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HomeMy WebLinkAboutNFAWL Village of GreenportNeville, Elizabeth From: iSent: 'To: :Subject: Neville, Elizabeth Monday, December 18, 2000 2:22 PM Yakaboski. Greg RE: Dog Shetter .... -Original Message- From= Yakaboski, Greg Sent,' Sunday, December 17, 200~ 10:53 PM To: Nev'dle, Elizabeth; Bohn, Ly~da~ Cooper, Linda Sub~ Dog Shel~er Dear Betty, Linda and Lynn: I was not sure who-this should go to. Pursuant th.the most recent contract (dated August 23, 1999) between the Town and the North Fork Animal Welfare League the League is: 1) supposed to Remit to the Town all license, redemption and adoption fees- Does the League do {his? t~yes, if we have a report showing the total of such fees (or for any fees related to Dogs, Cats etc.) for 1999 and to date for 2000 please forward a copy. 2) supposed to Have a Public Liability Insurance Policy naming the Town as an additional insured in the amount of $1,000,000 per occurenac and a $2,000,000 aggregate. The League is supposed to furnish CERTIFICATES OF INSURANCE for this annualy to the Town Clerk ...... Is the League doing this? If yes please send over a copy of the Certificate of Insurance. 3) supposed to have workeCs compensation insurance and disability insurance and provide Certificates of InSurance to the Town Clerk.. .. Does the League provide these? If yes, please send over a copy. THANKS FOR YOUR HELP!!H!I Greg: n response to 2 & 3, the last one I have is 1997. You "~-'~ the Town Atterney in the past. Perhaps you ha,~e them in your records? Please let me know. Betty qnt: ~ject: Yakaboski. Greg Sunday December 17. 2000 11:03 PM Neville, Elizabeth; Bohn, Lynda; Cooper, Linda Dog Shelter :Betty, Linda and Lynn: I left this out of my first request. One additional item that the League is supposed to be supplying is a Monthly report show ng "$eperate League expenses and' Tc~wn expenses". Is this Thanks OffiC~T$ Vi[[a e al' ,Y reen?ort 236 THIRD STREET · P.O. BOX 2095 GREENPORT. NEW YORK I 1944 FAX ~516) 477-1877 VILLAGE CLERK LORNA M- CATUS (51fi) 477-2385 TREASURER MARY E. THORNHILL (5161 477-024~ Dece~er 10, 1991 RECEIVED Judith Terry, Southold Town Clerk Southold Town Hall 53005 Main Road Southold, New York 11971 Southold To,~ C{~rk Re: North Fork Animal Welfare League, Inc./ Town of Southold/Village of Greenport Dear Mrs. Terry: I request an audience with the Town Board to discuss the League's continued refusal to provide services within the boundaries of the Village of Greenport. V ' ~ Village Attorney DCR:Vm grpanimlS1 cc: North Fork Animal Welfare League, Village of Greenport, Clerk Inc. December 13, 1991 Spoke to Dan Ross her~e~at~Towh Hall and he advised that in li~fit~of;~the Town Attorney's letter of December 11, 1991 to Mr. Ross he would no longer need an audience with the Town Board ........ J. Terry H^ .VE¥ ^. ^RNO F Town Attorney ~ATTHEW G. KIERNAN ~' Assi?ni~ Toden J~tto~m~ OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P-O. Box ,1179 Somhol& New York 11971 Fax (516) 7~55-1823 TelephOne ¢~t6) 765~1800 December 11, 1991. D~n Ross. Esq Village Attorney Village of Greenport 236 Third Street Greenport, NY 11944 Dear Mr. Ross: Re: North Fork Animal Welfare League Reference your letter to me of November 22. 1991 and all prior communications. I have had occasion to discuss this matter at length with the Town Board. I am. by this letter, advising you as follows: The Town does not intend to request the North Fork Animal Welfare League to perform the services of a dog control officer within the limits of the incorporated Village of Greenport. Additionally. except in the case of emergencies, no dog in the Village of Gtreenport will be accepted by the League at our animal shelter. I have read the documents which you have forwa¢ded to me. in your October letter. I have further examined Chapter 32 of the Code of the Vill~ige of Greenport and have examined into past practices of our municipalities including. but not limited to the prior contracts between the Village of Greenport and the North Fork /~n}ma] Welfare League. It is respectfully submitted that the League is not compelled to enforce the ordinances of your Village. Since the' ordinances of your Village supersede those.of the Town. we are left in the rather untenable position of not having any ordinance which we will enforce within your munlclpality. As I advised you at our meeting, 'the Village of Greenport has placed this municipality, as. well as the League, in a rather unfair position by waiting until after approval of our budget before advising us that they intended to deviate from past practice. Obviously, as I told you. there is no money provided for in our budget to fund' the League providing dog control officers and/or any services ; Esg. 11.'1991 Page 2 is also be progided. taxes is not ~ history ,of, thi~ matter:, but ~So where ~the ~OW~ an~ the Vd'lage both H.aving th. is, document in ,haRd ! trust your ~unicip~t.it¥ Witrl make what~e~ a~n~,er~t~ ~, ~e~ ~pP~0Priat~ -wltb th~ [~ga~ :Who sti~l rem~i.ns re~tFv~ ~ an~ ~rm Of: neg~tl~i~n:ln,,~egard ,~ thet future. I will 'awai% your response if you deem., same appropriate~. HAA: mis cc: Town Board Offcers MAYOR 9.'ILL[AM R. PELL III TRUSTEES WILLIAM D. ALLEN STEPHEN L. CLARKE JOHN A. COSTELLO GAlL F. HORTON Vi[[a e o/ t'eenflot,t 236 THIRD STREET · P.O. BOX 2095 GREENFORT. NEW YORK 11944 North Fork Animal Welfare League, P.O. Box 297 Southold, N.Yo 11971 In¢. FAX (516) 477-1877 VILLAGE CLERK LORNA M. CATUS (516) 477-2385 TREASURER MARY E. THORNH1LL ¢516~ 477-02~8 Attention: Ms. Mildred Boyce and Mr. William Kremers Re: Village of Greenport with North Fork Animal Welfare League, Inc. Dear Ms. Boyce and Mr. Kremers: This is further to our correspondence of August 15, 1991 and will acknowledge delivery of the then Town Attorney Robert W. Tasker's opinion letter dated June 25, 1982 addressed to then Town Councilman, John J. Nickles, addressing the issue of the Town's responsibility for dog control within the Village. I disagree with the conclusions he arrived at for the reasons set forth below. Before arriving at my conclusion I reviewed Mr. Tasker's opinion, the Attorney General's opinions attached to Mr. Tasker's opinion and more recent opinions of New York State's Attorney General and the Comptroller. Enclosed are copies of the recent opinions including the 1979 Attorney General's opinion 261 and the Attorney General's opinion number 90-23. Also enclosed is the Comptroller's opinion 82-150. ISSUES There are two issues to be addressed here. The first issue is the financial relationship and responsibilities between the Town, the Village and the League relative to the League harboring dogs at the Shelter which have been picked up in the Village. The second issue is the relative responsibility of the parties regarding the enforcement within the Village of ordinances enacted pursuant to Article 7 of New York State's Agriculture and Market law. HISTORY Although I have not reviewed the League's prior agreementwith the Town, I understand the League was paid certain sums to perform the services of dog control officer within the area of the Town except for the area within the Village. The League used the Shelter and turned over to the Town all fees collgcted when the dogs were redeemed except dogs which were redeeme~ by Villageresidents. With regard ~to Village dogs, fees Were not collected by the Leagu~ ~rom upon r~dem~tion of the the V~llage pay the~ fees oN the League. It 'o~the owners of th~Og. I und~rthe L?ag~e's pres'ent agreement wi/t~.ithe Town th~ League will pick ~p feesfrDm the ,owners ~i{h respect t~ Village dogs ~pon redemption of the dog .and then turn t~ose fees over to t~e Town. VILLAGE'S POSITION There is no issue that funding for dog control is part of the whole Town budget. Consequently, the residents of the Village by their tax dollars are paying for the Leagues services when the League receives compensation from the Town. According to the recent Agreement between the Town and the League~ the League is to perform the duties of dog control Officer in the enforcement of Article 7, "in the Town of Southold, including the Incorporated Village of Greenport located therein".~ As you know, the Village's Dog Control Officer recently resigned. Until further notice it is the Village's position that the League is responsible for carrying out the duties of dog control officer within the Village. Further, any dogs picked up within the Village sho~l~ be harbored a~ the Shelter pursuant to the League's Agreement with the Town at no cost to the Village. AUTHORITY The 1979 Attorney General's opinion 261 interprets Article 7 of the Agriculture and Markets Law as providing for concurrent jurisdiction between Town or Cities which "must" appoint dog control officers and County or Villages which "may" appoint dog control officers. The opinion notes that nowhere is there any indication in Article 7 that if a County or Village determines to appoint a dog control officer that it deprives the Town or City officer of his or her jurisdiction within the boundaries of the County or Vitlage~ In fact, the opinion finds to the contrary, that regardless of what a Village may do.the Town stilI "must" provide the servi~e~ within the Town Whether within or outside the boundaries of a Village. Further~ a Village may enforce its own ordinance and a Town may enforce a Village ordinance but a TOW~ must e~force its own ordinance within the whole of the Town including that area of a Village within a Town. The Comptroller's opinion number 82-150 echoes the November 3~, 1979 Attorney General's opinion. The Comptroller states that even if a village appoints its own dog control officer the town officer would have coRcurrent jurisdiction. The opinion states a town dog control officer is required to provide services to a viIlage situated wholly within the town. The opinion acP~owledges a town's option to contract out its dog control responsibility but explains the exercise of that option does not relieve it of its obligations to a village. Here, the Town. of Southold has attempted to meet its Obligation by requiring in the Agreement that the League provide, dog contro~l ~ervlces in the Village. Finally, opinion 90-23 cites to and reinforces the opinions referred to above. As noted in the 1979 Attorney General's opinion 261 which is cited by Mr. Tasker, Article 7 of the Agriculture and Market laws, which governs these issues, was drastically amended, which amendments went into effect January 1, 1980. Except for the 1979 Opinion 261 and the Comptroller's opinion relative to the tax issue, the only authority cited by Mr. Tasker addresses the prior law. Although cited by Mr. Tasker, the 1979 Opinion 261 is contrary to his opinion relative to a Town's obligation to a Village and the Comptroller's opinion he cites does not address the issue. Mr. Tasker's opinion is based on the last sentence of the fourth paragraph on page 2 to the effect that there was no state statute which authorizes a Town to make its dog control law operative within a Village. As noted by 1979 Opinion 261 and the other recent opinions, the present statute not only allows a town's statute to be effective within a village but requires its enforcement by the town in the village. 3 CONCLUSION The League's obligation to provide dog control services within the Village are clearly indicated by Article 7 and opinions referred to herein, and also by its present agreement with the Town of Southold. DCR:vm grpleag81. cc: Village Attorney Lorna M. Catus, Clerk for the Village of Greenport Harvey Arnoff, Esq., Southold Town Attorney Matthew Kiernan, ESQ., Assistant Town Attorney / Dog Pound Committee Attention: Scott L. Harris, Chairmant/ anomalous situation has ha~e in- ' Xlll, have the as well 91h Cemar), Ibc accepted :reed in thc Constitution, e~;~a£1~cer~. Opinions and c~¢p~d ~.sconcept were :g;COn~tO~ional tlleory of hmnerule has altel-ed the '~ governmhnts. Con- 'l!effect t~nsfev fi-om the ~.es of S°ver, eignt'y. This the Centur~ ~ith cities, ray extendM broadly to n of ho ,m.e rule power to the funilamental: "state vember Of that year, the ' Legislature to grant to their own chartei-s. This at" concept because the we co;vered the four of- ow section 13 of Artict,e, mended.xhat section b3 n of the fora: nar~ed of- ew home'rule, provision >unty charter that could any count3' Officer and qansfer of its functions er home. rule article that '[ and continued the ex- ne. of article nine of this XIII. ~ed until 1979 when the '~' County Civil Ser¥ice '79), in which it reversed · on the basis of Justice 04 [t979]) /he result in [under its constitutional -~icte IX max' abolish the sheriff's term: and may dntive office. The home r~le power ulpheld in thet~el Be!lo case is congeptually in- comparibl.e..with a theory that the offfaers named in section 13 of Arti- cle Xltl are state officers. Home rule ~s a p.6~ver granted to a potific~' mbdivlsion to run i;;s own allah's. Home i'ule is not a grant of po~r to a political subdivision to decide wh~? are tO be state officers. ~iis is to say that the authorization to abo~h aa office held by aft'officer named in section 13 was a decision by:tbe..P~ple to makelJ~ officers purely county officers; it was not a dec~sion to allow.~ ccmnty to abolish a "state" office. Thus Del Bello represents q~ecogaition of ~e. reality of contemporary county g~v. ernment. Cq~ties may struc- tiire their government as they wish and.in do'rog sojffay determine who carries out duties imposed by the State. Moreg~er, even in counties tha~t do not exercise their home rule power, t!ltrOffikers named in sec- tion 13 of Ayt. icle XIII have ceased tgt be ;'J(ate' officers. This opinion is limited to the qnest~~r__t~e_.~_s. named in section 13 of Article XIII ~re~mte officers" prohibited by section 7 of that article from receiy,2,fig a salary increase -- or de- crease -- during their term of offi,~. Tbey ~e not'state officers". This opinion, therefore, super~ary informal opinions rendered after 1958. Any further questions condning the relationship between this new interpretation of section 7~6f Article XIII and the several Iggisla~tive acts mandating the amotr/~t of compensation to be paid to full-time district attorneys shoul~d/be referred to county attorneys. (In the curse of the City of New Y3xk, questions should be referred to the Corpora- tion Counsel.) Dated: N/~emember 21, 1979 Hon. T~mas R. Sullivan Distr~Attorney, Richmond County I-I9~. Robert__Morgent hau strict Attorney, New York County AGRICULTURE AND MARKETS LAC,' §§ 106-126 (Article 7) enacted by chapter 220 of the Laws of 1978 and arnended'by chapter 221 of the Laws of 1978, both to become effective January 1. 1980: DOG CONTROL OFFICERS We acknowledge receipt of your letter inquiring whether your town is responsible for enforcing the dog control ordinance o.~ a village within your town. You state that the village has previously enforced its own dog control ordinance.' 261 · - : 1 80.-23 A different result is obtained for local regulations which are aZ violations. The Penal Law establishes a mandatory , for those violations set forth (/d., derive less surcharge for In under as long as Constitu nicitmJ Home provides, for: Penal Law; it is taw whfcl fore, would mandator3 and certain no inherent bar to We conclude that mandatory The Attorney ( departments of and unofficial thee is adopt a local law which im ,l~?ses a s which are classifiedas viohitions. formal opinions only to officers and perforce is an infomal t, Corporation~kCounseI ; of Mount Vernon, City P~osevelt Square Mount Vernon, New York 10550~ Patrick Bm-nett-Multigan, Assistant Attorney General March 19. 1990 \ \ Opn, No. I 90-23 Requestor: AGkJCUt.] L:RE A_ND 5L&RKETS LAW. ART 7. !040 AG 4-30-90 Local laws passed by a tow~ pursuant to article ? of the Agriculture and Markets Law m~y ~e enforced h~ a vfll~e located entirely witKin the ~ow~ You have asked whether local leash laws passed by a town may be er~orced in a village located entirely within the town. Specifically, you inqnire whether the Town of Brutus is empowered to ~force its hmsh law, enacted as a local law, in ~the V~llage of V~reodsport. You note that the town and village prewously agreed that the town Would enforce the leash 1,a_w_ within the v~ll~ age but tha~ a~question has arisen as to the town s authority to do so: i.. Agriculture and Markets Law, Article 7 (§§106-126) governs the ]icer~sing~ identification and control of dogs. Sections 106-123 pro- vide spe??lC requ~rexnents to be enforc~ by local dog ,.control offi- cern; section 124 authorizes additional local~laws or ordinances: "Any municipality may enact a .local laVY or ord~_mance upon the keeping or running at Iarge& dogs and the seizure thereof, provided no municipality shall vary, modify, enlarge or restrict the provisions of this article relating to identification, licensing, rabies vaccinations and euthanization'. Section 124 also lists the penalties that may be imposed by such local laws or ordinances. The general enforcement scheme of article 7 contemplates con- current jurisdiction of county, city, town and village dog control of~cers, so that a town offf~cer must enforce the provisions of article 7 in a village located entirely within the town (1979 Op Atty Gen [Inf] 261; 1982 Op St Comp 150). In a prior opinion addressing the jurisdiction of dog control officers enforcing article 7, we stated: "Agriculture and l~[arkets Law §114 provides that every to~n and city shall appoint and any village and any county may appoint one or more 'dog control officers.' Because the whole area of the state consists of either to.ms or cities and they mus~ appoint such officers, obviously, ffa county may appoint such officers, the statu~e contemplates concurrent juris- diction of the county officer, on the one hand, and the city or town officer on the other; similarly, con- cu~en~ jurisdiction is contemplated between bhe to~m officer, on the one hand. and a village officer on ~he other. Nowhere ~s rner any provision in the .-4rncuhure and Markets Law ~hat if the county 1041 AG 4-30-90 I90-23 OPINIONS DFTHE ATTORNEY GENEBAL exercises its option to appoint a dog control officer, that officer is to replace thetown and city dog control officers within the counq, either in whole or in part; neither is there any indication in the statute that if a village exercises its option to appoint a dog control officer, the town dog control officer of the town within which the village lies no longer wo~ld have jurisdiction within the village, On the contrary, Ag- riculture and Markets Law §114, subdiv~ion I indi- ca~es that the function oi~ such mn officer is to be exercised 'within the appo'mt~ng mum'cipality' and subdivision 3 authorizes the Commissionerof Agr'~- culture and Markets to appoint-as many state d g control officers as he deems necessary to 'supervise the provisions' of the stat~u~e. As fi~t~er~ill/u~vration of legislative intent'to provide c0nc~u~ent j~rrisdic- tion, consider Agriculture and Marke~s L~w §1~8, subdivisions I and 2 w~rch provide that .any dog control officer or peace ol~er in the employ of or under contract to a municipali~ty shah seize any.dog which is not identified and which is not on the owner's premises and any dog which isnot licensed, whether on or off the owner's premises; also that such an officer may seize any dog 'in ~iolation of any local law or ordinance relating to the control of dogs, adopted by any municipality pursuant to the provis- ions of' ~Article 7 of the A"gricu]ture and Markets Law" (1979 Op Atty Gert [Inf] 261~ 262). It is our opinion that the statu~e also authorizes a town to enforce its local law enacted pursuant to article 7 in a village located entirely within the town, absent any provision in the local law limiting the area of its applicability (see 1969 Op Atty Gert [Inf] 92; 1968 Op Arty Gen [Inf] 77). If the village has enacted dog control regulations, the to~m officer may enforce the provisions of the village's law but is not required to do so (1979 Op Atty Gen II'f} 261). The v/llage can ensure enforcement of its regulations by providing for/ts ovm dog contro] system (ibid.). Furthermore, section 114(4) provides "... any dog control officer.., may serve any process.., related to any proceedings, whether criminal or civil in nature undertaken in accord ~vith the provisions of this article or any- local law or ordi- nance promu!gated pursuan~ thereto". It ~.~us appears that the Le~dslature's intent was ~o provide for cen~u~en; jurisdiction and enforcemen~ powers in relation to Io~.~ i042 AG 4-30-90 OPINIONS~ OF THE ATTORNEY GENERAL 190-24 laws enacted pursuant to article 7 as well as to the provisions of article 7 itself. We conclude that local leash laws passed by a town pursuant to article 7 of the Agriculture and Markets Law may be enforced in a village located entirely within the town. The Attorney General renders formalopir3v~ only to officers and department~ of the State government. This perforce is an informal and unoffmial expression of views of this office. Requestor: David J. O'Connor, Vfllage Attorney Village of Weedsport P.O. Box 236 Weedsport, New York 13166 Written by:-' Siobhan Shanks, Assistant Attorney General Issued on: M~ch 19, 1990 Opm No. 1 90-24 GF~N~ERAL MUNICIPAL LAW, §360; VILLAGE LAW, §3-301(2)(a) ..... .- A resolution of a county legislative body to terminate public utility services established under section 360 of the General Municipal Law is nox subject to a referendtun. ' ...... You have asked whether a resolution to terminate your county's p~rticipation in the provision of public utility services is subject to a referendum. Municipal corporations are authorized to construct, lease, put- chase, own, acquire, use and/or operate any public utility service to furnish itself or its inhabitants with utility ser~dces ~General Mu- nicipal Law. §360[2]). The proposed method of constructing, leas- ing, purchasing, acquiring the plant and facilities for this serxdee; the cost of the service; and the method of furnishing the service must be fixod by resolution of the legislative body of a county (id., §56013]). Prior to taking effect, the proposal must be submitted to +he~ e,e~r~ "+~ ~ of the county for approval (id., a ....... sooutoj;. State law ~s silent regarding the termination of these activities by the county. Ysu ka~-e ....,~,,,,~d us that yom couno i~as eutered into agree- 1043 AG 4-30-90 LICENSING AND ]~EGULATORY POWERS -- D~ Control (/ur~ct/on of town dog control offic~r~ extend~ ~o villages) AGRICULTURE AITD ~ LAW, § 114: The town dog control officer is required to provide ~ to a village sttua'h~l wholly within the town. We have been asked whether a town must furnish the services of its dog control officer to a village s/~uated wholly w/t~i~ the tow~ Ags/culture and Markets Law, § 114{1) d/teats each town to appoin~ one br ~nore dog control officers for fl/e purpdse of asshting, w/th/, the town, w/th the con/~ol of dogs and the enforcement of art/cie 7 of the Agriculture and Markets Law, along with the Fu~.~i2ofgU~et/~ns p~ted theretmder. Sect/on 114 leaves no doul/t that the the v/llage /s s/tuated Wholly w/thin the town, the dog ~ontrol offickt mu~t pray/de services to the' village. Certain 114, to appoint their own dog control section ....... mose m wes~cnester ~un~y, those villages/n Nassau 'County whkh 191 OPINqONS OF THE STATE COMPTROLLER 82-151 have not b~ resolution provided that do~ license applications be made to the town clerk, and those villages m Rockland County with a population of fifteen thousand or more which trove elected to accept dog license applications, The village and town .in question are not local~l in any of these counties, therefore the to~m is not relieved of its respansibflity to the village. Sect/on 114(2} of the Agr/culture and Markets Law_ provides an alternative or add/- tiaa to appointing a dog control officer, which is to contract for dog control officer ser~dces w/th an)' other mun/clpality or with any incorporated humane society or similar incorporated dog protective association. Or two or more mun/cipalities can appoint a do~ control officer who shall have jur/sdiction in each of the mumc~paliti~ Should a towu resor~ to any of these measures, however, there is no provision reliev- ing ~t of its obligatien m previde dog control officer ser~uces to a village wholly s/tn- ate(/within its borders. Under bo*.h .~ 1!iQ ~ end !!4(~, a x4!!age may appoin*, i~ cv.-n dog con~a] ~fficer ar it may make other provismns for dog conh'ol~ but unless it is one of the villages in Westohestor, Nassau. or Rockland counties diesussed above, a village hs not requLred to so appoint or provide. Even if a village were ~o appoint or otherwise pr(~vide for its own dog control, officer ser~uces, the to~-n dog control officer would have concurrent jur~cuon ~um the v~llage aog con~coi oIi]cer. since we find no applicable prevision of law allowing the town dog control officer to provide services to lees than the entire to~m we mus~ conclude that the town dog control officer/~ required to pray/de ser~qce$ to a village dtuatsd wholly v~thin the town (see also, 1979 Atty Cea [Inf Opns] 261). May 14. 1982 .Joseph R. A~onito_ Esq., Village Attorney Village of the Branch Opn No. 82-15] MUNICIPAL COOPERATION -- Joint Mtmiclpal and Private Under~klng (joint ROI~£RT W. TASKER Town At totn~, OFFIC~ORNEY GREEN'PORT, I,.I., NE~ YORK 11944 Sune 25, 1982 TELEPHONE ($16) 477-1400 Mr. ,John J. Nickles, Councilman Main Rdad Southold, New York 11971 Re: Dog Leash Laws Dear John; In conjunction with your negotiations with the North Fork ~nimal Welfare League for the renewal of its Dog Control Contract with the Town, you have requested answers to the following questions: I. If the Village of Greenport repeals its Leash Law, ~n~$$ the Town . ..o, 'of Southold enforce the Town's Leash Law withIn the territory of the Village of Greenport? I~. If the Village of Greenport repeals its Leash Law, ~,v._the Town make the Town Leash Law effective within the Village of Greenport? By way of background, it must be recognized that Article 7 of the Agriculture and Markets Law has, in the past, been amended numerous times. By Chapter 220 of the Laws of 1978, the then existing Article ? was repealed and an entirely new Article ? was enacted and, with certain exceptions, became effective on January 1, 1980. By reason,of the many amendments.prior to 1978, and the fact that certain provisions did not apply in all counties, there are numerous opinions of the State Comptroller and the Attorney General which appear to conflict with later opinions. It is, therefore, important that these early opinions be read in the light of the then existing provisions of the Agricultt/re and Markets Law. There are, for instance, early opinions to the effect that a Town Dog Warden may and is required to enforce a Town Dog Control Ordinance in a village within a town in certain counties. The basis of these opinions was that, at that time, villages (except in Nassau, Suffolk and Westchester Counties) were not authorized to appoint dog wardens. The reasoning of these opinions was that the Agriculture and Markets Mr. John J. Nickles -2- June 25, 1982 Law was intended to apply generally .tJaroughout the State and that since villages were not then authorized to appoint dog wardens, that the Legislature intended to vest the power to enf. orce village ordinances in the town .dog warden, since a con- trary view would nullify enforcement procedures in villages which had no authority to appoint its own dog warden. Si~ce 1929,~ as well as towns and cities we~e authorized to,.adopt ordinances mud runnlngat large of dogs. In 1968, ! Markets Law was amended to a~thorize villages to establish dog pounds and ap~point dog wardens. Accordingly, since villages are To the best of my information, there are few if any~ court de~cisions, construing the various provisions of the ,Agri~cUliure and Markeis Law and ~one involving the questions which you raise. Tl{~re are, however, (~pini0ns of both ~he State Comptroller and the ~ttorney General on th~ issues raised ~ y, ou~ questions. In answer to the first question, ti am of the opinion that if the Village of Greenport should repeal ifs Leash Law, the Town of Southold is not required to enforce the Town Leash Law within the inCOrporated limits of the Village ~ Greenport. ' SeOtlon 11~ Subdivision 3 of the,Municipal I~ome Rule Law pr0~des' that any local law ~ a town shall be effective and operative only in that portion of the town outside of any ,village, except ~n of f~e and incIudes of the Town ~aw provides that a rule, reg~ l~tion or ordinance of a town shall be effective and operative only in that portion ~ ~own outsxde of any mcorp~ate~ v~ll ge or cxty therein, except, as~iothe T~e effect of these ' two provisions Of to make its,.local law specifi- cal!y authorizes the same. ! hav~I been unable which authorizes the ~own to make it~ I~ control local law or or~nce effeCtiVe and operative in a village Within the "town. Enclosed herewith are two opinions of t~ Attorney General to the same effect:, (Opinion dated June 11, 1958; Opinion dated March 13, 1975). The answer to the second question, i. e., Can the Town take action to make its Leash Law enforceable in the Village inthe absence of a Village Leash Law? must also be answered in the negative. For the reasons set forth above, the Town of Southold is not empowered ~o make its Leash Law effective and operative in the Village Mr. John J. Nickles ¸-3- June 25; 1982 Greenport. (See also 18 Op. St. Compt. 1080~ 20 Op. St. Compt. 272 which are likewise enclosed herewith). The simple answer is that, regardless of who per- forms dog control services in the ViLlage of Greenport, the regula~on of dogs . running at large can only be accomplished by the Village adopting an ordinance or 10cal law providing for Such regulation; Even ff the Town Board wished' to have frs Leash Law effect~ive within the Village of Greenport, there is no authority for ' the TS~n to do so, since the Municipal Home Rule Law and the Town Law. restrict ~e area in which the same ~.reeffective to that area outside of the limits of the Although your questions dealt only with the consequences of ~he repeal by the Vii;tag~ oF its Leash Law, I am als0 enclosing herewith for Your infOrmation, two opinior~ of the State Comptroller (Opinion No. 69-568; Opinion No. 64-272) both ~e effect that a town dog warden is not required to enforce a leash law of a L town. AlSo enclosed is an opinion of the Attorney General (Opinion 1979) tothe effect that (1) a town must.enforce the provisions Markets ~Law in a village within the town. and a town c~Og warden ~ eh:force a vilI~ge leash law, but,~s~ not required enclosed herewith for your information is a December' 24, 1980 opinion of Comptroller (Opinion NO. 80-456) to the effect that town taxes for dog are a whole-town charge. This is so even in cases where a is required to license dogs as in the case in Westchester County. In the letter to you from the North Fork Animal Welfare League, dated June 22, 1982, it is stated that, if the Village repeals its Leash Law, ,the Village "would still not be covered by Southold~s Leash Law until such time as they were added by,resolution of the ~own Board". I have reviewed Article 7 of the Agriculture and Markets Law in detail .and 1 am unable to find any authority for a town making its leash law effecti~re in a village within*the town by the passage of a resolution. If you have any questions concerning the contents of this letter, please give me a call. RWT:aa Yours very truly, ROBERT W. TASI~LER encs. Oj~CCY$ MAYOII WILLIAM R. PELL Ill TRUSTEES WILLIAM 1), ALLEN ~~~ember-~ r :'""" ~ ..... ~ember 14, 236 THIRD STREET · P.O. BOX 2095 GREENq~RT. NEW YORK 11944 Town of Southold Office of Town Attorney P.O. Box 1179 S~uthold, -N.~. 11971 FAX (5161 477-1877 VILLAGE CLERK LORNA M. CATUS (516) 4~7-2385 TREASURER MARY E ]~HORNHILL 1991 ~51614774~248 RECEIVED 1 1991 ~;ou~old Tow~ C~rk Attention: Harvey Arnoff, Esq. and Matthew Kiernan, Esq. Re: North Fork Animal Welfare League Dear Messrs. Arnoff and Kiernan: As a follow up to our conversation on November 8, 1991, I want to again express the concern ofthe Village of Greenport's Board of Trustees regaFding the League's refusal to respond to requests from Village residents regarding dog control problems. The Village's position was set out at length in my correspondence of October 8, 1991. I thought the issue was resolved until last week when I was informed certain Village residents complained about dogs and the League refused to respond. I understand there was a suggestion to League personnel that a Greenport Police Officer would deliver a particular dog to the Shelter but was advised the dog would not be accepted inasmuch as there was nd contract between the Village and the League. After ou~ discussion at Town Hall on November 8, 1991, I stopped off at the Shelter in an effort to determine if in fact the Shelter was refusing dogs from Greenport. I satisfied myself that the League has taken the position that it will not provide services within the Village ~undaries~ or accept dogs at the Shelter which are found wi.t~h~ in the Village's boundaries. After my visit to the Shelter, I spoke with Bill Kremers who indicated the League was awaiting an opinion from the Town Attorney's Office as to the accuracy of the conclusions set forth in my October 8, 1991 correspondence. I suggested ~o Mr. Kremers that in the interim the League agree to acce~t Greenport dogs at the Shelter until your office renders an opinion. Mr. Kremers was unable to commit to my suggestion for an interim resolution. I am awaiting the League's response in t~at ~egard. With respect to my October 8, 1991 opinion letter, most of the material I relied upon was attached to the correspondence. I shepardized the authority relied upon and I am aware of no ~ontrary authority. On November 8, 1991 there was a suggestion that the involved parties meet to discuss this matter. We would be happy to meet at the convenience of the League and your interim solution in the office but must insist on an meantime. DCR:vm cc: North Fork Animal Town of Southold, Village of Greenport, grattdogS1 Welfare League, Inc. Clerk Clerk HARVEY A. ARNOFF Town Attorney MATI'HEW O. KIERNAN Assistant Town Attorney OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall. 53095 Main, Road P,O.~Box 1179 Southold. New York 1 I97 I Fax (516)'765-1823 Teiephone~(51~6) 765:t800~ EXECUTIVE SESSION - NOVEMBER 26. 1991 TO: FROM: DATE: RE: Town Board e~ Harvey A. Arnoff. Town Attorn November 25. 1991 North Fork Animal Welfare League I met with Dan Ross and Bill Cremers in regard to the problems in. the Village of Greenport. I expressed to Dan Ross that the Town does not have the personnel or the money in their budget to provide full services to the Village of Greenport. It is my opinion that. at least for the entire next budgetary period. the Village Should continue to transport any dogs to our Shelter and we should except dogs from the Village. I read the Law as it pertained and I advised that I was aware of the Law and it seems to indicate that we must provide Town wide services which does. in fact. include the Village of Greenport. I expressed to him that if he didn't like this then we would be pleased to litigate it and two (2) or three ('3) years from ,now maybe a Court would tell us to provide services 'in the Town. ~hich I believe would be counter~productive to both sides. STEPHEN L. ~T-ARK£ RECEIVED Nov 5 1991 [own CJerk SOuttiold 236 T~IRD STREET · ?.O. I~x~lll~or 22, GREENPORT. NEW YORK 11944 1991 FAX {'516) 477-1877 VILLAGE CLERK LORNA M. CATUS (516} ~-77-2385 RECEIVED Harvey Arnoff, Esq. Southold Town Attorney P. O. Box 1179 Southold, N.Y. 11971 NOV 2 5 1991 Sou~bold T,-,~,,, Cie,dr Re: North Fork Animal Welfare League, Inc. Dear Mr. Arnoff: This is further to my correspondence of November 14, 1991 and our meeting with Mr. Kremers of November 22, 1991. Your suggestion that the Village continue without the League's services for another year is not acceptable. I understand the League asserts there will be a shortage of personnel. This may be true but it flies in the face of fundamental fairness to provide no services to a select group of taxpayers based only on the location of their residence so that the rest of the taxpayers can continue to enjoy adequate service. It is obvious that any shortage of services should be spread evenly among the taxpayers. We appreciate your efforts to resolve this matter and look forward to the Town Board's response which I understand will be forthcoming after Tuesday's session. Village Attorney DCR:vm cc: North Fork Animal Welfare League, Inc. Judith Terry, Clerk for-the Town of Southold Lorna M. Catus, Clerk for the Village'of Greenport THIS AGREEMENT made the lSfJa day of Novemberl 1988, laetween the TOWN O1: $OUTHOLDr a municipal corporation of the State of N~e~, York, having its principal office at Main Road, $outhold, Nev~ Yorl~ (hereinafter "Southold"), the VILLAGE OF GREI~NPORT. a munidpal corporation of the State of New York, having its p~i~cip~al office at 2:36 Tl~ird Street. Greenport, New York ~'(hereinafter '~Greenport")~ and th~ NORTH FORK ANIMAL WELFARE LEAGUE, INC., a not ~for profit organiza~tion of the State of New York, havi.ng its principal office at Peconicr New Yor~< (hereinafter "League"). WHEREAS, Article 7 of the Agriculture and Markets Law provides that towns and villages may contract for dog control officer services and with another municipality or an similar incorporated dog protection for pound and shelter services incorporated humane society or association, and WHEREAS, the League is legally qualified [o provide such service~, and WHEREAS, the League presehtly is under contract with Southold to provide such services to Southold for a term of three years, commencing on August 1, 1988 and terminating on July 31, 1991, and WHEREAS, Greenport has enacted a dog control law, and desires to appoint a dog control officer to administer and enforce such law, and the provisions of Article 7 of the Agriculture and Markets Law within the incorporated Village of Greenport, and to utilize Southold's c~6g pound or shelter ("shelter") to house dogs seized in Greenp~)rt, and to utilize the services of the League to care for such dogs at said shelter, all in accordance with the terms and conditions hereinafter set forth; NOW, THEREFORE, IT IS AGREED AS FOLLOWS; FIRST: Greenport agrees that it will: (a) Appoint a dog control officer. Cb) Maintain in effect during the term of this agreement, a dog control law which shall inter alia impose restrictions upon the keeping or running at large of dogs within its incorporated limits, and to provide for the seizure and impoundment of such dogs. Cc) Enforce the provisions of Article 7 of the Agriculture and Markets Law within the incorporated limits of Greenport. SECOND: Southold agrees with Greenport that Greenport shall have the right to use Southold's shelter to house all dogs seized by Greenport within its incorporated limits for violations of its dog control raw and/or the provisions of Article 7 of the Agriculture and Markets Law. Unless otherwise provided by law, ali fees, penatti, as and fines imposed for violations of Greenport's dog control law shall be paid to Greenport. THIRD: It is agreecJ between Greenport and the League as follows: Ca) Subject to the provisions hereinafter set forth, the League will accept at the shelter all dogs seized by Greenport's dog cont~'-ol officer and will properly feed, water and otherwise care for such dogs. Cb) The League shall have the right to refuse to accept any dog at the shelter which, in the opinion of the League, is sick or injured. Greenport agrees, at its own expense, to take such dogs to a veterinarian for diagnosis and necessary treatment before their acceptance at the shelter by the League. -. (c) G eenport shall notify the League prior tc~ the delivery of any stray dogs to the shelf:er. {d) The League will respond only to emergency situations during its normal working hours when Greenport's dog control officer or policeman are unavailable or unable to respond. (e) Greenport agrees to pay the League for its services to Greenport, the following sums, to wit: ii) The sum of $8.00 per day per d(~g for dogs which ara redeemed by the owners, or adopted out in less than ten days from the acc~eptance at the shelter. : [ii) The sum of $100. per dog for all other dogs accepted at the shelter. Such charge shall cover the minimum State mandated stay of five days, including distemper and Parvo injections. All veterinary bi]Is will be a separate charge to Greenport. The League, in the exercise of its discretion, shall determine which dogs shall be destroyed and which dogs shall be held at the shelter for possible adoption. The above charge of $100. shall also be applicable to all dogs which give birth to puppies before the end of the mandatory five day stay, whose ownership can not be established. Such $100. charge shall apply also to each of such puppies~ {iii) Greenport shall pay the League the sum set-forth above on a monthly basis, upon the presentation of vouchers therefor by the League. FOURTH: Greenport, at its own expense, agrees to provide all required equipment, radios, uniforms, badges, and appearance ticket forms required by its dog control officer, who shall maintain all necessary records relating to his duties, with the records maintained by the League. FIFTH: It Js 'agreed between Greenport and.the League that the shelter shall be open daily between the hours of 8:00 A.M. and 4:00 P,M., exclusive of Sunday and holidays. Dogs will only be received during shelter hours. : and shall cross-check the same -3- SIXTH: It is understood and agreed by and between the parties hereto that if the provisions of this Agreement shall conflict with any of the provisions of the Agreement between Southold and the League~ dated August 23, 1988, the provisions of this Agreement shall be deemed to have superseded the provisions of said Agreement to the extent of such conflicting provisions during the period that this Agreement remains in -effect. SEVENTH: This Agreement shall take effect on the 1st day of August, 1988, and shall terminate on the 31st day of July, 1991. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. AL] [S E .A L) [S E A L) · . Supervisor Geor~ W. Hubba/'d, Mayor NORTH FORK ANIMAL WELFARE LEAGUE, IN(]. J~n LePre, Acting President STATE OF NEW YORK) COUNTY OF SUFFOLK) On this //~_4~ day of November, 1988~ before me personally FRANCIS J. MURPHY. to me known, who being by me duly sworn, did depose and sa,/ that he resides at Country Club Drive, Cutchogue, New York; that he is the Supervisor of the Town of Southold, the municipal corporation described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Town Board of said corporation; and that he ~igned his name hereto by like order. STATE OF NEW YORK) COUNTY OF SUFFOLK) ~' "~- Notar~ Public JUDITH T, TERRY Notary Public, State of I~ew¥0~ No, 52.0344963 Q~alifl~ in Suffolk ~W ~ ~m~ ~k~ May 33, 1~ On this -/~' day of December,, 1988, before me personally came GEORGE W. HUBBARD, to me known, who being by me duly sworn, did depose and say that he resides at 178 Central Avenue', Greenport, New York; that he is the Mayor of the Village of Greenport, the municipal corporation described in anc~ which executed the above instrument; that he knows the seal of said corporation; that the seal .affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Trustees of said corporation; and that he signed his name hereto by like order. -- Notary Public -5- STATE OF NEW YORK} COUNTY OF SUFFOLK} On this .y~ day of December. 1988. before me personally came JEAN LePRE, to me known, who being by me~,duiy sworn, did depose and say that she resides at 6295 Bridge Lane, Cutchogue, New York; Acting that she is the President of the North Fork AnirnaJ Welfare League, Inc.. the corporation described in and which executed the above instrument; that she knows the seal of said corporation; that the seal,affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation; and that she signed her name hereto by like order. ;-;.Notary Public ~ JUDI11t'T. T~RR~ NotaP/Public, State of [~aw Yon~ N~. 620344963 81ifi~l in Suffotk County ComQm~ss~on Exp~ras May 31 19~.~-t -6- THE 'STATE INSURANCE FUND 199 CHURCH STREET NEVV YORK. N.Y. 'i000~7 (212) 312-7276 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE NORTH FORK ..ANIMAL WELFARE LEAGUE INC 70 BOX 297 SOUTHOLD NY 11971 POLICY NUMBER + 673 615-6 DATE 12/09/88 CERTIPICATE NUMBER ,. 540-483 POLICYHOLDER NORTH FORK ANIMAL WELFARE LEAGUE INC PO BOX 297 SOUTHOLD NY 11971 CERTIF!CATE HOLD~ TO~ OF SOUT~0LD ATTN GEORGE PENNY TOWN H~L ~IN RD SO~THO~ NY 11971 THIS IS TO CERTIFY THAT THE POLICYHOLDER NAMED ABOVE IS INSURED WITH THE STATE INSURANCE FUND UNDER POLICY NO. 673 415-6 UNTIL 8/23/89 , COVERING THE ENTIRE OBLIGATION OF THIS FOLICYHOLDER FOR WORKERS' COMPENSATION UNDER THE NEW YORK WORK- ERS' COMPENSATION LAW WITH ILESPECT TO ALL OPERATIONS IN THE STATE OF NEW YORK. IF SAID POLICY IS CANCELLED, OR CHANGED PRIOR TO 8/23/89 IN SUCH MANNER AS TO AFFECT THIS CERTIFICATE, 5 DAYS WRITTEN NOTICE OF SUCH CANCELLATION WILL BE GIVEN TO THE CERTIFICATE HOLDER ABOVE. NOTICE BY REGULAR MAIL SO ADDRESSED SHALL BE SUFFICIENT COMPLIANCE WITH THIS PROVISION. 277 THE STATE INSURANCE FUND DIRECTOR, INSURANCE FUND UNDER",A/RITING THE STATE INSURANCE FUND 199 Church Street New York N.Y. 10007 (212) -312-7910 NORTH FORK ANIHAL WELFARE LEAGUE INC ?OBOX 297 SOUTHOLD NY 11971 DATE 12/09/88 POLIC~ NUMBER 673 415-6 NOTICE OF REi/~STATEMENT Dear Policyholder, We are pleased to advise you that the Notice of Cancellation previously sent on 11/28/88 is hereby revoked and the policy as issued and as amended by subsequent endorsements, remains in full force and effect without lapse of coverage. Please note that if there were any Certificates of Insurance outstanding at the time of cancellation, the affected certificate holders were notified of such cancellation in accordance with the terms of such certifica%es. All such certificate holders are now being informed of their reinstatement. A copy af this notice is mailed to your representative. MARTIN MONAS, CREDIT & COLLECTION MANAGER ROBERT W.'TASKER Town Attozney O FFIC~ORNEY T~D 425~ MAIN ST. GREENPORT, '~I~., ~NEW YORK 11944 June 25, 1982 TELEPHONE (516) 47%1400. Mr. John J, Nickle's, Councilman Main Rdad Southoldo New York 11971 Re: Dog Leash Laws Dear John: In conjunction with your negotiations with the North Fork Animal Welfare League for the renewal of its Dog Control Contract with the Town, you have requested answers to the following questions: I,~ .If the Village of Greenport repeals its Leash Law, , u~_~ the Town . -~ .~' of Southold enforce the Town's Leash Law within the territory of ~ '"' the Village of Greenport ? ' '" If the Village of Greenport repeals its Leash Law, rnmy tke Town make the Town Leash Law effective within the Village of Greenport? By way of background, it must be recognized that Article 7 of the Agriculture and Markets Law has, in the past, been amended numerous times. ,By Chapter 220 of the Laws of 1978, the then existing Article 7 was repealed and an entirely new Article 7 was enacted and, with certain exceptions, became effective on January 1, 1980. By reason,of the many amendments prior to 1978, and the fact that certain provisions did not apply' in all counties, there are numerous opinions of the State Comptroller and the Attorney General which appear to conflict with later opinions, It is, therefore, important that these ea.rly opinions be read in the light of the then existing provisions of the Agricultlfre and Markets Law. There are, for instance, early opinions to the effect that a Town Dog Warden may ~and is' required' to enforce a Towll Dog Control Ordinance in a village within a town~ in certain counties. The basis of these opinions was that, at that time, villages (except in Nassau, Suffolk and Westehester Counties)were not authorized to appoint dog wardens. The reasoning of these opinions was that the Agriculture and Markets Mr. John J. Nickles -2- June 25, 1982 Law was intended to apply generally throughout the State and that since villages were not then authorized to appoint dog wardens, that the Legislature intended to vest the power to enforce village ordinances inthe town.dog warden, since a con- trary view would nullify enforcement procedures in villages which had no authority to appoint its own dog warden. Since 1929, villages as well as towns and cities were authorized to adopt ordinances to impo .ac restrictions upon the keeping and running at large of dogs. In 1968, Section 119 of the Agriculture and Markets Law was amended to authorize villages to establish dog pounds and appoint dog wardens. Accordingly, since villages are now empowered to appoint dog wardens and to adopt leash laws, many of the prior opinions of the State Comptroller and the Attorney General are no longer valid. To the best of my information, there are few if any court decisions construing the various provisions of the Agriculture. and Markets Law and none involving the questions which you raise. There are, however, opinions of both the State Comptroller and the Attorney General on the issues raised in your questions. In answer to the first question, 'I am of the opinion that if the Village of Greenport should repeal [ts Leash Law, the Town of Southold is not required to enforce the ~o~rn Leash Law within the incorporated limits of the Village of Greenport. Section 11, Subdivision 3 of the Municipal florae Rule Law provides that any local law ~ a town shall be effective and operative only in that portion of the town outside of any village, except in a case where the power of the town board extends to and includes that area of the town which is within the village. Section 132 of the Town Law provides that a rule, regulation or ordinance of a town shall be effective and operative only in that portion of the town outside of any incorporated village or city therein, except as otherwise specifically provided by statute. The effect of these two provisions of law is that the town board is only authorized to make its local - laws and ordinances effective within a village in the town where a state law specifi- cally authorizes the same. I have been unable to find any state statute which authorizes the town to make its dog control local law or ordinance effective and operative in a village within the town. Enclosed herewith are two opinions of t~ Attorney General to the same effectS: (Opinion dated June 11, 1968; Opinion dated March 13, 1975). The answer to the second question, i.e., Can the Town take action to make its ., Leash Law enforceable in the Village in the absence of a Village Leash Law? must also be answered in the negative. For the reasons set forth above, the Town of Southold ~s no: empowered to make its Leash Law effective and operative in the Village of Mr. John J. Nickles -3- June 1982 Greenport. (See also 18 Op. St. Compt. 1080; 20 Op. St. Compt. 272 which are likewise enclosed herewith). The simple answer is that, regardless of who perK forms dog ,control services in the Village of Greenport. the regulaiioiu o,f.' dogs rurmLug~.'a% large Can only be accomplished by the Village adopting an or,ante or Uillage of G~reenpor~. Although your questions dealt only with the consequences of the repeal by the Vil~lag, e of its Leash Law, I~am also enclosing herewith for your information, two opinions Of the State Comptroller (Opinion'No. "8. ' ' 69-06 ,' Opmlon No. 64-272) both to the effect that a town dog warden is not required to enforce a leash law of a village within, a town, Also enclosed is ar~ opinion of the Attorney General (Opinion dKted November 30, 1979) t0 the effect that (1) a town must enforce the provisions oi ~t~icle 7 of the Agricultnre and Markets Law in a.village, within.the,town, and thai. {2) a town dog ,war, den ..re. ay enforce a village lea~h law, but is no~ ~yeqnired D do Alsg. e~closed herewith for your information is a December' 24, 19~0 opinion of ~l~"State Comptroller (Opinion No. 80-456) to the effect that town taxes' ~or dog c'~ntr0i expenses are a whole-town charge. This is so even in cases where a village is required to license dogs as in the case in Westchester County. In the leiter to yon from the North Fork Animal Welfare League, dated June 22, 19~2, it is stated that, if the Village repeals its Leash Law, the Village "would still not be. covered by Southold s Leash Law until such time as t.h~e,~ were. . added by res01utlon of the Town Board . I have reviewed Article 7 of the Agriculture and Markets Law in detail and I am unable to ~ind any authority for a town making its leash law effective in a village within the town by the passage of a resolution. If you have any questions concerning th~ contents of this letter, please give m~ a c all, Yours very truly, ROBERT W. TASKER RWT :aa encs. A leading text, copyrighted 1963. XXDERSON~0n ZOmn~l Law / and Practice in New York State. § 24.02, at page 718. states as fol- lows: The ~¢rm 'misdemeanor rather than 'offense' is used in many Of the tt)wn ZOlnng ordinances because it was consistent with Sect½m 268 of:~'Ihe. Tbwn La,w when such ordinances were adopted. Whi~t~vi:r $em~ is us&el irt a town ?~tdlnance, a viola- tion consfitm~s 'art~offense ;whirl{ may be trier b,y a magistrate misdemeanor which entitled {he [ do Tmvn Law locallaw, ordinance or other- 256N. Y. York Law § 2. The case of Peoph' 'v. Dc'CD,to. 24 M~sc. 2d 21 I.aw ~ 2~ 2% hons w~thoxv~ hm~ung that apphcatmn sob jurlsdict}bn. Th~ Le~slamre by Law~ o~ , had to mxpresif~ provide Ihat a ju~ trial ~o~d ~ for traffics" i;ffra~li~nk N%'r such l&g~slative acfion:~ , in regard m Town Law ~ .135 and 2~ wher~ the reference m m~s- dcm,_am~rs ~s expressly limited to jnrisdictiom [ t-{mdnde that a penson,clmrged with the violation of a town zoning ortlinance is not entitled to a ju~ trim before a tox~ iustice, Dated: June 11. 19~ ANT~mNY L. PUSaTtC~L ESQ. Lockpo~, N~ Y. enforce provisions of dog ordinance of village Iomted within town, This will acknowledge receipr o{ your letter of May 24. 1~8, in which you ruquest an opinion o~ this office and a response to a sene* of questions relating' to the jurisdiction of dog wardens of the tmvns of Lancaster and Ch~ktuwaga within the village of Depew which is situated within said towns. You ask if the village of Depew has no dog ordinance must tho dog warden of the appropriate township enforce the town dog ordinanc, wi~hln the village btam( arics 77 I ant ioformed that dog ordinances of the towns o£ Lancaster and Cheektowaga h~,th exclude the village of Depew from their terri- to)fiat aplicatitm..-k f~rmcr opinion , f the Atlomcy General has held that a town d~t, ~artlen has jurisdictiou d~rouahout thc entire ~,'htdlng mc*~rl}nrated villaacs therein r 1962 Atty. Gen. [Inf.] 108~. The rationale (}f lhat npimon was that under existing law the I.egi- slature had denied villages, except those in the counties of West- chester, Nassau antl SuffOlk. the [~wer to ap~int dog wardens enforce the provismos of Article 7~of the Agriculture and Markets l_aw and that. therefore, it was assmned that ~he power to execute the duties of a dog warden in such villages was intended ro be vested m a duly appointed town or county dog warden since any contrary wew woukl nullify enforcement procedures in any villages Ix)werless .to appoint its ow~ dog warden. However. the basis for this assumption is nn longer valid by rea* son of an amendment to } 119 of the Agriculture & Markets 1.aw. effective Jannary 1. 19(~q. authorizing any village in the 5tatu. in sub- divisim~ 1 t}lcrc~f, to establish and maintam a [~ound. and in subdi- vision 2 to create the position of dag warden In wew of the language of the dog ordinances of the town of ~an- caster and Cheektowaea which deny its application to the villaee of Depew. and in view of the statutory authorization nmv exisl mg For a vilta~e to cstah]i<h and nainta[n a d~)g lmund an 1 to appt~inl ~ts own dog warden. I lunst cm~cludc that a town dog warden of either of said towns is n~ reqnir~d to t.nf~)rce the provisions of his town art[- inance xvithin thc incorporated litnits of the village of Depew. You ask atsn f a village may appoint its own dog wardens under ~ 119 r~f the Agriculturc& Markets Law. Such attlh,~rizati~>n ~s eli. arty ;ncllcd out in subdivision 2 nf ~ 119 of thc Agr~cuhm-{. & Marl<~'t~ [.aw. ~5 amended by CIm'~tcr 118 thc Laws of lr~67, effective January 1. 1968. and any village in the State lnav now create stlch a position aod appoint o~le or m{~re per- sons thereto, h- the event of the mloption of a village doe ordinance. there iq no statutory authority for appomm~enr tn said village of ~ees c~dlected hv a r m'n. This ~[ I' .'ars t{, bn an qtn]ssi{m in the Agri- }~et.~l authm'izud in thc 1067 amcndmcnt ~f 8 119 of thc Agricultu*'e and Markt'ts Law to establish dog pmmds and to appoint dog waril- eBs. Finally, you inquire if the village adoprs a dog ordinance without creating the position of dog warden, could the village insist upon t-nforcemenr of the village ordinance by the town dog warden. Since the town ordinances of the towns of Cheektowa~a and Lan- cas~er rela*ing ro dogs do nor apply io nor encompass the village Depew the town dog xvardens of these towns would have no author- tv to a~ in the village of Depew. Dated: June Il. 19~ JosgPII J. Sc~UtTZ. ESO., Depew, N. Y. 7~ 108 OPINIONS OF TIlE STATI~ COI~IPT~OLLEll Statement of Law: Peekskitl City Charter §196 (_L 1938 ch 194) ptovid~ as follows; 196,,RETENTION OF BOARD OF WATER COMMISSIONEttS. Th~' ip?yi~ions o~ law governing the establishment, o~ga~tion~, powgrs and duties of the board of wathr comm~ss:0r~e~s, of the village of Peekskfll, as set clmp[Er .t~,vo hlmdred thirty-one o£ the taws of eighteer~ hund~c! S~V~en~yttwo, shal~t~ rem~n, ~t~'~?~-~'~'-~i0.~,'s.' of the v~llagc o£ Peekskdl shah bc d:anged to ]hc Board of tt of whether ]sa ,Water B,L!:d ,Gonel~iou, ~ is ;,wdhm th~ power of,the Board of W~ter eom- rmssion~$ 6f ~ cityo ~f Peeks,~l to 'determine whetl~er or hot the city w;/ter Novmnber 19,, ~9~4. OPINION 64--272 Town Dog Waxden--Seizlng and Impounding Dogs.--A town dog warden has no authority to enforce the pro~islons o{ a village ordinance pursuant to section l14.a of the Agriculture m~d Markets Law by seizing and impounding clogs running at large in violation of such ordinance (Agr & Mar L §1 l't-a ). Inquiry: May a town, dog warden enforce the provisions of a village ordinance pursuant to c~gdculture and Markets Law § 114-a by seizing and impounding dogs running at large in violation of tach ordinance? Statement of Law: Agriculture and Markets Law §114-a authorizes the seizure by m~y peace officer of unleashed dogs running at large in violation of a local ordinance. While a town. dog warden has all the powers of a peace officer insofar (DI,INiONS Ot; Tn£ STATE COMPTROLLER 109 as enforcement of the "dog Ia~v" is concerned, he_doo¢ ~aat. Ja~e~m powers_of a_4?ace_ pfilcer in executmg..li~¢ provisions of. a village ordinance requiring that dogs be 1cashed. Agriculture and Markets LaW ~1~9~ limits his authority as a peace otaficet to-enforcement 'of ar tide~7 o£ that law. · The power ro seize and impo,und dogs for the violation of a village 'leash" ordinance is given only 'to peace officers and designated repre- sentatives of the Commissioner o£ Agriculture and Markets (A~ & Mar L §114-a: cf. 18 Op St Compt 462 (1962). , Conclusion: A town dog warden has no authority to enforce the.pro- x isions of a village ordinance pursuant to Agriculture and Markets Law § 114-a by seizing and impounding dogs running at large in violation o£ such ordinance. April 8, 1964. OPINION 64-274 Statute of Limitations--Foreclosure of Village Tax Lien.--The statute of limitations is not a valid defense to the foreclosure of a village tax lien by foreclosure in rem (Real Prop Tax L §1120; CPLR §§201,213). Inquiry: !s the statute, of limitations a valid defense to the fore- closure o£a xillage tax lien by foreclosure in rem? Statement of Law: There has been no case decided by the courts of New York State which passes directly upon the question under con- sideration. In Peo ex tel Essex County v. 3,1flier (181 NY 439 (1905), recovery by th~ county was barred by the statute, which was invoked by the state under an express constitutional ~*rovmion. In re Beck Si'ree~ (19 M 571, 44 NYS 1087 (I897) involved adverse possession, which the :ourt said could crofter title as against a municipality· The text writers distinguish between actions and proceedings brought by a municipality in its private or corporate capacity and those brought in itsgovernm~ntal c~pacitv. Thus, McQuilliu on Municipal Corpora- tions (3rd ed) t49.061sta~es~ It is genera ly held that the statute of Ihnitations xnay be interposcc as a defimse in an action by a municipal corporation to enforce rights held by it iu its private or coq~orate capacity. ! to~vever a municipality acting in its delegated governmental capacity is not impliedly within ordinary limitation statutes and it is generally held that limitation is no defense in actions by a city involving pul>lie or governmei~tal rights. Other lc~al works echo that viewpoint (see. for example. 37 CJ~ 710- 714:53 CJS 947-949:i7 Abbott's New York Digest 2d 36:35 NY AOI~ICULTURE AND MARKETS LaW, §§ l14-a, 126; MUtton, AL Ho~z Rm,E LAw, ~ 11 r~); Town LAW, ~ 132: As the~ is no specific prov{s~on of law wh{ch declass thmt a ~ role, re~la&on, o~{h~ce or 1~ law req~ng that do~ ~ le~hed or confined does not apply to-a vil~e witldn that to~, and because the A~cultum ~d Marke~ Law now specifi~ty authorizes a village tb adopt similar restrictions upon ~e keeping and running at 1~ of do~, a lemh law adopted by a tom ~ not effective and o~mtive ~thin ~e co,orate ~ of a ~llage in the town. We acknowledge receipt of your letter ot March 4, 1975. smnng that the Town of Mohawk hms just adopted a leah law: that the Villa~e of Fonda lies within the Town of Mohawk; ~d ~at the Village of Fonda h~ nor enact~ a Iemh law. You tuques[ our opinion as to whether the town leah law is effective within the Village of F~mda. Agdcultu~ and Markets Law.; 126 authorizes any city, town or village to tmpose resmctions upon the keeping ~d running at large of do~. Aghcuhure and Marke~ Law, ~ l14-a provides, in part. that in any such city, town or village in which an ordinance h~ been :~opted requiring all dogs to be restrained by a Ie~h while off Om owner's premises, any peace officer or designated representative of the Cormnissioner of Agriculture and Markeu shall seize any dog not so restrained found 'off the owner s premis~. Munioal Itome Rule Law. ~ 11. subdivision 3 provides ~at ~y l~al law of a to~ sh~l be effectke and operative only in that pomon of such town outside of any village, except where the power of the town board extends ro ~d includes that area of the town width is within a vill~e. Town ~w_ ~ 132 provides that a rule, regulation or ordinance of a town shall be effective and operative only in that portion of the town out- side oi ~v incm>orated village or city therein, except as o~mnv~se specifically provided by statute, h is our opinion that :ts there is no specific provision of a statute which declares that a town rule. regulation, o~inance or locM law reqmring that dorm N: leashed or confined do~ apply to a villagc wit}fin ~mt town. and b~ause the A~lture and:Markem Law now spec~cally authorizes a village to adopt similar ~stfictions npon the k~ping ~d running at l~ge of do~, the leash law adopt~ by your town is not effeetk'e and o~ratlve within the co~oram limim t~{ a villag, in your town. Any previous opinions of thN offic~ re~ing a contra~ concluskm were lamed ar a time when, exce~ in ce~n counties, villa~ ~d not have smrutom, authod~ to enact te~ lawm As all villa~s now have that power, such previous opinions are no longer contmlling. Dated: March 1.q. 1975 lIoN. I:A,I~^R C. I,EONHP. RDT Ti,wu Attorney, Mohawk; Village Attorney, Fonda 153 The home rule power upheld in the Del Bello case is conceptually in- compatible with a theory that the officers named in section 13 of Arti- cle XIII are state officers Home rue is a power granted to a political subdivision to run its own affairs. Home rule is tzot a grant of power to a political subd~¥ision to decide who are to be state officers. This is to say that the authorization to abolish an office, held by an officer ~named in section 13 wasa dec, isinn by the people to make the officers purely county offcers; it w~is not a decision to allow a County to abolish a '"stateV office. Thus Del Bello represents a recognition of ' stru¢- e who They ate ~]ot ' state cl'l'i,'ers~. co[it~alv informal the relatinnsh'in bct~neen ti:is sew illlerl~lCllil;Oil tie ~ecl~,on ~ OI .kr[]'¢le :Kill and me several l,:~]alaliVe fio~ CO~eL) Dated: November 21, 1979 Hon. Thomas R. Sullivan District Attorney, Richmond County Hon. Robert Morgenthau District Attorney, New York County AGRICULTURE AND MARKETS LAW §§ 106-126 (Article 7) enacted by chaplet 220 of the Laws of 1978 and amended by chapter 221 of the Laws of 1978. both to become effective January 1, 1980; DOG CONTROL OFFICERS We acknowledge receipt of your letter inquiring whether your town is respon~ibie for enforcing the dog control ordinance of a village within your town. You state that the village haspreviously enforced its own dog control ordinance. OI'INIONS OF TIlE STATE COMI'TRO LtA';I{ 267 OPINION 69-568 luquiry: Is a town dog warden required to stize and in, pound dogs unleashcd- iri violation of a dog leashing ordi- ,lance of a village located ,~¢ithin that town? Statement of Law: A town dog warden is charged with the duty of enforcing the provisious Of the so-calle~t '~dog law" · ' and Markets Law meamng § 11.9; 18 Op St enforcement of Markets Law ~ the 22 excess, of $25.00, for such ~ St Corn vilta, gg rmas' have its ordinance enforced by its own police of Ecers. 'hr ~a~ .appoint a dog wat&n ~d maintain a pound, p~ant to ~&i~ukure and ~larke~ Law ~119 (~)(2), or it tract ~lh fl~e 'town, ,6th any other m~nidp~ eo~J~or~n, cz ~ an mcorporate~)~ty for mepre~nnqn of '~n~el~ to ~Imals, for fh~ unlealhea ia violation of the v~llagc o~nance (Ag & M L th~ieashing ordinance of a village within that town. July b6. 1969. OPINION 69-569 Inquiry: Where thc salars~ of a town justice is withhchl for his failure to file .hi~s ,~nt[dy reports, may he. nevertheless, .Aate insurance continue to tlc covt.red under the ~ health progr}~m iu which the tuwa is a participating employer? Statement of Law: Civil Service Law §163 authorizes municipalitics to partieiphte in tile State health insurance This opi~fion ~s written as an interpretation of Agriculture and Markets Law. Article 7 (§§ 106-126) as enacted by,chapter ,"20 of the Law ended by chapt er 22,1 of the Laws of'1978, both effect January 1; 1980; it does not ap~Jly lo the and Markets Law,~Arti¢le 7 is a revision of the identification and 'control of dogs. As dec~smnl' and legal o'pin!oni may or may not be 203 Markets Law. It goes without saying that a dog control officer appointed by a municipality also must enforce all local laws. ordinances or resolu- tions of the appointing municipality in relation to control of dogs, In our opinion, a town must enforce Article 7 of the Agriculture and Markets Law within its territorial limits, including a village which lies within that town but tt~e village itself, t~y appointing a dog control officer, also may enforce Article 7 of the Agriculture and Markets Law within its boundaries; a town dog control officer may enforce the provisions of a village c~og control local law, ordinance or resolution but is not required to do so and if a village wishes to have its dog con- trol program enforced it is up to the village to provide, by one of the means described in the statute, for its own dog control system. Our informal opinion at 1975 Opinions of the Attorney General 153 is not in conflict herewith because the relative jurisdictional factors discussed herein are specifically provided for by state statute which overcomes any contrary constr~ctmn applicable in the aosence of such a statute. Dated: November 30. 1979 Arthur 1. Seld, Esq. Attorney for the Town of Seneca Falls N.Y. CONST. ART. XII1 § 3; PUBLIC OFFICERS LAW §§ 10. 31(2); COUNTY LAW § 402; TOWN LAW §§ 25. 64(5); MUNICIPAL HOME RULE LAW § 10(1 [ii(a[13(b)])l): In a county which has not passed a local law authorizing the simultaneous holding of these offices by one individual there exists a statutory incompatibility against it; discassion of law to fill resul- tant vacancy in the town office and the resulting terms of office. We acknowledge receipt of your letter as attorney for the Town of Kendall stating that a town councilman in your town whose term of office will expire on December 31. 1981 ran successfully in the election in 1979 for the office of Orleans County Legislator. You ask whether the town councilman who was elected to theoffice of county legislator may hold both offices simultaneously and if not. yoa inqmre when the office of councilman will become vacanti how the vacancy in the office wilJ be filled; the term the appointee will serve: and if the appointee's term does not continue to the expiration date of the present councilman's term. what term will [~e served by the elected successor to the appointed councilman. Coumy law § 411 prohibits an iudividual from simukaneously 263 COrneLius F.~Healy Deputy Comptroller A~sociate CoUnsel Dec-mher 24, 1980 para-town (~sc.) ~ o~n. No. ~6 GENERAL ~52~.:, HIGHArAX £und~ This is-in reply to 'a memorandum from Agnes Nash ~sking the following questions with respect .to the Town of hount ~le~ant in WestchestWmr County and the Villages of North~Tarryg~rn'ana Pleasantville located within the Tow~: ~ :(~) ShouLd thecost ~f the Town's liability insurance mobile liability, comDrehensive general liability, coverage) be. apportioned .among the following fLLnds tow~Twide; general fund, .part-town; and highway (auto- (2) May the Town's appropriations for dog licensing a~: control (and..related revenues) be included in the par~-to.wn budget? (1) The general poses must. beraised by %axes levied on the whole unless the~ State Legislature, by statute, reqUires expendit~re to be'.paidfrom taxes levied ~only' on the ated area of ~ ~toWn (0phs St Comp, 1980, No. 80-~ 31 ported; opn~ St~C~mp, i'9~2, No. 72-800, unreported 1970, p 215; 24 O~ns St Co. mp, 1968, p 742; 23 p 741). ·his princiule has ~een recognized by the State Legislature in the enactment Of several statutes which require or permit vil- lage property dw~ers to be'excluded from payment of town taxes for certain purposes or ~n certain circumstances (see,~ e.c., Town Law, S.I~0; Highway Law, ~277; dee also Du Bois v Town 'Bd. of Town of New ~alt=, 35 NY2d 617, 364 NYS2d 506, 324 NE2d 153 [1974]; Town of RamaDo v Village of spring Valley, 40 Misc2d 5.89, 243 NYS 2d 569 [1962~ ,' app dism ~3 ~a 918, 244 NYS2d 67, 193 NE2d 892). rul~ is that all moneys utitize~ fo= town put- .of t~e town .rm~ts any yet We are not aware of 'any statute which requires or permits a town's expenditures for liability insurance to ba made a part-town charge as opposed to a town-wide charge (see Town Law, S64(4); General Municipal Law, ~52). In our opinion, therefore, the expen- ditures by ~.he Town of Mount Pleasant for liability insurance must be paid from taxes levied against all properties in the Town, inclu- ding those in t~he Villages of North Tarrytown and P!easantville. Our recen= opinion stating that town special improvement districts must be charged with their proportionate shares of the cost of liability and casualty insurance (Opns St Comp, 1980, No. 79-621, as yet unreported) is distinguishable because a statute specifi- cally requires maintenance expenses to be charged to districts (Town Law, S202-a). The~'question whether part of the cost of liability insurance should be apportioned to the town highway fund is more difficult to answer. For many years this Department took the position the cost of general liability, insurance as well as the cost of fire and theft insurance to protect highway department.machinery and equipment should be charged to the town's general fund (see, e.=. Opns St Com~, 1976, No. 76-257, unreported; Opns St Comp, 1971,' No. 71-397, unreported; 90pns St Comp, 1953, p 382). In 1976, however, we' reversed our position with regard to fire and theft insurance on highway machinery and equipment, stating that the cost thereof should be charged to ~he highway fund, specifi- cally item 3 (Highway Law, S141(3}; 32 Opns St Comp, 1976, p 73). Alth6~gh no statute expressly requires the cost of fire and theft i~s~rance to be charged to the highway f~d, we noted that section 141 [3) requires the expense of acquisition, maintenance and repair of highway equipment to be char~ed to the highway f.und. We also noted that insurance proceeds received as a result of d~mage to i~s~red highway equipment are paid into the highway f~nd so that suitable replacements may be purchased with such revenues. Liability insurance; however, is not so readily identifiable with an item or it~us in the highway budget. Liability may arise from almost any governmental operation or activity. Some oper- ations of the highway department are not charged to the highway fund. For example, the salary of an elected town superintendent of highways is a general tow~ charge (Ftika v Strobel, 252 App Div 35, 297 NY$ 412 [1937.]; 1966 Arty Gert '[InfO55; 12 Opns St Comp, 1956, p 244). So also, therefore, are the general oper- ations of the superinuendent's off-ice. The acquluition, construc- tion and maintenance of a town highway garage are general town- wide charges (20 Opns St Comp, 1965, p 554; 11 Opns St Comp, 1955, p 408), except in Westchester County where these expenses are part-town charges (Highway Law, ~142(4-a}). 80--456 The principal items included In the h_ghway budget are enu- merated i~ section 141 of the Highway Law - items 1--4. Item 1, .the and ,.isa charge..~ Item span o~ five ItenL~ 3 and~4 -- the ~nd equip~en~ and sno~ removel ~nd other toW~-~ide charges unless ~he town ~card excludes village property from Thhe levy and collection of taxes for these~items (Highway ~aw, SZ772. ~f ailOcation of ex'pences arising from highway operations, 'Since it may be difficult, if not Which Portion of the expense of liability to the highway fund (or to wh/cn itema and :since .no statute requires liability to -aha highway fu~nd or to a par~-town the opinion that the ccs~= of liability r~ain a general town-wide charge~ Ma respect go 'whether appropriations and rev~ues of dog licensing ~nd control s~ould be included in the we refer to Article 7 of the Agriculture and .~6-126) enacted in 197~ (L 197~, ch 220). In unlike all o~her counties ~xcep~ ~aasau County, as well as uowns are required to license ~nd Markets Law, ~I09(i) (b)). License fees par= by the villages end =owns and distributed ~d the State Commissioner of Agriculture ~st~at~ltory formula (Agriaulture and I!1). Moneys received for license fees must purposes (Agriculture and Markets Law, Sinc~ ~i~ages in We'stchester County are required to ~ sue dog licenses, =.ach village ei~ler mus~ appoin= one or more dog cont=ol office~s a~d establish and maintain a pound or shelter or may, in lieu ~er~of, contract for such services (Agriculture end Marke~s Law~ ~1~4~(1),(2), 115). All moneys co!lacta~ as fines and p~nattiee ~y any municipalihy b~long to ~he municlpalihy (Agriculture .and Markets Law, §120). These moneys also must be used for dog COntrol purposes. .Even though ~illage~ as well'-as towns in Westchester County t,.e services of a dog are required ~;o license dogs and to provide '~ control off~ce~ and a pound or shatter, Artlcle 7 of the ngricul- ture and Marke~s Law does not exemp~ village taxpayers from paying town taxes to support the town's dog control program. In our -4- opinion, therefore, based-on the opinions and authorities clt~d previously, Town appropriations for dog licensing and control are general tc~n-~ide c.harges which must be levied against all tax- payers in the Town inc!u~ing those in Villages. The Town, of course, may not need to raise taxes for its dog control program if revenues from license fees, fines, penalties end bail forfmitLxres are adequa=e. So also with sach Village. Boggs/lr Statement oI Law: PuBlic Authorities Law §654 provides in part: The authority st~all have power. Will* the consen~ o~ *~e c~my to use agentsl employe~ ~d facilities oF, the ~pty,. including d~e coun~ attorney, ~ying m ~e c~fl~y ~ agreed pro, trion of~e com- p~ati~ or costa ~ * ~ [~phasis added]. PubBc Aathofifi~s La~ ~660 655'provide spedfimllg ~at the ic~ ~f ~e C~n~ T~u~r, COu~ ~m~otter an~ County Sem~ ~Comm~og ~h~ Be ,u~0d ~ the N~mu Coumy Bridge Au- ,Z It ~ our opmmn ~ ~e,~e ,of, S~Vl~S of, th~ Goun~ ~r~s~er, Conel.~mn: l :m };.',.'acs ~cno.'m~ by th*;~a~au Coa~'~Treas- crer. C~...;,u'c c ;,~, c'. b~'~, I~:i;.d.~ .l:.liii,:];i' ;.lc ':'rl~r:!l!['ll .)~ ~mcu0n~,o~~ s~t~e and,~o, not re- .:, ::~.,,.,.n and ,~:..~. c.sts ,.. t:~[~ ~C~ i~g~.reamre~ [~,pm~ .l'J~:'3:..:5 21. i':i..~. OPINION 62-1080 Town Ordinance--Dog ~Var(len's Duties.--'Whem a dog warden has been appointed in a town other Limn those towns located in X, Vestchester, Nassau and Suffolk Counties. he is required to perform his services as such w thin villages in such town in reference to the Agriculture antl Markets Law; however, a town ordinance is ineffective in such villages or witldn the limits of a U~ited States millta~y reservation located in such town. Pertinent provisions of the Agricuiture and Markets Law must be follpwed' in rrfermme to' the seizure or impoundment oi dogs (Agr &Marl §§114, l14-a, 119, 126. 126-a). Inqnky: What are a town dog ~varden's duties in reference to a par- ticular to~.~ ordinance concernidg the restraining of the runn ng-at-large o£ dogs widtin the town} Statements of lEaw: (1) The town has no iurisdiction over the l-[nited States milkary tcservatim~ aI West Point,' ~'New York and the town ordinance, in any event, }is inoperative in such territory encom- passed d~erein. ()PINIONS OP TIIE STATI2 COI~[PTnOLLEB (2) In a recent opinion (18 Op St Compt 438 (1962), this Depart- ment has expressed the view that where dog wardens have been ap- pointed in towns other than those towns located in Westehester, Nassau and Suffolk Counties, town dog wardens are required to render their services as such in territory encompassed by villages in such towns. No reimbursement is conteml~lated in reference to such services rendered in such villages. Accordingly, in the Town of Highlands, whleh is located in Oran~ge County, the dog warden is required to perform his services as such in me Vill,a,~e of Highla]d Falls. which is located in such town. T~is amhority. to__p_?form services is in refere_nc~_to~he_pr~_vJs/ons c~ th~ and Markets Law. --~-t~arden may not enforce the town ordinance within the village, since town ordinances have no effect within the village limits (Town L §132). - (3) The dog warden mtist, of course, perform his duties in Fort Montgomery, gshich is an unincorporated area of the Town of High- lands. ' We assume that the town has adopted an ordinance requiring all dogs to be restrained by a leash while offthe owner's premises (Agr & Mar L §126). Accordingly, Agriculture and Markets Law §l14-a. which provides for the seizure of unleashed dogs in certain cities, towns or villages, may be invoked by the town dog warden with respect to the area of the rovtdes as follows: In any city, town or village, in which an ordinance has been adopted requiring ,all dogs to be restrained' by a leash while off the owner s premises, whether or not tagged or licensed, any peace officer or designated repre- sentative of the commissioner shall seize any~r0~not so restrained found off the owner's premises. Every dog geized shall be properly fed and cared for at the expense of the ~nunicipality until .lispogition thereof be made as herein provided. If the dog seized bears a license tag, the officer or representative of the commissioner shall ascertain the o~vner of the dog and shall give immediate notice by per- sonally serving such owner or an adult member of his family with a notice i.n writing stating that dm dog has been seized and will b. destroyed unless redeemed whhin the period herein provided, The owner of a dog seized may redeem the dog within five days, if the seizure be within a city, and witMn seven days if elsewhere within the state, except that the o;vner of a dog bearing a license tag may redeem the dog within ten days, if seized within a city, and within twelve days, if else~)here in the state, by paying to the clerk k 487 the sum of two dollars as the cost of the seizure. If not so ~adeemed, the owner shall forfeit all tide to the dog and e d°g'~halI be s01d o~ destroyed by the peace officer or such ~epresentafive. In the case of sale. the purchaser must pa~ ti'lc purchase l?ricc to the clerk. Piny peace officer or t'epresentative o£ the commissioner, destrc~ying ad,off'under the prpx, lsions of this section shall irmne~i'ial~3r dispose of the ea~:casg and make a written report of ,such destruct<ion and djsposltion to the c.l,erk. ~ peace bfli~er or repre~nltaxii, e of the ¢ommlssiqner fating to mmk~e~such fe~Lp~rt shall be emided :to com- pe~Sa~on for aestrbyin, g i~.og, The eler!{isl~a!~ moke and t~eser~ie i zec0~d' of m~&td2qmcfion and~ttisp6sition. Np'actio~ shall be maintained to recover the possession or vfi,Iae of ~a cl0g, or far damages' 'for inlur[~or for .com- pensatJ6n for ~stmction of a dog dostroyecrlpwrsdant to provisions 0£ ~s section. The town may not, independent of the foregoing statute, provide for the seizure and c~estruction of licensed dogs 'and the ordinance, insofar as it is inconsistent with the foregoing, ix invalid. There is no problmn as to unlicensed dogs, of course, s~nce such dogs may be seized and impounded~ or, by ordinance, a penalty may be prescribed for the offe~e of 0wnin, g or' harbo~:'ing such a dog within a town (see Agr & t~,lar L §§114, 119, 126-a; see also 15 Op St Compt 82 (1959). Conclusion: Where a dog warden has been appointed in a town other than those towns located in Westchestet, Nassau and Suffolk Counties. he is required to perform his services as such with villages in such town. in reference to'the Agriculture and Markets Law: how- ever, a town ordinance is ineffective in such villages or withir~ the limits of a United States military reservation located in such town. Pertinent provisions of the Agriculture and Markers~ Law must be followed in reference to the seizure or hnpeundment of dogs. ~. Mar& 21, 1963. OPINION 62-1081 Co,tory Court Decision--Precedent.--A county court decision hold- ing Vehicle and Traffic Law §1210 unconstitutional, although not necessarib binding, constitutes an impurtant precedent in consider- ing prosecution of violators of the section. Inquiry: May persons found quilty of violating Vehicle and Tratfic Law !il210 be prosecuted despite the fact that the statute has been de- clared unconstitutional by a counjy court? (Use this form m file a local taw with the Secretory of State.) Text of taw should be g:ven as amended. Do not include matter being e~m~uated and do nor use [ralics or underlining ro indicate new matter. Village Lacat Law ~o ..... ~.~..=...e.~........(S..). .................. o~ the .~ear ~o amend C~a~er 32 of the Ccde of the Village of Green~ort entitled "Do~ Control" b~ replacing the previous Dog CoStroi of ................. ~.E.E~.QR~ .............................................................................................. ~s follows: Village CHAPTER 32 - DOG CONTROL See actached pages) (If addltional space ts needed, attach pages the same size as this sheer, and number each.) ~ (l) ARTICLE I Legislative Intent. It appearing ~hat dogs in the Village of Greenport have, insome instances, been'ailowed to cause annoyance and damage to the person and. properties of others, and it appearing further that dogs prope~!~ cared for serve a.useful purpose, the Board of Trustees of the Village of Greenpor% enacts the following chapter to preserve the relationship between a do~ and his master and, at the same ~, ~c tke health, of o~h~rs from re caused ~ ARTICLE II Definitions. The following terms shall have the following meanings and definitions: DOG - Any member of the species canis familiaris. DOG CONTROL OFFICER - Any person appointed by the Mayor to assist in the enforcement of this local law and Anticle 7 of the Agriculture and Markets Law of the State o~- New York as therein specified. Such person or persons shall have al! of the powers of a peace officer of the State of New York, including service of a summons, and service of an appearance ticket pursuant to the Agriculture and Markets Law. OWN and OWNER - Includes any person having the right of property in a dog, any person who Seeps or harbors a dog or has ~n his care or who acts as its custodian or any person who permits a dog to remain on or about any premi- ses oqcu~ied by ~im. RUNNIN~ AT LARGE - Any dog, licensed or unlicensed, while roaming, running or self-hunting off the property of its owner or custodian and not under the control of the owner or custodian by a leash not exceeding ten (!0) feet in length. ARTICLE Ii! Rest-lct!ons. It shall be unlawful for any owner of or any person har- boring any dog to permit or allow such a dog while in the Village of Greenport to: Page la a. Run at large unless said ~0~, whether or not tagged or licensed, is restrained by an adequate collar and leash, rope or chain or within a cage or motor vehicle or unless accompanied by its owner or a responsible person able to control the animal. b. Engage in habitual loud howling or barking or conduct itself in such, a manner as to habitually annoy any person other than the owner or a responsible person able to control the animal. c. Cause damage or destruction to property or commit a nuisance upon the premises of a person other than the owner or person harboring such dog. d,. Chase or otherwise harass any person in such manner as reasonably to cause intimidation or to put. such person in a reasonable apprehension of bodily harm or injury. e. Habitually chase or bark at motor vehicles. f. Remaim in the village unless licensed in accordance with 109 of the New York State Agricultural and Markets Law. g. It shall be unlawful for the owner or person har- boring any female dog to permi% such dog to run at large when in heat, and such dog shall he confined to enclosed pr~mises of such person during such period. ARTICLE IV Enforcement. The chapter shall be enforced by the Dog Control Officer or by the Village Police Department or any other enforcement officer. ARTICLE Seizure, imoound And Disposition. Any dog found running at large or which does act have a license shall be impounded and taken to such place as may be designated by the Board of Trustees as a place of detention, and shall there be properly fed and cared for at the expense of the village until disposition ~hereof shall have been made in accor- dance with the provisions cf this section. A. REDEMPTION. (!) Unlicensed dogs. Upon the seizure and impounding Page lb of any unlicensed dog, the owner of such animal, if known , may be notified thereof. Such dog so seized and impounded shall be held for a period of five (5) days, during which time the owner of said dog may recover same by producing a license for such dog and paying the redemption fees specified below. B. REDEMPTION C~RGESi If t~e.~0g is to be redeemed, the owner shall pay the DOg Control Officer a fcc'of thirty'dollars ($30'.00) plus the charge of ten dollars ($~0.00) per"day~for the care of the dog while impounded: FORFEITURE'OF TITLE TO DOG. 'If an.~Rpunded doc is not o= a trial ~emanded within th~ time hereinbefore-set sha~t forfeit titJle and'. ~t may- ~ sold by the village or the appropriate hereinafter provided. D. SALE' ~F I~POUNDED DOG.' The Control Officer is hereby authorized to sell any dog impounded kt 'suc~ pri~e ~e he shall determine to be .fakir and shail deposit such sum in the general fund of the village. T~e village shall keep a record of all sales ~pd such records shall be open =o public inspection. Such records ~a!l be k~pt fdr one (1) year. E. DESTRUCTION OF DOGS,. In ~he event the dog is not redeemed within the time herein set forth or in the event that it becomes necessary to destroy a dog, the Control Officer or other law enforcement office=shall arrange to humanely, destroy and dispose of the cercass. ARTICLE VI PENALTIES FOR OFFENSES. Any offense against the provisions of this chapter shall be deemed a violation, and any person convicted of a violation shall be liable-to a fine for a first violation of twenty-five dollars { $~5.00' ); for a 'second violation, a ~ine of fifty dollars ( $50..00 ); and for a third and subsequent violation, a fine of seventy-frye dollars ( $75.00 ). In addition, a dog found to be dangerous may be ordered securely confined or destroyed, in the discretion of the court. ARTICLE VIi INTERFERENCE WITH DOG CONTROL OFFICER. No person shall molest or interfere ~n any way with Dog Cont=ol Officer or any of his~ duly authorized assistants with the duly authorized agents of any person or corporation engaged in enforcing this local law or the provisions of the the or ~mge lc Agriculture and Markets Law and the P~blie H~th Law relating to dogs, while he or they are engaged in the performance of their duties. ARTICLE VIII APPEARANCE TiC~ETS. A. in addition to any other method of enforcement, an appearance ticket may be issued pursuant to the Ciminal Procedure Law for any violation of thi~ chapter. An answer to such appearance ticket m~y be made by mail within five (5) days of ~he violation, a~ provided by subsections B & C of this articie~ in lieu of per~onal appearance on the return date ~t the time and court-specified in Said a~pear~nc~ticke~_ B. /if a person c~mrged with the viola~io~ admits to the vioiation as ch~ged in ~he appearance ticket, he may complete an appropriat~form, am' aut~rolz~dby this chapter, entering a plea of guilty thereby, such form ~ud appearance ticket to ~he ppearmnee ticke~. A cer- tified check% amount of the penalty for the C. If the person charged with the violation denies part or all of the violation as charged in the appearance ticket, he may complete an appropriate form lJ_kewise for that pur- pose, enteEing a plea of not guilty thereby, and shall forward auch form and appearance ticket to the office specified on such appearance ticket. Upon receipt, such answer shall be entered and a new return d~te established. Such per,on shall be notified by return mail of the data and place of such return date. ARTICLE iX REPEALER. All existing ordinandes of the Village' of Greenport insofar as they may be inconsistent with the provisions of th~ ~ocal law ar~ deemed not to apply. ARTICLE X SEVERABILITY. If an article? part of an article~ sentence, e!ause or phrase of this lccs-t law shall be held to be unconsti~ationa! or invalid, the r~maining provisions hereof shall be nevertheless remain in full force and effect. ARTICLE XI EFFECTIVE DATE. This local law shall take effect immediately. Page ld ~Comple~e the cer~ficu~ion in ~e paragraph tha£ ~pplie~ to the fiHng of t~is local law and strike ou~ tha~ v~hich is no~ appiicabie.) 1. (Final adoption by local legislative body only.) I hereby o~dfy ~t~.a~ ~he local I~W annexed hereto, desig~e~ as loc~ law No. Thr~e (3) of 1985 ~ ~¢ (~t~)(Ci~)(~)(Village) of Gr~en~ort w~ duly p~ed by, the :~ ~ T~st~m on Sect 19, [9 85, ~ ~cord~ce wi~ the appli~le provisions of law. ~~e of Laxative Body)~ 2~ (Passage by loc;al legislative body with approval, no disapproval or repassage after disapproval ~ I hereby oer~y ,~ t~loc~ ~w ~nexed hereto, designated as local t~w No. of 19 on I9 , and was (approved)(no~ di~pprov~d)(re~ed afte~ dlsap~OV~t) by ~e and ~ deem~ duly adop~d on 19 ~ ~cord~ce wi~ ~ applicabt~ provisio~ of law. 3. (Final adoption by referendum.) I hereby certify that the local t~w annexed hereto, designated as local law No. of t9 of the ~County)(City)(Town)(¥illage) of was duly passed by the on 19 , and was (approved)(not disapproved)(repassed after (N~me of Legmla~ive Body) disa~Qrov~l) by the on t9 Such local t~w was (Elec:ive C~ Executive OfScer~) submitted ~o the people by reason of a (mand~ton/)(perm~ssiv~) referendum, and recelved the ~ffirmative vo~e of ~ m~jori~y of the qualified e[~ctor~ voting thereon ar ~he (g~ncr~l)(sp~c~at)(annu~1) election held on I9 = in accordmnce wkh the applicable p~visions of l~w. a. (Subject to permissive referendum and final adoption because no valid petition was flied requesfiog referndum.) t hereby certify that the local [aw annexed hereto, designated as local law No. of 19 of the [County)(Cky)(Town)(Village) of was duls' passed by on 19 . and w,ns approved)(not disapproved)(repassed after ,Name of Legmia~ive Body) disapproval) by the ~n t9 Such local !aw was subject to (Elec~iv~ Chief Executive Officer~) permissive referendum and no valid petition requesting such referendum was flied as of 19 in accordance wkh the applicable .~rovisions of taw. 'Elective Chief Executive Officer means or includes the chief executive officer of a county elected on a county-wide basis or, if there be none, the chairman of the county legislative body, the mayor of a city or village, or the supervisor of a town where such officer is vested with the power to approve or veto local laws or ordinances. (2) 5. (Cit~ (oral law concerning Charter revisioa proposed by pefilion.) I hereby certify that the local law ~ne~d hereto, designated ~ local law No. of i9 of the Ci~ of ~ing been submitted to referendum pursuant to provisions of section (06)(3 ~) of ~he Mumc~ Home Kule Law, and having received the ~flrmative vote oz a majority of t~e q~lifled ~lectors of such cky voting thereon at the (special)(generai) ~tection h~ld on 19 , bede operadvm 6. (County local law concern/ag adoption of Charter.) I hereby certify that the local law annexed hereto, designated as local law No. of 19 of the County of , State of New ¥ork~ having been submitted the electors au the General Election of November t9 , pursuant ~o subdivisions 5 and 7 of ~ectiou 33 ~f the Municipal Home P. ule Law, and having received the ~ffirmat~ve vote of a majlority of the Gu~dified electors of the Cities of s~d county a~ a unit and of a majority of the qu~d~fied electo~ of the mw~-m of suid county considered as a unk voting ac said gene~t election, becmue operative. (If any other author[zed form of f~nal adoption has been followed, please provide an appropritate cerfificatifn.) I fur?_her certify that I have compared the preceding local law with the origin~l on file in this offlce and that the s~ne is a correct ~anscrip~ therefrom and of the whole of suck origLual locml law, and was flnally adopted. ~ ~e manner indicated in p~agrapk ! , ~bave. (Seal) Date: December 14, 1992 (Certification to be executed by County A~torney, Corporation Counsel, Town Attorney, Village Attorney or other authorized Attorney of locality.) STATE OF NEW YORK COUNTY OF Suffolk L the undersigned~ hereby certify that the,"-ur~=om::o ' o Iocnl law contains the correct [ex~ and dm( all proper proceedings h~ive been had or taken for die enac~men~//°'P'%~ Ioc~/..~_.N / } ] here[o. village Attorney Title of Greenporu Village Date: December 14~ 1992 (~)