Orange County's Dangerous Dog Law - Unconstitutional?
Riley Allen Law Attorneys take up fight for Owners Rights and Dog Safety - August 19, 2010
It’s quite often in Florida that attorneys file lawsuits on behalf of people injured in dog bite cases. In fact, you’ve probably heard plenty of “Dog Bite!” advertisements on the radio by attorneys. It isn’t everyday, however, that a law firm takes up the challenge of trying to protect an animal rescue shelter owner or change a local county ordinance that may put animals at risk.
The lawyers at Riley Allen Law are doing just that. In an effort to help Dr. Susan Hewlings of The ARF Shack Inc., a nonprofit animal rescue service, keep her beloved pets from imprisonment in a potentially dangerous doggy jail without a trial or thorough investigation, they have threatened a Constitutional challenge of Orange County’s “Dangerous Dog Law” with the Ninth Judicial Circuit Court of Florida.
The case centers around an incident that occurred on May 20, 2010, when a neighbor filed a complaint alleging that three “Jack Russell” dogs from Hewlings’ address charged her, circled her and growled, then bit and badly injured her dog. Although Hewlings does not dispute that an incident took place, she disagrees with the facts and how the case has been handled by Orange County Animal Services (OCAS).
First, Dr. Hewlings acknowledges that while her small Jack Russell-mixed dog Lilah approached the other dog and inflicted a small bite wound, the dog owned by the complainant was on her property, and neither of her other two dogs, which are actually former service-dog Black Labrador Retrievers, came near the dog.
Hewlings also takes issue with the fact that OCAS attempted to impound all three dogs indefinitely while they performed a Dangerous Dog Investigation (DDI), based solely on the complaint without a thorough investigation or hearing. Due to her extensive experience with adoptive pets from the Orange County facility, she feared that her dogs would contract potentially fatal diseases and therefore proposed placing them in an Osceola County facility instead.
Since Hewlings refused to surrender her dogs prior to a hearing and OCAS denied her request to use the Osceola facility, OCAS deemed her an uncooperative owner and sent an Orange County Sheriffs officer to her house. She was cited with five infractions and fined over $1100. Employees from OCAS also threatened that she would be arrested. Enter attorney Michael Kest with Riley Allen Law.
The Dangerous Dog Law of the State of Florida, contained in chapter 767 of the Florida Statutes, gives local governments authority to enact restrictions of their own and develop procedures and criteria for the enforcement of the statewide law, as long as the local laws do not diminish the law of the State.
The Orange County Code, in part, defines a dangerous dog as one that has bitten, attacked, endangered or severely injured a person, unless in defense of its owner or property; a dog that has severely injured or killed a domestic animal outside of its property; or a dog that has chased or approached a person on public grounds without being provoked. The code also states that animals may, in extenuating circumstances, be impounded during the dangerous dog investigation.
In his complaint filed with the Ninth Judicial Circuit Court of Florida, Hewlings’ attorney Michael Kest of the firm Riley Allen Law argues that there are disputes as to whether her dogs even qualify as dangerous dogs under the County Code. He also argues that the attempt to impound her animals without a hearing is a violation of her constitutional right to procedural due process. Further, an OCAS officer even agreed with her about the prevalence of some diseases at Animal Control facilities.
In interviews conducted with neighbors by OCAS, no one identified her dogs as aggressive. In fact, the neighbor who filed the complaint even acknowledged that the third dog was not involved.
After the Circuit Judge stated that Orange County was not to attempt to take the dogs prior to a hearing, Mr. Kest voluntarily dismissed the complaint until completion of the DDI. He indicated, however, that they would be filing a Motion to Dismiss the citations and may re-file the complaint depending on the outcome of the DDI.
For Attorney Kest, the question is simple: ". . . did the government exceed its power under the constitutions of the United States and the state of Florida in enacting a municipal code and its subsequent enforcement of that code? The Orange County Code itself and the actions of Animal Services both violate of the Constitution and whether the property interest is a dog or a house, the government simply cannot take that property without due process."
Mr. Kest also argues that the Florida Dangerous Dog Law does not permit OCAS to harass and abuse their power in the course of an investigation. He points to the threats by multiple OCAS employees that Hewlings would be arrested “even though they were well aware they had no such power." The lawsuit also charges abuse in the threats to suspend ARF Shack from rescuing any more animals from OCAS, which ". . . was as a retaliatory action against HEWLINGS for not relinquishing her rights against a warrantless seizure and due process."
What is apparent from this case is that the Orange County Dangerous Dog Law may need adjustment to ensure more equality and prohibit violation of citizens’ constitutional rights. Second, Riley Allen Law and Michael Kest are committed to helping the residents of Central Florida maintain their legal rights, whether it involves the threat of loss of property, their best four-legged friends, or recovering after serious bodily injury.