Key Legal Issues to Consider

Introduction

Before a community cat program (CCP) can be launched, it’s important to understand how the various aspects of the program relate to all relevant state and local laws and regulations. Given the number and complexity of provisions and jurisdictions that can come into play, ensuring such compliance can be challenging, but not impossible.

Although this guide cannot address all possible legal and policy concerns, it does provide an overview of the key issues that must be considered by any organization interested in operating a CCP. When it comes to the laws governing CCPs, there is simply no such thing as one-size-fits-all. The overview of key provisions included in this section are therefore merely intended as guideposts along the legal landscape — to initiate discussion and prompt further research among enforcement personnel, advocates, shelter staff, elected officials and others interested in the topic. The appendix provides several examples of actual code along with a brief description of its implications for CCPs.

Disclaimer: This document has been prepared for general information purposes only and is not intended to provide legal advice. An attorney licensed in your state should be contacted for advice on specific legal issues.

Key provisions of current laws and policies

Various provisions of state law — both statutes and regulations — and local ordinances and regulations determine the legal environment in which a CCP operates. For this reason, it’s important to investigate all relevant laws and ordinances, as well as the relevant provisions of contracts and agreements that a municipal shelter has with the cities and counties it serves. State statutes and regulations can typically be found online at a state’s website; ordinances can generally be found on a municipality’s website. The Municipal Code Corporation website (municode.com) also provides a number of local ordinances in its Code Library.

It’s important to determine what laws and contracts are relevant because many of them won’t pertain to CCPs at all. They can also seem conflicting at times. State law might conflict with local law, for example; local laws sometimes seem to contradict the requirements of a shelter contract. Believe it or not, successful CCPs do exist in such legally precarious contexts.

Indeed, because enforcement staff typically have considerable flexibility in how they carry out their duties (for example, animal control officers are rarely required to impound healthy stray cats), CCPs can actually thrive despite outdated laws that at first appear to make operation of a CCP more difficult.

Please remember, however, that things could change with the next shelter director, mayoral election, budget cycle or any number of other factors. This may be frustrating not only for you, but also for animal enforcement officers, CCP staff and volunteers, as well as donors and other funders, who typically place great importance on a program’s sustainability. To help mitigate these risks, create a memo of understanding clearly laying out each party’s obligations. CCP stakeholders may even consider tackling issues surrounding weak laws to help create a more favorable legal environment. (See “Working Toward TNR-Friendly Laws and Policies” below.)

The best place to start research is with local animal control ordinances because TNR efforts and CCP operations are more likely to be affected by them than by state or federal laws or regulations. On first review, it’s often useful to begin with identifying definitions and provisions that can clearly lead to trouble. The following list, while not exhaustive, is a good start. (Please remember, these “snapshots” are designed to give enforcement personnel, advocates, shelter staff, elected officials and others interested in the topic only a cursory overview of key provisions relevant to CCPs.)

Definition of ownership: Unless caregivers are explicitly exempted, as in Utah’s Community Cat Act (see the appendix), definitions of ownership can be construed as imposing on community cat caregivers the same duties of ownership required of pet owners. For example, the mere act of feeding a cat could constitute ownership. And “owner” definitions frequently refer to “keeper,” “harbor” and similarly vague language, which also might have implications for caregivers.[1]

Definition of abandonment: CCPs neither involve nor promote abandonment. Nevertheless, some definitions of abandonment are broader than others, leading some people opposed to these programs to suggest that returning cats to their “outdoor homes” violates this provision of most animal cruelty statutes or ordinances.

Restrictions regarding animals running at large: Similar to definitions of ownership, these restrictions can be seen as imposing ownership duties of care on caregivers. They are similarly flawed because they presume that caregivers have control over community cats. Fortunately, many of these provisions, like leash laws, are restricted to dogs.

Public nuisances:[2] Provisions governing public nuisance prohibitions — typically part of local ordinances or health code regulations — are often very broad, and can therefore sometimes be interpreted to mean cats at large are, by definition, public nuisances. (See “Working with Enforcement and Dispatch Staff” for additional information on this topic.)

Restrictions on feeding: Even if the feeding of cats and all of the associated duties of care are not directly tied to ownership, feeding restrictions (e.g., limiting the amount of time food can be left out, feeding only cats who have been sterilized and/or are part of a registered colony, banning the feeding of any outdoor animals) can be used to impede TNR efforts and other CCP activities.

Licensing: Although common for dogs, few communities require licensing for cats. When they do, however, they might apply to both community cats and pet cats because of vague definitions of ownership.

Mandatory spay/neuter: Although sterilization efforts are at the heart of TNR programs and CCPs, mandatory spay/neuter laws can actually impede such programs if they lead to the impoundment (and subsequent killing) of unsterilized cats, which in turn can discourage caregiver participation. For such laws to be effective, the community would need access to sufficient low- and no-cost services.

Holding times: Although holding times are generally considered beneficial for reuniting dogs with their owners, this has not proven to be the case for cats and their owners. Indeed, surveys indicate that only 1 to 4 percent of cats are reunited with their owners by way of phone calls and/or visits to the local shelter.[3] In most cases, the best option for community cats — and, indeed, for many pet cats mistakenly impounded as strays — is to be sterilized, vaccinated and returned to the location from which they were trapped as soon as possible. Even better are laws with explicit exemptions for eligible community cats.[4]

Mandatory registered colonies: Although some very successful CCPs exist in communities requiring colony cats to be registered (i.e., colony and caregiver information is recorded and tracked by a sponsor organization), such arrangements can be detrimental to a program’s effectiveness. Such bureaucracy, sometimes accompanied by annual fees, tends to drive caregivers underground, likely reducing sterilization and vaccination rates in a community. In addition, sensitive colony and caregiver information might be made public via public records requests.

Microchipping: It’s unusual to see microchipping required for community cats or even pet cats, but some communities and caregivers consider the expense worthwhile if it means that community cats who are impounded will be returned to their colony or caregiver. However, this requires a uniform community policy and practice regarding the scanning of cats, having the correct equipment on hand, having a notification system in place, and more — conditions that are rarely present. In any case, concerns over impounded community cats can generally be addressed by provisions making it clear that healthy ear-tipped cats will be impounded only when doing so is in the best interest of the cat and when a positive outcome is assured — for example, when a building is being demolished and the cats on the property are being relocated by way of a barn cat program.

Pet limits: If ownership provisions are applied to caregivers as described above, then pet limits can apply to caregivers.

Working toward TNR-friendly laws and policies

As mentioned previously, successful CCPs do exist in communities where laws make their operation more cumbersome than might otherwise be the case. Of course, laws can be changed.

In some communities, the best scenario might be laws that are “agnostic” when it comes to community cats — that is, no explicit protections, but also no restrictions that would discourage or prohibit TNR or CCPs.

But remember, there is no such thing as “one-size-fits-all.” The best laws will reflect the values of a particular community to the fullest extent possible. In some cases, this means lots of very specific protections for cats, colonies and caregivers; in others, no explicit protections are provided, but there are also few if any restrictions on the kinds of activities necessary for a successful CCP.

Neither option is inherently superior to the other, although it might be argued that programs in communities with laws supporting TNR are more likely to attract grant funding. What’s most important is that all of the relevant laws work in concert with one another — and that CCP-related contracts, memos of understanding and intergovernmental agreements work in concert with the laws.

For information about changing laws to better accommodate such programs, please see the Best Friends action kit called Advocating for TNR in Your Community.

Additional resources

Appendix

Examples of state laws and local ordinances

The following examples are included merely to illustrate a particular point, and do not represent model language. Some are obviously detrimental to TNR efforts and CCPs, while others are clearly beneficial. Some are, in and of themselves, neither one — interrelated as they are with other provisions in the code. In any case, a law’s meaning and implications are often open to the interpretation of those charged with enforcement and the courts, when challenged via lawsuit.

Again, the intent of the information below is not to endorse or criticize specific provisions, but to provide interested parties with some concrete examples that illustrate the legal landscape in which TNR programs and CCPs operate. Some of these provisions would likely fail to withstand a challenge in court, as explained in Community Cat Programs: Public Policy and Legal Considerations.

Key provisions relevant to TNR and CCPs

Definition of ownership

Owner means any person of any age, a firm or corporation owning, harboring, having an interest in, and/or control or ostensible control, custody and/or possession of any animal.” (Orland, California; Title 6, Chapter 4)

Although one might reasonably argue that a caregiver does not and cannot have control over any cat in his or her care, it might be more difficult to argue that he or she has no interest in, or is not harboring, the cat(s) in his or her care. The term “keeper,” also used in some ordinances, is similarly vague, and is therefore sometimes used in an attempt to impose duties of ownership on caregivers.

Definition of abandonment

Abandon means the leaving of an animal without adequate provisions for the animal's proper care by its owner, the person responsible for the animal’s care or custody or any other person having possession of such animal.” (Aurora, Colorado; Chapter 14, Section 1)

Even though Aurora’s definition of “abandon” is very broad, extending to anybody “having possession of” a community cat, it’s likely that cats deemed eligible for a CCP — those with healthy body condition, for example — are not “without adequate provisions” upon return to the location at which they were trapped. On the contrary, the evidence would be clear, based on their healthy condition, that adequate provisions are being provided regardless of whether or not a caregiver has been identified. Furthermore, the legal concept of abandonment hinges, to some degree at least, on criminal intent, a concept obviously at odds with the very premise of a CCP. (See Community Cat Programs: Public Policy and Legal Considerations for additional information on this topic.)

Restrictions regarding animals running at large

“It is unlawful within the incorporated areas of the city of Orland for any person owning, harboring or controlling any animal to … permit the animal to run at large …” According to Section 10 of the code, “at large” means “any animal not in an enclosed area, or not under restraint by leash, and/or not under the immediate and direct control of a responsible person” and Section 90 states: “It shall be the duty of the animal control officer to take up within the city of Orland and impound … any animal at large …” (Orland, California; Title 6, Chapter 4)

Even if one can reasonably argue that caregivers are not the owners of the colony cats they care for (see Community Cat Programs: Public Policy and Legal Considerations for details), the provision requiring animal control officers to impound any cat at large is obviously problematic for a CCP. And any shelters placed on a caregiver’s property would likely constitute “harboring.”

Nuisances

“The animal control officer may cite the owner or any person having custody of such animal(s) for violation of this Section when either the citing animal control officer has witnessed the commission of such habitual nuisance or the animal control officer has received at least one sworn affidavit from each of at least two unrelated adult witnesses from different residences ...” (Jacksonville, Florida; Title XIII, Chapter 462, Section 304(c))

For an animal control officer to issue a citation for a community cat being a nuisance, which is largely at the discretion of the animal control officer to begin with, the complaint must be corroborated, via sworn affidavit, from at least two adults who are neither related to each other nor living in the same residence. The following relatively common scenarios, therefore, will not, alone, result in such a citation: (1) repeated complaints from the same person, (2) similar complaints from two or more individuals living at the same address, (3) similar complaints from different addresses, but from related individuals.

Animal control officers have a duty to protect public safety; nuisance complaints are low-priority calls. Jacksonville’s ordinance is unusual in that these priorities are codified in law. In any case, legitimate nuisance issues can often be identified and addressed without enforcement officers having to issue citations. (See Community Cat Programs: Public Policy and Legal Considerations for additional information on this topic.)

Restrictions on feeding

“It shall be unlawful for any person to intentionally provide food, water, or other forms of sustenance to a feral cat or feral cat colony within the boundaries of the City. It is not a violation of this section for any person to feed or shelter feral cats while working with an animal control agency under contract with the City of Anaheim.” (Anaheim, California; Title 6, Chapter 44, Section 1301)

Although the language suggests that perhaps a network of registered colonies is in place — and, by extension, only cats associated with such colonies can be fed legally — no such system was in place when this ordinance was approved. As written, anybody knowingly providing “food, water, or other forms of sustenance” to a cat who is presumed to be without an owner (i.e., no collar) is in violation of the law.

Licensing

“All cats that are part of community cat management programs must be sterilized, vaccinated against the threat of rabies, and ear-tipped (preferable on the left ear) for easy identification; if these requirements are met the community cat is exempted from licensing, stray, at-large and possibly other provisions of this ordinance that apply to owned animals.” (Jacksonville, Florida; Title XIII, Chapter 462, Section 312(b)(3))

The exemption from licensing as well as provisions related to “stray, at-large and possibly other provisions of this ordinance that apply to owned animals” are clearly articulated in Jacksonville’s ordinance, one of the most CCP-friendly codes in the country.

Mandatory spay/neuter

“Except as otherwise provided in Section 7.14.020, it is unlawful for any person to harbor within the City any dog or cat over the age of four months that has not been spayed or neutered. For purposes of this Section, the term ‘harbor’ means to have legal ownership of, or to provide, on a regular basis, care, shelter, protection, refuge, nourishment, or medical treatment.” (Las Vegas, Nevada; Title 7, Chapter 14, Section 10)

Because of the very broad definition of “harbor” (e.g., providing regular nourishment to a cat), it appears that caregivers looking after even one unsterilized cat over the age of four months would be in violation of this provision. However, Chapter 22 of the ordinance addresses the issue more directly, noting that “feral cat colony caretakers shall be entitled to maintain and care for feral cats by providing food, water, shelter, medical care and other forms of sustenance if the colonies are registered with the sponsor and if the colony caretakers take all appropriate and available steps to … trap each feral cat in the colony in order to have the cat sterilized, vaccinated for rabies, and ear tipped, and to monitor for new feral cats that join the colony.”

Holding times

“Any impounded cat that is eligible for a sterilization program and that will be returned to the vicinity where the cat was originally captured may be exempted from the mandatory holding period required by this subsection. For the purposes of this subsection, ‘eligible’ means a cat that is living outdoors, lacks discernible identification, is of sound health and possesses its claws.” (Arizona Revised Statutes, Section 11-1013)

Using straightforward language, this provision makes it clear that cats returned to the location from which they were trapped as part of a CCP are exempted from the holding period required for impounded cats lacking identification, such as a collar with ID tag or microchip. By minimizing the amount of time these cats spend in shelters, such provisions can dramatically increase live release rates.

Registered colonies

Managed colony means a colony of free-roaming cats that is registered with the animal care and control division or its designee and is maintained by a colony caretaker using trap, neuter, return methodology.” (Indianapolis, Indiana; Title III, Chapter 531, Section 531-101)

Because registration is included in the definition of “managed colony,” unregistered cats and their caregivers are not afforded the protections found elsewhere in the ordinance. As stated in Section 531-205, for example: “It shall be unlawful for a person to provide food, water or shelter to a colony of free-roaming cats, unless … the colony is a managed colony, registered with the animal care and control division or its designee …”

Despite strict requirements imposed by the city’s animal control ordinance, Indianapolis has a very successful CCP due in large part to the efforts of IndyFeral and the Foundation Against Companion-Animal Euthanasia, organizations that have developed strong working relationships with Indianapolis Animal Care and Control.

Microchipping

Community cat shall mean any un-owned free-roaming cat that has been sterilized, vaccinated, ear-tipped and microchipped and returned to field and may be cared for by one or more residents of the immediate area who is/are known or unknown.” (Palm Beach County, Florida; Chapter 4; proposed)

Because microchipping is linked to the definition of “community cat,” free-roaming cats who are not microchipped and their caregivers are not afforded the protections found elsewhere in the ordinance — including caregivers being exempt from ownership duties, cats being exempt from licensing, and the animal control agency’s duty to contact caregivers if a colony cat is impounded. In this case, the expense of microchipping was considered a reasonable trade-off for the protections.


Utah’s Community Cat Act

The passage of Utah’s Community Cat Act (Section 303 of the state’s Animal Welfare Act) in 2011 was historic. Never before had a state legislature so clearly articulated protections for ownerless free-roaming cats and the people who care for them.

Community Cat Act

11-46-301 Title.

This part is known as the "Community Cat Act."

11-46-302 Definitions.

In addition to the definitions in Sections 11-46-102 and 11-46-202, as used in this part:

(1) "Community cat" means a feral or free-roaming cat that is without visibly discernable or microchip owner identification of any kind, and has been sterilized, vaccinated, and ear-tipped.

(2) "Community cat caretaker" means any person other than an owner who provides food, water, or shelter to a community cat or community cat colony.

(3) "Community cat colony" means a group of cats that congregate together. Although not every cat in a colony may be a community cat, any cats owned by individuals that congregate with a colony are considered part of it.

(4) "Community cat program" means a program pursuant to which feral cats are sterilized, vaccinated against rabies, ear-tipped, and returned to the location where they congregate.

(5) "Ear-tipping" means removing approximately a quarter-inch off the tip of a cat's left ear while the cat is anesthetized for sterilization.

(6) "Feral" has the same meaning as in Section 23-13-2.

(7) "Sponsor" means any person or organization that traps feral cats, sterilizes, vaccinates against rabies, and ear-tips them before returning them to the location where they were trapped. A sponsor may be any animal humane society, non-profit organization, animal rescue, adoption organization, or a designated community cat caretaker that also maintains written records on community cats.

11-46-303 Community cats.

(1) A cat received by a shelter under the provisions of Section 11-46-103 may be released prior to the five-day holding period to a sponsor that operates a community cat program.

(2) A community cat is:

(a) exempt from licensing requirements and feeding bans; and

(b) eligible for release from an animal shelter prior to the mandatory five-day hold period in Section 11-46-103.

(3) Community cat sponsors or caretakers do not have custody, as defined in Section 76-9-301, of any cat in a community cat colony. Cats in a colony that are obviously owned, as evidenced by a collar, tags, microchip, or other discernable owner identification, are not exempt from the provisions of Title 76, Chapter 9, Part 3, Cruelty to Animals.

(4) Sterilization and vaccination records shall be maintained for a minimum of three years and be available to an animal control officer upon request.

11-46-304 Permit process for community cat colonies.

(1) A county or municipality may create a permitting process for community cat colonies.[5]

(2) Any permitting process created by a county or municipality shall provide notice to adjacent property owners by:

(a) mailing notice to the record owner of each parcel within parameters specified by the permitting process; or

(b) posting notice on the property with a sign of sufficient size, durability, print quality, and location that is reasonably calculated to give notice to passers-by.

Check out the entire Community Cat Programs Handbook:

Administration

Operations


[1] Although such provisions are not uncommon, they are legally tenuous, as explained in Community Cat Programs: Public Policy and Legal Considerations.

[2] The claim that the mere presence of a free-roaming cat constitutes a public nuisance is legally flawed, as explained in Community Cat Programs: Public Policy and Legal Considerations.

[3] Weiss, E., M. Slater, and L. Lord, “Frequency of lost dogs and cats in the United States and the methods used to locate them.” Animals, 2012. 2(2): p. 301–315; Lord, L.K., et al., “Search and identification methods that owners use to find a lost cat.” Journal of the American Veterinary Medical Association, 2007. 230(2): p. 217–220.

[4] Holding times, even more than some of the other provisions listed here, are highly context-dependent. Some shelters might use reduced or eliminated holding times to rationalize the immediate killing of all impounded cats deemed “feral.” For this reason, exemptions must apply only to eligible cats who will be returned to their outdoor homes as part of a TNR program, or for whom other positive outcomes are available.

[5] Although Best Friends drafted the original version of the Community Cat Act, we do not support the permitting described in Section 11-46-304 (or permitting in general). This was included as an amendment to the original bill and required for the bill’s passage.


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