Dangerous Dog Law Cases from Broward County, Florida
4th DCA Declares Broward County Dangerous Dog Definition Unconstitutional
- Published on 09 February 2011
Florida 4th DCA Reverses Mercedes Dangerous Dog Classification
Mercedes Freed At Last
Broward Dangerous Dog Definition Found to Conflict With State Law
Cautious optimism turned to celebration today as the 4th DCA released its opinion in Hoesch v. Broward County. The full opinion can be read at the centered link below.
The judges, in a unanimous opinion, found that Broward's definition conflicted with state law which requires an animal to kill a domestic animal three times to be destroyed.
Although Broward has not authorized an action that the legislature has expressly forbidden, the destruction of a dog that has killed a single domestic animal is forbidden when section 767.13 is read together with 767.11(1)(b) a nd 828.27(7).......By requiring the destruction of a dog that has killed a single animal, Broward has vitiated the framework for dealing with dog attacks ... set forty in chapter 767. If killing a single animal is insufficient to merit the designation of a dog as dangerous per chapter 767, then Broward cannt require a dog's destruction for that same act.
The Court then declared sections 4-2(k)(2) and 4-12(j)(2) null and void, reversed the trial court summary judgment, and remanded for entry of judgment in favor of Hoesch.
The court found conflict in the penalty contained in the ordinance, which was somewhat surprising as it was not the main argument made by either party below. After I have more time to read the opinion, I will further comment.
Animal Provocation a Defense in Broward's New Dangerous Dog Law?
- Published on 28 January 2011
Provocation In Broward's New Dangerous Dog Law—Is It a Defense When a Dog Attacks Another Dog?
To everyone's surprise, an amendment submitted by Lois Wexler adding the category of "aggressive" dog was passed together with the original bill. The Wexler amendment can be read here, and the draft of the original proposed ordinance is here.
The original proposed ordinance defined a dangerous dog in § 4-2 (k)(2) as one that: "has more than once severely injured or killed a domestic animal while off the owner's property." Provocation as a defense in only mentioned in § 4-2 (k)(4) with respect to an attack on a human. Later in the ordinance, in § 4-12 (h)(2) it says "If a dog that has previously been classified as dangerous attacks or bites a person or domestic animal without provocation, the Division shall immediately confiscate the dog...."
The Wexler amendment adds the definition of an "aggressive dog." "Aggressive dog means any dog that...has killed a domestic animal while unprovoked and off the owner's property." This amendment was designed to blunt the argument that a dog gets one free kill before it is classified as dangerous. The Wexler amendment would define a dog as aggressive after one kill, and require the owner to provide the Division with photos of the dog, spay/neuter the the dog, not allow the dog to be brought to the dog park or a commercial establishment, keep the dog secure and muzzle the dog in public.
Obviously there is a conflict in the original draft definition of dangerous dog, which does not include provocation on the first bite, and the Wexler amendment which does (and thereafter defines the dog as aggressive). It will be interesting to see if that problem is addressed before the bill is published.
Proposed Broward Ordinance Needs Changing
- Published on 05 January 2011
Broward County's Proposed Ordinance Does Not Include Provocation Defense for Animal Incidents
I finally got a copy of the Proposed Broward County Ordinance. All you legal eagles can read the proposal in its entirety here. I have inserted Brandie's photo, because if this law gets passed without any changes, Brandie would again be declared a dangerous dog. There is no provision in the new law which allows for a provocation defense when one animal attacks another. Provocation is reserved as a defense only when a dog bites a human. There some other problems with the law, but none as important as the provocation issue.
I faxed a letter to Chip Lamarca, outlining my concerns, and you can read my correspondence to him here. The concerns stated in my letter was as follows:
- Provocation not a defense for animal on animal incidents;
- The appellate process is still totally confusing, and the appeal should be de novo in County court;
- There is no provision in the law for notice of the dangerous dog hearing;
- There is a loophole in the law that would allow animal control to incarcerate every dog
- There is no statute of limitations on investigations or complaints.
I did offer solutions to these issues, but when the public hearing is held on passing the law, everyone should argue for these changes. We must finish what Brandie started.
Broward Commission Passes New Dangerous Dog Law
- Published on 25 January 2011
Broward County Commissioners Vote Unanimously to Change Dangerous Dog Law—Intermediate "Aggressive" Dog Label Added
The Broward County Commission voted unanimously today to change its Dangerous Dog law. The Commission chambers were packed, and because of the number of people, comment time was reduced from three minutes to two.
To be declared "dangerous" and subject to a euthanasia penalty, an animal will have to have killed an animal off its property twice. After the first offense, the dog will be declared "aggressive" and subject to muzzling, licensing, bad dog sign posting and an annual fee. I will be able to report more on this once I see the actual law itself. The issue of provocation is somewhat confusing, because in the original proposal, provocation appears to be a defense only for a bite on a person. Then, in the section regarding a "second" bite, provocation is listed as a defense for an animal on animal attack. I will have to see what was actually passed to see how or if that issue was resolved.
In any case, the new law is a a good step forward. The only remaining question is how or if a decision by the 4th DCA in Hoesch will affect the new law. Is the new intermediate label stricter than the state law? Perhaps not, since all it does it put the label "aggressive" on the first bite, with the penalties remaining consistent with state law.
- Published on 11 December 2010
Brandie Finally Home
Brandie arrived home today. There was a joyous reunion, a happy Brandie, and, of course, a media blitz here and has been accomplished. Things don't always turn out right in life. When they do, you have to savor every moment. A picture is worth a thousand words.
And after an exciting return............