SCOTT FISCAL COURT; GEORGE LUSBY, Individually and in his capacity as Scott County Judge-Executive; ROBERT RANKIN, CHARLES HOFFMAN, and GARY PERRY, Individually and in their respective capacities as members of the Scott County Fiscal Court V. RANDY JOHNSON
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-2543-MR
SCOTT FISCAL COURT;
GEORGE LUSBY, Individually
and in his capacity as
Scott County Judge-Executive;
ROBERT RANKIN, CHARLES HOFFMAN,
and GARY PERRY, Individually
and in their respective
capacities as members of the
Scott County Fiscal Court
APPELLANTS
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE DAVID L. KNOX, JUDGE
ACTION NO. 96-CI-0153
v.
RANDY JOHNSON
APPELLEE
OPINION
REVERSING AND REMANDING
***
BEFORE:
***
***
***
GUIDUGLI, JOHNSON, and MILLER, Judges.
MILLER, JUDGE:
The Scott Fiscal Court; George Lusby, individually
and in his capacity as Scott County Judge-Executive; and Robert
Rankin, Charles Hoffman, and Gary Perry, individually and in their
respective capacities as members of the Scott County Fiscal Court
(appellants) bring this appeal from an August 20, 1996 order of the
Scott Circuit Court.
The
facts
We reverse and remand.
are
these:
In
August
1995,
Randy
Jones
(appellee) purchased a lion cub and lodged the animal at his home
in
Scott
County,
Kentucky.
He
was
issued
a
permit
by
the
Department of Fish and Wildlife Resources of the Commonwealth of
Kentucky (DFWR) to possess the lion.
In May 1996, the Scott Fiscal
Court, responding to numerous complaints, enacted Ordinance No. 96002, "An Ordinance Relating to Wild Animals" (sometimes referred to
as "the ordinance").
The ordinance, in relevant part, provided as
follows:
Whereas, the keeping of wild animals
within Scott County could constitute an
attractive nuisance detrimental to the health,
safety and welfare of its inhabitants:
Whereas, the Scott Fiscal Court declares
it the policy to prohibit the keeping of wild
animals within Scott County and to enforce
such prohibition and penalties;
. . .
(a) The keeping of wild animals within any
area of the county is hereby prohibited
and declared to be unlawful. . . .
. . .
(2) "Wild Animals" shall mean all bears,
lions,
tigers,
cougars,
leopards,
cheetahs, jaguars, wolves and wolverines
and other large (more than 35 lbs.)
predacious
(predatory)
omnivore
or
carnivore, excluding canines.
Consequently, appellee instituted this action to have the
ordinance
declared
commonwealth's
invalid
statutes
and
as:
(1)
various
-2-
it
DFWR
conflicts
with
regulations;
this
(2)
it
unconstitutionally violates appellee's due process rights; and (3)
the ordinance was passed to abate a nuisance where, in fact, none
exists.
On August 20, 1996, the Scott Circuit Court entered an
order declaring Ordinance No. 96-002 invalid as it conflicts with
state statutes and DFWR ordinances.
The court did not address
appellee's remaining contentions challenging the validity of the
ordinance.
This appeal followed.
Appellants
contend
that
the
circuit
court
committed
reversible error by concluding that Ordinance No. 96-002 conflicts
with state statutes and DFWR ordinances.
We agree.
It is a well-
settled principle of law that a county ordinance is preempted and
thus invalid if it conflicts with state statute(s). See Louisville
& Nashville Railroad Company v. Commonwealth, Ky., 488 S.W.2d 329
(1972).
In the case sub judice, we perceive no such conflict that
would require voidance of the ordinance. It is uncontroverted that
Ordinance 96-002 prohibits the keeping of lions within the county.
It is further uncontroverted that appellee was granted a permit by
the DFWR to own and possess the lion.
The permit was issued
pursuant to 301 Ky. Admin. Regs. (KAR) 2:081.
That regulation was
authorized by Ky. Rev. Stat. (KRS) Chapter 150, titled "Fish and
Wildlife Resources."
At first blush, it would seem that the
ordinance conflicts with DFWR's power to issue the permit for
possession
and
ownership
of
the
--3--3-
lion.
Upon
close
scrutiny,
however, we think Ordinance No. 96-002, KRS Chapter 150, and 301
KAR 2:081 do not conflict, but rather can be viewed harmoniously.
The purpose of KRS Chapter 150 was articulated by our
legislature in KRS 150.015.
That purpose, in relevant part, is
therein stated as follows:
The declared purpose of Acts 1952, ch. 200,
and the policy of the Commonwealth of
Kentucky, is to protect and conserve the
wildlife of this Commonwealth so as to insure
a permanent and continued supply of the
wildlife resources of this state for the
purpose of furnishing sport and recreation for
the present and for the future residents of
this state; to promote the general welfare of
the Commonwealth; to provide for the prudent
taking and disposition of wildlife within
reasonable limits, based upon the adequacy of
the supply thereof; to protect the food supply
of this state, and to insure the continuation
of an important part of the commerce of this
state which depends upon the existence of its
wildlife resources. . . .
Indeed, 301 Ky. Admin. Regs. (KAR) 2:081, promulgated by
the DFWR pursuant to the authority of KRS Chapter 150, expressly
enunciates the policy and objectives behind it as follows:
This administrative regulation is necessary to
control the indiscriminate possession of
wildlife and to insure that wildlife is
humanely and properly cared for; to protect
the public and native wildlife from wildlifeborne diseases and to prevent the introduction
of wildlife that might be detrimental to
native fauna and flora.
Thus, the legislature's objective in enacting KRS Chapter
150, and thus the DFWR's objective in promulgating 301 KAR 2:081,
--4--4-
was basically to protect wildlife.
Conversely, the Scott Fiscal
Court's objective in enacting Ordinance No. 96-002 was to protect
the health and safety of its citizenry.
We view this distinction
as pivotal.
As neither KRS Chapter 150 nor 301 KAR 2:081 was enacted
to address the specific issue of the public's health and safety in
relation to the possession of wildlife, we view Ordinance No. 96002 as simply complementing the state regulatory scheme.
See
Peoples Program for Endangered Species v. Sexton, 476 S.E.2d 477
(S.C. 1996).
Hence, we are of the opinion that Ordinance No. 96-
002, KRS Chapter 150, and 301 KAR 2:081 are not in conflict and
that the circuit court committed reversible error by so concluding.
As
the
circuit
court
failed
to
address
appellee's
remaining contentions, we remand for the court's consideration
thereof.
For the foregoing reasons, the order of the circuit court
is reversed, and this cause is remanded for proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
J. Clay McKnight Jr.
Georgetown, KY
David C. Trimble
Lexington, KY
Gordon W. Moss
--5--5-
--6--6-
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