by Robert Eschenfelder
This article describes how the confluence of a local government dog bite citation, community concern, a dog-owning legislator, and a circuit judge allowed a dog owner to save his dog and ensure future dog owners would be afforded a more traditional due process appeal prior to their dog’s being sentenced to die for seriously injuring a human.
It has been said that there are “dog people” and “cat people.” However, for those who undertake the profession of veterinarian, it seems the love of all animals flows through their veins. And so it was that a local Manatee County veterinarian one day was brought a dog that had been badly abused and left with a far too small collar embedded into his neck.
The veterinarian carefully removed the collar, and began nursing the dog back to health. While his goal was to see the dog adopted, no one seemed interested. And, thus, it came to pass that the veterinarian came to see the dog as part of his family. He named the dog Padi. Life was good for Padi with his new family. He hung out at the veterinarian’s office, visited with the other animals awaiting treatment, and occasionally interacted with the humans who visited, too. That may be where the story ended. Except, it wasn’t.
On June 4, 2015, the veterinarian’s teen daughter wanted to hang out with her friend. However, her friend was caring for a four-year-old boy at the time. Eventually, the three converged on the veterinarian’s office. The teens chatted; the boy began trying to play with Padi, who was not familiar with the boy. Dog toys were tossed; Padi went under a desk, and the boy followed. While no one saw the actual event, the boy came from under the desk screaming and Padi had bitten a portion of his ear off.
The boy was eventually transported to the emergency room for stitches. Future reconstructive surgery was indicated by the treating physician as likely needed. The Manatee County Sheriff’s Office and Manatee County Animal Services Division responded to the veterinarian’s office, and thereafter gathered evidence and took investigatory affidavits. One fact was clearly undisputed: Padi had caused a laceration to the boy’s ear requiring stitches and potentially reconstructive surgery. This single fact would launch a one-year legal saga.
The Dog Death Penalty Statute Circa 2015
Pursuant to F.S. §767.13(2) (2015), if a dog caused “severe injury to or death of” a human, 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 after the owner is given written notification [of the right to request an administrative hearing], and thereafter destroyed in an expeditious and humane manner.” In turn, “severe injury” was defined by F.S. §767.11(3) (2015) as “any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery.”1
A key point, when the incident occurred, F.S. §767.13(2) did not contain within its body any provision for the owner of a dog found by an animal control authority to have inflicted severe injury or death on a human, to prove that the dog’s actions were due to “mitigating” circumstances, such as whether the severe injury was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member, or if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault.
The local “animal control authority,” as defined by F.S. Ch. 767, Manatee County Animal Services Division issued a final notice of violation of F.S. §767.13(2) on June 18, 2015. Pursuant to the right that had been set forth in that statute to administratively appeal a violation notice, Padi’s owner had the right to appear before a county administrative hearing officer. Within the requisite time listed in the notice, Padi’s owner invoked that right.
The Quasi-Judicial Hearing
In the lead up to the administrative hearing, Padi’s owner asserted that his dog had been “cornered” by the boy, that his dog bit the boy as a defensive act, and that in spite of the wording of the statute, someone who faces the destruction of their property (particularly their pet dog) for having inflicted a severe injury or death upon a human should be permitted to demonstrate mitigating circumstances so as to justify the dog’s actions. The owner was particularly keen on raising defenses for his dog’s actions given the fact that the investigatory materials and testimony from Padi’s trainer and others could support an argument that Padi did not have a history of aggression.
The county’s enforcement staff disagreed with this position. They interpreted and applied the statute as a self-contained mandate, taking the position that the statute’s wording plainly read as not allowing such justification defenses. The staff noted that the legislature clearly knew how to allow for such justification defenses concerning similar animal laws, as it did when it provided for them in F.S. §767.11 (2015) defining a “dangerous dog.” Unfortunately for Padi’s owner, during the administrative hearing, the hearing officer declined to hear any “affirmative defense” or mitigating testimony concerning the bite, agreeing with the county’s interpretation of the statute. At the hearing’s conclusion, the matter was taken under advisement. But with the facts as to a bite and resulting laceration requiring stiches and reconstructive surgery clearly present, “humane destruction” seemed a likely outcome of the eventual disposition of the appeal.
The 2015 Statute Comes Under Fire
Manatee County, as is the case in many communities around the world, has a significant number of citizens who care very deeply about the welfare of domestic animals. With the modern tool of social media at their disposal, soon many local citizens were appearing before the county commission each meeting advocating for Padi, and communications were pouring in from other states and counties doing the same.
On Tuesday, July 28, 2015, the Manatee County Commission formally expressed its policy disagreement with F.S. §767.13(2), in that it did not permit an owner of a dog, which had inflicted severe injury or death on a human, to offer evidence of affirmative defenses when contesting a F.S. §767.13(2) violation notice. On that day, the commission voted to ask the legislature to amend F.S. §767.13(2) (2015) to allow for such defenses.
Pursuant to this official action, a delegation from the county visited with its local representative, Greg Steube. While Truman almost certainly did not utter the phrase “if you want a friend in Washington, get a dog,” after receiving a briefing on the topic, Rep. Steube agreed to be a friend to dogs in Tallahassee and file a bill to change the law to afford dog owners the ability, when their dogs did inflict serious injury upon a human, the right to offer mitigating circumstances as to why their dogs acted in such a manner. While Rep. Steube agreed to carry Manatee County’s legislative request to the legislature, this did not provide relief for the looming disposition of Padi’s still-pending case. For that, the county and Padi’s owner turned to the courts.
Every Dog Has its Day; Padi’s Was in Court
As noted earlier, under the 2015 version of F.S. §767.13(2), the county’s animal services staff interpreted it as requiring confiscation and “humane destruction” of a dog if it was established that the dog did, in fact, inflict “severe injury or death” to a human. While F.S. §767.13(2) had been applied within the state for some time, after researching the law prior to the beginning of the hearing process, the county could find no published controlling authority that addressed the underlying constitutionality of the statute. Yet Padi’s owner, many citizens, and indeed the county’s lawyers, expressed concern that the statute, which allowed on its face the taking and destruction of an owner’s dog (property) without the ability of the owner to establish a defense for the dog’s actions, may be a violation of the owner’s due process rights.
In late July 2015, and prior to the hearing officer’s rendition of a final order, the county received an email from a citizen informing the county of an unpublished opinion in the case of In re: “CODY”, an adult male black and tan German Shepherd dog, owned by CHARLES HENSHALL, Case No.: 1999-33984 COCI (May 6, 2003). The opinion was based upon an appeal from the Volusia County Animal Control Board, which had conducted a hearing applying F.S. §767.13(2). The Animal Control Board (ACB) found the dog in violation of the statute for inflicting a first-time, severe injury upon someone visiting a business owned by the dog’s owner. Just as in the Padi case, the Volusia ACB applied the statute as not allowing “motive” of the dog as a relevant defense. The owner appealed, raising a variety of arguments, including that the statute was an unconstitutional violation of due process.
In the In re Cody case, the court first addressed the very issue in dispute in the Padi case, to wit: Was the Cody owner entitled under the statute to raise as an affirmative defense the “motive” of the dog to inflict severe injury on the victim? As to that question, the Cody court agreed with Volusia’s (and Manatee’s) interpretation of the statute:
“[Owner’s] first argument on appeal…is that the ACB erred, as a matter of law, by failing to apply and interpret all of the relevant provisions of Chapter 767 of the Florida Statutes. In particular, [owner] alleges that the [b]oard erroneously focused its decision solely on the question of whether or not the subject dog inflicted severe injury. [Owner] alleges that the [b]oard should have considered [s]ection 767.12(1)(b), Florida Statutes, which states: ‘A dog shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, was unlawfully on the property….’ [Owner] alleges that such a provision would have been helpful because the victim in this case…unlawfully entered his property when he was bitten by Cody. Thus, [owner] urges that the [b]oard erred, as a matter of law, by ordering the destruction of Cody without considering [s]ection 767.12(1)(b).
“The [c]ourt finds that although [s]ection 767.13(2), the statute under which Cody was confiscated, provides that the dog owner may request a hearing under [s]ection 767.12, the specific provision [owner] is citing, [s]ection 767.12(1)(b), is premised by the language: ‘A dog shall not be declared dangerous if…’ (emphasis added). [Owner’s] dog Cody, was never subjected to a “dangerous dog classification” hearing, pursuant to [s]ection 767.12. Rather, the Animal Control Board decided to proceed under [s]ection 767.13(2), which is separate and distinct from the statute classifying dogs as dangerous. It concerns solely the disposition of dogs, whether classified as dangerous or not, who cause severe injury or death. Thus, the [c]ourt finds that upon the plain reading of the statutes, as they are currently written, it cannot find that the Animal Control Board erred as a matter of law. State v. Rife, 789 So. 2d 288 (Fla. 2001) (Legislative intent is determined primarily from the language of a statute). As a result, the [c]ourt finds [owner’s] first argument without merit.”2
Notwithstanding its agreement with the Volusia Animal Control Board’s interpretation and application of the statute, the In re Cody judge undertook an examination of the owner’s argument that the failure of the statute to expressly allow an owner to present a case concerning the motives of the dog to inflict severe injury (as is allowed in “dangerous dog” designation cases) violated the owner’s “substantive due process” rights.
In addressing this challenge, the In re Cody judge wrote:
“Had Cody been subjected to the dangerous dog classification, under [s]ection 767.12, [owner] would have had the benefit of certain enumerated defenses, i.e., provocation (see Fl. Stat. §767.12(1)(b)). However, [s]ection 767.13(2) does not authorize any such defenses.”
“To compel execution of all dogs confiscated under Section 767.13(2) is arbitrary and unduly oppressive. The legislature has given animal control authorities unfettered authority to order the killing of any dog, who has not previously been declared dangerous and who causes “severe injury,” regardless of the circumstances. Section 767.13(2), as it is currently written…is unconstitutional because it is arbitrary and oppressive.”3
Once it became aware of this authority, the Manatee County Commission became concerned that if the administrative appeal process concluded with a destruction order for Padi, his owner’s due process rights may have been violated. The county was also concerned about similar results in future cases when its staff applied this statute as written, and that the statute may well not be constitutional. Constitutional due process rights cannot be relegated to an administrative process, and when a law or regulation creates an irrebuttable presumption that is alleged to be unconstitutional, a declaratory judgment is an appropriate remedy to seek.4 Thus, on August 11, 2015, the Manatee County Commission voted to authorize its lawyers to file a declaratory judgment action against the statute, a move coordinated with Padi’s owner.
A challenge to the statute was not a foregone conclusion. In administering F.S. §767.13(2) in the manner that it did in the Padi case, including the position that the statute did not allow for the presentation of any affirmative defense related to the motive of a dog’s infliction of severe injury or death upon a human, the county’s lawyers and animal control staff relied upon the plain meaning of the statute, and upon published appellate law surrounding the statutory scheme. Specifically, F.S. §767.13(2) (2015) read:
“If a dog that has not been declared dangerous attacks and causes severe injury to or death of any human, 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 after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure. In addition, if the owner of the dog had prior knowledge of the dog’s dangerous propensities, yet demonstrated a reckless disregard for such propensities under the circumstances, the owner of the dog is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”5
In turn, F.S. §767.11(3) defined “severe injury” as follows: “(3) “Severe injury” means any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery.
Other than the possibility of an owner alleging that the human bitten by his or her dog did not suffer a “severe injury” as defined, nothing in this statutory scheme provided for any defense, directly or by incorporation.
Indeed, published appellate decisions (while not squarely presented with a due process argument) seemed to have no problem applying the statute. For instance, in the case of Boesch v. Broward County, 53 So. 3d 1177, 1181 (Fla. 4th DCA 2011), the court expressly noted that: “Section 767.13(2) requires the destruction of a dog not previously declared dangerous only if it attacks and causes severe injury or death to a human.”6 Also, in City of Ocala v. Green, 988 So. 2d 114, 116 (Fla. 5th DCA 2008), the court interpreted F.S. §767.13 and noted that the statute was clearly written and provided that:
“’In addition,’ the dog “shall be immediately confiscated” and held for  business days to afford the owner an opportunity to request a hearing. If the owner does not request a hearing, or does not prevail after requesting a hearing, the dangerous dog must then be destroyed in an expeditious and humane manner. The statute contains no requirement that the owner first be found guilty of violating the misdemeanor dangerous dog statute before the dog is subject to being confiscated and euthanized. When the language of a statute is clear and unambiguous and conveys a clear and definite construction, there is no need for a court to resort to the rules of statutory interpretation; rather, the court must give the statute its plain and obvious meaning. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).”7
The county also relied in its interpretation upon a prior case within its own judicial circuit applying the statute. In the administrative appeal of Erskine v. Manatee County, AD-2013-01, the hearing officer’s February 1, 2013, order ruled, in relevant part:
“However, the [s]tatute in 767.13(2) recognizes that even a dog which has not been previously declared as [d]angerous can commit and attack or bite a human in such a serious manner such that the human suffers severe injury or death, and in such case, although not previously declared [d]angerous, that dog must or using the statutory language, “shall, be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time...and thereafter destroyed in an expeditious and humane manner.” The statute in such case provides for no flexibility in determining the ultimate fate of the dog. The fate of the dog is determined with finality the moment that the dog inflicts a severe injury or death.
“However, if a dog inflicts a severe injury or if a previously declared [d]angerous dog commits a repeat offense, the dog must be humanely destroyed pursuant to Florida Statutes.”
“In the current case, the [d]ogs committed, as their first offense, the infliction of severe injury, as defined by [s]tatute and [o]rdinance, and as such, there is no option for second chance and the [d]ogs must be humanely destroyed as the only legally available option.”8
On March 20, 2013, the Manatee County Court, sitting in its appellate capacity in Case No.: 2013-AP-56, affirmed the 2013 hearing officer order, finding it to be “thorough and well-reasoned.” While this analysis supported the county’s historical interpretation and application of the statute, the Manatee order did not provide any detailed analysis, and did not appear to attempt to parse, let alone rule upon, any constitutional issue. With the challenge to the statute now filed, the county and owner had to develop alternative arguments to topple the statute since, if that occurred, the legislature would feel more pressure to act, and Padi’s citation would be voided.
The Argument Against the Statute
As Manatee’s decision to challenge the statute became widely reported, another unpublished case, this out of Sarasota County, came to the county’s attention. In the opinion in In Re: Petition of Gilbert Otero Regarding the Dog “Zeus,” Case No.: 2007CC2863SC (July 27, 2007), the county court heard an appeal from the Sarasota County special magistrate who had conducted a hearing finding a dog met the criteria for humane destruction under F.S. §767.13(2). After undertaking significant legal analysis, the Zeus court’s opinion concluded that the statute created an unconstitutional delegation of authority upon Sarasota enforcement officers inasmuch as it provided enforcement officers with unguided authority to select the severity of consequences for a dog’s actions. While the ruling was founded upon a different constitutional principle, the outcome was the same: a declaration from another county judge that the statute did not meet constitutional requirements.
To be sure, the Volusia and Sarasota county court opinions had no legally binding effect upon Manatee.9 However, those opinions clearly created a valid concern that their existence, and the fact that the county had now become aware of them, could lead to a civil rights suit from the owner (or future owners) if the county continued to apply the statute as written.
In addition to the foregoing court opinions, the county had also undertaken factual research into how the state’s 66 other counties applied the statute. While this case arose within Manatee County, the county was not alone in struggling with how to constitutionally apply F.S. §767.13(2). Thus, the county staff surveyed both other county attorney offices as well as animal control agencies for their views. That research confirmed that the law was being applied in a variety of ways from county to county, with some having developed ordinances that seemed to conflict with the statutory mandate.
Clearly, this divergence of application of a statute that was supposed to be uniformly interpreted and applied throughout the state supported a conclusion that the statute, as then written, invited the potential deprivation of due process and equal protection of the laws to owners cited under the statute, and that it was thus not constitutionally sound.
While it could have been argued that the county should simply “fix by ordinance” the deficiencies alleged to exist in F.S. §767.13(2) (as it appeared some other jurisdictions had done), the county did not have such authority. This was so because F.S. §767.14 prohibited a local government from “placing further restrictions or additional requirements on owners of dangerous dogs or developing procedures and criteria for the implementation of this act” when those restrictions, requirements or procedures are “specific to breed” or when the provisions of the act are “lessened by such additional regulations or requirements.”
The local creation of one or more affirmative defenses for F.S. §767.13(2) citations, when the legislature has chosen to provide such defenses in other parts of Ch. 767, but chosen not to include any defenses within F.S. §767.13(2), would clearly “lessen” the enforcement provisions of F.S. §767.13(2). Thus, unless and until the legislature addressed the constitutional questions surrounding F.S. §767.13(2), the county believed its continued enforcement as against its citizens created constitutional concerns.
The Padi Court Rules
On December 14, 2015, the Circuit Court for the 12th Judicial Circuit entered its order in Manatee County v. Gartenberg, 2015 WL 9873843, No. 2015-CA-003844 (12th Cir. 2015). In relevant part, the ruling provided:
“Constitutionality of §767.13(2), Florida Statutes
“At its core, this case is about the confiscation and potential destruction of the [d]efendant’s property. Though they are kept as companions, often given people’s names, and commonly referred to as ‘man’s best friend,’ ‘[i]t is undisputed in the law that dogs…are subjects of property or ownership.’ Cnty of Pasco v. Riehl, 620 So. 2d 229, 231 (Fla. 2d DCA 1993).
“These statements are not meant to diminish the significance of the emotional bonds formed between people and their dogs. After all, ‘the affection of a master for his dog is a very real thing.’ La Porte v. Associated Indeps., Inc., 163 So. 2d 267, 269 (Fla. 1964). Interestingly, the deprivation of the object of such affection may, on occasion, form the basis for recovery beyond the actual value of the dog. Id. The reasons for such affection are obvious, but perhaps most eloquently catalogued in the famous bit of oratory known as ‘Vests Eulogy to the Dog,’ which was delivered during an 1872 closing argument by a Missouri attorney (and, later, senator) named George Graham Vest, who poignantly stated that:
“The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog….[A] man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fierce, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in encounter with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert he remains. When all riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in his embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even in death.” 1943-44 Official Manual, State of Missouri 1129.
“These sentiments notwithstanding, the [c]ourt reviews the constitutionality of the statute at issue solely to determine the legal propriety of the imminent permanent deprivation of [d]efendant’s property.
“Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article I, §9 of the Florida Constitution, no person shall be deprived of life, liberty, or property without due process. In evaluating whether a statute violates due process, the [c]ourt must determine whether “the statute bears a rational relation to a legitimate legislative purpose in safeguarding the public health, safety, or general welfare and is not discriminatory, arbitrary, or oppressive.” Chi. Title Ins. Co. v. Butler, 770 So. 2d 1210, 1215 (Fla. 2000); see Young v. Broward Cnty., 570 So. 2d 309, 310 (Fla. 4th DCA 1990) (holding that a reasonableness standard applies to the exercise of regulations enacted to protect public safety).
“In the text of Florida’s Dangerous Dog statute, the Florida Legislature codified its interest in protecting the safety and welfare of its people from dangerous dogs who attack without provocation. The statutory language of §767.10, Florida Statutes, regarding unprovoked attacks, states the following: ‘The [l]egislature finds that dangerous dogs are an increasingly serious and widespread threat to the safety and welfare of the people of this state because of unprovoked attacks which cause injury to persons and domestic animals; that such attacks are in part attributable to the failure of owners to confine and properly train and control their dogs; that existing laws inadequately address this growing problem; and that it is appropriate and necessary to impose uniform requirements for the owners of dangerous dogs.’ Fla. Stat. §767.10.
“Section 767.11(1), Florida Statutes, defines a dangerous dog as a dog that has: (1) bitten, attacked, endangered, or inflicted severe injury on a person; (2) more than once severely injured or killed a domestic animal while off of the owner’s property; or (3) ‘[h]as, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.’ However, a dog who may have exhibited one of the three behaviors outlined in §767.11(1), will not be classified as a dangerous dog if it is established, under §767.12(1)(b), Florida Statutes, that “the threat, injury, or damage was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member” or “if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault.” Thus, to the extent that a dog will not be classified as dangerous if the dog was provoked or attacked in defense of a person from an unjustified attack or assault, §767.12(1)(b) serves as an example of a statute that rationally relates to the legitimate interest pronounced and codified in §767.10.
“Conversely, when faced with a notice of violation of §767.13(2), a dog — like Padi — who has never been classified as dangerous that causes severe injury to a person must be confiscated and thereafter destroyed regardless of the circumstances surrounding the injury to the person. Although provocation is statutorily relevant for purposes of contesting a dangerous dog classification under §767.12(1)(b), and a dog may be considered dangerous under that statute by inflicting severe injury on a person, the legislature has essentially eliminated any consideration as to provocation for dogs cited for causing severe injury to a person under §767.13(2).4 The [c]ourt finds it illogical and inconsistent that an owner of a dog facing a dangerous dog investigation and classification under §767.12 may assert certain defenses such as provocation, defense of a family member or of a person from an unjustified attack, but an owner of a dog subjected to the provisions of §767.13(2) enjoys no such defenses, notwithstanding the statute’s constitutional validity, to prevent the statutory mandated execution of their dog. In short, if Padi was subjected to a dangerous dog investigation under §767.12, then [d]efendant and Padi would be allowed certain enumerated defenses, such as provocation, in defense to a dangerous dog investigation and classification; however, such defenses are not authorized under §767.13(2).
“In consideration of the reasonableness standard applicable to the exercise of regulations enacted to protect public safety, the [c]ourt finds that §767.13(2) bears no rational relationship to the otherwise legitimate interest of protecting and safeguarding persons against unprovoked attacks from dangerous dogs. The statute mandates that any dog confiscated under §767.13(2) must be destroyed, regardless of the circumstances surrounding the injury to the person. The Florida Legislature maintains a legitimate public safety interest, as codified in §767.10, in protecting society from unprovoked attacks from dangerous dogs, but nevertheless harshly regulates dogs, under §767.13(2), who have never previously been classified as dangerous, without consideration of potential intervening circumstances. For this reason, the [c]ourt finds §767.13(2) arbitrary and unduly oppressive.
“In addition, the [c]ourt finds that §767.13(2) results in an unconstitutional delegation of discretion in animal control authorities insofar as the statute provides animal control authorities no guided authority to select the severity of consequences for a dog’s actions. The Florida Supreme Court has emphasized in numerous cases that unfettered authority granted to a government enforcement agency with no clear, specific legislative guidance is unconstitutional. Barrow v. Holland, 125 So. 2d 749, 752 (Fla. 1960); Mahon v. Cnty. of Sarasota, 177 So. 2d 665, 667 (Fla. 1965); Dickinson v. State, 227 So. 2d 36, 37 (Fla. 1969); High Ridge Mgmt. Corp. v. State, 354 So. 2d 377, 380 (Fla. 1977). Such delegation of power without adequate protection against unfairness or favoritism contravene the constitutional doctrine of non-delegation in Article II, §3 of the Florida Constitution. Dickinson, 227 So. 2d at 37. As observed in Dickinson, ‘the legislative exercise of the police power should be so clearly defined, so limited in scope, that nothing is left to the unbridled discretion or whim of the administrative agency charged with the responsibility of enforcing the act.’ Id. at 37.
“Chapter 767 provides no clear, specific guidelines as to how or when animal control authorities should apply §§767.12 or 767.13(2). Instead, the enforcement scheme established in Chapter 767 affords animal control authorities confronted with a dog that has inflicted a severe injury to a person (as defined in §767.11 (3)) unfettered discretion in determining whether they will pursue a dangerous dog classification under §767.12, or the destruction of the animal under §767.13(2). Such unbridled discretion is impermissible. See High Ridge, 354 So. 2d at 380 (invalidating subsections of Omnibus Nursing Home Reform Act of 1976 that required rating of nursing homes upon finding of unlawful delegation of legislative authority in that they did not contain objective guidelines and standards for enforcement). Ultimately, the absence of statutory guidance as to how §§767.12 or 767.13(2) will be applied results in an unconstitutional delegation of power to the animal control authorities charged with the responsibility of enforcing Chapter 767. See Dickinson, 227 So. 2d at 37; High Ridge, 354 So. 2d at 380.
“In sum, the [c]ourt concludes and declares that §767.13(2) is unconstitutional because the statute bears no rational relationship to the legislature’s otherwise legitimate interest in protecting people from dangerous dogs who attack without provocation, as codified in §767.10, and is therefore arbitrary and unduly oppressive. The [c]ourt further declares §767.13(2) unconstitutional as the statute provides the animal control authorities unbridled discretion in the enforcement of Chapter 767, which violates Article II, §3 of the Florida Constitution.”10
With the statute being declared void, the court also ordered the immediate release of Padi to his owner.
Legislature Reacts and Creates a New Statutory Scheme
The statute at issue in this article, F.S. §767.13, was created by Ch. 90-180, Laws of Florida, and amended by Chs. 93-13 and 94-339, Laws of Florida. Until 2016, it had not been amended since. In each version, while the legislature made other changes, the language in the relevant section had consistently read in a mandatory manner. However, in reaction to the Padi case, Florida House Bill 91 (2016) and Florida Senate Bill 334 (2016) were filed. While they were referred to numerous committees and edited along the way, these bills ultimately passed both chambers of the legislature unanimously, and what became Ch. 2016–16, Laws of Florida, was signed by the governor on March 8, 2016, and took effect that same day. The bill:
• Eliminates the mandatory quarantine, confiscation, and destruction of a previously unclassified dog that has caused severe injury to a human;
• Provides that if a dog is classified as “dangerous” as a result of causing severe injury to a human, the animal control authority may destroy the dog only after considering the nature of the injury and future likelihood of harm by the dog;
• Revises the notice of hearing and appeal rights to dog owners;
• Transfers jurisdiction over appeals of animal control determinations from county court to circuit court;
• Prohibits a dog from being destroyed while the statutory appeal process is pending;
• Authorizes local governments to adopt ordinances, which further regulate dogs that have bitten or attacked humans or domestic animals; and
• Expressly exempts law enforcement dogs from provisions of law governing “dangerous dogs.”
Key to future cases, such as the Padi case, new §767.12(5)(b) provides: “If a dog is classified as a dangerous dog due to an incident that causes severe injury to a human being, based upon the nature and circumstances of the injury and the likelihood of a future threat to the public safety, health, and welfare, the dog may be destroyed in an expeditious and humane manner.”
In sum, the law now allows, and indeed requires the consideration of the circumstances surrounding a dog bite incident in which the bite results in severe injury to the bitten person.
Thus, ends the tail of Padi the dog’s adventure through the legislative and judicial process, becoming an international social media cause along the way. While he goes about enjoying the rest of his life, Padi will not have any understanding of the changes in the law his case caused, or how dogs, their owners, and county animal control agencies all benefitted from the case and resulting new statutory scheme.
1 Emphasis added.
2 In re Cody, Case No.: 1999-33984 at 2-3 (emphasis in original).
3 Id. at 5.
4 Dept. of Revenue v. Young American Builders, 330 So. 2d 864, 865 (Fla. 1st DCA 1976).
5 Emphasis added.
6 Emphasis added.
7 Emphasis added.
8 Erskine v. Manatee County, AD-2013-01 at 8-10 (emphasis added).
9 See State v. Riley, 698 So. 2d 374, n. 1 (Fla. 2d DCA 1997) (decisions of one county court are not binding precedent on another county court because trial courts do not create precedent).
10 Manatee County, 2015 WL 9873843 at *3-*5.
Robert Eschenfelder is an attorney practicing law in Manatee County and is board certified in city, county, and local government law. He represented Manatee County during the Padi case and drafted the initial language that was filed in the legislature, which ultimately became the new law.
This column is submitted on behalf of the Animal Law Section, Ralph A. DeMeo, chair, and Deborah C. Brown, editor.