JENNIFER ARGUELLO

v.

MIAMI DADE COUNTY, ANIMAL SERVICE DEPT

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

Filing # 162310644 E-Filed 12/02/2022 05:05:48 Arguello was contacted for rabies information regarding Walter. [*4] Page 4 of 11 On May 11, 2021, based on the findings of its investigation and relying on Hernandez’s testimony, the Department designated all four dogs - Walter, Jada, Layla and Xabi - as dangerous in violation of Code Section 5-22 (d) of the Miami- Dade County Code. Section 5-22(d)(1) provides that a dog shall be designated dangerous if, when unprovoked, it endangers, attacks, or bites a human. The Appellants were also cited for a violation of Code Section 5-20(D), which applies to uncontrolled dogs. Appellants timely requested a hearing on all the citations. During the subsequent June 14, 2021 virtual hearing (“Hearing”), Arguello testified that only Xabi was near Hernandez at the point of his injury as Arguello was helping Hernandez with his dog, but that Xabi was never close enough to bite either Hernandez or Bubba. Arguello maintains that she was not aware of any accusations of aggression or endangering. The Hearing Officer affirmed the citations for violation of Code Section 5-22 (d) and for the violation of Section 5-20(D) (uncontrolled dog) and this appeal followed. STANDARD OF REVIEW Appellate review of quasi-judicial proceedings in the Circuit Court is governed by well-established standards: (1) whether due process was afforded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial [*5] Page 5 of 11 evidence. Miami Dade County v. Omnipoint Holdings, 863 So. 2d 195, 198 (Fla. 2003).

ANALYSIS

I.

Procedural Due Process “A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard.” Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). Further, “the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts...” Id. Here, Appellants maintain that there are three procedural errors that require reversal. First, Appellants argue that counsel for Hernandez was acting inappropriately by making faces and shaking his head as Arguello was testifying. Notwithstanding, Appellants failed to object before the Hearing Officer. Accordingly, the argument was not preserved. See Mora v. State, 964 So. 2d 881, 883 (Fla. 3d DCA 2007). Moreover, no one at the Hearing said anything about Mr. Hernandez’s counsel making facial expressions. Second, Appellants argue that “[a] medical settlement between Appellants’ insurance company and Mr. Hernandez was improperly entered by his counsel and considered by the Hearing Officer.” However, no such document was entered into the record. Moreover, the Hearing Officer sustained Appellants’ objection and [*6] Page 6 of 11 found the medical settlement irrelevant. No further statements about the alleged settlement were made. Finally, if there was any error, it would be harmless.

Appellants’ third argument is that the affidavit of Hernandez was written by his wife and that the entire Hearing was premised on Hernandez’s “Witness Affidavit”. Appellants failed to preserve this argument for review, as they never made an objection at the Hearing. See Mora v. State, supra. Accordingly, the argument pertaining to the Hernandez’s affidavit cannot be considered by this court. Appellants fail to explain how any of these errors led to a deprivation of procedural due process. We find that Appellants did receive procedural due process.

II.

Essential Requirements of Law Having found that the Appellants received due process, we turn to whether the Hearing Officer departed from the essential requirements of law. In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995), the Supreme Court held that “applied the correct law” is synonymous with “observing the essential requirements of law.” Section 5-20(d) of the Code, Regulations on dogs in public areas states: It shall be unlawful for a responsible party to allow, whether willfully or through failure to exercise due care or control, a dog to be unrestrained or to be at large in any manner in or upon: public property; a common area of a private building or development; or the private property of others without the express or implied consent of the [*7] Page 7 of 11 property owner. Notwithstanding the foregoing, a dog may be unrestrained and shall not be deemed to be at large if it is supervised by a competent person and is (i) in a park area in which dogs are specifically authorized by a municipality or by the county to be unrestrained; or (ii) engaged in the sport of hunting in an authorized area.

Section 5-22 of the Code, Dangerous dogs: authority to designate dog as dangerous; confiscation; appeal procedure, states:

(d) The Director or designee shall designate a dog as dangerous if the dog commits one (1) or more of the following acts:

(1) To, when unprovoked, endanger, attack, or bite a human;

… Pursuant to Section 5-22(b)(2) of the Code, “‘Unprovoked’ means that the victim was acting peacefully and lawfully when encountering the dog and that the dog was not acting defensively or responding to a threat. Appellants first argue that the Hearing Officer did not find that the Appellants or their dogs were the “legal cause” of the Code violations. The Hearing transcript shows otherwise. Under Section 5-20(d) of the Code, (dog running at large), the Hearing Officer stated: “These dogs were not under control, the four dogs, and they were loose in violation of the leash laws.” (Tr. at 90:17-19). Hernandez also testified about the four loose dogs belonging to Appellants. (Tr. 20:7-8; 20:24). Under Section 5-22(d)(1), the Department had to show that Appellants’ four dogs, when unprovoked, endangered a human. The Hearing Officer found that [*8] Page 8 of 11 Appellants’ four dogs endangered Hernandez: “All the investigative materials indicate that there was an endangering. The dogs were loose due to the leaving open of a door which is an action of neglect.” (Tr. at 89:25-90:1-3). Department representative Ms. Dominguez explained that “[s]o this resulted in our department declaring all four dogs as dangerous for endangering Hernandez and issuing the adequate citations for the violations that occurred.” (Tr. at 39:4-7). Appellants also maintain that the Hearing Officer ignored the fact that the County presented no evidence that the dogs were dangerous, how they were dangerous or how they were aggressive. Notwithstanding, the Hearing Officer correctly applied only Sections 5-20 and 5-22 of the Code in making his decision. As to Appellants’ argument that the dogs were provoked, the Hearing Officer did address the defense of provocation, as follows: Appellants’ attorney: The dogs came out to play and he’s [Hernandez] the one who escalated the situation by provoking them, by becoming aggressive with his dog. Department Officer: Well, again, he would [not] have been put in this position if the dogs weren’t off leash off of the owners’ property, not under the owners’ control, in order for him to have to pick up his dog to prevent any further incidences. Whether it’s his own dog or their dogs, he was trying to prevent an accident, which clearly he failed at it because he did receive some injuries, which are very severe to the point that he’s missing part of his finger. So again, it’s just for the fact that they endangered him and his dog. Not for which dog bit what, or whatever. [*9] Page 9 of 11 Tr. at 83:2-23. Moreover, Hernandez protected himself and his dog to prevent an accident, which did not amount to provocation. The Hearing Officer followed the essential requirements of law.

III.

Competent Substantial Evidence “Competent, substantial evidence must be reasonable and logical.” Wiggins v. Fla. Dep’t of Highway Safety and Motor Vehicles, 209 So. 3d 1165, 1173 (Fla. 2017). The test is whether there exists any competent substantial evidence to support the decision maker’s conclusions, and any evidence which would support a contrary conclusion is irrelevant. See Dusseau v. Metro. Dade Cty. Bd. of Cty. Commrs’, 794 So. 2d 1270, 1276 (Fla. 2001). The Department had to show that Appellants’ four dogs “when unprovoked, endanger[ed] … a human.” The Department presented the testimony of Hernandez, and his affidavit and photos of his injuries were admitted into evidence. Hernandez testified that while he was walking his leashed dog, Bubba, through the atrium-like lobby and out of the building, four unleashed dogs, unaccompanied by their owners, came at him and attacked him. The four dogs were subsequently identified as Walter, Jada, Layla and Xabi. Hernandez testified that as the dogs came at him, he tried to pick up Bubba, but in the commotion, he tripped and fell down, at which [*10] Page 10 of 11 point the four dogs attacked Bubba and one of the four attacked Hernandez. While lying on the ground, he attempted to protect Bubba, but one of the four dogs, Jada the Yorkie, got between them and bit his finger off. Another of the four dogs, Layla the Beagle, bit his shoulder. The Department also presented the testimony of Dr. Serrano, the Department’s Chief Veterinarian, that any of the four dogs could have bitten Hernandez’s finger with enough force that it needed to be amputated. The Hearing Officer, as the trier of fact, was able to assess the credibility of the parties. He credited Hernandez’s version, not the Appellants’ version, and resolved any conflicts in the evidence in Hernandez’s favor. Both the Department and the Hearing Officer explained that they found a violation of Section 5-22 of the Code, not because the dogs “attacked” or bit Hernandez, but because he was endangered when the four dogs ran at him and his dog and created a chaotic situation that caused him to fall and suffer injuries. There is competent substantial evidence supporting the Hearing Officer’s conclusions. Appellants argue that the Findings are not supported by competent substantial evidence because there are conflicts in the evidence, conflicting testimony from the injured party, and lack of competent substantial evidence as to which dog was the “harming dog.” Hernandez stated seven times in his reports that he did not know who bit him. Furthermore, Appellants argue that Hernandez’s dog Bubba was a [*11] Page 11 of 11 registered aggressive dog for previously attacking a small dog, giving Hernandez a motive to not report any injury to him from his dog’s bite. However, this court cannot reweigh the evidence. Nor can this court judge the credibility of these witnesses as to the plausibility or capability of Jada the Yorkie or any of the four dogs- whose photographs appear in the answer brief- to have severed Hernandez’s finger. Our analysis ends, as it must, at the determination that the Hearing Officer’s decisions are supported by competent substantial evidence. Applying the foregoing standard on appeal, we are constrained to affirm the decision below. For the foregoing reasons, the decision below is AFFIRMED. TRAWICK, WALSH and SANTOVENIA, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*12] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected]