Request By:
Ms. Marlene Smith
Boone County Dog Warden
50 East Washington Square
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning dogs and the dog control ordinances of Boone County.
You state that on August 23, 1982 a dog that had been running at large was picked up and brought to the County Animal Shelter. The dog was wearing a license and although contact was made with the dog's owner the dog was never claimed and it still remains at the animal shelter. Another person is now interested in adopting the dog.
You have enclosed a copy of Boone County Ordinance No. 840.1 relating to dogs running at large within the county and a copy of Boone County Ordinance No. 840.2 concerning the treatment, care, handling and population control of animals within the county.
Your specific question is whether the county dog warden may place for adoption the dog which was seized for violating the county dog ordinance and which was never reclaimed by its original owner.
A section of the state dog laws (KRS 258.215) provides in part that peace officers shall seize and impound any dog which does not bear a proper license tag or other legible identitication which is found running at large. Furthermore, any such dog which has been seized shall be impounded for seven days and if not claimed by the owner or sold in accordance with other provisions of KRS Chapter 258 may be destroyed in some humane manner.
Contrary to the clause in KRS 258.215 about "sold in accordance with other provisions of this chapter," there are no provisions in KRS Chapter 258 relative to the selling of dogs which have been held for the seven day period and not claimed. However, this office said in OAG 66-402, copy enclosed, that a fiscal court could, pursuant to its authority in KRS 258.195 to adopt and enforce regulations pertaining to dog pound standards, determine the manner and method of selling impounded dogs held and not claimed within the seven day period set forth in the state statute.
The Boone County dog control ordinances involved here were enacted pursuant to the county's authority under KRS 67.083(3)(a) to adopt ordinances relative to the control of animals. One of the primary purposes of these ordinances is to prohibit dogs from running at large whether or not they are licensed. This concept is not in conflict or inconsistent with the terms and provisions of KRS Chapter 258 and is a legitimate subject of regulation by a county government. See OAG 78-260, copy enclosed.
The county ordinances which you have enclosed do not, however, contain any provisions relative to the disposition of those dogs which have been picked up for running at large in the county except for a provision in Ordinance No. 840.2 that, "Nothing herein shall preclude the Boone County Animal Shelter from humanely euthanizing any animal which euthanization is necessitated by over population, disease or injury." While we are of the opinion that the fiscal court has the authority to amend its existing dog control ordinances or to enact a new ordinance to provide for such a procedure, there are no provisions in the ordinances you have enclosed setting up a procedure concerning the adoption and sale of dogs which have been picked up for running at large in the county and which have been impounded at the animal shelter but have not been claimed by the original owners.
In order that you might implement the procedure you have suggested concerning the adoption and sale of unclaimed dogs, we suggest that the fiscal court amend its dog control ordinances or enact a new ordinance providing in part that dogs picked up for running at large in the county and which have been impounded at the county animal shelter for at least seven days, but have not been claimed by their owners after notification of the owners (when possible), may be adopted by and sold to other persons upon payment of necessary fees and expenses as determined by the fiscal court.
Although you have not asked us about the matter, we could not help but notice that Section Two of Ordinance No. 840.2 provides in part that dog wardens have the powers of a peace officer for the purpose of enforcing animal control laws and ordinances of the county and may issue citations in certain situations. The fiscal court, in our opinion, does not have the authority to confer by ordinance such powers upon dog wardens. A dog warden is not a peace officer although he could be made a peace officer by being appointed, for example, a deputy sheriff or a county police officer. See OAG 75-383 and OAG 68-93, copies enclosed.