chases or bites a person wrongfully assaulting the dog or the dog’s keeper or if the dog menaces, chases or bites a person trespassing upon premises occupied exclusively by the dog’s keeper after being provoked by that person.

SECTION 11. ORS 609.990 is amended to read:

609.990. (1) Violation of ORS 609.060 (2), 609.100 or 609.169 is a Class B violation.

(2) [Except as provided under subsections (3) and (4) of this section,] If a dog is a public nuisance for a reason or reasons not including chasing or menacing a person on premises other than premises occupied exclusively by the keeper of the dog or biting a person, maintaining a public nuisance in violation of ORS 609.095 (2) or (3) is punishable by a fine of not more than $250.

(3) Except as provided in this subsection, if a dog is a public nuisance because the dog chases or menaces a person on premises other than premises occupied exclusively by the keeper of the dog or because the dog bites a person, maintaining the public nuisance in violation of ORS 609.095 (2) or (3) is punishable by a fine of not more than $500. If a dog is a public nuisance because the dog chases or menaces a person on premises other than premises occupied exclusively by the keeper of the dog or because the dog bites a person, a dog keeper maintaining the public nuisance in violation of ORS 609.095 (2) or (3) commits a Class C misdemeanor if the keeper has previously been convicted of a violation or crime because of any dog chasing or menacing a person on premises other than premises occupied exclusively by the keeper of the dog or because of any dog biting a person.

(4) Except as provided in subsection (5) of this section, in addition to any fine or sentence imposed or restitution ordered of the keeper under this section, [if a dog is a public nuisance as described under ORS 609.095,] the court may impose reasonable restrictions on the keeping of the dog to ensure the safety or health of the public. [However, if the dog has menaced or chased a person when not on the premises of the keeper, instead of imposing reasonable restrictions under this subsection, the court shall make a disposition of the dog as permitted under subsection (3) of this section.] The keeper must pay the cost of complying with reasonable restrictions. As used in this subsection, “reasonable restrictions” may include, but is not limited to, sterilization.

[(3) When a dog is a public nuisance because the dog bites a person, maintaining the nuisance in violation of ORS 609.095 (2) or (3) is punishable by a fine of not more than $500. In addition to any sentence imposed or restitution ordered under this section,]

(5) In addition to any fine or sentence imposed or restitution ordered of the keeper under this section, the court may order that a dog be killed in a humane manner if the dog has menaced or chased a person when on premises other than the premises occupied exclusively by the keeper or has bitten a person.[, after] In determining whether a dog is to be killed, the court must give consideration [of] to the factors described in ORS 609.093 and issue written findings on those factors[, order that the dog be killed in a humane manner]. If the dog is not killed, the court:

(a) Shall order that the dog undergo sterilization. The sterilization procedure shall be at the expense of the keeper of the dog; and

(b) May impose reasonable restrictions on the keeping of the dog. The keeper must pay the cost of complying with the reasonable restrictions. If the keeper maintains a public nuisance as described in ORS 609.095 (3) by failing to comply with reasonable restrictions imposed pursuant to this paragraph, the court may reconsider the determination made under this subsection and upon reconsideration may include the failure to comply as evidence regarding the ability and inclination of the keeper to prevent the dog from chasing or menacing another person on premises other than premises occupied exclusively by the keeper or from biting another person.

[(4) Notwithstanding subsection (3) of this section, a dog keeper maintaining a nuisance described under subsection (3) of this section commits a Class C misdemeanor if the keeper has previously been convicted of a violation or crime because of any dog biting a person. In addition to any sentence imposed or restitution ordered under this section, the court may order any disposition of the dog as permitted under subsection (3) of this section.]

(6) Notwithstanding ORS 19.270 and 19.330, subject to periodic advance payment of the cost of keeping the dog in impoundment, the killing of a dog pursuant to an order under this section may not be carried out during the period that the order is subject to the appeal process. Unless otherwise ordered by the Court of Appeals, the dog may be killed during the appeal period if the keeper fails to maintain advance payment of the cost of keeping the dog impounded.

(7) If a circuit court orders a dog killed and the keeper does not make the dog available for that purpose, the court may issue a search warrant for a property upon probable cause to believe that the dog is located at that property.

[(5)] (8) Violation of ORS 609.405 constitutes a Class C misdemeanor.

Approved by the Governor June 27, 2001

Filed in the office of Secretary of State June 27, 2001

Effective date January 1, 2002

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