ISIANA LOPEZ

v.

MIAMI DADE COUNTY CODE ENFORCEMENT

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

PER CURIAM

Filing # 159797662 E-Filed 10/24/2022 09:58:07 To resolve the incident, Jade’s owners entered a Settlement that stipulated that: “if Jade in the future commits any of the acts set forth in section 5-22(d) of the Code of Miami Dade County, then in any legal proceeding … Jade shall, as a matter of law, be treated … as if Jade were already designated dangerous under section 5-22 of the Code of Miami-Dade County.”

That stipulation was triggered when, on June 20, 2021, Animal Control issued another citation charging that on April 11, 2021, Jade endangered, attacked or bit a human in violation of section 5-22. (App. 12). The County filed an ex parte petition, alleging that Jade’s attack caused severe injuries and determining that Jade should be declared dangerous and euthanized (R. at 7-9). A county court judge granted the petition, and Jade was taken into custody pending the outcome of any hearings or appeals. [*3] The Appellants requested a hearing to challenge the violation of 5-22. The factual accounts of the incident were conflicting, but all witnesses consistently testified that Jade bit tenant Manuel Abreu’s two-year-old child Dean while the child was on the owners’ property.

Manuel Abreu lived on the property with the Appellants. While the Appellants were traveling, Mr. Abreu remained at the home and took care of Jade. He was aware that the owners required that Jade’s care must adhere to certain protocols. While outside, the owners required Jade to be hooked to a line trolley, to curtail her movements. When in the house, she was required to be kept in a locked kennel in the owners’ locked bedroom. Further, when Mr. Abreu’s two-year-old child Dean was visiting at the home, Jade was required to remain locked up. The owners testified that since the first incident in 2019, they took every safety precaution with Jade to prevent future injury. Ms. Lopez testified that Mr. Abreu was aware of the safety protocols for many years. Mr. Evans specifically testified that Mr. Abreu had permission to take Jade out of her locked kennel in the owners’ bedroom and let her outside.

After Dean was bitten, Mr. Abreu initially told the Animal Control inspector that a stray dog came on the property and bit Dean. At the hearing, Mr. Abreu testified that this account was untrue. He testified that he “gave faith to” Jade and let her in the backyard while he and Dean were also outside. Jade passed Dean several [*4] times, then Dean “got too close,” and Jade bit him. He alerted his son’s mother and the Appellants, then rushed Dean to the hospital. Dean sustained several bites on the body, was treated for several open wounds and received a series of rabies vaccines.

A witness to the incident, Ms. Hitopoles, was standing next to Mr. Abreu when Jade bit Dean. She testified that she was on the patio with Dean when Mr. Abreu brought Jade outside. Ms. Hitopoles asked if she could bring Dean inside or if Mr. Abreu could connect Jade to the trolley. Mr. Abreu instead held Jade and encouraged his son to approach to pet her. Ms. Hitopoles could see that Jade was uncomfortable and she started to walk over to intervene. Before she could take any action however, Jade bit Dean.

The Appellants expressed their sorrow and frustration at the unfairness of having their dog destroyed when they did everything they could to ensure that Jade could be kept safely. Had they not left Jade in the custody of Mr. Abreu, this incident would not have occurred.

The Hearing Officer upheld the finding of dangerous dog pursuant to Section 5-22 of the Miami-Dade County Code and ordered that the dog be destroyed. Mr. Abreu was ordered to pay the fine.

Analysis

Appellate review of quasi-judicial proceedings in the circuit court is governed by well-established standards: (1) whether due process was afforded; (2) whether [*5] the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Miami Dade County v. Omnipoint Holdings, 863 So. 2d 195, 198 (Fla. 2003). The Appellants make three arguments. Appellants first argue that the owners’ liability under section 767.04, Florida Statutes should be diminished by Mr. Abreu’s negligence. We treat this claim as an argument that the essential requirements of law were not observed. These proceedings were conducted pursuant to section 5-22 of the Miami- Dade County Code. Section 767.04 governs civil liability for a dog bite in the circuit court, not whether a dog should be designated as dangerous under the municipal code. Sections 5-22 and 5-23 do not incorporate this statute. Nor is there a provision which would mitigate a dangerousness designation based on the negligence of another party. Section 5-22(f) provides: Notwithstanding any other provision of this section, the responsible party shall not be liable, and the dog shall not be designated as dangerous, if the threat, injury or damage was sustained: (1) by a human who, at the time, was unlawfully on the property of the responsible party; or (2) by a human who, while lawfully on the property of the responsible party, was tormenting, abusing, or assaulting the dog, the responsible party, or another person lawfully on the property; or [*6] (3) while the dog was protecting or defending a human within the immediate vicinity of the dog from an unjustified attack or assault; or (4) by a human who was engaged in or attempting to engage in a criminal activity at the time of the attack; or (5) while the dog was engaged in a legal hunt or in a legal sport or exhibition such as an obedience trial, conformation show, field trial, hunting/retrieving trial, or herding trial; or (6) while the dog was engaged in law enforcement work under the direction of a law enforcement officer. … These are the only exceptions to a designation of dangerous dog in the code. Thus, the negligence of Mr. Abreu does not mitigate the finding of dangerousness. As a result, the essential requirements of law were met.

The Appellants next argue that Mr. Abreu trespassed in their bedroom to remove Jade from her locked kennel. This argument tracks section 5-22(f)(1) of the Code precluding a finding of dangerousness if the bite was caused by a human unlawfully on the property. We consider this argument under the rubric of whether there is competent substantial evidence to uphold the hearing officer’s findings. “Competent, substantial evidence must be reasonable and logical.” Wiggins v. Florida Dept. 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 [*7] conclusion is irrelevant. See Dusseau v. Metro. Dade Cty. Bd. of Cty. Commrs., 794 So. 2d 1270, 1276 (Fla. 2001). In other words, we do not re-weigh the evidence. Appellants’ argument is unsupported by the evidence. Both Mr. Abreu and Mr. Evans testified that Mr. Abreu had permission to let Jade into the backyard. The only way he could let her out is by entering the locked bedroom. It was uncontroverted that Mr. Abreu was required to abide by the owners’ requirements for keeping Jade. That Mr. Abreu disregarded all the protocols in doing so does not make him a trespasser. There was certainly competent substantial evidence to sustain the hearing officer’s findings.

Finally, the Appellants claim that Jade was provoked into biting Dean and therefore not subject to a dangerous dog finding as set forth by section 5-22(f)(2) of the Code. We also treat this argument as an argument that there was no competent substantial evidence supporting the conclusion that the bite was unprovoked. Ms. Hitopoles’ testimony would certainly support the conclusion that Manuel Abreu provoked the attack by holding Jade down while Dean was encouraged to pet her. But her testimony was refuted by Mr. Abreu who testified that Jade was running free and bit Dean when he came too close. Because there was competent substantial evidence to support the conclusion that Jade was unprovoked, we must reject this final argument. [*8] We are not unsympathetic to the Appellants’ expressed sorrow and frustration at the unfairness of having their dog destroyed when they did everything they could do to ensure that Jade could be kept safely. Notwithstanding, we are constrained to apply the standard on appeal. The decision below is AFFIRMED. TRAWICK, WALSH, and SANTOVENIA, J.J. concur. [*9] Copies Furnished to: [email protected] [email protected] [email protected]