Memo- Cat Ordinances
Department of Administration
Memorandum
From:
Rick Getschow
Jim Genellie
To:
Date:
Subject:
April 17, 2008
Cat Control
Cats running at large
Residents can capture cats that are on their property and turn them over to the humane society.
However, if the resident knows who the cat belongs to they likely need to give the owner notice or
face possible liability if the cat is unclaimed and destroyed. (See Curtiss memo date September 15,
1995. )
Bloomington does have an ordinance that authorizes the impoundment of animals running at large.
The City of Hopkins could adopt a similar ordinance. The question would be - who would enforce
the ordinance?
The ideal situation is that a resident captures a neighbor's cat that is running at large.
The cat is turned over to the City.
The police department takes the cat to the animal hospital and informs the cat's owner that
the cat has been impounded.
The owner pays the impound fee and any boarding fees and gets the cat rock.
The owner decides that it is cheaper to keep the cat confined in the future.
Problem solved.
Cost to the City: staff time to transport the cat and notify the owner. This cost can be offset
by the impound fee.
Unfortunately the ideal situation may not be the norm.
The Police Department is called because of a cat running at large.
The cat is either gone by the time the PD shows up or the PD is unable to capture the cat.
The problem is not solved.
Cost to the City: staff time to respond to the call and try to capture the cat. No offsetting
revenue.
The Police Department is called because of a cat running at large.
Either the resident or the PD capture the cat but the owner of the cat is not known.
The Department takes the cat to the pet hospital.
The cat is kept for the recommended ten days. (See League of Minnesota Cities memo)
The cat is unclaimed and therefore disposed of.
ICal Control Memo OB.doc
Department of Administration
Problem is solved.
Cost to the City: stafftime to transport the cat. Ten days of boarding: $232.50. Disposal of
cat: $96.60. No offsetting revenue.
The City of Hopkins did consider this issue in detail during 1994. In the end, the decision was made
to not pursue a cat control ordinance.
A memorandum written by Heather Alex in 1994 outlines the difficulties of enforcing a leash law
on cats. The issues that she raised at that time are still valid:
. The City does not have the staff or the ~quipment necessary to deal with stray cats.
. The response time for responding to cat complaints could be an issue. The City has two
PSOs who are responsible for a variety of duties. They would have to be called away
from whatever they are doing to respond to the cat complaint. If the PSOs were
unavailable for any reason, a police officer would have to respond. And unfortunately,
animal problems are often "gone" even when an immediate response is generated.
· The City could contract with another City or a private firm to take care of animal
complaints. This option has both cost and response time issues.
. Impounded cats should be kept for at least 10 days prior to their disposal. In all
likelihood the City would have to absorb these costs as the cats would go unclaimed. (A
ten day impound fee would be $232.50)
Should the City Council decide to move forward with a program to control stray cats, the only
sources for funding would be a cat license or property taxes.
As for individuals capturing stray cats on their own, Wynn Curtiss addressed this issue in 1995.
There is some liability on the part of the individual capturing the cat, especially if they know whose
cat it is.
Attachments:
Cats.doc - Previous Council actions regarding cat control
Animal Control - Memo from Heather Alex regarding cat control
Curtiss Memo dated September 15, 1995
Curtiss Memo dated October 11, 1995
LMC Memo on animal control.
ICat Control Memo DB. doc
Previous Council actions regarding cats.
6/5/1984
The Council asked that the City Manager and City Attorney work together to draw up
an ordinance for control of cats in Hopkins
9120/1994
c. DISCUSSION - CATS (Memo)
The City has received a number of complaints regarding cats.
The complaints tend to fall in the following categories:
a. Cat bites.
b. The number of cats a household has. There is no ordinance limiting the number of
cats that a household may have. There is a limit of two dogs per household.
c. Wandering cats or cats roving about the neighborhood. Controlling wandering cats
would require a major effort including licensing of cats.
The Police departments does not keep track of every complaint that it receives regarding
cats since there if no ordinance regarding cats.
Herb and Marjory Wolf appeared before Council regarding the cat situation. Mr. stated
that his neighbor has 23 cats stored in cages and kept in a garage. He stated that smell
and noise are extremely bad and the surrounding neighbors are very upset over the
situation. He also stated that he had tried to talk with the neighbor and was met with
severe hostility.
After discussion the Council directed staff to check with other cities on how they handle
the situation. Staff was also directed to draft an ordinance concerning the number of cats
that are allowed in each household.
1014/1994
CATS (Rpt. 94-185)
Staff recommended the CoUncil adopt Ordinance No. 94-744 for first reading.
Mr. Genellie gave a brief recap of the reason for recommending an ordinance dealing
with the cat problem. He then recommended Alternative No.1 establishing a maximum
of three animals, dogs or cats per household.
After a great deal of discussion Councilmember Maxwell moved and Councilmember
Kritzler seconded the motion to continue this item until the November 1 City Council
meeting.
1
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Aye. The motion carried unanimously.
b. DISCUSSION - CAT CONTROL ORDINANCE (Rpt. 94-185)
Mr. Genellie discussed with the Council a possibility of an ordinance to require all cats to
be licensed.
Councilmember Maxwell moved and Councilmember Kritzler moved to continue this
discussion until the November 1 City Council meeting.
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Aye. The motion carried unanimously.
11/1/1994
a. CONSIDER ACTION - ORDINANCE LIMITING THE NUMBER OF
CATS (Rpt. 94-209)
Staff recommended that the Hopkins City Council adopt Ordinance 94-744 for first
reading. Adoption of this motion wi11limit the number of cats that a household may have.
Mr. Genellie went over the proposed ordinance with the Council.
Several people agreed with the recommended limit of four pets but not more than two
dogs.
After discussion Councilmember Anderson moved and Councilmember Kritzler
seconded the motion to adopt Ordinance No. 94-744 for first reading.
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Aye. The motion carried unanimously.
b. DISCUSSION - CAT CONTROL ORDINANCE (Rpt. 94-210)
The City Council should indicate whether they wish to proceed with the adoption of a cat
control ordinance. The cost of enforcing such an ordinance is estimated at between
$15,000 and $30,000 per year.
Councilmember Anderson said that this problem must be solved and enforced. The
problem has gone on much too long.
2
After discussion the Council directed staff to provide them with additional information
concerning costs of Animal Control.
11/15/1994
a. CONSIDER ACTION - ORDINANCE ESTABLISHING THE MAXIMUM
NUMBER OF CATS AND DOGS IN A HOUSEHOLD. (CR 94-210)
Staff recommended that the City Council approve Ordinance 94-744 for second reading
an order published.
Councilmember moved and Councilmember seconded the motion to adopt Ordinance 94-
744 for second reading and order published.
A poll ofthe vote was as follows: Councilmember Anderson, aye; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Aye. The motion carried unanimously.
12/6/1994
a. CONSIDER ACTION - CAT CONTROL ORDINANCE (Rpt. 94-210)
Staff recommended that the City Council should indicate whether they wish staff to
proceed with the adoption of a cat control ordinance.
Mr. Genellie went over the costs involved in creating an ordinance for cat control. He
also cited the police departments suggestions.
Councilmember Kritzler felt that the cost of $30,000 for limited animal control was rather
high.
Karen Egger appeared before Council to encourage education of the citizens who have
pets. She also thought the City should purchase an animal control truck and have the
police department pick up stray animals.
Several other people appeared to state their opinions on proposed licensing of cats.
Councilmember Hesch suggested starting with the Neighborhood Advisory Board with
each member discussing the problems with their neighbors.
After further discussion Councilmember Maxwell moved to refer the matter to the
Neighborhood Advisory Board and put information on the situation in the next city news
letter and bring back suggestions in 60 to 90 days. Councilmember Hesch seconded the
motion.
3
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Aye. The motion carried unanimously.
8/1 /1995
B. CONSIDER ACTION - ANIMAL ORDINANCE (CR95-122)
Staff recommended a motion to adopt Ordinance number 95-773 for first reading.
Council discussed the possibility of including cats in the ordinance. Mr. Guy McDonald,
235 Holly Road, Hopkins, expressed a desire to have cats controlled in the same manner
dogs are.
Councilmember Anderson moved and Mayor Redepenning seconded a motion to approve
Ordinance Number 95-773 for first reading and include cats in the ordinance.
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Nay; Councilmember Kritzler, Nay; Councilmember Maxwell, Nay; Mayor
Redepenning, Aye. The motion was not carried.
Councilmember Kritzler moved and Councilmember Hesch seconded a motion to
approve Ordinance number 95-773 for first reading and instruct staff to review the cost
factors and implications of adding cats to the ordinance at a future time.
A poll of the vote was as follows: Councilmember Anderson, Nay; Councilmember
Hesch, Aye; Councilmember Kritzler, Aye; Councilmember Maxwell, Aye; Mayor
Redepenning, Nay. The motion was carried.
A. CONSIDER ACTION - ANIMAL ORDINANCE (CR95-161)
Jim Genellie reported the results of the survey he completed. He answered questions
from the Council about animal ordinances that other cities have and the costs associated
with enforcing these ordinances. He also submitted an opinion from Wynn Curtiss, City
Attorney, stating that citizens do have the right to trap animals on their property.
Staff recommended a motion to continue the second reading of Ordinance 95-773.
Councilmember Maxwell moved and Councilmember Anderson seconded a motion to
continue the second reading of Ordinance 95-773 until the Regular Council Meeting on
October 17, 1995.
A poll of the vote was as follows: Councilmember Anderson, Aye; Councilmember
Hesch, Aye; Councilmember Maxwell, Aye; Mayor Redepenning, Aye. The motion was
carried unanimously.
4
Council directed Mr. Genellie to do further research to establish if the City can write an
ordinance to reduce the liability for residents who trap without increasing liability to the
City and if an Animal Control Ordinance that includes cats has decreased the number of
complaints in those cities that have adopted such an ordinance. Council further directed
Mr. Genellie to enquire if the cities of Minnetonka and Edina have an interest in
providing Animal Control services to the City of Hopkins under contract.
- Staff was unable to find another city interested in sharing animal control.
5
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To:
Jim Genellie
From:
Heather M. Alex
Monday, November 14, 1994
Animal Control
Date:
Subject:
The police department has examined the issues related to the potential impact on law
nforcement should the council choose to enact an ordinance to control cats in the City
of Hopkins.
The main issues appear to be as follows:
.J Ability to provide proactive, thorough enforcement through the status quo
.J Enforcement Options
.J Cost of such enforcement options
1. Ability to enforce a cat control ordinance
HPD responds to specific complaints on a "per call' basis. Normal protocol dictates
that animal complaint calls be dispatched first to the on.,.duty Public Service Officer, and
second to sworn police officers .if a PSO is not available. PSO's are required to fill in
for dispatcherVacatioris, sickleave,etc.WhichWoUldtakeaWayfrortfthe -attimalcohtr'ol
function for an undetermined number of hours per week. Occasionally a delay in
response occurs due to the necessity of prioritizing calls and staffing allocations.
C rtain specialized wildlife calls are handled on a contract basis by Wildlife
Management Services, a private contractor. Follow-up investigations, requests for
complaint, etc. are handled by the investigations division or. the services division as
assigned.
We realize that the status quo, even with our best effort, can not meet all public
xpectations of an aggressive animal control program. Increased demand for response
based on increased regulation may further dissatisfy public expectations, if the status
quo of enforcement is maintained.
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Another concern is the actual "enforceability" of a cat control ordinance. We project
that many of the calls received on cats would be ot-the "my neighbor's cat is under my
birdfeeder" variety. Although a violation, enforcement would be nearly impossible
unless the cat is wearing a tag identifying it, and is present on the caller's property
when officers arrive.
Unlicensed cats "at large" that are picked up are nearly never claimed and must be
d stroyed. Although an ordinance would give us the authority to dispose of such
animals (we currently cannot pick up loose cats at all) the cost would be large and not
r coverable.Another consideration is prosecution costs. Often the miscreant animal is
gone when officers arrive. Unless the officefwitnessesthe incident (as above) the
police department has to request a complaint from the city prosecutor in order to
charge a misdemeanor case. We suspect that most of the cases on cats at large would
be dismissed at a substantial cost to the city both in staff time and prosecution fees.
2. Enforcement options & associated costs
.A proactive, thorough enforcement program would require additional resources.
Routine patrol, impoundment of animals in violation, prosecution of offenders and
community education should all be part of such a program and are much better
accomplished by a dedicated, well trained and adequately equipped animal control
professional. .
Several options have been discussed to deal with an increased public expectation of
animal control and ordinance enforcement, should the council choose to control cats.
A. Maintain the Status Quo
This option would require the least expense but for the abovementioned
reasons would probably result in the lowest level of customer satisfaction.
B. Hire a city employee dedicated to animal control functions
A public service officer, for example, could be dedicated to animal
control and could perform other duties when not actively engaged in
animal control. Cost: about $30,000.00 a year plus vehicle arid
equipment. (Current PSO truck is. not adequately equipped to
function effectively as an animal control. vehicle: no separate
compartments, often re-assigned to patrol division and unavaih:.ble for
animal calls.) Most other cities we contacted have this method of animal
control, with the sworn police officers responding to calls when no PSO is
avialable. It works because there are usually one or more PSO's on duty
and they don't require their PSQ's to cover dispatcher sick and vacation
leave.
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C. Contract with a private company for animal control services.
St. Louis Park currently contracts with Wildlife Management Services for animal
control. WMS provides a trained, professional animal control officer and all un~forms,
qLiipment (including vehicle) and training. This person is on duty 6 hours a day 6
days a week, performs all animal control functions in the city (SLP does not control
cats, however) and is on-call for after-hours emergencies (at additional cost). Routine
animal calls after hours are handled by police officers or community service officers but
are referred to the animal control officer for followup. This service costs SLP about
$30,000. a year. St. LOllis Park Police are extremely satisfied with the service
provided.
A question was raised whether Hopkins could contract for an "on-call" animal control
service only. There are issues involved going this route:
J response time: animal problems are often "gone" even when an immediate
. . response is generated. Having to waitfor an on-call person to respond to a
page and travel to the City, get vehicle, etc. would probably almost always result
in an unacceptable response time. People generally don't want to listen to the
dog bark or the cats fight for another hour until the animal control person arrives.
J "Routine" on-call services are probably not available.\NMS only provides
on-call services for emergencies such as dog bite or injured animal.
J Costs of on-call services: WMS charges $29.00 per call. Calling a city
employee on overtime to respond would result in a minimum of two hours
overtime pay; or roughly the same amount fora PSO at starting salary.
The International City Manager's Association (ICMA) recommends a budget of $3.00 -
. $5.00/residentper city population. This would recommend a budget of $49,602.00-
$82.670.00 for Hopkins. Our current animal control budget is $2500.00, but personn I
costs are not associated directly with animal control under our current system as they
are spread throughout the budget and various divisions.
The Police Department recommends the council not adopt a cat control ordinance,
because of concerns about enforceability and the potential for an "administrative
nightmare." We are concerned that such an ordinance could also fan the flames of
n ighbor animosity and place the City in a position wherei because it is nearly
impossible to control cats, we cannot possibly meet the expectations of the community.
Should the council choose to adopt such an ordinance, we recommend option number
3: a private animal control contract with a professional firm.
cc: Chief Johnson
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T Y
o F
H 0 PK
N"S
MEMO
Date: September 15, 1995
To: James Genellie
From: Wynn Curtiss
Re: Capture And Disposal Of stray Cats
This memo deals with the following issues: 1) Under what
circumstances, if any, can pr.tvate homeowners trap stray cats on
their own property; 2) What obligations, if any, does a private
homeowner have with regard to disposal of stray cats captured on
their property; 3) What obligation does the City have, if any, to
capture stray cats; 4) What obligation does the City have, if any,
to accept responsibility for stray cats captured by private
citizens, and; 5) What obligations or liabilities does the City
have with regard to the capture of stray cats.
1) Under what circumstances if any can"private hQmeowners trap
stray cats on their own property?
No State lawprohibi tf? "PlC~YCl,t:~. 9i tizens from capturing domestic
cats which wander on to private property. A private citizen may.
capture a cat which ~2nders on to the citizen's private.property.
No specific State statute or regulation sets forth the permissible
methods for capturing stray cats. However ,the Department Of
Natural Resources' Regulations restrict the use of certain types of
leg traps and wire snare traps. Other than those restrictions,
however, private citizens are permitted to use both "live traps and
other types of traps to capture unregulated animals (i.e. non-small
game, such as mink) which wander on to their property.
The City, therefore, does not need to take any action to allow
private citizens ~o trap stray cats on their property. However,
the City may wish to pass an ordinance regarding the use of traps.
other than live traps. Specifically, the City may wish to pass an
c:\file\hopkins\jg
1
1010 First Street South Hopkins, Minnesota 55343
Phone: 612-935-8474 FaX: 612-935-1834
An Equal Opportunity Employer
ordinance which prohibits any type of leg trap or snare trap and
limit the type'of permitted traps to live traps. Suchan ordinance
could be justified by the City's authority to enact ordinances for
the health and safety of the public, since such types of traps in
an urban setting may catch children that wander on to citizen's
property.
2) What obligation does a citizen have with regard to disposal of
stray cats captured on their property?
Currently, Minnesota has an archaic statute regarding the
obligations of a private citizen who captures stray animals on
their property. The Minnesota Statutes are remnants of statutes
from the l800s. Although these statutes exist, it would be
virtually impossible for a private citizen to meet the requirements
of the statutes. Therefore, although these statutes exist, I do
not believe. they are applicable to the situation of urban
homeowners capturing stray cats.
When a private citizen captures a stray cat, the citizen's
obligation probably depends on whether the citizen knows the owner
of the animal. If the citizen knows who the owner is, the law
probably would require the citizen to notify the owner that he
possesses the stray cat. If the citizen, however, does not know
who the animal's owner is, there likely would be no notice
requirement. If the private citizen notifies. the owner, and the
owner reclaims the animal, the private citizen would be required to
relinquish. possession of the animal, but could request that the
animal's owner reimburse the citizen for any costs incurred while
iri possession of the animal. Should the parties have a dispute
regarding return of the animal or the costs incurred, those matters
would;: be appropriate for civil Conciliation Court.
Should the private citizen not know who the animal's owner is, the
most likely action would be to turn the animal over to the Hennepin
County Humane Society. The Humane Society is obliged to accept all
stray animals brought to it. The Humane Society would hold the
animal for the period of time required by its regulations. If the
animal is unclaimed in that period of time, the animal would either
be destroyed or offered for adoption, depending of the animal's
coridition. A private citizen who turns a stray animal over to the
Humane Society incurs no costs in doing so.
c:\file\hopkins\jg
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Should a private citizen capture a stray animal and, despite
knowing the owner, turns it over to the Humane Society or somehow
otherwise disposes of it, the private citizen faces the possibility
of a civ11 action by the animal's owner. If the animal is
destroyed or placed with another party, and it can be established
that the private citizen knew the animal's actual owner, that owner
might sue in civil Conciliation' Court for the lost value of the
animal.
3. What obligation does the City have to capture stray cats?
No statute or regulation imposes an obligation on the City to
capture stray cats. Currently, the City has no cat licensing
ordinance or cat leash law to enforce. Presumably, if the City
passed such an ordinance, concurrent with it would go the
ob11gat10n to ~nforcethe ordinance, and thus the ob11gation to
capture the cats. While enforcement of an ordinance is at the
discretion of the enforcement authority, the existence of s~ch an
ordinance is likely to create a public reception that the ordinance
would be enforced. Unless and until the City imposes, such an
obligation' on itself, however, the City is under no obligation to
actively capture stray cats.
,4. What obligation does the City have to accept cats animals from
private citizens?
Again, no statute imposes an obligation on the City to accept stray
cats which have been captured by private citizens. This rule does
not apply to dogs. A specific statute imposes a requirement on the
City to accept stray dogs captured by private citizens. Unless and
until the City chooses to impose the obligation to accept captured
stray cats from private .citizens, it would have no such legal
obligation.
5. What' obligations might the Ci ty have with regard to the
cap~ure and disposal of stray CAtS?
Absent an obligation to capture stray cats or accept captured stray
cats from private citizens, the City is unlikely to have any
liabilities with regard to the capture and disposal of stray cats
by private citizens. Unless and until the City imposes upon itself
some obligation to capture stray cats or accept captured stray cats
from private citizens, no such obligation will exist and thus, the
City is unlikely to have any potential 'liability.
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If you have any questions-regarding these matters, please contact
me.
we
cc: Jerre Miller
.:1....
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T Y
OF 'HOPKINS
MEMO
D~te: Ootober 11, 1995
To: James Genellie
From: Wynn Curtiss
Re: Givil Liability For Disposal Of Stray Cats
This memo deals with the question of whether the City of Hopkins
can, by ordinance or other action, limit or restrict the liability
of private citizens who capture and dispose of stray cats which
wander on their property. Reference should be made to my September
15, 1995, memo which dealt with related issues.
As stated previously, a private citizen may capture a stray cat
which wanders on his property. The obligation of a private citizen
who captures a stray cat - and the potential liability - probably
depends on whether the private citizen knows who' owns the stray
cat. If the private citiz~n knows who owns the stray cat and takes
no action to provide. notice to the owner and the cat is
subsequently disposed of, either by being destroyed or placed with
another party, the cat' s owner__~J:'~uably J:18:l:J.. ee-ivil claim for the
value of the stray cat. If the private citizen has no knowledge of
the ownership of the stray cat, the citizen may dispose of the cat
without incurring liability to the eat's owner.
The City could by ordinance require a private citizen to provide
notice in those situations in which ownership is unknown. For
example, the City could require private citizens who capture stray
cats to provide notice of the capture to the City Clerk or the
Police Department. Failure to provide such notice could then be
deemed a violation of the private citizen's duty to the eat's owner
and could. be the basis for.the owner to seek compensation.
c:\file\hopkins\jg
1
1010 Fir~t Str~etSouth Hopkins. Minnesota 55343
Phone: 612-935-8474 Fax: 612-935-1834
An Equal Opportunity Employer
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Conversely, the City could take action to relieve private citizens
from liability. However, to do so probably would require' passage
of an ordinance making it illegal for cats to freely wander through
the City or requiring cats to be licensed. A private citizen
capturing a cat which is in violation of such an ordinance could
then be authorized by the ordinance to dispose of the cat without
providing notice to the owner.
Despi te the existence of such an ordinal-lOe; however, I do not
believ~ it would bean absolute ban to a civil claim for
compensation. For example, if the private citizen actually knew
who owned the stray cat, and despite such ownership disposed of the
cat in reliance upon the ordinance, I foresee a civil claim.
notwithstanding the ordinance's waiver of notice. Thus, the hoped
for protection from liability is unlikely to deter an unhappy cat
owner from bringing suit.
The City's ability and authority to limit liability for private
citizens who capture and dispose of stray cats probably is limited
unless the City decides to require licensure of cats or prohibits
cats from wandering freely. Absent such provisions, the City has
no apparent authority to waive the common law notice requirements
which obligate a private citizen to provide notice to the owner of
a stray cat that the private citizen has in fact taken possession
of that cat.
If you have any qu~stions regarding these matters, please pontact
me.
WC
cc: Jerre Miller
,e:\file\hopk!ns\jg
2
LMCIT
Risk Management Information
League of Minnesota Cities
Cities promoting excellence
145 University Avenue West, St. Paul, MN 55103-2044
Phone: (651) 281-1200. (800) 925-1122
Fax: (651) 281-1298 . TDD (651) 281-1290
www.lmcit.Imnc.org
FLUFFY, FIDO, & IGOR: ANIMAL CONTROL ORDINANCES
As this country has become more densely populated the need to regulate animals and pets has
grown. Municipalities have a wide range of control over the ownership of pets and animals.
Cities have enacted and successfully enforced laws regarding the following:
. limits on the number of dogs per household
. requirements for a special permit to have certain pets or to obtain licenses
. the ability to order or allow the destruction of pets or other animals
Because animals are considered to be private property, they are subject to the same regulatory
devices as any other private property would be under the police powers of the state. In addition
to their property-like characteristics, animals may be nuisances due to their odor and noise, and
may cause great bodily harm. As a result of their nuisance-like nature and potential danger,
animal and pet regulation has been found to be well within the police powers of a municipality.
Not only is it within the police power of government entities to regulate and control animal
ownership, it is the government's duty. An inherently dangerous condition can be caused by
uncontrolled or vicious dogs or stampeding animals. A city's failure to respond to such
dangerous conditions may rise to a level of reckless disregard for the public's safety.
Municipalities must have the authority to take such animals under control in order to satisfy their
duty to keep the City's streets safe. Thus, it is common for municipalities to enact ordinances
that regulate the keeping of animals within its borders.
General considerations for drafting and enforcing animal control ordinances
The regulation of pets and other animals has not remained unchallenged over the years. In fact,
challenges to animal regulations have increased over the years with a number of different
constitutional challenges made against a wide variety of regulations.
1. Establishing the purpose of animal control ordinance and regulations
Challenges to animal ordinances are often based upon the rational relationship of the
ordinance to the police power or the arbitrary and capricious adoption of ordinances. A city
must have some reasonable basis for adopting an ordinance. Animal regulations have been
found to be rationally related if adopted to protect citizens from the danger of uncontrolled or
inherently dangerous animals, prevent nuisances or maintain clean and healthy living
environments among others. When drafting an ordinance to control animals within its
community, a city may address a problem as it sees best. A city is entitled to "a reasonable
opportunity to experiment with solutions to a problem."
2. Clearly drafting the animal control ordinance
An ordinance will be void for vagueness if it is not definite enough for a party to know from
the statute what behavior should be avoided. This is measured by whether a reasonable
person would or would not understand that his conduct is prohibited by the ordinance.
Therefore, the ordinance drafted by the city should provide enough guidance for a judge to
apply the law and for an attorney to defend against it.
In many cases the pet owner recognizes that his/her pet falls into the regulated category of
animals. Then the burden falls on the animal owner or challenging party to demonstrate that
the ordinance is unconstitutionally vague. Because animal control ordinances generally
impose criminal sanctions on animal owners for their violation, courts generally carefully
scrutinize the ordinances. However, the ordinances are generally upheld because simple
dictionary definitions or common use of the term will often resolve any ambiguity presented
by the ordinance. Thus, many owners will not have standing to challenge the constitutionality
of the ordinance for vagueness because, by the plain-meaning, the ordinance clearly applies
to them.
However, such owners may still challenge the ordinance as unconstitutionally vague when it
is overbroad and facially vague as written. A facial attack on the vagueness of a statute
requires a showing that the ordinance is vague in all of its applications not just in some
hypothetical situation. Because an owner could bring such a claim, a municipality should try
to be clear in what it demands from specific owners. For example, if the city enacts an
ordinance requiring an animal to be kept on a leash, the city should be clear as to what
animals this applies to and when.
3. Making distinctions between types of animals in your ordinance while avoiding to single
out a breed or type of animal
In Minnesota, distinctions between types of animals may be made when enacting an
ordinance. However, the ability of a municipality to make certain distinctions is limited by
state statute. Minnesota law prohibits the regulation of dangerous dogs based solely on the
breed of the dog; for example, a municipality may not prohibit the ownership of pit bulls.
Although a municipality may not ban a certain breed of dog, Minnesota does require anyone
who owns a "dangerous dog" to register the pet, keep it in a proper enclosure and muzzle and
properly restrain when it is outside of the enclosure.
As for any other distinctions made in an ordinance, the municipality must have a reasonable
basis for doing so. The municipality, however, has broad discretion in determining
classifications. Thus, it is valid for a municipality to draw a distinction between private
ownership and zoo ownership of wild animals; and, consequently, prohibit the private
ownership of certain animals that the city defines as "wild animals". For example, St. Paul's
ordinance restricting the ownership of rabbits, chinchillas, minks, chickens, turkeys or other
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small animals or birds was found valid because it did not unreasonably restrict the type of pet
one can own nor unfairly exempt certain organizations from the permit regulations.
4. Providing for the owner's due process rights when an animal is captured and in custody
Due process is an essential consideration in ordinances that allow the city or one of its agents
to impound or destroy an animal. The court will balance four factors in determining whether
the due process requirements have been met:
1. what are the private interests that are affected;
2. what is the risk or erroneous deprivation of that interest;
3. what is the probable value, if any, of additional or substitute procedural safeguards; and
4. what are the government's interests in the matter?
Although it will be discussed in greater detail below, a municipality should give notice to an
owner and an opportunity to request a hearing prior to the destruction of an animal.
Specific Provisions in Animal Control Ordinances
1. Limiting the number of animals per household
When a municipality is drafting an ordinance that, for example, limits the number of dogs per
household, the municipality is not required to consider empirical data. Dog owners
challenged the constitutionality of Sauk Rapids' ordinance limiting the number of dogs per
home without a permit to two; and, allowing permits to be obtained for owning more than
two dogs over the age of six months. The dog owners argued that the ordinance was arbitrary
and capricious and not rationally related to the health, safety and general welfare of the
public because it was not passed based upon empirical studies.
The Court held that empirical data is not necessary to support the adoption of such an
ordinance. The existence of alternative methods for resolving the problem or debates as to
what is the best method for resolving the problems will not be a basis for declaring the
ordinance unconstitutional. Choosing some number arbitrarily also will not render the
ordinance unconstitutional as some number must be selected. Similarly, an ordinance
prohibiting the keeping of more than three adult dogs in any residential home in the city's
residential districts was upheld because it was rationally related to controlling problems of
dog noise and odor as it affects health and general welfare.
2. Barking dogs and other noisy animals
Barking dog ordinances are often challenged under the vagueness doctrine. The most
common problem with barking dog statutes, like other nuisance-like or disturbing the peace
type ordinances, is the ordinance usually lacks some objective standard to indicate what is
unacceptable barking or noise. These statutes come to depend on the personal threshold of
3
annoyance of the complaining neighbor or investigating officer. These measures do not
provide adequate notice to citizens of what is allowable and what is not allowable behavior.
For example, the City of Edina had its barking dog ordinance struck down as it was not
adequately defined. The ordinance prohibited the keeping of an animal which "by any noise
disturbs the peace and quiet of any persons in the vicinity." The Court did not find there to be
any well accepted, generally understood meaning of the phrase "disturb the peace and quiet."
The ordinance did not provide any standard to measure annoyance of persons in the vicinity.
The standard was based upon the personal senses of the enforcing officer and from this an
average person of common intelligence would not be able to determine the prohibited
conduct. This type of standard invites arbitrary enforcement of the law by officers.
Therefore, a municipality should provide for some type of measure in their animal control
ordinance that defines at what point an animal becomes a noisy nuisance. For example, many
municipalities have decided that more than five minutes of continuous barking, whining,
howling, etc. is a nuisance and a citation may be issued under their ordinance.
3. Breeding moratorium
Recently, mandatory spay and neuter legislation has begun springing up across the country.
For example, San Mateo County adopted an ordinance mandating the spaying and neutering
of dogs and cats within the unincorporated areas of the county unless the owner had a
breeding license or, in limited circumstances, written certification from a veterinarian
dispensing with spaying or neutering for health reasons. The stated purpose of this type of
ordinance is the reduction of euthanasia of unwanted animals.
Although the stated purpose of the ordinance is commendable, for the following reasons a
municipality should exercise caution before adopting such an ordinance. First, despite the
fact that this type of ordinance has yet to be challenged in court, the validity of such an
ordinance is questionable. Second, a study conducted in San Mateo after the enactment of the
ordinance indicates that the ordinance has not had the desired result. In fact, there was an
initial increase in the number of unwanted pets and a corresponding decrease in the number
of pets adopted. Thus, the ordinance had the effect of actually increasing the number of
animals subjected to euthanasia.
Should a city want to enact a breeding moratorium ordinance, it has been suggested that the
most effective solution would be to direct mandatory spaying and neutering to humane
organizations and shelters which facilitate the adoption of pets. Requiring these organizations
to insist upon spaying or neutering prior to adoption, would substantially eliminate pet over-
population and strays.
4. Dangerous dogs
Minnesota state law prohibits ordinances that prohibit the ownership of a specific breed of
dog; for example, an ordinance that prohibits the ownership of a pit bull. Rather, a
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municipality may declare a particular dog as a dangerous dog based on certain identifiable
characteristics that make that particular dog dangerous.
Whether a dog's particular behavior falls within the applicable classification requires that the
municipality show that an individual dog is dangerous under the criteria set out in the statute.
Specifically, the city must show: the dog has 1) without provocation inflicted substantial
bodily harm on a human being or another domestic animal; or 2) been found potentially
dangerous (inflicts bites without provocation, chases without provocation, or has a known
propensity to attack unprovoked) and the dog subsequently endangers the safety of humans
or domestic animals.
Once a dog has been declared to be a dangerous dog, the owner must register the dog with
the county and meet other statutory requirements. Although it appears under the statute that
the county should take over control of dangerous dogs, a municipality should consider
providing for the control of a dangerous dog under its animal control ordinance. The county
may not have an animal control officer or the municipality may find that it can better control
such animals under its own ordinances. Furthermore, the state legislature recently passed an
act transferring the responsibility of registering dangerous dogs from Dakota County to the
municipalities located in that county. Anoka County just introduced a bill hoping for a
similar result. Thus, there may be a trend in this area to shift responsibility to the
municipalities.
As for potentially dangerous dogs, Minnesota statutes do not impose any limitations on dogs
that fall into this category. A municipality, however, may establish limitations and
restrictions for owners of dogs deemed to be potentially dangerous under the statute.
It has been suggested that a municipality must provide the dog's owner with the opportunity
to reclassify a dog designated as dangerous to non-dangerous after a demonstration of
reform. However, there is no statutory or case law requiring a municipality to reclassify the
dog.
5. Kennels
Minnesota statutes provide for the regulation of kennels. The statutes require the
owner/operator of a kennel to obtain a license for operation from the Board of Animal
Health. A municipality may, however, incorporate the statutory provisions into its animal
control provisions or draft an ordinance that better defines what constitutes a kennel and any
additional restrictions.
The Responsibilities of the Animal Owner
1. Obtaining a licence
Many ordinances provide that an individual cannot own an animal that has not received
proper vaccinations. In order to have this type of provision the City must require proof of
vaccination. Ordinances that require animal owners to "check the box" as to whether or not
5
their animal has been vaccinated have been challenged as violating a person's right against
self-incrimination. Therefore, it is better to merely require a certificate from a veterinarian
that the animal had been vaccinated.
2. Humane care
Minnesota Statute, chapter 343, prevents cruelty to animals. Cities may have similar
provisions. However, those provisions should be very specific, e.g., requiring that animals be
given proper food, water and shelter. Otherwise they may challenged for being too vague and
thus violating a person's due process rights. Rather than drafting its own provisions a City
may incorporate state law into its ordinance.
In making the determination that an animal is being treated cruelly, the City must take into
consideration the breed of animal in question. Otherwise, an owner may challenge a citation
for animal cruelty on the basis that the ordinance was applied to him or her arbitrarily. For
example, certain breeds of dogs do not require an enclosed shelter while outside; even though
it may be a typical Minnesota winter and 30 degrees below outside. Thus, it would be
inappropriate for the City to issue a citation for animal cruelty on the basis that the owner
failed to comply with the ordinance by failing to have an enclosed shelter.
What are the Implications of Capture and Custody of an Animal
1. Seizure of animals
. Authority to enter the animal owner's premises
In order to enforce its animal control ordinances, enforcement officers may need to enter
onto the premises of an animal owner for inspection purposes. Generally, a search
warrant is required to enter upon a person's premises, inspect it, and seize any property.
Therefore, an enforcement officer should first request consent to enter the premises from
the property owners; or, failing that, seek a warrant prior to inspecting a premises for
possible animal code violations.
However, it may be possible overcome the need for a search warrant by the use of an
implied consent provision in the municipality's animal ordinance. The provision
authorizes warrantless searches of an animal owner's property based upon the idea that a
person who owns an animal has impliedly given permission to the City to enter the
premises in order to control or inspect the animal. This, however, has been challenged in
other states and struck down as violation ofa person's constitutional rights.
. Animals at large
An animal roaming about, unattended is considered to be a public nuisance. The
municipality has a duty to capture the animal running at large so as to prevent injury to
the public. Therefore, most municipalities have enacted "leash laws."These ordinances
6
farm animals), the foregoing generally applies. However, Minnesota statutes have
modified the care requirements for these types of animals.
· Records
A municipality that has custody of animal has a duty to maintain and make available to
the public certain records for at least six months after the capture of the animal. Those
records must include the following: the description of the animal by species, breed, sex,
approximate age, and other distinguishing traits; the location at which the animal was
captured; the date of capture; the name and address of the owner; and the name and
address of the person who adopts or takes ownership of any animal over which the
municipality has custody. If the owner of the captured animal is unknown, the city must
post a notice containing a description ofthe dog for ten days as well as the date of the
hearing on which the disposition of the animal will be considered.
3. Animal disposition
A municipality, generally has the authority to dispose of an animal within its custody.
Several statutes address the amount of time a municipality must hold an animal before
disposing of it whether by sale, adoption, or destruction. The times varies depending on
the reason for the capture or the classification of the animal; so that, the standard stray
animal may be destroyed if the animal is not claimed within five days, a dangerous dog
within seven days, and a cruelly~treated animal within ten days.
Prior to disposal of the animal, however, the municipality should: 1) wait at least ten
days; and 2) give notice and an opportunity to be heard to the owner. Although many
municipalities do not wish to keep animals this length of time because of costs, for ease
and simplicity ten days meets all statutory requirements and has been upheld by a court
as a sufficient amount oftime. Furthermore, the municipality, under its ordinance, may
simply assess the fees for maintenance ofthe dog over the ten day period back to the
owner.
If the owner fails to reclaim the animal, the municipality must transfer the animal to any
licensed institution that has requested the animal; unless, the animal wears a tag that
specifically states that it may not be used for animal research. Otherwise, if the owner
still fails to reclaim the animal and: 1) no licensed institution has requested the dog; or 2)
the city was unable to transfer animal because it bore a no research tag; then the
municipality may elect to destroy the animal.
However, there is little private interest in harboring dangerous or potentially dangerous
animals. Moreover, the general public has a significant interest in the prevention of
dangerous or potentially dangerous animals roaming the streets. The government entity
will have a substantial interest in controlling animals to satisfy its obligations to the
public. Thus, while due process is a concern prior to killing a pet, summary destruction of
a pet is justified and constitutional in some cases.
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require animals to be kept under the control of the owner by use of a leash or some other
restrictive device when outdoors.
2. Care for animal once captured
Once a municipality has captured an animal, Minnesota statutes impose certain duties upon
the municipality for the care of the animal. The following discusses the required care of
captured cats and dogs.
. Transport
Minnesota statute specifies the method and manner in which an animal must be
transported. The container in which the animal is placed must meet the following
requirements: constructed of nonabrasive wire or a smooth, durable material, provide
protection to the animal, adequately ventilated, provide enough space for the animal to
turn around, kept clean.
. Confinement
Shelter
Statutes also provide guidelines for the type of shelter in which the animal is confined.
Generally, the confinement area must provide sufficient space to allow the animal to turn
about freely, stand, sit, and lie in a normal position. Animals may be kept together, but
they must be compatible and there must be sufficient space for each one. Thus, the statute
provides a formula for ascertaining the minimum floor space required given the animal.
In addition, the general conditions of the confinement area must be sanitary- in other
words clean and in good repair. There should be reasonable ventilation, drainage,
temperature, and lighting. If the confinement area is outside, a shaded area must be
provided during the summer months (May to October).
Food and water
The animal must be provided with enough food and water and of a reasonable quality so
as to allow for the normal growth (non-adult/not fully grown animal) or maintenance of
the animal's body weight.
Exercise
Any confined animal must be periodically exercised.
Confinement of animals other than a cat or dog
If the municipality seizes and confines a pet bird, rodent, or other animal (not including
7
When an animal presents an immediate danger to the safety and health of the public, no
notice or hearing will be required prior to destruction. The circumstances must be such as to
create a reasonable beliefthat such killing is necessary to prevent injury to persons or
property and the probability of present or future depredations while giving reasonable regard
to the value of the animal to be destroyed. For example, summary destruction is permissible
where it necessary to prevent the spread of an animal epidemic for the immediate protection
ofthe public. On the other hand, the mere fact that a dog may be chasing another's livestQck
or pets, however, is not enough to justify killing the dog. Rather, there must be a reasonable
belief that the killing was necessary for the protection of the livestock or pets.
Challenges to Ordinances
1. Invalid ordinances
Any ordinance found unconstitutional will be struck down. But this is not the only remedy
sought by those who challenge pet regulations. If an ordinance is struck down for being
unconstitutional, it is likely that the plaintiffs attorney will seek attorney's fees as provided
for by federal statute, 42 D.S.C. 91983. While the actual damages for such a lawsuit may be
minimal, the award of plaintiff's attorney fees could make the lawsuit a very expensive one
for the City.
The Minnesota Council of Dog Clubs recently claimed damages under section 1983 of the
United States Code. To receive section 1983 damages, plaintiffs must show: 1) they were
deprived of a federal right; and 2) that the person depriving them acted under the color of
state law. Generally, section 1983 damages are to be awarded in cases of egregious conduct
by municipal employees acting with apparent authority. Cases in which a municipality
sought to enforce a ordinance later found to be unconstitutional does not present the type of
egregious conduct that Section 1983 damages are designed to discourage. As a result, the
Minnesota Council of Dog Clubs did not receive Section 1983 damages; even though it had
been successful in having several provisions of the Cruelty to Animals Act struck down.
2. Improper search and seizure
In cases where enforcement officers entered on a person's property in order to inspect or
capture an animal without a warrant, the animal control owner may request section 1983
damages. Again, because it may be possible for an animal owner to obtain attorney's fees
(making the suit very expensive) if an enforcement officer conducts a warrantless search of
the owner's premises, the enforcement officer should seek a warrant prior to entering onto an
animal owner's premises.
3. Injury or death of animal
The failure to: 1) provide humane care to a seized animal; 2) maintain adequate records; or 3)
wait and provide notice and the opportunity for a hearing before the disposition of an animal
may be punishable as misdemeanor. A pet owner may also file a civil law tort action against
the City if the City has harmed or killed the pet. Damages for negligence claims regarding
9
injuries or death to an animal are limited to the fair market value of the property. Thus, in
theory at least, the potential recovery by a pet owner is minimal.
However, pet owners, who view their pet as a family member often seek damages beyond
fair market value. Damages have been sought under U.S.C. ~1983; including punitive
damages and money damages for pain, suffering or emotional distress. Other states have
allowed the pet owner to recover on these types of claims, recognizing that the pet owner
held a special relationship with hislher pet. In Minnesota, however, it is questionable whether
a pet owner would be entitled to such remedies. While modem courts recognize the special
role pets have within the family unit, pets are nonetheless property and fair market value
continues to be the limit on damages.
Even if the court were to recognize such damages, it is generally difficult to succeed with a
negligent or intentional infliction of emotional distress claim. To be successful the plaintiff
must show:
. the conduct was extreme and outrageous;
. the conduct was intentional or reckless;
. the conduct caused emotional distress; and
. the distress was severe.
The emotional distress suffered must have physical manifestations in addition to being
severe. Therefore, emotional distress felt by one who has lost a pet would probably not rise to
the level of severity required by case law.
Ellen Longfellow 9/01
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