HomeMy WebLinkAbout2001 07 23 Regular E Number of Animals at Residence
COMMISSION AGENDA
ITEM
E
Consen t
111 formational
Public Hearing
Regular X
July 23.2001
Meeting
/ fSfl1 ,MOl
Mgr. J Au. / Dept.
REQUt:ST:
The City Attorney presents the results of legal research and request:; liir~ction from the City
Commission rcgardj ng the preparation of an ordinance which waul d regu late the num bcr 0 r animals
ut each residence within the City of Winter Springs.
PURPOSE:
The purpose of this Agenda Item is to seek direction from the City Commission regarding the
preparation of an ordinance to regulate the number of animals which could be maintained at each
residence in order to reduce the polential detriment to the public health, safcly, ami general welfare
because of an overabundance of animals in a residential area_
APPLICABLE LAW AND PUBLIC POLICY:
1. The mo!;t relevant and binding case on point is Gates v. City of Sanford. 566 So. 2d 47(5lh
DCA 1990). [n this case, the COU11 held:
(a) Ordinance limiting each resilience to three dogs and three cats was not
unconstitutionally unreasonable in light of potential detriment to public health,
safety, and welfare hecause of an overabundance of animals in a residential area.
Page I of J
(b) The Constitution does not require a case specilic classit1catiun such as:
(i) type of dog:
(ii) size of dog; or
(iii) size of residence.
However, the City Commission can reasonably considcr these issues. For exarnpk, the City
Commission may wa.nt to consider a different maximum limit for properties in excess of certain
acreage.
CONSIDERATIONS:
1. The City Commission previously adopted Ordinance Ko. 750 repealing a n:gulalioll on the
total number of animals thal could bc maintained at a rCi\idence.
2. The City Commission has expressed a desire to revisit the issue regarding the regulatioll of
the number of animals at a residence.
3. There are many lawful ways to regulate animals in residential arCas. Any regulation should
be imposcd by a duly adopted ordinance. However, serious consideration should bc given
to the difficulty of enforcing the regulation. Several ways to lawfully regulate animals
include:
(a) Public nuisance regulations.
(b) Zoning regulations prohibiting ke.TU1els in residential areas.
(c) Animal cOl1trol regulations limiting the number of animals.
(d) Anirnallicensing regulations.
4. If the City Commission adopts new rcgulations restnclmg the numher of animals,
consideration should he given to the effect on residential property owners that currently have
animals in excess of the new restriction.
STAFf'RECOMMENDATION:
City Commission should provide direction on the preparalion of an ordinance which would regulate
the number of animals at each residence within the City of Winter Springs. If the City Commission
desires to adopt an ordinance, Gales v. City ofSallford should be uscd as guidance.
ATTACHMENTS:
Gales v. City of Sanford. 566 So. 2d 47(5th DCA 1990)
Repealed Section 4-2. Winter Springs Code.
rage 2 of J
COMMISSION ACTION:
F:\OOC:iICil)' "I' Wi"ter $pri"8SI."gcndai:lnillul.wpd
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566 So.2<.1 47
15 Fla. L. We~kjy D2133
(Cite as: 566 Su.2d 47)
Oi:llrict Court of Appeal of Florida,
Fiflh Dislrict.
Josephine GA TES and Randall J, G~lcS. Appel!ants,
v.
CrTY OF SANFORD, Florida, elC., Appcilee.
No. 89-1820.
Aug. 23, 1990.
Hom(..'Owners brought aclion again,l dIY, alleging
that ordinance restricling number of dogs 3Jld cats
per residence was unconstitutionally arbitrary.
unreasonable and discriminatory. The Circuil
Courl. Seminole County, S. Joseph Davis. Jr., J..
upheld restrictive provision. bUl slruck variance
provision. Homeowners appealed. The Dislricl
Court or Appeal, Harris, J.. beld thaI; (I)
ordinance Iimiring each residence to !brce dogs and
lhree cats was not unreasonable in light of pOlential
detriment (0 public heaI!b, safelY and generol
welfare because of overabundance of animals in
residential arca; (2) case specifil: dassification such
as lype: of dog, size of dog, or size of residence was
nOl consritulionally required; and (3) emire
ordinance did not fall upon declaring thar variatlce
prnvision of ordinance was um;onstirutionaJ.
Affirmed.
West Headnot~s
[IJ Municipal Corporalions Q;:::> 122.1{2)
2b8kI22.1(2)
(Formerly 268k 122(2))
One challenging c()n~litutionality of ordinance h:ls
burd~ of proving its invalidity.
(21 Constitutional Lllw ~87
92k87
All propel1Y is held subject to right of state to
regulale it and on implied condilion lhar its use shall
nOT be injurious 10 equal rightS of Omen.
[3 I Constiturional Law ~212
92k212 .
P 1 Constirutional Law <e'.==>2S3.1
Pilge 1
92k253. I
(3] Municipal Corporalions <%=589
268k589
Ordinances enacted pursuant to general police
powers must not infringe constitutional guarantees
by invading personal or propCl1y rights
unnecessarily or Wlre;Jsonably or by denying due
process or equal pmteclion of laws. U.S.C.A.
Con5t,Amends_ 5. 14.
(4) Constitutional Law ~2I1(2)
92k211(2)
Clas-qlfication does not deny equal protection if it is
reasonable and nonarbitrary and if it IrealS all
persons in same class alike.
15J Animals <3=4
28k4
City ord.inance limiling each residence 10 three dogs
and three CJts was nOI uncoosriwlioo.a11y
unreasonable in light of potential detriment LO public
health, safety and general welfare because of
overabundatlcc of animals in residential are::J.
U.S.C.A. Const,Amends. 5. 14.
(6J Animals ~4
28k4
To prevent linding that ordlnaJlc.e limiting number of
dogs and cats per residenl:C was unconstitutionally
arbitrary, Wlreasonable and discriminatory. case
specific classitication such as type of dog, size of
dog, or size of residence was not rcquired.
U.S.C.A. Const, Amends. 5. 14.
[7J Municipal Corporations e=>1 11(4)
268kl I 1(4)
COUI1 should give clIec[ ro remaining valid portion
of or<.linance. if unconstitulional pol1ion of ordinance
can be eliminated without doing violence to
legisl:llive purpose clC:prcssed in valid portion. if
remaining ponion is (;lJrnplt:te in itself, and if valid
and invalid portions are nOI so mscpar<lble rhal one
portion would not have been enach:d without !bL'
other.
Copr. fl; West 200t No Claim to Orig. U.S. Gave. Work;
566 SQ.2d 47
(Cite llS: 566 So.2d ~7)
(8] Municipal Corporations e=::>111(4)
268kl11(4)
Entire llrllinance restricting numoer of dogs and e;)(s
per residence did not have to oe invalidated upon
finding that provision of ordinance on vari::mees was
invalid as lacking sufficient guidelines for exercise
of discretion: provision restricting number of dogs
a.nd calS in residential area was not affecred by
invalidity of ordinance section. invalid portion was
easily separable from valid portion and remaining
ponion was complele in itself. and city ordinances
comained severability provision.
*48 William J. Sheaffer. Orlando, for appell:ulls.
William L. Coloert and Donna L Surr:m-McIiltosh
of Stemlrom. McIntosh, Julian. Colbert, Whigham
& Simmons. P.A., Sanford. for appellee.
HARRIS, Judge.
In response to ;)nonymous complaints concerning
the number of animals bc:ing kept in a residence, the
City of Sa.nfort.l inspected the residence of Mr. and
Mrs. Gates. Although Ule Gates were found lO
have maintained lheir residence and animals in an
admirable fashion, they were cited tor exceeding the
maximum number *49 of dogs and cars permilted by
the city ordinance. When their application for a
variance wa.~ denied. they suc-d eh:lllenging the
ordinance .:IS being unconstitutionally arbitrary,
unreasonable and discriminatory.
The trial coun upheld the restrictive provIsIon of
the ordinance but struck the variance provision
because it lacked suflicient guidelines for the
exercise of variance discretion. We aftlnn the trial
court.
(I J App~l1ant$ first contend that the ordinance i:;
invalid becauS{.' it is based solely on the number of
animals as opposed tu type of animals, weight of
animals, size of property, etc. The one challenging
the constitutionality of an ordinance has the burden
of proving its invalidity. \{/iggins v. City of
Jacksonville. 311 So.2d400(FIJ. ISf DCA 1975).
(2) All property is held subject to the right of the
State to regulat!.: it and on the illll'lict.l !:()ndition thaI
ils u.\e shall not be injurious [0 the equal rights of
olhers. Miumi Shores Village v. Wm. N. Brockway
POSI No, /24 o/American Legion. 156 Fla. 673. 24
Page 2
So.2d 33 (1945).
Regulation of animals ha-, a long.standing hisrory of
constitutionality. Slate v. Pelers. 534 50.2d 760
(Fla. 3d DCA 1988), rev. denied 542 So.2d 1334
(rIa. 1989) Cilillg Scnce(( v, New Orleans &
CarroJlton R.R. Co.. 166 U.S, 698, 17 S.O. 693,
41 L.Ed, 1169 (1897) and Nicchia v. New York, 254
U.S. 228, 41 S.CL 103.65 L.Ed. 235 (/920).
13/ Ordinances enaeled pursuant to general polie~
powers must nm infringe constitution;)1 guarantees
by invading personal or property rights
unnCct'ssarily or unreasonably Or by denying due
process or equal prutection of laws. Miami Shores
Village v. Wm. N. Brock.....ay Post No. J 24 of
American Legion. Jupra.
[4J A c1a.ssilication docs not deny equal protection
if it is reasonable and non-arbitrary and if it lI~.ats
all persons in the same class alike. Lasky II. STare
Farm Insurance Co.. 296 So.2d 9 (Fla. 1974).
AppellantS primarily rely on Smith v. Sleineau[. 140
Kan. 407. 36 P.2d 995 (I (34) which held
unconstitulional an ordinance limiting the number of
animals solely on a numerical classification:
however, other cases have rejtttcd this view. See
Stare v, Mueller. 220 Wis, 4:1:;. 265 N.W. 103
(1936); STate II, Becken. 137 :-J.J.L. 562. 61 1\.211
213 (1948): Peopll! v. Yea. 103 Mi\:h.App. 418,
302 N.W,2t1 883 (1981).
(5][6) We tind that the CICY'S ordinanl:e limiting
each residence lO three dogs and three cats is not
unreasonable in light of the potencial dl'triment to
public health, safelY and general welfare because of
an overabundance of animals in a residential area.
We further tind thill the constitution does not require
a case specitic dassific3tion such as t).pc of dog.
si:t.c or dog. or size of residence. The difficulty in
enforcing such an ordinance would, in dfecl, render
the ordinance meaningless.
Appdlams next contend lhat 1:ly dt:c1aring a portion
of the: ordinance unconstitutional, the entire
ordinance must fall.
(7) [f the unconslitutiunal ponton or the ordinance
can be eliminated without uomg violence to the
legislative purpose expressed in the valid ponion. if
the renuining portion is complete in i(self and if the
Copr.c.: WL:sI 2001 No Claim lo Orig. U.S. Gov{. Works
5{i(j So.2d 47
(Cite as: 566 So.2d 47. *49)
v<1lid and invalid portions are not so inseparable mat
011(; portion would nOI have been enacled withour tilt:
other, tht:n the courts should give effect 10 the
remaining valid portion of the ordinance. Cramp v,
Board of Public Ins/ruC/ion of Orang;! Counry, 137
So,2d 828 (Fla. 1962); High Ridge Management
Corp. v. Srare. 354 So.2d 317 (Fla. 1977).
[8 J Here tilt" purpose of the ordinance was to
restrict tilt: number of dogs and cats in a residential
an:a for public heallh and safety. That purpose is
not affected by lhe invalidity of me variance section.
The invalid portion is easily separable from the valid
portion and lhe remaining portion is complete in
Page 3
irself. Further. lbe fact that tile City or Sanford
ordinances contain a sevcrahililY provision is
evidt:nee (hat lbe valid portion would havc been
enacted even wimoul the variance provision,
*50 We Lind the ordinance consrilutional and aftirm
the trial court.
AFFIRM,
PETERSON and McNEAL. R. T., Assoeiale
Judge, concur.
END OF DOCUMENT
Copr. .~'; West 2001 Nu Claim to Orig. U.S. Covl. WMks
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ANIMALS
4-1. Animal control and protection
nance of Seminole County orida.
ted.
Sec. 4-2. Moro than tWQ doi' or oat. 'Prohib-
ited; exceptWn..
No household in the city shaH own or contain
more than two (2) dOi!! and two (2) cats witho\lt
the express consent of the city co[l1.lll.i.ssiOIl. Once
permi8lion is obtained froOl the city commission,
additional dogs or ca.ts ma.y bll ma.1ntal.Md In the
same household until such time as oJ public com-
plaint is l"llgistered against their domicile or wain.
t.en.an~. The city cotQII1ission shall have the right
to revoke the grs.nting of tbis ~ptda.l exQtl1plion
a.! set Corth above at any time.
(Code 1974. ~ 4.2)
Cr03fl ~tereno~Zonu>r;. Cb.. 20.
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(The QO~ Pace u. 291) ,