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HomeMy WebLinkAbout2003 06 23 Other - Document was referenced by Attorney Anthony Garganese during Reports Date: 062303 The following Document was given reference by Attorney Anthony Garganese on 6/23/03 during "Reports" . 11., 't ~ 1;) . (r ""'I ~' .c" Vn~ BROWN, SALZMAN, WEISS & GARGANESE, P.A. Attorneys at Law Usher L. Brown · Suzanne D'AgrestaD Anthony A. GarganeseD Gary S. Salzmano John H. Ward · Jeffrey S. Weiss Offices in Orlando, Kissimmee, Cocoa & Viera ReCE IVED JUN 2 4 2003 'Board Certified Civil Trial Lawyer oBoard Certified Business Litigation Lawyer oBoard Certified City, County & Local Government Law CITY . O~tly"M NT ER 8PRlNQII anag8l' Debra S. Babb-Nutcher Jeffrey P. Buak John U. Biedenharn, Jr. Joseph E. Blitch Michelle H. Brett Douglas Lambert Jennifer A. Michael Michelle A. Reddin Vincent E. Scarlatos Erin J. O'Leary Of Counsel June 23, 2003 Mr. Ronald McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re: Sandra Koch Rawlins and Walter M. Rawlins v. City of Winter Springs Appeal Case No. 02-48-AP Dear Ron: Enclosed herewith please find a copy of the Answer Brief we filed today on behalf of the City in the above referenced case. Please provide copies to the Mayor and City Commission. If you have any questions regarding this matter, please do not hesitate to call. {J Anthony A. Garganese City Attorney EOJ/AAG:mm Enclosure F:\Docs\City of Winter Springs\Rawlins\Correspondence\McLemore _6-23-03. wpd 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 & Viera (866) 425-9566 Website: www.orlandolaw.net . Email: firm@orlandolaw.net ~ o. II IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA SANDRA KOCH RAWLINS . Appellant, APPELLATE DIVISION CONSOLIDATED CASE NO. 02-48-AP (Consolidated with Case No. 02-62-AP) vs. LOWER COURT CASE NO. Z-1202 CITY OF WINTER SPRINGS, Appellee. / WALTER M. RAWLINS, Appellant, vs. LOWER COURT CASE NO, Z-3012 CITY OF WINTER SPRINGS, Appellee. / ANSWER BRIEF OF APPELLEE, CITY OF WINTER SPRINGS \. ANTHONY A. GARGANESE City Attorney for the City of Winter Springs Florida Bar Number 988294 ERIN J. O'LEARY Florida Bar Number 0001510 Brown, Salzman, Weiss & Garganese, P.A. Two Landmark Center, Suite 660 225 East Robinson Street Orlando, Florida 32801 Telephone: 407-425-9566 Facsimile: 407-425-9596 Counsel for Appellee, City of Winter Springs ... .. a.. 'I . ,'; TABLE OF CONTENTS TABLE OF CITATIONS ......,.,........,.........................11 STATEMENT OF THE CASE AND FACTS . . . . , . , . . . . , , . . , . . . . , . . . , . . , 1 Sillv1MARY OF ARGUMENT, , , . . , , . . .. , , . . , . . . , , . , . . . . . . . . , . . . , . . . 5 STANDARD OR REVIEW .........................,....,.,........ 8 ARGUMENT .,... '. . . . . . . . , , . . , . . . . , . . . . . . . . . . . . , . . , , . . . , , . . . . . . 10 I. THE TRIAL COURT CORRECTLY DETERMINED THAT THE ORDINANCE DOES NOT INTERFERE WITH ANY CONSTITUTIONAL RIGHT, AND THEREFORE CANNOT BE OVERBROAD. .........,.......................10 II THE NOISY ANIMAL ORDINANCE DOES NOT VIOLATE THE RIGHT TO PRIVACY. ..", ,'. . . . . . . . . . , . . , . . . . . . . , . . . . . . 16 III. THE TRIAL COURT CORRECTLY DETERMINED THAT APPELLANTS DO NOT HAVE STANDING TO MOUNT A VAGUENESS CHALLENGE TO THE ORDINANCE. ...,.......... 18 IV. THE NOISY ANIMAL ORDINANCE IS NOT. UNCONSTITUTIONALLY VAGUE. .........,..,...."........ 20 V. THE WINTER SPRINGS POLICE OFFICERS HAVE LEGAL AUTHORITY TO ISSUE ANIMAL NOISE CITATIONS. ...........27 CONCLUSION .' . . .. . . . . . . . . . . . . . . . . , . . . . . , . . . . . . .". . . . . . . . . . . . . . . 33 -1- .. ......: j. " TABLE OF CITATIONS Cases Page Alexis, Inc. v. Pinellas County, Fla., 194 F. Supp.. 2d 1336,1352 (M.D. Fla. 2002) . , .. . , , , . . . . , . , . , . 10,11, 14,20 Am. Dog Owners Ass'n v, City of Yakima, 777 P.2d 1046 (Wash. 1989) . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . 12 Brown v. State, 629 So. 2d 841 (Fla. 1994) .......,.,....,.".......,..,...."".... 20 Chicago v. Morales, 527 U.S. 41 (1999) ...... . , , , , . . , . . . . . . , . . . . . . . . . . . . . , . . . . . . . , . . . . . 19 City of Lebanon v. Wergowske, 590 N.E.2d 902 (Ohio Ct. App. 1991) . . . , , , , . . . . , . . . . . . . . . . . . . . . . . . . . .23 City of Sarasota v. Calhoun, 685 So. 2d 1338 (Fla. 2dDCA 1996) ..."..........,..,..11,12,17,18,19 City of South Euclid v. Haffey, No. 63283, 1993 WL 290148 (Ohio Ct. App. July 29, 1993) . . . . . . . . . . . . . . . .23 Columbus v. Becher, 184 N.E:2d 617 (Ohio App. Ct. 1961) . . . . . . . . . . , . . . . . . . . . . . . . . . . '.' . . . .25 Commonwealth v. Ebaugh, 783 A.2d 846 (Pa. Commw. Ct.2001) ........,....................... 22 Commonwealth v. Ferreri, 572 N.E.2d 585 (Mass. App. Ct. 1991) , . . , , , , . , . . , . . . . . . . . . , , . . . . . . . . . 23 Dae Woo Kim v, City of New York, 774 F. Supp, 164 (S,D. N.Y, 1991) . . . . . . . , . . , . , . . . . . . . . . . . . . . . , . . . . . , 24 Daley v. City of Sarasota, 752 So. 2d 124 (Fla, 2d DCA 2000) "........,....".............. 14,15 -11- ... "', ; t. " Department of Ins. v. Keys Title and Abstract Co., Inc., 741 So. 2d 599 (Fla. pt DCA 1999) ................................... 8 Dupres v. City of Newport, 978 F. Supp. 429 (D. R.I. 1997) ,.,."..,.....,......,...,.....,..... 24 Fratiello v. Mancuso, 653 F. Supp. 775 (D. R.I, 1987) ..,...........,.....,....,........,..,.24 Gates v. City of Sanford, 566 So. 2d 47,49 (Fla, 5th DCA 1990) ...",...,....,..,............... 17 Grayned v, City of Rockford, 408 U.S. 104 (1972) .......,......,..........................,.. 21,24 Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 488 (4th Cir. 1983)' . . . .', . , , . . . . . . . . . , . , . . , . , . . . , , . . . . , . , , . .24 Langford v. City of Omaha, 755 F. Supp. 1460 (D. Nev. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Lear v. State, 753 S.W.2d 737 (Tex. App. 1988) ..............,.............. 13, 18,23 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) . . . . . . . . . . . . . . . . . . . , , . . . . 11, 14 I Nahrstedt v. Lakeside Village Condo. Ass 'n, Inc., 878P.2d 1~75 (Cal. 1994). ...,.."........."...,..................16 Pardo v. State, 596 So. 2d 665 (Fla. 1992) ...".....,............,.,.....,........, 12 People v. Donato, 684 N.Y.S.2d 394 (N.Y. City Ct. 1998) .....,....,.,:,......,...,..... 25 People v. Frie, -111- "l ,. " 646 N.Y.S.2d 961 (N.Y. Dist. Ct. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,23 People v. New York Trap Rock, Corp~, 456 N.Y.S.2d711 (N.Y. Ct. App. 1982) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .24 Ramm v. City of Seattle, 830 P.2d 395 (Wash. 1992) . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 16 Rhoades v. City of Battle Ground, 63 P.3d 142 (Wash. App. 2002) ........................... '. . . . . . . . . . 12 Scullock v. State, 377 So. 2d 682 (Fla. 1979) ...:'...................................... 8 Southeastern Fisheries Ass 'n v. Dep 't of Nat. Res., 453 So. 2d 1351 (Fla. 1984) ........................................ 20 State v. Andrade, No. P3/81-495, P3/81-496, 1982 WL 604868 (R.I. Super. April 30, 1982) ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24 State v. Barnes, 686 So. 2d 633 (Fla. 2d DCA 1997) ................................... 8 State v. Brundage, No. 01-CA-07, 2002 WL 924631 (Ohio Ct. App. March 20,2002) . . . . . 21,22,25 " State v. Ferraiolo, 748 N.E.2d 584 (Ohio Ct. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '25 State v. Friedman, 697 A.2d 947 (N.J. Super. Ct. App. Div. 1997) . . . . . . . . . . . . . . . . . . . :' . . . . . . 22 State v. Gray, , 435 So. 2d 816-(Fla. 1983) ................................... 10,20,21 State v. Hodges, 614 So. 2d 653 (Fla. 5th DCA 1993) ..................................20 -lV- .. .. " State v. Kinner, 398 So. 2d 1360 (Fla. 1981) ......................................... 8 State v. Linares, 655 A.2d 737 (Corm. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 State v. Singer, 945 P.2d 359 (Ariz. Ct. App. 1997) . . . . . . . . ',' . . . . . . . . . . . . . . . . . . . . . . . . .22 State v. Taylor, 495 S.E.2d 413 (N.C. Ct. App. 1998) ......;...........................22 Town of Baldwin v. Carter, 794 A.2d 62 (Me. 2002) .................................. .,' . . . . . . . 21 , United States v. Mazurie, 419 U.S. 544 (1975) .................................... '. . . . . . . . . . 21 Village of Hoffman Estates, Inc. v. Flips ide, Hoffman Estates, Inc., 455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 18,20 Von Eiff v. Azicri, 720 So. 2d510 (Fla. 1998) ......................................16,17 Weaver v. Bonner, . 309 F. 3d 1312 (11 th eir. 2002) . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : 10 Winfield v. Div. Of Pari-Mutual Wagering, 477 So. 2d 544 (Fla. 1985) ......................................... 17 Florida Constitution Fla. Canst. 'art. I, ~ 23 ..................................:.......... 16 Florida Statutes ~ 828.27, Fla. Stat. ............................................. 6~ 31 . ~ 828.27(1)(b),Fla. Stat. ...........................................30 -v- ~ " .' n ~828.27(1)(e), Fla. Stat. ...........................................31 ~ 828.27(7), Fla. Stat. .............................................. 31 Ordinances Seminole County, Fla., Code ~ 20.19 .................................. 8 Seminole County, Fla., Code ~ 20.25 ......................... 2, 5, 8, 13,29 . ,Winter Springs, Fla., .Code ~ 2-67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29 Winter Springs, Fla., Code ~ 4-1 ... . . . . . . . . . . . , . . . . . . . . . . . . . .. . . . . 2, 5, 8 Other Op. Att'y Gen. Fla. 2002-15 (2002) ............................... 30,31 -Vl- .. " . .' , , STATEMENT OF THE CASE AND FACTS A. Statement of the Case Appellee, the City of Winter Springs, Florida ("City"), accepts the representation of the procedural history of this case presented by Appellants, Sandra Koch Rawlins and Weilter M. Rawlins ("Rawlins" or "Appellants"), in their' Initial Brief. ' B. Statement of the Facts The City accepts Appellants' representation of the Facts of this case, with the following additions: On the two occasions giving rise to the issuance 'of the subject citations; 'when the officers arrived at Appellants' residence, they each personally heard dogs barking. (R IV 30; SR 331) As he drove up to the scene, Officer Bill Mayhew, the officer who issued the citation in the case against Sandra Rawlins, cQuld hear the dogs barking from 150 to 200 feet away~ (R IV 31, 45) Shortly thereafter, Sandra Rawlins approached him and acknowledged that her dogs were the dogs that were barking. (R IV 33-34, 41) For at least thirty of the thirty to forty-five minutes that he was on the scene, Officer Mayhew heard the dogs" continuously" barking from Appellants' property:" (R 1 Citations to the record on appeal will be referred to as "R" followed by the corresponding volume and page numbers. Citations to, the supplemental record on appeal, which is the subject of Appellants' pending motion to supplement the record on appeal, will be' referred to as "SR" followed by the correspondin'g page number. Page 1 of 34 ~ " l' f1 Officer Mayhew heard the dogs "continuously" barking from Appellants' property. (R IV 31-33) Officer Mayhew felt that the barking was disturbing the peace of the neighborhood and that Sandra Rawlins, the owner of the dogs, was in violation of ~ 20.25 of the Seminole County Code ("the noisy arumal ordinance"), which was;adopted by the City of Winter Springs under ~ 4-1 of the Winter Springs Code. (R IV 33) Officer Mayhew testified at trial that before a citation is issued to a dog owner for violation of the noisy animal ordinance, the dog owner is given a verbal warning, then a written warning, and is then fined for subsequent violations. (R IV 40) He further explained that he must receive a complaint from a neighbor, and musfmake a determination that the barking is disturbing to the neighbor, before he issues the citation. (R IV 43-45) When Officer Mark Conley, the officer who is.sued the citation in the case against Walter Rawlins, arrived on the scene, he parked in front of the Bosse residence and could hear dogs barking "continuously" from Appellants' property. (SR 33) Officer Conley testified that the dogs barked continuously and loudly the entire thirty miriutes that he was on the scene. (SR 35-36, 48-49, 56) Officer Conley stated that the barking did not disturb him, but he "[has] to overlook those types of things when [he is] on duty." (SR 55-56) Officer Conley believed Appellants were in violation of the noisy animal. ordinance and therefore, issued a citation. (SR 37 -38, 43-44) Officer Page 2 of 34 '\ ,i ~ r '" Conley obtained a sworn statement from Lode Bosse, the Rawlins' neighbor who complained to the Winter Springs Police about the barking dog, in support of the citation. (R 66-67; SR 36~37) Officer Conley testified that in accordaiice with the general Winter Springs ordinance pertaining to penalties and fines,; the basis or criteria upon which he determines whether or not to issue a citation for violation of the noisy animal ordinance is whether the animal owner has been issued a written warning on at least one prior occasion. (SR 41-43) City Manager Ronald W. McLemore testified at trial that he has the power to authorize administrative officers to exercise certain powers and to designate certain \ employees to perform those powers. (RIV 100) He further testified that nothing in the Winter Springs Charter mandates that he designate thes~ duties in writing. (R IV 100) Mr. McLemore stated that he orally delegated the duty of enforcing the Code of the City of Winter Springs to the Winter Springs Police Officers via the Chief of the Winter Springs'Pollce Department. (R IV 10i-l02, 107-108, 116, 123, 136-138) The Chief of Police in turn directed the Winter Springs Police Officers to enforce the Winter Springs Code and ordinances. (R IV 123) Mr. McLemore explained that it was necessary for the Police Department to be involved in code enforcement because code enforcement problems are 24-hours a day, seven days a week, and code enforcement Page 3 of 34 " /"f " employees are principally week-day employees. (R IV 102) He further stated that the code enforcement manager trains police officers as to issuing code enforcement citations. (R IV 132-133) , It was Mr. McLemore's intent and understanding that the officers who comprise the Winter Springs Police Department have the authority to enforce the noisy animal ordinance; (R IV 136) Mr. McLemore explained that while such a delegation may be done via written directive, a written directive is not required. (R IV 137-138) Page 4 of 34 '1 " r, " SUMMARY OF ARGUMENT Appellants, Sandra Koch Rawlins and Walter M. Rawlins, appeal from the orders of the trial court declaring ~ 20.25 of the Seminole County Code ("the noisy animal ordinance"), which was adopted by the City of Winter-.Springs under ~ 4..1 of the Winter Springs Code, constitutional, and,the final judgments of the trial court finding them guilty of violating said ordinance. Appellants contend the noisy animal ordinance is unconstitutionally overbroad and vague, and therefore, that judgment under the ordiriance was improperly entered against them. Appellants' arguments must be , rejected by this Court. To begin with, the nOISY ariimal ordinance does not interfere with any . . constitutional rights. Ordinances which regulate dog barking do not reach legitimate constitutional issues and therefore carmot be overbroad. Furthermore, there simply is no right to privacy to keep domestic pets. Thus, Appellants' arguments that the ordinance is overbroad and that it infringes upon their right to privacy must be rejected by this Court. ..If this Court were to conclude that the nOISY animal, ordinance reaches constitutionally protected conduct, this Court must also conclude that the ordinance does not reach a "substantial amount" of constitutionally protected conduct and therefore, that it is not overbroad. The ordinarice is not deemed overbroad simply Page 5 of 34 .. '. r. because Appellants are able to conceive of one possibly impermissible application of the ordinance. Further, if this Court concludes there is a right to privacy to keep domestic pets and that the noisy animal ordinance infringes upon that ..right, this Court must also conclude that neighboring residents' rights to be free from the injury and damage caused by dogs that continually and repeatedly bark must prevail over the dog owners' rights to harbor said dogs. Appellants' arguments that the noisy animal ordinance is unconstitutionally vague must fail as well. To begin with, it is uncontroverted that Appellants' dogs were indeed barking on the two incidents in question. Therefore, Appellants lack standing to mount a vagueness challenge to the ordinance. Additionally, the ordinance is not unconstitutionally vague. Similar ordinances from many other jurisdictions across the country have survived vagueness challenges. This ordinance should likewise be upheld as constitutionally sound. Lastly, the Winter Springs Police Officers do indeed have authority to enforce the noisy animal ordinance. Said authority arises not only from the directive given to them by the Winter Springs City Manager, but also by the express language and logical interpretation of ~ 828.27, Florida Statutes. Accordingly, Appellants' arguments must fail and this Court must affirm the Page 6 of 34 ... f' order of the trial court declaring the Noisy Animal Ordinance constitutional, affirm the order of the trial court declaring that Winter Springs Police Officers have authority to issue animal noise citations, and affirm the fmalj~dgments and penalties imposed upon Appellants Sandra Koch Rawlins and Walter M. Rawlins in these two consolidated appeals. Page 7 of 34 ~ " . .., f'J STANDARD OF REVIEW Appellants challenge ~ 20.25 of the Seminole County Code ("the noisy animal ordinance"), which was adopted by the City of Winter Springs under ~ 4-1 of the Winter Springs Code, on the basis that it is uncbnstitutionally overbroad and vague.2 This issue presents a pure issue of law, and therefore, the de novo standard of review must be employed by this Court. See Department of Ins. v. Keys Title and Abstract Co., Inc., 741 So. 2d 599 (Fla. }StDCA 1999). In the scope of conducting that review, this Court must be mindful of the fact that the trial court's ruling is entitled to a presumption of correctness. See 'id.Additionally, "[t]here is a presumption of constitutionality inherent in any statutory analysis." State v. Barnes, 686 So. 2d 633 (Fla. 2d DCA 1997) (quoting Scullock v. State, 377 So. 2d 682, 683-84 (Fla. 1979)). All doubts as to the constitutionality of a statute or ordinance must be resolved infavor of its constitutionality, and "[ a]n act [should] not be declared unconstitutional unless 'it is determined to be invalid beyond a reasonable doubt" State v. Kinner, 398 So. 2d 1360,1363 (Fla. 1981) (citation omitted). As explained by the United States Supreme Court in Village of Hoffman Estates, Inc. v. Flips ide, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982), 2 The noisy animal ordinance is now codified at ~ 20.19 of the Seminole County Code. Page 8 of 34 -. [i]n a facial challenge to the overbreadth and vagueness of a law, a court's fust task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should , uphold the challenge [and invalidate the law] only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is' clearly proscribed carmot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant' sconduct before analyzing other hypothetical applications of the law. (footnotes omitted): Page 9 of 34 .. '. ARGUMENT I. ,THE TRIAL COURT CORRECTLY DETERMINED THAT THE ORDINANCE DOES, NOT INTERFERE WITH ANY CONSTITUT10NAL RIGHT, AND THEREFORE CANNOT BE OVERBROAD. . o. ~'I ~ ;, Appellants; initial argument is that the nOISY animal ordinance is unconstitutionally overbroad. "The overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise., of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." Weaver v. Bonner, 309 F. 3d 1312,1318 (1 ph Cir. 2002) (ihternal quotation marks omitted and citations omitted). Accord State v. Gray, 435 So. 2d 816, 819 (Fla. 1983) (citations omitted). This doctrine "is designed to protect the public from the chilling effect such a statute has' on protected speech; the court will strike down the statute even though the governmental entity enforced the statute against those engaged in unprotected activities." Id. (internal quotation marks omitted and citation omitted). Courts should employ the overbreadth doctrine sparingly and only where the court fmds the overbreadth of the statute is "not only . . . real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Alexis, Inc. v. Pinellas County, Fla., 194 F. Supp. 2d 1336, 1352 (M.D. Fla. 2002) (citations omitted). Alaw should not be declared invalid merely "because it is possible to conceive of a single Page 10 of 34 ... impermissible application." Id. at 1352 (citations omitted). See also Members of the City Council of the City of Los Angeles v. Taxpayersfor Vincent, 466 U.S. 789, 800 (1984). "There must be a realistic danger that the statute itself will significantly . compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Taxpayers for Vincent, 466 U.S. at 801. As set forth above, m evaluating whether the noisy animal ordinance is unconstitutionally overbroad, this Court must first determine whether the ordinance reaches a "substantial amount of constitutionally protected conduct." See Village of Hoffman Estates, 455 U.S. at 494. In order to determine whether a statute or ordinance reaches a "substantial amount" of constitutionally protected conduct, a court must interpret the language of the statute or ordinance and determine the scope of its prohibitions. See State v. Linares, 655 A.2d 737, 747 (Corm. 1995). In its ruling on this issue, the trial court relied on the Second District Court of Appeal's opinion in City of Sarasota' v. Calhoun, 685 So. 2d 1338 (Fla. 2d DCA' 1996), and ruled that the noisy animaL ordinance "does not threaten to ,interfere with any constitutional right," and therefore is not overbroad. (R I 125-127) Appellants' argue the trial court erred in this ruling because this case does not fall under the ambit of Calhoun. Specifically, they assert that the noisy animal ordinance could, Page 11 of 34 .. hypothetically, be used to shut down live performances that include animals, such as circuses and parades, and therefore that it could interfere with' a constitutional right, i.e., a First Amendment right. They argue that no such First Amendment argument was raised in Calhoun, and therefore~,that Calhoun does not control here. Appellants' efforts to distinguish this case from Calhoun should be rejected because it is not possible to determine from the Calhoun opinion whether Calhoun alleged that the Sarasota ordinance swept into any constitutionally protected activity. The opinion simply does not set forth sufficient facts upon which to make such a determination. It is possible that .such an argument was made but that the court chose not to write about it in its opinion. Without further proof, Appellants' argument that no similar argument was made in Calhoun is unfounded, and thus, Calhoun is still binding authority which this Court is required to follow. See Pardo v. State, 596 So. 2d 665 (Fla. 1992) ("in the absence of interdistrict conflict, district court decisions bind all Florida trial courts"). Under Calhoun, dog barking does not ever raise any "legitimate, substantive constitutional issue," and therefore, an ordinance regulating dog barking carmot be overbroad. See also Rhoades v. City of Battle Ground, 63 P.3d 142, 151 (Wash. App. 2002) ("a pet ownership regulation does not reach a substantial amount of constitutionally protected conduct") (citing Am. Dog Owners Ass 'n v.. City of Yakim a, , Page 12 of 34 .. ~. . '. 777 P.2d 1046 (Wash. 1989)); Lear v. State, 753 S.W.2d 737, 739 (Tex. App. 1988) ("enactment prohibiting the harboring of a dog that makes frequerit or long continued noise that disturbs persons of normal nervous sensibilities does not reach constitutionally protected conduct" and therefore is not unconstitutionally overbroad). Accordingly, this Court must find that the noisy animal ordinance at issue in this case is not unconstitutionally overbroad. Assuming arguendo that this Court were to conclude that the no'isy ani.nial ordinance reaches constitutionally protected conduct, the ordinance does not reach a "substantial amount" of constitutionally protected conduct. The plain language of the noisy animal ordinance indicates it prohibits continuing or repeating objectionable noises from animals; it does not apply to the dog that barks for a short period of time at a passerby, or to the' animals in a parade or circus that could possibly be passing through town. Further, the likelihood of the ordinance reaching a hypothetical permanent commercial establishment featuring live performances involving animals that'could at some point in the future opep.in Winter Springs is minimal. The ordinance prohibits "objectionable noises which disturb the comfort, peace, quiet or repose of any person residing in the vicinity." ~ 20.25, Seminole County Code (Noisy Animal Ordinance) (emphasis added). If an establishment featuring live performances involving animals Page 13 of 34 " .', were to attempt to open for business in Winter Springs, there would be zoning issues , , which would have to be reviewed and addressed by the City before the establishment would be licensed to operate. After that review, it is unlikely that the establishment would be permitted toJoc.ate in the vicinity of a residence. Therefore, it is unlikely the ordinance would ever be applied against a permanent commercial establishment. The possibility that the noisy animal ordinance could infringe upon First Amendment rights is minimal, at best, and therefore, the brdinance does not reach a "substantial amount" of constitutionally protected conduct. Accordingly, Appellants' argument that the ordinance is unconstitutionally overbroad must be rejected. See Alexis, Inc., 194 F. Supp. 2d at 1352; Taxpayersfor Vincent, 466 U.S. at 800. Appellants attempt to analogize this case to Daley v. City of Sarasota, 752 So. 2d 124 (Fla. 2d DCA 2000). Appellants' efforts here must fail as well. In Daley, the City of Sarasota enacted an ordinance which harmed all amplified sound in nonenclosed structures for certain hours ,of certain days regardless of the volume of the sound and regardless of whether the sound is audible outside of the structure. Id. Daley was cited for violating said ordinan,ce, and appealed to the circuit court. The circuit court upheld the citations and denied Daley's motion to have the ordinance declared unconstitutional. Id. Daley thereafter sought certiorari review in the Second District Court of AppeaL The Second District Court overturned the circuit court's ruling and Page 14 of 34 'l It If found that the ordinance at issue was unconstitutional because "the City cannot absolutely ban all amplified sound in nonenclosed structures for certain hours each day regardless of its volume." Id. at 127. Daley is distinguishable from the instant ca'se because the noisy animal ordinance is not nearly as broad as the Sarasota ordinance. The noisy animal ordinance at issue here does not ban "all" dog barking or animal noises, and therefore could not serve as a blanket prohibition on all live performances featuring animals. Instead, the noisy animal ordinance only bans "continuing or repeating" barking, crying, howling, screeching, squawking, screaming, whining, or other objectionable animal noises. Simple logic and common sense enable one to discern whether barking or other animal noise is "continuing or repeating." Additionally, in order to violate the noisy animal ordinance, a complaint must have been made about the noise; there was no such .' .' '. .' . requirement in the ordinance at issue in Daley. In short, this case and Daley are , factually distinguishable and therefore, Daley is not germane to this Court's review of the noisy animal ordinance. F or the reasons discussed above, this Honorable Court should find that the ordinance is not unconstitutionally overbroad. Page 15 of 34 'i .' 'I II. THE NOISY ANIMAL ORDINANCE DOES NOT VIOLATE THE RIGHT TO PRIVACY. Appellants next argue that the noisy animal ordinance interferes with an individual's right to keep and befriend domestic pets in one's own home, in violation of the right to privacy guaranteed by the Florida and Federal Constitutions. While the federal right to privacy is an'implicit right recognized under the Federal Constitution, the Florida right to privacy is an explicit right, enumerated as article 1, section 23 of the Florida Constitution; it provides in pertinent part that "[ e ] very natural person has the right to be let alone and free from governmental intrusion into his private life." Von Eiff v. Azicri, 720 So. 2d 510,514 (Fla. 1998) (quoting Art. I, ~ 23, Fla. Const.). Although the issue of whether there is a constitutional right to privacy to keep domestic pets has not been addressed by Florida courts, courts from other jurisdictions have ruled that there is no such constitutional right. See Nahrstedt v. Lakeside Village Condo. Ass 'n, Inc., 878 P.2d 1275 (Cal. 1994); Ramm v. City of Seattle, 830 P.2d 395 (Wash. 1992). As the Ramm court noted, "[i]fthe federal right of privacy is not violated by restrictions against two unrelated persons living together, it is certainly not violated by restrictions against a person living with small animals." Ramm, 839 P.2d at 400. Accordingly, this argument must be rejected. If this Court determines that there is a constitutional right to privacy to keep Page 16 of 34 ... '. '., domestic dogs, then this Court must also find that the noisy animal ordinance serves a compelling state interest and is the least intrusive means of accomplishing the goal of reducing noise from pets. See Von EifJ, 720 So. 2d at 514 (compelling state interest standard must be used when determining whether a state's intrusion on privacy is justified) (citing Winfield v. Div. Of Pari-Mutual Wagering, 477 So. 2d 544, 547 (Fla. 1985)). "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." Calhoun, 685 So. 2d at 1339-40. See also Gates v. City of Sanford, 566 So. 2d 47, 49 (Fla. 5tl). DCA 1990). Accordingly, where individuals permit their pets to continually' or repeatedly make noise that is injurious to the rights of their neighbors, and which disturbs their neighbors' privacy rights, then any constitutional right they have to keep said pets must give way to their neighbors' rights to live free from the injury caused by them. The noisy animal ,ordinance is the least restrictive means of protecting the neighbors' rights, and therefore, should be upheld as constitutionally sound. Based upon the foregoing, Appellants; argument that their right to privacy is violated by_the noisy animal ordinance must be rejected by this Court. Page 17 of 34 ~ ..... III. THE TRIAL COURT CORRECTLY DETERMINED THAT APPELLANTS DO NOT HAVE STANDING TO MOUNT A VAGUENESS CHALLENGE TO THE ORDINANCE. Appellants next argue the ordinance is unconstitutionally vague, and that the trial court erroneously determined that they do not have standing to raise a challenge to the vagueness of the ordinance. In its ruling declaring the ordinance constitutional, the trial court relied upon the testimony and evidence introduced at the hearing along with the "binding authority"of the Second District Court of Appeal in Calhoun, 685 So. 2d 1338, and determined that the barking at issue in these cases clearly violated the noisy animal ordinance. ln Calhoun, the court stated "[a]n individual who engages in conduct that is clearly proscribed carmot complain of the vagueness of the law as it might be applied to the conduct of others." I d. at 1340. The court luled that in such an instance, the individual lacks standing to challenge the ordinance. Id. This holding is consistent with well-established law. See Village of Hoffman Estates, 455 U;S. at 494; Lear, 753 S.W.2d at 740. Since the facts of this case establish that Appellants' dogs were barking. loudly and consistently for at least thirty minutes on the two nights at issue herein, and since Sandra Rawlins admitted in her case that her dogs were indeed barking, it is clear that Appellants were in,violation of the noisy animal ordinance. Accordingly, the trial court correctly determined that Appellants lacked standing to Page 18 of 34 " i'''. challenge the vagueness of the noisy animal ordinance: Appellants argue that the standing requirement that was relied upon by the court in Calhoun was abolished by the United States Supreme Court in Chicago v. Morales, 527 U.S. 41 (1999). Appellants' argument must, however; be rejected by this Court because the portion of the Morales opinion upon which Appellants rely was not the opinion of the Court; that portion of the opinion was merely a concurring. opinion of Justice Breyer. Since the opinion was merely a concurring opinion which did not constitute a plurality opinion, the opinion is not binding authority and therefore does not trump Calhoun. Furthermore, if this Court were to,conclude that it could somehow be bound to follow the concurring opinion of a single United States Supreme Court Justice, this Court still would not be required to follow Justice Breyers' opinion in Morales because in said opinion, Justice Breyer makes it clear that his thoughts were based upon the unique facts of that particular case. See id. at 70-74. Accordingly, this Court is still required to follow the binding authority of Calhoun and determine that Appellants did not have standing to challenge the noisy animal ordinance as unconstitutionally vague because their dogs were undeniably barking. Page 19 of 34 ~ ," . . .' IV. THE 'N 0 I S Y ANIMA LORD I N ANC E UNCONSTITUTIONALLY VAGUE. IS NOT Assuming arguendo that this Court reaches the merits of Appellants' vagueness challenge, their argument that the ordinance is unconstitutionally vague must also fail. Vagueness ,is "the term given to that ground of constitutional infirmity of a statute that is based on .its failure to convey sufficiently definite notice of what conduct is proscribed." Gray, 435 So. 2d at 819. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Id. (Citations omitted). When determining whether a statute is vague, common understanding and ordinary logic must be used. Southeastern Fisheries Ass 'n v.' Dep 't of Nat. Res., 453 So. 2d 1351, 1353 (Fla. 1984); State v. Hodges, 614 So. 2d 653 (Fla. 5th DCA 1993). AccordBrown v. State, 629 So. 2d 841; 842 (Fla. 1994). "To succeed on a vagueness challenge, the complainant must demonstrate that the law is impermissibly vague in all of its applications." Alexis, Inc., 194 F. Supp. 2d at 1352. See also Village of Hoffman Estates, Inc., 455 U.S. 489 (a court should declare an ordinance unconstitutionally vague only if it "is impermissibly vague in all of its applications"). Furthermore, vagueness challenges to laws which do not involve First Amendment freedoms must be examined in light of the facts of the Page 40 of 34 .. .- .- case at hand. United States v. Mazurie, 419 U.S. 544 (1975). The noisy animal ordinance is not "in terms so vague that men of cori1mon ' intelligence must necessarily guess at its meaning and differ as to its application." See Gray, 435 So. 2d at 819. Instead, "common"understanding and ordinary logic," considered in the context for which the ordinance was drafted, enable one to discern the type of conduct that is prohibited under it. See Grayned v. City of Rockford, 408 U.S. 104, 112-13 (1972) (statute that was directed to a particular context gave fair notice to those to whom it was directed, and therefore was not unconstitutionally, vague); People v. Frie, 646 N.Y.S.2d 961 (N.Y. Dist. Ct. 1996) ("context [of the dog barking ordinance] clothes any otherwise imprecise or inexact terms with the required definiteness, so that. . . 'a reasonable man subject to [the ordinance] would be informed ofthe nature of the offense prohibited and what is required of him"'). Indeed, courts in many other states have held that dog barking laws similar to the noisy animal ordinance at issue herein pass constitutional muster. See Town of Baldwin v. Carter, 794 A.2d 62 (Me. 2002) (language which provided that a dog owner shall not permit his dog to ','urmecessarily armoy or disturb any person by continued or repeated barking, howling, or other loud or unusual noises anytime day or night" held constitutional); State v. Brundage, No. 01-CA-07, 2002 WL 924631 (Ohio Ct. App. March 20, 2002) (upholding ordinance which provided ','[n]o owner. . . shall keep or Page 21 of 34 ~ '"'i harbor any dog which howls or barks, or emits audible sounds which are unreasonably , ' loud or disturbing and which are of such a character, intensity and duration so as to disturb the peace and quiet of the neighborhood or to be detrimental to the life and ,:,. health of any individual")~ Commonwealth v. Ebaugh, 783 A.2d 846 (Pa. Commw. CL ,.. 2001) (upholding ordinance which defined nuisance in part as "[0 ]wning, possessing, controlling, or harboring any animal or fowl which barks, bays, cries, squawks, or makes other such noise continuously and/or intermittently for an extended period which armoys or disturbs a reasonable person of normal sensitivities")~ State v. Taylor, 495 S.E.2d 413 (N.C. Ct. App. 1998) (upholding ordinance which provides "[i]t shall be unlawful for any person to own, keep, or have within the county an animal that habitually or repeatedly makes excessive noises that tend to armoy, disturb, or frighten its citizens"); State v. Singer, 945 P.2d 359 (Ariz. Ct. App. 1997) (upholding ordinance which provides "[n]o person shall keep a dog within the City limits which is in the habit of barking or howling or disturbing the peace and quiet of any person within the City."); State v. Friedman, 697 A.2d 947 (N.J. Super. Ct. App. Div. 1997) (upholding ordinance,which provides "[i]t shall be unlawful for any person to make, continue or cause to be made or continued any loud, urmecessary or unusual noise or any noise which either armoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others within the llmits of the Township of Washington"); Frie, 646 Page 22 of 34 .. ." ,. N.Y.S.2d 961 (upholding ordinance which prohibits "noise disturbance from a barking dog" which is defined as "a dog barking for fifteen (15) minutes in anyone-hour interval"); City of South Euclidv. Haffey, No. 63283,1993 WL 290148 (Ohio Ct. App. July 29, 1993) (upholding ordinance which prohibits keeping or harboring a dog "which by frequent and habitual barking, howling or yelping, creates unreasonably loud and disturbing noise of such a character, intensity, and duration as to disturb the peace, quiet, and good order of the Municipality"); Commonwealth v. Ferreri, 572 N.E.2d ,585 (Mass. App. Ct. 1991) (upholding ordinance which provides in pertinent part "[i]f any person shall make complaint in writing to the selectmen ofa town. . . that any dog owned or harbored within. . . their jurisdiction is a nuisance by reason of. . . excessive barking or other disturbance . . . such selectmen . . . shall investigate or cause to be investigated such complaint. . . and may make such order concerning the restraint or disposal of such dog as may be deemed necessary."); City of Lebanon v. Wergowske, 590 N.E.2d 902 (Ohio Ct. App. 1991) (upholding ordinance which provides "[n]o '" person shall harbor or keep a dog which by loud and frequent or habitual barking, howling or yelping shall cause armoyance or disturbance to the neighborhood"); Lear, 753 S.W.2d 737 (upholding ordinance which provides "[i]t shall be unlawful for any person to keep or harbor any dog which makes frequent or long continued noise which is disturbing to persons of normal sensibilities"); State v. Andrade, No. P3/81-495, Page 23 of 34 "\ i', P3/81-496, 1982 WL 604868 (R.I. Super. April 30, 1982) (upholding ordinance which provides "[t]he keeping or harboring or any dog, or other animal or fowl, . . . which by unreasonable and habitual howling, yelping, barking or other noise disturbs or annoys three (3) or more persons having separate residences is unlawful, and'is 'hereby declared a public nuisance and each day shall' constitute a separate offense"). This Court should follow these persuasive authorities and conclude that the noisy animal ordinance at issue in this case passes constitutional muster. Appellants cite several cases in support of their contention that this ,ordinance is unconstitutionally vague. Many of those cases are distinguishable on a very hasic level because they do not involve ordinances directed at barking dogs. See People v. New York Trap Rock, Corp., 456 N.Y.S.2d 711, 715 (N.Y. Ct. App. 1982); Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 488 (4th Cir. 1983); Dae Woo Kim v. City of New York, 774 F. Supp. 164 (S.D. N.Y. 1991); Langfordv. City of Omaha, 755 F. Supp. 1460 (D. Nev. 1989); Fratiello v. Mancuso, 653 F. Supp. 775 (D. R.I. 1987); Dupres v. City of Newport, 978 F. Supp. 429 (D. R.I. 1997). As the United States Supreme Court recognized in Grayned, 408 U.S. at 112-13, the context for which alaw is drafted is particularly relevant when determining whether the law passes constitutional muster. Since we are dealing with an ordinance drafted with the intention of reducing noise from domestic animals, cases pertaining to general anti-noise Page 24 of 34 .. regulations are not as helpful to this Court's analysis as cases dealing with dog barking. Therefore, this Court should seek guidance from the many cases pertaining specifically to barking dogs. Appellants cite State v. Ferraiolo, 748N.E.2d 584 (Ohio CL,App. 2000), Columbus v. Becher, 184 N.E.2d 617 (Ohio App. Ct. 1961), and People v.Donato, 684 N.Y.S.2d 394 (N.Y. City Ct. 1998), which are dog barking cases, in support of their contention that the noisy animal ordinance is unconstitutionally vague. As indicated above, there are numerous cases from Ohio, New York, and other jurisdictions declaring that other similar dog barking ordinances are constitutional. Therefore, these cases are merely three of the many cases that may provide guidance to this Court in this matter. Furthermore, in Brundage, No. 01-CA-07, 2002 WL 924631 at *3, the Seventh . - ~. . 1'-.' ~ :', . , District Court of Appeals of Ohio opined that a dog barking ordinance which is virtually identical to the ordinance at issue in Ferraiolo, upon which Appellants rely, is constitutional. in its opinion, the Brundage court specifically stated that it disagreed with the conclusion reached by the Eleventh District Court of Appeals .of Ohio in Ferraiolo. Id. Accordingly, Ferraiolo is not representative of the state of the law on . dog-barking ordinances in Ohio, and is merely one of the many persuasive authorities which this Court could choose to follow. Page 25 of 34 " \ .' None of the many dog barking cases cited herein involves a law which is absolutely identical to the noisy animal ordinance at issue in this case; therefore, this Court must employ common understanding and ordinary logic; and examine the words of the ordinance and the precise context for which it was written, in order to determine whether the noisy animal ordinance passes constitutional muster. After doing so, this Court should conclude that the noisy animal ordinance provides sufficient notice of its proscriptions and contains reasonably clear guidelines that enable a person of ordinary intelligence to be able to understand what the law requires of him or her, and should declare that the noisy animal ordinance is constitutional. I :. ~ ( I~" ~. ~. . t.;, I '.' : _ . Page 26 of 34 '. V. THE WINTER SPRINGS POLICE OFFICERS HAVE LEGAL AUTHORITY TO ISSUE ANIMAL NOISE CITATIONS. In their final argument, Appellants assert that the noisy animal ordinance does not contemplate enforcement directly by law enforcement officers or code enforcement . .-'.>. officers anq therefore, that the Winter Springs Police Officers do not have legal authority to issue animal noise citations. Appellants' argument must be rejected by this Court. City Manager Ronald W. McLemore testified at trial that he has the power to authorize administrative officers to exercise certain powers and to designate certain employees to perform those powers. (R IV,I 00) He further testified that nothing in the Winter -Springs Charter mandates that he ,designate these duties in writing. (R IV 100) Mr. McLemore stated that he orally delegated the duty of enforcing the Code of the City of Winter Springs to the Winter Springs Police Officers via the Chief of the Winter Springs Police Department. (R IV 101-102, 107-108, 116, 123, 136-138) The Chief of Police in turn, directed the Winter Springs Police Officers to enforce the Winter Springs Code and ordinances. (R IV 123) Mr. McLemore explained that it was necessary for the Police Department to be involved in code enforcement because code enforcement problems arise 24-hours a day~ seven days a week, and code enforcement employees are principally week-day employees. (R IV 102) He further stated that the Page 27 of 34 '& "0 code enforcement manager trains police officers on issuing code enforcement citations. (R IV 132-133) It was Mr. McLemore's intent and understanding that the Winter Springs Police Officers have the authority to enforce the noisy animal ordinance. (R IV 13'6) Mr. McLemore explained that while such a delegation may be done via written directive, a written directive was not required. (R IV 137-138) Section 2-67 of the Winter Springs Code provides that a code enforcement officer is "[a]ny employee or agent of the City of Winter Springs who has been designated by the city manager to enforce the city's codes and ordinances." Winter 'Springs, Fla. Code S 2-67. City Manager Ronald W. McLemore testified that the officers comprising the Winter Springs Police Department have been charged with the duty of enforcing the Winter Springs Code, including the noisy animal ordinance. ..,: Thus, pursuant to City Manager McLemore's directive, the Winter Springs Police Officers are code enforcement officers who are charged with the duty of enforcing the Winter Springs Code, including the noisy animal ordinance. Appellants argue that the Winter Springs Police Offipers cannot enforce the noisy animal ordinance because they have not been deemed "animal control officers" , by the City Commission and because the City Commission has not attempted to broaden the category of individuals who may enforce the noisy animal ordinance to Page 28 of 34 " '. include Winter Springs Police Officers. Appellants' argument must be rejected by this Court. Under the noisy animal ordinance, the City could appoint individuals to serve as animal control officials. See ~ 20.25, Seminole County Code. Under ~ 2-67 of the Winter Springs Code, the City Manager is permitted to designate individuals to enforce the City's codes and ordinances. City Manager Ronald W. McLemore testified that while the City does 'not have specific "animal control officials," he has directed that the Winter Springs Police Officers shall serve as, code enforcement officers. Mr. McLemore's directive to the Police Officers to enforce the Winter Springs Code logically includes a directive to enforce the part of the Code which includes the noisy animal ordinance. Appellants' attempts to argue that enforcement of the noisy animal ordinance is excluded from the Winter Springs Police Officers' authority to enforce the Winter Springs Code is nonsensical because there is absolutely no language contained within the noisy animal ordinance which states that enforcement thereof is the sole responsibility of "animal control officials." Accordingly, Appellants' argument must fail. Since Mr. McLemore has directed the Winter Spring's Police Officers to enforce the Winter Springs Code, and since the Winter Springs Code includes the noisy animal ordinance, the Winter Springs Police Officers logically have authority to enforce the noisy animal ordinance. Page 29 of 34 .. '. Appellants argue that Mr. McLemore's directive to the Police Officers to enforce the Winter Springs Code, including the noisy animal ordinance, is insufficient because it was not in writing. This argument is also without merit. As Mr. McLemore testified, there is absolutely no requirement that he issue his, directives in writing. (R IV 100, 137-138)' Therefore, Appellants' argument must be rejected by this Court. Appellants also argue that the Winter Springs Police Officers carmot be deemed "animal control officers" because they do not fit the statutory defInition of "animal control officer" set forth at ~ 828.27(1)(b), Florida Statutes. Appellants place great emphasis on the fact that ~ 828.27(1)(b) states that "[a]n animal control officer is not / authorized to bear arms or make arrests," which is obviously directly at odds with the Winter Springs' Police Officers' authority to carry firearms and make arrests. See ~ 828.27(1)(b),Fla. Stat. This argument must also be rejected by this Court. , {, .': . . ~ '.: :', .":., ", .. ~.. ..' : A plain reading of ~ 828.27(1)(b) shows that the an animal control officer is not permitted to bear anus or make arrests simply by virtue of the fact that he is an animal control officer. See ~ 828.27(1)(b), Fla. Stat. The, language of ~828.27(1)(b) does not, however, mean that an individual who is lawfully authorized to bear arms and make arrests is not authorized to be an animal control officer. Florida Attorney General Opinion 2002-15 lends support to this conclusion. In Opinion 2002-15, the Attorney General opined that a city "may not authorize any animal control officers ,who are not Page 30 of 34 ... '. law enforcement officers to cany firearms. . . ." Op.,Att'y Gen. Fla. 2002-15 (2002). The Attorney General's opinion, while not binding authority, certainly provides credence to the City's position on this issue. Furthermore, ~ 828.27 recognizes the distinction between animal control officers, and law enforcement officers, and provides, that the term "officer" as used in ~ 828.27 'includes animal control officers as well as law enforcement officers. See ~ 828.27(1)(e), Fla. Stat. Moreover, ~ 828.27(7) provides in pertinent part: Nothing contained in this section shall prevent any county or municipality from enacting any ordinance relating to animal control or cruelty which is identical to the provisions of this chapter or any other state law, except as to pepalty. However, no county or municipal ordinance relating to animal control or cruelty. shall conflict with the provisions of this chapter or any other state law. Notwithstanding the provisions of this subsection, the governing body of any county or municipality is authorized to enact ordinances , prohibiting or regulating noise from any domesticated animal, violation of which shall be punishable upon conviction by a fine not to, exceed $500 or by imprisonment .in the 'county jail for a period not to exceed 60 days~ or by both such fme and imprisonment, for each violation of such ordinance. ~ 828.27(7), Fla. Stat. Thus, under ~ 828.27(7), law enforcement officers are officers who possess authority to enforce animal control or cruelty ordinances, including animal noise control ordinances, and Appellants' arguments to the contrary are without merit. Page 31 of 34 .. Based' upon the foregoing, Appellants' arguments on this Issue must be rejhected. ; ~ ~ . Page 32 of 34 .. CONCLUSION Based upon the foregoing, App'ellee, the City of Winter Springs, Florida, respectfully requests that this Honorable Court affirm the order of the trial court declaring the Noisy Animal Ordinance constitutional, affIrm the order of the trial court declaring that Winter Springs Police Officers' have authority to issue animal noise citations, and affirm the fInal judgments and penalties imposed upon Appellants Sandra Koch Rawlins and Walter M. Rawlins in these two consolidated appeals. Submitted on this 23(J day of June, 2003. N 0 A. RGA City'Attorney for City of nter Springs Florida Bar Number 988294 ERIN J. O'LEARY , Florida Bar Number 0001510 Brown, Salzman, Weiss & Garganese, P .A. Two Landmark Center, Suite 660 225 East Robinson Street Orlando, Florida. 32801 Telephone: 407-425-9566 Facsimile: 407-425-9596 Counsel for Appellee CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23(d day of June, 2003, a true and correct Page 33 of 34 "\ " copy of the foregoing was served by U.S. Mail on: Lawrence G. Waiters, Esquire, Weston, Garrou& DeWitt, Attomeyfor Appellants, 455 Douglas Avenue, Suite 2155- ' 31, Altamonte Springs, Florida 32714. CERTIFICATE OF COMPLIANCE I certify that this brief was prepared in Times New Roman 14-point font and that it complies with the font requirements of Florida Rule of Appellate Procedure 9.100(1). F:\Lawyer\ejo\Winter Springs\Rawlins Appeal\Answer Brief2.wpd Page 34 of 34 ~ ." Based upon the foregoing, Appellants' arguments on this Issue must be rejhected. . ;: j ~. ; . '" Page 32 of 34 ... -, CONCLUSION Based upon the foregoing, Appellee, the City of Winter Springs, Florida, respectfully requests that this Honorable Court affirm the order of the trial court declaring the Noisy Animal Ordinance constitutio'nal, affirm the order of the trial court declaring that Winter Springs Police Officers' have authority to issue animal noise citations, and affmn the final judgments and penalties imposed upon Appellants Sandra Koch Rawlins and Walter M. Rawlins in these two consolidated appeals. Submitted on this ~ day of June, 2003. N 0 A. RGA City Attorney for City of Florida Bar Number 988294 ERIN J. O'LEARY Florida Bar Nuriiber 0001510 Brown, Salzman, Weiss & Garganese, P.A. Two Landmark Center, Suite 660 225 East Robinson Street Orlando, Florida 32801 Telephone: 407-425-9566 Facsimile: 407-425-9596 Counsel for Appellee CERTIFICATE OF SERVICE d ' I HEREBY CERTIFY that on this 23 (! day of June, 2003, a true and correct Page 33 of 34 "\ ." ,.1' . 'l-. copy of the foregoing was served by U.S. Mail on: Lawrence G. Walters, Esquire, Weston, Garrou & De Witt, Attorney for Appellants, 455 Douglas Avenue, Suite 2155- 31, Altamonte Springs, Florida 32714. CERTIFICATE OF COMPLIANCE I certify that this brief was prepared in Times New Roman 14- point font and that it complies with the font requirements of Florida Rule of Appellate Procedure 9.100(1). F:\Lawyer\ejo\Winter Springs\Rawlins AppeallAnswer Brief2,wpd Page 34 of 34 "