4th DCA Declares Broward County Dangerous Dog Definition Unconstitutional

Florida 4th DCA Reverses Mercedes Dangerous Dog Classification

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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.

Hoesch v. Broward County

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.

Hoesch Oral Argument Creates Cautious Optimism

Wandner Gives Passionate Argument 
In Hoesch v. Broward County

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Do the Judge's Questions Signal the End of Broward's Ordinance?

Jason Wandner gave a passionate and wonderfully crafted argument to the 4th DCA today. From start to finish, he was animated, interesting and prepared.  He even cited to the panel Zeus's case in which Judge Dischowitz criticized the poor drafting of the ordinance. The judges listened carefully to his argument that Broward County did not have the right to supercede the state two kill rule with its one kill definition. 

The appellate judges, Carole Taylor, Jonathan Gerber, and Robin Rosenberg listened carefully to both sides.  This panel clearly understood the issues, and reserved most of their questions for the Broward County Attorney. 

The Broward County Attorney started out by saying that issues like the one before the court brought out a lot of passion on both sides.  He was clearly trying to equalize the energy Wandner had exhibited in his presentation. In reality, the County Attorney was unable to deliver. Whether it was his laid back delivery or the technicality of his argument, there was little intensity in his argument.

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Mercedes on Broward Death Row the Longest

Mercedes on Broward Death Row the Longest

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Mercedes has been on Broward's death row the longest. She was originally taken into custody by Broward Animal Control on November 24, 2008.  Almost two years ago. The crime? Allegedly killing a cat. No previous history of aggression, no prior history of problems with animal control. And she will remain on death row for the foreseeable future.  The case is now on appeal to the Fourth District, and they have yet to schedule oral argument. 

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Hoesch v. Broward County

Hoesch v. Broward County, Florida

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Fourth District Court of Appeal

 Jason Wandner for "Mercedes"

Pending in the Fourth District Court of Appeal (Broward County) is a case involving a pit bull who got out and killed a cat.

Broward County has a one kill dangerous dog definition—but with one difference.  The dog is euthanized once it is declared dangerous.

The Hoesch case argues that F.S. 828.27 is the enabling statute for the power of Animal Control. F.S. 828.27 expressly states that "no county or municipal ordinance relating to animal control shall conflict with the provisions of this chapter or any other state law."

The state law referred to (bolded above) would include any municipal ordinance that redefines a dangerous dog as one having killed once.

The case has been briefed and is ready for oral argument.  There are several other dogs on "death row" who appear likely to appeal under the same theories.

Of course this case is very important for those in Marion County, Florida which has also decided to enact an ordinance with a one kill rule.

I will report on developments as they become available.

 

Dangerous Dog Law

Helping to defend our best friends. Dangerous Dog Law (DDL) focuses on the legal defense of allegedly dangerous dogs. DDL is a member of the Pit Bulletin Legal News Network.

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