JOSEPHINE GATES AND RANDALL J. GATES, APPELLANTS,
v.
CITY OF SANFORD, FLORIDA, ETC., APPELLEE
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The Gates challenged a city ordinance limiting residences to three dogs and three cats as unconstitutionally arbitrary and discriminatory. The trial court upheld the numerical limit but struck the variance provision as lacking sufficient guidelines. The appellate court affirmed, finding the numerical classification reasonable and the invalid variance provision severable from the ordinance.
The ordinance is constitutional and reasonable because numerical limitations on animals are a valid exercise of police power to protect public health and safety. The Constitution does not require case-specific classifications. The invalid variance provision is severable from the valid restriction on the number of animals, so the ordinance stands.
[1] The burden of proving the unconstitutionality of an ordinance rests on the party challenging it.
[2] Property ownership is subject to the state's right to regulate uses that may be injurious to the equal rights of others.
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Join FLexlaw to unlock all legal intelligence“We find that the city's ordinance limiting each residence to three dogs and three cats is not unreasonable in light of the potential detriment to public health, safety and general welfare because of an overabundance of animals in a residential area.”
Establishes that the numerical limitation is constitutional and justified by legitimate public interests
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Join FLexlaw to unlock all legal intelligenceThe City of Sanford inspected the Gates' residence in response to anonymous complaints about the number of animals present. The Gates maintained their…
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HARRIS, Judge.
In response to anonymous complaints concerning the number of animals being kept in a residence', the City of Sanford inspected the residence of Mr. and Mrs. Gates. Although the Gates were found to have maintained their residence and animals in an admirable fashion, they were cited for exceeding the maximum number of dogs and cats permitted by the city ordinance. When their application for a variance was denied, they sued challenging the ordinance as being unconstitutionally arbitrary, unreasonable and discriminatory.
The trial court upheld the restrictive provision of the ordinance but struck the variance provision because it lacked sufficient guidelines for the exercise of variance discretion. We affirm the trial court.
Appellants first contend that the ordinance is invalid because it is based solely on the number of animals as opposed to type of animals, weight of animals, size of property, etc. The one challenging the constitutionality of an ordinance has the burden of proving its invalidity. Wiggins v. City of Jacksonville, 311 So. 2d 406 (Fla. 1st DCA 1975).
All property is held subject to the right of the State to regulate it and on the implied condition that its use shall not be injurious to the equal rights of others. Miami Shores Village v. Wm. N. Brockway Post No. 124 of American Legion, 156 Fla. 673, 24 So. 2d 33 (1945).
Regulation of animals has a long-standing history of constitutionality. State v. Peters, 534 So. 2d 760 (Fla. 3d DCA 1988), rev. denied 542 So. 2d 1334 (Fla.1989) citing Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169 (1897) and Nicchia v. New York, 254 U.S. 228, 41 S.Ct. 103, 65 L.Ed. 235 (1920).
Ordinances enacted pursuant to general police powers must not infringe constitutional guarantees by invading personal or property rights unnecessarily or unreasonably or by denying due process or equal protection of laws. Miami Shores Village v. Wm. N. Brockway Post No. 124 of American Legion, supra.
A classification does not deny equal protection if it is reasonable and non-arbitrary and if it treats all persons in the same class alike. Lasky v. State Farm Insurance Co., 296 So. 2d 9 (Fla.1974).
Appellants primarily rely on Smith v. Steineauf, 140 Kan. 407, 36 P. 2d 995 (1934) which held unconstitutional an ordinance limiting the number of animals solely on a numerical classification; however, other cases have rejected this view. See State v. Mueller, 220 Wis. 435, 265 N.W. 103 (1936); State v. Beckert, 137 N.J.L. 562, 61 A. 2d 213 (1948); People v. Yeo, 103 Mich.App. 418, 302 N.W. 2d 883 (1981).
We find that the city’s ordinance limiting each residence to three dogs and three cats is not unreasonable in light of the potential detriment to public health, safety and general welfare because of an overabundance of animals in a residential area. We further find that the constitution does not require a case specific classification such as type of dog, size of dog, or size of residence. The difficulty in enforcing such an ordinance would, in effect, render the ordinance meaningless.
Appellants next contend that by declaring a portion of the ordinance unconstitutional, the entire ordinance must fall.
If the unconstitutional portion of the ordinance can be eliminated without doing violence to the legislative purpose expressed in the valid portion, if the remaining portion is complete in itself and if the valid and invalid portions are not so inseparable that one portion would not have been enacted without the other, then the courts should give effect to the remaining valid portion of the ordinance. Cramp v. Board of Public Instruction of Orange County, 137 So. 2d 828 (Fla.1962); High Ridge Management Corp. v. State, 354 So. 2d 377 (Fla.1977).
Here the purpose of the ordinance was to restrict the number of dogs and cats in a residential area for public health and safety. That purpose is not affected by the invalidity of the variance section. The invalid portion is easily separable from the valid portion and the remaining portion is complete in itself. Further, the fact that the City of Sanford ordinances contain a severability provision is evidence that the valid portion would have been enacted even without the variance provision. We find the ordinance constitutional and affirm the trial court.
AFFIRM.
PETERSON and McNEAL, R. T., Associate Judge, concur.
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City OF Miami v. Haigley, 143 So. 3d 1025 (Fla. 3d DCA 2014)…f an ordinance’s constitutionality.”); see also State v. Sawyer, 346 So. 2d 1071, 1072 (Fla. 3d DCA 1977). Accordingly, the party “challenging the constitutionality of an ordinance has the burden of proving its invalidity.” Gates v. City of Sanford, 566 So. 2d 47, 49 (Fla. 5th DCA 1990); see also City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 377 (1940) (“One attacking the validity of an ordinance has the burden of establishing its invalidity when such ordinance appears on its face to have been…
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City OF Sarasota v. Calhoun, 685 So. 2d 1338 (Fla. 2d DCA 1996)…imals, is held subject to the right of the state to regulate it on the condition that its use shall not be injurious to the rights of others. This type of regulation has [*1340] a long standing history of constitutionality. Gates v. City of Sanford, 566 So. 2d 47, 49 (Fla. 5th DCA 1990). Without passing on the question of whether or not this ordinance prohibits lawful activity, or makes it unconstitutionally difficult to determine what behavior is forbidden, it is clear from the facts adduced at trial that t…
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BAL Harbour Vill. v. Welsh, 879 So. 2d 1265 (Fla. 3d DCA 2004)…police regulation therefore depends on whether, under all circumstances, the regulation is reasonable or arbitrary and whether it is reasonably designed to accomplish a purpose falling within the scope of the police regulation.”); Gates v. Sanford, 566 So. 2d 47, 49 (Fla. 5th DCA 1990) (“Ordinances enacted pursuant to general police powers must not infringe constitutional guarantees by invading personal or property rights unnecessarily or unreasonably or by denying due process or equal protection of laws.”)…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Washington v. State, 296 So. 2d 9 (Fla. 1974)
- Lasky v. State Farm Ins. Co., 296 So. 2d 9 (Fla. 1974)
- Cramp v. The Bd. OF Pub. Instruction OF Orange Cnty., 137 So. 2d 828 (Fla. 1962)
- Miami Shores Vill. v. WM. N. Brockway Post NO. 124 OF THE Am. Legion, 156 Fla. 673 (Fla. 1945)
- Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698 (U.S. 1897)
- Nicchia v. People of the State of N.Y., 254 U.S. 228 (U.S. 1920)
- State v. Peters, 534 So. 2d 760 (Fla. 3d DCA 1988)
- Wiggins v. City OF Jacksonville, 311 So. 2d 406 (Fla. 1st DCA 1975)
- Lastition v. Lastition, 354 So. 2d 377 (Fla. 1977)
- High Ridge Mgmt. Corp. v. State, 354 So. 2d 377 (Fla. 1977)