Unless otherwise set out in this article, any term defined in
MGL c. 140, § 136A shall have the same meaning in this article
and shall be expressly incorporated herein. As used in this article,
the following terms shall have the meanings indicated:
ADOPTION
The delivery of a cat or dog to a person 18 years of age
or older for the purpose of taking care of the dog or cat as a pet.
ANIMAL CONTROL OFFICER
An appointed officer, including the Assistant Animal Control Officer, authorized to enforce Sections 136A to 174E, inclusive, of Massachusetts General Laws, Chapter
140, as amended, and also this Chapter
104 of the Code.
ARTICLE
Article
I of Chapter
104 of the Code, unless otherwise stated.
AT LARGE
Off the premises of the owner and not under the control of
the owner or a member of his/her immediate family, either by leash,
cord, chain or otherwise. Any animal found to be outside of its natural
habitat and not under the owner's control shall be deemed to
be at large.
ATTACK
Aggressive physical contact initiated by an animal.
COMMERCIAL BOARDING OR TRAINING KENNEL
An establishment used for boarding, holding, day care, overnight
stays or training of animals that are not the property of the owner
of the establishment, at which such services are rendered in exchange
for consideration and in the absence of the owner of any such animal;
provided, however, that "commercial boarding or training kennel" shall
not include an animal shelter or animal control facility, a pet shop
licensed under Section 39A of Chapter 129, of the Massachusetts General
Laws, a grooming facility operated solely for the purpose of grooming
and not for overnight boarding or an individual who temporarily, and
not in the normal course of business, boards or cares for animals
owned by others.
COMMERCIAL BREEDER KENNEL
An establishment, other than a personal kennel, engaged in
the business of breeding animals for sale or exchange to wholesalers,
brokers or pet shops in return for consideration.
DANGEROUS ANIMAL
Any animal that may be at large and/or with the same or similar
dangerous propensities as a dangerous dog. Any provisions of this
article applicable to a dangerous dog shall also be applicable to
a dangerous animal.
DANGEROUS DOG
A dog that either without justification attacks a person
or domestic animal causing physical injury or death; or behaves in
a manner that a reasonable person would believe poses an unjustified
imminent threat of physical injury or death to a person or to a domestic
or owned animal.
DEPARTMENT
The Department of Agricultural Resources.
DOG
Both male and female.
DOG TRAINED FOR FIGHTING
Any dog owned or kept, primarily or in part, for the purpose
of dog fighting or any dog trained for dog fighting.
DOMESTIC ANIMAL
An animal designated as domestic by regulations promulgated
by the Department of Fish and Game.
DOMESTIC CHARITABLE CORPORATION KENNEL
A facility operated, owned or maintained by a domestic charitable
corporation registered with the Department or an animal welfare society
or other nonprofit organization incorporated for the purpose of providing
for and promoting the welfare, protection and humane treatment of
animals, including a veterinary hospital or clinic operated by a licensed
veterinarian, which operates consistent with such purposes while providing
veterinary treatment and care.
EUTHANIZE
To take the life of an animal by the administration of barbiturates
in a manner deemed acceptable by the American Veterinary Medical Association
Guidelines on Euthanasia.
HEARING AUTHORITY
The selectmen of a town, mayor of a city, the officer in
charge of the animal commission, the chief or commissioner of a police
department, the chief or commissioner's designee or the person
charged with the responsibility of handling dog complaints in a town
or city.
KEEPER
A person, business, corporation, entity or society, other
than the owner, having possession of a dog.
KENNEL
A pack or collection of dogs on a single premises, including
a commercial boarding or training kennel, commercial breeder kennel,
domestic charitable corporation kennel, personal kennel or veterinary
kennel, and also any premises wherein any person, partnership or corporation
engages in the business of boarding, breeding, buying, selling for
hire, training for a fee, or selling dogs, or engages in training
dogs for guard or sentry purposes, or every pack or collection of
more than four dogs three months old or over owned or kept on a single
premises irrespective of the purpose for which they are maintained.
LICENSED PERIOD
From January 1 of each year to December 31 of the same year.
LIVESTOCK or FOWL
A fowl or other animal kept or propagated by the owner for
food or as a means of livelihood, deer, elk, cottontail rabbit, northern
hare, pheasant, quail, partridge and other birds and quadrupeds determined
by the Department of Fisheries, Wildlife and Environmental Law Enforcement
to be wild and kept by, or under a permit from, the Department in
proper houses or suitable enclosed yards; provided, however, that
livestock or fowl shall not include dogs, cats or other pets.
NUISANCE ANIMAL
Any animal which:
A.
Molests passersby or passing vehicles, including bicycles.
C.
Trespasses on school grounds.
D.
Is at large in violation of this article.
E.
Damages private or public property.
F.
Barks, whines or howls and disturbs the peace and tranquility of an area as provided in §
104-29.
G.
Bites or attacks any person.
NUISANCE DOG
A dog that:
A.
By excessive barking or other disturbances is a source of annoyance
to a sick person residing in the vicinity; or
B.
By excessive barking, causing damage or other interference,
a reasonable person would find its behavior disruptive to one's
quiet and peaceful enjoyment; or
C.
Has threatened or attacked livestock, a domestic animal or a
person, but such threat or attack was not a grossly disproportionate
reaction under all the circumstances.
OWNER
Any person or persons, firm, partnership, or corporation
owning, keeping, possessing, controlling or harboring one or more
animals. An animal shall be deemed to be harbored if it is fed or
sheltered for 48 hours.
PERSON
Any person or persons or any firm, association, or corporation.
PERSONAL KENNEL
A pack or collection of more than four dogs, three months
old or older, owned or kept under single ownership for private, personal
use; provided, however, that breeding of personally owned dogs may
take place for the purpose of improving, exhibiting or showing the
breed or for use in legal sporting activity or for other personal
reasons; provided, further, that selling, trading, bartering or distributing
such breeding from a personal kennel shall be to other breeders or
individuals by private sale only and not to wholesalers, brokers or
pet shops; provided, further, that a personal kennel shall not sell,
trade, barter or distribute a dog not bred from its personally owned
dog; and provided, further, that dogs temporarily housed at a personal
kennel, in conjunction with an animal shelter or rescue registered
with the Department, may be sold, traded, bartered or distributed
if the transfer is not for profit.
POTENTIALLY DANGEROUS DOG
A.
Any dog that acts in a highly aggressive manner, when unprovoked,
within a fenced yard or enclosure and appears to the Animal Control
Officer to be able to jump over or escape. Vocalization or barking,
without more, shall not cause a dog to be deemed to have a highly
aggressive manner.
B.
Any dog owned by a person cited more than once in a twelve-month
period for allowing said dog to run at large in any public streets
or places in the City or upon the premises of anyone other than the
owner or keeper without said owner's or occupant's permission.
C.
The determination that a dog is potentially dangerous under
this section shall be in the discretion of the Animal Control Officer
or his designee, who shall notify the owner of any such determination.
RESEARCH INSTITUTION
An institution operated by the United States, the commonwealth
or a political subdivision thereof, a school or college of medicine,
public health, dentistry, pharmacy, veterinary medicine or agriculture,
a medical diagnostic laboratory, a biomedical corporation, or biological
laboratory or a hospital or other educational or scientific establishment
within the commonwealth above the rank of secondary school which,
in connection with any of the activities thereof, investigates or
provides instruction relative to the structure or function of living
organisms or to the cause, prevention, control or cure of diseases
or abnormal conditions of human beings or animals.
RESTRAINT
A leash not more than six feet long or a fenced-in area or
pen as provided in this article.
SHELTER
A public animal control facility or other facility which
is operated by an organization or individual for the purpose of protecting
animals from cruelty, neglect or abuse.
UNTAGGED ANIMALS
An animal is considered to be untagged if a valid license
tag is not attached to a collar which is kept on the animal.
VETERINARY KENNEL
A veterinary hospital or clinic that boards dogs for reasons
in addition to medical treatment or care; provided, however, that
"veterinary kennel" shall not include a hospital or clinic used solely
to house dogs that have undergone veterinary treatment or observation
or will do so only for the period of time necessary to accomplish
that veterinary care.
Any dog confined by the Animal Control Officer, unless picked
up by the owner, shall be kept for at least seven days, at which time
said dog may be disposed of in a manner determined by the City Manager,
provided that at the end of seven days, the Animal Control Officer
may make available for adoption any neutered male or any spayed female
dog not found to be diseased. Any dog confined by the Animal Control
Officer shall not be released to the owner until the owner produces
evidence of a current dog license and pays a sum equal to the per-day
contract fee for care of the animal, each day or part of a day counted
as one day. For any dog adopted under this section, a sum equal to
the per-day contract fee for care shall be charged, and said dog shall
be licensed before adoption. Any fees in this section are to be in
addition to fees or fines as specified elsewhere in this article and/or
under Massachusetts General Laws. No dog shall be turned over or sold
in any manner inconsistent with MGL c. 140, § 151A.
Any veterinarian registered under the provisions of MGL c. 112,
§§ 55 or 56A, who provides emergency treatment to or
who euthanizes a dog or cat that is injured on any public way in the
City of Lowell shall receive, in lieu of payment from the County Dog
Fund as allowed in MGL c. 140, § 151B, payment not to exceed
$250 from the Dog Fund provided for under this article. All other
provisions of MGL c. 140, §§ 151B and 151C, shall be
incorporated herein under this article. The Animal Control Officer
shall notify area veterinarians of this process.
In addition to any initial determination by the Animal Control
Officer that a dog is potentially dangerous, the following process
is available to any person:
A. Any person, including the Animal Control Officer or a police officer, may file a complaint in writing to the hearing authority that a dog owned or kept in the City or town is a nuisance dog or a dangerous dog, as defined in §
104-1; provided, however, that no dog shall be deemed dangerous solely based upon growling or barking or solely growling and barking; based upon the breed of the dog; or if the dog was reacting to another animal or to a person and the dog's reaction was not grossly disproportionate to any of the following circumstances;
(1)
The dog was protecting or defending itself, its offspring, another
domestic animal or a person from attack or assault;
(2)
The person who was attacked or threatened by the dog was committing
a crime upon the person or property of the owner or keeper of the
dog;
(3)
The person attacked or threatened by the dog was engaged in
teasing, tormenting, battering, assaulting, injuring or otherwise
provoking the dog; or
(4)
At the time of the attack or threat, the person or animal that
was attacked or threatened by the dog had breached an enclosure or
structure in which the dog was kept apart from the public and such
person or animal was not authorized by the owner of the premises to
be within such enclosure, including but not limited to a gated, fenced-in
area if the gate was closed, whether locked or unlocked; provided,
however, that if a person is under the age of seven, it shall be a
rebuttable presumption that such person was not committing a crime,
provoking the dog or trespassing.
B. The hearing authority shall investigate or cause the investigation
of the complaint, including an examination under oath of the complainant
at a public hearing in the municipality to determine whether the dog
is a nuisance dog or a dangerous dog. Based on credible evidence and
testimony presented at the public hearing, the hearing authority shall,
if the dog is complained of as a nuisance dog, either dismiss the
complaint or deem the dog a nuisance dog; or, if the dog is complained
of as a dangerous dog:
(2)
Deem the dog a nuisance dog; or
(3)
Deem the dog a dangerous dog.
C. If the hearing authority deems a dog a nuisance dog, the hearing
authority may further order that the owner or keeper of the dog take
remedial action to ameliorate the cause of the nuisance behavior.
D. If the hearing authority deems a dog a dangerous dog, the hearing
authority shall order one or more of the following:
(1)
That the dog be humanely restrained; provided, however, that
no order shall provide that a dog deemed dangerous be chained, tethered
or otherwise tied to an inanimate object, including but not limited
to a tree;
(2)
That the dog be confined to the premises of the keeper of the
dog; provided, however, that "confined" shall mean securely confined
indoors or confined outdoors in a securely enclosed and locked pen
or dog run area upon the premises of the owner or keeper; provided,
further, that such pen or dog run shall have a secure roof and, if
such enclosure has no floor secured to the sides thereof, the sides
shall be embedded into the ground for not less than two feet; and
provided, further, that within the confines of such pen or dog run,
a doghouse or proper shelter from the elements shall be provided to
protect the dog;
(3)
That when removed from the premises of the owner or the premises
of the person keeping the dog, the dog shall be securely and humanely
muzzled and restrained with a chain or other tethering device having
a minimum tensile strength of 300 pounds and not exceeding three feet
in length;
(4)
That the owner or keeper of the dog provide proof of insurance
in an amount not less than $100,000 insuring the owner or keeper against
any claim, loss, damage or injury to persons, domestic animals or
property resulting from the acts, whether intentional or unintentional,
of the dog, or proof that reasonable efforts were made to obtain such
insurance if a policy has not been issued; provided, however, that
if a policy of insurance has been issued, the owner or keeper shall
produce such policy upon request of the hearing authority or a Justice
of the District Court; and provided, further, that if a policy has
not been issued, the owner or keeper shall produce proof of efforts
to obtain such insurance.
(5)
That the owner or keeper of the dog provide to the licensing
authority or Animal Control Officer, or other entity identified in
the order, information by which a dog may be identified throughout
its lifetime, including, but not limited to photographs, videos, veterinary
examination, tattooing or microchip implantations or a combination
of any such methods of identification;
(6)
That unless an owner or keeper of the dog provides evidence
that a veterinarian is of the opinion that the dog is unfit for alterations
because of a medical condition, the owner or keeper of the dog shall
cause the dog to be altered so that the dog shall not be reproductively
intact;
(7)
That the dog be humanely euthanized; or
E. No order shall be issued directing that a dog deemed dangerous shall
be removed from the town or city in which the owner of the dog resides.
No city or town shall regulate dogs in a manner that is specific to
breed.
F. Within 10 days after an order issued under Subsections
A to
D, inclusive, the owner or keeper of a dog may bring a petition in the District Court within the judicial district in which the order relative to the dog was issued or where the dog is owned or kept, addressed to the Justice of the court, praying that the order be reviewed by the court or a Magistrate of the court. After notice to all parties, the Magistrate shall, under Section 62C of Chapter 221 of the Massachusetts General Laws, review the order of the hearing authority, hear the witnesses and affirm the order, unless it shall appear that it was made without proper cause or in bad faith, in which case the order shall be reversed. A party shall have the right to request a de novo hearing on the complaint before a Justice of the court.
G. Pending an appeal by an owner or keeper under Subsection
F, a hearing authority may file a petition in the District Court to request an order of impoundment at a facility the municipality uses to shelter animals for a dog complained of as being a dangerous dog. A municipality shall not incur liability for failure to request impoundment of a dog under this subsection.
H. A Justice of a District Court, upon probable cause to believe that
a dog is a dangerous dog or that a dog is being kept in violation
of this section or in violation of an order issued under this section
by a hearing authority or a court, may issue:
(2)
An order of confinement of the dog as considered necessary for the safety of other animals and the public; provided, however, that if an order of confinement is issued, the person to whom the order is issued shall confine the dog in accordance with Subsection
D(2); or
(3)
An order of impoundment in a humane place of detention that
the municipality uses to shelter animals; or
(4)
Any other action as the court deems necessary to protect other
animals and the public from the dog.
I. A Justice of the District Court shall hear, de novo, an appeal filed under Subsection
F. Based upon credible evidence and testimony presented at trial, the court shall, whether the dog was initially complained of as a nuisance dog or as a dangerous dog, dismiss the complaint; deem the dog a nuisance dog; or deem the dog a dangerous dog. The decision of the court shall be final and conclusive upon the parties.
J. Orders of euthanasia.
(1)
If a court affirms an order of euthanasia, the owner or keeper
of the dog shall reimburse the city or town for all reasonable costs
incurred for the housing and care of such dog during its impoundment
and throughout the appeals process, if any.
(a)
Unpaid costs shall be recovered by the municipality in which
the owner or keeper of the dog resides on behalf of the hearing authority,
by any of the following methods:
[1]
A lien on any property owned by the owner or keeper of the dog;
[2]
An additional, earmarked charge to appear on the vehicle excise
of the owner or keeper of the dog; or
[3]
A direct bill sent to the owner or keeper of the dog.
(b)
All funds recovered by a municipality under this subsection
shall be transferred to the organization or entity charged with the
responsibility of handling dog complaints and impoundment. If the
organization or entity falls under the management or direction of
the municipality, costs recovered shall be distributed at the discretion
of the municipality.
(2)
If the court overturns an order of euthanasia, the city or town
shall pay all reasonable costs incurred for the housing and care of
the dog during a period of impoundment.
K. If an owner or keeper of a dog is found in violation of an order
issued under this section, the dog shall be subject to seizure and
impoundment by a law enforcement officer or Animal Control Officer.
If the keeper of the dog is in violation, all reasonable efforts shall
be made by the seizing authority to notify the owner of the dog of
such seizure. Upon receipt of such notice, the owner may file a petition
with the hearing authority, within seven days, for the return of the
dog to the owner. The owner or keeper shall be ordered to immediately
surrender to the licensing authority the license and tags in the person's
possession, if any, and the owner or keeper shall be prohibited from
licensing a dog within the commonwealth for five years.
(1)
A hearing authority that determines that a dog is dangerous
or a nuisance or that a dog owner or keeper has violated an order
issued under this section shall report such violations to the issuing
licensing authority within 30 days.
(2)
Orders issued by a hearing authority shall be valid throughout the commonwealth unless overturned under Subsection
F or
I.
A police officer, constable or Animal Control Officer may capture,
detain or, in the case of a threat to public safety, euthanize a dog
in a humane manner if found to be in violation of an order of a hearing
officer or a District Court and may euthanize a dog, in a humane manner,
if it is living in a wild state.
If a hearing authority or a District Court has deemed a dog
to be a dangerous dog and such dog wounds a person or worries, wounds
or kills any livestock or fowl, the owner or keeper of the dog shall
be liable in tort to the person injured by the dog for three times
the amount of damages sustained by such person.
The owner or keeper of a dog which has done damage to livestock
or fowls shall be liable in tort to the City for all damages so done
in which the City has been requested to pay as provided by MGL c.
140, § 171, or by this article. Such action may be brought
in the name of the City of Lowell as directed by the City Manager.
A City or Town may make additional ordinances or bylaws relative
to the licensing and control of animals not inconsistent with MGL
c. 140, §§ 136A to 174E, inclusive.
All the provisions of MGL c. 140, §§ 167 and
168, shall be incorporated into this article, except that any dog
held under the provisions of MGL c. 140, § 167, may not
be released until all the requirements of this article regarding licensing
and the fee for care of the animal are complied with. All other provisions
of MGL c. 140, §§ 167 and 168, shall be incorporated
herein.
If any person so notified by citation desires to contest the
violation alleged in the citation without availing himself of the
provisions of the informal process, or desires to contest the decision
of the Clerk or hearing officer, such person may avail himself of
the noncriminal disposition procedures established in MGL c. 140,
§ 173A. In either of the above cases, or if the owner or
keeper of a dog fails to respond to the citation within 21 days, the
City Clerk shall forward a copy of the citation to the District Court
of Lowell, where it shall be handled under the provisions of MGL c.
140, § 173A.
The Board of Health shall, upon application furnish free of
charge to any resident who has been exposed to rabies, or may have
been so exposed, anti-rabic vaccine and anti-rabic treatment, in accordance
with rules and regulations which the Department of Public Health is
authorized to make. Any resident shall have the right to select his
own physician, who shall be paid by the City at a rate established
by the Board of Health but not to exceed $50. Reimbursement for the
cost of furnishing vaccine and treatment, not exceeding $50 in the
case of any one person, shall be made from the Dog Fund.
Persons authorized or directed by MGL c. 51, § 4, or by any special law, to make lists of persons three years of age or older shall make a list of all dogs owned by the inhabitants of the City at the time of making lists required under such section and shall return the same in duplicate to the City Clerk on or before April 1. An owner or keeper of a dog who refuses to answer or answers falsely to persons directed or authorized to make a list of owners of dogs shall be punished by a fine as provided in §
104-17.
Any dog found within the limits of the City of Lowell to be a dog trained for fighting, as determined by the Animal Control Officer or any police officer, as that term is defined in §
104-1, shall be impounded and destroyed by the Animal Control Officer. The Animal Control Officer or any police officer may shoot any dog trained for fighting, or any dog, if it is reasonably believed that said dog is approaching the officer or any other person in an imminent menacing manner and/or the officer observes that the dog is attacking or is about to attack and cause physical harm to the officer or any other person in the officer's presence. An owner or keeper of a dog trained for fighting shall be subject to a fine of $200.
A dog or cat whose killing is authorized under this article
shall be euthanized only by the administration of barbiturates in
a manner deemed acceptable by the American Veterinary Medical Association
Guidelines on Euthanasia or as otherwise allowed in MGL c. 140, § 151A.
Whoever is the owner or keeper of a dog shall restrain said
dog by a chain or leash when in an officially designated public highway
rest area. Whoever violates the provisions of this section shall be
punished by a fine of not more than $100.
The following are duties of owners when dogs are determined
to be dangerous and confinement or other orders have been made by
the hearing officer:
A. Outdoor confinement:
(1)
While on the owner's property, a dangerous dog must be
securely confined indoors or in a securely enclosed and locked pen
or structure, suitable to prevent the entry of young children and
designed to prevent the animal from escaping. Such pen or structure
must be at least 10 feet from the property line, must have a minimum
dimension of five feet by 10 feet, and must have secure sides and
a secure top. If it has no bottom secured to the sides, the sides
must be imbedded into the ground no less than two feet. The enclosure
must also provide protection from the elements for the dog. The Animal
Control Officer shall verify compliance with this section by an on-site
inspection and, if necessary, shall require the owner to further secure
the structure.
(2)
The owner or keeper shall display signs on his/her premises,
facing out from all sides of the premises, and on the dog pen, warning
that there is a dangerous dog on the property. These signs, which
shall state "Beware of Dangerous Dog," must be visible and capable
of being read from a public highway or thoroughfare or within 20 feet
of their placement. In addition, the owner shall conspicuously display
a sign with a symbol warning children who cannot read of the presence
of a dangerous dog.
(3)
A dangerous dog may be off the owner's premises if it is muzzled and restrained in accordance with §
104-9.1.
B. Indoor confinement. No dangerous dog may be kept on a porch, patio,
or in any part of a house or structure that would allow the dog to
exit such building on its own volition. In addition, no such animal
may be kept secure in a house or structure which prevents the dog
from exiting the house or structure.
C. Insurance. The owner or custodian of any vicious dog shall maintain
a policy of insurance in an amount not less than $100,000 per incident
insuring such person against any claim, loss, damage, or injury to
human beings resulting from the acts of such dog. Such person shall
produce evidence of the required insurance, which may include a rider
or binder, to the Animal Control Officer. This section shall not apply
to dogs kept by law enforcement agencies.
D. An owner may transport a dangerous dog within the City limits for medical or veterinary care, provided said animal is properly restrained by being both muzzled and leashed, with the leash in accordance with §
104-9.1.
A dangerous animal of any kind or species, as defined under §
104-1, shall be subject to all of the provisions of this article in the same manner as a dangerous or vicious dog.
In addition to the remedies provided in the above sections,
the hearing officer, upon a complaint in writing, may determine that
a dog is a dangerous dog within the meaning of those sections and,
as a result thereof, require compliance by the owner of such dangerous
dog with the provisions herein listed. In the instance where the hearing
officer shall determine that a dog is dangerous within the meaning
of this article, he/she shall, within a period of 48 hours, serve
written notice to the Lowell City Council, the Chief of Police and
to the Advisory Committee, listing the name and address of the animal,
including its owner, and providing the reasoning for the determination,
consistent with this article.
Except as specifically modified in this article, the provisions
of the applicable sections of MGL c. 140 shall be incorporated into
and apply to this article, as well as any other section of Massachusetts
General Laws referenced herein.
No unclaimed dog shall be released for adoption without being
sterilized or without written agreement from the adopter guaranteeing
that such animal will be sterilized, and a deposit of at least $15
must be paid at the time of adoption, which deposit will be refunded
after proof of sterilization.