Can a New York town hire a for-profit business to handle dog control, or does the contractor have to be a not-for-profit?

Plain-English summary

The Town of Lysander asked the AG whether an "incorporated dog protective association," which Agriculture and Markets Law § 114(2) allows a municipality to contract with for dog control services, has to be a not-for-profit corporation or whether a business corporation would also qualify. The AG said not-for-profit only.

The reasoning rests on two strands. First, an earlier 1965 AG opinion construing a substantively similar predecessor statute had already concluded that the contracting party had to be either another municipality, an incorporated society for the prevention of cruelty to animals, or an incorporated dog protection corporation. The implication was that a business corporation formed by an individual was outside the statute. The AG saw no reason to depart from that reading in 1996.

Second, the structure of the Not-For-Profit Corporation Law lines up with the Agriculture and Markets Law text. Humane societies and dog protective associations are classified under N-PCL § 201(b) as "type B" not-for-profit corporations, specifically as corporations for the prevention of cruelty to animals. The N-PCL imposes structural safeguards: certificates of incorporation must carry an endorsement from the American Society for the Prevention of Cruelty to Animals (or, if that endorsement is withheld for 30 days, a Supreme Court order dispensing with the endorsement). The number of these corporations that can be formed in each county is also regulated by the N-PCL. None of that structure would apply to a for-profit corporation, so the AG concluded that the statutory term "incorporated dog protective association" referred to a not-for-profit organized under the N-PCL.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did Agriculture and Markets Law § 114 require a municipality to do for dog control?
At the time of the opinion, every town and city, and every village that issued dog licenses, had to appoint at least one dog control officer to enforce Article 7 of the Agriculture and Markets Law. Other villages and counties could appoint one. A municipality could also contract for dog control services with another municipality, with an incorporated humane society, or with a "similar incorporated dog protective association," instead of or in addition to appointing its own officer.

Why does it matter whether the contractor is for-profit or not?
Because the statute defines the universe of permissible contractors. If the term "incorporated dog protective association" is limited to not-for-profit corporations, a town that contracts with a for-profit business for dog control is contracting outside the statute. That can raise problems for the validity of the contract and for the legal authority of the officers acting under it.

Why is the N-PCL the natural place to look?
Because the N-PCL is the New York statute that governs the formation, operation, and supervision of not-for-profit corporations, including specifically corporations for the prevention of cruelty to animals. The statute classifies humane societies and dog protective associations as type B not-for-profits and requires endorsement by the ASPCA (or a Supreme Court order in place of that endorsement). That regulatory structure ties the Agriculture and Markets Law term to the N-PCL category.

Does this also rule out contracting with an individual?
Yes. The 1965 AG opinion the 1996 opinion relies on said a municipality could not contract with an individual to act as dog warden. The contracting universe is municipalities, incorporated humane societies, and incorporated dog protective associations (read as not-for-profits). An individual is not on that list.

What about a 501(c)(3) federal-tax-exempt animal welfare nonprofit that is not specifically a "humane society"?
The opinion treats "incorporated humane societies" and "incorporated dog protective associations" as the two N-PCL categories that can contract under § 114. It does not address every possible animal-welfare nonprofit configuration. The N-PCL's category for corporations for the prevention of cruelty to animals (with the ASPCA endorsement requirement) is the one the AG points to. A town considering a specific organization should check whether the organization is incorporated as one of those categories under New York law.

Background and statutory framework

The statutory pieces at play:

Agriculture and Markets Law § 114(1) required certain municipalities to appoint dog control officers and authorized other municipalities to appoint them.

Agriculture and Markets Law § 114(2) authorized municipalities to contract for dog control services with any other municipality, with any incorporated humane society, or with any similar incorporated dog protective association, instead of or in addition to appointing their own officer.

Not-For-Profit Corporation Law § 201(b) classified humane societies and dog protective associations as type B not-for-profits, as corporations for the prevention of cruelty to animals.

Not-For-Profit Corporation Law § 404(g) required the certificate of incorporation for a corporation for the prevention of cruelty to animals to carry an ASPCA endorsement, or a Supreme Court order dispensing with the endorsement.

Not-For-Profit Corporation Law § 1403(a) regulated the number of such corporations that could be formed in each county.

The AG's earlier 1965 informal opinion (1965 Op Atty Gen (Inf) 75) construing a substantively similar predecessor statute had already concluded that the contracting party had to be a municipality, an incorporated SPCA, or an incorporated dog protection corporation, ruling out individuals and business corporations. The 1996 opinion brings that reading forward, with additional support from the structure of the N-PCL.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-15_pw.pdf

Original opinion text

AGRICULTURE AND MARKETS LAW ART 7 § 114; NOT-FOR-PROFIT CORPORATION LAW §§ 201(b), 404(g), 1403(a).

The authorization for municipalities to contract for dog control services with an incorporated dog protective association means an association formed under the Not-For-Profit Corporation Law.

March 25, 1996

P. David Twichell, Esq.
Town Attorney
Town of Lysander
499 South Warren Street
Syracuse, NY 13202-2690

Informal Opinion No. 96-15

Dear Mr. Twichell:

You have asked whether under section 114 of the Agriculture and Markets Law "incorporated dog protective associations" must be not-for-profit corporations rather than business corporations.

Under section 114, each town and city, and each village in which dog licenses are issued, must appoint, and any other village and any county may appoint, one or more dog control officers for the purpose of controlling dogs and for enforcement of Article 7 of the Agriculture and Markets Law. Agriculture and Markets Law § 114(1). Instead of, or in addition to, the appointment of a dog control officer or officers, a municipality may contract for dog control officer services "with any other municipality or with any incorporated humane society or similar incorporated dog protective association . . . ". Id., § 114(2).

In a prior opinion of this office, we construed a substantively similar predecessor of section 114 and concluded that a city may not contract with an individual to act as dog warden nor with a business corporation formed by a person. 1965 Op Atty Gen (Inf) 75. The opinion concludes that "[u]nless . . . the contracting party is another municipal corporation or an incorporated society for the prevention of cruelty to animals, or an incorporated dog protection corporation, a municipality may not enter into such an agreement". Thus, the clear implication of this opinion is that an incorporated dog protective association, within the meaning of section 114, is a not-for-profit corporation.

In our view, the 1965 opinion remains valid. (We note that in a September 1, 1995 letter to you from the Office of Counsel of the Department of Agriculture and Markets, the statement is made that dog protective associations are incorporated under the Not-For-Profit Corporation Law.) Under the provisions of the Not-for-Profit Corporation Law, incorporated humane societies and dog protective associations, as corporations for the prevention of cruelty to animals, are classified as type B not-for-profit corporations. Not-For-Profit Corporation Law § 201(b). Every certificate of incorporation of a corporation for prevention of cruelty to animals must have endorsed thereon or annexed thereto the approval of the American Society for the Prevention of Cruelty to Animals or if such approval is withheld 30 days after application therefor, a certified copy of an order of a justice of the supreme court of the judicial district in which the office of the corporation is to be located dispensing with the approval. Id., § 404(g). The number of corporations for the prevention of cruelty to animals that may be formed in each county is regulated by the provisions of the Not-For-Profit Corporation Law. Id., § 1403(a).

Therefore, the provisions of the Not-For-Profit Corporation Law specifically provide for the incorporation of humane societies and dog protection associations in that these entities fall within the language "corporation for prevention of cruelty to animals". Further, the Not-For-Profit Corporation Law regulates these corporations by requiring that they receive the endorsement of a recognized organization in the field. It follows that section 114 of the Agriculture and Markets Law, in authorizing municipalities to contract for dog control officer services with any incorporated humane society or "similar incorporated dog protective association", contemplates a dog protective association formed under the Not-For-Profit Corporation Law.

We conclude that the authorization for municipalities to contract for dog control services with an incorporated dog protective association means an association formed under the Not-For-Profit Corporation Law.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions