The URL can be used to link to this page

Home My WebLink About2001 08 13 Regular C Number of Animals at Residence COMMISSION AGENDA ITEM C Consent informational Public Hearing Regular X August 13.2001 ,l\)yJA ~)"1c11 Meeting f.flYl Mgr. I Att. I Dept RF:QUEST: The City Attorney presents the results of legal research and requests direction from the City Commission regarding the preparation of an ordinance which would regulate the number of animals at 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 uf animals which could be maintained at each residence in order to reduce the potential detriment to the public health, safety, and general welfare because of an overabundance of animals in a residential area. APPLICABLE LAW AND PUBLIC POLICY: 1. The most relevant and binding case on point is GUles v. City of Sanford, 566 So 2d 47(5th DCA 1990). In this case, the Court held: (a) Ordinance limiting each residence to three dogs and three cats was not unconstitutionally unreasonable in light of potential detriment to public health, safety, and welfare because of an overabundance of animals in a residential area. Page I of .1 (b) The Constitution does not require a ca!ie specific classification such as: (i) type of dog; (ii) size of dog; or (iii) size of residence However, the City Commission can reasonably consider these issues. For example, the City Commission may want to consider a different maximum limit for properties in excess of certain acreage, CONSJDERA nONS: 1. The City Commission previously adopted Ordinance No, 750 repealing a regulation on the total number of animals that could he maintained at a residence, 2. The City Commission has expressed a desire to revisit the issue regarding the regulation of the number of animals at a residence, ], There are many lawful ways to regulate animals in residential areas Any regulation should be imposed by a duJy adopted ordinance However, serious consideration should be given to the difficulty of enforcing the regulation Several ways to lawfully regulate animals include: (a) Public nuisance regulations. (b) Zoning regulations prohibiting kennels in residential areas. (c) Animal control regulations limiting the number of animals (d) Animal licensing regulations. 4, If the City Commission adopts new regulations restnctlng the number of animals, consideration should be given to the effect on residential property uwners that currently have animals in excess of the new restriction. STAFF RECOMMENDATION: City Commission should provide direction on the preparation of an ordinance which would regulate the number of animals at each residence within the City of Winter Springs. rfthe City Commission desires to adopt an ordinance, (jates v. City of Sanford should be used as guidance. Page 2 of 3 ;:)(;(IL oy. onU......J"MIIVJV.....!,.,,J;,..111-..........................J. ....J A TT ACRMENTS: Gates v. City of Sanford. 566 So. 2d 47(5th DCA 1990) Repealed Section 4-2, Winter Springs Code COMMISSION ACTION: F \J)(lCSICily o(Winter Spring-;\,\gcn.u\,\J'Iimal.nOl h~Md uO 7,2J. [or ~.1J.OI,u.rd Page 3 of 3 566 So.2d 47 15 Fla. L. Weekly 02133 (Cite liS: 566 So.2d 47) DiS(fJct Court of Appeal Qf Florida. fifth District. Jos~phine GA TES 3J1d Rand.1.l1 1. G;t[es. Appellanls. v. CITY OF SANFORD. Florida. Ctc.. Appellee. No. 89-1820. Aug. 23. 1990. Homeowners brought action against city. alleging thar ordinance restricting Dumber of dogs and Cats per residence was um:on5titutioDall y arbitrary. unreasonable and discriminatory. The Circuit Court. Seminole CounC)', S. Joseph Davis. Ir.. J.. upheld restrictive provision. bur Struck: variance provision. Homeowners appealed. The Di.~trict Court of Appeal. Harris. 1.. held th..ll: (1) ordinance limiting each residence to three dogs and three calS was not unreasonable in light of potential detrimcnt to public healrll. safety and general welfare because of overabundance of animals in residential area; (2) case specific c1assiftcation such as type of dog. size of dog. or size of residence was nor constitutionally required; and (3) entire ordinanct: did not fall upon declaring that variance provision of ordinance was unconstirutionaJ. Affirmed, West HtadnOlt:S [I] Munic ipal Corporations <t=> 122.1(2) 268kl22.I(2) (Formerly 268kl22(2)) One challenging I.:onstitudonality of ordinance has bunkn of proving ils invalidily. [21 COnstilu [ional Law <t=>87 92k87 All property is hc.:ld subject to right of stare 10 regulate it and on implied condition that itS use shall not be: injurious to equal righls of others. [3 J Conslltutiun:J1 Law ~212 92k21:! lJ J Con~[llullo[lal Law <t=>253. I Page 1 92k253.1 [31 Municipal CorpOrdtjun~ ~89 268kS89 Ordinances t:nJcled pursuant to general police powers must not infringc conslirution:J! guarantees by invadi.ng personal or property ri~)1ts unnecessJrily or unreasonably or by denying due process or equal prOlection of Jaws, U.S.C.A. ConsLAmends. 5. 14. [4 J Constitutional Law e::>2ll (2) 9lklll(2) Classification does not deny equal protection if it is reasonable and nonarbitrary and if it lreats all Jkrsons in same class a1ik~. (5] AnimJls~-l 28k4 City ordinance limiting each residence to three dogs and three cats was not unconsti[ultonally unreasonable in Iighl of pOlencial derrimenl to public heallh. safelY 3J1d general welfare because of o'..crabundancc of animals in residential area. U.S.C.A. ConsLAmc:nds. 5. l4. [6) Animals e:=>4 nk4 To prevent finding thal ordinance limiting number of dogs and cats per residence was uncOnstilutionaUy arbitrary. unreasonable and discriminacory. CJSC Spccilic classification such as type of uug. size of dog. or size of residence was not required. U.S.C.A. Cons!. Amends. 5. l~. f7/.\funicipal Corpor:llions ~I I ](4) 268klll(4) Coun should give effecl to rcmalning valid portion ur urdinance. if unconstitutional ponion of ordinance C3n be eliminated wilhoul doing violence to legislJtive purpose expresscd in valid portion. it' remaining ponj()n i~ complete in itst:lf, and if v:llid and invalid ponions arc nUl so insepar:J.bl~ th:a or.e portion \IIould nut have bc:;::n t:nacted without lhe otha. Copr. ~ West 2CKJI No Claim [0 Orig. U.S. Gov!. Works 566So.2d47 (Citc as: 566 So.ld ~7) [3J :-"funicipaJ Corporations e==>l I 1(-1) 263klll(4j Entir~ ordin;U!Ct: reslric(ing numb(;r of dogs Jnd Cdl3 p~r rf:'sidenct: did not have to bc invalidated upon linding that provision of of(linanc~ on variances was invalid as lad:.ing sufficicnt guidelines for exercise uf discretion; provision restriCting number of dogs and ColIS in residential area was not affecled by invalidiry of ordinance section. invalid portion was e3.Sily separable from valid portion and remaining ponion was complete in itSelf. and cif)' ordinances conl.lined sevcrability provision. '"48 William 1. Sheaffer. Orlando, for appellanlS, William L. Colbert and Donna L. Surra[(-Mclncosh of Stenstrom, McIntosh, Julian. Colben. Whig./l.lm & Simmons. P,A.. Sanford. for appellee. HARRIS. Judge. [n responst.: to anon)'mous complaints concerning the number of aIlimals being kept in a residence, the City of Sanford inspectcu the reSIdence of Mr. and Mrs. Gatf:'S. Although the Gates were found 10 have maintained meir reSIdence and animals in an admirable fashion. the)" were ciled fnr e~ceeding the ma:'(imum numher .49 of dogs and cats pennitted by the CilY ordinanct:. \l,ihen m.:ir application for a \iari.)nc~ was denied. they ~ucd challenging the o rd inancc ,15 kiclg um:onsmutionally arbitrary, unreasonabk and discriminatory. T,1~ trial t.:ouIt upheld the restrictive prOVISIon of the ordmance bue struck !.ht: vuiiUlce provision because H lacked sulliclene guidelines for me c,>:.<:rcise of variance discretion, We aninn Lhe trial court. (1 J :\ppt:ll.1JltS /irst contend th.lt me ordin:mce is invalId bf:'causc it is based solely on the numba of animals :IS opposed to type of animals. weight of animals. sizt: nf property, f:'IC The one challenging the constitutionality of an ordinance has the burden of proving its invalidity. Wiggins v. Ciry 01 Jacbonvi/le. 31! So.2d 406 (Fla. 1st DCA 11}75i. [2J All property ;s held subject to the righe of me St,1le [Q r::.~ulatc jt anu un the ImplIed condition thaI its USc ~hall not he injurious tu cOt' equ:\l rights of uthers. Miami Shorl!J" Village v. Win. N. BrocJ..'Wa.v POSt .'Va, /2.J uf .-l/lluical/ Ll!git)/I. 15G Fla. 673, 24 P:lge Z SO.2d 33 (J 945i. Rcgulation of ,tllim:Jls has a long-Standing history of constilulionality. Slale \I. Pelers. 534 So.2d 760 (Fla, 3d DCA 1988). rev. denied 542 So.ld 1334 (Fla. I 989) citing Sentell v. New Orleans & Carro/bon R.R. Co., 166 U.S. 698, 17 S,Ct. 693, 41 L.Ed. 1169 (1897) and Mahia v. New York, 254 U.S. 228. 41 S.Cc !O3, 65 L.Ed. 235 (1920). [3 J Ordinances enacrcd pursuaJll to general polic~ powers must not infringe constitutional gU:lramces by invading personal or property rights unnecessarily or unreasonably or by denying due process or equal protection of laws. Miami Shores Village v. Wm. N BrocJ.....yry Post No. 124 of American Legion. SlIpro. [4 J A cl3.Ssitication docs not deny equal protection if it ls reasonable and nun-arbiU'ary and if it rrears all persons in cht: samt: class alike. LAsky v. Stare Farm Insurance Co., 296 SO.ld 9 (Fla,l974). Appellants primarily rely on Smilh v, Sreineauj. 140 Kan. 407. 36 P,2d 995 (1934) which held unCOmitilulionaJ an ordin:l.1lcc limiting tht! number of animals solely on a numerical classitil:atJon; however. other cases have reje,;tcd thiS view. Set! Slale: v. Mc/ella. 220 \Vis, -+35. 265 N.W. IUJ (1936); Slalt! v. Becken. 137 \.J.l. 562, 6\ A,2d 213 (1':148): People v. Yeo, (OJ ,\.fich.App. 418. 302 N.W.2d883 ([981). [5][6J We find that the cicy's ordinance limiting each residence to three dogs and thrce cats i~ not unreasonable in lighl of me polcntial detriment to public healm, safety and general welfare because of an overabundance of animals in a residenlial area. We furtha tind mat the cOllSlirution does not require J t.:ase speci tic classilicacion such J~ type of dog, size or dog. or size of resldence. Tn... difficulty in ent'orcing such In ordinance would. in effcct. renuer me ordinance meaningless. AppdJanrs ne;.;,t conlt.:nd thar by dt:claring J portion of the ordinance unconstirutiunal. mt: entire ordinance must t;J11. (7 J If th(; un..:onstilulionaJ portiun of thc ordinance can bt: eliminated without dOUlg violence to me legisldtivc: purpOSe (,:-'pre,55ed in the valid portion. if thc n:maining ponton is compklc in i(self and if the Cupr. C West 2001 No C1~im to Ong_ U.S. GOVl. Worl.:s 566 $0.2d 47 (Cile as: 566 Su.2d 47, "~9) valid and invalid portions are nOl so inscparabk thal one ponion would nOl have been enacted withoul the other, then the COurts should give ~ifecl to th~ remaining valid pnnion of the ordinance. Cramp \/. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla. 1962); High Ridge Managemem Corp. v. StQu. 354 So.ld 377 (Fla,1977). (8) Hen: the purpose of me ordinance was to restrict the number of dogs and C:l1S in a residential area for public health and safely. That pUf1Jose is not affcclCd by the invalidity of the variance seclion. The invalid portion is eJsily separable: from the valid ponion and the remaining ponion is complete in Page 3 itsel f. Further, the (:le[ [hat the: CilY of Sanford ordinances contain a severability provision is evidence that the:: valid pOrtion would have been enac[c;u even without the variance provision. .50 We find chc ordinance constitutional and affirm the lrial COUrt. AFFIRM. PETERSON and McNEAL. R. T.. Associate Judge, concur. END OF DOCUMENT Cupr. .= WC:SI 2001 i'o'o C!Jim to Orig. V,S. Govt. Works -..... ..ro.( / ~ ,,-- "0"""'--/ JQ-18 20131 17:]4 CITY OF WrNTER SPRINGS 4-1. Animal contrOl and protection nlU\ce of Seminole County arlda, ted. Sec. 4-2. More than two dolts or ca.ts prohib- ited; exception. No housahold in the city shall own or conWn wore than two (2) dolf.l llnd tWO (2) calS without the expre.!B cOnBent of the city co~ion. Once p.rmisaion is obtain~d from the city commi9liion, addition!.1 dolP or cat.:! ma.y bQ maintained in the .u.rne household until $uch time 3.9 3. public corn. plaint is re~red again:;e their domicile or main. tenance. The city co[IllIl.i..Bslon aho.ll hav~ the right to revoke the granting of tbis ~pecial ~Qmption a.! set forth above at any ti:mc. (Code 1974. ~ ~-2) ClO~ ret...e(\C'&-'lc>4illl!:, Ch. 2.0. A.~ Al..9 ....A.--.:.........-.&I'II'Ora'II.........t!;rl.._~ ....~~ 407 327 4753 ~ \. '-(... - J ~.....- P.01/01 1"'.2 . ~.... .. .... [The ...~ pag-e ill 2971 , ~ 24.1