OrderCITY OF ATLANTIC BEACH, FLORIDA
CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER
The City of Atlantic Beach, Florida
Enforcement Authority,
vs
Ms. Katherine Rowe,
Mr. Andrew Buchwalter,
Dog Owners,
Ms. Martha Marshall
Complainant
FINAL DETERNHNATION AND ORDER
This cause came before Special Magistrate Suzanne W. Green, Esq., on May 11, 2023 for a
final determination of dangerousness of a dog pursuant to Fla. Stat. § 767.10 et seq. and Section 4-8
et seq. of the Code of Ordinances of the City of Atlantic Beach (hereinafter Atlantic Beach Code).
The Special Magistrate being fully advised in the premises, having heard from witnesses, reviewed
the evidence, and having heard argument of counsel for all parties, makes the following findings of
fact, conclusion of law, and order:
FINDINGS OF FACT
A. On April 9, 2023, (Easter Sunday) at approximately 5:00 p.m., Mr. Andrew Buchwalter and
Ms. Katherine Rowe were walking their dogs, Farley and Kobe. Mr. Buchwalter was walking
both of the dogs on their leashes in the street on Sea Oats Drive. Ms. Rowe was walking
several paces behind the dogs and Mr. Buchwalter.
B. Complainant, Ms. Martha Marshall, owned Charlie, a 51b. Dachshund/Maltese mix. Charlie
was twelve (12) years old.
C. Farley is a long-haired Shepard mix (50-70 lbs.), approximately eight (8) years old. Kobe is a
large dog, but was on a separate leash and not involved in the altercation.
D. The altercation occurred either entirely in the street in front of Ms. Marshall's house or
partially at the edge of her property and partially in the street and in front of her house.
Photographs presented by the City of Atlantic Beach (Composite Exhibit # 1: photos marked
Marshall and Rowe, from the City of Atlantic Beach photos) mark the positions of the parties
and the dogs.
E. There was no direct evidence that any part of the altercation occurred on Ms. Marshall's
property.
F. Charlie died in the early evening of April 9, 2023 as a result of his injuries inflicted during the
altercation between Charlie and Farley. Kobe was not involved in the altercation.
G. The parties stated they have not known each other, nor have the dogs met during their tenure
at their residences.
H. Ms. Marshall testified that she was sitting on her porch with her sister, Ms. Barbara Gunter,
and her dog Charlie, who was not leashed. Ms. Marshall stated she had not seen the large
dogs being walked in the street in front of her home before. Charlie noticed the dogs (Farley
and Kobe) and ran off the property towards the street. Ms. Marshall called for Charlie, but he
did not respond. She admitted to kicking Farley to let go of Charlie which eventually
happened.
I. The owners of Farley stated they have never had an altercation with Farley and Farley has
never bitten before. Mr. Buchwalter stated Farley was still on a leash as he attempted to pull
Farley away from Charlie. He stated that Charlie had come into the street, circling himself
and the dogs, snapping around he and Farley. Ms. Rowe reached down and removed Charlie
from Farley's mouth. Charlie was dead.
J. Dr. Kelley Batten performed a necropsy on Charlie and stated in her report that the injuries
were consistent with the report that the larger dog reached down, grabbed the smaller dog
from the top, bit down, and shook.
K. Dr. Voisine testified that Farley has been treated for Addisons Disease with a prednisone
steroid. Expert witnesses testified that the medication results in lethargy, limpness and only
supplies the animal with the hormones the body is not producing. Farley has never had any
previous aggressive episodes. (Composite Exhibit #1: affidavit and testimonies of Dr. Voisine,
veterinarian, and Christine Prince, Vet tech and caregiver for Farley).
L. The composite Exhibit 1 from the Atlantic Beach file contains all statements and affidavits
from witnesses, investigators and medical personnel.
M. Kelly Caton, Animal Control Officer investigated the incident and originally ruled that Farley
"technically" met the definition of a dangerous dog as defined in the Atlantic Beach City
Ordinance 4-10(a)(2). However, she testified there are mitigating factors such as Farley being
leashed while being walked and Charlie unleashed and off the property of its owner, Ms.
Marshal, and therefore did not classify Farley as a "dangerous dog".
N. Chief of the Atlantic Beach Police Department, Victor Gualillo, testified he had reviewed the
reports and applicable ordinances. He interpreted the Atlantic Beach Code as being more of
a strict liability ordinance as compared to the Florida Statute 767.11(1)(b) which defines a
dangerous dog as any dog that has "more than once severely injured or killed a domestic
animal while off the owner's property". He testified that he believed the provocation language
in the City Ordinance (subsection 7) pertains to people and not to other animals causing the
provocation.
O. A preponderance of the evidence presented at the hearing established that Farley killed
Charlie while off the owner's property. There was no other evidence presented that Farley
had injured or killed any other animals or had injured or threatened any people.
P. All of the documents referenced in these factual findings or reviewed by the special magistrate
were received into evidence at the hearing.
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CONCLUSIONS OF LAW
1. Both Fla. Stat. § 767.10 et seq. and Atlantic Beach Code § 4-8 et seq. apply to these proceedings.
2. Different standards for classifying a dog as dangerous apply under the state statutes and the
local ordinances depending on whether a dog has severely injured a person or killed an
animal.
3. Under Fla. Stat. § 767-1l(1)(b), a dangerous dog is a dog that "according to the records of
the appropriate authority... [h]as more than once severely injured or killed a domestic animal
while off the owner's property."
4. Under Atlantic Beach Code of Ordinances § 4-10(a)(2), a dangerous dog is a dog that
"according to the records of the appropriate authority... [h]as severely injured or killed a
domestic animal while off the owner's property." Unlike the state statute, Atlantic Beach's
ordinances do not require the dog to severely injure or kill more than one domestic animal
before being classified as dangerous animal. .
5. In the case of Hoesch v Broward Co., The Fourth District Court of Appeals held that a local
government does not have the authority to enact its own ordinance that allows a dog to be
classified as dangerous after killing only one domestic animal. 53 So. 3d 1177 (2011). The
Court specifically stated that Fla. Stat. § 767.14, which allows local governments to enact
additional restrictions on owners of dangerous dogs, does not allow local governments to
change Fla. Stat. § 767.11(1)(b)'s definition of a dangerous dog. Id. at 1180. The Florida
Supreme Court has not addressed these issues, and no other district court of appeal opinions
exist that conflict with Hoesch. Thus, the Hoesch case is binding precedent for this
proceeding. Atlantic Beach must follow the definition of dangerous dog provided by Fla.
Stat. § 767.11(1)(b), and not the definition provided by Code § 4-10(a)(2). Furthermore, the
state statute carries a "criminal" misdemeanor punishment with a second bite or attack
specifying the dog as dangerous. The Atlantic Beach Code deems the dog dangerous after
one attack.
6. Farley may not be classified as a dangerous dog. However, since Farley has now killed a
domestic animal, if he kills another domestic animal (or engages in any of the other acts that
can lead to a dangerous classification), that dog is eligible to be classified as dangerous.
It is therefore Ordered and Determined:
7. The City of Atlantic Beach's final determination that cause exists to classify Farley as a
dangerous dog is reversed. Farley may not be classified as a dangerous dog at this time.
DONE AND ORDERED THIS /(a DAY OF MAY, 2023.
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lam/
SPECIAL MAGISTRATE
Copies furnished via registered mail
and certified hand delivery by
The City of Atlantic Beach to:
Ms. Marsha Marshall
1655 Sea Oats Drive
Atlantic Beach, F1. 32233
First Class and Certified Mail Return Receipt Requested: 7022 2410 0000 9397 1353
Mr. Buchwalter
Ms. Katherine Rowe
1663 Sea Oats Drive
Atlantic Beach, Fl. 32233
First Class and Certified Mail Return Receipt Requested: 7022 2410 0000 9397 1346
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