Good afternoon and thank you for your email addressed to Chief Assistant Kathleen Hoague.

Good afternoon and thank you for your email addressed to Chief Assistant Kathleen Hoague. Unfortunately, Ms. Hoague is attending to a family matter and so I am responding to your concerns in her stead.

As you may already know, a complainant reported a similar concern as yours that German Shepherd dog on a balcony at 1756 N. Bayshore Drive being hit by the owner and kept on the balcony.

In consultation with Miami-Dade Animal Services asking for our legal opinion on this case, we advised Animal Services that there was no medical evidence that an animal cruelty crime had been committed. We had two of our finest prosecutors review the video, which is the only evidentiary item submitted, which depicted the following: a view from an opposing buildings window of the balconies of the neighboring apartments. On one of the balconies, there appears a woman and a dog. The woman appears to be cleaning up a mess left by the dog with a paper towel. At one point it appears that the woman makes contact with the dog, but it is impossible to tell the degree of force utilized. The woman at one time also seems to have the dog lie down on its belly and again makes contact with the dog, but it is impossible to tell the degree of force utilized. The videographer remarks that the woman is having the dog eat the feces, but that is impossible to determine definitively in the video.

The applicable statute prohibiting animal cruelty is a misdemeanor, F.S. §828.12(1), and provides, a person who “unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty”, a misdemeanor in the first degree. Chapter 828 has its own definitions, section F.S. §828.02, and defines operative terms as follows: “the words “torture,” “torment,” and “cruelty” shall be held to include every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused” (emphasis added).

The video does not provide sufficient evidence to prove the elements of the statute beyond and to exclusion of every reasonable doubt. Without audible yelps, visual depiction of the degree of force utilized to make contact with the dog or other indisputable indication, pain and suffering, from the video submitted, it is impossible to prove beyond and to the exclusion of every reasonable doubt. Further undermining any criminal action is the fact that Animal Control visited the dog and the owner and examined the dog in question. The dog was not underweight or otherwise appear to be neglected. The dog had no injuries and responded appropriately, did not cower and was familiar with the occupants of the house. The dog was in good shape and there was no evidence of injury or neglect such that the dog suffered injury or death.

Reasonable dog owners may disagree on the behavior exhibited by the owner of the dog, and the behavior may not be advisable and is in no way being condoned. However, disagreements about behavior of owners and not condoning activity does not equate to the ability to prove a criminal charge based on the wording of the statute by the legislature.

Based on the foregoing and a review of the video, it is the opinion of our prosecutors that there is insufficient evidence to prove the offense of misdemeanor animal cruelty beyond and to the exclusion of every reasonable doubt.

Terry Chavez
Media Relations
Miami-Dade State Attorney’s Office
305-547-0896

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