Leibowitz v. City of Mineola, Tex., Civil Action No. 6:08CV397.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtJudith K. Guthrie
Citation660 F.Supp.2d 775
PartiesVincent P. LEIBOWITZ v. CITY OF MINEOLA, TEXAS, et al.
Decision Date02 October 2009
Docket NumberCivil Action No. 6:08CV397.
660 F.Supp.2d 775
Vincent P. LEIBOWITZ
v.
CITY OF MINEOLA, TEXAS, et al.
Civil Action No. 6:08CV397.
United States District Court, E.D. Texas, Tyler Division.
October 2, 2009.

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Vincent Leibowitz (Pro Se), Mineola, TX, for Plaintiff.

Blake E. Armstrong of Birdsong & Armstrong, Tyler, TX, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JUDITH K. GUTHRIE, United States Magistrate Judge.


The above-styled lawsuit was filed on October 9, 2008. The matter was transferred to the undersigned with the consent of the parties. Defendant filed a Motion for Summary Judgment (document # 31). The Court conducted a hearing on the motion for summary judgment on September 25, 2009. Plaintiff, proceeding pro se, and counsel for Defendants presented arguments at the hearing. For the reasons assigned below, the undersigned finds that the Motion for Summary Judgment should be granted.

Background

In his Amended Complaint filed on February 25, 2009, Plaintiff asserts that two sections of an Animal Control Ordinance enacted in Mineola, Texas, violate the 14th Amendment of the United States Constitution. The Animal Control Ordinance was adopted on January 22, 2007. The City of Mineola, Texas, is a Type A general law municipality. The named defendants are the City of Mineola, Texas, and Chuck Bittner, Chief of Police for the City of Mineola. Plaintiff seeks relief pursuant to 42 U.S.C. §§ 1983 and 1988. He requests an injunction to prohibit Defendants from enforcing the ordinance, a declaration that the ordinance violates the 14th Amendment and an award of his costs and attorney's fees.

The specific sections of the ordinance at issue identified by Plaintiff—Sections 5-36 and 5-39 of the Animal Control Ordinance—concern nuisance animals and the tethering of animals. As initially enacted in 2007, Section 5-36 stated:

Section 5-36. Nuisance animals

(a) As used in this article, a nuisance animal shall be defined as any animal which commits any of the acts listed herein:

(1) Molests or chases pedestrians, passersby or passing vehicles, including bicycles.

(2) Makes unprovoked attacks on other animals of any kind.

(3) Is repeatedly At Large; specifically; three or more times per 12month period.

(4) Damages public or private property.

(5) Defecates on property not belonging to or under control of its owner.

(6) Barks, whines, howls, crackles, or makes any noises excessively and continuously, and such noise disturbs a person of ordinary sensibilities.

(7) Is unconfined when in heat.

(b) If the Animal Control Officer determines that any animal is a nuisance, the Animal Control Officer may issue an order requiring that the owner meet certain remedial requirements to correct the conduct of the animal. The order shall be given to the owner by personal service or by certified mail, return receipt requested. The

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Animal Control Officer or a police officer investigating an animal nuisance complaint may issue a citation to the owner or person in control of said animal.

The portion concerning barking—Section 5-36(a)(6)—was subsequently amended on February 25, 2008 to state:

Barks, whines, howls or makes any noise excessively and for more than 10 consecutive minutes to the discomfort of people and quiet of the neighborhood, or which makes any unreasonably loud, disturbing and unnecessary noise which is offensive to the ordinary sensibilities of the inhabitants of the city and which noise renders the enjoyment of life or property uncomfortable or interferes with public peace and comfort.

As enacted in 2007, Section 5-39 stated:

Section 5-39. Tethered animals

It shall be unlawful for any person to tether, chain or fasten any animal in such a manner as to permit it to be upon any public sidewalk or street or to leave it unattended while tethered, chained or fastened on public property.

Section 5-39 was amended on January 28, 2008, such that the original text was deleted and replaced with the following:

Section 5-39. Restraint requirements for dogs.

(a) General prohibition on tethering. It is unlawful for a person to restrain a dog with a chain or tether unless the person is holding the chain or tether.

(b) Affirmative defenses. It is an affirmative defense to a violation of subsection (a) that the restraint:

(1) Is required to protect the safety or welfare of a person or the dog, if the dog's owner, or person who otherwise has control over the dog, remains with the dog throughout the period of restraint; or

(2) Occurs on the owner's premises and:

a. While the dog is within the owner's, or person who otherwise has control over the dog, direct physical control; and

b. while the dog is prevented from being within 15 feet from the edge of any public street or sidewalk.

(c) Exceptions. The prohibition of subsection (a) does not apply to a temporary restraint:

(1) During a lawful animal event, veterinary treatment, grooming, training, or law enforcement activity.

(d) Restraint specifications. The affirmative defenses provided in subsection (b) and exceptions in subsection (c) do not apply unless the restraint meets the following specifications:

(1) The chain, leash, cord, or tether is not placed directly around the dog's neck and is attached to a properly fitting collar or harness worn by the dog;

(2) The chain, leash, cord, or tether, by design and placement, is unlikely to become tangled; and

(3) The dog is restrained in a manner that permits access to necessary shelter and water.

(e) Hand-held leashes. This section does not prohibit a person from walking a dog with a hand-held leash.

(f) Dogs running at large strictly prohibited. Nothing in this section authorizes an owner to allow a dog to run at large or to fail to provide appropriate restraint or enclosure as required by section 5-33 of this chapter.

(g) Provisions of this Section 5-39 shall not become effective until April 30, 2008.

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The ordinance amending Section 5-39 included a provision stating:

That the terms and provisions of this ordinance shall be deemed to be severable and that if the validity of any section, subsection, sentence, clause, or phrase of this ordinance should be declared to be invalid, the same shall not affect the validity of any other section, subsection, sentence, clause, or phrase of this ordinance.

Plaintiff alleges that Section 5-39 (hereafter referred to as "the restraint ordinance") lacks any rational relationship to a legitimate government interest and, therefore, violates the Equal Protection Clause of the 14th Amendment. Further, Plaintiff asserts that both Section 5-36 (hereafter referred to as "the barking ordinance") and the restraint ordinance violate the 14th Amendment by prohibiting conduct that is constitutionally protected, by being unconstitutionally vague, by denying due process as a result of their failure to be rationally related to a legitimate government interest and by denying him equal protection under the law.

Defendants filed a Motion for Summary Judgment on April 28, 2009. Defendants assert that there is no evidence to support Plaintiffs claims. According to Defendants, Plaintiff has been issued citations for violations of the Animal Control Ordinance. Plaintiff pleaded "not guilty" and the cases are pending. Defendants assert that the Animal Control Ordinance is rationally related to a legitimate government interest; namely, the safety, welfare, and general enjoyment of both animals and citizens of the City of Mineola. Further, Defendants submit that the ordinance is not unconstitutionally vague because it sets forth the prohibited conduct with sufficient specificity that a person of ordinary intelligence could understand when a violation may occur. With regard to Plaintiffs assertion that the Ordinance violates the Equal Protection Clause, Defendants argue that the Ordinance applies to all citizens of Mineola and does not single out a specific individual or class of individuals. Moreover, Defendants submit that Plaintiff has not shown a due process violation because the Ordinance is rationally related to a legitimate government and is valid and Plaintiff has not shown a property interest that has been deprived due to the Ordinance. Defendants assert that Plaintiff has not identified any constitutionally protected conduct that is prohibited by the Ordinance. Finally, Defendant Chuck Bittner argues that he is entitled to the affirmative defense of qualified immunity.

Plaintiff filed a response on August 6, 2009.1 Plaintiff argues that dogs are property. He further asserts that both the restraint ordinance and the barking ordinance lack a rational relationship to a legitimate government interest and that Defendants have not produced any evidence showing a relationship. Plaintiff submits that there is no difference in behavior or quality of life between tethered and nontethered dogs and that the City did not have problems with tethered dogs prior to the adoption of the restraint ordinance. Plaintiff argues that he has a constitutionally protected right to protect his property, which includes his dogs, and that the restraint ordinance prevents him from protecting his dogs. Likewise, Plaintiff asserts that Section 5-36(a)(6) of the barking ordinance infringes upon his right to protect his property because dog barking assists

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in protecting his home and family and he complains that this section does not include an affirmative defense.

In addition, Plaintiff states that the restraint ordinance is broad and overreaching and is contrary to Texas law (specifically, Texas Health & Safety Code § 821.077). He contends that the barking ordinance is unconstitutionally vague because it is not clear what conduct is prohibited with regard to the phrases "any noise," "unnecessary noise" and "renders the enjoyment of life or property uncomfortable" and that its vagueness has led to inconsistent interpretations by police,...

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6 practice notes
  • Monumental Task Comm., Inc. v. Foxx, CIVIL ACTION NO: 15-6905
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 26 Enero 2016
    ...to all classes of citizens and it does not have a disparate impact on members of a suspect class. See Leibowitz v. City of Mineola , 660 F.Supp.2d 775, 785–86 (E.D.Tex.2009) (holding that city's barking ordinance did not deprive dog owner of equal protection, although animal owners could be......
  • Monumental Task Comm., Inc. v. Foxx, CIVIL ACTION NO: 15-6905 SECTION: "J"(3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 26 Enero 2016
    ...to all classes of citizens and it does not have a disparate impact on members of a suspect class. See Leibowitz v. City of Mineola, 660 F. Supp. 2d 775, 785-86 (E.D. Tex. 2009) (holding that city's barking ordinance did not deprive dog owner of equal protection, although animal owners could......
  • Holt's Cigar Co., Inc. v. City of Philadelphia
    • United States
    • United States State Supreme Court of Pennsylvania
    • 19 Enero 2011
    ...as consistent with broader statutory schemes establishing some minimal standards of conduct. Cf. Leibowitz v. City of Mineola, Tex., 660 F.Supp.2d 775, 788 (E.D.Tex.2009) (finding that a local dog-restraint ordinance more restrictive than standards set by a state statute was not preempted).......
  • Patterson v. City of Bellmead, No. 10-12-00357-CV
    • United States
    • Court of Appeals of Texas
    • 21 Marzo 2013
    ...relation to the object for which ostensibly they were enacted, and prima facie they are reasonable."); Leibowtiz v. City of Mineola, 660 F. Supp. 2d 775, 783-84 (E. D. Tex. 2009) (noting that dogs are recognized as property in Texas and that "[o]rdinances, including those regulating the own......
  • Request a trial to view additional results
6 cases
  • Monumental Task Comm., Inc. v. Foxx, CIVIL ACTION NO: 15-6905
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 26 Enero 2016
    ...to all classes of citizens and it does not have a disparate impact on members of a suspect class. See Leibowitz v. City of Mineola , 660 F.Supp.2d 775, 785–86 (E.D.Tex.2009) (holding that city's barking ordinance did not deprive dog owner of equal protection, although animal owners could be......
  • Monumental Task Comm., Inc. v. Foxx, CIVIL ACTION NO: 15-6905 SECTION: "J"(3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 26 Enero 2016
    ...to all classes of citizens and it does not have a disparate impact on members of a suspect class. See Leibowitz v. City of Mineola, 660 F. Supp. 2d 775, 785-86 (E.D. Tex. 2009) (holding that city's barking ordinance did not deprive dog owner of equal protection, although animal owners could......
  • Holt's Cigar Co., Inc. v. City of Philadelphia
    • United States
    • United States State Supreme Court of Pennsylvania
    • 19 Enero 2011
    ...as consistent with broader statutory schemes establishing some minimal standards of conduct. Cf. Leibowitz v. City of Mineola, Tex., 660 F.Supp.2d 775, 788 (E.D.Tex.2009) (finding that a local dog-restraint ordinance more restrictive than standards set by a state statute was not preempted).......
  • Patterson v. City of Bellmead, No. 10-12-00357-CV
    • United States
    • Court of Appeals of Texas
    • 21 Marzo 2013
    ...relation to the object for which ostensibly they were enacted, and prima facie they are reasonable."); Leibowtiz v. City of Mineola, 660 F. Supp. 2d 775, 783-84 (E. D. Tex. 2009) (noting that dogs are recognized as property in Texas and that "[o]rdinances, including those regulating the own......
  • Request a trial to view additional results

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