The emails started pouring into Palm Coast Mayor Milissa Holland’s city account on June 8. By today, there’d been dozens, all calling for her not to allow the killing of Cooper, a dog of about 40-some pounds that bit a man in the face, hand and leg on Feb. 24 at the dog owner’s house in Palm Coast.
The dog’s owner was not disputing that Cooper should be removed from Palm Coast, but she’d found a rescue ranch on the west coast of the state where the dog could be safely exiled.
The city on March 6 informed Dottye Benton that Cooper would be killed in 10 days because the dog had already been declared dangerous when it was in Port Orange just weeks before. Benton requested an appeal before a special magistrate, who on April 18 upheld the city’s decision—again citing the Port Orange case as an aggravating circumstance. Before the hearing, the city refused the arrangement that would have sent Cooper to the rescue ranch. Benton appealed the magistrate’s decision to circuit court and started an email campaign featuring Holland’s image and email address on a poster.
“Please don’t kill Cooper, he is precious and deserves a Chance to live!,” wrote one advocate. Others wrote: “Don’t blame the dog for the past owners short comings. Give him a chance.” “Please do everything in your power possible to allow Cooper the dog to go to the Rottweiler Rescue.” “Please show the people who elected you that you are a compasionate (sic.) person and allow Cooper to live.” “This is a plea on behalf of Cooper the incarcerated little dog.” And so on.
Whether the Palm Coast City Council has a say or not in the matter—perspectives are divided depending on which lawyer you ask: the city’s lawyer says it has no say, Benton’s lawyer says it does—the campaign had the desired effect at least to the extent that it brought Cooper’s fate further into the open (the Observer had first reported on the issue in late May).
Saying she’d lost sleep over Cooper, Holland brought up the matter at the end of the city council’s workshop this morning.
“I know we can’t do much about it but I have to bring it up since someone decided to put my face and name on a poster saving a dog,” Holland said, describing herself as an animal activist. “I think it’s important we have this conversation, because if there [isn’t] any way to save Cooper, we need to understand why we can’t save Cooper.”
Bill Reischmann, the city attorney, summed up the facts of the case. After the first dangerous-dog determination in Port Orange, Cooper bit Terry Sandt when Sandt went to Benton’s house to clean the carpets. The injuries to Sandt’s face were so severe that they required reconstructive surgery. Since it was a “second bite,” Reischmann said, the dog had to be “destroyed,” the legal euphemism for killing an animal in those circumstances. “That’s what the law requires, and our code is consistent with state law,” Reischmann said.
The lawyer acknowledged Benton’s attempt to place the dog at the rescue ranch. “I don’t have any control over that, the city of Palm Coast has no control over that,” Reischmann said, “nor has the city of Palm Coast have any control over what the special magistrate is required to do under state law, which is to apply the law. The determination by the special magistrate is currently being appealed in the circuit court. The appeal does not come to the city council. City council has no jurisdiction over the fate of this animal.”
Nonsense, says Marcy LaHart, the Micanopy, Fla. attorney representing Benton in the circuit court appeal. LaHart is also involved in other dangerous-dog cases in Palm Coast. “The city council is the client. They’re the ones who are supposed to be calling the shots, not the lawyer,” LaHart said in an interview this afternoon. “I have settled many dangerous dog cases. Palm Coast takes the position they don’t have the ability to do anything, and they’re wrong. In other jurisdictions where a little commons sense is allowed to prevail and a little compassion is allowed to prevail, cases are settled.”
LaHart expressly dismissed the claim that the council had no say in the matter: if the council wanted the issue settled in favor of Cooper going to the ranch, the issue would be settled. “They should direct their attorney rather than their attorney directing them,” she said. “The city is a party to the case, so saying we’re not going to get involved is pretty stupid. They’re already involved. Taxpayer dollars of the folks of the city of Palm Coats are being used to defend killing this dog.”
Benton and her lawyer have also offered to indemnify the city should the city agree to the dog’s exile.
Cooper since Feb. 27 has been held at the Flagler Humane Society for $30 a day, a cost for which the society bills Palm Coast, which in turn bills the owner, says Amy Carotenuto, the society’s executive director. In Port Orange, the dog was owned by Benton’s daughter, who called Carotenuto to turn over Cooper after the first bite. “I said fight for your dog, don’t just turn him in,” Carotenuto said. “They should have fought the initial dangerous dog classification, it was somebody reaching into a car or something like that.” By not doing so, the designation becomes much more consequential with a second incident. For all that, the dog has been relatively easy to manager at the society, though it is restricted to a cage most of the time, and handling by specified staff, not volunteers, and no contact with visitors.
The society came in for some criticism at the council meeting today—unfairly so: the society is not leading the campaign for Cooper’s exile, though it supports it.
“The humane society doesn’t understand the state law or they’re advocating a different position,” Holland said at this morning’s meeting, “and I need the Humane Society to maybe be handed what the state law is so they clearly understand what that state law demonstrates, because what they’re stating is something contrary to what our legal counsel is stating. I’m somehow put in the middle of this discussion. I’ve never met the dog, I’ve never been around the dog, I’m not a dog expert on if the dog is dangerous or not. We do look to state guidance.”
“They know,” City Manager Jim Landon said. “They’re well aware of what the state law is, they’re well aware of the fact that the city council has no jurisdiction, they know the city staff has no jurisdiction, have no ability to intervene in a court case. They are attempting to use a political arena for you to intervene and they know you can’t. But it’s still—they’re hoping that somehow this will change, and I do not get why they would do that.”
Elected officials can certainly intervene in court cases in which the city or county they represent is named: it’s up to them to set the legal course, with counsel of insurers and attorneys involved, so it’s not accurate for Landon to claim the council has “no ability to intervene in a court case”: it’s Dottye Benton v. Palm Coast in this case, not Benton v. Reischmann. Palm Coast is the council. But the nature of the court case has nothing to do with exiling the dog. Rather, it is focused on due process issues that led to the special magistrate’s determination. In those regards, the council may have little say—but not regarding what led to the decision, which LaHart contends is still very much negotiable if the city willed it.
But she doesn’t expect to hear from Palm Coast’s attorneys.
Carotenuto, for her part, disputes the council’s claim that the society doesn’t know the law. “I think it’s the city council that doesn’t understand the law,” she said. “We are animal control for Flagler Beach and unincorporated Flagler, and we understand the law.”
She added: “I don’t think the dog should go back to its owner in the same situation all over again. The dangerous dog statute should be to provide safety, not just to punish owners, that’s where we look at the statute differently. The statute is vague so it lends itself to people interpreting things differently. That’s where we stand. We’d like to see the dog be able to go where it would not be able to pose any threats to the public, that’s hopefully what this appeal would accomplish.”
That, in fact, is what even the city wants to see accomplished: “We would love it if this dog could go to this ranch and this farm and live out a happy life. That would be our desire too, you know.,” Landon said. “Maybe the courts can come up with a way to make that happen,” he added. But, he said, the city was following the law’s requirement—to follow the special magistrate’s findings, based on the city’s own.
To square the matter of wishing the dog exiled on one hand while determining the dog should be killed on the other, Landon reached for an analogy. Once the dog severely bit a second person, “at that point law requires us to do certain things,” he said. “We do those. The courts then decide the end result. It would be the same as if it was some other type of criminal case that you wanted to be sympathetic to the person who was charged with a crime. You don’t have any jurisdiction. It’s not something that will come to city council.”
But that position has its skeptics, among them Elizabeth Robinson of Community Cats of Palm Coast, who helped Benton with her campaign. She said there was a time when animal advocates had little say in town. That’s been changing. She acknowledges that when the decision was made to include Holland’s email address on the poster, it wasn’t entirely clear what could or could not be done by the council, but “I don’t think emailing Jim Landon or emailing Barbara Grossman would have been productive,” she said, referring to the director of code enforcement.
As for today’s claims that the council is out the decision altogether, “I’m not convinced,” Robinson said. “I think it certainly serves their purpose that they’re out of it, I don’t understand why they couldn’t make a different decision.”
For example, it was in the city’s purview not to charge Benton criminally, even though Reischmann said the city certainly had that option, since the dog had been declared dangerous previously. So there was discretion in how the city decided to apply the dangerous dog law. “But yes that is a potential consequence,” Reischmann explained to Vincent Lyon, the recently appointed council member who, coincidentally, defended a Flagler County family in a protracted case involving the county’s designation of a dog as dangerous. (Just a few weeks ago the family won its case on appeal at the Fifth Circuit Court of Appeal.) There was no additional question as to further discretion regarding the dog’s fate on the city’s part.
Still, just as the Humane Society feels it’s in the middle of an issue it can’t control, just as the mayor does so as well, for that matter, city officials responsible for the original determination are also caught in a vise for having merely followed state law and the city’s ordinance as directed. “The initial determination which is made by city staff,” Reischmann said, “they take into consideration all of both sides, not just the victim, not just the owner, but the animal as well. They work very hard to make sure all of the sides are considered.”
It’s not unusual for the roles of various sides to be mis-perceived, or worse. “That’s the thing,” Carotenuto said, referring to the city, “since we’re at odds over a few cases, they get the reputation that everything is euthanized and we get the reputation we save them no matter what, and the truth is somewhere in the middle.” The priority, she said, is safety.
But that middle ground can be elusive in the end. Asked today if there was still room for a negotiated settlement, LaHart, Benton’s attorney, was quick to reply: “As long as the city attorney is the one calling the shots and not the city council, I don’t hold up any hopes, no.”