Associations often have to deal with a variety of animal issues. Two recent Florida appellate court decisions highlight interesting issues relating to animals confronting associations.

FIRST AMENDMENT: SPEECH PROTESTING ANIMAL RIGHTS VIOLATIONS

Who says homeowners have no rights? The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to assemble, and to petition to the Government for a redress of grievances." Just because a speaker is a homeowner does not mean he or she has no constitutional rights.

In the first case dealing with animals, the court ruled that restrictions prohibiting picketers from verbally or writing certain statements violated the picketers First Amendment right to free speech. In Animal Rights Foundation of Florida, Inc. v. Siegel, 29 Fla. L. Weekly D355 (Fla. 5^th DCA, February 6, 2004), the developer of a timeshare development hired an exotic animal performance company to provide entertainment through twice weekly animal shows as a draw for potential buyers. Members of the Animal Rights Foundation of Florida picketed and circulated leaflets claiming the developer supported the abuse of animals.

The developer sued the Foundation for tortious interference with business relationships, invasion of privacy, slander, and libel. The developer alleged the Foundation published false statements, picketed at the front gate of the development, and circulated leaflets claiming the developer "abuses animals" and was "supporting animal abuse." The developer sought an injunction prohibiting the Foundation from publishing false and defamatory statements.

The trial court entered a temporary injunction against the Foundation. Concerning where conduct could occur and how, the injunction provided:

That Defendants are enjoined from picketing at the gates of the subdivision wherein the Home is located or the entrance of Plaintiffs’ timeshare resorts in Florida except that Defendants may have 5 agents or less appear on either side of the street from the gates of the subdivision wherein the Home is located and the other side of the road on which any of Plaintiffs’ Florida timeshare resorts are located. The Foundation’s agents shall be enjoined from videotaping any passers-by and from using megaphone or bull horn; from shouting at passers-by and from prohibiting the free flow of traffic in all the foregoing locations.

The Florida appellate court explained that although the First Amendment protects peaceful demonstrations in public places such as streets and sidewalks, reasonable restrictions could be imposed. Here; however, the injunction placed restrictions on the manner in which the picketing was to take place, and not on the content of the message delivered by the picketers. The Foundation’s agents were prohibited from using megaphones or bull horns and shouting to passers-by. The court concluded the noise restrictions and picketing restrictions were too broad.

The injunction also prohibited the Foundation from directly or indirectly publishing, verbally or in writing the following statements:

"David Siegel abuses animals"

"David Siegel condones animal abuse"

"Now featuring at Westgate-Animal abuse"

"David Siegel supports animal abuse"

"Westgate supports animal abuse"

"Westgate supports cat beater"

"David Siegel supports cruelty to animals"

"Now featuring at Westgate animal abuse" and

"Westgate refuses to stop sponsoring animal cruelty"

The court determined that these restrictions, unlike the picketing restrictions, were based on content operating as prior restraints on the Foundation’s right to freedom of expression. The court ruled that these provisions violated the Foundation’s First Amendment rights. The court noted the speech - protesting animal rights violations - was of a political nature.

As we head into the election season, Florida associations should keep in mind that homeowners are entitled to free speech even when it comes to politics. Courts do not look kindly on restrictions placed on individuals which curtail First Amendment rights.

TORTS: AN ANIMAL OWNER CANNOT COLLECT EMOTIONAL DISTRESS DAMAGES FOR MISTREATED PET

What happens when a pet is removed from a community or is accidently injured by a worker? So long as there has been no malicious intent, a pet owner likely will not recover emotional damages from a Florida community association.

In Kennedy v. Byas, 29 Fla. L. Weekly D564 (Fla. 1^st DCA, March 4, 2004), the court ruled that a dog owner could not collect emotional distress damages based on veterinary malpractice in the treatment of his basset hound. The court determined the "impact rule," which requires some physical impact before damages for emotional distress can be recovered, precluded recovery. The court pointed out in some cases, such as where a child is injured as a result of malpractice, an exception would be made and emotional damages could be recovered.

The court declined to elevate a dog to the same status as a child. While recognizing that many people consider their pet to be a member of their family, the court pointed out that under Florida law, animals are considered personal property.