MANATEE -- The defendant in the case against the dog Padi has filed a motion for summary judgment, arguing that the state's Dangerous Dog Law is unconstitutional.
Manatee County subsequently filed a motion for summary judgment, saying that if the 12th Judicial Circuit finds the Florida Statute unconstitutional, Padi should be permanently released to the owner's custody with no further restrictions.
Attorney Charles Britt, on behalf of Padi's owners Paul Gartenberg and his wife, filed the motion for summary judgment to the 12th Judicial Circuit, which will be hearing the case and ruling on the constitutionality of the state law.
In the motion for summary judgment, filed Friday, the defendant states Florida Statute 767.13(2), which is the state's Dangerous Dog Law, is unconstitutional "because there are no genuine issues of material fact and based upon the case law as applied in this circumstance."
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"The Respondent respectfully prays and requests, based upon the forgoing facts and case law, that the Court find Section 767.13(2), Florida Statutes, as written and subsequently applied in this case to be unconstitutional ab initio, as violative of the Due Process Clause of the U.S. and Florida Constitutions," the motion for summary judgment reads. "In addition, the Respondent requests further that the case and charges against 'Padi' be dismissed with prejudice, and that all previously imposed conditions of release be revoked."
Robert Eschenfelder, the
county's chief assistant county attorney, filed the motion for summary judgment to the 12th Judicial Circuit on Monday.
In the motion, the county states that they seek a "declaratory judgment from this Court declaring: 1) whether Florida Statutes 767.13(2) is unconstitutional as written and as so found by other courts which have examined the question, and 2) if so, pursuant to this Court's authority to grant supplemental relief as set forth in Florida Statutes 86.061, that the underlying citation be found void ab initio and that Defendant's dog be permanently released to his custody with no further restrictions."
Britt said the statute doesn't allow for any exceptions.
"These situations are different. You can't do that," Britt said.
"The law was written as a reaction. It doesn't break it down by degree."
Britt added that it is also a "Constitutional issue that you shouldn't write a law that lets an administrative agency to basically pick and choose what parts of the statute to use."
Now that the motions are filed, the parties will meet with the court to set a hearing date.
Britt said he is hoping to have a court date by a month from now.
"We have been inquiring," he said, adding that he would like to do it before Thanksgiving.
Padi, a 4-year-old male Labrador mix, bit a child's ear June 4 when the child and his babysitter were visiting the Pet Clinic at 714 60th St. Court E. in Bradenton, which is owned by Gartenberg.
Accounts differ on whether the child lunged at Padi in an effort to get him out from under the desk or if Padi lunged at the child when he bent over to pick up a toy by the desk.
In the summer, Eschenfelder and Britt filed a joint motion asking the circuit court to intervene and rule on the constitutionality of the state law.
If the court rules the law as unconstitutional, then Padi will be released and the case will be closed.
"The county would not appeal such a ruling, but would instead suggest it would further support the need for the Legislature to revise the law in its 2016 session, as our county commission requested recently," Eschenfelder has said.
If the court rules the law is constitutional, then Gartenberg would have the choice to either return to the hearing officer process or appeal the court's ruling to the Second District Court of Appeal.
Britt said he thinks it is a "very interesting argument, to say the least."
"You have differing opinions about how the statute should be applied and read," he said. "This should give us some guidance here in Manatee County."
State Rep. Greg Steube, R-Sarasota, filed legislation to change the state law to allow exceptions if the person injured was unlawfully on the property or abusing the dog or its owner, or the dog was defending a human.
In an email to Manatee County commissioners sent Tuesday, Nick Azzara, the county's spokesman, said Steube's bill, which recently got a Senate sponsor, is expected to be discussed by the House Civil Justice Subcommittee on Oct. 7.
Claire Aronson, Manatee County reporter, can be reached at 941-745-7024. Follow her on Twitter @Claire_Aronson.