Municipal Ordinances: Related Cases
|Morawek v. City of Bonney Lake||--- P.3d ----2014 WL 6061489 (Wash. Ct. App. Nov. 13, 2014)||A woman filed a complaint with the Bonney Lake animal control authority after her neighbor’s dog killed her cat. The animal control officer served plaintiff with paperwork stating that his dog satisfied the definition of a dangerous dog under the Bonney Lake Municipal Code because the dog had killed a domestic animal without provocation while off his owner's property. Plaintiff appealed the designation to the police chief, the city hearing examiner, and the superior court; all of which affirmed the designation. The Washington Court of Appeals, however, held that the hearing examiner's finding that the owner's dog killed the neighbor's cat without provocation was not supported by substantial evidence, as required to uphold a dangerous dog designation, even though the “location” element of the dangerous dog designation was satisfied. The dangerous dog designation was therefore reversed.|
|Robinson v. City of Bluefield||--- S.E.2d ----2014 WL 5032602 (W. Va. Oct. 2, 2014)||An Animal Control Officer responded to a complaint about two dogs at defendant's residence. While investigating the complaint at defendant's residence, the animal control officer was attacked by one of defendant's dogs. The officer sought medical treatment following the incident. The City of Bluefield subsequently brought charges against defendant in its municipal court, charging her with having a dangerous animal in violation of city ordinances. The municipal court ordered the dog killed. On appeal, the Circuit Court of Mercer County affirmed the municipal court's decision. Defendant then appealed the Circuit Court's decision arguing that that Circuit Court erred in concluding that the municipal court had the authority to order the destruction of her dog. After review, the Supreme Court of Appeals of West Virginia agreed with defendant and found that under the plain language of W.Va.Code § 19–20–20, the City of Bluefield was required to set forth satisfactory proof that defendant’s dog was “vicious, dangerous, or in the habit of biting or attacking other persons” before a circuit court or a magistrate, not a municipal court. The court therefore found that ordinance was void to the extent that it allowed a municipal court to order the destruction of the dog. The circuit court's order affirming the municipal court's order to kill Ms. Robinson's dog was therefore reversed. Justice Loughry dissents.|
|Greater Houston German Shepherd Dog Rescue, Inc. v. Lira||--- S.W.3d ----2014 WL 4199165 (Tex. App. Aug. 26, 2014)||A German Shepherd dog owned by the appellees escaped through an open garage door of the appellees' home. Animal control impounded the dog for violations of city ordinances. When the appellees did not redeem the dog, instead of being euthanized, animal control turned the dog over to a rescue society for adoption. The dog was then sterilized and micro chipped. After learning what happened, appellees made a request to transfer the dog to them. When they were refused, the appellees filed suit. The trial court ruled in favor of the appellees on their conversion cause of action and their requests for declaratory and injunctive relief, which ordered appellant to turn the dog over to the appellees. On appeal, the court held that since the appellees did not redeem the dog in compliance with city ordinances, they did not have an entitlement to the dog, which was required to establish a conversion claim. Further, since the rescue organization was a recognized city rescue partner, animal control could lawfully transfer the dog to the rescue organization. The court also held the ordinance setting forth an additional 30-day redemption period did not apply to owners. The appeals court therefore reversed the judgment of the trial court, rendered judgment that appellees take nothing, and remanded to the trial court for further proceedings consistent with this opinion, including an appropriate order restoring possession of the dog to appellant.|
|Cottongame v. State||---S.W.3d---2014 WL 3536801 (Tex. App. July 17, 2014)||Despite an ordinance restricting the number of cats a person can own to three unless a permit was obtained, an officer decided not to enforce the ordinance against the appellant because she was helping with the feral-cat problem in the city and because “she was ... attempting to bring into compliance [her] animal rescue.” When the officer left his job, however, a neighbor complained and an investigation took place. The investigating officer noted everything in the house was covered in cat litter, there was no carpet in the home, and cat urine was on the living-room floor. The smell of cat urine and feces also sickened the officer to the point that he had to leave the house to get fresh air. The State filed a complaint alleging Appellant's violation of the ordinance. A jury found Appellant guilty of the offense as alleged in the complaint and assessed her punishment at $75 plus court costs. Appellant appealed from her conviction for violating a city ordinance regarding the number of animals that may be kept without a permit. In her first issue, the appellant asserted that her conviction violated the Privileges or Immunities Clause of the Fourteenth Amendment because the city “selectively enforced its purported ordinance that prohibits any person from having possession of more than three cats without a permit.” The court, however, found that there was no evidence before the trial court indicating that appellant was singled out for enforcement or that her selection for enforcement was based on anything other than a valid citizen complaint. In her second issue, the appellant argued that the evidence was insufficient to support her conviction. The court, however, found that the evidence was sufficient to support the jury's finding that the appellant was in violation of the ordinance. The lower court’s decision was therefore affirmed.|
|Concerned Dog Owners of California v. City of Los Angeles||123 Cal.Rptr.3d 774 (Cal.App.2 Dist., 2011)||
Dog owners mounted a constitutional challenge to a Los Angeles municipal ordinance that required all dogs and cats within the city to be sterilized. The Court of Appeal held that the ordinance did not violate the owners’ freedom of association rights, free speech rights. or equal protection rights. The court held that it was not unconstitutionally vague, was not outside of the city's police powers, did not vest unfettered discretion in city officials, did not constitute an unconstitutional prior restraint or an unconstitutional taking. Finally, the law did not violate individual liberties under the California Constitution.
|Youngstown v. Traylor||123 Ohio St.3d 132, 914 N.E.2d 1026 (Ohio,2009)||Defendant was charged with two misdemeanors after his unrestrained Italian Mastiff/Cane Corso dogs attacked a wire fox terrier and its owner. Defendant filed a motion to dismiss the charges against him, arguing that YCO 505.19(b) is unconstitutional and a violation of his procedural due process rights. The Supreme Court of Ohio held that the Youngstown municipal ordinance was constitutional because it was “rationally related to the city's legitimate interest in protecting citizens from vicious dogs,” provided “the dog owner with a meaningful opportunity to be heard on the dog's classification,” and did not “label dogs as dangerous or vicious” solely based on their breed type.|
|Dog Federation of Wisconsin, Inc. v. City of South Milwaukee||178 Wis.2d 353, 504 N.W.2d 375 (Wis.App.,1993)||
This appeal is by the Dog Federation of Wisconsin and others who contest a City of South Milwaukee ordinance that imposes restrictions on the ownership and keeping of “pit bulls.” The Federation claims that the “pit bull” aspects of the ordinance are facially invalid because: the definition of “pit bull” is impermissibly vague; the ordinance is overbroad; and the ordinance violates their right to equal protection. The court found that reference to recognized breeds provides sufficient specifics to withstand a vagueness challenge. With regard to equal protection, the court held that the ordinance is founded on “substantial distinctions” between the breeds of dog covered by the ordinance and other breeds of dog. Moreover, the ordinance is “germane” to the underlying purpose of the ordinance to protect persons and animals from dangerous dogs. Finally, the ordinance applies equally to the affected class of persons owning or keeping pit bulls.
|State v. Mortensen||191 P.3d 1097 (Hawai'i App., 2008)||
Defendant found guilty of Cruelty to Animals under a State statute after firing a pellet gun at/toward a cat which was later found with and died from a fatal wound. On Defendant’s appeal, the Intermediate Court of Appeals of Hawai’i affirmed the lower court’s decision, finding that evidence that Defendant knowingly fired the pellet gun at a group of cats within the range of such a gun was sufficient to find that Defendant recklessly shot and killed the cat. In making its decision, the Court of Appeals further found that the legislature clearly did not intend for a cat to be considered vermin or a pest for purposes of the relevant State anti-cruelty statute’s exception, and instead clearly intended for a cat to be considered a “pet animal.”
|Kanab City v. Popowich||194 P.3d 198, (Utah App.,2008)||
In this Utah case, the defendant appeals the decision of the district court finding him guilty on four counts of failing to maintain a city dog license and one count of running an illegal kennel. In December 2005, a Kanab City animal control officer responded to numerous complaints of barking dogs at Defendant's residence. This officer observed four dogs over the age of three months on the premises during two separate visits to Defendant's home that month and on subsequent random visits in the following months. On appeal, defendant argued that the city ordinance on which his conviction for operating an illegal kennel is based is unconstitutionally vague. This court disagreed, finding that an ordinary person reading the ordinance would understand that, in order to keep more than two dogs over the age of three months in the same residence, a citizen must register for a kennel permit.
|Garza v. State||2007 Tex. App. LEXIS 8953||Carrollton, Texas municipal code prohibited the keeping of more than three pets on property within the city limits. Yvette Garza, a member of an animal rescue organization, challenged the determination that she had violated the city code by keeping more than three dogs. She argued that the code was unconstitutionally vague and that her actions were necessary. The court held that although the term "keep" was not defined in the statute, a person of ordinary intelligence would understand the law because "keep" has a common sense meaning. Garza also failed to produce evidence proving when the scheduled euthanasia of the dogs was going to occur, she therefore failed to establish the elements of her necessity defense.|
|Humane Society-Western Region v. Snohomish County||2007 WL 2404619 (W.D. Wash)||
Plaintiff Humane Society Western Region (d/b/a "Happy Paws Farm") filed this lawsuit against Snohomish County alleging provisions of the county code regulating barking are unconstitutionally vague in violation of the state and federal constitutions, and that the SCC provision governing the temporary housing of animals in shelters violates its federal constitutional right to substantive due process. Plaintiff argued that the noise ordinances invite subjective evaluation resulting in arbitrary enforcement because the code contains no reference to identifiable levels of noise, only to noises that are repetitive. The absence of identifiable levels of noise, or decibel levels, does not render the noise ordinances unconstitutionally vague. Plaintiff fails to demonstrate that this method is not easily understood by individuals of ordinary intelligence or that it fails to protect against arbitrary enforcement. This opinion was Affirmed in Part, Reversed in Part by Humane Society Western Region v. Snohomish County, 357 Fed.Appx. 144 (9th Cir., 2009).
|Webb v. Amtower||2008 WL 713728 (KS,2008 (not reported))||
The court applied the forum's traditional lex loci conflict-of-laws rule to determine what jurisdiction's law governed for both damages and recovery of possession. The "place of injury" for the tort/damages issue was Kansas since that's where the contract was signed. The court remanded the case to determine the law of the place where the dog was found to determine the right-to-possession since that was a personal property issue.
|Luper v. City of Wasilla||215 P.3d 342 (Alaska,2009)||
Plaintiff appealed a grant of summary judgment in favor of the City of Wasilla, Alaska's enforcement action over zoning ordinances. The facts stem from the City's denial of plaintiff's application for a use permit in 2005 to run an eighteen-dog kennel. Plaintiff argued on appeal that Wasilla's former three-dog limit infringed on her property rights in both her land and her dog. This court agreed with the lower court that the provision here bore a "fair and substantial relationship" the government purposes of controlling dog noise, reducing dog odor and pollution, and preventing loose dogs. Further, the court found that it was not reasonable for the plaintiff to rely on the city clerk's statement that she only needed a kennel license to operate a hobby kennel.
|City of La Marque v. Braskey||216 S.W.3d 861 (Tex. Ct. App. 2007)||
A city's ordinance did not allow a kennel, defined as a place containing more than four dogs and cats, to be operated within 100 feet of a residence, school, or church. A woman kept as many as 100 cats at a time in a shelter within 100 feet of three homes, and she was criminally charged under the ordinance. The court found that the ordinance did not violate the plaintiff's constitutional rights because there was no right to use her property in any manner that she chose.
|Idaho Dairymen's Ass'n, Inc. v. Gooding County||227 P.3d 907 (Idaho 2010)||
After Gooding County adopted an ordinance regulating confined animal feeding operations (CAFOs), cattle ranching and dairy associations brought suit challenging the constitutionality and validity of provisions within the ordinance and seeking declaratory and injunctive relief. The district court entered summary judgment in favor of the county, and the associations appealed. The Idaho Supreme Court affirmed the district court's findings.
|State v. Mita||245 P.3d 458 (Hawai', 2010)||
Defendant, an owner of two dogs, both boxers, was charged with animal nuisance in violation of Revised Ordinances of Honolulu section 7-2.3. Mita’s counsel objected to the oral charge at trial, arguing "that the arraignment is [not] specific enough to put the defendant specifically on notice of what part of the . . . ordinance she’s being charged with." The district court denied Mita’s motion for judgment of acquittal and sentenced her to pay a $50 fine. Mita appealed. The Intermediate Court of Appeals vacated the judgment of the district court. On certiorari, the Hawaii Supreme Court reversed the judgment of the Intermediate Court of Appeals and remanded the case, finding that the definition of animal nuisance in section 7-2.2 does not create an additional essential element of the offense; and, second, the definition of "animal nuisance" is consistent with its commonly understood meaning.
|Wilson v. City of Eagan||297 N.W.2d 146 (Minn., 1980)||
At issue is an Eagan, Minnesota ordinance that provides an impounded animal must be held for five days before being destroyed. In direct contravention of the ordinance and statute, Eagan animal warden Cary Larson and police officer Robert O'Brien, in performance of their duties, intentionally killed Timothy Wilson's pet cat on the same day it was properly impounded. By first finding that punitive damages were not precluded by statute against municipal employees, the court then examined whether punitive damages were appropriate in this case. While the court did not find that Larson acted with malice, it did find that his conduct in violating the statute showed a willful disregard for property rights.
|Com. v. Raban||31 A.3d 699 (Pa.Super., 2011)||
Defendant was convicted of violating the dog law for failing to properly confine his dog after it escaped from his property and attacked another dog. On appeal, the Superior Court affirmed, holding that 1) scienter was not a necessary element of the violation because the statutory mandate to confine a dog was stated absolutely, and 2) a dog attack is not a de minimis infraction that would preclude a conviction.
|People v. Strobridge||339 N.W.2d 531 (Mich.App.,1983)||
In this Michigan case, the defendant appealed his conviction of keeping more than three dogs on his premises without a kennel license in violation of Grandville ordinances, § 21, No. 159-A. On appeal, defendant asserted that the trial court improperly denied his “nonconforming use” defense; that is, he claimed the ordinance at issue was a zoning ordinance rather than a regulatory ordinance. Relying on a case that held that prior nonconforming use (where a person has been using property in a nonconforming way prior to the adoption of the zoning ordinance), the court found that indeed defendant was entitled to present such a defense, as he owned the dogs on the property prior to adoption of the ordinance. Defendant next argued that the trial court erred in ruling that the ordinance was a constitutional exercise of the city's police power. While the court observed that criminal ordinances are to be more strictly construed than ordinances involving a civil penalty, it still found that the ordinance at issue was a valid exercise of police power, especially considering that a previous case had upheld a similar ordinance that limited ownership to only two dogs.
|City of Water Valley v. Trusty||343 So.2d 471 (Miss. 1977)||Appellants filed b ill of complaint seeking to enjoin enforcement of city's dog leash ordinance. The court summarily held that Mississippi Code Annotated s 21-19-9 (1972) authorizes municipalities to regulate the running at large of animals of all kinds. The ordinance here was enacted pursuant to that authority, it meets the constitutional requirements, and the demurrer should have been sustained on that question.|
|Dehart v. Town of Austin||39 F.3d 718 (7th Cir. 1994)||
The breeder was in the business of buying, breeding, raising, and selling of exotic and wild animals. The town passed an ordinance making it unlawful to keep certain wild animals, and the breeder filed suit challenging the constitutionality of a local ordinance. On appeal, the court affirmed the grant of summary judgment in favor of the town because: (1) the ordinance was not preempted by the Animal Welfare Act; (2) the ordinance was not an impermissible attempt to regulate interstate commerce in violation of the Commerce Clause; and (3) the town did not deprive him of his property interest in his federal and state licenses without due process.
|Becker v. State Farm Mut. Auto. Ins. Co.||416 N.W.2d 906 (Wis.,1987)||
Motorist sued dog owner after he was injured in a car accident allegedly caused by dog. The Court of Appeals held that the “injury by dog” statute creates strict liability for any injury or damage caused by dog if owner was negligent (with public policy exceptions). Here, the dog owner was not strictly liable because he was not negligent when his dog escaped from its enclosure.
|Village of Carpentersville v. Fiala||425 N.E.2d 33 (Ill.App., 1981)||
In this Illinois case, the defendant, Joseph R. Fiala, appealed a violation of the Village Code of Carpentersville, which prohibited the ownership of more than two adult dogs at his single-family residence. In a hearing, one of defendant's neighbor's testified that the defendant was maintaining 15 large red dogs (Irish setters). The Illinois Appellate Court held that the village had statutory authority to enact any ordinance necessary for the promotion of health, safety and welfare of the community and that a municipality may also pass ordinances that "define, prevent, and abate nuisances." Further, the court also held that the village ordinance is not unconstitutional as violative of equal protection based on a classification between single-family residences and single-family units within multiple housing buildings, where such considerations of indoor and outdoor space, density, and proximity to others, noise levels, and structural differences, are rationally related to the object of the ordinance.
|Peoria County v. Capitelli||494 N.E.2d 155 (Ill.App. 3 Dist.,1986)||
This Illinois case concerns the appeal of a conviction for allowing a cat to run at large in violation of an ordinance enacted by the plaintiff, Peoria County. The defendant contends on appeal that the county as a non-home-rule unit of government lacked the authority to enact the ordinance. The court disagreed, finding the counties were given the express power to establish animal pounds and to dispose of stray animals pursuant to the provisions of the Impounding and Disposition of Stray Animals Act which concerns pet dogs and cats, and the Illinois Animal Control Act, which deals with stray animal control, rabies protection, liability for animal bites and related topics. More interesting is the dissent's position, which finds that the statute makes no mention of the power to regulate cats. Moreover, there can be no logical implication of authority to regulate cats running-at-large from the delegation of authority to regulate dogs running-at-large.
|City of Rolling Meadows v. Kyle||494 N.E.2d 766 (Ill.App. 1 Dist.,1986)||
In this Illinois case, the Plaintiff, City of Rolling Meadows, brought an action against defendant for keeping an undomesticated animal, a monkey, in her home in violation of a city ordinance. The lower court entered judgment in favor of plaintiff. At issue on appeal is the construction and application to be given the phrase “other than domesticated house pets” as set forth in the ordinance in question. The court was required to adopt the common and approved usage of the term 'domesticated.' The court concluded that the evidence presented established as a matter of law that Yondi is a domesticated animal. Thus, the trial court erred in finding defendant in violation of ordinance 4-28 because the monkey was a domesticated house pet.
|Hoesch v. Broward County||53 So.3d 1177 (Fla.App. 4 Dist., 2011)||
A Broward County, Florida ordinance defines a dangerous dog as “any dog that . . . [h]as killed or caused the death of a domestic animal in one incident.” Plaintiff Brian Hoesch’s dog escaped from Hoesch’s backyard and attacked and killed a neighbor’s cat. Prior to this incident, the dog had never been declared “dangerous” by any governmental authority. Hoesch requested a hearing after Broward’s animal control division notified Hoesch of its intent to destroy his dog. After a judgment in favor of Broward County, Hoesch contends that both county ordinances conflict with state law, section 767.11(1)(b), which defines a “dangerous dog” as any dog that “[h]as more than once severely injured or killed a domestic animal . . . .” The District Court of Appeal of Florida, Fourth District, concluded “that Broward County ordinance sections 4-2(k)(2) and 4-12(j)(2) are null and void insofar as they conflict with state law.”
|State of Florida v. Peters||534 So.2d 760 (Fla.App. 3 Dist. 1988).||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. 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 or furnish other evidence of financial responsibility, register their pit bulls with the City, and confine the dogs indoors or in a locked pen. The court dismissed defendants claims that the ordinance violates equal protection and due process, and that the ordinance's definition of a pit bull is on its face unconstitutionally vague.|
|Settle v. Commonwealth||55 Va.App. 212, 685 S.E.2d 182 (Va.,2009)||
The defendant-appellant, Charles E. Settle, Jr., was convicted of two counts of inadequate care by owner of companion animals and one count of dog at large under a county ordinance, after Fauquier County Sherriff's officers were dispatched to his home on multiple occasions over the course of one calendar year in response to animal noise and health and safety complaints from his neighbors. Consequently, all of the affected dogs were seized from Settle and relocated to local animal shelters. The trial court also declared three of the animals to be dangerous dogs pursuant to another county ordinance. The Court of Appeals of Virginia held that: (1) because the forfeiture of dogs was a civil matter the Court of Appeals lacked subject matter jurisdiction and was not the proper forum to decide the case; (2) that Settle failed to join the County as an indispensible party in the notice of appeal from conviction for the county ordinance violation; and (3) that the evidence was sufficient to identify Settle as the owner of the neglected companion animals.
|Goodell v. Humboldt County||575 N.W.29 486 (Iowa 1998)||
The issue of county versus local control over livestock regulations came to a head when the Iowa Supreme Court invalidated a series of ordinances that had been enacted by the Humboldt County Board of Supervisors to add additional regulations to the livestock industry and to address problems created by confined animal feeding operations in the county. The court ruled that the ordinances were inconsistent with state law and invalid under the doctrine of implied preemption.
|Merced v. Kasson||577 F.3d 578 (C.A.5 (Tex.),2009)||
Plaintiff José Merced, a Santeria Oba Oriate, or priest, brought action against the City of Euless alleging that city ordinances prohibiting the keeping of animals for slaughter and the slaughtering of animals prevented him from performing animal sacrifices essential to Santeria religious practice. The United States District Court for the Northern District of Texas ruled in favor of the city, but denied its request for attorney fees. The Court of Appeals reversed the decision in favor of the city and affirmed the denial of attorney fees. The court found that the city did not prove that the burden it placed on the plaintiff advanced a compelling interest and was the least restrictive means of doing so. In fact, the Court noted that prior to the ban, Merced had performed these sacrifices for sixteen years without creating health hazards or unduly harming any animals. The City's purported interest was further undermined by the fact that hunters are allowed to butcher dead animals at their homes. Thus, Euless failed to assert a compelling governmental interest in support of its ordinances that burden Merced's religious conduct.
|Zageris v. Whitehall||594 N.E.2d 129 (Ohio App. 10 Dist.,1991)||
The single-family residence property owner and owner of dogs kept on property filed suit for declaratory judgment, petition for habeas corpus, and civil rights claims against city based on city's enforcement of ordinance prohibiting number of dogs on property. He then appealed the ruling in favor for the city. The Ohio Court of Appeals held that the local ordinance limiting number of dogs on single family property was a nuisance and not zoning measure and consequently a valid exercise of city's police power.
|State v. Beckert||61 A.2d 213 (N.J. 1948)||
This New Jersey case involved an appeal of a borough ordinance that limited ownership to three licensed dogs. The prosecutrix was found to have been keeping 39 dogs. The court found that she presented no evidence that she was operating a kennel, nor was the ordinance unreasonable in its restriction.
|State v. Johnson||628 P.2d 789 (Or. 1981)||
A defendant was convicted in district court of violating a city ordinance by keeping a vicious dog. The Court of Appeals held that the word "trespasser" in the city ordinance was to be used in its ordinary context, that a child who rode his bicycle onto the defendant's driveway was a trespasser, that there were no issues of consent involved, and that the trespasser exception applied even to areas on the defendant's property where the dog was not under the owner's control.
|Rhoades v. City of Battle Ground||63 P.3d 142 (Wash. 2002)||
Exotic pet owners challenged on equal protection grounds an ordinance that banned exotic pets, yet allowed dangerous dogs under certain conditions. The court, in upholding the ordinance, found a rational relationship between the regulation and the public interest in preventing exotic pet attacks.
|City of Marion v. Schoenwald||631 N.W.2d 213 (S.D.,2001)||
To keep excessive numbers of large dogs from becoming a public nuisance, the City of Marion, South Dakota passed an ordinance that, among other things, limited households to four dogs, only two of which could weigh over 25 pounds. Schoenwald owned three dogs: one shepherd-collie mix weighing 75 pounds and two golden retrievers, weighing 30 pounds and 20 pounds. She was then notified that by housing three dogs weighing over 25 pounds she was in violation of the ordinance. She failed to comply with the City's order to remove one dog and was issued a citation. The Supreme Court reversed the lower court's ruling in Schoenwald's favor and found that South Dakota law permits municipalities broad power to regulate the keeping of dogs; thus the weight limitation included in the City's comprehensive pet ordinance was within its authority.
|Pless v. State||633 S.E.2d 340 (Ga. App., 2006)||In this Georgia case, the defendant was convicted by a jury in the trial court of two counts of failure to keep an animal under restraint and one count of allowing an animal to become a public nuisance. Defendant appealed, challenging the sufficiency of the evidence. The appellate court found that the evidence showed that in the months prior to the July 14 and August 1 incidents, Pless's dogs were repeatedly found loose in neighbors' yards and garages. Accordingly, evidence supported the conviction on the charge of allowing an animal to become a public nuisance under § 3-4-7(5). ("Public nuisance" is defined, among other things, as any animal which "[i]s found repeatedly at large."). On certiorari review, the Georgia Supreme Court in State v. Pless, 646 S.E.2d 202 (Ga. 2007) reversed judgment of Pless v. State, 633 S.E.2d 340 (Ga. App. 2006), and the case was then sent to Pless v. State, 648 S.E.2d 752 (Ga. App. 2007) on remand.|
|Barnes v. City of Anderson||642 N.E.2d 1004 (Ind.App. 2 Dist. 1994)||
Virginia Barnes and Jan Swearingen appealed a trial court's decision in favor of the City of Anderson, Ind., granting a permanent injunction enjoining the women from keeping and maintaining Swearingen's pet Vietnamese pot-belly pig, Sassy, and ordering Sassy's removal from the residence. Appeals Court found for pig owner, holding that the phrase "raising or breeding" in an Anderson livestock ordinance refers to a commercial enterprise and not to the keeping of pigs as pets.
|Hendricks v. Barlow||656 N.E.2d 481 (Ind. 1995)||
Landowners were held in violation of a zoning regulation, established under a Hendricks County ordinance, which forbade having wild animals residing on residential property. The trial court held that the county could not pass such a law, since it would be preempted by state and federal law. However, on appeal, this Court found that federal (the AWA) and state law did not preempt the County from passing such ordinances. The trial court erroneously attempted to interpret the law when it was not ambiguous, and, thus, preemption by state and federal law should not have been found. Thus, the zoning regulation was permitted.
|State v. Maynard||673 S.E.2d 877 (N.C.App.,2009)||
In this North Carolina case, defendant challenged her conviction for violating that city ordinance that limited the number of dogs greater than five months of age that can be kept on premises within the city limits to three. After conviction, defendant appealed the constitutionality of the ordinance, arguing that it was “arbitrary and without any justification” and “fails to stand upon a rational basis.” This Court disagreed. First noting that legislative enactments have a presumption of constitutionality, the Court held that the town of Nashville enacted the ordinance for the purpose of reducing noise and odor problems. These objectives are clearly legitimate public purposes, and the limitation on the number of dogs is directly related to those objectives.
|Vanater v. Village of South Point||717 F. Supp. 1236 (D. Ohio 1989)||
Village criminal ordinance, which prohibited the owning or harboring of pit bull terriers or other vicious dogs within village limits, was not overbroad, even though identification of a "pit bull" may be difficult in some situations, as there are methods to determine with sufficient certainty whether dog is a "pit bull.".
|Jefferson v. Mirando||719 N.E.2d 1074 (Ohio Co.,1999)||
In this Ohio case, the defendant was charged with violating ordinance setting maximum number of dogs or cats that a person could "harbor" per family dwelling unit. The court first observed that the village of Jefferson's ordinance benefits from a strong presumption of constitutionality, and defendant Mirando bears the burden of demonstrating unconstitutionality of this ordinance beyond any remaining fair debate on the issue. The court held that ordinance was not unconstitutionally vague and did not conflict with state statutes regulating kennels.
|American Dog Owners Ass'n, Inc. v. Dade County, Fla.||728 F.Supp. 1533 (S.D.Fla.,1989)||
Associations of dog owners sued Dade, County, Florida seeking declaratory judgment that an ordinance that regulated “pit bull” dogs was unconstitutionally vague. Plaintiffs contend that there is no such breed as a pit bull, but rather a three breeds that this ordinance has mistakenly lumped together. The District Court held that ordinance sufficiently defined “pit bull” dogs by specifically referencing three breeds recognized by kennel clubs, including a description of the characteristics of such dogs, and provided a mechanism for verification of whether a particular dog was included. The uncontradicted testimony of the various veterinarians reflected that most dog owners know the breed of their dog and that most dog owners look for and select a dog of a particular breed.
|Bloomfield Estates Improvement Ass'n, Inc. v. City of Birmingham||737 N.W.2d 670 (2007)||
In this Michigan case, a property association brought an action against the city of Birmingham to enforce a deed restriction. The association alleged that the city's plan to build a dog park violated the residential use restriction in the deed. The Circuit Court of Oakland County granted the city's motion for summary disposition; the Court of Appeals reversed. The Supreme Court held that the city's use of the lot as a “dog park" (a fenced area where dogs could roam unleashed with their owners) did indeed violate the deed restriction limiting use of land to “strictly residential purposes only.” Further, despite the association's failure to contest the previous use of the land as a vacant park, the association could contest the dog park violation because the former use was deemed a "less serious" violation.
|Commonwealth v. Gardner||74 Pa. D. & C. 539 (Pa. 1950)||
In this Pennsylvania case, a new resident moved next door to a woman who had been operating a kennel for years. He then complained to the borough council which then amended an ordinance such that the keeping of more than six dogs over six months of age was made a nuisance per se, illegal and a violation of the ordinance. The court held that it did not believe that the borough council or the court had the power or the authority to determine that more than a certain number is a nuisance per se, and less than that number is a nuisance only upon proof of the same being a nuisance. "In other words, it is our opinion that the borough council, in the exercise of its police power may not unreasonably and arbitrarily prohibit things which were not nuisances at common law, and their declaration in an ordinance that a thing is a public nuisance does not make it so, if it is not a nuisance in fact . . ."
|State v. Brown||771 N.W.2d 267 (N.D.,2009)||
In this North Dakota case, the defendant appeals from a criminal judgment finding she violated the Cass County Animal Control Ordinance after her neighbors reported her barking dogs. In her first appeal ground, Brown contended that the Ordinance constituted an unconstitutional delegation of power. The court disagreed, finding that Cass County adopted a home rule charter and thus had the power to create criminal penalties for violations of ordinances. Brown next argued that the legislature “has statutorily prohibited the county from attempting to regulate dogs as public nuisances.” Since the state has defined certain “dog activities” that constitute a public nuisance, the county is precluded from declaring any other dog-related activity a public nuisance according to defendant. The court found that this broad interpretation would preclude action by the county if the state has exercised any authority and would virtually eliminate the county's authority granted by home-rule authority. The court also rejected Brown’s argument that the Ordinance is unconstitutionally vague. The Ordinance provides that an animal that “barks ... in an excessive or continuous manner” is a public nuisance. The court held that its holding in Kilkenny, 2007 ND 44, ¶¶ 20-25, 729 N.W.2d 120, is controlling here, where the words excessive, continuous, or untimely have a common understanding and are not vague.
|American Dog Owners Ass'n v. City of Yakima||777 P.2d 1046 (Wash.1989)||
In this Washington case, plaintiff brought suit against the City of Yakima challenging an ordinance that banned “pit bulls” dogs. The Superior Court, Yakima County, granted city's motion for summary judgment, and plaintiffs appealed. Plaintiffs first argued that the ordinance is vague because a person of ordinary intelligence cannot tell what is prohibited. The Supreme Court disagreed, finding that the City used adequate standards for identification in the professional standards and illustrations to show that a particular dog meets the professional standard. Thus, the Court found that the ordinance gave sufficient notice of what was conduct prohibited. Summary judgment for the City was affirmed.
|City of Richardson v. Responsible Dog Owners of Texas||794 S.W.2d 17 (Tex. 1990).||
City's animal control ordinance banning the keeping of pit bulls was not preempted by state Penal Code provisions governing the keeping of vicious dogs.
|Sawh v. City of Lino Lakes||800 N.W.2d 663 (Minn.App.,2011)||
The city council ordered the destruction of a dog after finding it to be a dangerous animal and the owner appealed. The Court of Appeals held that procedural due process required that the owner should have been given a meaningful opportunity to contest the declaration of the dog as a “potentially dangerous animal” before it was declared a “dangerous animal” under the city ordinance.
|Pray v. Whiteskunk||801 N.W.2d 451 (S.D., 2011)||
In this South Dakota case, the plaintiff suffered a broken knee after Defendant's Rottweiler brook loose from its owner and ran toward the street, causing plaintiff to fall. Plaintiff brought an action for damages against both the dog owner and the city, specifically alleging the the city knew the dog was dangerous and failed to enforce its vicious animal ordinance. On appeal of the granting of summary judgment for the city, this court found that plaintiff failed to establish that the action taken by the city caused the harm to Pray or exposed her to greater risks, thereby leaving her in a worse position than she was in before the city took action. While this Court found that the city had actual knowledge of the dog's dangerousness, this alone is insufficient.
|Akron ex rel. Christman-Resch v. Akron||825 N.E.2d 189 (Ohio, 2005)||
City of Akron, Ohio cat owners filed suit against city, its mayor, and city council president, seeking declaratory judgment that new city code sections, relating to the trapping and euthanization of free-roaming cats, were unconstitutional. After the Court of Common Pleas, Summit County granted summary judgment to defendants, the cat owners appealed. The Court of Appeals held that the city's ordinances relating to the trapping and euthanization of free-roaming cats did not violate cat owners' substantive due process rights. Further, the ordinances which allowed a cat to be euthanized after three business days following the date of impoundment, did not violate cat owners' procedural due process rights or right to equal protection. Finally, the ordinances, which allowed city to seize free-roaming cats in response to complaints, did not violate the Fourth Amendment and city's actions were covered by sovereign immunity.