Bluefield Daily Telegraph, Bluefield, WV

May 1, 2013

Spay and neuter debate heats up in Mercer

By CHARLES OWENS and KATE COIL
Bluefield Daily Telegraph

PRINCETON — The controversy surrounding Bluefield’s ban on pit bulls is prompting a renewed debate over whether county governments should be allowed to implement spay/neuter ordinances.

Depending upon who you ask, the response to that question is quite different. Bluefield Mayor Linda Whalen points to the fact that the city of Bluefield has a spay/neuter ordinance. And she questions why the Mercer County Commission doesn’t have a similar ordinance. She believes the lack of a county spay/neuter ordinance is one of the reasons why the county animal shelter is overcrowded.

“We have a spay/neuter ordinance — the county doesn’t,” Whalen said last week. “It is hard for me to understand how the city can have a spay/neuter ordinance and the county doesn’t.”

When asked Tuesday to clarify whether the county can or can’t implement a spay/neuter ordinance, Prosecuting Attorney Scott Ash said it would take new legislation passed by lawmakers in Charleston before county commissions would be specifically empowered to enact spay/neuter ordinances. However, he concedes that existing state code — 7-1-3kk — could be vaguely interpreted as allowing for a county commission to implement a spay/neuter ordinance. That code authorizes county commissions to provide for the elimination of hazards to public health and safety, and to abate or cause to be abated anything that a commission determines to a public nuisance.

“The county government has only those rights which the Legislature has granted them,” Ash said. “About the delegated authority to the county commission, there is no statute that specifically grants them the authority to enact a spay/neuter ordinance. There is sort of a catchall ordinance that gives them the authority to abate public nuisance and provide for the public safety. But whether that stretches to the place where you can declare them — the number of dogs to be a public nuisance — (is undetermined). I think you have to be able to say the number of breeding dogs and cats in the county is a public safety and health issue. And frankly I haven’t seen any statistics on that. There would have to be some factual basis for saying so.”

However, County Commission President Mike Vinciguerra points to a different state code — 19-20B-6 — as the reason why he believes the county can’t implement a spay/neuter ordinance. That section of state code deals with animals that are being held at a county animal shelter. It states that a county government is not authorized to spay or neuter a dog or cat if the dog or cat is claimed by and returned to its lawful owner within five days of being taken into custody by the county.

“So that’s the reason we can’t pass a spay/neuter ordinance,” Vinciguerra said. “The state code says as long as you come to claim it, and as long as you have a rabies shot or dog tag, the (county) can’t spay/neuter it. With this state code right here, what I’m saying is how can we pass an ordinance saying you must have your animal spayed or neutered if it states right here that we can’t require you to have it spayed or neutered?”

Vinciguerra said interpreting an overpopulation of dogs and cats as a public health hazard or nuisance — as hypothetically allowed under existing state code 7-1-3kk — would be a stretch.

“You would have to stretch it an awful long way,” he said.

Vinciguerra said the commissioners aren’t hearing a lot of requests from the public for a spay/neuter ordinance nowadays.

“It hasn’t been a big issue in over a year,” Vinciguerra said. “The only time they bring up anything we hear is when an animal is running loose in the neighborhood. If they see one tied up with no food or water people will call us and tell us.”

Vinciguerra said the key to the problem is getting animals at the county shelter adopted out — and fast. He points to a successful adoption drive last December co-sponsored by Grant’s Supermarket.

“If you remember back in December we adopted out 95 animals with Grant’s Supermarket, which was great,” Vinciguerra said. “We are looking to do that again if we can find someone to sponsor (an adoption drive).”

Summer Wyatt, state director of the Humane Society of the United States and a former resident of Mercer County, points to a different section of state code that she views as prohibiting county commissions from enacting spay/neuter ordinances. She would like to work with state lawmakers to amend state code 7-1-14 to allow for county governments to enact spay/neuter ordinances. The existing code outlines the rules and regulations that county officials must follow as it relates to the custody and care of animals that have been abandoned, neglected or cruelly treated. It provides for a number of requirements, including adequate food, water and shelter, but doesn’t specifically address or allow for spay/neuter ordinances.

“It clearly states adequate food, adequate water, adequate shelter, adequate exercise and veterinarian care,” Wyatt said. “But our state code doesn’t authorize us to do anything beyond what the state code already outlines.”

Wyatt said she would be eager to work with any lawmaker who would attempt to amend the state code to allow for county commissions to consider spay/neuter ordinances.

“I would encourage anyone who is interested to reach out to their state representatives and try to change this,” Wyatt said. “I would certainly offer to assist them.”

Bluefield City Attorney Brian Cochran points to state code 8-12-5-26 as the reason Bluefield can implement its own spay/neuter ordinance. The city ordinance was launched in 2008 as a health and safety measure for the city.

“State code 8-12-5-26 permits the city to regulate any animals or fowl kept within the city limits,” Cochran said. “The rationale the city took with this is that the overpopulation of animals is a public health and safety concern. The city’s ordinance begins that it is for ‘the health, safety and general welfare’ of the citizens.”

Cochran adds the state code gives the city the authority “to provide for the elimination of hazards to public health and safety.” The state code gives us the authority. There is a section of the code that applies to cities and a section of that applies to counties.”

Cochran said a similar worded part of the state code aimed at county commissions appears in state code 7-1-3kk.

Cochran said the city ordinance stipulates that any animal older than 6-months must be spayed or neutered unless a licensed state veterinarian can vouch the animal is medically unfit to be altered, the animal is kept within the city limits 30 days or less a year, or if the owner obtains an unaltered animal permit from the city clerk. In order to obtain an unaltered animal permit, Cochran said citizens must pay $50, have the animal checked by a veterinarian regularly, keep the animal up to date on its vaccinations, and have no more than one violation of any animal code within the past 24 months.

Cochran said both the ordinance and dedicated volunteers have helped control the problem of animal overpopulation in the city.

“It is hard to judge where we would be without the (spay/neuter) ordinance,” Cochran said. “We occasionally have issues with stray cats and dogs. We also have a lot of volunteers who work very hard to contain animal issues and they do a great job. It’s hard to judge what things would be like without these dedicated volunteers or without the ordinance. In addition to these restrictions, we have local organizations that help provide spay and neuter services to people in the city.”

County Commissioner Gene Buckner also said to his understanding state code prevents the commission from passing a countywide spay/neuter ordinance.

“The state code doesn’t allow it,” Buckner said. “I have read it and so has Mike (Vinciguerra). A lot of municipalities can do things that counties can’t. We are just told that this is something we cannot do under state code and we are bound by state code. We will be looking into this issue and if the city of Bluefield would like to send us a copy of their ordinance, we would be willing to look over that as well. As it stands to date, there is no change because we have been told by our lawmakers and lawyers that there would have to be a change in state law before the county commission could pass any spay/neuter ordinance.”

Buckner said he was not on the board when a spay/neuter ordinance for the county was proposed in 2012, but he did attend several meetings where the proposal was discussed.

“I was not on the board then but I did sit in on the meetings during that period,” Buckner said. “The only people who wanted a spay/neuter ordinance were the animal volunteers. There was a large contingency of people who did not want a spay/neuter ordinance. We had such a fight over it the county dropped it so they would not be infringing on the rights of people who own hunting dogs and breeders.”

To his knowledge, Buckner said the county commission has not approached any of Mercer County’s delegates or state senators with the idea of putting a measure into the state code that would allow county commissions more flexibility regarding spay/neuter ordinances.

“I have only been on the commission since January, but as far as I know, there has been no talk with our state lawmakers or anyone on the state about introducing any legislation that would allow counties to pass a spay/neuter ordinance,” he said. “We will do whatever is best for the people of the county.”