Circuit Judge Terence Perkins has denied an appeal in the death sentence of Cooper, the dangerous dog Palm Coast animal control determined in February must be killed after the dog bit and severely injured a person for the second time in a matter of weeks.
Perkins issued his ruling on Nov. 16, rejecting arguments by Dottye Benton, the dog’s owner, that a Palm Coast hearing officer violated her due process rights, or that Palm Coast government, through its animal control division, had any other choice but to execute the dog, according to Florida law. Absent an appeal, which is unlikely, the dog will be euthanized within days. Benton conceded as much after the circuit court hearing two weeks ago when Perkins heard the case. “The way it looks like is he’s going to be put down,” she said at the time.
The decision vindicates the strict and unwavering position the city administration and City Council took since February regarding the dog, however sympathetic all council members said they were regarding the dog’s advocates. The case galvanized a small movement on behalf of the dog as its owner, her attorney and their followers sought to stop Cooper’s execution and send the dog instead to a refuge for dangerous dogs. The dog’s supporters often angrily confronted council members at meetings, pleading and arguing that it was in the council’s discretion to halt the execution and divert the dog to the refuge. The city’s attorney, Bill Reischmann, repeatedly said it was not.
Perkins ruled likewise, rejecting Benton Attorney Marcy LaHart in language at times almost dismissive of the attorney’s position: she “cites no case authority for the proposition that the statute is not supported by a compelling interest,” Perkins wrote of LaHart’s claim that it wasn’t in the community’s interest to kill Cooper.
The law, Perkins said, sets out three explicit conditions when a dog “shall” be executed: First, the dog must have previously been declared dangerous by a government body. Port Orange declared Cooper dangerous after Cooper bit and severely injured a woman there in January. Second, the dog must bite a human being a second time in an unprovoked attack, again causing severe injury. Cooper bit Terry Sandt, a carpet cleaner, when Sandt reported to Benton’s house in palm Coast’s R-Section in February to clean her carpets. Third, the injuries must be severe. Sandt was severely injured on the lip and elsewhere and required reconstructive surgery. Benton took him to the hospital and paid his bill (and later Sands returned to clean her carpets.)
“The plain language of the statute makes clear that if those 3 conditions are met,” Perkins wrote in his four-page, characteristically single-spaced ruling, “the dog must be destroyed. The city has no discretion. The city has no legal authority to evaluate other less restrictive alternatives. If the 3 conditions are met, the dog must be destroyed. The city followed the strict but clear language of the law by seeking to destroy Cooper and did not infringe on [Benton’s] due process rights by seeking the only remedy provided in the statute.”
Perkins’s ruling summarized the case and its steps through the city’s animal control and hearing officer stages, rejecting LaHart’s claims point by point. He found that Benton’s due process could not have been violated since the city had made her aware of the hearing, which Benton attended and at which she testified, nor was her due process violated when Palm Coast supposedly did not properly document the fact that Cooper had been found to be dangerous by Port Orange. “Petitioner’s argument ignores the petitioner’s own testimony,” Perkins wrote of Benton. “At the hearing she testified that she knew that Cooper had been designated a dangerous dog by the City of Port Orange.” In his concluding paragraph, he went so far as to say that as Palm Coast proved all the elements required to lead to an execution, “it does not appear that these three elements were in serious contention.”
In other words, there had been no missteps or mis-applications of laws or procedures even at the administrative level, before animal control’s decision reached the hearing officer.
LaHart and Benton could not be reached this afternoon.
Perkins’s ruling was expected: he’d said almost as much when the two sides presented oral arguments on Nov. 5, telling LaHart he was “having a hard time finding the legal basis” for her position.
Cooper, a 6-year-old dog the judge described as a “Black and Tan Doberman mix,” has been quarantined at the Flagler Humane Society since February, where Benton has gone to visit him daily. She is being billed $30 a day, via Palm Coast government, for the dog’s upkeep. The dog evaded his cage in August and bit a staffer there, prompting the Sheriff’s Office to file a felony charge against benton, though the State Attorney’s Office never followed through to formalize the charge.
Amy Carotenuto, the society’s executive director, said she had not yet received formal documentation of the judge’s decision. “When we do, we will schedule something where the owner can be with him if she wishes,” Carotenuto said.
“There are no winners in this case,” Mayor Milissa Holland said of the ruling. “From the beginning the city made it very clear that we have no authority over Cooper’s fate as state law dictates what is to occur in cases like this. This was and remains out of our hands as indicated in the ruling by Judge Perkins.”