County Civil Court: COUNTY ORDINANCE – Animal Control – constitutionality of Code – interpretation of Code - challenge to constitutionality of Code must be commenced as an original proceeding in circuit court – County’s interpretation of two different Code provisions regarding the County’s handling of “dangerous animals” was not inherently inconsistent nor arbitrarily applied - judgment affirmed. O’Keefe v. Pinellas County Animal Services, Appeal No. 06-0038AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2007). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

KEN O’KEEFE,

                        Appellant,

 

vs.                                                                                        Appeal No. 06-0038AP-88B

                                                                                            UCN522006P000038XXXXCV

 

PINELLAS COUNTY ANIMAL SERVICES,

                        Appellee.

____________________________________________/

Appeal from Pinellas County Court

Judge Dorothy L. Vaccaro

 

Robert G. Walker, Jr., Esquire

Attorney for Appellant

 

Michelle Wallace, Assistant County Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Ken O’Keefe (O’Keefe), from the Amended Order Affirming Finding of Animal Control Authority, entered May 17, 2006.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below. 

The record shows that on October 12, 2004, Pinellas County Animal Services confiscated O’Keefe’s two dogs, Rusty and Bonita, after a bite investigation.  Dr. Agnew, of the Animal Control Authority, found that Rusty and Bonita met the criteria of a “dangerous animal,” as defined by the Pinellas County Code, section 14-26, in determining that the dogs should be destroyed in accordance with Code section 14-65.  Pursuant to the Pinellas County Code, O’Keefe requested and was provided with a review hearing.

Following the hearing, the hearing officer[1] entered its order, on November 30, 2004, titled Animal Control Authority’s Findings and Decision on Dangerous Dog Classification of “Rusty” and “Bonita” Owned by Kenneth O’Keefe (Order).  As set forth in the Order, the evidence and testimony showed that the dogs attacked an individual, Mr. Roe, barking, growling, and surrounding him.  Rusty bit Mr. Roe’s arm causing bleeding and resulting in Mr. Roe having to go to the hospital.  The dogs’ unprovoked behavior was observed by a Mr. Jones.  Prior to October 12, 2004, the dogs behaved aggressively towards Mr. Lowe, another neighbor.  On October 12, 2004, the dogs became aggressive when they saw Mr. Lowe through his home window.  Prior to October 12, 2004, Mr. Lowe witnessed that the dogs attempted to attack an individual that escaped onto a neighbor’s car.  Also, on October 12, 2004, another neighbor’s small dog was killed.  Circumstantial evidence showed that Rusty and Bonita may have killed the dog.  The hearing officer affirmed the finding that Rusty and Bonita met the criteria of a “dangerous animal” under sections 14-26(1) and (4),[2] and that the dogs should be destroyed. 

O’Keefe appealed that decision to County Court.  The County Court, sitting in its appellate capacity, affirmed the Order finding that both dogs should be classified as dangerous and be destroyed.  The findings set forth in the County Court’s order, Amended Order Affirming Finding of Animal Control Authority, entered May 17, 2006, mirror the findings entered by the hearing officer.  However, the County Court did find that the injury inflicted upon Mr. Roe did not qualify as a “severe injury.”  O’Keefe seeks review of the County Court decision.     

Before this Court, O’Keefe argues that the County Court erred in affirming the hearing officer when two County Code provisions, section 14-65 and section 14-66, are inconsistent and result in applications that violate substantive and fundamental due process.  This Court is reviewing an administrative matter which has previously been directly appealed to the County Court.  Therefore, the Court’s second-tier certiorari review is limited to whether O’Keefe was afforded procedural due process in the proceedings below and whether the essential requirements of the law were followed.  See Cantrall v. Department of  Highway Safety and Motor Veicles, 828 So.2d 1062, 1063 (Fla. 2nd Dist. App. 2002); see also Hadscock v. Pinellas County Animal Services, 13 Fla. L. Weekly Supp. 522b (Fla. 6th Cir. App. Ct. Jan. 27, 2006). 

Initially, the Court finds that, to the extent O’Keefe is challenging the constitutionality of the Pinellas County Code, such action must be commenced as an original proceeding in Circuit Court.  See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla. 2003); City of Miami v. Sinopoli, 869 So.2d 580, 580 (Fla. 3d DCA 2004); Coral Ridge Golf Course, Inc. v. City of Ft. Lauderdale, 253 So.2d 485, 487 (Fla. 4th DCA 1971).  O’Keefe does not challenge the findings of fact made by the hearing officer, or the County Court, rather argues that the County’s arbitrary application of Code section 14-65, instead of the more lenient section 14-66, violates rules of statutory construction, is unconstitutional, and that its application violates due process.

 

The County’s Code is subject to the same rules of construction as statutes.  See Rinker Materials Corp. v. City of North Miami Beach, 286 So.2d 552, 553 (Fla. 1973). A court’s function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless.  See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 (Fla. 2000).  When two statutory provisions conflict, the specific statute controls over the general statute.  See Palm Beach, 772 So.2d at 1287.  A court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law.  See id. at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

            There are two Code sections pertinent to the issues raised.  Section 14-65, titled “Dangerous animals,” as amended February 16, 1999, provides, in part:

(a)  Within ten business days after receipt of notification that there is sufficient cause to classify the animal as dangerous pursuant to F.S. ch. 767, or this article, by animal services or after receipt of the decision of the animal control authority upholding the classification, or, in the case of an appeal to county court, within one business day after rendition of the order upholding the classification, the owner of the animal must surrender the animal for immediate destruction by animal services.

 

Section 14-65 goes on to describe the procedure to be used for animals previously determined to be dangerous.

            Section 14-66, titled “Attack or bite by dangerous animal; severe injury; penalties; confiscation; destruction,” enacted July 28, 1998, states, in part:

(b)  If an animal that has not been declared dangerous attacks and causes severe injury to or death of any human, the animal shall be immediately confiscated by animal services, placed in quarantine, if necessary, for the proper length of time or held for ten business days after the owner is given written notification pursuant to F.S. §§ 767.12, and this article, and thereafter destroyed in an expeditious and humane manner.

 

The other two classifications, set forth in (a) and (c), apply only to animals previously declared to be dangerous.  O’Keefe argues that, if the County would have applied Section 14-66, the dogs would be spared destruction, since there was not a finding of severe injury, nor a previous declaration that the dogs were dangerous, and that the County is arbitrarily applying Section 14-26 and 14-65 to support its decision to destroy Rusty and Bonita. 

The Court finds that section 14-65 and section 14-66 are not inherently inconsistent, nor that section 14-65 was arbitrarily applied.  While each section provides a distinct classification scheme, they do not conflict.  As this Court must defer to an agency’s interpretation of a statute it is charged with enforcing, unless contrary to law, the Court finds that the Amended Order must be affirmed (or certiorari relief denied).  See Palm Beach, supra; Florida Dept. of Revenue, supra.  Therefore, it is,

            ORDERED AND ADJUDGED that the Amended Order Affirming Finding of Animal Control Authority is affirmed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of December 2006.

 

                                                         ________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

ANTHONY RONDOLINO                                      PETER RAMSBERGER

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Judge Dorothy Vaccaro

 

Robert G. Walker, Jr., Esquire

1421 Court Street, Suite F

Clearwater, FL  33756

 

Michelle Wallace, Assistant County Attorney

315 Court Street

Clearwater, FL  33756

 


[1] Senior Judge Gerard J. O’Brien was sitting as a hearing officer in reviewing this matter.

[2] Section 14-26 sets forth definitions and defines “dangerous animal” to include an animal that:  “(1) Has aggressively bitten, attacked or endangered or has inflicted severe injury on a human being on public or private property;” or, “(4) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.”