American Dog Owners Ass'n v. Dade County, Fla., 89-771-CIV.

• Citation: 728 F. Supp. 1533
• Decision Date: 30 November 1989
• Docket Number: No. 89-771-CIV.,89-771-CIV.
• Parties: AMERICAN DOG OWNERS ASSOCIATION, INC., et al., Plaintiffs, v. DADE COUNTY, FLORIDA, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

728 F. Supp. 1533

AMERICAN DOG OWNERS ASSOCIATION, INC., et al., Plaintiffs, v. DADE COUNTY, FLORIDA, et al., Defendants.

No. 89-771-CIV.

United States District Court, S.D. Florida.

November 30, 1989.

Steven Wisotsky, Ft. Lauderdale, Fla., and William Berger, Miami, Fla., for plaintiffs.

Robert A. Ginsbury, Dade County Atty., and Cecilia M. Altonaga and Thomas W. Logue, Asst. County Attys., Miami, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HOEVELER, District Judge.

THIS CAUSE came before the Court for a two and one-half day trial commencing July 10, 1989. Plaintiffs' complaint presents a pre-enforcement facial challenge to the constitutionality of Dade County Ordinance No. 089-22 on the basis that the ordinance is impermissibly vague. The ordinance purports to regulate ownership of pit bull dogs ("pit bulls") by requiring registration, enclosure or leashing and muzzling of existing pit bull dogs and by prohibiting the acquisition of new ones. The ordinance defines pit bull dogs by referring to standards set forth by the American Kennel Club ("AKC") and the United Kennel Club ("UKC"), providing that dogs substantially conforming to those characteristics will be considered pit bulls. Plaintiffs' challenge to this ordinance rests on their contention that the definitional sections are so vague and uncertain as to deprive plaintiffs of their liberty and property without due process of law. The complaint seeks declaratory and injunctive relief as well as damages.

Both parties presented witnesses, including experts and trial exhibits. On the basis of testimony, evidence and arguments presented by both sides, as well as post-trial submissions, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

I. The parties

Plaintiff, Responsible Dog Owners of Dade ("RDOD") is an unincorporated association created to advance the interests of dog owners and to defend them from hostile legislation. RDOD is comprised of dog owners who live in Dade County or who, as dog fanciers, are potentially subject to the challenged ordinance. Plaintiff American Dog Owners Association, Inc. ("ADOA") is a Michigan nonprofit corporation formed for the advancement and protection of the interests of dog fanciers. ADOA is a national organization whose purpose is to educate people, teach responsible dog ownership and to advocate legislation which is non-breed specific. Many ADOA members live in Dade County and may be subject to the challenged ordinance because of dog ownership or exhibition.

Plaintiff, Robert Sanchez is President of RDOD, a Dade County resident and owns two dogs which may be subject to the ordinance. One of his dogs, Rex, is a purebred animal registered with the United Kennel Club ("UKC") as an American Pit Bull Terrier. The other dog, Whiskey, is unregistered and of uncertain lineage. Whiskey's dog license states that he is a mixed breed. Sanchez claims that he does not know whether either of his dogs is covered by the ordinance, despite Rex's registration and an animal control officer's identification of Whiskey as a pit bull. Sanchez states that he does not know what the definitional terms of the ordinance mean and thus does not know whether his dogs have the physical characteristics set forth in the definitional standards. Moreover, Sanchez complains that if the ordinance is applied to him, he will no longer be able to participate in his favorite sport of shitsun competition (apparently some form of search and rescue exercise), because he could not participate if his dogs were leashed and muzzled.

Defendant, Metropolitan Dade County is the law-making body for Dade County, Florida which adopted Ordinance No. 089-22, amending Chapter 5 of the Metropolitan Dade County Code. Defendant, Zoraida Diaz-Albertini is the Director of the Dade County Animal Services Division and is responsible for enforcing the challenged ordinance.

II. The Ordinance

The Dade County Commission adopted Ordinance No. 089-22 on April 4, 1989, effective April 14, 1989. Legislative fact findings included facts indicating that the selective breeding of certain characteristics in pit bull dogs made these dogs a danger to health and welfare different from the dangers presented by other breeds. The Preamble to the Ordinance contains the several factual findings made by the Board of County Commissioners of Dade County that pit bull dogs require special regulation because of their dangerous propensities. These findings were not challenged by the plaintiffs, and are accepted as true for the purposes of this preenforcement challenge. The Ordinance is reproduced in full in Appendix A. Enforcement of the ordinance was postponed until July 14, 1989.

The ordinance purports to protect the community by confinement and muzzling requirements. As indicated, ninety days after the effective date of the ordinance, no pit bull dogs may be acquired or brought into Dade County (Ord.Sec. 5-17.6(b).

At the time trial commenced, only seven pit bull dogs had been registered with Animal Control pursuant to the ordinance. A great number of licensed dogs are listed as pit bulls on their Dade County dog licenses. Failure of a pit bull dog owner to comply with the Ordinance subjects the owner to civil fines and to possible destruction of the dog by a court of competent jurisdiction. Dade County Code at Sec. 8CC-10. By its terms, enforcement of the penalty provisions of the Ordinance commences on July 14, 1989. Ordinance at SEc. 5-17.6(a).

Plaintiffs initiated this suit on April 21, 1989, and after several amendments to their pleadings, raised the following issues for resolution by the Court: (a) are the definition of pit bull dog and the exceptions from confinement in the Ordinance so vague that they violate due process of law under the federal constitution; (b) does the Ordinance violate Florida constitutional provisions by delegating enforcement to the executive branch without standards. This is a pre-enforcement challenge.

III. Identification of Pit Bull Dogs

Plaintiffs contend that there is no such thing as a pit bull dog. Rather, they contend that there are three breeds which the ordinance in question has mistakenly lumped together. Further, plaintiffs contend that the standards set forth by the kennel clubs and incorporated by the Dade County ordinance were never meant to be used for identification, but only as a reference regulating the owners of existing pit bull dogs and banning acquisition of these dogs after July 13, 1989.¹ The ordinance applies on its face to any dog that "exhibits those distinguishing characteristics" which "substantially conform" to American Kennel Club ("AKC") or United Kennel Club ("UKC") standards. The ordinance also states that technical deficiencies in a dog's conformance to the standards will not prevent it from being considered a pit bull. The definitional standards in the ordinance encompass characteristics of dogs from three breeds recognized by the AKC and UKC: American Staffordshire Terriers, American Pit Bull Terriers and Staffordshire Bullterriers. The ordinance defines the breed of dog not according to bloodlines, but according to physical characteristics. Owners unsure about the breed of their dogs may bring them to Animal Control Division for a determination.²

Existing pit bull dogs ("pit bulls") are controlled by requiring owners to register the dogs with Metro Dade Animal Services Division and to confine pit bulls indoors or in a secure, totally enclosed, locked pen unless muzzled and leashed. Dogs participating in lawful dog shows or engaged in hunting in an authorized area under competent supervision are exempted from in judging dogs already identified by bloodlines as belonging to one of the kennel clubs' three breeds. Thus, the plaintiffs contend that the standards set forth in the ordinance are meaningless.

Despite plaintiffs' contention that there is no such animal as a pit bull, plaintiffs' own experts have written articles about their pedigreed dogs referring to them by the common nickname of pit bull. At trial, these experts identified photographs of dogs as pit bulls, rather than delineating the dogs into any one of the three breeds recognized by the kennel clubs. Moreover, veterinarians commonly identify dogs as pit bulls—rather than one of the three recognized breeds—by their physical characteristics. Two veterinarians, testifying for the defendants, stated that they are often called upon to identify a dog's breed because it is an integral part of the animal's health record. This they do by reference to standard physical characteristics. Generally, these veterinarians testified, owners themselves know what breed their dog is.

The trial testimony shows that most dog owners know or have a preconceived idea of, the breed of the dog they possess. (T.R. at 394). The term pit bull, alone, is a descriptive term that conjures up a picture of a particular breed of dog (T.R. at 105), and is a critical component of the definition of this dog in the Ordinance. (T.R. at 110). Breed identification based on appearance is, of course, necessarily a valid judgment. (T.R. at 93).

Although no dog registry recognizes a breed of dog by the name pit bull, the term is often used as nickname in Bloodlines, the official magazine of the United Kennel Club. (T.R. at 135-36). Pit bull is used by persons having an extensive background in the UKC and AKC dogs, as for example, former plaintiff Marilyn Brubaker Thompson. (T.R. at 518). Marilyn Thompson has used the term pit bull dog to refer to her dogs, which are cross registered as UKC-registered American Pit Bull Terriers, and AKC American Staffordshire Terriers. (T.R. at 520-21). Testimony was received concerning various dog clubs which use the term pit bull in their name and whose special emphasis is on American Pit Bull Terriers and American Staffordshire Terriers. (T.R. at 516, 521-24).

The term "pit bull" dog is widely used in...