Colorado Dog Fanciers, Inc. v. City and County of Denver By and Through City Council, 90SA342

Citation820 P.2d 644
Decision Date12 November 1991
Docket NumberNo. 90SA342,90SA342
PartiesThe COLORADO DOG FANCIERS, INC., the American Dog Owners Association, the United Kennel Club, Ken Lee, Colorado Humane Society, Inc., Colorado American Pit Bull Terrier Breeders Association, Inc., Colorado Dog Academy, Inc., Dale and Sue Ellen Fresenberg, Pat Andrasen, Dr. William A. Suro, Russell L. Lopez, and Ambrose and Rama Mallett, Plaintiffs-Appellants and Cross-Appellees, v. The CITY AND COUNTY OF DENVER, Acting By and Through its CITY COUNCIL, John A. Fairman, Manager/CEO of the Department of Health and Hospitals for the City and County of Denver, and Federico Pena, Mayor for the City and County of Denver, Defendants-Appellees and Cross-Appellants.
CourtSupreme Court of Colorado

Ankele, Icenogle, Slattery & Norton, P.C., T. Edward Icenogle, George Bentley, Denver, for plaintiffs-appellants and cross-appellees.

Daniel E. Muse, City Atty., James C. Thomas, Thomas S. Moe, Jr., Assistant City Attys., Denver, for defendants-appellees and cross-appellants.

Justice ERICKSON delivered the Opinion of the Court.

The plaintiffs, dog owners and related canine and humane associations (dog owners), filed a complaint in the Denver District Court against the defendant, City and County of Denver (city), seeking both a declaratory judgment on the constitutionality of the "Pit Bulls Prohibited" ordinance, Denver, Colo., Rev.Mun.Code § 8-55 (1989), and injunctive relief to prevent enforcement. The dog owners also requested damages under 42 U.S.C. § 1983 (1988) and attorneys' fees and costs. This appeal is taken from the district court's order which held that section 8-55, as construed by the court, was constitutional. The order also denied the dog owners an injunction to prevent enforcement of the ordinance, denied the dog owners' motion for attorneys' fees and costs, and dismissed the section 1983 actions with prejudice. Colorado Dog Fanciers v. City & County of Denver, Nos. 89CV11714 & 89CV12348 (Denver Dist.Ct. June 28, 1990). On appeal, the dog owners contend that section 8-55 is unconstitutional. On cross-appeal, the city contends that section 8-55 is constitutional as enacted and that the trial court erred in judicially modifying the ordinance. Since the constitutionality of an ordinance is in issue, jurisdiction lies in the supreme court. See § 13-4-102(1)(b), 6A C.R.S. (1987); see, e.g., High Gear & Toke Shop v. Beacom, 689 P.2d 624 (Colo.1984). We affirm in part, reverse in part, and remand this action and the motion for attorneys' fees and costs to the trial court for resolution consistent with this opinion.


On July 31, 1989, the City Council for the City and County of Denver enacted section 8-55, the "Pit Bulls Prohibited" ordinance. The ordinance, which became effective on August 7, 1989, makes it unlawful for any person to "own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the City any pit bull." § 8-55(a). The ordinance permits an owner of a previously licensed pit bull to keep the dog only if the owner (1) annually renews a "pit bull license" which must have been obtained by November 1, 1989, (2) proves that the dog has been spayed or neutered and has been vaccinated against rabies, (3) keeps the dog confined or securely leashed and muzzled, and (4) maintains $100,000 in liability insurance. § 8-55(d). Section 8-55(b)(2) defines a pit bull as:

Any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying a majority of physical traits of any one or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds. The A.K.C. and U.K.C. standards for the above breeds are on file in the office of the Clerk and Recorder, Ex-Officio Clerk, of the City and County of Denver, at City Clerk Filing No. 89457.

The manager of health and hospitals is authorized by section 8-55(e) to immediately impound any pit bull found within the city if the dog's owner is deemed not to be in compliance with the ordinance. If the owner of an impounded dog disputes the classification of the dog as a pit bull, the owner may file a petition for a hearing. § 8-55(f). The owner is then granted a hearing before the manager of health and hospitals or before a hearing officer designated by the manager. At the hearing, the dog owner bears the "risk of nonpersuasion." The manager or hearing officer makes the final determination whether the dog is a pit bull. If the dog is found to be a pit bull, it will be destroyed unless the owner pays the costs of impoundment and agrees to permanently remove the animal from Denver. Id.

The trial court found that placing the risk of nonpersuasion on the dog owner was a denial of procedural due process of law and construed the ordinance to require that "where a dog's breed is in dispute, the burden is on the City, not the dog owner, to prove beyond a reasonable doubt that the dog is a pit bull dog regulated by the ordinance." The trial court also determined that since the vast majority of Denver citizens do not license their dogs, there was no rational basis for prohibiting owners of unlicensed pit bulls from applying for pit bull licenses. As a result, the trial court severed the portion of the ordinance that limited the pit bull licensing procedure to owners of previously licensed pit bulls. In addition, the trial court imposed a notice requirement and required a pre-impoundment hearing. The city was ordered to give reasonable notice within thirty days to citizens affected by the ordinance. Finally, the trial court gave dog owners 120 days from the date of its order to comply with the ordinance.


The dog owners claim that, under the fifth and fourteenth amendments to the United States Constitution, the ordinance, both facially and as applied to them, violates their rights to procedural and substantive due process and equal protection, is unconstitutionally vague, and constitutes a taking of private property. In addition, they claim the trial court committed reversible error by rewriting and amending the ordinance. The city responds that the ordinance is constitutional on its face and, on cross-appeal, contends that the trial court unnecessarily modified the ordinance.

Legislation designed to protect the public's health and safety is entitled to a presumption of constitutionality. People v. Unruh, 713 P.2d 370, 373 (Colo.), cert. denied, 476 U.S. 1171, 106 S.Ct. 2894, 90 L.Ed.2d 981 (1986); People v. Riley, 708 P.2d 1359, 1362 (Colo.1985). A party challenging a public safety law must prove the unconstitutionality of a legislative ordinance beyond a reasonable doubt. Riley, 708 P.2d at 1362; High Gear & Toke Shop v. Beacom, 689 P.2d at 630.

Section 8-55 is both civil and criminal. To the extent that it provides regulations for the licensing, impoundment, and destruction of pit bulls, it is a regulatory measure. On the other hand, section 1-13 provides that "whenever any section of this Code or any section of a rule or regulation promulgated hereunder requires, prohibits or declares to be unlawful the doing of any act, any violation of such section is hereby declared to be a criminal violation." Denver, Colo., Rev.Mun.Code § 1-13 (Supp.1990) (emphasis added). Section 1-13 also provides for criminal penalties:

If no definite fine or penalty is provided for a violation, any person who shall be convicted of a violation of any such section shall, for each offense, be fined in a sum not more than nine hundred ninety-nine dollars ($999.00) or imprisoned not to exceed one hundred eighty (180) days, or both so fined and imprisoned. Each day an offense and violation continues shall constitute a separate offense and violation.

Id. Violations of the ordinance are criminal violations under section 1-13. Section 1-13 does not affect the civil character of the regulatory provisions. To review the constitutionality of the ordinance, we must consider whether the provisions of the sections at issue are civil or criminal.

III Procedural Due Process

The dog owners contend that the ordinance is fundamentally unfair and thus violates procedural due process. In support of this contention, the dog owners point to the trial court's interpretation of the ordinance to include a change in the burden of proof and to provide notice and a pre-impoundment hearing. We hold that the ordinance, as applied consistent with this opinion, is not fundamentally unfair. Any violation of procedural due process, as the ordinance was interpreted prior to this opinion, is properly the subject of the dog owners' underlying claims and should be addressed on remand to the trial court. However, since the trial court made changes to the ordinance that relate to procedural due process, we now address the trial court's severance of the "risk of nonpersuasion" language and its imposition of a pre-impoundment hearing.


The trial court determined that the city ordinance improperly placed the "risk of nonpersuasion" on the owner of an impounded dog to prove that the dog is not a pit bull. As a result, the court severed that provision and construed the ordinance to place the burden on the city to prove beyond a reasonable doubt that the dog in question is a pit bull as defined by the ordinance. We agree with the trial court's construction with regard to criminal violations under the ordinance, but we do not agree that the city must assume the burden of proof beyond a reasonable doubt at the civil or regulatory stage of the proceedings.

Section 8-55(f) provides that a dog owner demanding a hearing "shall bear the risk of nonpersuasion." While the city may have intended this provision to place the burden of proof on the owner of an impounded dog at an administrative hearing at which the dog's breed is in dispute, the plain meaning of...

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