Municipal Ordinances: Related Cases
|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.
|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.|
|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.
|Williams v. Lexington County Bd. of Zoning Appeals||413 S.C. 647, 776 S.E.2d 749 (S.C. Ct. App. 2015)||Appellant sought review of the circuit court's order upholding the Lexington County Board of Zoning Appeals' unanimous decision that the county zoning ordinance prohibits Appellant from operating a dog grooming business at her home. The appeals court found that the word kennel, as used in the Lexington County Zoning Ordinance for Resident Local 5 (RL5), included dog grooming. Since Appellant’s dwelling was zoned RL5 and the ordinance prohibited kennels in RL5, the appeals court upheld the circuit court’s decision.|
|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.
|Warren v. Delvista Towers Condominium Ass'n, Inc.||49 F.Supp.3d 1082 (S.D. Fla. 2014)||In its motion for summary judgment, Defendant argues Plaintiff’s accommodation request under the Federal Fair Housing Act (the “FHA”) to modify Defendant's “no pet” policy was unreasonable because Plaintiff's emotional support animal was a pit bull and pit bulls were banned by county ordinance. In denying the Defendant’s motion, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice. However, in line with US Department of Housing and Urban Development notices, the court found genuine issues of material fact remained as to whether the dog posed a direct threat to members of the condominium association, and whether that threat could be reduced by other reasonable accommodations.|
|Wallen v. City of Mobile||--- So.3d ----, 2018 WL 3803749 (Ala. Crim. App. Aug. 10, 2018)||Wallen appeals her convictions for six counts of violating Mobile, Alabama's public nuisance ordinances. The nuisance convictions stem from an anonymous complaint about multiple barking dogs at Wallen's property. After receiving the tip in March of 2016, an animal control officer drove to the residence, parked across the street, and, as he sat in his car, heard dogs bark continuously for approximately ten minutes. That same day, a local realtor went to house that was for sale behind Wallen's property and heard an "overwhelming" noise of dogs barking continuously for 30-45 minutes. For almost a year, officers received complaints about noise coming from Wallen's house. In May of 2017, Wallen entered a plea of not guilty for multiple charges of violating the public nuisance ordinance in Mobile Circuit Court. She also filed a motion to dismiss, arguing that the Mobile City Code was unconstitutionally vague. Her motion was later denied, and a jury trial was held where Wallen was found guilty of six counts of violating Mobile's public-nuisance ordinance. On appeal, Wallen first argues that the public nuisance ordinance is unconstitutionally overbroad because it regulates without reference to time, place, and manner. However, the court found that Wallen did not establish how the overbreadth doctrine applied to her case and how the ordinance was unconstitutional. As to her next vagueness challenge, Wallen contended that the ordinance had no objective standards to determine whether a dog's barking is disturbing or unreasonable. This court disagreed, finding the statute defines what are "disturbing noises" (which specifically states barking), and other courts previously established that the term "habit" in a dog-barking statute is not vague. Finally, the found that Wallen's last general argument, that the code is unconstitutional as applied to her, did not satisfy court rules with respect to issues presented and support with authority on appeal. The judgment of the lower court was affirmed.|
|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.
|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.".
|Toledo v. Tellings||871 N.E.2d 1152 (Ohio, 2007)||
In this Ohio case, the defendant, who owned three pit bull type dogs, was convicted in the Municipal Court, Lucas County, of violating the Toledo city ordinance that limited ownership to only one pit bull per household. On appeal by the City, the Supreme Court found the state and the city have a legitimate interest in protecting citizens against unsafe conditions caused by pit bulls. The evidence presented in the trial court supports the conclusion that pit bulls pose a serious danger to the safety of citizens. The statutes and the city ordinance are rationally related to serve the legitimate interests of protecting Ohio and Toledo citizens.
|Texas Attorney General Opinion No. JC-0048||Tex. Atty. Gen. Op. JC-0048||
Texas Attorney General Opinion regarding the issue of whether city ordinances are preempted by statutes that govern the treatment of animals. Specifically, the opinion discusses pigeon shoots. The opinion emphasizes that organized pigeon shoots are prohibited under Texas cruelty laws but that present wildlife laws allow the killing of feral pigeons.
|Tarquinio v. City of Lakewood, Ohio (unpublished)||Slip Copy, 2011 WL 4458165 (N.D.Ohio)||
Plaintiffs sought a declaratory judgment from the court that Lakewood City Ordinance (“LCO”) 506.01, which bans pit bull dogs or those dogs with "appearance and characteristics of being predominantly of such breeds," unconstitutional under the Ohio Constitution Home Rule provisions. In this motion, plaintiffs argue that LCO 506 conflicts with and impermissibly expands the provisions of Ohio Revised Code § 955.22. The court found that while § 955.22 outlines requirements that must be met by a person who houses vicious dogs, including all pit bulls, it does not explicitly permit pit bulls. The court found that the General Assembly intended to allow municipalities to regulate the possession of pit bulls.
|Stephens v. City of Spokane||Slip Copy, 2007 WL 3146390 (E.D.Wash.)||
Before the court here is defendant's motion for summary judgment and plaintiff's motion to certify a class. Plaintiffs claim is based on Spokane's "barking dog" ordinance" for which they were each issued an infraction by animal control officers. Plaintiffs contend the ordinance is void for vagueness. The court disagreed, finding that the ordinance has incorporated the reasonableness standard and is presumptively constitutional. In the ordinance, the citizen of average intellect need not guess at the prohibition of allowing an animal to unreasonably disturb persons by “habitually barking, howling, yelping, whining, or making other oral noises.”
|State v. Taffet (unpublished)||Not Reported in A.2d, 2010 WL 771954 (N.J.Super.A.D.)||
The State of New Jersey, through the Borough of Haddonfield, appeals from the final judgment of the Law Division, which reversed the finding of the municipal court that defendant's dog is a potentially dangerous dog pursuant to N.J.S.A. 4:19-23(a) as well as the imposition of certain measures to mitigate any future attacks. Defendant, a resident of Haddonfield, owns, breeds, and shows four Rhodesian Ridgebacks kept at his home in a residential neighborhood. The Superior Court concluded that the Law Division's did not properly defer to the trial court's credibility determinations and were not supported by sufficient credible evidence. The court found that the dog's dual attacks causing bodily injury to two individuals were undisputed, and along with evidence of more recent intimidating activity in the neighborhood, the municipal court could have reasonably concluded that the dog posed a more serious threat to cause bodily injury to another.
|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.”
|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.
|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.
|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.
|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.
|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 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.
|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.
|Savage v. Prator||921 So.2d 51 (La., 2006)||
Two Louisiana "game clubs" filed an action for declaratory judgment and injunctive relief against parish commission and parish sheriff's office after being informed by the sheriff that an existing parish ordinance prohibiting cockfighting would be enforced. The clubs contended that the ordinance was violative of the police power reserved explicitly to the state (the state anti-cruelty provision is silent with regard to cockfighting). The First Judicial District Court, Parish of Caddo granted the clubs' request for a preliminary injunction. The Supreme Court reversed the injunction and remanded the matter, finding that the parish ordinance prohibiting cockfighting did not violate general law or infringe upon State's police powers in violation of Constitution.
|Rosenfeld v. Zoning Bd. of Appeals of Mendon||940 N.E.2d 891 (Ma. App., 2011)||
A zoning board granted landowner’s application for a special permit, and neighbor property owners appealed. The Appeals Court of Massachusetts held that defendant’s proposed use of land for horse stables fit within the agricultural use exception of the zoning ordinance and by-laws, and that plaintiffs had standing to enforce a deed restriction on defendant’s property.
|Robinson v. City of Bluefield||764 S.E.2d 740 (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.|
|Roalstad v. City of Lafayette||363 P.3d 790 (Col. Ct. App. Div. III , 2015)||The origins of this matter began when the City of Lafayette (City) charged Defendant/Appellant with violating its municipal ordinance regarding vicious animals. Defendant/Appellant requested a jury trial pursuant to C.R.S.A. § 16-10-109. The municipal court denied the request. Defendant/Appellant appealed the district court's dismissal of her C.R.C.P. 106 and declaratory judgment action in which she challenged the municipal court's denial of her request for a jury trial. The sole issue on appeal was whether the offense for which Defendant was charged under the City's ordinances was a “petty offense” under C.R.S.A. § 16-10-109, which would entitle her to a jury trial under that statute. Since the municipal ordinance imposed fines that met that definition and because it was not a crime at common law, the court concluded the offense met the definition of “petty offense;” Defendant/Appellant was therefore entitled to a jury trial in municipal court pursuant to C.R.S.A. § 16-10-109. Further, because the ordinance and the state Dangerous Dog law were counterparts and because the ordinance was criminal in nature, the vicious animal offense was not exempt from the “petty offense” definition. Accordingly, the district court’s order was reversed.|
|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.
|Puppies 'N Love, v. City of Phoenix||116 F. Supp. 3d 971 (D. Ariz. 2015)||Defendant City of Phoenix passed an ordinance that prohibited pet stores from selling dogs or cats obtained from persons or companies that bred animals; pet stores could only sell animals obtained from animal shelters or rescue organizations. Puppies 'N Love operated a pet store in Phoenix that sold purebred dogs obtained from out-of-state breeders. Puppies 'N Love and its owners sued the City, claiming primarily that the Ordinance violated the dormant Commerce Clause of the United States Constitution by closing the Phoenix market to out-of-state breeders and giving an economic advantage to local breeders. All parties, including Intervenor Humane Society of the United States (“HSUS”), filed motions for summary judgment. The District Court granted the Intervenor’s and the city’s motions, but denied Puppies ‘N Love’s motion, thereby upholding the 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.
|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.|
|Perfect Puppy, Inc. v. City of East Providence||98 F.Supp.3d 408 (D.R.I. 2015)||Due to public concern about puppy mills, City passed an ordinance banning pet stores located within its limits from selling dogs and cats unless those animals were owned by a city animal shelter or animal control agency, humane society, or non-profit rescue organization and the pet store maintained those animals for the purpose of public adoption. In its Amended Complaint, Plaintiff, a pet store, raised numerous challenges to the ordinance under the Constitutions of the United States and of Rhode Island, claiming that it violated the dormant Commerce Clause, the Contract Clause, the Takings Clause, and Plaintiff's equal protection and due process rights, and that it was preempted by state statute. Plaintiff and Defendant both sought summary judgment to all challenges. Plaintiff's motion was DENIED and Defendant's motion was GRANTED to all counts in Plaintiff's Amended Complaint except Count Three, the Takings claim, which was REMANDED to the Rhode Island Superior Court. (2016: Affirmed in part and appeal dismissed in part at 807 F.3d 415, 417 (1st Cir. 2015)).|
|Perfect Puppy, Inc. v. City of E. Providence, R.I.||807 F.3d 415 (1st Cir. 2015)||Perfect Puppy signed a lease with a building located in the city of East Providence on April 26, 2014. Perfect Puppy intended to use the building to sell puppies and was given a “Pet Shop” license by the state of Rhode Island. On June 3, 2014, East Providence passed an ordinance banning dog and cat sales and as a result, Perfect Puppy filed suit against the city for a “facial-taking.” A “facial-taking” is when “an ordinance’s mere enactment amounts to a taking.” On appeal, the court held that it did not have jurisdiction over Perfect Puppy’s facial-taking claim because Perfect Puppy needed to file suit for compensation against the city and get rejected before the issue could be determined by this court. As a result, the court remanded the case back to the state court to be decided.|
|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.
|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.
|Park Pet Shop, Inc. v. City of Chicago||872 F.3d 495 (7th Cir. 2017)||Local pet stores and breeders brought an action against the validity of a city ordinance limiting the sources from which they may obtain dogs, cats, and rabbits for resale. They stake their claim on the grounds that the ordinance goes beyond Chicago’s home-rule powers under the Illinois Constitution and violates the implied limits on the state power imposed by the Commerce Clause of the United States Constitution. Petitioners appeal the district court’s dismissal of case for failure to state a claim. The Court of Appeals affirmed, holding that the Illinois Constitution allows Chicago to regulate animal control and welfare concurrently with the state so long as no state statute specifically limits the municipality. Further, the court reject the argument that the ordinance discriminates against interstate commerce. The court of appeals affirmed the district court's dismissal of the suit for failure to state a claim.|
|Panattieri v. City of New York||53 Misc. 3d 865, 37 N.Y.S.3d 431 (N.Y. Sup. Ct. 2016)||
Ceasar, a mixed breed dog, was seized by police after he killed another dog and injured the other dogs’ owner. Petitioners, Kristina & Douglas Panattieri, owned Ceasar and demanded his return to their custody. They also challenged the determination by Respondent, Department of Health & Mental Hygiene (DOHMH), to execute Ceasar pursuant to the New York City Health Code (24 RCNY) § 161.07. The Petitioners argued that Ceasar’s execution would be unconstitutional under the City Code because it was preempted by the state statute, Agriculture & Markets Law § 123.The Supreme Court, New York County, denied their petition and held that the New York City Health Code was not preempted by the state statute. The Court reasoned that the Agriculture and Markets Law § 107(5), which governed licensing, identification, and control of dogs, expressly allowed municipalities to enact their own Codes governing dangerous dogs. However the City Codes were to incorporate standards that were as or more protective of public health and safety than those set forth in the state statute. The New York City Code met the requirement and was therefore not preempted by state law.
|Palila v. Hawaii Dept. of Land and Natural Resources||Not Reported in F.Supp.2d, 2013 WL 1442485 (D.Hawai'i)||
Fearing potential prosecution under a county ordinance and a state statute for carrying out a Stipulated Order that protects an endangered species (the Palila), defendants, joined substantially by the plaintiffs, sought a motion for declaratory and injunctive relief. The district court granted the defendants’ motion because federal law, the Stipulated Order, preempted both state and county law. The court therefore stated that so long as defendants, or their duly-appointed agents, were acting to enforce the specific terms of the Stipulated Order, they may conduct an aerial sighting over the Palila's critical habitat and shoot any ungulates sighted in that area without fear of violating (1) Hawaii County Code §§ 14–111, –112, & 1–10(a); or (2) HRS § 263–10.
|O'Keefe v. Stevenson||Not Reported in N.E.3d, 2017 WL 3776595 (Mass. Land Ct. Aug. 22, 2017)||In this case, the plaintiffs appealed a Zoning Board that granted their neighbor a special permit allowing four dogs to be kept at Ms. Sullivan's home. The dogs—pedigreed Eurasiers—are Ms. Sullivan's personal pets and live with Ms. Sullivan inside her house, have someone with them at all times, and spend most of their time indoors. When they are outside, they are confined to a chain-link fenced-in area behind the house. The permit has some conditions that must be met for the dogs to remain on the property, one of which is the dogs not become a nuisance. The court affirmed the grant of the special permit based on the testimony and exhibits admitted at trial after assessing the credibility, weight, and appropriate inferences to be drawn from that evidence. The Board's decision granting the special permit was AFFIRMED.|
|New York Pet Welfare Ass'n, Inc. v. City of New York||143 F.Supp.3d 50 (E.D. New York,2015)||
(Aff'd on appeal to 2nd Circuit: New York Pet Welfare Association, Inc. v. City of New York, 850 F.3d 79 (2d Cir. 2017). Plaintiffs, a non-profit group trade association of pet stores ("NYPWA"), dog and cat breeders and dealers, veterinarians, and pet owners, brought this action against New York City, the city council, and council members, alleging that defendants have adopted laws that violate the Supremacy Clause, the Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the U.S. Constitution, as well as New York law that governs veterinary medicine, the treatment of animals, and equal protection. The challenged law relate to the sale of dogs and cats in the city that require pet stores to obtain pets from Class A USDA licensees in good standing and that the pet stores spay and neuter the pets before selling them. In rejecting NYPWA's federal preemption claim, the court found that the AWA specifically contemplates local regulation in § 2143(a)(8) and previous cases have found no conflict even where the local legislation bans what is otherwise allowed under the AWA. The court also found no conflict with state law (N.Y. Gen. Bus. § 753–d) or other laws concerning veterinary licensing, pet shops, and animal cruelty. In dismissing plaintiff's Equal Protection argument, the court was not persuaded that pet stores and shelters/rescues are "similarly situated" to support the claim. Additionally, the court found a rational basis to support any differential treatment. NYPWA also alleged that the Pet Shop Laws violate the dormant Commerce Clause, arguing that the laws impermissibly regulate extraterritorially and favor local interests. The court found that even if plaintiff's factual allegations were true, the law was not economic protectionism, but an attempt to curb problems with homeless animals and euthanasia. Finally, the court found not due process violations (substantive or procedural) where there is no interference with a constitutionally protected right. NYPWA's motion to dismiss the claims is granted and the motion for preliminary injunction was denied.
|Morawek v. City of Bonney Lake||184 Wash. App. 487, 337 P.3d 1097 (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.|
|MONICA NEWMAN, individually and on behalf of all similarly situated; MATTHEW KEITH DOUGLAS, individually and on behalf of all similarly situated; and RUBY JUDINE MALMAN, individually and on behalf of all similarly situated, Plaintiffs, v. CITY OF PAYETTE,||2015 WL 6159471 (D. Idaho, 2015)||District Court ruled City of Payette's pit bull ordinance's procedural aspects were unconstitutional, finding that the lack of hearing provisions for a dog that was impounded due to an attack or bite violated procedural due process. The court also found that forcing the dog owner to bear the burden of proving his or her dog's innocence violated due process. The court, however, found no constitutional infirmity with the notice procedure employed by Payette's pit bull ordinance, provided Payette adhered to Idaho Code § 25-2804. The court ordered Plaintiff Douglas’ Motion for Partial Summary Judgment to be granted in part and denied in part; the claims asserted against the city of Payette by Plaintiffs Monica Newman and Ruby Judine Malman to be dismissed without prejudice; and all claims asserted by Plaintiffs against the city of Fruitland to be dismissed without prejudice.|
|Missouri Pet Breeders Association v. County of Cook||106 F. Supp. 3d 908 (N.D. Ill. 2015)||Cook County passed an ordinance that required a “pet shop operator” to only sell animals obtained from a breeder that (among other requirements) held a USDA class “A” license and owned or possessed no more than 5 female dogs, cats, or rabbits capable of reproduction in any 12-month period. Plaintiffs, a professional pet organization and three Cook County pet shops and their owners, sued Cook County government officials, alleging that the ordinance violated the United States and Illinois Constitutions. Defendants moved to dismiss the action. After concluding that plaintiffs had standing to pursue all of their claims, with the exception of the Foreign Commerce Claim, the Court granted the defendants' motion to dismiss all claims, but gave Plaintiffs a chance to cure their complaint's defects by amendment.|
|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.
|McCall v. Par. of Jefferson||178 So. 3d 174 (La.App. 5 Cir. 2015)||Defendant appeals a judgment from the 24th Judicial District Court (JDC) for violations of the Jefferson Parish Code. In 2014, a parish humane officer visited defendant's residence and found over 15 dogs in the yard, some of which were chained up and others who displayed injuries. Initially, defendant received a warning on the failure to vaccinate charges as long as he agreed to spay/neuter the animals. Defendant failed to do so and was again found to have numerous chained dogs that did not have adequate food, water, shelter, or veterinary care. He was ordered to surrender all dogs in his possession and was assessed a suspended $1,500 fine. On appeal, defendant claims he was denied a fair hearing because he was denied the opportunity to cross-examine witnesses and present evidence. This court disagreed, finding that the JDC functioned as a court of appeal on the ordinance violations and could not receive new evidence. Before the JDC hearing, this court found defendant was afforded a hearing that met state and local laws. The JDC judgment was affirmed.|
|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.
|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.
|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.
|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.
|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).