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Home My WebLink About02-26-2002 City Of WInter Springs v. Walter M. RawlingsSent By: 9R0WN,WAA0,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:02PM; Page 2 BROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW UsherL. Brown' John H. Ward • Gary S. Salzman' 1ctTrcy S. Weiss Suzanne D'Agresta Anthony A. Garganese" Scott D. Danahy Alfred Trucsdcll Arthur R. "Randy" Brown, Jr.* Brett A. MarloRlc Jeffrey P. Buak Kristine R. Kutz Joseph G. Colombo Debra. S. Babb Gregory A. Hass" Cheyenne R. Young Joseph E. Blitch ' Board (krtirted Civil 'I rial Lx%yer • Board C4rtified Ruainear Litig*ion Lwycr Board CatiHod City, County & Load Covcnunent Law • Board Certified labor & Ernployrncnl Law February 26, 2002 Sent Via Facsimile Only: 407-327-4753 Mr. Ronald McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re; City of Winter Springs v. Walter M. Rawlins Our Client: City of Winter Springs Our File No.: 1193 Dear Ron: Two Landmark Ccntcr 225 East Robinson Streer, Suite 660 Post Office Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Email: firm@orlandolaw.nct Website: www.orlandolaw.net Cocoa: 866-425-9566 I am pleased to report that Judge Bravo found the dog barking ordinance to be constitutional. Judge Bravo also found Rawlins to be in violation of the ordinance. A copy of Judge Bravo's order is attached. Please provide a copy of the order to the Mayor, City Commission, and relevant code enforcement staff. Sent By: BR0WN,V4ARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:02PM; Page 3 Mr. Ronald McLemore, City Manager February 26, 2002 Page 2 I look forward to discussing this matter in more detail. Anthony A. Garganese City Attorney AAG/jd Enclosure Order FiooCs CIM of Wlnur 3DringMoonaraf%CormponaanesiMeLemare. RonatdWnIersorinys v. Rawlins orax l.a 2-2&42 aay.{a Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:02PM; Page 4 1N THE CIRCUIT COURTFOR THE EIGHTEENTH JUDICIAL_ CIRCUI I SEMINOLE COUNTY, rLORMA CITATION NO.: Z. 003012 STATE OF FLORMA, Petitioner, vs. WALTER M. RAWI,INS. Respondent. ORDER DENYTNG MOTION TO DECLARE ANIMAL NOISE ORDINANCE UNCONSTITUTIONAL The Responder: W3S cited for violating Seminole County's Noisy Animal Ordinance §20.25: adopted by Winter Springs Ordinance §4-1. A neighbor of the Respondent's called the police to report that the Respondent's dog was harking continuously. Officer Conway of the Winter Springs Police Department responded to the scene, and upon his own observations determined that a doh was continuously barking at 1002 Gator Lane, in violation of the above. ordinances. He therefore cited the Respondent for violating the Animal Noisc Ordinance. The Respondent has filed a motion challenging the ordinance as being unconstitutionally vague and overbroad. A vague law does not put a person sufficient notice of what activity is proscribed and it encourages arbitrary or discriminatory enforcement. See Gravned v. City of Rockford, IclenUir, 408 tJ.S. 104, 92 S.Ct. 2294, 33 L.Ed,2d 222 (1972). An overbroad ia% i; tine that prohibits constitutionally protected conduct under the First and Fourteenth Amendments. See id The Seminole County Noisy Animal Ordinance reads as follows: It shall be unlawful for any animal owner to permit, either willfully or through failure to exercise due care and control, any animal, in a continuing or repeating manner, to bark, cry, howl, screech, squawk, scream, whine, or cause other objectionable noises which disturb the comfort, peace, quiet or repose of any, person residing in the vicinity. Upon the receipt of documentation of a complaint from a law enforcement agency or a statement signed by three (3) or more residents of Seminole County who reside in separate dwellings in the vicinity of the animals) or incidents, averring that a violation of this section has occurred, the animal control official shall have reasonable cause to determine that a violation of this section has occurred. Thc statements must be made under oath bcfurc an individual authorized by law to take acknowledgements and must set forth the pertmcnt. facts, including the time(s), date(s), and location, the address Sent By: BROWN ,t'IARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:03PM; Page 5/8 or location of the ownt-r of the animal as well as the complainants and a description of the animal(s). The animal control officer shall also have the authority to investigate suspected violations of this section arising under any other circumstances. According to the Respondent, he cannot know which noises disturb the comfort or peace of his neighbors, and also which neighbors are in the "vicinity" for purposes of the Ordinance. These deficiencies, he argues, allow for discriminatory enforcemcnt by the police. The Respondent relies on .State v. Ferraiolo, 748 N.E2d 584 (Ohio Ct. App. 2000) for the proposition that the ordinance is unconstitutionally vague. In Ferraiolo, a similar ordinance was found impermissibly vague, because all dogs barked and enforcement was subjective as to whcthcr the sound was "unreasonable" under the ordinance. Therefore, a person of ordinary intelligence would not understand his responsibilities under the law. The Defendant also cites several similar cases from other states in his motion. Although this Court has considered the persuasive authorities cited by the Respondent, it relies upon the binding authority from Florida in Cin, of Sarasota v. Calhoun, 685 So.2d 1338 (Fla. 2d DCA 1996). The Second District, in analyzing a similar law, held that ownership of a dog which barks is lawful, but this activity is subject to regulation by general police powers. All property, including animals, is held subject to the right of the state to regulate it on the condition that its use shall not be injurious to the rights of others. This type of regulation has a long standing history of constitutionality. Id. at 1339. Therefore, Winter Springs has the authority to pass an ordinance that restricts animal noise. This Court, based on the testimony and evidence introduced at the motion hearing and following the holding in Calhoun, finds that the Respondent has no standing to challenge the ordinance. At the hearing, this Court heard swum testimony from Officer Conway and Lori Bosse, the complaining witness. Each testified that they listened to the dog barking for at least ten minutes. Both testified that it was loud. The complaining witness lives next door to the Respondent. As in Calhoun, [ijt is clear from the facts adduced at trial that the owner's conduct in allowing the dogs' unrestrained barking was a violation of the conduct prohibited by the ordinance even though the ordinance might have been more narrowly drawn, An individual who engages in conduct that is clearly proscribed cannot complain of the vagueness of the law as it might be applied to the conduct of uthas. As a consequence, [a person) lacks standing to contend that the ordinance is vague. This Court finds that the barking at issue here clearly violated the ordinance, and therefore, the Respondent lacks standing to challenge the vagueness ofthe ordinance. Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:03PM; Page 6/8 The Respondent's argument that the law is overbroad also must fail. This Court again relics upon the language in Calhoun, where the Second District stated [t)hc doctrine of overbrcadth applies only to circumstances where important constitutionally protected activity, principally free speech, is endangered. However, an exception may be made to challenges based on overbreadth by individuals whose conduct is not in regard to an important constitutionally protected activity where the prohibited conduct could be proscribed by a law drawn with the requisite specificity. (citations omitted) This broadening of the traditional approach to standing is employed with hesitance mainly when necessary to protect against the undesirable chilling effect on speech or other constitutionally protected activity. No construction of First Amendment case law suggests that dog barking ever raises any legitimate, substantive constitutional issue. Id. at 1340. Therefore, since this ordinance does not threaten to interfere with any constitutional right, it cannot be overbroad. Id. denied. ORDERED AND ADJUDGED: The Defendant's Motion to Declare Animal Noise Ordinance Unconstitutional is hereby DONE AND ORDERED in chambers at Sanford, Seminole County, Florida, this J02- day of February, 2002, (:;i" CARMINE M. BRAVO, County Court Judge CERTIFICATE OF SERVICE 1 HEREBY C'FRTrPY that a true and correct copy hereof has been furnished via United States mail this.,' of February, 2002, to Lawrence G. Walters, Esquire, 455 Douglas Avenue, Suite 2155-31, Altamonte Springs, FL 32714 and Joseph G. Colombo, Esquire, Two Landmark Center, 225 East Robinson Street, Suite 660, Yost Office Box 2873, Orlando, FL 32802-2873. Judicia�At�ant�� Sent By: BROW,vN,1gARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:03PM; -� .,.... ...,.. ..rm-a.V„�1JJ. •, ry I14J JJ 7V, -V- ��4 \jl �dn . :11F'Nf; Page 7/B Page 6/7 IN THE COUNTY COURT, EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR SEMINOLE COUNTY, FLORIDA STATE OF FLORIDA, CITATION No.: Z 03012 Petlt(oner, V. WALTER M. RAWLINS, Respondent- 1 S�B,�R ON RESPONDIF_NT'S MOTION FOR JUDGMENT OF ACQUITTAL This cause came to be heard on November 30, 2001, upon Respondent, WALTER M. RAWLINS', Motion for Judgment of Acquittal, and this Court having heard testimony, heard argument of counsel and being fully advised in the premises, it is hereby ORDERED AND ADJUDGED 1. Respondent, WALTER M RAWLINS'. Motion for Judgment of Acquittal is hereby DONE AND ORDERED in Chambers. Sanford, Seminole County, this -ZQ- day of Honorable Carmine M. Bravo Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-26-02 5:04PM; Page 8/8 4U 1440yDyO; Jan-9.02 4:13PM,' Page 7/7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S. Mail to Joseph G. Colombo, Esquire, Brown. Ward, Salzman & Weiss, P.A., 225 E. Robinson Street, Suite 660, Orlando, Florida 32801 and Lawrence G. Walters, Esquire, Weston, Garrou & DeWitt, 455 Douglas Avenue, Suite 2155-31 this day offJJ nua�q, 2002. 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