Request By:
Mr. Henry Gill, Chairman
Board of Trustees
City of Dover
Dover, Kentucky 41034
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter dealing with the provisions of a city ordinance concerning the regulation of dogs and the enforcement of that ordinance.
You first state that the town marshal is reluctant to enforce the ordinance because of KRS 525.130. While the General Assembly has enacted statutes concerning the regulation of dogs (KRS Chapter 258), there is a provision, KRS 258.365, which states that any city may pass or enforce any ordinance with respect to the regulation of dogs, the provisions of which are not inconsistent with the provisions of KRS Chapter 258. Thus, any city, subject to the requirement noted above, has a basic statutory right to enact ordinances relating to the control of dogs.
KRS 525.130 provides that a person is guilty of cruelty to animals when except as authorized by law he intentionally or wantonly subjects any animal to or causes cruel or injurious mistreatment through abandonment, causing it to fight for pleasure or profit, mutilation, beating, torturing, tormenting, failing to provide adequate food, drink, space or health care or by any other means. The statute also prohibits a person from subjecting any animal in his custody to cruel neglect or killing any animal. The statute does not apply to the killing of animals pursuant to a license to hunt, fish or trap; killing incident to the processing as food or for other commercial purposes; killing for humane purposes and for any other purpose authorized by law.
There is no inherent conflict between the provisions of the statute dealing with cruelty to animals and a city's right to control dogs. Obviously the peace officer or other person enforcing the city's dog control ordinance would have to deal with the dogs in a humane manner. In view of the lack of specific information contained in your letter, we cannot give an explanation as to how KRS 525.130 would preclude the city marshal from enforcing the city's dog control ordinance.
Your letter states that the city marshal has sought assistance from the county dog warden but nothing has been done about such matters as dogs running loose and dogs in heat. Not only does the county dog warden have responsibilities under the state dog law but so does the city marshal as he is a peace officer and is required to enforce the provisions of the state dog law. This duty exists whether or not the city has a valid dog control ordinance.
KRS 258.215 states that peace officers shall seize and impound any dog which does not bear a proper license tag or other legible identification, which is found running at large. If an officer, after diligent effort to do so, should fail to seize such a dog, it shall then become his duty to destroy the dog by any reasonable and humane means. Exempt from the provisions of this section are hunting dogs released from confinement for hunting purposes which become temporarily lost or wander from actual control or sight of their owners or handlers. KRS 258.215 applies to all peace officers, including city police officers, and if the city does not have a dog pound, seized animals should be impounded at the county dog pound by city police officers.
KRS 258.225 states that it shall be unlawful for any peace officer to refuse to perform his duties under the provisions of KRS Chapter 258 or to refuse to assist in the enforcement of KRS Chapter 258 upon request of the Commissioner of Agriculture.
KRS 258.255 provides that it shall be unlawful for the owner or keeper of any female dog to permit her to go beyond the premises of such owner or keeper at any time she is in heat, unless she is properly in leash. KRS 258.265 states in part that the owner or keeper of every dog shall at all times between the hours of sunset and sunrise of each day keep such dog confined within an enclosure from which it cannot escape or firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured. KRS 258.900 sets forth the penalties for violations of the sections of KRS Chapter 258 discussed herein.
You next ask what protection a dog license provides for the dog and dog owner, particularly with regard to that portion of your city ordinance requiring dogs to be on a leash.
KRS 258.135 and 258.145 deal with the required dog licenses. As previously noted, the state dog laws provide that dogs which do not bear a proper license tag or other legible identification, which are running at large, shall be seized. Furthermore, dogs must be confined at night. However, the state dog laws do not require the confinement of properly licensed or identifiable dogs during the daylight hours. The regulation of dogs during this time period has to be accomplished through the enactment of local ordinances. Pursuant to KRS 258.365 a city has the authority to enact an ordinance requring all dogs to be confined on a leash or on the premises of the owner at all times. See OAG 78-260, copy enclosed.
While a city has the authority to enact ordinances regulating dogs, such ordinances cannot be inconsistent with the provisions of KRS Chapter 258. Several sections of your city ordinance are probably invalid. For example, you cannot, through a city ordinance, impose duties and responsibilities on the county dog warden. His basic duties are set forth in KRS Chapter 258 and any additional duties could only be imposed by the fiscal court. The penalty imposed by your ordinance for failure to confine dogs in heat is less than the penalties imposed by state statute, and this is improper. Your ordinance is brief and somewhat nonspecific and we would suggest that it be examined by the city attorney. Furthermore, the Kentucky Municipal League, Suite 229, Commerce Building, University of Kentucky, Lexington, Kentucky 40506, may be able to furnish you with sample copies of ordinances relating to dog control.
Your last question deals with the issuance of a citation.
KRS 431.015 provides in part that a peace officer may issue a citation instead of making an arrest for a misdemeanor or violation committed in his presence, if there are reasonable grounds to believe the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time. This statute is designed to eliminate arrests in mere traffic violations and other minor misdemeanors. A citation, of course, is not a court process. It merely issues from a peace officer and not from a court. See OAG 74-247, copy enclosed. While KRS 431.450 provides for a uniform citation, developed by the Bureau of State Police in consultation with the Department of Transportation, for all violations of the traffic laws and such misdemeanors and violations as are listed in KRS 431.451, there is no required uniform citation in connection with the enforcement of city dog ordinances.