IN THE COUNTY COURT IN AND FOR BAY COUNTY, FLORIDA

Filing # 35984288 E-Filed 12/29/2015 03:25:17 PM IN THE COUNTY COURT IN AND FOR BAY COUNTY, FLORIDA BAY COUNTY ANIMAL CONTROL, Petitioner/Appellant vs. Case No.: 2015-2797-CC JOHNATHON JONES, Respondent/Appellee. APPELLANT S BRIEF Jennifer W. Shuler, Esq. Bay County Assistant County Attorney Fla. Bar No. 0728810 840 W 11 th Street Panama City FL 32401 (850) 248-8175 Fax: (850) 248-8189 Attorney for Bay County

TABLE OF CONTENTS PAGE TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS...1 STANDARD OF REVIEW...4 ARGUMENT...4 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE...10

TABLE OF CITATIONS CASES City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982)... 5 DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)... 5 Florida State Racing Com. v. McLaughlin, 102 So.2d 574, 575-576 (Fla. 1958)... 8 STATUTES 767.11, Fla.Stat... 3, 4, 6, 7 767.12, Fla.Stat.... 5, 7, 9 767.13, Fla.Stat.... 3, 4, 5, 7, 8, 9 767.14, Fla.Stat... 7 BAY COUNTY CODE Code 4-402... 3, 4, 6, 7 Code 4-409... 7, 8 Code 4-410... 3, 4, 6, 7

PRELIMINARY STATEMENT This is an appeal of an Order by Special Magistrate Jonathan Dingus in a dangerous dog case involving Marley, a German Shepherd/Lab mix owned by Johnothan Jones. Citations to the record refer to the Amended Notice of Filing Record filed by Bay County on December 23, 2015, and will be made by the letter R, followed by the document number. STATEMENT OF THE CASE AND FACTS Respondent, who resides at 2101 High Ave., Panama City, Florida, is the owner of the dog Marley whose designation as a dangerous dog in accordance with Bay County Code and Florida Statutes was upheld by the Special Magistrate on November 13, 2015. (R. 4) On September 26, 2015, Bay County Animal Control received a call from the Panama City Police Department that Marley, who is owned by Johnothan Jones, bit his girlfriend s 15 year old son, Taylor Freeman. See Report No. A15-004545-1 (R. 1b). Johnothan Jones lives with Marley at the same residence as his girlfriend, Patricia Freeman, her 5 year old son Trenton and her 15 year old son Taylor. Mr. Jones 10 year old daughter Sophia also lives at the residence. After the September 26, 2015 attack by Marley, Taylor received treatment at Gulf Coast Emergency Room for multiple bit wounds and scratches. (R. 1b) In response to this attack, Bay County Animal Control Officer David Chasteen interviewed

Taylor and took pictures of his bite wounds. Officer Chasteen testified in the dangerous dog hearing before the Special Magistrate that Taylor told him that he was playing hide and seek at his house on September 26, 2015 when Marley attacked and bit him multiple times. (R. 3 at 5:45). At the hearing, Taylor also testified that he was playing hide and seek and cops and robbers with Trenton and Sophia inside the house when Marley got protective and attacked and bit him. (R. 3 at 49:28 50:02). Officer Chasteen testified that he examined and took pictures of Taylor s wounds and he had multiple bite marks at various places on his body. (R. 3 at 6:40 7:05) The pictures of the bite marks were entered into evidence at the hearing. (R.1e). Mr. Jones neighbor, Lindsay Dillman, also testified that she provided medical assistance to Taylor after the dog attack on September 26 th and that he had multiple puncture wounds on his body and as many as 10 bites. (R. 3 at 17:28 17:50) Ms. Dillman also gave Bay County Animal Control a sworn statement (R.1g). After this dog bite incident, Bay County Animal Control placed Marley on a 10-day home quarantine. (R.1b) On October 6, 2015, the day that Marley was scheduled to complete his mandatory 10-day quarantine from the bite incident on September 26, 2015, Bay County Animal Control received another call alleging that Marley again bit 15 year old Taylor Freeman. In a letter written by Taylor, and entered into evidence by

Jonathan Jones at the hearing, Taylor wrote, The second time he attacked me was because I came home one day after school took him for a walk and I took his leash off and then he started attacking me. All he did was cut me in different places. (R.2 b). Bay County Animal Control investigated the incident, interviewed Taylor and took pictures of the new bite marks, and impounded Marley for a dangerous dog determination. (R 1c) On October 7, 2015, Bay County Animal Control determined that Marley met the definition of a dangerous dog and notified Marley s owner, Johnothan Jones, of the determination on October 12, 2015 (R. 1h). On October 19, 2015, Johnathan Jones delivered a letter to Bay County Animal Control appealing the dangerous dog determination. (R.1i). A Dangerous Dog Appeal Hearing was scheduled for November 13, 2015, and the hearing letter was hand-delivered to Mr. Jones on November 5, 2015. (R. 1i) Upon further review, Bay County determined that Marley caused a severe injury to Taylor Freeman, as defined by Bay County Code 4-402(c) and Fla. Stat. 767.11(3), because the dog bit Taylor multiple times on September 26, 2015. On November 5, 2015, the undersigned, Assistant County Attorney, Jennifer Shuler, notified Mr. Jones that, based on the evidence that Marley caused Taylor a severe injury, Bay County Animal Control has a legal duty in accordance with Bay County Code 4-410 and Fla. Stat. 767.13(2) to euthanize Marley. Bay County

served a notice on Mr. Jones informing him that it would ask the Special Magistrate to uphold Bay County s decision to euthanize Marley at the Dangerous Dog Appeal Hearing on November 13, 2015. (R.1k). The Special Magistrate, Jonathan Dingus, heard Mr. Jones appeal in a quasi-judicial hearing that was held on November 13, 2015. Assistant County Attorney, Jennifer Shuler, presented the case on behalf of Bay County Animal Control. The Respondent, Johnothan Jones was present, but was not represented by counsel. The Magistrate took testimony from Officer David Chasteen, Officer Donald Halley, Lindsay Dillman, Patricia Freeman, Taylor Freeman, and Jonathan Jones. A tape recording of the hearing has been filed with this Court. (R. 3) The Special Magistrate found that Marley meets the definition of a dangerous dog, pursuant to Florida Statute 767.11(1)(a) and Bay County Code Sec. 4-402(a)(1) because he aggressively bit, attacked and endangered 15 year old Taylor Freeman on September 26, 2015 and October 6, 2015. Additionally, the Special Magistrate found that Marley caused Taylor Freeman a severe injury, on September 26, 2015, as defined by Florida Statute 767.11 (3) and Bay County Code Sec. 4-402(c), because he inflicted multiple bites on Taylor. The Special Magistrate did not uphold Bay County decision to euthanize Marley because the Special Magistrate does not agree that Florida Statute 767.13(2) and Bay County Code Sec. 4-410 mandates that Marley be euthanized for inflicting a severe

injury on Taylor Freeman (R.4). Bay County is appealing the portion of the Special Magistrate s order that declines to uphold Bay County s decision to euthanize Marley. STANDARD OF REVIEW When reviewing an administrative order, the court must determine whether procedural due process is afforded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent, substantial evidence. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982). The Florida Supreme Court has defined competent, substantial evidence as evidence that is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). ARGUMENT Bay County contends that the Special Magistrate failed to observe the essential requirements of law when he declined to uphold Bay County s decision to euthanize Marley for causing a severe injury to Taylor Freeman on September 26, 2015. According to Florida Statute 767.13(2): If a dog that has not been declared dangerous attacks and causes severe injury to or death of any human (emphasis added), the dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is given written notification under Fla. Stat. 767.12, and thereafter destroyed in an expeditious and humane manner.

In essence, this Florida Statute mirrors language in Bay County Code Section 4-410. Likewise both Bay County Code Section 4-402(c) and Florida Statute 767.11(3) defines a severe injury as, any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery. More than one person testified at the November 13, 2015 hearing before the Special Magistrate that Marley inflicted multiple bites on Taylor Freeman when he attacked him on September 26, 2015. In addition, pictures of the bites were entered into evidence. While the actual number of bites varied according to different witness testimony, the Special Magistrate received competent, substantial evidence that Marley inflicted anywhere from 5-10 bites on Taylor during that dog attack. Despite finding that Marley caused Taylor a severe injury, the Magistrate concluded that Bay County Code 4-410 and Florida Statute 767.13(2) does not require that a dog who causes a severe injury be euthanized. However, the statute is unequivocal. It states that if a dog attacks and causes a severe injury it shall be confiscated and, after the 10 day appeal period has passed, thereafter destroyed in an expeditious and humane manner. Florida Statute Chapter 767 sets out a uniform system for classifying dogs as dangerous, imposes restrictions and requirements on dogs that are classified as dangerous, and it also addresses the consequences of dog attacks. Florida

Statute 767.14 also allows local governments to place further restrictions or requirements on owners of dangerous dogs and to develop procedures to implement the act. Certain provisions of Chapter 767 provide dogs and dog owners with the defense of provocation when a dog either faces the classification of dangerous or the consequence of a dog attack. For example, both Florida Statute 767.11 and Bay County Code Sec. 4-402 define a dangerous dog as follows: 767.11. - Definitions. As used in this act, unless the context clearly requires otherwise: (a) Dangerous dog means any dog that according to the records of the appropriately authority: (1) Has aggressively bitten, attacked, or endangered a human or has inflicted severe injury on a human being on public or private property; (2) Has more than once severely injured or killed a domestic animal while off the owner s property; or (3) Has, when unprovoked, chased or approached a person upon the streets, sidewalks or any public or private property other than the owner's property in a menacing fashion or in an apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons dutifully investigated by the appropriate authority. (b) Unprovoked means that the victim who has been conducting himself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog. Provocation is also a defense to a dog attack or bite as described in Florida Statute 767.13(1) and Bay County Code Section 4-409:

If a dog that has previously been declared dangerous attacks or bites a person or a domestic animal without provocation, the owner is guilty of a misdemeanor of the first degree In addition, the dangerous dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time, or impounded and held for 10 business days after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10 day period shall allow the owner to request a hearing under s. 767.12. In contrast, in Florida Statute 767.13(2), the statute at issue, the Florida Legislature leaves out the defense of provocation if a dog causes severe injury to or death of any human. In those cases of severe injury or death, the animal control authority shall confiscate the dog, allow for an appeal period, and the dog shall be thereafter destroyed in an expeditious and humane manner. The canon of statutory construction in pari materia provides that statutes on the same subject matter should be read together to ascertain the Legislative intent. Florida State Racing Com. v. McLaughlin, 102 So.2d 574, 575-576 (Fla. 1958). It is clear from an overall review of Florida Statutes Chapter 767, that the Legislature decided to provide for the defense of provocation in certain circumstances but not in others i.e. when a dog attack causes severe injury or death to a human. In such instances, it was reasonable for the Legislature to decide that euthanizing a dog that causes this level of injury or death is the safest course of action to protect the public. Bay County does not agree that Marley was provoked when the dog attacked and severely injured Taylor Freeman on September 26, 2015. It should be

safe for children to play in their home, even if the play is rough and tumble. Certainly, Marley was not provoked when he attacked and bit Taylor Freeman on October 6, 2015. However, assuming the Court does believe that Marley was provoked and acted to protect one or more of the siblings during the game of hide and seek on September 26, 2015, the statute at issue does not allow for the defense of provocation when a dog attack causes a severe injury or death. It is Bay County s position that euthanizing Marley is not just mandated by statute; it is the best disposition for a dog that has twice attacked a child in its own home. The problem with merely classifying Marley as dangerous and imposing restrictions is that this dog will be returned to live in a house with three children and mere restrictions cannot guarantee that another attack will not occur. CONCLUSION Bay County respectfully requests this Court find that Special Magistrate Johnathan Dingus failed to comply with the essential requirements of the law when he declined to uphold Bay County s decision to euthanize Marley for causing a severe injury to Taylor Freeman on September 26, 2015 in accordance with Florida Statute 767.13(2). We ask that the Court reverse this decision of the Special Magistrate and direct that Marley be destroyed in an expeditious and humane manner.

Respectfully submitted this 29 th day of December, 2015. /s/ Jennifer W. Shuler, Esq. Bay County Assistant County Attorney Fla. Bar No. 0728810 840 W 11th Street Panama City FL 32401 Tele: (850) 248-8175 Fax: (850) 248-8189 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Appellant s Brief has been sent via e-mail to: Jason Johnson, Esq., jjohnson@jgd-law.com and pleadings@jgd-law.com, Attorney for Appellee, on this 29 th of December 2015. /s/ Jennifer W. Shuler CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirements (Times New Roman, 14pt) of Rule 9.100(1), Florida Rules of Appellate Procedure. /s/ Jennifer W. Shuler