State v. Peters

• Decision Date: 15 November 1988
• Docket Number: No. 87-652,87-652
• Citation: 13 Fla. L. Weekly 2517,534 So.2d 760
• Parties: , 13 Fla. L. Weekly 2517 The STATE of Florida, Appellant, v. Donna Lynn PETERS and Joy Ivy Shupnick, Appellees.
• Court: Florida District Court of Appeals

Page 760

534 So.2d 760

57 USLW 2358, 13 Fla. L. Weekly 2517

The STATE of Florida, Appellant, v. Donna Lynn PETERS and Joy Ivy Shupnick, Appellees.

No. 87-652.

District Court of Appeal of Florida,

Third District.

Nov. 15, 1988.

Robert A. Butterworth, Atty. Gen., and Nancy C. Wear, Asst. Atty. Gen., for appellant.

Michael S. Kaufman, for appellee Peters.

No appearance for appellee Shupnick.

Before BASKIN and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from an order of the county court invalidating a City of North Miami ordinance regulating the ownership of pit bull dogs. Pursuant to Florida Rule of Appellate Procedure 9.160, the county court certified that its order passed upon a question of great public importance. We

accept jurisdiction, ¹ Fla.R.App.P. 9.160(e)(2), uphold the ordinance, and reverse and remand for further proceedings.

I.

The ordinance in question, City of North Miami Ordinance No. 422.5, regulates the ownership of pit bulls by requiring their owners to carry insurance, post a surety bond, or furnish other evidence of financial responsibility in the amount of $300,000 to cover any bodily injury, death or property damage that may be caused by the dog. The ordinance also requires that owners register their pit bulls with the City and confine the dogs indoors or in a locked pen. The ordinance defines pit bulls by reference to characteristics of the breed established by the American Kennel Club (AKC) and the United Kennel Club (UKC):

"(a) The term 'Pit Bull Dog' as used within this Article shall refer to any dog which exhibits those distinguishing characteristics which:

"(1) Substantially conform to the standards established by the American Kennel Club for American Staffordshire Terriers or Staffordshire Bull Terriers; or

"(2) Substantially conform to the standards established by the United Kennel Club for American Pit Bull Terriers.

"(b) The standards of the American Kennel Club and the United Kennel Club referred to in paragraph (a) above, are attached hereto as 'Exhibit A' and shall remain on file with the Animal Control Office of the City of North Miami.

"(c) Technical deficiencies in the dogs [sic] conformance to the standards in paragraph (b) shall not be construed to indicate that the subject dog is not a 'Pit Bull Dog' under this ordinance."

II.

The defendants, Donna Lynn Peters and Joy Ivy Shupnick, were charged with violating the pit bull ordinance. They moved to dismiss the charges on the grounds that the ordinance violates equal protection and due process, and on the ground that the ordinance's definition of a pit bull is on its face unconstitutionally vague. ² , ³ The county court granted the motion, concluding in pertinent part:

"[T]he said definition of a 'Pit Bull Dog' contained in the ordinance is overbroad, vague and irrational.

"[T]estimony from the Defendants established uncontrovertibly that the required

insurance was not available, that Insurance Companies would not write such a policy. The City has no authority to regulate Insurance Companies and cannot require them to issue a policy.... Sec. 6-28 [of the ordinance], titled Liability Insurance Etc. is unconstitutionally oppressive ...."

A. The Equal Protection Claim

The defendants claimed below and claim here that the ordinance violates the equal protection clauses of the federal and state constitutions in two ways. First, it irrationally differentiates between owners of pit bulls and owners of other breeds of dogs ⁴; second, it fails to include within the pit bull definition half-breed pit bulls--dogs popularly regarded as pit bulls--which may be as vicious as purebred pit bulls.

The defendants' claim overlooks that the constitutional guarantee of equal protection of the laws does not guarantee that all dog owners will be treated alike; at most, the only guarantee is that all owners of defined pit bulls will be treated alike. It is well established that a law is not constitutionally defective simply because it contains classifications which are underinclusive--that is, which "do not include all who are similarly situated with respect to a rule, and thereby burden less than would be logical to achieve the intended government end." L. Tribe, American Constitutional Law § 16-4, at 1447 (1988). ⁵ Courts must give legislatures great leeway in creating classifications:

"The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others."

Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573 (1955) (citations omitted).

See also Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086, 1089 (1935) ("The State was not bound to deal alike with all these classes, or to strike at all evils at the same time or in the same way."). Thus, a law which punishes males for statutory rape but does not punish females does not violate equal protection. Michael M. v. Superior Court, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality). In response to the contention that the rape statute must be broadened to include females as well as males, the plurality in Michael M. stated that the relevant inquiry "is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the ... Legislature is within constitutional limits." Id. at 473, 101 S.Ct. at 1206, 67 L.Ed. at 445. See also Liberta v. Kelly, 839 F.2d 77 (2d Cir.1988) (law prohibiting forcible rape by males but not by females does not violate equal protection).

It follows, then, that only rarely do courts strike down under-inclusive laws as being unconstitutionally arbitrary. L. Tribe, supra § 16-4, at 1447 n. 4. Where there is no fundamental right or suspect class at issue--as here, where the classification concerns animals--courts will usually "legislature or municipal governing body is entitled to address threats in a piecemeal fashion, countering each threat as it arises. To satisfy equal protection tenets, it is not necessary that the Village address all potential threats from all breeds of dog; instead, the Village was entitled to address a phase of the problem that was of acute concern."

                uphold the constitutionality of the law.  Thus, it has been held that there is no equal protection violation in a law which gives preference to cattle but not to sheep in grazing on government lands, Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763 (1918), or prohibits the ownership of dogs but permits the ownership of cats in public housing, Bogan v. New London Housing Authority, 366 F.Supp. 861 (D.Conn.1973), or gives greater compensation for the destruction of some types of cattle than for others, Burt v. Arkansas Livestock and Poultry Commission, 278 Ark. 236, 644 S.W.2d 587 (1983), or schedules quarterhorses to race in parimutuel races at less favorable times than thoroughbred horses, Idaho Quarterhorse Breeders Association, Inc. v. Ada County Fair Board, 101 Idaho 339, 612 P.2d 1186 (1980).  Additionally, the Florida Supreme Court has held that there was no equal protection violation when the Legislature imposed strict liability for injuries caused by dogs, but not those caused by livestock.  Selby v. Bullock, 287 So.2d 18 (Fla.1973).  Still more to the point are recent pit bull cases upholding the right of the legislative body to regulate only pit bulls.  In Starkey v. Township of Chester, 628 F.Supp. 196, 197 (E.D.Pa.1986), a federal district court rejected the contention that an ordinance regulating only pit bulls violated equal protection:  "The Township does not have to regulate every dangerous animal at the same time in the same way to pass constitutional muster."   Similarly, a New Mexico court recently upheld a law which entirely banned the ownership of pit bulls, stating that a
                

Garcia v. Village of Tijeras, No. 9424, slip op. at 10 (N.M.Ct.App. Oct. 11, 1988) (citations omitted).

Therefore, since the City of North Miami had no obligation to regulate all dogs when it regulated some dogs, the determinative issue is whether the North Miami City Council had a rational basis for regulating pit bulls. The federal district court in Starkey v. Township of Chester, 628 F.Supp. at 197, found that "[t]he Township could reasonably determine, as it did, that Pit Bulls are dangerous." See also Garcia v. Village of Tijeras, No. 9424 (N.M.Ct.App. Oct. 11, 1988) (ordinance banning pit bulls is reasonably related to protection of residents). Likewise, in the present case, there is ample evidence to support the City's conclusion that pit bulls should be controlled. The ordinance itself states:

"WHEREAS, dogs commonly referred to as 'Pit Bulls' were for centuries developed and selectively bred for the express purpose of attacking other dogs or other animals such as bulls, bears, or wild hogs; and

"WHEREAS, in developing a dog for this purpose, certain traits were selected and maximized by controlled breeding, including extremely powerful jaws, a high sensitivity to pain, extreme aggressiveness towards other animals, and a natural tendency to refuse to terminate an attack once it has begun; and

"WHEREAS, in addition to statistical evidence that Pit Bull Dogs have a greater propensity to bite humans than all other breeds, there exists overwhelming evidence in the form of individual experiences, that the Pit Bull is infinitely more dangerous once it does attack; and

"WHEREAS, the Pit Bull's massive canine jaws can crush a victim with up to two thousand (2,000) pounds of pressure per square inch--three times that of a ...