Memorandum of Law
Update 2/4/09: City of Del Ray Beach, Palm Beach County, FL is found liable for $2,256,300.00 when a loose dog bites a woman. What if that had been an escaped tiger? Get the Order HERE
Re: Authority of Local Governments to Prohibit or Limit the Possession of Wildlife Within Its Boundaries
I. EXCLUSIVE AUTHORITY OF FISH AND WILDLIFE CONSERVATION COMMISSION TO REGULATE FLORIDA ‘S FISH AND WILDLIFE
Section 9, Art. IV, of the Florida State Constitution of 1885 vested exclusive authority to exercise all of the state’s regulatory power (except for penalties and license fees) over all wild animal life in the Game and Fresh Water Fish Commission (“GFWFC”). The GFWFC was endowed by the constitution with the power to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” F LA. C ONST ., Art IV, Sec. 9. The constitutional mandate establishing the GFWFC states, “the Legislature may enact any laws in aid of, but not inconsistent with, the provisions of this amendment.” Id . Therefore, rules and regulations promulgated by the GFWFC have the force of state law and cannot be changed by the state legislature. Whitehead v. Rogers , 223 So.2d 330, 331 ( Fla. 1969). Courts have consistently held that the GFWFC is vested with the exclusive legislative authority to adopt reasonable rules to regulate game and fresh water fishing and the legislature is constitutionally prohibited from adopting statutes in conflict with such rules. Bell v. Vaughn, 21 So.2d 31 ( Fla. 1945); Price v. City of St. Petersburg , 29 So.2d 753 ( Fla. 1947); Whitehead, 223 So.2d at 331; Airboat Association of Florida, Inc. v. Florida Game and Fresh Water Fish Commission, 498 So.2d 629, 630 (Fla. 3 rd DCA 1986).
In 1998, Florida voters amended the state constitution by creating the Florida Fish and Wildlife Conservation Commission (“FWCC”) and abolishing the GFWFC. For all intensive purposes the FWCC replaced the GFWFC as well as the Marine Fisheries Commission and was endowed with the same exclusive powers of the GFWFC. See, Caribbean Conservation Corporation, Inc. v. Florida Fish and Wildlife Conservation Commission, 838 So.2d 492, 494 ( Fla. 2003).
The exclusive jurisdiction granted to the GFWFC, now the FWCC, prevents the state legislature, counties or municipalities from promulgating statutes or local ordinances that regulate or prohibit the possession of wild animal life or conflict with the rules and regulations adopted by the FWCC. . Bell, 21 So.2d at 31; Price, 29 So.2d at 753; Whitehead, 223 So.2d at 331; City of Miramar, 429 So.2d at 42; POWER TO REGULATE WILDLIFE IN MUNICIPAL BOUNDARIES RESTS WITH GAME AND FRESH WATER FISH COMMISSION, Fla. AGO 1980-6. The rules and regulations of the FWCC are codified in Chapter 68-1 of the Florida Administrative Code. A municipal or county ordinance in conflict with the FWCC regulations cannot be enforced. City of Miramar v. Bain, 429 So.2d 40, 42 ( Fla. 4 th DCA 1983).
However, the inquiry does not end with the conclusion that the FWCC has exclusive jurisdiction over Florida ‘s wildlife. Although local governments cannot regulate or pass ordinances directly governing wildlife, local governments are still able to carry on their business and enact ordinances that may affect FWCC permit holders and/or the owners of captive wildlife so long as said ordinances don’t conflict with FWCC regulations. See, Id . at 42 .
II. ABILITY OF STATE LEGISLATURE AND/OR LOCAL GOVERNMENTS TO ENACT STATUTES AND ORDINANCES NOT IN CONFLICT WITH FWCC’S REGULATIONS
Despite the fact that the FWCC has been granted the exclusive power to regulate wildlife, thereby preempting the entire field of law, the scope of the pre-emption is limited to the regulation of wildlife. See, Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical Center, Inc., 681 So.2d 826, 831 (Fla. 1 st DCA 1996)(the scope of preemption should be limited to the specific area where the legislature has expressed their will to be the sole regulator). Further, according to the constitutional mandate itself, the legislature can enact statutes or ordinances “in aid of, but not inconsistent with” FWCC’s regulations. Id.
Generally speaking, Inconsistency or a conflict will be deemed to exist between differing laws if in order to comply with one provision, a violation of the other is required. Jordon Chapel Freewill Baptist Church v. Dade County , 334 So.2d 661, 664 ( Fla. 3 rd DCA 1976). The test is the impossibility of co-existence of the two provisions. Metropolitan Dade County v. Santos , 430 So.2d 506, 507 ( Fla. 3 rd DCA 1983); Jordon Chapel Freewill Baptist Church , 334 So.2d at 664; See also, 1980 Fla. Op. Atty. Gen. 6 (municipality cannot proscribe or change a method by which wildlife is allowed to be kept under GFWFC rules and regulations).
There is no question that local ordinances that attempt to actually regulate wildlife, the specific area preempted by the FWCC, will fail. See, Bell , 21 So.2d at 31; Price, 29 So.2d at 753; Whitehead, 223 So.2d at 331; City of Miramar , 429 So.2d at 42. See also, 1980 Fla. Op. Atty. Gen. 6 (Attorney General concludes that municipality cannot prohibit the possession of a cougar as a pet within the municipal boundaries where the GFWFC had issued a permit to allow the cougar to be kept at the residence). However, counties have successfully been able to enact zoning or land use laws that may have an effect on an FWCC permit holder’s ability to keep captive wildlife, despite the permit holder’s compliance with all FWCC rules and regulations. See e.g., City of Miramar , 429 So.2d at 42.
• SPECIFIC EXAMPLES OF LOCAL GOVERNMENTS’ ABILITY TO ENFORCE ZONING LAWS AGAINST FWCC PERMIT HOLDERS
There is only one Florida Appellate case dealing specifically with the issue of a county zoning ordinance wherein the FWCC permit holder alleged that the ordinance could not be enforced because the FWCC had exclusive jurisdiction. In City of Miramar , Susan Bain (“Bain”) had constructed a fence in her front and bank yard to house two cougars that she kept to promote a suntan lotion. So. 2d. at 41. The City of Miramar (the “City”) had an ordinance that prohibited any type of fence in the front yard of a home located in a single family zoning district. Id.
The Court found that the City was entitled to enforce the zoning ordinance against Bain, despite the fact that she held a valid permit from the FWCC and the FWCC had approved the fence. Id. at 43. The Court determined that there was no conflict between the City’s zoning ordinance and the FWCC’s requirements. Id. The Court made this determination based on the fact that Bain had been issued a FWCC permit when she only had a fence in the rear of the property. Id. The Court found that Bain satisfied the FWCC requirements using her garage area and rear fence to house the animals which complied with the City’s zoning requirements when the permit was issued. Id. Thus, Bain could comply with the FWCC requirements using her rear fence and no conflict existed. Id.
The Court went on to state that it was clear from the FWCC regulations that county building and zoning regulations should be enforced even if there is some effect on an owner of wildlife’s ability to obtain an FWCC permit. Id. The Court quotes FWCC regulations that require an applicant to show that he/she is “able to provide suitable caging facilities and able to maintain the personnel pets in an appropriate neighborhood.” Id. The Court interprets this provision as requiring permit applicants to demonstrate that they are in compliance with all local building and zoning regulations, thus blending the FWCC’s exclusive power to regulate with local building and zoning ordinances, which ensures that wildlife will only be maintained in appropriate neighborhoods. Id.
Prior to the litigation that occurred in the City of Miramar case the City had sought an Attorney General (“AG”) opinion as to whether the City could prohibit the possession of the cougars within the municipal boundaries. Fla. AGO 1980-6. The AG opined that the City could not prohibit Bain from keeping the cougars. Id. This AG opinion is previously cited herein for the proposition that the FWCC has exclusive jurisdiction over the regulation of wildlife.
The City of Miramar case is important because it stands for the proposition that cities and counties are free to enact building and zoning ordinances that insure that wildlife will be maintained in appropriate neighborhoods. This ruling potentially allows a way for cities and counties to effectively regulate what areas wildlife can be kept without running afoul of the FWCC’s exclusive jurisdiction. Although there are no later appellate court cases dealing with the same issue that cite to City of Miramar , there is an Attorney General opinion regarding the issue that relies heavily on City of Miramar for its conclusion.
In Fla. AGO 2002-23, the Columbia County attorney sought the AG’s opinion as to whether Columbia County was authorized to regulate the possession and sale of exotic birds through its land use plan and land development regulations. Fla. AGO 2002-23. The specific ordinance in question authorized an individual to possess and house “exotic animals” in agricultural-zoned districts only after obtaining a special exception permit from the Columbia County Board of Adjustment. Id. The Columbia County attorney also sought the AG’s opinion on whether the county could enjoin the possession, breeding or sale of exotic birds in neighborhoods where the county determines that such use is a public nuisance or threat to the public. Id.
The AG opined that Columbia County was entitled to adopt a comprehensive land use and development plan that had the effect of ensuring that permitted wildlife is maintained in suitable neighborhoods. Id. The AG relied heavily on the Court’s opinion in the City of Miramar . Id. The AG comes to the following conclusion regarding zoning and land use regulations:
As the Miramar Court noted, prior to issuing a wildlife permit the commission is required to determine that no violation of existing city or county building or zoning regulations will occur. Thus, to the extent it does not enact regulations conflicting with constitutional and statutory provisions of the commission, a county may adopt general zoning and land use regulations that apply equally to those possessing permitted wildlife and other property owners. For example, the county may adopt zoning regulations providing for side and rear yard size requirements or building set back lines in certain areas of the county. The fact that a permit to possess wildlife has been obtained by an individual does not except that person from the land use restrictions of the area in which his premises is located. While a county may not prohibit the possession, breeding or sale of wildlife, it may adopt and enforce zoning ordinances and land use regulations that may indirectly affect the possession of wildlife. These regulations would not appear to conflict with the Fish and Wildlife Conservation Commission’s wildlife regulatory authority. Id.
Although an AG opinion is not binding on any Court, it can be considered as persuasive authority, and the AG’s argument and conclusion follows from the ruling and dicta in City of Miramar . Therefore, it appears that counties may adopt land use plans and land development regulations that have the effect of limiting wildlife to suitable neighborhoods, and such ordinances would not conflict with the exclusive jurisdiction of the FWCC.
As to the second question, the AG opined that Columbia County could not enjoin possession of wildlife as a public nuisance because the authority to determine initially whether such use constitutes a public nuisance or a threat to the public is vested exclusively in the FWCC. Id. However, the AG went on to state that in the AG’s opinion Columbia County could regulate the abatement of public nuisances such as sanitation or noise that may be associated with the keeping of wildlife. Id. The AG was effectively handing Columbia County an alternative to directly enjoining possession of the birds by suggesting that the county could enjoin the resident from going over a certain noise level, effectively shutting down the operation. Id.
The City of Miramar and Fla. AGO 2002-23, offer a solid argument and some legal authority for the proposition that local governments can effectively limit the possession of wildlife within their boundaries using land use plans and/or land development regulations without running afoul of the FWCC’s exclusive jurisdiction.
IV. PROPOSALS FOR ALLOWABLE ZONING ORDINANCES
The City of Miramar and Fla. AGO 2002-03 provide a direction for counties to follow when enacting land use and land development ordinances that may have the effect of prohibiting and/or limiting the possession of permitted wildlife. However, when enacting any such ordinances county officials must keep in mind that many permit holders will be allowed to continue to possess wildlife as a non-conforming use if the use existed prior to the counties’ adoption of the ordinance in question. Further, counties should be careful to insure that the ordinances apply equally to those possessing permitted wildlife and other property owners. Ordinances that appear to single out wildlife owners could be found invalid as applied. Finally, when considering any proposed ordinance counties should be aware that the validity of the ordinance may ultimately be determined by the Courts.