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Just Say "Go Away" to Breed Discrimination*
by Karen Copeland, Esq.
Pay more or even lose insurance coverage because of the breed of dog you own? Get Evicted? Read this and know your rights.
Breed-specific legislation and restriction are prohibited in New York State. As such no town or city in this State can enact a law or make a rule that would prevent any particular breed or type of dog from living in that town or city, or ask that particular breeds or types of dogs be subject to restrictions, such as muzzling or mandatory insurance or registration, that other dogs are not required to follow.
Even so, I had a case where a dog was confiscated by a town in Westchester as being an alleged "pit bull" and therefore banned by the municipality as a violation of a ordinance prohibiting such breeds. Actually, the owner was able to prove that the dog was an "Alapahala blue blood bull dog", a rare breed distinct from the "pit bull" type line. It could have just as easily been a pit bull, an American pit bull terrier, an American Staffordshire, an English Staffordshire, a dogo argentino, a boxer, an American bull dog, a mastiff, a Labrador retriever or some mix of any of the above.
The person who made the determination that this dog was of the contraband "pit bull type" was the intake clerk at the local shelter who had no formal training or education in animal behavior or breed determination. With the testimony of an animal behaviorist, Peter Borschelt, Ph. D., the judge was convinced that the statute was unconstitutionally vague, and that due to the fact that many of the "pit bull type" breeds are actually recently created breeds made by mixing of various other breeds. As such, most individual dogs could not be definitely identified as being of one breed or another, unless the dog's parents were known.
Private insurance companies, however, try to make their own rules. Several have been reported to attempt to cancel or fail to cover a homeowner because of a particular breed of dog is in the home. Pit bulls, Rottweilers, German Shepherds, Doberman Pinschers, Chow Chows, Mastiffs, Presa Canarios, Akitas, Staffordshire Terriers, Siberian Huskies and Alaskan Malmutes have all reportedly been subjected to at least some form of "breed discrimination" from insurance companies. New York State Senator Dean Skelos (R-C, Rockville Centre) has introduced a bill in the State Senate to prohibit insurance companies from discriminating against homeowners and policyholders based upon the breed of a family pet.
But while some insurance companies may try to cancel or refuse to indemnify, there are many other insurance companies who make no distinction whatsoever among breeds. So the best defense for owners of dogs of all breeds would be to buy insurance with one of the many companies who don't discriminate based upon breed, and to refuse to do business with those who do. If you're not sure, ask.
Tough Life = Bad Rep
Breed discrimination also takes the form of the victimization of certain breeds, like pit bulls, that are favored by dog fighters and drug dealers. Abuse of a companion animal is now a felony in New York State, as well as several other states throughout the country.
(Interestingly, this is largely in response to recent studies by the FBI which showed conclusively that many serial killers and mass murders started their nefarious careers as animal abusers.) Dog fighting and cruel training methods and treatment given to animals encouraged to fight are now crimes for which the animal abuser may receive a prison sentence for a period in excess of a year.
Unfortunately, these so-called "fighting dogs" like pit bulls and Doberman pinschers, are the ones that end up being branded as dangerous. Most experts are in agreement that it is not a breed, but the treatment given the individual animal which determines whether that dog is a risk for unacceptable or dangerous behavior. Pit bulls and Doberman pinschers, regrettibly, seem to attract a disproportionate number of owners who are abusive and cruel to them, often with tragic consequences for the animals and people as well. Hopefully, the police authorities will vigorously enforce the felony laws against animal abuse which will ultimately result in less incidents of attacks by dogs upon people.
Your Rights As a Tenant
In a city like ours, certain breeds of dogs may be objected to by landlords or neighbors who express fear of having a pit bull, say, in a multiple unit dwelling. However, having a particular breed of dog in residence, in and of itself, cannot be the basis for an eviction proceeding. In order for a landlord to prevail in a dog-based "nuisance" claim, it must be proven that the dog is a "substantial and unreasonable interference with the rights of other tenants." Also, the fact that other tenants may be afraid of the dog is not sufficient to sustain an eviction proceeding.
In order to be adjudicated as a "nuisance", such that the owner might find himself evicted, a tenant or his dog must do something really bad on a regular ongoing basis. One bad act cannot be "nuisance", by its definition. The complained of behavior has to be part of a continuous ongoing pattern of behavior, and the landlord must prove it in court with the testimony of other tenants who have actually witnessed or experienced in a first hand way some bad act of the dog in question.
Similarly, in a personal injury case, the plaintiff must prove that the owner of the dog was aware that the dog had a "dangerous or vicious propensity" before the owner is held "strictly liable" for the actions of the animal. The Appellate Division of New York State has ruled that neither the pit bull nor the German shepherd dog can be considered "inherently dangerous" by virtue of its breed alone. Additional evidence is necessary to prove that an owner is or was aware of an animal's dangerous propensity, before "strict liability" against the owner will be found by the court.
Yet, in spite of laws to the contrary, owners of pit bull type dogs, as well as Dobermans, German shepherds and dogs that may look like those dogs are often the victims of discrimination based upon fear or unfounded opinions.
It makes sense to respect the fact that others may have a preconceived fear, however irrational, and to keep the dog away from such people. Get the next elevator; let others go through the door first. Avoid dog runs or urban areas where dogs are "off leash". Keep the dog away from children that aren't family members. Don't let anyone but an adult walk the dog. Consult an animal behaviorist in regard to any behavioral problems.
In a private home setting, the pit bull type dog should have a yard with a fence of six feet high and a locking gate. These measures are to protect the dog from the public as much as it may be to protect the public from the dog, as the dog is often the victim of theft and vandalism by professional dog fighters or drug dealers, as well as youthfully ignorant pranksters.
As an attorney representing people facing evictions for animals in the home, many of my clients have animals of the pit bull persuasion. One word is unvariably use to describe the dog: ""mush". They all report that the dogs are incredibly personable, lovable and affectionate, ever interested in playing and participating in family activities. The pit bull is always a big baby and must sit in a lap if one is available. The pit bull wants to sleep in the bed, under the covers with head on the pillow, keeping his or her favorite human warm and feeling comforted. I have had cases where people had other dogs but"" under the federal Fair Housing Act, as an emotional support animal. The dogs would sit with the disabled persons throughout the day and provide the attentive companionship that would distract them from being in pain or from the limitations of the disabling condition.
Still, certain breeds, like pit bulls are not for every owner but for experienced and responsible people willing to go the extra mile to protect their dog from the public and provide the type of special care and attention that this high-energy animal requires. That special owner will be rewarded with the unconditional love and attention and devotion of a dog with incredible spirit, character and personality.
Karen Copeland is an attorney in private practice in New York focusing on issues pertaining to animals. She may be reached at 212-560-7154 or firstname.lastname@example.org.
* Copyright Karen Copeland, Esq. 2003 printed in New York Tails by permission of author, all other rights reserved.
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