Opinion
No. 89-1803.
September 5, 1990.
Appeal from the Circuit Court, Broward County, Linda Vitale, J.
Howard J. Schumacher of Law Offices of Allen S. Kaufman, P.A., Fort Lauderdale, for appellants.
John J. Copelan, Jr., County Atty., James A. Thomas and Rebecca Kay, Asst. County Attys., Fort Lauderdale, for appellee-Broward County.
The Youngs appeal a final judgment authorizing the Broward County Animal Control Division to enforce the county's vicious dog ordinance by disposing of their two pit bull dogs. The Youngs contend that, under Broward County Ordinance Chapter 87-21, Section 4-12(G), the dogs must first be declared vicious and thereafter commit the vicious act before the county may impound the dogs. They further claim that the ordinance is unconstitutional, lacks administrative guidelines, and deprives them of property without due process. In our judgment, the trial court correctly interpreted the ordinance as providing for the protection of the public under the county's police powers. Accordingly, we affirm. The Youngs' two dogs mauled two people in two separate incidents. As the trial court noted, the Youngs' interpretation of the ordinance would be unjust and illogical requiring that the dogs attack a third time before the Animal Control Division could act.
We recognize that a statute or ordinance placing discretionary power in an administrative agency must furnish standards for those who administer such power to avoid arbitrary decisions. E.g., Barrow v. Holland, 125 So.2d 749 (Fla. 1960); Phillips Petroleum Co. v. Anderson, 74 So.2d 544 (Fla. 1954). Here, the ordinance did contain a definition of "vicious dog." Additionally, a reasonableness standard applies to the exercise of regulations enacted to protect public safety. Department of Bus. Reg. v. Jones, 474 So.2d 359 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 8 (Fla. 1986). In considering whether a statute violates substantive due process, the basic test is whether the state can justify the infringement of its legislative activity upon personal rights and liberties. The statute must bear a reasonable relationship to the legislative objective and not be arbitrary. Potts v. State, 526 So.2d 104 (Fla. 4th DCA 1987), decision approved by, 526 So.2d 63 (Fla.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988). We conclude that this ordinance meets those constitutional standards. We note that the ordinance also provides a section for appeal by writ of certiorari to the circuit court for injunctive relief. We also find no basis for appellants' other arguments.
The Florida Legislature created an act relating to dangerous dogs to take effect October 1, 1990, which includes the following subsection:
(2) If a dog that has not been declared dangerous under this act aggressively attacks and causes severe injury to or death of any human, the owner of the dog, upon conviction, is guilty of a misdemeanor of the second degree . . . the dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to apply to a court of jurisdiction for any remedies that may be available.
See 1990 Fla. Laws 180.
STONE, J. and OWEN, WILLIAM C., Jr., Associate Judge, concur.
HERSEY, C.J., dissents with opinion.
By this affirmance, the majority interprets the Broward County Animal Control Ordinance (Ord. No. 87-21, § 1, 5-12-87) in such a manner as to make it constitutionally suspect.
The ordinance carefully defines "vicious dog" and provides that no penalty may be imposed against a dog's owner "unless the dog, prior to the offense alleged, shall have been declared vicious pursuant to" the ordinance.
In addition to penalties for violation and rather onerous requirements imposed upon the owner of a dog declared vicious, the ordinance also contains the following:
(g) If any vicious dog shall, when unprovoked, kill or wound or assist in killing or wounding any domestic animal or attack, assault, wound, bite or otherwise injure or kill a human being, the officer is empowered to issue a citation or to impound the dog and after written notice to the owner and expiration of the 120-hour waiting period to dispose of such vicious dog in a humane manner.
The dogs involved in the factual scenario here perpetrated two separate attacks. That is beside the point. The fact is no action was taken until after the second event. It was only then that there was a determination that these were vicious dogs.
We here interpret the provisions of section 4-12(f) to permit animal control personnel to retroactively determine that dogs are vicious and to impose the ultimate penalty, destruction of the dogs.
There is absolutely no guidance in the ordinance, no standards or guidelines to control the discretion of the director of animal control as to whether, after a first bite, a dog owner is to be given the opportunity to confine his dog and to provide security as required in one section of the ordinance, or, whether the owner is simply to be advised that the dog will be disposed of under another section of the ordinance.
A dog is more than mere property to most dog owners. But regardless, a dog is property. Dog owners are entitled to equal protection under the law. The ordinance at issue here could be interpreted to require a two-step process in which a determination is first made that a dog is vicious and then, for a subsequent violation, the ultimate penalty is imposed. It would probably also be constitutionally permissible to eliminate the "first free bite" aspect of the ordinance altogether. The objection to the ordinance, or to the majority's interpretation of the ordinance, is that the choice of which penalty may be imposed is vested solely in the unbridled discretion of the individual who, from time to time, may hold the post of Director of the Animal Control Division for Broward County. In my judgment the ordinance, so interpreted, is constitutionally infirm.
I therefore respectfully dissent.