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HomeMy WebLinkAbout11-29-2005 Regulation of Particular Dangerous Breed of DogsBROWN, GARGANESE, WEISS & UAGRESTA, P.A. Aftrngs at Law Debra S. Babb-NutchW Offices in Orlando, Kissimmee Usher L. Brown • &CJoseph E. Blitch Cocoa Suzanne D'Agresta" 112 C E I V E-: D Victoria L. Cecil Anthony A. Garganese° Scott J. Dornstein Jeffrey S. Weiss Andrew M. Fisher l ( Katherine W. Latorre Paul H. McLester 'Board Certified Civil Trial Lawyer cl7v of Ur1rvTEFI sPklNcs Amy J. Pitsch "Board Certified City, County & Local Government Law OFFICE OF THE C17Y CLERK Erin J. O'Leary J. W. Taylor Of Counsel November 29, 2005 The Honorable Mayor John F. Bush and Members of the City Commission 1126 East State Road 434 Winter Springs, Florida 32708-6912 Re: Regulation of Particular Dangerous Breeds of Dogs Dear Mayor Bush and Members of the City Commission: This letter is in furtherance of my City Attorney report of last evening's City Commission meeting. At the Commission meeting, I reported that in 1990 the Florida Legislature adopted the Dangerous Dog Act which imposes uniform requirements regulating dangerous dogs. See §§ 767,10 - 767.16, Fla. Stat. (2005). The Act contains specific provisions regarding the classification of dogs as "dangerous" and registration requirements for "dangerous dogs". Additionally, the Act provides that local governments are permitted to place further restrictions or additional requirements on owners of dangerous dogs and may develop procedures or criteria for the implementation of the Dangerous Dog Act, "provided that no such regulation is specific to breed and that the provisions (of the Dangerous Dog Act] are not lessened by such additional regulations or requirements." Section 767.14, Fla. Stat. § 767.14 does not, however, apply to any local ordinance adopted priorto October 1,1990. Id. Thus, no new ordinance regulating a particular breed of dog may be adopted by the City. Any ordinance that is intended to regulate dangerous or vicious dogs must be breed neutral, and expand upon the existing legislation addressing this issue. 225 East Robinson Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net November 29, 2005 Page 2 I noted at the City Commission meeting that the City has adopted by reference the Animal Control and Protection Ordinance of Seminole County, Florida." Underthe County ordinance, there is currently a procedure for declaring a dog dangerous. If a dog is declared dangerous, certain restrictions can be placed upon the dog and the owner of the dog. These regulations were adopted by Seminole County in 1993, after the Legislature adopted the Dangerous Dog Act, and appear to be consistent with the Act. For the City Commission's reference, I have attached a copy of the Florida Statute and Seminole County Ordinance regulating dangerous dogs. In accordance with the City Commission's direction, I will not take any further action regarding this issue unless otherwise directed by the City Commission. /Vers, Anthony A. Garganese City Attorney Enclosure CC: Andrea Lorenzo-Luaces, City Clerk Sec. 20.26. Procedure for declaring dogs dangerous 1. (a) If a dog which the animal control official believes may be dangerous is impounded by the animal control official, the animal control official shall investigate and determine if the dog is dangerous and if the animal should be destroyed or released upon conditions. The owner may then file a written request for a hearing before the Animal Control Board to appeal the classification by the animal control official within ten business days after receipt of the written notice that the dog has been declared dangerous. If the owner has custody of the dog at this time he must continue to confine the dog in a securely fenced or enclosed area pending a hearing and determination by the Animal Control Board. The dog shall not be destroyed while the appeal is pending. (b) If an owner does not appeal the animal control official's designation of the dog as dangerous, the owner must obtain a valid Certificate of Registration For Dangerous Dog within 30 days of the designation. (Ord. No. 93-12, § 9, 7-13-93) Sec. 20.27. Procedure for dangerous dog hearing. (a) If a dog owner appeals the decision of the animal control official pursuant to Section 20.26, the Animal Control Board shall hold a hearing to decide if the dog should be declared dangerous The hearing shall be held not sooner than five days nor later than 20 days from the date upon which the owner of said dog claims the dog in writing. At the hearing, the dog owner or his representative and any other interested person may present any evidence relevant to a determination of whether said dog is dangerous. (b) The Animal Control Board shall hear and consider the evidence presented at said hearing and make a determination as to whether or not the dog meets the statutory definition of dangerous dog as incorporated in this Part. In making a determination, the Animal Control Board must make a finding as to whether or not the dog has inflicted a "severe injury". (c) If a dog is found by the Animal Control Board to have aggressively attacked and caused severe injury or death to any human, the dog shall be found to be dangerous, held for ten business days after the owner is given written notification, and thereafter destroyed in an expeditious and humane manner. (d) If a dog that has previously been declared dangerous by the Animal Control Board, animal control official or another jurisdiction is found by the Animal Control Board to have attacked or bitten a person or a domestic animal without provocation, the dog shall be held for ten business days after the owner is given written notification, and thereafter destroyed in an expeditious and humane manner. (e) If the Animal Control Board determines that a dog is dangerous but has never previously been declared dangerous and has not inflicted a severe injury, it shall enter an order that the dog be destroyed in an expeditious and humane manner or be released upon conditions. If the Animal Control Board determines that said dog is dangerous and allows the dog to be released, the owner shall comply with Section 20.28 and obtain a valid Certificate of Registration For Dangerous Dog prior to the dog being released. Any order providing for the dog's release to its owner or otherwise, shall be subject to such conditions as the Animal Control Board shall impose. Violation of any of the conditions imposed shall constitute a violation of this Part and be punishable as such. Violation of any conditions shall also be sufficient grounds for the animal control official to obtain an additional pick up order from a court of competent jurisdiction. The Animal Control Board shall thereupon hold an additional hearing to determine further disposition of the dog. (f) Any order which provides for the destruction of a dog shall include a date before which the destruction of the dog shall not take place. All decisions of the Animal Control Board shall be final and subject to review only by a court of competent jurisdiction upon petition of the owner. The destruction of a dog may be stayed pending court review, only by court order or by the Animal Control Board, upon payment by the owner of all impoundment and other fees incurred to the date specified and, in the event the dog is being confined at the animal shelter, advanced payment of such fees as would accrue in the succeeding six month period. If court review should exceed six months, the owner shall be required to pay, at the expiration of the initial six month period, and every month thereafter, one month fees in advance. At the time the dog is released from the animal shelter by court order or destroyed, any excess fees shall be refunded to the owner within 30 days. The owner of said dog shall be responsible for all impoundment and other fees incurred regardless of the final determination of the Animal Control Board or the court. All costs of impounding the dog shall be paid by the owner prior to release of the dog. (Ord. No. 93-12, § 10, 7-13-93) Sec. 20.28. Confinement of dogs declared dangerous by the animal control official or animal control board. 2. (a) A dog which has been declared dangerous by the animal control official or Animal Control Board shall be kept securely confined in one of the following ways: (1) The dog may be securely confined inside the owner's residence. (2) The dog may be securely confined inside a pen constructed on the owner's property according to the following specifications: (A) The floor shall consist of a concrete pad, no less than four feet by eight feet (32 square feet). (B) The sides must consist of chain link at least six feet in height. (C) The top must be enclosed and provide adequate shade and protection from the elements. (D) The structure must have secure sides and a secure top to prevent the dog from escaping over, under or through the structure. (E) The gate must be lockable and remain locked when the dog is penned and must be suitable to prevent the entry of young children and designed to prevent the dog from escaping; provided, however, that before the release of said dog from the animal control official, the pen must be completed and inspected by the animal control official. The owner shall have the sole responsibility to contact the animal control official to arrange for the inspection. (b) The dog shall be kept in the locked pen or inside the owner's residence when the owner is not present on the property. (c) The dog shall not be let outside the residence or pen unless the dog is muzzled and restrained by a substantial chain or leash and under control of a competent person. The muzzle shall be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but shall prevent it from biting any person or animal. The owner may exercise the dog in a securely fenced or enclosed area without a muzzle or leash if the dog remains within sight of the owner and only members of the owner's immediate household or persons 18 years of age or older are allowed in the enclosure when the dog is present. (d) The premises at which the dog is located shall must be posted by the owner with a clearly visible warning sign at all entry points that informs both children and adults of the presence of a dangerous dog on the property. (e) Prior to release to the owner, the owner shall show proof that the dog meets the following requirements: (1) Current rabies vaccination. (2) Current Seminole County Pet License. (0 The owner shall immediately notify the Seminole County animal control official if the dog: (1) Is loose or unconfined. (2) Has bitten a human being or attacked another animal. (3) Is sold, given away or dies. (4) Is moved to another address. (g) Prior to the dog being sold or given away, the owner shall provide the name, address and telephone number of the new owner to the animal control official. (h) When being transported, the owner shall insure dog is safely and securely restrained within a motor vehicle or trailer. (Ord. No. 93-12, § 11, 7-13-93) 767.10 Legislative findings. --The Legislature 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. 767.11 Definitions. --As used in this act, unless the context clearly requires otherwise: 1. (1) "Dangerous dog" means any dog that according to the records of the appropriate authority: (a) Has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property; (b) Has more than once severely injured or killed a domestic animal while off the owner's property; (c) Has been used primarily or in part for the purpose of dog fighting or is a dog trained for dog fighting; or (d) Has, 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. (2) "Unprovoked" means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog. (3) "Severe injury" means any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery. (4) "Proper enclosure of a dangerous dog" means, while on the owner's property, a dangerous dog is securely confined indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the animal from escaping. Such pen or structure shall have secure sides and a secure top to prevent the dog from escaping over, under, or through the structure and shall also provide protection from the elements. (5) "Animal control authority" means an entity acting alone or in concert with other local governmental units and authorized by them to enforce the animal control laws of the city, county, or state. In those areas not served by an animal control authority, the sheriff shall carry out the duties of the animal control authority under this act. (6) "Animal control officer" means any individual employed, contracted with, or appointed by the animal control authority for the purpose of aiding in the enforcement of this act or any other law or ordinance relating to the licensure of animals, control of animals, or seizure and impoundment of animals and includes any state or local law enforcement officer or other employee whose duties in whole or in part include assignments that involve the seizure and impoundment of any animal. (7) "Owner" means any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person's parent or guardian. History.--s. 2, ch. 90-180; s. 2, ch. 93-13; s. 1156, ch. 97-102. 767.12 Classification of dogs as dangerous; certification of registration; notice and hearing requirements; confinement of animal; exemption; appeals; unlawful acts.-- (1)(a) An animal control authority shall investigate reported incidents involving any dog that may be dangerous and shall, if possible, interview the owner and require a sworn affidavit from any person, including any animal control officer or enforcement officer, desiring to have a dog classified as dangerous. Any animal that is the subject of a dangerous dog investigation, that is not impounded with the animal control authority, shall be humanely and safely confined by the owner in a securely fenced or enclosed area pending the outcome of the investigation and resolution of any hearings related to the dangerous dog classification. The address of where the animal resides shall be provided to the animal control authority. No dog that is the subject of a dangerous dog investigation may be relocated or ownership transferred pending the outcome of an investigation or any hearings related to the determination of a dangerous dog classification. In the event that a dog is to be destroyed, the dog shall not be relocated or ownership transferred. (b) 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 or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member. No dog may be declared dangerous if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault. (c) After the investigation, the animal control authority shall make an initial determination as to whether there is sufficient cause to classify the dog as dangerous and shall afford the owner an opportunity for a hearing prior to making a final determination. The animal control authority shall provide written notification of the sufficient cause finding, to the owner, by registered mail, certified hand delivery, or service in conformance with the provisions of chapter 48 relating to service of process. The owner may file a written request for a hearing within 7 calendar days from the date of receipt of the notification of the sufficient cause finding and, if requested, the hearing shall be held as soon as possible, but not more than 21 calendar days and no sooner than 5 days after receipt of the request from the owner. Each applicable local governing authority shall establish hearing procedures that conform to this paragraph. (d) Once a dog is classified as a dangerous dog, the animal control authority shall provide written notification to the owner by registered mail, certified hand delivery or service, and the owner may file a written request for a hearing in the county court to appeal the classification within 10 business days after receipt of a written determination of dangerous dog classification and must confine the dog in a securely fenced or enclosed area pending a resolution of the appeal. Each applicable local governing authority must establish appeal procedures that conform to this paragraph. (2) Within 14 days after a dog has been classified as dangerous by the animal control authority or a dangerous dog classification is upheld by the county court on appeal, the owner of the dog must obtain a certificate of registration for the dog from the animal control authority serving the area in which he or she resides, and the certificate shall be renewed annually. Animal control authorities are authorized to issue such certificates of registration, and renewals thereof, only to persons who are at least 18 years of age and who present to the animal control authority sufficient evidence of: (a) A current certificate of rabies vaccination for the dog. (b) A proper enclosure to confine a dangerous dog and the posting of the premises with a clearly visible warning sign at all entry points that informs both children and adults of the presence of a dangerous dog on the property. (c) Permanent identification of the dog, such as a tattoo on the inside thigh or electronic implantation. The appropriate governmental unit may impose an annual fee for the issuance of certificates of registration required by this section. (3) The owner shall immediately notify the appropriate animal control authority when a dog that has been classified as dangerous: (a) Is loose or unconfined. (b) Has bitten a human being or attacked another animal. (c) Is sold, given away, or dies. (d) Is moved to another address. Prior to a dangerous dog being sold or given away, the owner shall provide the name, address, and telephone number of the new owner to the animal control authority. The new owner must comply with all of the requirements of this act and implementing local ordinances, even if the animal is moved from one local jurisdiction to another within the state. The animal control officer must be notified by the owner of a dog classified as dangerous that the dog is in his or her jurisdiction. (4) It is unlawful for the owner of a dangerous dog to permit the dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under control of a competent person. The muzzle must be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but will prevent it from biting any person or animal. The owner may exercise the dog in a securely fenced or enclosed area that does not have a top, without a muzzle or leash, if the dog remains within his or her sight and only members of the immediate household or persons 18 years of age or older are allowed in the enclosure when the dog is present. When being transported, such dogs must be safely and securely restrained within a vehicle. (5) Hunting dogs are exempt from the provisions of this act when engaged in any legal hunt or training procedure. Dogs engaged in training or exhibiting in legal sports such as obedience trials, conformation shows, field trials, hunting/retrieving trials, and herding trials are exempt from the provisions of this act when engaged in any legal procedures. However, such dogs at all other times in all other respects shall be subject to this and local laws. Dogs that have been classified as dangerous shall not be used for hunting purposes. (6) This section does not apply to dogs used by law enforcement officials for law enforcement work. (7) Any person who violates any provision of this section is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. History.--s. 3, ch. 90-180; s. 3, ch. 93-13; s. 3, ch. 94-339; s. 1157, ch. 97-102. 767.13 Attack or bite by dangerous dog; penalties; confiscation; destruction.-- (1) If a dog that has previously been declared dangerous attacks or bites a person or a domestic animal without provocation, the owner is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the dangerous dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time, or impounded and 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. (2) 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. (3) If a dog that has previously been declared dangerous attacks and causes severe injury to or death of any human, the owner is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, 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. (4) If the owner files a written appeal under s. 767.12 or this section, the dog must be held and may not be destroyed while the appeal is pending. (5) If a dog attacks or bites a person who is engaged in or attempting to engage in a criminal activity at the time of the attack, the owner is not guilty of any crime specified under this section. History.--s. 4, ch. 90-180; s. 4, ch. 93-13; s. 4, ch. 94-339. 767.14 Additional local restrictions authorized. --Nothing in this act shall limit any 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, provided that no such regulation is specific to breed and that the provisions of this act are not lessened by such additional regulations or requirements. This section shall not apply to any local ordinance adopted prior to October 1, 1990. History.--s. 5, ch. 90-180. 767.15 Other provisions of chapter 767 not superseded. --Nothing in this act shall supersede chapter 767, Florida Statutes 1989. History.--s. 6, ch. 90-180. 767.16 Bite by a police or service dog; exemption from quarantine. --Any dog that is owned, or the service of which is employed, by a law enforcement agency, or any dog that is used as a service dog for blind, hearing impaired, or disabled persons, and that bites another animal or human is exempt from any quarantine requirement following such bite if the dog has a current rabies vaccination that was administered by a licensed veterinarian. History.--s. 1, ch. 91-228.