Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ADMINISTRATIVE – Code Enforecment - Town’s
interpretation of its code to limit 5 domestic animals per residential property
is not contrary to the law – Town erred in including Petitioners’ rooster, a
permitted domestic fowl, as one of the Petitioners’ domestic animals – Petition
granted, in part. Bollea v. Town of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
TERRY G. BOLLEA a/k/a
HULK HOGAN, and
LINDA M. BOLLEA,
Petitioners,
vs. Appeal No.05-0008AP-88B
UCN522005AP000008XXXXCV
consolidated
with:
Appeal
No. 05-0012AP-88B and
Appeal No. 05-0022AP-88B
TOWN OF
CODE ENFORCEMENT BOARD,
Respondent.
__________________________________________/
THIS CAUSE came before the Court on the Petitions for Writ of Certiorari, the Response in Opposition to Petitions for Writ of Certiorari and Motion to Dismiss, and the Replies thereto.[1] Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the certiorari relief must be granted, in part, as set forth below.[2]
The
Petitioners, Terry Bollea, a/k/a Hulk Hogan, and Linda Bollea (Petitioners),
seek review of the Code Enforcement Board Order and Order Imposing Penalty/Lien,
entered by the Respondent, Town of
1. Section 10-2 of the Town’s Code of Ordinances provides that “No person shall keep or maintain upon any residential property within the town more than a total of or any combination of five (5) domestic animals at any one time.” [3] The Town has observed the following animals, in violation of this section, on your property: four (4) ferrets; two (2) parrot-like birds residing in cages; one (1) tortoise; one (1) Chinchilla; at least four (4) dogs; and one (1) cat.
2. Section 10-76 of the Town Code of Ordinances provides that “(a) No person shall keep or maintain upon any lot in the town any domestic fowl, including but not limited to chickens, geese, ducks, turkeys, guineas and like domestic fowl unless a permit for keeping of such fowl on such premises has been issued by the town manager.”[4] While the town has on record that you submitted a request for a permit for one (1) French Hen in 1999, the Town has observed the following domestic fowl on your property, in violation of this section: four (4) hens and one (1) rooster.
3. Section 74-84 of the Town Code of Ordinances requires that properties in the RE zoning district maintain a minimum side-yard setback of seven and one-half feet (7.5). Structures, as defined in Section 66-10 of the Town Code, cannot be erected within the required side-yard setback. The Town has observed the following structures within your side-yard setback located at the north end of your property, in violation of this section: four (4) roofed structures approximately four (4) feet by five (5) feet in width and length and approximately six (6) feet in height; and one (1) roofed and air-conditioned structure approximately ten (10) feet by fifteen (15) in width and length and approximately eight (8) feet in height.
4.
Section 66-201 of the Town of
After considering the evidence presented and testimony of several witnesses, the Respondent concluded that the Petitioners were not in violation of Section 10-76, Section 74-84, or Section 66-201. In finding no violation of Section 10-76, the Respondent concluded that the only domestic fowl on the property was one rooster, which had the necessary permit.[5] The Respondent did find that the Petitioners were in violation of Section 10-2 for having more the 5 domestic animals on their property. In making this finding, the Respondent considered the testimony of Linda Bollea, who stated that there were several animals on her property, including 7 dogs, 6 birds, 1 rooster, 2 cats, 2 ferrets and 1 turtle.
As set forth in the Code Enforcement Board Order, entered January 10, 2005, the
Petitioners were given until February 6, 2005, to come into compliance with Section 10-2. On February 23, 2005, the Respondent held a hearing to determine whether the Petitioners had reduced the number of their domestic animals to five. The Respondent considered the Affidavit of the Town Manager, Stephen Cottrell, stating that the property was non-compliant at the time of his last inspection on February 7, 2005. Mr. Cottrell testified that the Petitioners were non-compliant because there were four dogs, one bird (referred to as a cockatiel), and one rooster on the property. The Respondent found that the Petitioners were still in violation of Section 10-2 and entered, on February 24, 2005, an Order Imposing Penalty/Lien fining the Petitioners $100 per day for each day the violation continued to exist.[6]
In
reviewing the administrative action taken by the Respondent, the Court must
consider whether the Petitioners were afforded procedural due process, whether
the essential requirements of law were observed and whether the orders are
supported by competent substantial evidence.
See Haines City Community Development v. Heggs, 658 So.2d
523, 530 (
Initially,
the Court finds that this section is not unconstitutionally vague or overbroad
since a person of ordinary intelligence would understand what conduct is
required or prohibited by Section 10-2.
While the Court finds the Section 10-2 is constitutional as applied and that the Respondent’s interpretation of the Code to limit five domestic animals per residential property is not contrary to law, the Court finds that the Respondent erred in concluding that the Petitioners continued to be in violation of Section 10-2 in entering its Order Imposing Penalty/Lien. The undisputed testimony presented during the hearing on February 23, 2005, was that the Petitioners had four dogs, one bird, and one rooster on their property. However, the rooster should not have
been included as a domestic animal as the Respondent had already specifically found, in their Notice of Violation and again at the hearing held on December 6, 2004, that the rooster was domestic fowl according to the Code. Indeed, in finding that the Petitioners would need to “limit themselves to five animals” to come into compliance with Section 10-2, one Board member clarified, “not including the rooster.”[8]
The
Court finds that the Respondent’s finding, on December 6, 2004, that the
rooster is domestic fowl comports with the plain language of the Code. Hence, without the need to resort to rules of
statutory construction, the Court finds that the Respondent departed from the
essential requirements of law in holding that the Petitioners failed to take
corrective action to comply with Section 10-2 by including the permitted rooster
as a domestic animal. See e.g.
State v. Burris, 875 So.2d 408, 410 (
Therefore, it is,
ORDERED AND ADJUDGED that the Respondent’s Motion to Dismiss is denied. It is further,
ORDERED AND ADJUDGED that Petitions for Writ of Certiorari are hereby granted, in part, as set forth above and the Order Imposing Penalty/Lien is quashed.
DONE AND
ORDERED in Chambers, at
______________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
_____________________________ _____________________________
PETER
RAMSBERGER ANTHONY
RONDOLINO
Circuit Judge, Appellate Division Circuit Judge, Appellate Divison
Copies furnished to:
Paul S. Maney, Esquire
Post Office Box 172009
J. Kevin Hayslett, Esquire
Richard C. Millian, Esquire
Post Office Box 5124
[1]Due to the unusual procedural posture of this case, including multiple consolidations, the Court will consider each of the submitted briefs in reviewing the merits of this appeal.
[2] The
Court finds that the Respondent’s Motion to Dismiss premised on the argument
that only the Town of
[3] Domestic animals are defined in Section 10-3 as: “Domestic animals means and includes dogs, cats, small domestic birds excluded from the definition of livestock as defined below, rabbits, rodents, such as white mice, guinea pigs and hamsters, nonvenomous snakes and small reptiles commonly considered harmless to humans, but does not include livestock. All animals, reptiles, birds or livestock not within this definition shall be prohibited on any property within the town unless otherwise provided in this chapter.”
[4] Domestic fowl is included within the definition of livestock, defined in Section 10-3 as: “Livestock means all animals of the equine, bovine or swine class, including mules, horses, hogs, cattle and other grazing animals, goats and sheep, and domestic fowl such as chickens, geese, ducks, turkeys, guineas and like domestic fowl, but does not include small domestic birds commonly kept in cages inside private residences such as parrots, parakeets, love birds, finches or similar pet birds, if such small birds are kept solely as pets and not for commercial purposes or sale and are maintained within a residential structure or an enclosed aviary.”
[5] It was determined during the course of the hearing that Linda Bollea applied for a permit for a French Hen in 1999, but that a permit for a rooster had actually been issued. There is no dispute that the Petitioners have a valid permit for a rooster.
[7] Mrs. Bollea testified that, along with herself, her husband and two children resided in the residential home.
[8] See Transcript, December 6, 2004: Page 115, Lines 17-22.