Florida/Georgia Personal Injury & Workers Compensation

...Wildridge, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. Sebastian Gonzalez appeals the trial court's denial of his motion to declare section 828.122(3), Florida Statutes (2005), which outlaws animal fighting, unconstitutional as overbroad....

...Sheriff office investigators interviewed Mr. Gonzalez about his participation in cockfighting at a rural location that had been raided. Mr. Gonzalez admitted that he had gone to the location to watch cockfights. As a result, Mr. Gonzalez was charged with violating section 828.122(3), which prohibits knowingly baiting or using an animal for the purpose of fighting or baiting any other animal; owning, managing, or operating a facility kept or used for the purpose of fighting or baiting animals; promoting, stagin...

...In its statement of particulars, the State more specifically alleged that Mr. Gonzalez: (1) was present at a cockfight, and (2) possessed spurs, which the roosters wear in order to fight, thus, promoting cockfighting. *1228 Mr. Gonzalez filed a motion to declare section 828.122(3) unconstitutional....

...There is a "strong presumption in the law that a state statute is constitutionally valid." Ocala Breeders' Sales Co., 731 So.2d at 24 (citing In re Caldwell's Estate, 247 So.2d 1 (Fla.1971)). Florida courts have not yet addressed the constitutionality of section 828.122(3)(h)....

...Gonzalez contends that the statute is overbroad because it might punish innocent bystanders who happen upon two animals fighting, e.g., a person who observes two dogs fighting in the street or a zoo patron who witnesses animals fighting. We disagree. The requirement that the conduct be done "knowingly" in section 828.122(3), establishes a level of mens rea required under the statute that would preclude the hapless pedestrian from being caught in such a broad application of the law....

...In that respect, the Florida statute is similar to Tennessee's and different from those in Hawaii, Ohio and Missouri. Mr. Gonzalez also argues that even if the statute is not overbroad, the trial court erred in failing to apply the rule of lenity in defining the term "attend." Mr. Gonzalez contends that section 828.122(3)(h), which prohibits knowingly attending the fighting or baiting of animals, can be construed several ways, and the trial court should have interpreted it so that it did not criminalize his conduct....

...ttorney Tenth Judicial Circuit Drawer SA, Post Office Box 9000 Bartow, Florida 33830-9000 Dear Mr. Hill: You ask the following question: Whether a hog dog field trial (sometimes called a hog rodeo) violates the provisions of either section 828.12 or section 828.122 , Florida Statutes? In sum: A hog dog field trial would violate the provisions of section 828.122 and section 828.12 , Florida Statutes....

...You state that these dogs are often called bay dogs although they, in fact, act as catch dogs, pursuing and attacking the hog while attempting to bite and secure a hold on it. When this is accomplished, the animals are removed from the enclosure and judges announce scores for the dogs' performance. Section 828.122 , Florida Statutes, is "The Animal Fighting Act." 1 Subsection (3) of the statute provides that any person who commits any of the following acts is guilty of a felony of the third degree, punishable as provided in section 775.082 , se...

...r animal. (b) Knowingly owning, managing, or operating any facility kept or used for the purpose of fighting or baiting any animal. (c) Promoting, staging, advertising, or charging any admission fee to a fight or baiting between two or more animals. Section 828.122 (4), Florida Statutes, makes it a misdemeanor of the first degree for any person to willfully wager any money or other valuable consideration on the fighting or baiting of animals or to attend the fighting or baiting of animals....

...information provided to this office, it appears that the hog dog field trials in which the dogs "act as catch dogs, pursuing and attacking the hog while attempting to bite and secure a hold on it" would fall within the above definition of "baiting." Section 828.122 (6), Florida Statutes, states that the provisions of subsections (3) and (4)(b) of the act do not apply to, among others, * * * (b) Any person using animals to pursue or take wildlife or to participate in any hunting regulated or subj...

...." 5 Based upon your description of the hog dog field trials, it appears that these activities would constitute the torture or tormenting of, or cruelty to, animals as proscribed in section 828.12 , Florida Statutes. Accordingly, I am of the opinion that hog dog field trials would violate the provisions of section 828.122 and section 828.12 , Florida Statutes. Sincerely, Robert A. Butterworth Attorney General RAB/tlsjw 1 Section 828.122 (1), Fla. Stat. (1993). 2 Section 828.122 (2)(a), Fla. Stat. (1993). And see, s. 828.122 (2)(b), Fla....

conviction for animal fighting in violation of section 828.122(3), Florida Statutes (1995), and the resulting

...feit-resistant prescription blank which may be used by practitioners for the purpose of prescribing a controlled substance listed in Schedule II, Schedule III, or Schedule IV. This instruction was adopted in 2009. 29.13(b) ANIMAL FIGHTING OR BAITING § 828.122, Fla....

...2007-08, 995 So.2d 489 (Fla.2008). . We have jurisdiction. See art. V, § 2(a), Fla. Const. . In instruction 29.13(b), we have included reference to the statutory provision that defines "animal cruelty," section 828.12, Florida Statutes, to make the instruction consistent with section 828.122(9)(a), Florida Statutes....

...(g) Betting or wagering any money or other valuable consideration on the fighting or baiting of animals; or (h) Attending the fighting or baiting of animals. Notwithstanding any provision of this subsection to the contrary, possession of the animal alone does not constitute a violation of this section. § 828.122, Fla....

count of fighting and baiting animals under section 828.122(3), Florida Statutes (2014). The *953

cases which arise afterward.1 Question One Section 828.122, F.S., "The Animal Fighting Act,"2 provides

ORFINGER, JJ., concur. 1 . § 828.122(3), Fla. Stat. (2013). 2 . § 828