The Broward County Ordinance and Replevin
Judge Requests Rehearing of Replevin Motion in Brandie's Case
It is my understanding that the Judge in Brandie's case has requested to Rehear the Lipsky Motion for Replevin. I think the judge needed time to understand the notion and procedure of a Writ of Replevin, and now wants to hear how this Writ applies to Brandie and the Broward County Ordinance.
In order to understand why Brandie is entitled to be home pending appeal, let's take a look first at the State statute and the Broward County Ordinance. They have to be read together in order to reach a proper legal conclusion.
Florida State Statute
The first crinkle is the fact that the state statute has two different procedures: one to declare a dog dangerous (F.S. § 767.12) and the other to order the destruction of a dog (F.S. § 767.13). The problem is, that these two procedures require different definitions of the dog's act. To declare a dog dangerous under 767.12 the dog either has to have more than once killed a domestic animal, scared someone or aggresively bitten or inflicted severe injury on a human being. To order destruction of a dog under F.S § 767.13, the dog has to either been previously declared dangerous and attacked or bitten a person or domestic animal or if not previously declared dangerous causing severe injury or death to a human. Confused yet?
Dangerous dog track
The state statute discusses an appeal from the lower tribunal (hearing officer) differently depending on which procedure is being considered. Thus, if you are under the dangerous dog track, F.S. § 767.12(d) says the owner "must confine the dog in a securely fenced or enclosed area pending resolution of the appeal.
Destruction of dog track
If you are under the destruction of dog track, F.S. § 767.13(1) or (2) the statute says "The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure."
The State statute thus makes sense-if the dog is on the dangerous dog track the dog stays home pending appeal. If the dog is on the destruction of dog track (defined as previously declared dangerous and attacked or bitten a person-or if not declared dangerous causing severe injury to human) animal control keeps the dog.
Broward County Ordinance
Now let's take a look at the Broward County Ordinance.
The first thing you notice, is that there are not two different procedural tracks in the headings of the Ordinance. They are there, however, and the same division is made with respect to the action of the dog.
Dangerous dog track
The dangerous dog track is contained in Section 4-12 (b) and (c). Under the dangerous dog track, 4-12(c) the ordinance says that upon appeal of the initial animal control decision (an appeal to the hearing officer) the owner will "confine the dog in a securely fenced area pending resolution of the appeal." Section 4-12(d) and working under the dangerous dog track, animal control must determine that the owner is unwilling or unable to securely confine the dog before it impounds it. With respect to appeal from the hearing officer's decision, section 4-12(d) says that if the dog is subsequently classified as dangerous, the dog shall remain impounded until the owner provides secure confinement in accordance with this section. Thus, on appeal, the owner would continue to keep the dog at home, unless animal control makes a determination that the owner is unable to keep the dog in a securely fenced area pending appeal.
Destruction of dog track
The destruction of dog track is contained 4-12(j) and defines a dog eligible for destruction if it was previously declared dangerous and causes severe injury to or death of a human or causes death of a domestic animal. If the dog has not previously declared dangerous and causes severe injury or death of a human being or causes the death of a domestic animal. Note the definition is exactly the same whether the dog has previously been declared dangerous or not (which makes no sense whatsoever-note there is a difference under the State statute). Under the destruction of dog track, animal control impounds the dog. There is nothing further under this section about what happens on appeal. Note that the state statute is clear regarding this issue-the dog is kept by Animal Control. Either Broward forgot to put this in, or intentionally left it out.
Discussion
Because the Broward County Ordinance does not complete the destruction of dog track to include what happens to the dog on appeal, it is clearly arguable that all of the provisions of the Dangerous Dog track apply. That is, that the owner shall keep the dog during appeal unless Animal Control decides the owner is unable or unwilling to confine the dog in a securely fenced area pending resolution of appeal. In addition, since the state statute was not followed in the Broward Ordinance, the only conclusion is that they knew it was there but intentionally left it out. The other problem is that in making the one kill rule, the Ordinance makes no distinction on what the dog did-the penalty is the same whether the dog was previously declared dangerous or not. If that is the case, why even make such a distinction?
Complicated.
Offensive Pleadings
