PEREIRA_V._ORANGE_CO._ _2021 CA 8441 O_ _11.4.2022 COMPRESSED

Petitioner in this case seeks a writ ofcertiorari pursuant to Article v, $ (5xb), ofthe Florida Constitution and Rule 9.100(c), Florida Rules of Appellate Procedure, to review the final order of the Orange County Animal Services Classification Committee ("Committee") which classified the attack by Petitioner's dog ("Kenzo") as "an attack by a Dangerous Dog with Intent to Euthanize" pursuant to $ 767.13(2), Florida Statutes. Petitioner requests that this Court issue a writ of certiorari revcrsing the Final Order of the Committee that Kenzo be dcstroyed. The Court has jurisdiction based on $ 767.12(4), Fla. Stat. (2021). Filing # 160657602 E-Filed 11/04/2022 01:13:44 Ihiggins v..Fta. Dep't ofHigh. Saf. & Motor Vehs.,209 So. 3d I165, 1170 (Fla.20l7). The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than "a simple legal error." see Dep't of High. Saf & Motor Vehs v. Morrical, 262 So. 3d 865 (Fla 5th. DCA 2019). Statc Law Regarding Destruction of Dangcrous Dogs Chapter 767, section 13 ofthe Florida Statutes mandates the immediate confiscation and destruction of a dog which has been previously declared dangerous and subsequently attacks or bites a person or domestic animal without provocation. This section authorizes the dog owner to request a hearing under $ 767.12, Fla. Stat., which requires the animal control authority to afford the owner ,,an opportunity for a hearing prior to making a final determination regarding the classification or penalty." section T6T.l2(3) provides little guidance regarding the nature ofthis hearing beyond establishing relevant timelines and the general direction that "each applicable local goveming authority shall establish hearing procedures that conform to this subsection." County Code Regarding Dangerous Dog Destruction Hearings In accordancc with the statute, Orange County has adopted its own process for classification and for hearings regarding dangerous dogs in Articte II, Chapter 5 of its Code of Ordinances. Section 5-32.1 involves attacks or bites by a dog previously classified as dangerous and mirrors g767.13, Fla. Stat., by directing that the dog owner shall be afforded an opportunity [*3] to request a hearing under Section 5-32. Section 5-32(c) provides the dog owner an opportunity to "appeal the initial determination ofdangerous or potentially dangerous" by requesting "a hearing before the animal services classification committee to show cause why such dog should not be declared dangerous or potentially dangerous." The remainder ofsection 5-32(c) describes the process and timeline for requesting such a hearing and mirrors the statute in this respect. Due Process In this case, the County seeks to put down Petitioner's family dog, Kenzo, based on Kenzo's repeated attacks on individuals causing serious injury. The Due Process Clause ofthe Fourteenth Amendment requires that deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing. See County ofPascov. Riehl,635 So. 2d 17, 18-19(Fla. 1994). The Court concludes that Petitioner was provided both notice and an opportunity to be heard. First, the Orange County Animals Services Division ("Animal Services") provided notice of an initial determination thal Kenzo was "Dangerous" with the penalty of euthanasia on July 2, 2021. This notice referenced the procedures set out in Sec. 767.13, Fla. stat. (2021) for when a previously determined "dangerous dog" again causes severe injury. A second notice was sent on July 8,2021 which provided the date and time at which a hearing was scheduled to take place before the Committee. Petitioner was advised of his right to submit evidence to Animal Services no later than three days before the hearing. The notice described the proceeding as an opportunity for the Committee to review the completed investigation and initial determination. Petitioner was advised ofhis right to have an attorney present at the hearing' At the hearing, Petitioner was given an opportunity to be heard. Petitioner was permitted to testiry, as was his wife, the dog walker, and Kenzo's animal trainer. Further, counsel for Petitioner was permitted to cross examine the witnesses offered by Animal Services and to ask [*4] and answer questions of the Committee itself. Petitioner was also permitted to introduce numerous evidentiary exhibits at the hearing. Petitioner claims that in spite ofthese indicia of procedural due process, he was nonetheless deprived of a fundamentally fair proceeding. Petitioner argues that the hearing took place in a "procedural vacuum without published guidelines regarding how the hearing would be conducted, what burden ofproofor standard ofproofapplies, or what minimum findings must be made before a dog is destroyed." However, as described by our sister Court in the Seventh Judicial Circuit, due process does not require the County to educate Petitioner regarding who bears the burden ofproofor the level of proof required . See Benton v. City of Palm Coast,2018 Fla. Cir. LEXIS 4842. Both section 767.13,F\a. Stat. (2021), and section 4-32.1, of the Orange County Code clearly place the burden ofproofon the County to establish that l) Kenzo had previously been declared dangerous and subsequently 2) bit a person or domestic animal 3) without provocation. Further, because the case is civil in nature and the Court agrees that Kenzo is Petitioner's personal property and the county's action is akin to a civil forfeiture, the appropriate standard of proofis whether the County has met its burden by a preponderance ofthe evidence. See Brinkley v. County of Flagler,769 So. 2d 468 (Fla. 5th DCA 2000). The Court finds that the County has met this burden based on the evidence introduced and considered at the hearing. The Court notes that the County would have met its burden even if subjected to the more stringent clear and convincing evidence slandard. Futurc Due Process Concerns Despite the court,s conclusion that Petitioner was provided notice and a meaningful opportunity to be heard, the Court has concerns regarding the quality ofthe relevant Orange County Code provisions. It is undisputed that the Orange County Code does not include the sort [*5] ) of detailed hearing procedures which Petitioner points to in similar sections ofthe county code in other Florida counties - such as Broward and Clay County. 'fhe Court is concerned that in the absence of more formal, written procedures, other individuals who may not as zealously advocate for their voice to be heard could ultimately be deprived ofdue process. In particular, the Court is concerned with the problematic language ofsection 5-32(c) which characterizes the role olthe dangerous dog hearing as an "appeal" of the County's initial determination at which thc individual may "show cause." The Statute does not contemplate dangerous dog hearings as appellate style hearings in any respect, instead these hearings arc a first chance instance for individuals to challenge and be heard with respect to the County's ultimate decision. It is the Court's recommendation that the County consider including morc detailed, written procedures in the Code in order to prevent a possiblc deprivation ofdue process. For example, the court was particularly concerned by the ability and decision of the County to effectively limit Petitioner's ability to present evidence by preventing access to Kenzo by Petitioner's animal behaviorist. While we believe that this decision in the instant case amounted to harmless eror because there was no authority under the Statute for a lesser or different sanction, the county's decision-making authority in this respect is potentially problematic because there is no apparent forum for review ofthat decision' Essentiat Requirements of the Law The second prong ofthis court's certiorari analysis requires a delermination of whether the essential requirements of the law were observed' See Wiggins 209 So' 3d at I 170' The departure from the essential requirements ofthe law necessary for granting a writ of certiorari is something more than "a simple legal error." see Morrical,262 So' 3d at 865' Petitioner argues that section 5-32(c), Orange County Code, erroneously piaces the burden ofproofon Petitioner to prove that his dog should not be destroyed. However, as [*6] described above, the Statute and the Orange County Code clearly place the burden ofproofon the County, and the County's actions at the hearing did nothing to displace that burden. Petitioner also argues again that no specified standard ofproofwas announced at the hearing. As discussed in the previous section, Florida law does not require the County to educate Petitioner regarding the applicable standard ofproofin a quasi-judicial proceeding. Nonetheless, as a civil casc involving a civil forfeiture the Court finds that the applicable standard was a preponderance ofthe evidence, and as described above the evidence presented by the County met this standard. Finally, Petitioner argues that the County failed to adopt procedures consistent with State law. Section 767.12(3) requires "each local governing authority" to "establish hearing procedures that conform to this subsection." However, the relevant subsection's only procedural requirements for a hearing involve the timeframes which Petitioner admits have been adopted in the County Code. As discussed above, while it would be prudent for the County to adopt more detailed procedures governing the required hearing and to adopt those procedures in the County code in order to avoid potential deprivations ofdue process, a plain reading ofthe Statute does not require any specific set of procedures. Accordingly, the county has fulfilted its bare statutory obligation to establish hearing procedures in conformance with sections 767.12(3) ond (4), F'la. Stat. (2022). Competent, Substantial Evidence The final prong ofthis court's certiorari analysis requires consideration of whether the administrative findings and judgment were supported by competent, substantial evidence. see l4iggins,209 So. 3d at 1170. As noted by the county, Petitioner has failed to make any argument regarding whether competent, substantial evidence existed to support the committee's findings. The court notes that the record includes evidence in the form of testimony from [*7] Petitioner and the bite victim, as well as photographic and documentary evidence, which supports the Committee's conclusion that Kenzo had previously been declared dangerous, and subsequently did in fact bite an individual unprovoked. Accordingly, the Committee's decision was based on competent, substantial evidence. Based on the above findings, the Petition for Writ of Certiorari is hereby denied. DONE AND OI{DERIID in Chambcrs, at Orlando, Orange County, Florida, on this day of 2022. WBRII)GE Presiding Circuit Judge WOOTEN and I IARRIS, J.J., concur. CER'IIFICATE OIT SEI{VICE I IIEREBY CERTIFY that a true and correct copy of the loregoing has been fumished to: Marcy I. LaHart, Esq., Marcy I. Lallart, P.A.,249 SE Tuscawilla Road, Micanopy, FL 32667 al marcv@tlori imallawver.com ; and Elaine Marquardt Asad, Esq., Senior Assistant County Attorney, Orangc County Rosalind Avenuc. Third Fl and Judith.catt(r)ocfl .net, o Assistant Attorney's Office, Orange County Administration Center, 201 S. oor. P.O. Box 1393, Orlando, L.,L 32802'1393 at [email protected] n this -QLh aav or NDVlttfuifzozz. *

PATRICIA L.