Brief Summary of Ordinances for Pet Number Restrictions
Cynthia Hodges, J.D., LL.M., M.A. (2010)
Photo courtesy of Photos8.com
Cities and towns may enact laws that restrict the number and types of animals a person may own. This is done to protect property owners from nuisances (unlawful interference with the use and enjoyment of a person’s land), such as unpleasant odors and noise made by animals. Pet owners feel that such restrictions impact their property rights, as pets are considered personal property by law. Pet owners also argue that limiting the number of pets does not necessarily decrease any nuisance to other residents. Ordinances that state a certain number of animals are a nuisance must show that a nuisance actually exists, or they may be struck down.
Laws that limit the number of pets one may own will generally be upheld if they are rationally related to furthering the goals of protecting the public health, safety, and welfare. In contrast, laws that restrict ownership based on specific characteristics of pets, such as weight, may not be upheld because weight may change.
Ordinances that impose criminal penalties for violations are interpreted by courts in favor of pet owners. In addition, pet owners may be able to use zoning laws as a defense against prosecution. For example, if the pet owner can show that he owned a certain number or type of animals before the pet ownership law was enacted, then his situation could be considered a prior non-conforming use. However, once an ordinance is enacted that changes a once lawful activity into an unlawful nuisance, the prior lawful use must stop, or the pet owner may be charged with a violation.
Some cities and towns have attempted to address pet nuisance issues by limiting the number of pets a person can own, usually to 3 or 4 animals. While these ordinances are sometimes challenged by pet owners, courts usually uphold the laws as reasonable.
Frequently Asked Questions on Dog Issues
Rebecca F. Wisch (2004)
The following questions represent some frequently asked questions dog owners may encounter. Remember that dog laws not only vary state to state, but also city to city. These answers are not meant to provide legal advice, but rather to provide a starting point to research an issue in your own jurisdiction.
Can a dog control officer enter my house without permission to take my dog?
Generally, any law enforcement officer must have a warrant to enter your home unless there are “exigent circumstances” involved. Exigent circumstances, or those conditions that necessitate immediate action by law enforcement officials, do not apply to minor infractions, such as violation of a leash law or licensing ordinance. Further, several states have adopted statutes that exempt local dog control laws as exigent circumstances for purposes of warrantless entry into homes. For more on this topic, see Detailed Discussion of Dog Impound Laws.
My dog escaped and was impounded. How long do I have to retrieve him
The time a municipality has to hold a dog may be governed by local ordinance or state statute. Again, this varies from state to state, town to town, but usually the length of time is anywhere from five (5) to seven (7) days. In some states, the time period may be shorter. Note that in many states the clock does not begin to run until notice is given to the owner of a licensed dog. In many cases, unlicensed dogs are considered “loose” or “at large” and may be subject to immediate impoundment or sometimes immediate destruction. The best situation is to have your dog wear a collar with appropriate license tags. If your dog escapes, be sure to check local animal control facilities immediately to put them on notice that you will retrieve your dog as soon as possible. For more on this specific topic, see Detailed Discussion of Dog Impound Laws .
Dog control officers killed my dog even though she wasn’t violating any laws. What recourse do I have?
There are two approaches that have been used when suing officers who have unlawfully killed dogs. The first approach is to sue the officer for a violation of due process under law. The second approach involves a claim of an unauthorized “taking” of property (a dog, since dogs are viewed as property under all states’ legal system). Both of these suits occur as part of a civil right suit under § 1983 of the United States Code. These lawsuits charge a deprivation of right while an individual was acting under “color of law.” Essentially, this means an officer denied someone a constitutionally guaranteed right while carrying out his or her job. Nearly all federal courts have rejected claims based on due process violations. However, some are willing to consider unauthorized taking claims based on the misconduct of an officer in killing a dog. The problem is that a person bringing the suit must overcome an officer’s immunity; that is, the protection a person who works for the government has against lawsuits when carrying out his or her duties. In general, it is difficult for a dog owner to prevail in these suits unless the officer’s action were clearly outside the bounds of his or her job, or the action was egregious in nature. A person may also sue a person in state court for damages in the loss of a pet. Again, however, damages are limited to the market value of a pet (usually a low monetary value). For further discussion on police shooting pets, click here .
What happens if my dog gets loose?
The answer to this question depends on whether your dog has a collar and is licensed. In some states, a loose and unlicensed dog may be subject to immediate destruction. Most of the time your dog will be impounded immediately if not wearing a licensed. A few states put a burden on the animal control officer to take reasonable steps to find the owner of a licensed dog. Generally, a loose dog will be impounded and notice will be sent to the owner if the owner can be determined. For more on loose dogs, click here .
I can no longer care for my dog and fear I must take him to the dog pound. What will happen to him?
A dog who is voluntarily surrendered to a dog pound faces the fate of all dogs taken to the pound. If not sold or adopted, a dog will generally be humanely euthanized after a short period of time. Keep in mind that many states have provisions that provide for the donation or selling of pets to scientific research facilities. A state may allow the owner of a voluntarily impounded pet to prevent his or her pet from being sold for research. Short of adoption, the alternative is generally euthanization. For more on impoundment, click here .
A loose dog is chasing my horses and sheep. What can I do?
Many states provide that dogs who chase livestock or even big game face destruction or impoundment. Your state may have procedures in place where you can file a formal complaint against the owner of a dog who chases your livestock. You can also call an animal control officer who may take immediate measures if the dog is still in pursuit of livestock. Ironically, animals found to be chasing livestock or big game in certain states face much harsher and immediate penalties than those found to be chasing people. For more on dogs chasing livestock, click here .
What happens if I don’t pay my dog license fee?
Dog license fee are generally set by the locality where the dog resides. States give these municipalities great latitude in setting fees and dog taxes. In some states, failure to pay license fees not only prevents the issuing of a license, but may also make the dog subject to impoundment. The best course of action is to talk to local licensing authorities to see if an arrangement can be made for gradual or partial payment. For more on dog licensing in state dog laws, click here .
Can I let my dog run loose?
The answer to this may depend on whether the locality you live in has adopted an ordinance that strictly prohibits dogs at large. Some states allow localities to adopt measures by a ballot initiative (a proposal on the ballot that voters must pass to become effective). Other states prohibit any loose dogs by state statute. The determining factor whether a dog is considered “loose” may be whether it is in the immediate presence of its owner or whether it has on a collar with dog tags. In any event, a dog running at will should be collared and licensed and within the owner’s presence to prevent impoundment or injury to others. For more on leash laws, click here.
The laws in my city seem to conflict with the state laws on regarding my dog. Which laws do I follow?
The question implicates the issue of preemption: whether a lower local law is “trumped” by a higher state law. If the two laws do not conflict, there is not a problem and both laws must be followed. If, however, the lower law tries to regulate something the higher state law already regulates, then the lower law has been preempted. State laws usually give great deference or authority to local units to regulate dogs. But laws that deal with complex and far-reaching issues such as rabies quarantines and dangerous dogs may be exclusively up to the state to regulate. The local government may be able to help you sort out the conflict in laws. If following the lower law has led to further problems for you or if you feel following the local law may contradict the state law, consult an attorney. An argument of preemption may help to invalidate a local law that stretches the municipality’s authority to regulate. For more on preemption and the intersection of state and local dog laws, click here.
What types of things can a local government regulate with respect to dogs?
A local government is given broad authority to regulate dogs. This stems from the state’s “police power” or the power to regulate those things affecting the health, safety, and welfare of its citizens. The state then expressly or impliedly gives this authority to local governments to regulate things affecting dogs and other animals. Local municipalities are generally in a better position than the state to determine what specific dog laws are needed. Remember this power is broad and often swift – such measures will almost always be upheld in court if challenged. These actions do have to meet constitutional standards especially if notice to the owner is required before an action is taken against a dog. For more on police powers of local and state governments, click here .