Website Update and New Blog

Website Update and New Blog


January 8, 2011


By Julie Kay Smithson, AWM (Always Wiggles' Mommy) aka LookingOut4Them


It's a new year and past time to catch readers up on events. This website has languished for ten months, waiting on the person whose idea it was to start the site, to supply it with updated information. Numerous requests for this information have been met with delays, excuses, etc. Bottom line: I already work eighty hours a week and cannot put any more of myself into keeping this web log aka blog updated and current/correct in its information.

Ohio is in the throes of a major change in its dog wardens. More than fifteen percent of the dog wardens on the contact list are no longer in their jobs due to retirement, job restructuring or termination.

So, I will occasionally post helpful, articles, information, etc., but will not be keeping the dog warden contact list information updated. Thank you for understanding.

On a new note, my own beloved dog, Wiggles Blue Heeler -- who shared his life and love with me unconditionally for over twelve years and who loved the whole world and everyone in it -- shed his earthly trappings on Sunday morning, December 5th, 2010.

A celebration of Wiggles' life was held on December 11th, 2010. We had two half-sheet cakes, each with a photo, lots of photos, blank notecards with a photo for folks to write remembrances in, and kisses. Wiggles stock-in-trade was kisses -- one of his nicknames was Many Kisses -- and this was the year Hershey made individually-boxed, 1 1/2-ounce kisses. There was a kiss for each of Wiggles' friends, his last gift to them. I highly recommend a celebration of life for others whose beloved pets are known to a number of folks. Just be sure to bring a few boxes of Kleenex to set on the tables!

For those of you that knew Wiggles, you know that he will live forever in our hearts. He was a miracle worker and I was always certain that he was a gift on loan from God. I am thankful beyond words for every moment of every day, week, month and year that Wiggles graced my life with his physical presence, and am grieving much, but trying to use Wiggles' ever-positive outlook to help heal.

Please visit this new blog, Wiggles Blue Heeler, at: http://WigglesBlueHeeler.blogspot.com enjoy it, take the poll (right side), and share with everyone you know that loves animals and appreciates unconditional love. It is my prayer that not only me, but also others, will be helped by it.

I'm also working on Wiggles' book, which will hopefully be completed by July 19 (his birthday).

Have you a remembrance of Wiggles Blue Heeler that you'd like to share? Please comment on this article to share with me.

Puppy's story stresses need for responsible pet ownership

Puppy's story stresses need for responsible pet ownership


“People portray Animal Control as being the bad guys, but in reality the bad guys are irresponsible pet owners.”


"The U.S. Humane Society discourages people from giving pets as gifts this Christmas, because the recipient may not be ready for the commitment. The Humane Society encourages adoption from a local animal shelter, where the recipient can be involved in the selection process."


December 16, 2009


By Jay Jones jay.jones@rockdalecitizen.com or 770-483-7108 Ext. 249



The Rockdale Citizen

969 South Main Street

Conyers, Georgia 30012

770-483-7108 (Editorial: Ext 226 or 252)

Fax: 770-483-5797

http://www.rockdalecitizen.com and http://www.rockdalecitizen.com/contact and http://www.rockdalecitizen.com/editorialcontacts

To submit a Letter to the Editor: letters@rockdalecitizen.com (400-word limit) or http://www.rockdalecitizen.com/editorialforms/misc/63775667.html (website form) or alice.queen@rockdalecitizen.com or julie.wells@rockdalecitizen.com


Conyers, Georgia - In biblical origins, “Gabriel” was an archangel known as the messenger of God, and that seemed to fit a little stray puppy being nursed by Lori Todd.

“He really is a miracle puppy, and it was a blessing that he survived,” said Todd, who is a teacher at Young Americans Christian School.

Gabriel, along with two siblings, was found when just a few days old by Rockdale Animal Care and Control. The puppies were stuck under a tool shed on wooded property in north Rockdale County.

Gabriel’s siblings did not survive, and there was not much chance of Gabriel making it, either, without his mother or finding someone who would bottle feed him.

Animal Control Shelter Manager Ciji Baker contacted Todd, who is a co-founder Hometown Animal Rescue Inc., a local rescue organization.

Todd said the puppy had not yet opened his eyes when she took him in. She did around-the-clock feedings in the beginning and took the puppy to school to make sure he was well fed.

Her students took to the little puppy and named him Gabriel Susej. “The last name is Jesus spelled backward, because dog is God spelled backward,” Todd explained.

Gabriel is now 4 weeks old and full of energy, just like any other puppy.

And as the Gabriel in the Bible was God’s messenger, Todd said the little puppy also has a message to tell.

“I hope his story helps to educate people to think before they get a pet and about the obligation that is involved,” she said.

Gabriel’s mother is a stray dog that the property owner discovered several years ago, but never could capture her to bring her to Animal Control.

“It turned into a nightmare of having puppies, and the ones he was able to catch, he would get rid of, but he could never get all of them at once,” Baker said. “So the female would get older, get pregnant and have another litter.”

Gabriel’s mother remains elusive, as Animal Control officers and the property owner are still attempting to capture her, Baker said.

Todd said her fear is that pets will be given as gifts this Christmas without much consideration of the responsibility of pet ownership. Consequently, the pets will either be abandoned or dropped off at Animal Control.

“Within the week after Christmas, Ciji is going to get tons [of them] back in the shelter. Then about the June time frame, people will have a 6-month-old puppy that nobody has taken the time to train, and those will show up in the pound, too,” Todd said.

“People portray Animal Control as being the bad guys, but in reality the bad guys are irresponsible pet owners.”

The U.S. Humane Society discourages people from giving pets as gifts this Christmas, because the recipient may not be ready for the commitment. The Humane Society encourages adoption from a local animal shelter, where the recipient can be involved in the selection process.

Both Animal Control shelters in Rockdale and Newton counties offer pet adoption.

Rockdale County lists animals available on its Web page at http://www.rockdalecounty.org under the Emergency Services Department section.

Information on pet adoptions at Newton County [Georgia] Animal Control can be found at http://www.co.newton.ga.us or by calling the shelter at 770-786-9514.


Copyright 2009, The Rockdale Citizen.


http://www.rockdalecitizen.com/news/headlines/79463782.html

Traveling by plane with dogs or cats

Traveling by plane with dogs or cats: Southwest Airlines Travel Policies - Animals and Pets


(Important Note: This posting at Tips2UsSaveThem is not to be construed as an advertisement or testimonial for Southwest Airlines. It is posted in order to help readers learn "what is out there" in the way of information regarding airline travel with pets.)


"P.A.W.S. - Pets Are Welcome on Southwest"


http://www.southwest.com/travel_center/animals.html


Pet Policy

For a list of key topics please visit our Frequently Asked Questions for Pets!

[Note: One of the Questions / Answers: Does Southwest Airlines accept pet crates/strollers as checked baggage? Answer: Customers traveling with a pet will be allowed to check a pet stroller/crate without charge (this is in addition to the regular free baggage allowance).]

http://www.southwest.com/travel_center/animals_faq.html


Official Southwest pet carriers now on sale. Get one for your furry friend today!

http://www.southwest.com/travel_center/animals.html#petCarrier


General information on traveling with pets:

Southwest Airlines accepts small vaccinated domestic cats and dogs.

All in-cabin pets must be carried in an appropriate carrier, as indicated below and are subject to a $75 Pet Fare each way per pet carrier.

The pet carrier counts as the Customer’s carry-on bag.

Reservations for small cats or dogs can only be booked by calling Southwest Airlines at 1-800-I-FLY-SWA (1-800-435-9792).

Pets will be accepted on a first-come, first-served basis until capacity is reached.

The Pet Fare must be collected at the ticket counter and is nonrefundable and may not be applied toward future-date travel if unused.

Customers traveling with a cat or dog must check in pet at the airport ticket counter and pay the Pet Fare before going to the departure gate.

Customers can still secure their boarding pass online, at curbside check-in, the airport kiosk, or the ticket counter.

We maintain the right to refuse acceptance of a cat or dog exhibiting aggressive behavior or any other characteristics that appear incompatible with air travel.


The following guidelines apply to Customers bringing a cat or dog:


Southwest Airlines does not accept pets (cats or dogs) traveling without a Customer.

Pets are not permitted to travel with Unaccompanied Minors.

Please note: These requirements do not apply to assistance animals or emotional support animals accompanying a person with a disability.

For more information about assistance animals or emotional support animals, please visit http://www.southwest.com/travel_center/disability.html

All pet carriers are subject to being searched by the Transportation Security Administration, other airport security authorities, as well as searches by Airline personnel.

Note: When passing through security, Customers will be asked to hold the pet and walk through the screening device while the carrier is x-rayed.

In-cabin Pet Kennels:

Southwest Pet Carriers for Sale: Available for purchase at all Southwest airports, or online through our Freedom Shop: http://www.swafreedomshop.com/

Soft-sided and hard-sided carriers specifically designed as pet carriers are acceptable. The carriers must be leak-proof and well ventilated. The pet carrier must be small enough to fit under the seat in front of the Customer and be stowed in accordance with Federal Aviation Administration regulations.

Southwest Airlines allows only one pet carrier per ticketed Customer.

The carrier may contain two (2) cats or dogs and must be of the same species per carrier.

The cat or dog must be completely inside the pet carrier and be able to stand up and move around the carrier with ease.

Pets must be secured in the pet carrier at all times while in the gate area, during boarding / deplaning and they must remain in the carrier for the entire duration of the flight. Failure to follow this requirement may result in denial of transportation of the pet onboard Southwest Airlines.


The under-seat dimensions are as follows:

Window Seat: 19"L x 14"W x 8.25"H

Middle Seat: 19"L x 19"W x 8.25"H

Aisle Seat: 19"L x 14"W x 8.25"H


However, please keep in mind that some seats might be slightly smaller in width.

In-cabin Pet Restrictions:

Customers traveling with a pet may not occupy an Exit Seat or a seat with no forward under-seat stowage.

Southwest Airlines will only carry pets in the cabin; pet carriers are not permitted as checked baggage.

Advanced pet arrangements must be made by calling Southwest Airlines Customer Support and Services at 1-800-I-FLY-SWA (1-800-435-9792).

There will be no more than five (5) scheduled pet carriers per scheduled flight. However, from time to time, circumstances may allow for more (or fewer) than five (5) pet carriers per scheduled flight.

Cats and dogs must be at least eight (8) weeks old for travel.

The animals must be harmless, inoffensive, odorless, and require no attention during flight.

Cats and dogs must remain in the carrier (including head and tail) and the carrier must be stowed under the seat in front of the Customer (Owner) during the entire duration of the flight.

Southwest Airlines will not be responsible if a Customer misses a flight due to the need to take the cat or dog to an outside relief area. Flight departures will not be delayed or held in order for connecting Customers to take a pet to an animal relief area.

If the pet becomes ill during the flight, oxygen or other first aid procedures will not be administered.

In the event of an emergency, an oxygen mask may not be available for the cat or dog.

Southwest Airlines assumes no liability for the health or wellbeing of carry-on pets.

Southwest Airlines will not accept pet remains in the cabin of the aircraft.


http://www.southwest.com/travel_center/animals.html

the dog - poem

the dog



they promised me they'd take care of everything

feed her & care for her I said I didn't want one

as though we ever know what it is we want

in two years they were gone

& I had Simba all alone though really Simba had me

on the end of a leash almost every afternoon or evening

in a right-hand tug-of-war with the untamed feminine

more than once even knocked down

& in my left sometimes at night the jiggledy hodge-podge

curiosity of a hand-held light purposefully searching

for a way into darkness at the gravel edge of the world

the wind scowling stars blotted out

in the black hole heart of an incoming storm

walking the dog that's when I too grip

how strong's the bond between fetch & toss

bark & song


- art goodtimes, san miguel county, colorado

gourds@paleohippie.com

Cold Weather Tips for Pet Owners


It's that time of year again when water bowls left outside can fill with autumn leaves or freeze. Doghouses need "winterizing," cleaning and replacing bedding to stave off the chill of autumn and winter. Doghouses should be up off the ground with at least a pallet/skid between the floor of the doghouse and the cold/damp/frozen ground.


Everyone wants a warm place to sleep in wintertime, a place that's cozy, comfy and not drafty


Shorthaired dogs may need extra calories if they spend much time outdoors, because they do not have the thick winter coats of Siberian huskies or Alaskan Malamutes.


Water should be clean, available and in liquid form


Water bowls, unless heated, need to be monitored regularly. When temperatures dip below freezing -- and when they stay that way more often than not -- your outside pets need water that is not rimmed with ice or frozen solid. Eating snow lowers your pet's core temperature. Yes, animals with hair can and do freeze to death.

When snow and ice become a factor, check things like doggie paws (for ice and/or snow that can pack in between the pads and make your dog sore and/or lame). Older and/or less active dogs should receive correspondingly more warm bedding and "care checks."

For those with outside cats -- even though some cats tend to be more self-sufficient than most dogs -- kittens and elderly cats need more groceries and a supply of non-frozen water. A place 'out of the weather' that's kept just for them -- a box with nice, warm bedding -- is appreciated.


Care Checks


For those great-hearted folks that check on and care for homeless dogs and/or cats, a huge thank you! This is the time of year when unplanned, unwanted litters of puppies and kittens suffer most from the elements -- and why spaying/neutering is a lifesaver. Eartips can get frostbitten; a minor summer cold can spell death in the winter months.

Help make this winter an enjoyable, healthy one for the dogs and cats that look to you for their needs!

The Louisville Kennel Club, Inc., et al v. Louisville/Jefferson County Metro Government

The Louisville Kennel Club, Inc., et al v. Louisville/Jefferson County Metro Government

(Note: A careful read will prove that this is a property rights issue, through and through. It's all in the definitions ... This one is well worth your time!)

Filed October 2, 2009

http://www.akc.org/pdfs/canine_legislation/LKC_Metro_Govt_100509.pdf (26 pages; 1.08 MB)

Page 1

Case 3:07-cv-00230-CRS-JDM, Document 58

United States District Court, Western District of Kentucky at Louisville

The Louisville Kennel Club, Inc., et al, Plaintiff v. Louisville/Jefferson County Metro Government, Defendants

Civil Action No. 3:07-CV-230-S

Order

For the reasons stated in the Memorandum Opinion entered this date, it is hereby ordered and adjudged:

1. Section 91.022 of the Louisville/Jefferson County Metro Government Code of Ordinances is declared unconstitutional insofar as it requires owners of unaltered dogs to obtain written approval of their enclosures. Plaintiffs' motion for summary judgment (DN 20) is GRANTED in this respect, and Metro's motion for summary judgment (DN 27) is DENIED to the same extent. Metro is hereby enjoined from enforcing § 91.022's written approval requirement.

2. Section 91.101 of the Louisville/Jefferson County Metro Government Code of Ordinances is declared unconstitutional insofar as it threatens to deprive pet owners of their property rights without a finding of guilt. Plaintiff's motion for summary judgment (DN 20) is GRANTED in this respect, and Metro's motion for summary judgment (DN 27) is DENIED to the same extent. Metro is hereby enjoined from enforcing § 91.101 in the manner just described.

3. Plaintiff's Fourth Amendment claims regarding §§ 91.073(D), 91.094(A), and 91.101(A) are hereby DISMISSED for lack of subject-matter jurisdiction. The Court is without authority to rule on the parties' motions for summary judgment as regards those claims.

4. With respect to all other claims presented in this case, Metro's motion for summary judgment (DN27) is GRANTED, and plaintiff's motion for summary judgment (DN20) is DENIED.

October 1, 2009

Charles R. Simpson III, Judge, United States District Court

Page 2

Memorandum Opinion

This matter is before the Court on cross-motions for summary judgment. Plaintiffs (several pet-owners' groups, pet-related businesses, veterinarians, and individual pet owners) seek to overturn an amendment1 to Chapter 91 of the Louisville/Jefferson County Metro Government Code of Ordinances on numerous grounds. They argue that various sections of the Amended Code violate the federal Constitution and Kentucky law. Because of the pervasiveness of the alleged defects, Plaintiffs seek declaratory and injunctive relief voiding the ordinance in toto. Defendant, the Louisville/Jefferson County Metro Government ("Metro"), of course, disputes these allegations.

The parties (and the Court) agree that the case is ripe for summary judgment. There are no disputed facts; the only question is which side is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

Plaintiff's objections to the ordinance in question may be grouped under five headings. First, plaintiffs argue that several sections of the ordinance are unconstitutionally vague. Others, they say, lack a rational relationship to a legitimate legislative purpose and therefore violate the Equal Protection Clause and the "substantive" component of the Due Process Clause. One provision allegedly requires forfeiture of certain pets without adequate "procedural" Due Process. A fourth set of provisions, it is argued, authorize illegal warrantless searches and seizures of pet owners' homes and property. Finally, plaintiffs argue that various sections of this local ordinance stand in conflict with state law. The Court will address plaintiffs' arguments in turn.

1 - Ordinance No. 290, Series 2007, "An Ordinance Amending Chapter 91 of the Louisville/Jefferson County Metro Government Code of Ordinances ("Code") Pertaining to Unaltered Dogs, the Waiver of Metro Animal Service Fees Due to Financial Hardship, and the Quarantine of Animals (Amended by Substitution)." The Court will refer to this legislation as "the ordinance."

I. Vagueness

A. Legal Standard

The "vagueness" doctrine stems from the Due Process Clauses of the Fifth and (here) Fourteenth Amendments. A vague law offends constitutional norms in that it fails both "(1) to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct, and (2) to establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner." Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 556 (6th Cir. 1999) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). These standards are not to be "mechanistically applied," Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 498 (1982), and the Sixth Circuit has concluded that it is the "second prong -- providing minimal guidelines to govern the conduct of law enforcement -- (that) constitutes the more important aspect of the vagueness doctrine. Belle Maer Harbor, 170 F.3d at 556-57 (citing Smith v. Goguen, 415 U.S. 566 (1974)).

The rejection of "mechanistic" application of the terms of the vagueness standard means that "[t]he degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depends in part on the nature of the enactment." Hoffman Estates, 455 U.S. at 498. A criminal statute or one that threatens constitutionally protected rights (particularly the First Amendment right to freedom of speech) is subject to more stringent review than an

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economic regulation or an enactment enforced only by civil sanctions. Specifically, "an enactment imposing criminal sanction or reaching a substantial amount of constitutionally protected conduct may withstand facial constitutional scrutiny only if it incorporates a high level of definiteness." Belle Maer Harbor, 170 F.3d at 557 (citing Hoffman Estates, 455 U.S. at 494). The ordinance at issue imposes both civil and criminal penalties;2 a higher degree of clarity is therefore required if it is to be upheld.

Counterbalancing this demand for heightened clarity is the fact that the plaintiffs have raised a facial vagueness challenge to the ordinance. They have alleged no facts regarding the ordinance's enforcement; none of the plaintiffs has a specific "dog in this fight." Moreover, the ordinance does not reach constitutionally protected conduct such as speech. Consequently, to show that a section of the ordinance is unconstitutional, they "must demonstrate that the law is impermissibly vague in all of its applications." Hoffman Estates, 455 U.S. at 497. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987).

B. Application

Plaintiffs allege that the following provisions of the ordinance are unconstitutionally vague: its definitions of "dangerous dog" and "potentially dangerous dog," and the exemptions from these definitions; its requirement of "proper" enclosures for unaltered dogs (that is, dogs that have not been spayed or neutered); its definitions of "nuisance," "attack," "restraint," and "cruelty"; its impoundment provision; and its tethering requirements.

2 - See Louisville/Jefferson County Code of Ordinances § 91.999 (2007).

Page 4

1. "Dangerous" and "Potentially Dangerous" Dogs

(a) Section 91.001 of the ordinance defines as "dangerous" any dog that, inter alia, "maims or kills domestic pets or livestock when not under restraint."3 Plaintiffs argue that "[a]ny dog will 'maim or kill' any number of [domestic pets] -- rabbit, mouse, rat, etc. -- if presented with the opportunity." (Pl.'s Br. 20.) Consequently, they argue, every dog in the city falls under the statutory definition of "dangerous." On their view, this is problematic, because the ordinance's breadth necessarily gives enforcement officers undue discretion in how it is enforced.

As noted above, however, the plaintiffs have the burden of showing that there is no case in which the application of the ordinance is clear. There are some animals that plainly fall within the statutory definition -- one might think of an aggressive wolf-dog hybrid. Others -- a lame, aging, well-trained lapdog, perhaps -- obviously lack the propensity (or physical capability) to chase and kill small pets. Moreover, the wording of the ordinance (active, present-tense verbs) indicate that a past history of attacking pets or livestock, or a known propensity to do so, is required for a finding of dangerousness. Because there are at least some applications of the ordinance that are clear, plaintiffs' facial challenge to the ordinance's "maim or kill" definition fails.

(b) The ordinance alternatively defines "dangerous dog" as "[a]ny dog which is declared by the Director [of Metro Animal Services] to be a dangerous dog under the procedures set forth in this chapter."4 Plaintiffs place significant emphasis on their assertion that the referenced sections do not further define "dangerous dog." In their view, this renders the definition hopelessly circular, leaving it completely up to the unfettered discretion of a government agent. In support, they cite a superficially similar case, Folkers v. City of Waterloo, 2007 U.S. Dist. LEXIS 76101 (D. Iowa 2007). In Folkers, the statute in question defined "dangerous dog" as "[a]ny dog declared to be dangerous by the city council or an animal control officer." Id. at 28. The magistrate judge held (and the district judge adopted his reasoning) that "this circular definition does not provide any guidance to the public and is unconstitutionally vague." Id. at 29. The apparent similarity of that ordinance to the one sub judice suggests to the plaintiffs that this Court should follow suit.

3 - A dog otherwise fitting this description is considered "potentially dangerous" while it is properly restrained.

4 - An analogous definition applies to "potentially dangerous dogs."

Page 5

However, a careful reading of the ordinance rids us of this vagueness problem. The definition in question refers the reader to "the procedures set forth in this chapter," which are contained in § 91.151, and specifically in two subsections, (C) and (D). The first instructs the Director to determine whether a dog found "at risk"5 is "dangerous" or "potentially dangerous," "as defined in this chapter." Returning to the definitions section of the ordinance, one finds four definitions of "dangerous dog" and two definitions of "potentially dangerous dog" that the Director might use in determining whether a given animal is legally dangerous. This is not an endless circle between two code sections, or the kind of limitless grant of discretion to an animal control officer that the court confronted in Folkers.

Further, § 91.151(D) provides a definition of "dangerous dog" not seen in § 91.001: "If an at-risk dog under investigation has previously been classified as a potentially dangerous dog and exhibits escalating aggressive behaviors, which threaten public safety or welfare, that circumstance alone may be grounds for ... the Director to determine that the dog is a dangerous dog." This procedure for declaring a dog "dangerous" gives specific external content to § 91.001's reference to "procedures set forth in this chapter."

5 - I.e., one found off of its owner's premises, threatening or harming a person or animal, or walking free without restraint.

Page 6

It may be argued that the definitions in question are inordinately convoluted, or poorly drafted, but they do not constitute the sort of unbounded discretion that should be declared unconstitutionally vague on its face. Accordingly, the Court will grant summary judgment for the defendants as to these sections of the ordinance.

(c) Plaintiffs further ask the Court to void certain exemptions from the definitions of "dangerous" and "potentially dangerous" dogs, as set forth in § 91.150(B). Subsection (B)(1) states that an animal is not to be deemed (potentially) dangerous solely because it bites "[a]nyone assaulting its owner," but not including a police officer attempting to subdue a suspect. Subsection (B)(4) exempts a dog from classification as dangerous if it attacks a person committing criminal trespass, but not if that person had committed merely a simple trespass.

Plaintiffs are surely correct to claim that these sections put impossible burdens on the cognitive ability of dogs. A dog, in all likelihood, cannot distinguish a police officer from anyone else subduing its owner, nor can it perceive the mental state of an individual entering onto its territory.

But that does not mean the law is vague. Plaintiffs claim that these exemptions set forth "incomprehensible standards," such that neither citizens nor enforcement officers can understand their meaning sufficiently well to act in accordance with the law. (Pl.'s Br. 22.) This claim is simply in error. The question is whether the law is vague, and it is not. A dog may be deemed "dangerous" if it attacks a police officer or a non-criminal trespasser. An owner may avoid a declaration of dangerousness by restraining his dog unless and until he knows that a trespasser is a criminal or that an assailant is not a policeman. This may have the effects of limiting some lawful activity (i.e., the use of dogs for protection), and of offering some security to criminals who might otherwise expect

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to be attacked more often by dogs. That policy choice, however, is for the Metro Council to make. It has not done so in an unconstitutional manner.

2. The Enclosure Requirement

Plaintiffs next argue that § 91.922(A) is vague. That section provides that unaltered dogs are to be maintained "[i]n a proper enclosure as defined in this chapter; and as approved by the Director in writing." Plaintiffs first contend that "because the Director cannot possibly enforce the provision against everyone to whom it applies, he must enforce it selectively." (Pl.'s Br. 26.) The same could be said for speed limits, jaywalking laws, and the prohibition on underage drinking. There are far too many laws in 21st-century America for law enforcement to enforce every one of them every time it is broken. Certainly this state of affairs does not render every law and regulation that is not scrupulously enforced, unconstitutionally vague.

Plaintiffs further claim that this enclosure requirement is illegally vague because it does not define what it means for an enclosure to be "proper." "Enclosure" itself is defined by § 91.001 of the ordinance as "a fence or structure of sufficient height and construction to prevent the animal from leaving the owner's property," and to include (with certain exclusions) electric fences. True, it does not define "proper," but the Court reads this adjective as a modifier, not as a word creating an entirely new term. The Oxford English Dictionary defines "proper" as "[s]uitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type." Thus, "proper enclosure as defined in this chapter" simply means an enclosure meeting the specifications outlined in § 91.001. This section is not vague.

3. "Nuisance"

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Plaintiffs next argue that the ordinance is unconstitutionally vague in its definition of "nuisance." That definition (again, part of § 91.001) begins as follows:

Any act of an animal or its owner that irritates, perturbs or damages rights and privileges common to the public or enjoyment of private property or indirectly injures or threatens the safety of a member of the general public.

True, the bare words of the first paragraph of the definition bear some resemblance to a statute criminalizing assembly on the sidewalk "in a manner annoying to persons passing by." Coates v. Cincinnati, 402 U.S. 611, 611 & n.1 (1971). The Coates Court declared that ordinance unconstitutionally vague, id. at 614,6 but the enactment at bar differs from the Cincinnati law in a crucial respect: It contains a long list of forms of conduct that are, ipso facto, nuisances. These include allowing an animal to make so much noise as to "result in a serious annoyance or interfere with the reasonable use and enjoyment of neighboring premises"; permitting an animal to damage another's property; allowing an animal to chase or attack passers-by, vehicles, or other animals, and so forth.7

6 - The Court also found that it violated the constitutional rights of free assembly and association, 402 U.S. at 615, but those rights are not at issue here.

7 - The complete enumeration is as follows:

(a) Allowing or permitting an animal to habitually bark, whine, howl, mew, crow, or cackle in an excessive or continual fashion or make other noise in such a manner so as to result in a serious annoyance or interference with the reasonable use and enjoyment of neighboring premises.

(b) Allowing or permitting an animal to damage the property of any person other than its owner or caretaker, including but not limited to, getting into or turning garbage containers or damaging gardens, flowers, plants or other real or personal property or leaving fecal material on the property of another person.

(c) Allowing or permitting an animal to molest, chase, snap at, attack or attempt to attack passers-by, vehicles, domestic pets or livestock.

(d) Allowing or permitting an animal to habitually or continually roam or be found on property of other than its owners or caretakers, trespassing school grounds, parks or the property of any person. (continued...)

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"Where a statute lists specific things followed by a more general one, the canon of ejusdem generis provides guidance." United States v. Mabry, 518 F.3d. 442, 447 (6th Cir. 2008). This canon serves just as well when the specific items follow the general one. It instructs us to "attribute 'the same characteristic of discreteness shared by all the [following] items' to the term in question." Id. (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004)); see also Canton Police Benevolent Ass'n of Canton v. United States, 844 F.2d 1231, 1236 (6th Cir. 1988) (under the "time-honored rule of ejusdem generis, ... a general word in a statute takes its character from the specific words with which it appears").

Applying ejusdem generis to the ordinance at hand, the broad terms of the preamble paragraph are significantly narrowed. A "nuisance" is not just any act that irritates or perturbs another. Rather, it is an act having the same general characteristics as the acts enumerated in the rest of the section: allowing an animal to threaten or injure another's person or property, or his enjoyment thereof. The ordinance's definition of "nuisance" is sufficiently clear that it cannot be held unconstitutionally vague on its face.

4. "Attack"

7(...continued)(e) Allowing or permitting an animal to be housed or restrained at a distance, that, in the discretion of the animal control officer, poses a threat to the general safety, heath and welfare of the general public.

(f) Allowing or permitting an animal to be maintained in an unsanitary condition.

(g) Allowing or permitting an animal to habitually charge in an aggressive manner a fence separating from another property when the usual residents are taking pleasure in such property without provoking such animal.

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The ordinance (again, in § 91.001) defines "attack" (circularly) as :[a]n unprovoked attack in an aggressive manner on a human that causes a scratch, abrasion, or bruising, or on a domestic pet or livestock that causes death or injury." Plaintiffs claim this is unconstitutionally vague for two reasons.

First, they argue that "it sweeps into its limitless reach all dogs that would cause 'injury' to a 'domestic pet.'" (Pl.'s Br. 36.) This, they say, "results in a definition that effectively includes every dog in Louisville." (Id.) Plaintiff's suggestion is that, because a dog can be declared (potentially) dangerous if it has attacked another animal, and because any dog is likely to attack a rat or guinea pig, given the opportunity, the ordinance treats an irrationally large number of dogs as "dangerous."

This argument would bear some weight if a dog could be seized and declared dangerous because of the hypothetical possibility that it might commit an attack, but those consequences follow only on the occasion of an actual attack.8 There is nothing vague about the ordinance's definition of "attack" once we get past its circularity.9

Second, plaintiffs claim that the definition applied to human victims is vague. Any dog in Louisville, they say, could legally "attack" someone by causing a scratch or bruise in some "harmless situation[]." This argument ignores the first half of the sentence defining the word in question: "An unprovoked attack in an aggressive manner ...." (emphasis added). Plaintiffs fail to suggest even a hypothetical situation in which a dog could, without provocation, harmlessly (but in an aggressive manner) assault a human being and thereby cause a scratch, abrasion, or bruising.

Even if they had done so (the Court does not see how they could), the nature of their facial challenge

8 - See Louisville/Jefferson County Metro Government Code of Ordinances § 91.150(A).

9 - Say, by substituting a common English understanding of the word "attack" into the statutory definition.

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would require that the definition be impermissibly vague in all applications, which it plainly is not.

The definition of "attack" is constitutionally sound on its face.

5. "Restraint"

Plaintiffs next challenge the ordinance's requirement that puppies and dogs, when off the premises of the owner and without permission otherwise, "must be restrained by a lead or leash and under the control of a responsible person physically able to control the dog." This is unconstitutional, they say, because it "provides no meaningful guidance" to citizens and animal control officers in determining whether a given person is capable of restraining a given dog. (Pl.'s Br. 37.) Again, this argument cannot prevail in the setting of a facial challenge to the ordinance.

There are innumerable cases in which the answer to the question "Can this person control that dog?" is patently obvious. Most anyone with the aid of a leash can successfully keep a handle on a Yorkshire terrier. Comparatively few people possess the physical strength to control a mastiff or other large breed. Because there are cases where the application of the ordinance is clear, this facial vagueness challenge fails.

6. The Impoundment Provision

Plaintiff's next assertion is that § 91.070(E) is unconstitutionally vague because it contains "an unrestricted delegation of power which leaves the definition of its terms to [the Director]." Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608-09 (6th Cir. 2005). The section in question provides that certain animals, once impounded, "shall not be released, except upon terms and conditions imposed by the Director that are in the interest of public safety and welfare." On the plaintiffs' view, this directive provides too little guidance to the officials implementing it.

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This argument is misplaced. The void-for-vagueness doctrine applies to laws that are prohibitive in nature. The purpose of the vagueness rule is to ensure that citizens know what conduct is permitted and what is proscribed, and to prevent arbitrary enforcement by law enforcement officials against conduct not clearly covered by the law. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Belle Maer Harbor, 170 F.3d at 556. Consequently, it has no application to § 91.070(E), which is not prohibitive in nature, but rather instructs the Director on how to handle certain classes of impounded animals. This section of the ordinance does not leave citizens without guidance as to what conduct is permitted and what is not, because in any individual case, the Director will have imposed specific conditions interpreting "the interest of public safety and welfare." Were the Director to impose restrictions that were themselves vague, they could be challenged as applied (because they would impose a standard of conduct for individual citizens). Such conditions are not before the Court, and the vagueness doctrine therefore has no application here.

7. Tethering Standards

Plaintiffs argue that the ordinance's tethering standards (§ 91.091(A)) are vague. Their arguments are without merit. The ordinance's plain language, though perhaps not a model of precision, is sufficiently clear to give dog owners notice of what is required of them. Subsection (A)(1)(a) prohibits use of a fixed-point tether between 8 a.m. and 6 p.m. Subsection (A)(1)(b) further prohibits use of a fixed-point tether for more than one hour in any eight-hour period. True, there is no conjunction between the two subsections -- an "or" is probably warranted -- but they can both be given effect without conflict: A fixed-point tether may not be used at all within the specified times, and outside of those hours its use is limited to one hour in eight.

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The remainder of this section is no less clear. Subsections (A)(1) and (A)(2) cover distinct methods of restraint. Part (1) refers only to "fixed-point" tethers, which the Court reads to mean a tether attached to a single stationary point (e.g., a stake or tree) in an owner's yard. Part (2) describes a more complex system: a tether attached to a trolley, allowing for a greater range of movement than a fixed-point tether. Because the time restrictions described above appear only in subsection (1), they do not apply to subsection (2). A trolley-tether system may be used at any time, without restrictions. The tethering standards are sufficiently clear to avoid a facial challenge to their validity.

8. Revocation of License

Plaintiffs contend that § 91.024(B) is impermissibly vague. It provides that the Director may revoke or deny any pet license, providing the following guidance: "Grounds for such revocation or denial include, but are not limited to, conviction pursuant to any violation of this chapter or conviction pursuant to any related state or federal law." This section is more problematic than those discussed above, because it appears to allow the Director to impose a civil punishment for any reason at all, leaving citizens unaware of what actions might constitute grounds for license revocation. Ejusdem generis does not help, because the terms of subsection (B) negate the premise of that canon: Grounds for revocation "are not limited" to violations of the ordinance or related law.

Thus the text would apparently allow imposition of punishment for violation of unrelated law, or for any reason the Director might come up with. And while the ordinance provides for appeals to the Secretary of the Cabinet of Public Works and Services, it offers no standard of review or basis for deciding the appeal in a case where the grounds for revocation are questionable.

Despite some misgivings about § 91.024(B), however, the Court cannot hold it facially void. After all, it does include at least one category of cases, conviction pursuant to violations of Chapter

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91, in which there are clearly grounds for revocation. Moreover, the specific terms of the ordinance provide at least some guidance as to what sorts of behavior ought to constitute grounds for revocation. To hold an ordinance invalid on its face, a court must fine that it is impermissibly vague in all of its applications. Hoffman Estates, 455 U.S. at 497. Because we cannot do so, this challenge must fail.

9. "Cruelty"

Plaintiffs' final vagueness challenge is to the ordinance's definition of "cruelty" (§ 91.001) and its requirement that pet owners and kennels provide animals with certain necessities (§§ 91.090, 91.120, 91.121, 91.122). In support, however, plaintiffs can muster only a conclusory assertion that the standards in question provide "no level of definiteness," and an unsubstantiated fear that the word "wholesome" will be nefariously interpreted. (Pl.'s Br. 42-43.) We need not pause long over these arguments; the challenged language speaks for itself. Plaintiffs cannot show that the ordinance is vague in all its applications, and they therefore cannot prevail.

II. Equal Protection and Substantive Due Process

A. Legal Standard

Plaintiffs claim that parts of the ordinance violate citizens' rights under the Fourteenth Amendment's Equal Protection and Due Process Clauses. As plaintiffs recognize, this case involves neither discrimination against a suspect class nor the violation of fundamental rights. Consequently under either clause, the Court's analysis falls under the rubric of "rational basis" for review. See Doe v. Mich. Dep't of State Police, 490 F.3d. 491, 505 (6th Cir. 2007) (equal protection); Berger v. City of Mayfield Heights, 154 F.3d 621, 624 (6th Cir. 1998) (due process). The essence of the analysis

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is the question whether a "rational relationship exists between the terms of the ordinance and a legitimate governmental purpose." Berger, 154 F.3d at 624.

B. Application

1. Approval of Enclosures in Writing

Plaintiffs argue that § 91.022(A)(1) fails rational review insofar as it treats owners of unaltered dogs differently from owners of altered dogs. The section requires that enclosures for unaltered dogs be approved by the Director in writing. Elsewhere (§§ 91.001 and 91.00s), the ordinance requires that all dogs be kept under restraint, defined so as to mirror the requirements of § 91.022(A)(1) with the exception of the written approval requirement. Thus it is the approval requirements that the Court must consider.

It is unclear whether defense counsel recognized the issue the plaintiffs sought to raise, as the defendant's brief asserts that "there is no possible application of this Section to any dog owner above or beyond the restraint provisions elsewhere in the ordinance." (Resp. 10.) Further, Metro concedes that the provision "is clearly a redundant nullity." (Id. at 11.) Having renounced the value of this section, defendant also makes no effort to justify it with any government interest. Indeed, as defendant notes, the remainder of the ordinance has been amended to remove additional requirements that had been placed on owners of unaltered dogs. This suggests that the persistence of additional requirements in § 91.022(A)(1) is indeed a "legislative oversight" with no evident purpose, as the defense speculates. (Id. at 10.) The Court will take the defense at its word. There being no apparent reason why the owners of unaltered dogs should be treated differently than the owners of their neutered counterparts, the written requirement lacks a rational basis and is unconstitutional.

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2. Sale of Animals

Section 91.027(D) of the ordinance reads as follows:

It shall be unlawful for any person to sell, offer to sell, or to advertise the sale of an animal, or for any person to purchase a dog, which has been classified by the Director as a dangerous dog, or a potentially dangerous dog, without the written permission of the Director.

Plaintiffs argue that this section is so irrational as to violate due process. They are surely correct that it is poorly drafted. The plain terms of the first clause appear to prohibit the sale of any animal anywhere in Louisville, while the plain terms of the second clause allow for the sale of (potentially) dangerous dogs with permission of the Director.

However, the Court declines to read the ordinance so literally as to rob it of rationality. The title of § 91.027 is "Certain Sales of Animals Prohibited" (emphasis added), which implies that not all such sales are illegal. Moreover, as plaintiffs point out, other subsections of § 81.027 contemplate the sale of animals under certain conditions. Bearing this in mind, it is better to read subsection (D) as Metro suggests (Resp. 14): It requires written permission from the Director for the sale or purchase of any animal that has been declared a dangerous dog or a potentially dangerous dog, without otherwise restricting the sale of animals. Given this construction, there is nothing constitutionally suspect about § 91.027(D).

III. Procedural Due Process

Plaintiffs claim that § 91.101 of the ordinance threatens a citizen's right to a fair hearing before being deprived of property. Before delving into the governing jurisprudence, we think it wise to determine how the ordinance operates.

As with other sections of the ordinance in question, § 91.101 seems to be the victim of hasty drafting. Entitled "Confiscation of Victimized Animal," its purpose is to allow the authorities to take

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possession of an animal that has been the victim of any of several forms of inhumane treatment. These include (inter alia) failure to provide necessities, abandonment, mutilation, and "exhibition fighting." Section 91.101(A) provides that an animal found involved in a violation of any of these prohibitions may be confiscated by an animal control officer, evidently for its protection.

Once an animal has been confiscated, subsection (B) provides for a hearing before a judge. That judge is to determine whether probable cause existed for the confiscation. If so, the owner must post a $450 bond within 24 hours to cover the cost of 30 days' boarding and veterinary care for the animal, which remains in the city's possession. A new bond must be posted every 30 days, and failure to do so results in immediate forfeiture of the animal. The ordinance does not say what happens if no probable cause is found, but the implication of the bond and forfeiture provisions, coupled with general background notions of justice, must be that, absent probable cause, the animal is to be returned to its owner.

Section 91.101(B)(1) goes on to provide that, upon a plea or finding of guilt, the animal's owner becomes responsible for all costs created by the impoundment. (That is, any bond he has posted is not returned, and he must pay any outstanding amount due.) Further, the animal in question becomes property of the city. If the accused is found innocent, subsection (B)(2) provides that any posted bond is to be returned to the owner. The ordinance does not explicitly provide for return of a seized animal if its owner is found to be innocent. Again, however, context leads the Court to conclude that returning the animal on a finding of innocence must have been the Metro Council's intent. There is, first, the obvious fact that this is the just result of such an adjudication. In addition, it makes little sense for the government to return the posted bond -- leaving it on the hook for all the animal's expenses up to the acquittal -- and then to hold onto the animal at its own further expense.

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Finally, the last sentence of subsection (B)(1) states: "Upon conviction, all animals not forfeited pursuant to subsection (B) herein above shall become the property of the Metro Government." This implies that, prior to conviction, ownership of the animal does not change. After an acquittal, then, the original owner retains his rights, and the city has no further basis for holding the animal.

The construction offered above solves two problems § 91.101, allowing for the return of a confiscated animal upon a finding of either no probable cause or innocence (if the bond has been duly paid). But a third problem lingers. It is undoubtedly the case that the ordinance mandates permanent forfeiture of a seized animal if the judge finds probably cause and the owner fails to timely post the appropriate bond. This provision is evidently meant to ensure that the owner of a confiscated dog has an interest in posting the bond: If he could refuse to do so and then wait for an adjudication of guilt, he might never have to post before getting the dog back (if he is found innocent), or he might lose his ownership of the dog (if he is found guilty) and thus any incentive to pay the past-due boarding and veterinary costs. The result is that a person whose dog has been confiscated, and against whom there is probable cause that he violated one of the humane treatment requirements, will lose his dog permanently unless he posts bond, even if he is ultimately found innocent of the underlying charge. This possibility presents a legitimate due process claim.

Claims under the "procedural" arm of the Due Process Clause are governed by the balancing framework set up by Mathews v. Eldridge, 424 U.S. 319 (1976). Determining how much process is due in a given case involves consideration of three factors: (1) "the private interest that will be affected by the official action:' (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards";

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and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335.

As plaintiffs argue, pet owners clearly have a property interest in their animals. See Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 180 (Ky. 2006) (recognizing that dogs are personal property). This interest is not absolute and is subject to regulation by state and municipal governments. Id. Nonetheless, the government is not permitted to deprive an animal owner of his property without due process of law. The question is not whether process is due, but rather how much is required.

We therefore inquire into the second prong of the Mathews test. As the procedure stands, the risk of erroneous deprivation of this property interest is significant. It is perfectly possible for a judge to find probable cause that a person has committed an offense, but for that person later to be found innocent. Under the scheme set up in § 91.101, if such a person was unable to put up $450 immediately upon the probable cause finding, his pet is forfeit[ed] and he has no apparent recourse for its recovery, even if he is ultimately found innocent of the underlying charge. There is thus a high risk of erroneous deprivation, which some sort of hearing, appeal, or late-payment process could remedy. Moreover, the government has little interest in keeping ownership of pets belonging to innocent citizens. Presumably, most of the animals kept under this ordinance have to be euthanized, lest the burden of boarding and caring for them grow too high. The government does not articulate any interest whatsoever in its brief -- it does not even cite Mathews -- and the Court is unwilling to fabricate one. Consequently, we must hold that the portion of § 91.101 that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional.

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It seems likely that § 91.101 is poorly drafted and does not properly represent the intent of its authors. However, this Court is not in the business of authoring or revising legislation. As a remedy for the constitutional failing just described, the Court will therefore enter an injunction against enforcement of the ordinance in the manner just described. Applications of § 91.101 that do not infringe the constitutional right to due process of law may continue.

IV. Fourth Amendment

Plaintiffs argue that four sections of the ordinance violate the Fourth Amendment by authorizing warrantless searches and/or seizures.

We reject out of hand the suggestion that § 91.022 is unconstitutional. Plaintiffs urge that it is invalid to the extent that it is interpreted to authorize warrantless searches. Its plain terms do no such thing. They merely require that unaltered dogs be kept either in an enclosure or under restraint. Nor has there been any authoritative interpretation of the section that would empower law enforcement officers to act in a manner contrary to the Constitution. Plaintiffs rely on the deposition testimony of the current Director, Dr. Gilles Meloche, to the effect that the adequacy of an enclosure is determined on a case-by-case basis. They seem to think this implies warrantless searches of property under the guise of "inspections." But nowhere in Dr. Meloche's testimony, which has no legally binding effect on pet owners, does he claim the right to search a home without permission or warrant. On this point, the plaintiffs are doing battle with a bogeyman of their own conjuring.

Three other sections appear more troubling. Each expressly authorizes seizure of a dog found in violation or suspected violation of the ordinance, without requiring a warrant. Section 91.073(d) provides:

Where an Animal Control Officer observes a dog being kept on a chain or tether, in potential violation of the restraint definition in this chapter, the officer may notify the

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owner of the violation in person or by means of a notice placed at the entry to the property. If the owner does not correct the situation or notify MAS (Metro Animal Services) within one hour of the placement of such notice, that the dog has been removed from the chain or tether, the dog may be removed and the owner issued a violation notice or uniform citation for violation of the restraint requirement.

Similarly, § 91.094(a) provides, in pertinent part:

In the event there is a reasonable cause to suspect that an animal is being beaten, cruelly ill-treated, neglected or tormented or involved in a dogfight, cockfight or other combat, custody of such animal may be taken by an Animal Control Officer or peace officer and impounded in the animal shelter. The animal shall be held as evidence and confined in such facility in a humane manner.

Finally, § 91.101(A) states that "Any animal found involved in a violation of any portion of this section may be confiscated by any Animal Control Officer or any peace officer and held in a humane manner.10 These provisions appear to contemplate the seizure and removal of animals from their owners without need for a warrant.

Notwithstanding the language of the ordinance, Metro vehemently disclaims that idea that it authorizes warrantless seizures. The Fourth Amendment, Metro acknowledges, acts as an independent check on animal control officers, who evidently know of the warrant requirement and its myriad exceptions and who are scrupulous in their observance of constitutional dictates. This is, of course, a wise position to take; to the extent that an ordinance authorizes searches or seizures of a sort not sanctioned by the Constitution, it must be unconstitutional. That is merely to state a truism, but as the Court has, in essence, been asked only to affirm that the Fourth Amendment applies to searches contemplated by the above-quoted sections, there is little else to say.

The parties and the Court are in agreement on this issue. Consequently, we are not presented with a "Case" or "Controversy" as Article III requires for the exercise of federal judicial power.

10 - "Section" in this context evidently refers to the collection of provisions gathered under the heading "Humane Treatment of Animals."

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Plaintiffs' Fourth Amendment challenges, therefore, must be dismissed for lack of subject-matter jurisdiction.

V. Conflicts with Kentucky Law

Plaintiffs contend that various sections of the ordinance conflict with Kentucky law and are therefore illegal. States law provides:

Urban-county governments may enact and enforce within their territorial limits such tax, licensing, police, sanitary and other ordinances not in conflict with the Constitution and general statutes of this state now or hereafter enacted, as they shall deem requisite for the health, education, safety, welfare and convenience of the inhabitants of the county and for the effective administration of the urban-county government.

Ky. Rev. Stat. (Kentucky Revised Statutes) § 67A.070(1)11 It goes on to provide that "ordinances shall be deemed to conflict with general statutes of this state ... [w]hen the ordinance authorizes that which is expressly prohibited by a general statute; or ... [w]hen there is a comprehensive scheme of legislation on the same subject embodied in a general statute." Ky. Rev. Stat. § 67A.070(2). There is no allegation that any of the challenged sections are expressly prohibited by state law. The question is whether any of them has been preempted by a comprehensive scheme occupying the field they seek to regulate.

The Kentucky Supreme Court has ruled that:

The mere presence of the state in a particular area of the law or regulation will not automatically eliminate local authority to enact appropriate regulations. Local regulation is not always precluded simply because the legislature has taken some action in regard to the same subject. ... The true test of the concurrent authority of the state and local government to regulate a particular area is the absence of conflict. The simple fact that the state has made certain requirements does not prohibit local government from establishing additional requirements, so long as there is no conflict between them.

11 - Defendant is such an "urban-county government." A parallel statute, Ky. Rev. Stat. § 82.082, has much the same effect with regard to cities.

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Lexington-Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 750 (Ky. 2004) (citations omitted). "In order to rise to the level of a comprehensive system or scheme, the General Assembly must establish a definite system that explicitly directs the actions of a city." Dannheiser v. City of Henderson, 4 S.W.3d 542, 548 (Ky. 1999) (citing Whitehead v. Estate of Bravard, 719 S.W.2d 720 (Ky. 1986)).

A. Regulation of Veterinary Medicine

Plaintiffs argue that Chapter 321 of the Kentucky Revised Statutes regulates veterinarians so comprehensively that Ky. Rev. Stat. § 82.082 bar municipalities from imposing additional regulations on the profession. Specifically, they object to the reporting and notification requirements imposed by the ordinance's sections 91.025(B) (vaccination reporting), 91.075 (bite reporting), and 91.020(F) (veterinarians must notify clients of licensing and permit requirements).

Given the authorities quoted above on the meaning of preemption in Kentucky, the Court finds that none of these provisions are in such conflict with Chapter 321 as to be prohibited. The state-level regulation of veterinarians covers licenses, permits, certifications, the Board of Veterinary Examiners, and so forth. Its stated purpose is to "protect the public from being misled by incompetent, unscrupulous, and unauthorized practitioners, and from unprofessional or illegal practices by persons licensed to practice veterinary medicine." Ky. Rev. Stat § 321.175. The statute does not go into specifics of veterinary practice. Neither do the sections of the Kentucky Administrative Regulations covering the Board of Veterinary Examiners. See 201 Ky. Admin. Regs. §§ 16:010 et seq. The parties do not cite, and Court has not found, any state-level statute or

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regulation dictating what veterinarians are, or are not, to report to the government or discuss with their clients.12

Furthermore, the ordinance does not regulate the practice of veterinary medicine in any serious way. The requirements it imposes are related to public health, safety, and awareness of the legal requirements for pet ownership.13 They are not in conflict with the regulatory regime established by state law. That regime does not "direct the actions of the city" as regards veterinarians, and it does not prevent enactment of the public health and welfare regulations at issue here.

B. Cruelty to Animals

Next, plaintiffs assert that the ordinance's regulation of cruelty to animals runs afoul of the preemption statute, because (in their view) Kentucky has already regulated animal cruelty by statute. See Ky. Rev. Stat. §§ 525.125.525.130.525.135. However, as the Kentucky Supreme Court has interpreted Ky. Rev. Stat. § 67A.070(2), the Court sees no problem with Metro's ordinance. Plaintiffs point us to no specific conflicts, and the cruelty statutes do not "establish a definite system that explicitly directs the actions of a city," Dannheiser, 4 S.W.3d at 548. Accordingly, plaintiffs' challenge to the cruelty sections of the ordinance fail.

C. Nuisance

Finally, plaintiffs claim that the definition of nuisance in § 91.001 of the ordinance violates Kentucky law. The Kentucky statutes permit a municipality to enact a nuisance code so long as it (inter alia) "(1) Establish[es] the acts, actions, behavior, or conditions which constitute violations," and (2) Establish[es] reasonable standards and procedures for enforcement of the nuisance code." Ky. Rev. Stat. §§ 82.705.82.710. Plaintiffs complain that the nuisance provisions of the ordinance fail to meet these requirements and are therefore illegal. However, as discussed in section I.B.3, supra, the ordinance's definition of "nuisance" is perfectly comprehensible, laying out the acts in question by means of a series of examples that serve to guide interpretation of the definition's more general language. Nothing in this definition violates the guidelines set down by the Kentucky abatement of nuisances statute.

12 - Plaintiffs also claim that the state has occupied the field of "animal bite reporting," thereby preempting § 91.075. But the fact that the state requires some professionals to report a dog bite to local health authorities surely does not prevent a municipality from seeking that information from other sources.

13 - Plaintiffs contend that the vaccination reporting requirement pertains, not to health and safety, but to tax collection. Even supposing this to be true, collection of fees is surely a legitimate government purpose. Most importantly, the ordinance's reporting requirement is not in conflict with state law, regardless of its ultimate purpose.

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* * *

A separate order in conformity with this opinion will be entered this date.

Charles R. Simpson III, Judge, United States District Court

October 1, 2009
http://www.akc.org/pdfs/canine_legislation/LKC_Metro_Govt_100509.pdf (26 pages; 1.08 MB)

Bosco the Zanesville Police Canine Officer Update!

Bosco the Zanesville Police Canine Officer Updates! Latest Update: February 3, 2010


Bosco Brief (update on Bosco, the Dutch Shepherd Zanesville, Ohio, Canine Officer)


(Note: Bosco, a Dutch Shepherd Canine Officer in Zanesville, Ohio, was shot on Sunday, August 23, 2009, when Officer Mike Schiele attempted to arrest a Zanesville man on a misdemeanor warrant. Officer Schiele was shot in the leg and was treated and released from Grant Hospital. Bosco was shot through the neck and suffered multiple injuries, one of which caused temporary paralysis, which affected his front end most. This great dog and his owner are now recovered. Visit http://www.vet.ohio-state.edu/5971.htm to read all 15 updates and see other photos and videos. Keep your Kleenex handy; this is a story with courage in spades!)


February 3, 2010


Photo of Bosco taken on November 5, 2009:

http://www.vet.ohio-state.edu/assets/images/about/news/2009/boscoBrief/bosco110509.jpg
http://www.vet.ohio-state.edu/5971.htm


Since the holidays, Bosco has been coming in approximately twice a week to the Veterinary Hospital for standard rehabilitation therapy.

He walks on the water treadmill and performs other exercises to reinforce his balance and coordination and to strengthen his right leg, which is still experiencing some weakness.
Overall, he is doing great, and he has a tremendous amount of energy that is evident as he pulls vigorously on his leash upon entering our doors.

Everyone is extremely pleased with how far he has come since his injury last year.


~~~~~


The Zanesville K-9 Unit is paid for entirely by donations. People wishing to contribute to Bosco's care can send donations to the Zanesville Police Department, K-9 Unit, 332 South Street, Zanesville, OH 43701.
http://www.vet.ohio-state.edu/5971.htm



October 13, 2009: As seen in this video http://www.vet.ohio-state.edu/5577.htm Bosco walks comfortably on the underwater treadmill as part of his physical therapy. As opposed to a "dry" or "land" treadmill, the water in the treadmill tank, a soothing 94 degrees, supports his entire weight; thus it is less stressful on his joints. The only challenge is that Bosco likes drinking the water as he walks! After the walking exercise is over, we turn on the water jets so he receives an invigorating massage.


September 24, 2009 - We are happy to report that Bosco can get up and stand on his own. He is also walking short distances with no assistance. As seen in this video http://www.vet.ohio-state.edu/2862.htm [Note: I've had trouble loading this 9-second video, so it may be that too many people are trying to view it.] he continues with his daily therapy which includes walking around cones and other obstacles, although sometimes he tries to cheat! After these exercises, he takes a well-deserved nap. http://www.vet.ohio-state.edu/5971.htm



September 18, 2009 - Bosco went home to Zanesville Thursday night for a fundraiser, and stayed the entire weekend with his family, which he truly enjoyed!

He is back in the hospital this week [September 21-25] to continue with daily therapy, but will be allowed to go home on weekends.

The main focus of his therapy is working on his balance.

Although his front legs buckle now and then, he is making progress walking on a leash and harness. http://www.vet.ohio-state.edu/5971.htm


Brave Dog Diaries: Police Dog Bosco & human partner recovering

August 29, 2009

http://tips2ussavethem.blogspot.com/2009/08/brave-dog-diaries-police-dog-bosco.html

What is Animal Hoarding?

What is animal hoarding?


The following criteria are used to define animal hoarding:


More than the typical number of companion animals.

Inability to provide even minimal standards of nutrition, sanitation, shelter and veterinary care, with this neglect often resulting in starvation, illness and death.

Denial of the inability to provide this minimum care and the impact of that failure on the animals, the household and human occupants of the dwelling.


For more information:


The Hoarding of Animals Research Consortium:

http://www.tufts.edu/vet/cfa/hoarding/index.html

Dogs get care: Psychologist says Newport case could be a matter of animal hoarding

Dogs get care: Psychologist says Newport case could be a matter of animal hoarding


(Note: Many thanks to SS for the information on these two articles.)


September 15, 2009


By Evan Bevins, ebevins@mariettatimes.com or 740-376-5447


The Marietta Times

P.O. Box 635

Marietta, Ohio 45750

740-373-2121

Fax: 740-376-5475

http://www.mariettatimes.com or http://www.mariettatimes.com/page/category.detail/nav/5046/Employee_directory.html

To submit a Letter to the Editor: letters@mariettatimes.com or http://vnr.oweb.net/vnr/add_submission.asp?categoryID=657&publicationID=84 (website form)


Fact Box


What is animal hoarding?

The following criteria are used to define animal hoarding:

More than the typical number of companion animals.

Inability to provide even minimal standards of nutrition, sanitation, shelter and veterinary care, with this neglect often resulting in starvation, illness and death.

Denial of the inability to provide this minimum care and the impact of that failure on the animals, the household and human occupants of the dwelling.

For more information: The Hoarding of Animals Research Consortium:

http://www.tufts.edu/vet/cfa/hoarding/index.html

~~~~~

The recent case of alleged animal cruelty in Newport has many of the characteristics of animal hoarding, according to a national expert on the subject.

"Although it may seem unusual in the community, it's the kind of story we see pretty regularly" at the national level, said Dr. Randall Lockwood, senior vice president for Anti-Cruelty Field Services with the American Society for the Prevention of Cruelty to Animals.

Lockwood, a psychologist based with the ASPCA in Washington, D.C., is not involved in the local situation, but discussed animal hoarding cases in general.

"Several of these cases a day come across my desk," he said. "We estimate there probably are at least 5,000 new cases of this each year in the country."

An animal hoarder is someone who accumulates more animals than they can care for while remaining oblivious to the condition of the animals and the negative impact on the quality of life for the human beings involved, Lockwood said. It is not unusual for a hoarder's house to have animal feces in the eating or sleeping areas, he said.

"It is not just kind people who get in over their heads, which is often how this is characterized," Lockwood said.

Animal hoarders may hoard other things as well, and the condition can be linked to additional psychological disorders, Lockwood said. As in the Washington County case, there can be issues for Children or Adult Protective Services if the hoarder has children or a dependent adult living with them, he said.

Local humane officer Butch Morris said hoarding cases aren't frequent in Washington County, but authorities have seen their share of them. There are a couple of situations Morris said he is watching to make sure the individuals don't take in more animals and become a problem.

"If you go over seven or eight dogs, then I'm going to be looking hard," he said.

However, Morris noted there is no law in Ohio limiting the number of animals an individual can own. His office's concern is that the animals are properly cared for and licensed.

Lockwood said hoarders usually cannot be dealt with just by taking the animals away.

"Virtually all of them will begin again without close supervision," he said.

Lockwood said he does not necessarily advocate jail for hoarders but thinks probation conditions prohibiting them from owning more animals should be in place.


Copyright 2009, The Marietta Times.


http://www.mariettatimes.com/page/content.detail/id/515729.html?nav=5002


Related reading:


Dogs get care: Newport man accused of animal cruelty - Humane Society helps animals found in squalor


September 15, 2009


By Evan Bevins, ebevins@mariettatimes.com or 740-376-5447


The Marietta Times

P.O. Box 635

Marietta, Ohio 45750

740-373-2121

Fax: 740-376-5475

http://www.mariettatimes.com or http://www.mariettatimes.com/page/category.detail/nav/5046/Employee_directory.html

To submit a Letter to the Editor: letters@mariettatimes.com or http://vnr.oweb.net/vnr/add_submission.asp?categoryID=657&publicationID=84 (website form)


Five charges of animal cruelty have been filed against a Newport man accused of keeping more than 50 animals -- and his mother -- in filthy, unsanitary conditions.

Washington County Dog Warden Greg Sturm said five second-degree misdemeanor charges of cruelty to animals were filed in Marietta Municipal Court Monday against Steven Sharp, 52, of 1815 Long Run Road, Newport. More charges are possible, Sturm said.

A week ago, Sturm, sheriff's deputies and humane officers found Sharp's 80-year-old mother, Dorothy Sharp, living in the Long Run Road house, where the floors and other surfaces were covered with nearly an inch of cat feces and urine. Lightheaded and disoriented, Dorothy Sharp was hospitalized and placed in the custody of Adult Protective Services.

More than a dozen cats were found in the house, and numerous others were located in a trailer on the property. Twenty-two dogs were taken from the property and placed in the Humane Society of the Ohio Valley's shelter.

Officials said the cats were euthanized because they had leukemia, which is contagious among felines. Other cats, that were not closed up, are still roaming the property, said Butch Morris, humane officer.

"There's probably still another 30 cats out there," he said.

Two more dogs that had been running loose were brought to the shelter by Sharp's brother, Craig, who owns the property. At least three more dogs there have not been caught yet, Morris said.

Most of the dogs taken by the Humane Society, however, were tied up, with no food or water available, authorities said.

Steven Sharp was previously charged with failure to care for an impaired individual, a misdemeanor.

There are no plans to charge Craig Sharp, Washington County Sheriff Larry Mincks said Monday, because his brother lived at the residence at least part of the time and was the one responsible for Dorothy Sharp.

Craig Sharp has been cooperating with humane officers, Morris said.

Shelter manager Steve Herron said that when the dogs first arrived, they had to be housed in a garage due to crowded conditions at the shelter. However, a rescue operation took 22 other dogs from the shelter recently, and most of the dogs from the Newport property had been moved into regular cages in the shelter as of Monday.

"They've all been able to get cleaned up and taken care of," Herron said.

Most of the animals have overcome their initial fear and are warming up to shelter workers and volunteers, Herron said, but some are still "skittish."

People in the community donated puppy food, laundry detergent, bleach and blankets after the shelter took the dogs in, Herron said. The shelter will always accept more dog food and detergent (not to mention cat food and litter), he said.

"We appreciate what the public is doing for us," Herron said.

There are other ways people can get involved, the shelter manager said.

"I always look for volunteers in the afternoon to come and walk dogs," he said.


Copyright 2009, The Marietta Times.


http://www.mariettatimes.com/page/content.detail/id/515728.html?nav=5002

Skunk Smell Neutralizer, thanks to Paul Krebaum

Yet Another Way to De-Skunk Your Pet, or, Skunk Smell Neutralizer, thanks to Paul Krebaum


By Stacy E. Smith, Paw Prints


The weather finally warmed up (thank goodness) and you and your pets are spending more and more time outdoors – at parks, on hikes and even camping. So, the odds of Fido getting into something smelly begin to increase exponentially.

Arguably, the smelliest thing anyone can encounter has got to be skunk spray. All of us have detected the distinct odor while driving on the highway or even wafting through the neighborhood at one time or another. There is no mistaking it. How many of you have actually had the pleasure of coming into contact with that smell only moments after it was sprayed – up close and personal? I am here to tell you that the odor you detect from the car is NOTHING compared to the freshly sprayed version. It is an assault on your olfactory system that really puts your gag reflex to the test.

Now, imagine that your dog comes happily bounding toward you smelling like he just tested every bottle of “eau de skunk” in the department store. It may very well officially be the single worst, gross thing that happens to you.

One of our regular writing contributors, Stu Tarlowe, published his favorite cure for eau de skunk several years ago in the pages of PAW PRINTS. Although it was a great remedy, it was not Stu’s own creation, but a cleanser he found that worked wonders for removing that very special odor.

You’d think, however, that if you had actually created, the hands-down, bar-none best way for dealing with a pet who has been skunked, you’d be able to sell your formula for a tidy sum and be set for life, right?

Wrong. At least, that’s not the way it worked for chemist Paul Krebaum, who created just such a magic formula in the 1990s — and hasn’t gained a single thing for his trouble except the gratitude of pet lovers everywhere.

First, I’ll give you the recipe…


1. In a plastic bucket using plastic utensils mix together 1 quart of 3% Hydrogen Peroxide (This is available from any drugstore. DO NOT USE ANY OTHER STRENGTH even if you happen to have it around the house for some reason – the result may be a trip to the emergency room), 1/4 cup of baking soda (sodium bicarbonate for you science types which is not the same as baking powder) and 1- 2 teaspoons of liquid soap. Notes: Krebaum suggests “Softsoap” or “Ivory Liquid” because they are less inert. Grease-cutting brands such as “Dawn” are less inert and hair shampoo is probably the worst. For very large pets you may add one quart of tepid tap water to enable complete coverage. The reason for using plastic containers and utensils is because metals will encourage auto-decomposition of the peroxide.

2. Immediately apply it to the stinky pet (the solution will get weaker with time and you’ll definitely want it to be at full strength). Wash thoroughly, working solution deep into the fur. Leave solution on for about 5 minutes or until the odor is gone. Let your nose guide you. Some heavily oiled or “skunked” areas may require repeat washing. Note: skunks usually aim for the face, but try to keep the solution out of your pet’s eyes – it stings! If you have any cuts on your hands you should consider wearing latex gloves for the same reason.

3. Rinse your pet thoroughly with tepid tap water.

4. Pour the any left over solution down the drain with running water.


The result is by all accounts astonishing! Unfortunately, so will the explosion if you make up the solution and then try to bottle it. In case that was confusing it means DO NOT BOTTLE IT (or put it into any other closed container) to save for another time!!!! This is an actual, real life warning. The merging of the hydrogen peroxide and baking soda creates lots of oxygen in a big hurry. This chemical reaction is actually the key to how the solution works, but it’s also fierce enough to [forcibly/violently escape] a closed container. Unfortunately, this is also the reason Krebaum hasn’t been able to capitalize on his discovery. There’s just no way to sell something you can’t put in a bottle.

And it’s a shame, too, because from what I hear the man deserves some kind of reward or at least an award. According to plenty of testimonials, the stuff really works.

Unlike tomato juice, which merely turns the odor down a notch but ultimately leaves you with a slightly less-stinky -- and often pink -- dog.

Commercial preparations can be bought at most pet supply stores and seem to fare a little better, but even when you use them it’s the passing of time as the smell gradually wears off that seems to finally do the trick.

With Krebaum’s mixture, the trick is the oxygen, which grabs the molecules that go into that horrid smell. Once those molecules are snagged, the smell is neutralized. Poof! It’s simple chemistry, really.

Since Krebaum’s findings were published in a trade journal in the early 1990’s (if anyone is interested it was the Chemical & Engineering News, K.M. Reese published it in the “Newscripts” section on Oct. 18, 1993), his magic formula has spread far and wide, offered up by agriculture officials and hunting magazines, and touted by folks on the Internet (which is where I found it). The Chicago Tribune even gave him a nice write-up in 1994 that got picked up by newspapers all over the country. In it, Krebaum himself called his potion a “free-gift-to-humanity type deal.”

I had a Siberian Husky, Dakota that seemed to attract a skunk into every backyard in every house in which I resided during my 10 years living in Los Angeles. This dog was carted to the vet or groomer every other month or so to get a double skunk bath. It was a nightmare and the de-skunking solution only seemed to get some of the smell out. If only I had known about this then. Fortunately, I have not had the need for it since moving to Kansas City, but I will keep this recipe handy because Murphy’s Law is very powerful and must be respected. Save this article somewhere because the minute you need it, you won’t be able to find it.

I suppose I can’t really suggest that everyone grateful to Paul Krebaum send him a few dollars to make up for the royalties he’ll never see from his miracle skunk concoction. Besides, I have no idea where one would send the money anyway. So maybe it would be nice if you save this article for some time in the future when you or someone you love might really need it, and when you do, say a few silent words of thanks to the man whose invention will get you out of one stinky predicament.

This de-skunking recipe was reprinted with permission from the inventor, Paul Krebaum.
A little about Paul Krebaum: Married, 3 children. Bachelor of Arts in Natural Sciences and Mathematics, Bennington College. Also attended Rensselear Polytechnic Institute for 2 years. Worked in the cosmetics field for a few years, then joined Molex, Inc. Received 4 patents at Molex, U.S. 5,036,249; 5,456.616; 5,952,446; and 6,265,519. It was while working on the first patent that the skunk remedy was invented. He stayed 15 years with Molex before starting his own consulting business, The Adhesive Doctor.


Copyright 2009, Paw Prints.


http://www.pawprintsthemagazine.com/?p=3079