ANIMAL CARE AND CONTROL

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13.1 Summary

Vectors are animals or organisms like mosquitoes or ticks that are capable of transmitting disease to humans or animals. District of Columbia (District) law prohibits certain activities and conditions that increase the risk of vector-borne disease, thereby creating a public health nuisance. The Mayor of the District of Columbia (the Mayor) has authority to order the abatement of such nuisance activities.

There are many issues related to the care and control of animals during disasters and emergencies. Federal and District law provide protection for pets and service animals during disasters and emergencies. The District has created an emergency preparedness plan for the protection, sheltering, and evacuation of domestic animals following passage of the federal Pets Evacuation and Transportation Standards Act.  The Americans with Disabilities Act’s broad anti-discrimination provisions extend to emergency preparedness, response, and recovery efforts.

13.2 Vector-Borne Infectious Disease Control

13.2.1 Definitions

  1. A “vector” is any animal or organism capable of transmitting the causative agent of human or animal disease or capable of producing human discomfort or injury, including mosquitoes, flies, mites, ticks, or other arthropods. D.C. Official Code § 8-2131.01(6).
  2. A “public health nuisance” is any property, including water, that supports the development, attraction, or harborage of vectors; any property that has a vessel, container, or other structure holding water that provides a breeding place for vectors; or any activity that supports the development, attraction, or harborage of vectors, or that facilitates the introduction or spread of vectors. D.C. Official Code § 8-2131.01(5).
  3. “Abate” means to eliminate a public health nuisance, or to reduce the degree or intensity of a public health nuisance. D.C. Official Code § 8-2131.01(1).

13.2.2 Prohibited Activities – Tires

As tires play a prominent role in the breeding and harboring of vectors such as mosquitoes, certain activities are prohibited in relation to tires.  The following are prohibited:

  • Causing or allowing the open dumping of tires;
  • Causing or allowing the open burning of tires;
  • Causing or allowing the storing of any tire unless the owner or operator of the property where the tire is stored takes measures to store the tire indoors or, if the tire is stored outdoors, to prevent the accumulation of water in the tire by covering or altering the tire; and
  • Causing or allowing the tire to be used in playground equipment unless the tire is altered to prevent the accumulation of water.

D.C. Official Code § 8-2131.02(a).

13.2.3 Prohibited Activities – Standing Water

Standing water leads to the breeding and harboring of vectors, as vectors, such as mosquitoes, may use natural and artificial water-holding containers (e.g., tree holes, used tires, plastic containers, clogged gutters) to lay their eggs.

For example, female mosquitoes prefer to lay eggs in water that collects or is stored in manmade containers. After hatching, larvae grow and develop into pupae and subsequently into a terrestrial, flying adult mosquito.

Therefore, the following measures must be taken in relation to standing water to prevent such breeding and harboring:

  • Performing routine checks around property to ensure there is no standing water collected;

  • Draining or replacing water frequently enough to prevent vector breeding;

  • Keeping swimming pools and other open waters used for bathing or swimming sufficiently chlorinated to prevent vector larvae from hatching;

  • Covering water-bearing containers with covers or fine netting to prevent access by vectors; or

  • Applying larvicide to the standing water.

D.C. Official Code § 8-2131.02(b).

13.2.4 Mayoral Authority to Inspect

The Mayor of the District of Columbia (the Mayor) may inspect occupied or vacant property to investigate an allegation of a public health nuisance.  Such allegation may come from the Mayor’s own information or observation, or the information or observation of another individual. The inspection must be conducted during reasonable times and in a reasonable manner. If the owner or occupant of the property denies access for such inspection, the Mayor may apply to a court of competent jurisdiction for a search warrant.  If the Mayor determines that a public health nuisance exists after the inspection, the Mayor may order the owner or occupant to take appropriate action to abate the nuisance in accordance with D.C. Official Code § 8-2131.05.

If vectors are present in their developmental stage on a property, or in a vessel, container, or other structure on a property, such presence constitutes prima facie evidence of a public health nuisance. D.C. Official Code § 8-2131.04.

13.2.5 Abatement of a Public Health Nuisance

Upon determination by the Mayor that a public health nuisance exists on a property, the Mayor will issue a notice of violation to the person alleged to have created the public health nuisance or the owner or occupant of the property. Upon receipt of such notice, the person responsible for the property must abate the public health nuisance within the time specified in the notice.  The Mayor may grant additional time to abate upon request from the responsible party and a good faith showing that the person has made an effort to abate the public health nuisance and that a longer time for abatement is necessary. D.C. Official Code § 8-2131.05.

13.2.6 Notice of Existence of a Public Health Nuisance

Notice to the owner, occupant, or any other responsible person on the premises may be served in two ways: (1) delivery by prepaid mail, return receipt requested to the owner or occupant of the property; or (2) public posting of the notice in a conspicuous place on the property where the public health nuisance exists. The notice must contain the following:

  • The location, date, and time that the public health nuisance took place or that the Mayor investigated the public health nuisance;
  • The nature of the public health nuisance;
  • The time, no later than 10 days, within which the public health nuisance must be abated;
  • The specific corrective actions the owner or occupant will take to abate the public health nuisance with a referral to the Department of Health's (DC Health) Health Regulation and Licensing Administration (HRLA) to provide assistance with the abatement efforts of the public health nuisance; and
  • A statement that failure to abate the public health nuisance constitutes a violation of D.C. Official Code § 8-2131 et seq.  

D.C. Official Code § 8-2131.05(a).

13.2.7 Corrective Actions by Mayor to Abate a Public Health Nuisance

Subject to availability of funds, the Mayor may take action to abate certain health hazards that are the result of the development, attraction, or harborage of vectors.  Such action may include cleanup, abatement, and preventive measures; however, the District of Columbia (the District) must take action to protect human health, if one or more of the following conditions exist:

  • The action is required to protect public space;
  • No person can be found who is the owner of the property in question, and is capable of implementing the required corrective action within 30 days of the posting of the notice on the property, or a shorter period if the Mayor determines that action must be taken to protect human health;
  • A situation exists that requires immediate action by the Mayor to protect human health; and/or
  • The responsible party has failed or refused to comply within 30 days of a Mayoral order for compliance.

D.C. Official Code § 8-2131.06(a).

13.2.8 Costs Recoverable for Corrective or Enforcement Action

The District may recover costs incurred when taking corrective or enforcement action to abate development, attraction, and harborage of vectors from all parties found to be liable by the Mayor.  Such liability is joint and several.  In addition, the Mayor may assess any reasonable costs for correcting the condition and any related expenses as a tax against the property, carry the tax on the regular tax rolls, and collect the tax in the same manner as real estate taxes are collected.  D.C. Official Code § 8-2131.06(b).

13.2.9 Penalties and Adjudication

A violation of the vector-borne infectious disease control laws, D.C. Official Code § 8-2131.01 et seq., constitutes a civil infraction under the Department of Consumer and Regulatory Affairs Civil Infractions Act. Civil fines, penalties, and fees can be imposed pursuant to the Civil Infractions Act. Adjudication of any infraction is pursuant the Act as well.  See Bernstein Management v. DC Rental Housing Commission, 92 A.2d 190 (D.C. 2008).

13.3 Rodent Abatement

13.3.1 Definitions

  1. “Rodent abatement” means removing rodent infestations by eliminating or rodent-proofing food sources, eliminating rodent nesting areas, rodent-proofing building entry ways, and poisoning or trapping existing rodent populations. D.C. Official Code § 8-2103.01.
  2. “Harborage” means rodent infestation or providing food or nesting areas for rodents that can be identified by the presence of burrows, droppings, tracks, runways, gnawing, urine stains, odor, live or dead rodents, nests, or rodent-gnawed food. D.C. Official Code § 8-2103.01.

13.3.2 Rodent Harborage Prohibited

It is unlawful for any person to cause or permit the accumulation of debris on public or private property or cause or permit weeds or grass to grow to a height of more than 8 inches.  Rodent abatement must occur within 14 days of notice of a violation from the Mayor. If abatement does not occur, the person who fails to abate the condition is liable for arrest and penalties, including a misdemeanor conviction and a fine for each offense not to exceed $10,000, or imprisonment not to exceed 90 days, or both, in the court’s discretion. D.C. Official Code § 8-2103.05.

13.4 Annual Mosquito Control and Abatement Plan

Annually, the DC Health must develop and submit to the Council of the District of Columbia (D.C. Council) a mosquito-abatement plan, delineated by ward, for the following fiscal year to prevent and abate the infestation of mosquitoes.  Such plan, at a minimum, must include:

  • A determination of which wards are in greatest need of mosquito abatement;

  • A plan of action to eliminate the habitats of immature mosquitoes and control immature and adult mosquitoes;

  • A plan to ensure that eradication measures do not injure pets or wildlife; and

  • Delineation of the costs associated with the entire plan.

D.C. Official Code § 8-2141.01.

13.5 Rabies and Animal Bites

If the Director of the Department of Health (DC Health Director) has reason to believe that a dog or other animal: (1) is rabid, (2) has been bitten by a suspected rabid animal, or (3) has bitten a person or exposed a person to rabies, the DC Health Director has the authority to take action that could lead to the possible quarantine or humane euthanasia of the affected animal, as well as order rabies post-exposure prophylaxis for the affected person.  22-B DCMR § 203.

13.6 Pets and Service Animals during Disasters and Emergencies

13.6.1 Federal Pets Evacuation and Transportation Standards Act

The federal Pets Evacuation and Transportation Standards Act (PETS Act) was passed in 2006 in the wake of the devastation wrought by Hurricane Katrina. It is estimated that 250,000 animals may have died in the aftermath of Katrina.  Moreover, Katrina demonstrated that many pet owners and individuals with service animals would refuse evacuation orders or would take action to rescue animals they were forced to abandon.  The PETS Act directs the Federal Emergency Management Agency (FEMA) administrator to develop emergency preparedness plans, as well as ensure that state and local emergency plans account for the needs of individuals with household pets and service animals in the planning, response, and recovery periods.  The FEMA administrator may make financial contributions for animal emergency preparedness purposes, including emergency shelter facilities to accommodate individuals with household pets and service animals. Moreover, FEMA is authorized to provide rescue, care, shelter, and essential needs for individuals with household pets and service animals, and to the household pets and service animals themselves following a major disaster or emergency. 42 U.S.C. § 5196.

FEMA has defined “household pet” as a domesticated animal, such as a dog, cat, bird, rabbit, rodent, or turtle that is traditionally kept in the home for pleasure rather than commercial purposes, that can travel in commercial carriers and be housed in temporary facilities. Household pets do not include reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses), and animals kept for racing purposes.  FEMA 2017 Public Assistance Program and Policy Guide

FEMA defines “service animal” as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.  Id.

13.6.2 District of Columbia Animal Emergency Preparedness Plan

In response to the PETS Act, the D.C. Council passed a law that required the Mayor to establish an emergency preparedness plan for the protection, sheltering, and evacuation of domestic and service animals during and following a major disaster or emergency within 90 days of December 5, 2008.  D.C. Official Code § 8-1861.01.

13.6.3 Americans with Disabilities Act

The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection for individuals with disabilities in public services, employment, and public accommodations and services operated by private entities. 42 U.S.C. § 12101 et seq. Although the ADA does not include specific provisions related to disasters and emergencies, its far-reaching nondiscrimination provisions have been extended to emergency preparedness, response, and recovery efforts. Thus, state and local governments are required to comply with Title II of the ADA in the emergency-and-disaster-related programs, services, and activities they provide. 42 U.S.C. § 12132.  Under Title II of the ADA, emergency programs, services, activities, and facilities must be accessible to people with disabilities. 28 C.F.R. §§ 35.149-35.151, and may not use eligibility criteria that screen out people with disabilities. 28 C.F.R. § 35.130(b)(8).

The United States Department of Justice has several resources related to the ADA and emergency management: Emergency Management Under Title II of the ADA; The ADA and Emergency Shelters: Access for All in Emergencies and Disasters; and ADA Checklist for Emergency Shelters.

Accordingly, under the ADA, individuals with service animals must not be discriminated against with regard to emergency shelters.  Such individuals may not be asked to remove the service animal from shelter premises unless the animal is out of control and poses a direct threat to others. A “service animal” is defined in Title II of the ADA as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The tasks performed may vary and may include pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button. 28 C.F.R. § 35.104. Other species of animals besides dogs, regardless of training, are not considered “service animals” under Title II of the ADA. In addition, providing emotional support, well-being, comfort, or companionship, are not tasks covered by Title II of the ADA.

Several successful lawsuits have been filed by disability rights advocates regarding the failure of jurisdictions to plan for the needs of individuals with disabilities when preparing for emergencies and disasters, thereby violating the ADA.  See Brooklyn Ctr. for Independence of the Disabled et al. v. Bloomberg; Communities Actively Living Indep. and Free et al. v. City of Los Angeles. A case against the District is currently pending in the United States District Court for the District of Columbia.  United Spinal Ass’n. et al. v. District of Columbia, et al. (1:14-CV-01528 (CKK)).

The United States Department of Justice has resources related to the ADA and emergency management:

There is extensive case law related to liability under the ADA and a full discussion is beyond the scope of this Manual.

 



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