728 F.Supp. 1533
AMERICAN DOG OWNERS ASSOCIATION, INC., et al., Plaintiffs,
DADE COUNTY, FLORIDA, et al., Defendants.
United States District Court,
Nov. 30, 1989.
Associations of dog owners sued city, seeking declaratory judgment that ordinance regulating "pit bull" dogs was unconstitutional. The District Court, Hoeveler, J., held that ordinance sufficiently defined "pit bull" dogs by specifically referencing three breeds recognized by kennel clubs, including description of characteristics of such dogs, and providing a mechanism for verification of whether a particular dog was included under statute.
 FEDERAL COURTS k56
Abstention was not warranted in case brought by associations of dog owners claiming that ordinance regulating pit bull dogs was unconstitutional; state court had previously considered similar issues and interpreted language identical to language at issue and matter presented urgency which militated against delay.
 CONSTITUTIONAL LAW k48(3)
Federal courts must proceed cautiously when considering attacks on constitutionality of state statutes, so that if statute can be made constitutionally definite by reasonable construction, federal court must apply such construction.
 STATUTES k47
To avoid unconstitutionality based on vagueness, all that is required is that people to whom state statute is addressed will, if they are of common intelligence, be placed on notice as to what the law forbids. U.S.C.A. Const.Amend. 14.
 STATUTES k47
Constitution tolerates greater degree of vagueness in enactments with civil rather than criminal penalties. U.S.C.A. Const.Amend. 14.
 MUNICIPAL CORPORATIONS k604
Ordinance regulating "pit bull" dogs was not unconstitutionally vague for failure to properly identify animals it covered; ordinance specially mentioned three breeds recognized by kennel clubs, added an appendix setting forth physical characteristics deemed to be those of "pit bull" dogs, and provided a procedure for verification of whether particular dog was covered by ordinance. U.S.C.A. Const.Amend. 14.
*1534 Steven Wisotsky, Ft. Lauderdale, Fla., and William Berger, Miami, Fla., for plaintiffs.
Robert A. Ginsbury, Dade County Atty., and Cecilia M. Altonaga and Thomas
W. Logue, Asst. County Attys., Miami, Fla., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HOEVELER, District Judge.
THIS CAUSE came before the Court for a two and one-half day trial commencing July 10, 1989. Plaintiffs' complaint presents a pre-enforcement facial challenge to the constitutionality of Dade County Ordinance No. 089-22 on the basis that the ordinance is impermissibly vague. The ordinance purports to regulate ownership of pit bull dogs ("pit bulls") by requiring registration, enclosure or leashing and muzzling of existing pit bull dogs and by prohibiting the acquisition of new ones. The ordinance defines pit bull dogs by referring to standards set forth by the American Kennel Club ("AKC") and the United Kennel Club ("UKC"), providing that dogs substantially conforming to those characteristics will be considered pit bulls. Plaintiffs' challenge to this ordinance rests on their contention that the definitional sections are so vague and uncertain as to deprive plaintiffs of their liberty and property without due process of law. The complaint seeks declaratory and injunctive relief as well as damages.
Both parties presented witnesses, including experts and trial exhibits.
On the basis of testimony, evidence and arguments presented by both sides,
as well as post-trial submissions, the Court makes the following Findings
of Fact and Conclusions of Law.
FINDINGS OF FACT
I. The parties
Plaintiff, Responsible Dog Owners of Dade ("RDOD") is an unincorporated association created to advance the interests of dog owners and to defend them from hostile legislation. RDOD is comprised of dog owners who live in Dade County or who, as dog fanciers, are potentially subject to the challenged ordinance. Plaintiff American Dog Owners Association, Inc. ("ADOA") is a Michigan nonprofit corporation formed for the advancement and protection of the interests of dog fanciers. ADOA is a national organization whose purpose is to educate people, teach responsible dog ownership and to advocate legislation which is non-breed specific. Many ADOA members live in Dade County and may be subject to the challenged ordinance because of dog ownership or exhibition.
Plaintiff, Robert Sanchez is President of RDOD, a Dade County resident and owns two dogs which may be subject to the ordinance. One of his dogs, Rex, is a pure-bred animal registered with the United Kennel Club ("UKC") as an American Pit Bull Terrier. The other dog, Whiskey, is unregistered and of uncertain lineage. Whiskey's dog license states that he is a mixed breed. Sanchez claims that he does not know whether either of his dogs is covered by the ordinance, despite Rex's registration and an animal control officer's identification of Whiskey as a pit bull. Sanchez states that he does not know what the definitional terms of the ordinance mean and thus does not know whether his dogs have the physical characteristics set forth in the definitional standards. Moreover, Sanchez complains that if the ordinance is applied to him, he will no longer be able to participate in his favorite sport of shitsun competition (apparently some form of search and rescue exercise), because he could not participate if his dogs were leashed and muzzled.
Defendant, Metropolitan Dade County is the law-making body for Dade
County, Florida which adopted Ordinance No. 089-22, amending Chapter 5
of the Metropolitan Dade County Code. Defendant, Zoraida *1535 Diaz-Albertini
is the Director of the Dade County Animal Services Division and is responsible
for enforcing the challenged ordinance.
II. The Ordinance
The Dade County Commission adopted Ordinance No. 089-22 on April 4, 1989, effective April 14, 1989. Legislative fact findings included facts indicating that the selective breeding of certain characteristics in pit bull dogs made these dogs a danger to health and welfare different from the dangers presented by other breeds. The Preamble to the Ordinance contains the several factual findings made by the Board of County Commissioners of Dade County that pit bull dogs require special regulation because of their dangerous propensities. These findings were not challenged by the plaintiffs, and are accepted as true for the purposes of this preenforcement challenge. The Ordinance is reproduced in full in Appendix A. Enforcement of the ordinance was postponed until July 14, 1989.
The ordinance purports to protect the community by confinement and muzzling requirements. As indicated, ninety days after the effective date of the ordinance, no pit bull dogs may be acquired or brought into Dade County (Ord.Sec. 5-17.6(b).
At the time trial commenced, only seven pit bull dogs had been registered with Animal Control pursuant to the ordinance. A great number of licensed dogs are listed as pit bulls on their Dade County dog licenses. Failure of a pit bull dog owner to comply with the Ordinance subjects the owner to civil fines and to possible destruction of the dog by a court of competent jurisdiction. Dade County Code at Sec. 8CC-10. By its terms, enforcement of the penalty provisions of the Ordinance commences on July 14, 1989. Ordinance at SEc. 5- 17.6(a).
Plaintiffs initiated this suit on April 21, 1989, and after several
amendments to their pleadings, raised the following issues for resolution
by the Court: (a) are the definition of pit bull dog and the exceptions
from confinement in the Ordinance so vague that they violate due process
of law under the federal constitution; (b) does the Ordinance violate Florida
constitutional provisions by delegating enforcement to the executive branch
without standards. This is a pre-enforcement challenge.
III. Identification of Pit Bull Dogs
Plaintiffs contend that there is no such thing as a pit bull dog. Rather, they contend that there are three breeds which the ordinance in question has mistakenly lumped together. Further, plaintiffs contend that the standards set forth by the kennel clubs and incorporated by the Dade County ordinance were never meant to be used for identification, but only as a reference regulating the owners of existing pit bull dogs and banning acquisition of these dogs after July 13, 1989. [FN1] The ordinance applies on its face to any dog that "exhibits those distinguishing characteristics" which "substantially conform" to American Kennel Club ("AKC") or United Kennel Club ("UKC") standards. The ordinance also states that technical deficiencies in a dog's conformance to the standards will not prevent it from being considered a pit bull. The definitional standards in the ordinance encompass characteristics of dogs from three breeds recognized by the AKC and UKC: American Staffordshire Terriers, American Pit Bull Terriers and Staffordshire Bullterriers. The ordinance defines the breed of dog not according to bloodlines, but according to physical characteristics. Owners unsure about the breed of their dogs may bring them to Animal Control Division for a determination. [FN2]
Despite plaintiffs' contention that there is no such animal as a pit bull, plaintiffs' own experts have written articles about their pedigreed dogs referring to them by the common nickname of pit bull. At trial, these experts identified photographs of dogs as pit bulls, rather than delineating the dogs into any one of the three breeds recognized by the kennel clubs. Moreover, veterinarians commonly identify dogs as pit bulls--rather than one of the three recognized breeds--by their physical characteristics. Two veterinarians, testifying for the defendants, stated that they are often called upon to identify a dog's breed because it is an integral part of the animal's health record. This they do by reference to standard physical characteristics. Generally, these veterinarians testified, owners themselves know what breed their dog is.
The trial testimony shows that most dog owners know or have a preconceived idea of, the breed of the dog they possess. (T.R. at 394). The term pit bull, alone, is a descriptive term that conjures up a picture of a particular breed of dog (T.R. at 105), and is a critical component of the definition of this dog in the Ordinance. (T.R. at 110). Breed identification based on appearance is, of course, necessarily a valid judgment. (T.R. at 93).
Although no dog registry recognizes a breed of dog by the name pit bull, the term is often used as nickname in Bloodlines, the official magazine of the United Kennel Club. (T.R. at 135-36). Pit bull is used by persons having an extensive background in the UKC and AKC dogs, as for example, former plaintiff Marilyn Brubaker Thompson. (T.R. at 518). Marilyn Thompson has used the term pit bull dog to refer to her dogs, which are cross registered as UKC-registered American Pit Bull Terriers, and AKC American Staffordshire Terriers. (T.R. at 520-21). Testimony was received concerning various dog clubs which use the term pit bull in their name and whose special emphasis is on American Pit Bull Terriers and American Staffordshire Terriers. (T.R. at 516, 521-24).
The term "pit bull" dog is widely used in the media, in decisional law, by veterinarians, animal control officers, and citizens of Dade County. (T.R. at 357-370). Testimony was heard from several veterinarians that pit bull dog is a designation routinely used to identify the three breeds listed in the Ordinance. (T.R. at 395). Animal control officers have been using the term on a daily basis for years. Over one thousand residents of the County own dogs, which either they or their veterinarians have identified as pit bulls when applying for dog licenses.
Pit bull dogs share a typical physical appearance because of their genetic background, notwithstanding the fact that there is variability in the physical appearance, or phenotype, of these dogs. (T.R. at 217). That distinctive phenotype, according to sources reported in the official UKC publication, Bloodlines, has hardly changed in the last forty years. (T.R. at 133-34). The pit bull is a distinctive dog in its appearance.
Veterinarians routinely identify dogs by their breed for record keeping and diagnostic purposes. (T.R. at 99, 100). The most important thing veterinarians look for in trying to identify the breed of a particular dog is the dog's physical appearance and conformation. (T.R. at 392).
Pit bulls vary in size, color and head and body shape. Most pit bull dogs have no pedigree papers. Experts for both the plaintiffs and the defense testified that they have been wrong in their identification of pit bulls, by varying percentages. [FN3] Lt. *1537 Armand Miller, Supervisor of Dade County's Animal Control Division, stated that his trained officers will be able to correctly identify pit bulls 90 to 95% of the time. Although there was testimony that a new genetic fingerprinting technique may be developed in the short-term future, no such scientific testing is currently available.
Veterinarians opine that ordinary citizens may be trained to identify the breed of a dog based on the dog's physical appearance. In fact, one resident of the County gave testimony that he was able to determine the breed of the dog he owned after comparing its physical conformation to that of other pit bulls he had seen in the media. (T.R. at 457).
At least one expert testified that he would not recommend using a definition of pit bull dog which depended on registration with one of these two national dog registries because there are many pit bull dogs that are not registered. Such a definition would only address a very small part of the pit bull problem. (T.R. at 405-06).
Presently, there exists no better method of identifying a pit bull dog than by its appearance. (T.R. at 418-19). Even if a scientific method is developed to identify breeds of dogs, an enforcement scheme will still depend on initial visual identification. (T.R. at 438-39).
A breed standard is a description of the ideal phenotype or physical conformation of each recognized breed to serve as a word pattern by which dogs are judged at shows. (T.R. at 87-88). However, breed standards are also used by people interested in dogs, and appear routinely in dog magazines. (T.R. at 137, 406-07).
The AKC or UKC standards at issue describe the pit bull dog as well as words can do. (T.R. at 406). Most of the terms in the standards are understandable to reasonably intelligent persons. (T.R. at 408). With a little effort, and possibly some external assistance, an interested person can utilize the standards in the Ordinance to identify the breed of a particular dog. (T.R. at 420, 449-50).
Approximately 60 dogs a day are secured by Dade County Animal Control specialists, or enforcement officers, and each is identified by breed for record keeping purposes and in order to facilitate reuniting the dog with its owner. (T.R. at 59-50). While the County has never had a breed-specific ordinance such as the one in question (T.R. at 29-30), it is routine in the Animal Control industry to identify dogs by breed based on their physical appearance.
After passage of the Ordinance, Animal Control officers received training in ways to identify a pit bull dog and on the terms used in the standards. (T.R. at 33-34). In addition to the standards contained in the Ordinance, the officers have a breed book, other visual aids, and their professional judgment and experience to assist them in identifying a dog as a pit bull. (T.R. at 37- 44).
Since the enactment of the Ordinance, the County Animal Control Services Division has established standard operating procedures ("SOP") designed to govern the activities of its enforcement personnel vis-a-vis the Ordinance. The SOP includes a requirement that Animal Control render a binding opinion, upon request, as to whether a dog is subject to the provisions of the Ordinance, and if it is determined not be a pit bull, the dog's owner is given an exclusion certificate. Plaintiffs' Trial Exhibit 4.
Animal Control specialists, because of their experience in handling and identifying pit bull dogs on a daily basis, will be able to identify pit bulls with accuracy. They will *1538 use the standards in the Ordinance to assist them, as well as the various other tools at their disposal. (T.R. at 62-63).
By the time of the trial, at least seven County residents have registered their pit bulls with the County under the provisions of the Ordinance. The photographs of the pit bulls in the registration files show dogs which substantially conform to the standards used in the Ordinance. (T.R. at 43, 67- 69).
Persons familiar with dogs can use the standards in the Ordinance
to identify a pit bull dog. (T.R. at 110).
Lt. Armand Miller, Supervisor of Animal Control Division, testified
that in addition to the standards set forth in the ordinance itself, his
officers have been given training by a veterinarian on the identification
of pit bulls. The officers have also been given copies of Simon & Shuster's
Guide to Dogs (1980), a guide that experts for both sides recognized
as authoritative. The standard operating procedures manual carried by the
officers has additional pictures and physical standards to aid the officers
in their identification. The Gaines Guide to American Dogs, a poster
recognized by all the testifying experts as authoritative, is prominently
displayed in the Animal Control workplace. The officers have been instructed
to issue citations for violation of the ordinance only to those owners
whose dogs they have positively identified as pit bulls.
CONCLUSIONS OF LAW
Plaintiffs brought this action for declaratory judgment under the Civil Rights Act, 42 U.S.C. §§ 1983-88, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. This Court has jurisdiction under 28 U.S.C. §§ 1331(a), 1343(3) and (4).
 Prior to trial, defendants requested that the Court abstain from exercising jurisdiction until such time as the state courts had been given the opportunity to interpret the legislation at issue. A motion to abstain is directed to the sound discretion of the trial court. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). Furthermore, "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Because a Florida court previously considered similar issues and interpreted language identical to the language at issue here, albeit in a city ordinance, see State v. Peters, 534 So.2d 760 (Fla. 3d DCA 1988), rev. denied, 542 So.2d 1334 (Fla.1989), the Court declines to abstain. Additionally, the matter presents an urgency which militates against delay.
 Federal courts must proceed cautiously when considering attacks on the constitutionality of the state statutes, see Cotton State Mutual Insurance Company v. J.O. Anderson, 749 F.2d 663, 667 (11th Cir.1984) (citation omitted), so that if a statute can be made constitutionally definite by reasonable construction, this Court must apply such a construction. See Jones v. Continental Insurance Co., 670 F.Supp. 937, 943 (S.D.Fla.1987).
This matter was presented from an evidentiary and argument standpoint on the narrow issue of whether or not the ordinance is facially vague. The issues were presented in such a way that the court has regarded the action of the county as legislatively proper from the standpoint of the basis and need for the ordinance. As suggested elsewhere in this memorandum, plaintiffs, while not agreeing, did not take issue with the factual basis for the County's legislative action. Rather, plaintiffs elected to concentrate their constitutional attack on the facial invalidity of the ordinance. Thus, the court accepts as given that the promulgation of this ordinance was a valid exercise of the police power and is rationally related to a legitimate government interest.
Plaintiffs having confined their challenge to the facial validity of the ordinance, contend that its standards are so vague that no reasonable person could know whether or not a particular dog was subject to the ordinance. Thus, plaintiffs assert that the *1539 ordinance not only fails to give notice to dog owners who may not be able to discern from the standards whether their dogs are subject to the ordinance, but also fails to establish minimal guidelines to govern law enforcement.
 Vague laws fail to provide notice and thus may trap the innocent. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Moreover, in order to prevent arbitrary and discriminatory enforcement, laws must provide explicit standards of enforcement. Id. However, there is no requirement that the language of a legislative enactment be mathematically precise. Id. at 110, 92 S.Ct. at 2300. All that is required is that the people to whom the statute is addressed will, if they are of common intelligence, be placed on notice as to what the law forbids. High Ol' Times v. Busbee, 673 F.2d 1225 (11th Cir.1982).
The fourteenth amendment due process guarantee against vagueness requires that laws provide fair warning to persons of ordinary intelligence of the conduct prohibited, and standards to protect against arbitrary and discriminatory enforcement. Florida Businessmen, etc., v. City of Hollywood, 673 F.2d 1213, 1218 (11th Cir.1982) (citations omitted). Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). In this pre-enforcement challenge, the principal question is whether the law affords fair warning of what is proscribed. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503, 102 S.Ct. 1186, 1195-96, 71 L.Ed.2d 362 (1982), rehearing denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982).
 The Constitution tolerates a greater degree of vagueness in enactments with civil rather than criminal penalties. Cf., High Ol' Times, 673 F.2d at 1229; Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). See also Flipside, 455 U.S. at 498-99, 102 S.Ct. at 1193 ("the Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.") (citations omitted). The Ordinance here is civil in nature.
 The question thus facing this court is whether the instant ordinance provides sufficient guidance to dog owners of ordinary intelligence to register and properly restrain pit bull dogs they already own and to abstain from purchasing new ones. There is no need for legislation to give fair warning except to those potentially subject to it. Flipside, 455 U.S. at 501 n. 18, 102 S.Ct. at 1194 n. 18. The relevant inquiry is therefore whether the average dog owner is given fair warning.
The Ordinance regulates a group, the dog owning public, that has a special knowledge of the matter being regulated. The uncontradicted testimony of the various veterinarians in this case reflects that most dog owners know the breed of their dog. In fact most dog owners look for and select a dog of a particular breed because of their knowledge of or interest in a particular breed. For this reason, too, the Ordinance is subject to a less strict standard of review. Fleming v. United States Department of Agriculture, 713 F.2d 179, 194 (6th Cir.1983) ("When the persons affected by the regulations are a select group with specialized understanding of the subject being regulated the degree of definiteness required to satisfy due process concerns is measured by the common understanding and commercial knowledge of the group.")
There was ample testimony that most people know what breed their dogs are. Although the plaintiffs and their experts claim that the ordinance does not give them enough guidance to enable owners to determine whether their dogs fall within its scope, the evidence established that the plaintiffs themselves often use the term "pit bull" as a shorthand method of referring to their dogs. Numerous magazine and newspaper articles, including articles in dog fancier magazines, refer to pit bull dogs. Veterinarians typically refer to the three recognized breeds and mixed breeds with conforming characteristics as pit bulls. In addition, the veterinarians who *1540 testified stated that most of their clients know the breeds of their dogs.
The agency responsible for enforcement of the Ordinance, Dade County Animal Services Division, promulgated a set of Standard Operating Procedures, one of which permits dog owners who are in doubt as to whether their dog is a pit bull to obtain a binding, written determination from Animal Control that the dog is or is not a pit bull dog. See SOP, para. 4. This administrative procedure reduces the level of scrutiny with which this Court will review the challenged Ordinance since such a procedure lessens the amount of precision in definition required by due process. See e.g., Record Head Corporation v. Sachen, 682 F.2d 672, 674 (7th Cir.1982) ("[E]conomic regulation may be less precise than other forms of legislation because the entities affected by it are ... more able to clarify uncertainties through inquiry or administrative proceedings.") (emphasis added); Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (less strict standard of review for vagueness is in order when "the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.").
In a vagueness challenge, the plaintiff bears the burden of showing that the law in question is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). Such a provision simply has no core." Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1979).
The language of the ordinance explicitly covers pit bull dogs. The evidence clearly demonstrates that there is some breed or mixed breed of dog that is commonly referred to as a pit bull. Thus, the law affords fair warning of what is proscribed. See Flipside, 455 U.S. at 502, 102 S.Ct. at 1195 (the principal inquiry of facial vagueness is whether the law affords fair warning of what is proscribed). The Southern District of Ohio, in facing a similar vagueness challenge to a local pit bull ordinance, found the ordinance to be constitutionally valid even though the ordinance contained only the terms pit bull terrier, Staffordshire Bull Terrier or American Staffordshire Terrier, without including physical characteristics or other definitions. [FN4] Vanater v. Village of South Point, 717 F.Supp. 1236 (S.D.Ohio 1989). An Ohio appellate court upheld another Ohio ordinance which did not set forth any definition of a pit bull. City of Lima v. McFadden, No. 1-85-22, 1986 WL 7474 (Ohio Ct.App. June 30, 1986). The ordinance before this court, in contrast, provides as a further aid to dog owners, an appendix with the physical characteristics set forth as standards for the breed by the AKC and the UKC.
If, after consulting the ordinance, an owner remains in a quandary as to whether the ordinance applied to him, the owner could seek guidance from a dictionary, a guidebook to dogs or from his or her veterinarian. Further resort could be had to Animal Control Services for a binding determination as to the breed of the dog. The county may adopt further administrative regulations that may sufficiently narrow potentially vague and arbitrary interpretations of the ordinance. See, Flipside, 455 U.S. at 504, 102 S.Ct. at 1196 (further steps may be taken to minimize the dangers of arbitrary enforcement). These guidelines and aids to identification are not, strictly speaking, relevant to the court's vagueness inquiry, however. Flipside, 455 U.S. at 502, 102 S.Ct. at 1195.
A court faced with a pre-enforcement facial challenge to the alleged vagueness of a legislative enactment that does not reach constitutionally protected conduct [FN5] should uphold the challenge only if the enactment is impermissibly vague in all of its applications. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). Here, the object regulated by the Ordinance is dogs having the physical appearance of pit bulls. Plaintiffs claim that "[d]ogs, too, are members of the family, and the owner's choice or decision to make that choice is entitled to substantial constitutional protection." Plaintiffs' Trial Brief at 11. The weight of authority, however, demonstrates that ownership of dogs does not implicate fundamental constitutional rights. "Property in dogs is of an imperfect or qualified nature and they may be subject to peculiar and drastic police regulations by the state without depriving their owners of any federal right." Nicchia v. People of State of New York, 254 U.S. 228, 230- 31, 41 S.Ct. 103, 104, 65 L.Ed. 235 (1920). "Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens." Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 17 S.Ct. 693, 695, 41 L.Ed. 1169 (1897).
Plaintiffs have failed to sustain their burden of proof. The evidence of record shows that since the passage of the Ordinance, at least seven County residents have complied with the registration/confinement requirements of the Ordinance. The Court heard testimony that the dogs registered under the Ordinance substantially conformed to the physical appearance of the pit bull. Clearly, these registrations show that the Ordinance can be and has been validly applied. A facial challenge in this context means that there is no valid application possible. Id. 455 U.S. at 494 n. 5, 102 S.Ct. at 119 n. 5. Clearly there are some applications of this ordinance that are valid. The ordinance purports to regulate pit bull ownership. Those people who know they have pit bull dogs cannot complain that the statute is vague as applied to them. Plaintiff Sanchez, for example, has at least one purebred dog he knows to be what is commonly referred to as a pit bull. *1542 Dade County dog owners who have already registered their dogs as pit bulls under the ordinance also know what kind of dogs they have. These people have clearly had notice that their dogs are subject to regulation by the ordinance. Thus, the ordinance is not unconstitutionally vague as applied to them, and, therefore, there are some applications of the ordinance that are valid.
The term "pit bull" has appeared in over 30 published judicial opinions [FN6] and in such magazines of general circulation as Newsweek, U.S. News & World Report, Time, Ladies Home Journal, and Sports Illustrated. In South Florida, the local newspaper, THE MIAMI HERALD, has published over 30 articles using the term pit bull in the last several years.
The Court concludes that the definition of a Pit Bull Terrier in this ordinance is not unconstitutionally vague. An ordinary person could easily refer to a dictionary, a dog buyer's guide or any dog book for guidance and instruction; also, the American Kennel Club and United Kennel Club have set forth standards for Staffordshire Bull Terriers and American Staffordshire Terriers to help determine whether a dog is described by any one of them.
Vanater, at 1244 (emphasis added). See also Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355, 360 cert. denied, 107 N.M. 785, 765 P.2d 758 (1988) (an ordinance banning dogs "known as American Pit Bull Terriers" is not unconstitutionally vague); Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758 (1989); State v. Robinson, 44 Ohio App.3d 128, 541 N.E.2d 1092 (1989) (upholding against a vagueness challenge an ordinance that regulated dogs "commonly known as pit bull dogs"); City *1543 of Lima v. McFadden, No. 1-85-22, 1986 WL 7474 (Ohio App.1986) (upholding ordinance that names but does not otherwise define "pit bull dogs").
As suggested previously, ordinance provisions need not be cast in terms that are mathematically precise so long as they give fair warning of the conduct proscribed, in light of common understanding. Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir.1980), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980) ("school" and "sexually oriented commercial enterprise," not vague). See also Miller v. California, 413 U.S. 15, 28, 93 S.Ct. 2607, 2617, 37 L.Ed.2d 419 (1973) (absolute "god-like precision" not required by the Constitution). "[F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of government inevitably limit the specificity with which the legislatures can spell out prohibitions." Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367 (1952). See also Ferguson v. Estelle, 718 F.2d 730, 734 (5th Cir.1983) (there are inherent limitations in the precision with which concepts can be conveyed by the English language).
Plaintiffs' claim that the law violates the Florida constitutional doctrine of unlawful delegation of legislative authority to the executive branch must also fail. The ordinance delegates no greater discretion to enforcement officers than do drug paraphernalia laws.
While Plaintiffs' final pleading and Trial Brief contain a claim that
the Ordinance's exceptions to the confinement requirements are vague, i.e.,
what is a "lawful dog show" or the sport of hunting by a "competent
person" in "an authorized area," no evidence was presented to show how
these exceptions violate the due process guarantee against vagueness. Certainly,
there was much testimony by Plaintiffs' witnesses concerning dog
shows, dog show judges, and the goings on of dog shows. The
distinction between a lawful and unlawful dog show is not such as
would be incapable of being understood or discerned by the public. Similarly,
Florida laws on hunting requirements, and common understanding that to
engage in the sport of hunting one must first consult and comply with the
legal restrictions imposed by the State, make the challenge to the hunting
Based upon the substantial evidence presented at trial, this court finds that Dade County Ordinance No. 89-022 provides sufficient guidance to dog owners, both in its explicit reference to pit bull dogs, and in its definitional section, to enable pit bull owners to determine whether their dogs fall within the proscriptions of the ordinance. Whether the ordinance will be applied in a discriminatory fashion is a question that cannot be determined in the context of this pre-enforcement action. Certainly there are some applications of the ordinance which pass constitutional muster. As long as the enactment is not impermissibly vague in all its applications, this court must uphold its constitutionality. Upon consideration of the evidence presented at trial, the pleadings, memoranda, exhibits and arguments of counsel and upon application of the controlling authority, this court finds that plaintiffs have failed to meet their burden of proof and that the Court is required to uphold the constitutionality of Dade County Ordinance No. 089-22.
Accordingly, this Court will grant judgment in favor of the defendants, Dade County and Zoraida Diaz-Albertini and against the plaintiffs, American Dog Owners Association, Inc., et al. A separate judgment will be entered on this day.
DONE AND ORDERED.
THIS CAUSE came before the Court after the Plaintiffs filed suit against the Defendants contending that the Dade County Ordinance 089-22 was facially unconstitutional and defective in other respects. The Court, heard and viewed evidence, permitted arguments of counsel and post-trial *1544 submissions. The Court being advised in the premises has entered on this day, Findings of Fact and Conclusions of Law determining that the Plaintiffs have failed to sustain the burden of proving that the judgment should be entered in favor of the defendants. It is, therefore, ordered that judgment be and it is hereby entered in favor of DADE COUNTY, FLORIDA and ZORAIDA DIAZ-ALBERTINI, and against the Plaintiffs AMERICAN DOG OWNERS ASSOCIATION, INC., and RESPONSIBLE DOG OWNERS OF DADE, an unincorporated association and ROBERT SANCHEZ, and that the Plaintiffs take nothing nor are they entitled to the relief they seek as a result of this action. As a result of this judgment, the Plaintiffs' cause is dismissed, with prejudice. Such costs as may be taxable will be considered by the Court upon motion properly filed.
DONE AND ORDERED.
Amended Alternate Agenda Item No. 2(a) 4-4-89
ORDINANCE NO. 89-22
ORDINANCE AMENDING CHAPTER 5 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA,
RELATING TO THE REGULATION OF "PIT BULL" DOGS AND OWNERS OF "PIT BULL" DOGS;
PROVIDING LEGISLATIVE FINDINGS AND INTENT; PROVIDING DEFINITIONS; PROVIDING
FOR CONFINEMENT OF PIT BULL DOGS; PROVIDING FOR FINANCIAL RESPONSIBILITY OF
OWNERS OF PIT BULL DOGS; PROVIDING REGISTRATION, ENFORCEMENT, TIME OF
COMPLIANCE AND PENALTIES; AMENDING CHAPTER 8CC OF THE CODE TO ADD CIVIL
PENALTY; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE
WHEREAS, in recent months Dade County has experienced a tragic series of incidents in which citizens have been attacked and seriously injured by pit bull dogs; and
WHEREAS, concurrent with these attacks upon human beings, the community has also experienced an increasing number of animal killings resulting from pit bull attacks; and
WHEREAS, pit bull breeds were developed for the purpose of fighting dogs and other animals; and
WHEREAS, to increase its effectiveness as a fighter, certain pit bull traits have been selected and maximized by controlled breeding, including 1) a set of powerful jaws with an exceptional ability to grip, lock and tear when the dog bites; 2) a unique insensitivity to pain that causes pit bulls to be exceedingly tenacious in the attack; 3) an unusually aggressive temperament towards human beings and animals; and 4) an extraordinary directness in their method of attack that does not include the common warning signs such as barking or growling displayed by other breeds;
WHEREAS, for the above reasons, pit bull dogs present a danger to the health and welfare of the citizens of Dade County, different in degree and kind, from the dangers presented by other breeds of dog,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA:
Section 1. The aforementioned findings are hereby incorporated by reference and made a part hereof.
Section 2. Section 5-17 of the Code of Metropolitan Dade County, Florida shall read as follows: [FN1]
Sec. 5-17. Legislative Intent.
This article is intended to utilize the authority and powers of Metropolitan Dade County in order to secure for the citizens of this County the protection of their health, safety and welfare. It is intended to be applicable to dogs which are commonly referred to as "pit bulls" and which are defined herein. This article is designed to regulate these pit bull dogs and to ensure responsible handling by their owners through confinement, registration, and liability insurance. The unique history, nature and characteristics of pit bull dogs have been determined to require the special regulations and provisions contained within this article which the County Commission hereby finds reasonable and necessary.
Section 3. Section 5-17.1 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.1. Definition and Identification of a Pit Bull Dog.
(a) The term "pit bull dog" as used within this article shall refer to any dog which exhibits those distinguishing characteristics which:
(1) Substantially conform to the standards established by the American Kennel Club for American Staffordshire Terriers or Staffordshire Bull Terriers; or
(2) Substantially conform to the standards established by the United Kennel Club for American Pit Bull Terriers.
(b) The standards of the American Kennel Club and the United Kennel Club referred to in subsection (a) above, are attached hereto and incorporated herein by reference as "Exhibit A" and shall remain on file with the Animal Services Division of the Public Works Department of Metropolitan Dade County.
(c) Technical deficiencies in the dogs' conformance to the standards described in subsection (b) shall not be construed to indicate that the subject dog is not a "pit bull dog" under this article.
(d) Testimony by a veterinarian, zoologist, animal behaviorist, or animal control officer that a particular dog exhibits distinguishing physical characteristics of a pit bull shall establish a rebuttable presumption that the dog is a pit bull.
Section 4. Section 5-17.2 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.2. Confinement of Pit Bull Dogs.
(a) Because of the pit bull dog's inbred propensity to attack other animals, and because of the danger posed to humans and animals alike by a pit bull dog when running loose or while running together in a pack, pit bull dogs must at all times be securely confined indoors, or confined in a securely and totally enclosed and locked pen, with either a top or with all four sides at least six (6) feet high, and with a conspicuous sign displaying the words "Dangerous Dog."
(b) At any time that a pit bull dog is not confined as required in subsection (a) above, the dog shall be muzzled in such a manner as to prevent it from biting or injuring any person or animal, and kept on a leash with the owner or custodian in attendance. Provided, however, that no pit bull dog may be walked within fifty (50) feet of any public school ground nor enter onto such school ground.
(c) An exception to these confinement requirements is hereby provided for any pit bull dog in attendance at, and participating in, any lawful dog show, contest or exhibition sponsored by a dog club, association, society or similar organization.
(d) An exception to these confinement requirements is hereby provided for any pit bull dog when the dog is actually engaged in the sport of hunting in an authorized area and supervised by a competent person.
Section 5. Section 5-17.3 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.3. Liability Insurance or Other Evidence of Financial Responsibility Required to be Maintained By Owner of Pit Bull Dogs.
In order to protect the public and to afford relief from the severe harm and injury which is likely to result from a pit bull dog attack, every owner of a pit bull dog shall maintain and be able to provide evidence of the owner's financial ability to respond in damages up to and including the amount of three hundred thousand dollars ($300,000.00) for bodily injury to or death of any person or damage to property which may result from the ownership, keeping or maintenance of such dog. Proof of ability to respond in damages shall be given by filing with the animal control office a certificate of insurance from an insurance company authorized to do business in the state, stating that the owner is and will be insured against liability for such damages; or by posting with the animal control office a surety bond conditioned upon the payment of such damages during the period of such registration; or by posting a personal bond secured by a mortgage in real property or security interest in personal property; or a sworn statement of the owner of his/her financial ability to respond in damages up to and including the amount of three hundred thousand dollars ($300,000.00).
Section 6. Section 5-17.4 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.4. Registration of Pit Bull Dogs.
(a) Every owner of a pit bull dog in Metropolitan Dade County shall register the dog with the Animal Services Division of the Public Works Department of the County. The registration shall include the following: Name, address and telephone number of the dog's owner; the address where the dog is harbored, if different from the owner's address; a complete identification of the dog including the dog's sex, color and any other distinguishing physical characteristics; a color photograph of the dog; a description of the method of compliance with the confinement requirements; proof of the liability insurance or other evidence of financial responsibility required pursuant to this article; and a registration fee.
Section 7. Section 5-17.5 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.5. Enforcement.
It shall be the duty and responsibility of all Metropolitan Dade County animal control officers to enforce the provisions of this article.
Section 8. Section 5-17.6 of the Code of Metropolitan Dade County, Florida, shall read as follows:
Sec. 5-17.6. Time for Compliance.
(a) All persons subject to this article shall have ninety (90) days from the effective date of this ordinance to comply with all confinement, registration, and liability insurance requirements.
(b) No pit bull dogs may be sold, purchased, obtained, brought into Dade County, or otherwise acquired by residents of Dade County anytime after the passage of ninety (90) days after the effective date of this ordinance. No such newly-acquired pit bull dogs may be kept, maintained, or otherwise harbored within Dade County, and each day any such newly-acquired pit bull is so kept, maintained, or harbored shall constitute a separate violation of this section.
(1) Violation of subsection (b) may result in the issuance of a civil violation notice, and
(2) Humane destruction of the pit bull dog by order of a court of competent jurisdiction. The County Manager or his designee may apply to the court for such order pursuant to this paragraph.
(c) Failure to register a pit bull dog as required by this article within the ninety (90) day grace period shall be prima facie evidence that the pit bull dog is a newly-acquired pit bull dog.
Section 9. Section 8CC-10 of the Code of Metropolitan Dade County, Florida, is amended as follows:
Sec. 8CC-10.  Schedule of Civil Penalties.
Reference  Code  Description of  Civil
Number  Section  Violation  Penalty
* * *
7  5-8  Failure to obtain required license tag for dog  50.00
____  5-17.2  Failure to confine pit bull dog  500.00
____  5-17.3  Failure of owner of pit bull dog to maintain  500.00
insurance or other evidence of financial
____  5-17.4  Failure to register pit bull dog  500.00
____  5-17.6  Acquisition or Keeping of Pit Bull dogs  500.00
* * *
Section 11. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 12. Nothing in this article shall prevent municipalities from providing for more stringent regulation of pit bull dogs and pit bull dog owners.
Section 13. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance shall become and be made a part of the Code of Metropolitan Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 14. This ordinance shall become effective ten (10) days after the date of enactment.
PASSED AND ADOPTED:
Approved by County Attorney as to form and legal sufficiency.
OFFICIAL U.K.C. AMERICAN PIT BULL TERRIER STANDARD
Revised January 1, 1978
HEAD: Medium length. Brick like in shape. Skull flat and widest at the ears, with prominent cheeks free from wrinkles.
MUZZLE: Square, wide and deep. Well pronounced jaws, displaying strength. Upper teeth should meet tightly over lower teeth, outside in front.
EARS: Cropped or uncropped (not important). Should set high on head, and be free from wrinkles.
EYES: Round. Should be set far apart, low down on skull. Any color acceptable.
NOSE: Wide open nostrils. Any color acceptable.
NECK: Muscular. Slightly arched. Tapering from shoulder to head. Free from looseness of skin.
SHOULDERS: Strong and muscular, with wide sloping shoulder blades.
BACK: Short and strong. Slightly sloping from withers to rump. Slightly arched at loins, which should be slightly tucked.
CHEST: Deep, but not too broad, with wide sprung ribs.
RIBS: Close. Well-sprung, with deep back ribs.
TAIL: Short in comparison to size. Set low and tapering to a fine point. Not carried over back. Bobbed tail not acceptable.
LEGS: Large, round boned, with straight, upright patterns, reasonably strong. Feet to be of medium size. Gait should be light and springy. No rolling or pacing.
THIGH: Long with muscles developed. Hocks down and straight.
COAT: Glossy. Short and stiff to the touch.
COLOR: Any color or marking permissible.
WEIGHT: Not important. Females preferred from thirty to fifty pounds.
Males from thirty-five to sixty pounds.
OFFICIAL A.K.C. STANDARDS
American Staffordshire Terrier
Head-Medium length, deep through, broad skull, very pronounced cheek muscles, distinct stop; and ears are set high. Ears-Cropped or uncropped, the latter preferred. Uncropped ears should be short and held half rose or prick. Full drop to be penalized. Eyes-Dark and round, low down in skull and set far apart. No pink eyelids. Muzzle-Medium length, rounded on upper side to fall away abruptly below eyes. Jaws well defined. Underjaw to be strong and have biting power. Lips close and even, no looseness. Upper teeth to meet tightly outside lower teeth in front. Nose definitely black.
Neck-Heavy, slightly arched, tapering from shoulders to back of skull. No looseness of skin. Medium length.
Shoulders-Strong and muscular with blades wide and sloping.
Back-Fairly short. Slight sloping from withers to rump with gentle short slope at rump to base of tail. Loins slightly tucked.
Body-Well-sprung ribs, deep in rear. All ribs close together. Forelegs set rather wide apart to permit chest development. Chest deep and broad.
Tail-Short in comparison to size, low set, tapering to a fine point; not curled or held over back. Not docked.
Legs-The front legs should be straight, large or round bones, pastern upright. No resemblance of bend in front. Hindquarters well-muscled, let down at hocks, turning neither in nor out. Feet of moderate size, well-arched and compact. Gait must be springy but without roll or pace.
Coat-Short, close, stiff to the touch, and glossy.
Color-Any color, solid, parti, or patched is permissible, but all white more than 80 percent white, black and tan, and liver not to be encouraged.
Size-Height and weight should be in proportion. A height of about 18
to 19 inches at shoulders for the male and 17 to 18 inches for the female
is to be considered preferable.
Staffordshire Bull Terrier
Head and Skull-Short, deep through, broad skull, very pronounced cheek muscles, distinct stop, short foreface, black nose. Pink (Dudley) nose to be considered a serious fault.
Eyes-Dark preferable, but may bear some relation to coat color. Round of medium size, and set to look straight ahead. Light eyes or pink eye rim to be considered a fault, except that where the coat surrounding the eye is white the eye rim may be pink.
Ears-Rose or half-pricked and not large. Full drop or full prick to be considered a serious fault.
Mouth-A bite in which the outer side of the lower incisors touches the inner side of the upper incisors. The lips should be tight and clean. The badly undershot or overshot bite is a serious fault.
Neck-Muscular, rather short, clean in outline and gradually widening toward the shoulders.
Forequarters-Legs straight and well boned, set rather far apart, without looseness at the shoulders and showing no weakness at the pasterns, from which point the feet turn out a little.
Body-The body is close coupled, with a level topline, wide front, deep brisket and well sprung ribs being rather light in the loins.
Hindquarters-The hindquarters should be well muscled, hocks let down with stifles well bent. Legs should be parallel when viewed from behind.
Feet-The feet should be well padded, strong and of medium size. Dewclaws, if any, on the hind legs are generally removed. Dewclaws on the forelegs may be removed.
Tail-The tail is undocked, or medium length, low set, tapering to a point and carried rather low. It should not curl much and may be likened to an old- fashioned pump handle. A tail that is too long or badly curled is a fault.
Coat-Smooth, short and close to the skin, not to be trimmed or de-whiskered.
Color-Red, fawn, white, black or blue, or any of these colors with white. Any shade of brindle or any shade of brindle with white. Black-and-tan or liver color to be disqualified.
Size-Weight: Dogs, 28 to 38 pounds; bitches, 24 to 34 pounds. Height at shoulders: 14 to 16 inches, these heights being related to weights. Nonconformity with these limits is a fault.