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Breed Specific Legislation, Not the Answer

By Beth Palmer, FLA Director/VP

Currently, Florida Statute 767 (FS 767) “Damage by Dogs” protects the public against vicious dogs that endanger people and property. It also permits counties and cities to place additional restrictions on dogs that have been deemed dangerous, provided that no such regulation is specific to breed (FS 767.14).

Against the advice of the American Dog Owner’s Association (ADOA), the Humane Society of the United States (HSUS), and similar animal organizations, Florida attempted to pass laws that would allow for breed specific legislation (BSL) in the Spring Session of the 2000 Legislature. If such laws were passed, it would then permit counties and cities to enact legislation specific to breed, regardless of the temperament or behavior of an individual animal.

To be useful, legislation must be effective, enforceable, economical, and fair. Such BSL fails all of these criteria. Not only is it motivated by fear and lack of relevant knowledge, it is also discriminatory, impractical, and litigious.

In 1980, Hollywood, Florida, enacted a breed specific ordinance (before the protection of FS 767.14 was in place) that required owners of pit bull dogs to register their dogs and provide proof of liability insurance.¹

Just two years later, in 1982, the Everglades Pit Bull Dog Club challenged this law on the grounds it was vague, arbitrary, unfair, and in violation of due process. The Broward County Court found for the challengers and struck down the ordinance as an unconstitutional infringement of pit bull dog owners’ fourteenth amendment rights.²

This year, two bills (SB 700 and HB 355) addressing BSL were presented in the House and the Senate of the Florida Legislature. Although shelved during the Spring Session, these bills may yet again be presented in the House and/or the Senate during the Fall Session.

When solicited for their comments on HB 355, the HSUS wrote, “Although it supports the bill’s intent to enhance public safety, the Society does not feel allowing local governments to enact ordinances that could place restrictions regarding ownership of certain dog breeds is the answer.”⁴

By singling out one breed of dog for more stringent control, BSL raises two constitutional problems. First, because many breeds of dog can cause harm to people, an ordinance that classifies only one breed as vicious appears to be under-inclusive and, therefore, violates the dog owner’s equal protection rights. Second, because it is impossible to identify a breed with the certainty required to impose criminal sanctions on its owner, it appears that the ordinances are unconstitutionally vague and, therefore, a violation of procedural due process.³

A five-year study published in the Cincinnati Law Review³, focusing on both Rottweilers and Pit Bulls, concluded, in part, that “statistics do not support the assertion that any one breed was dangerous—when legislation is focused on the type of dog, it fails because it is...unenforceable, confusing, and costly.… [F]ocusing legislation on dogs that are ‘vicious’ distracts attention from the real problem…irresponsible owners.”

People determine whether dogs will be useful inhabitants of a community or nuisances. It is the people who breed and foster viciousness in dogs whom legislators must control. The diligent enforcement of our existing laws (FS 767) will ensure that the public is safe from individual dogs that have been deemed dangerous.

Objecting to the use of BSL to police irresponsible owners, the HSUS claims that “the problem the bill is addressing may not be a ‘breed of dog’ problem but rather a pet ownership and enforcement issue. The Society also states breed specific ordinances will unfairly penalize responsible dog owners, and it is these responsible dog owners, whose dogs do not pose a threat, who will make an effort to comply with any new ordinances.”⁴

In addition to the bills presented to the Florida Legislature earlier this year, an amendment accompanied HB 355. Current state law prescribes that before local Animal Controls make a decision to declare a dog "dangerous," the owner is entitled to a hearing with the Animal Control Director. 

The amendment traveling with HB 355 removed this hearing entitlement and required the Animal Control Director to make a decision without a hearing. Furthermore, owners would be required to go through the judicial system if they disagreed with the decision—a process that would be much more costly to the local municipality than the one presently instated. Such a process would also be very costly for dog owners, as they would need to hire attorneys, while also paying to house the animal under county jurisdiction until the court case was settled.

Such an amendment would interrupt the effective communication between the Animal Control Director and the owner by requiring the courts to intervene, removing the fundamental right of the voting taxpayers to work directly with their local county staffs. In effect, the amendment appeared to be nothing more than a relief act for attorneys!

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¹ See HOLLYWOOD, FLA., CODE 6-25 (1980) Section 6-25.  
² See Holder v. City of Hollywood, No. 81-13968-CR, excerpt of proceedings at 8 (17^th Circuit Broward Co., Fla., Nov. 9, 1982).
³ “The New Breed of Municipal Dog Control Laws: Are They Constitutional?” Cincinnati Law Review, Vol. 53, 1984, pp 1075.
⁴ See HSUS statement regarding HB 355, Analysis  HB 355, pp 5.

—Reprinted from Florida Lupine News, Summer 2000

This page was updated on Sunday, 02 January 2011.