The Constitutional Authority of the Florida Legislature to Ban Private Ownership of Exotic Animals

I. Introduction

Thirty states ban the private ownership of dangerous big cats by statute in one form or another. This memorandum addresses the issue of whether the Florida Legislature has the power to enact a statute to ban private ownership of big cats. The issue arises because the Florida Constitution grants quasi-legislative powers to the Florida Fish and Wildlife Conservation Commission (the “FWC” or the “Commission”) by constitutional amendment. The FWC asserts that these amendments grant the agency exclusive power over captive wildlife in addition to the clear grant of power over native animals living in the wild. However, as explained below, both the basic concepts of interpretation of Constitutional language and the limited case law show the FWC’s assertion to be clearly incorrect. Contrary to the FWC’s position, the Florida Legislature has the power to pass a statute to ban private ownership of dangerous big cats.

II. Background

a. Constitutional History

The FWC derives some of its power from Article 4, Section 9 of the Florida Constitution that creates the agency and outlines its authority to regulate wild animal life. The FWC’s predecessor agency, the Game and Fresh Water Fish Commission (the “GFC”), was created by constitutional amendment in 1942. Article 4, Section 30 of the 1942 Florida Constitution (later renumbered as current Section 9) reads in part as follows:

1.‘From and after January 1, 1943, the management, restoration, conservation and regulation of the birds, game, fur bearing animals, and fresh water fish of the State of Florida * * * shall be vested in a Commission to be known as a Game and Fresh Water Fish Commission * * *.’ (Emphasis added).

7. ‘The Legislature may enact laws in aid of, but not inconsistent with, the provisions of this amendment.’

In 1968, the Florida Constitution was amended and the grant of power to GFC in renumbered Section 9 of the Florida Constitution was again revised to read in part:

The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life. (Emphasis added).

Accordingly, from 1942 to 1968 the constitutional amendments changed the GFC’s authority from powers over “birds, game, fur bearing animals of the State of Florida” to “wild animal life.” No legislative history is available for either amendment.

In 1974, the constitutional amendment that created the GFC was yet again amended. Like the 1968 version, the 1974 constitutional amendment also uses the phrase “wild animal life and fresh water aquatic life.” The 1974 amendment states in part:

The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. (Emphasis added).

In 1999, the FWC was created as a result of a merger of the GFC with the Marine Fisheries Commission “for the purpose of unifying the state’s natural resources conservation efforts.” See, Editors’ Notes, West’s Fla. Stat. Ann. Const. Art. 4 § 9 (2015) (emphasis added). The Editor’s Note clearly describes FWC’s constitutionally-mandated mission as conservation of natural resources, not regulation of privately-owned animals living in cages.

The 1999 constitutional amendment remains in force today. The language of the amendment central to the subject matter of this memorandum states:

The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and shall also exercise regulatory and executive powers of the state with respect to marine life, except that all license fees for the taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law…The legislature may enact laws in aid of the commission, not inconsistent with this section, except that there shall be no special law or general law of local application pertaining to hunting or fishing.

West’s Fla. Stat. Ann. Const. Art. 4 § 9 (2015) (emphasis added).

b. Judicial Precedent

In 1960, the Florida Supreme Court decided the issue of whether the 1942 constitutional amendment granted the FWC’s predecessor, the GFC, the power to regulate captive wildlife. Barrow v. Holland, 125 So.2d 749, 751 (Fla. 1960). In Barrow, the Florida Supreme Court held that the predecessor to FWC had no power under the 1942 constitutional amendment “to regulate the use of purely private property imported into this State even though such property be wildlife acquired in some other state.” Barrow, 125 So.2d at 751.

Barrow owned a wildlife exhibit in Florida that housed many animals, including domesticated animals, native species, and non-native species born outside the State and transported into the State by Barrow. Barrow, 125 So.2d at 750. The FWC’s predecessor, the GFC, refused to give Barrow a permit to operate the exhibit. Id. Barrow sought an injunction against the closing of his business, the injunction was denied, and the appeal followed. Id. at 750.

On appeal, Barrow argued that the FWC’s predecessor “had no power to regulate the control of animals which have been reduced to private possession.” Id. The Court analyzed the language of the 1942 Constitution and held that the FWC’s predecessor “has been given no power to require that the owner of non-native birds and animals obtain a permit in order to exhibit them in the State.” Id. at 751. As stated above, Article IV, Section 30 in part read as follows:

1. ‘From and after January 1, 1943, the management, restoration, conservation and regulation of the birds, game, fur bearing animals, and fresh water fish of the State of Florida * * * shall be vested in a Commission to be known as a Game and Fresh Water Fish Commission * * *.’

4. ‘Among the powers granted to the Commission by this Section shall be the power to fix bag limits and to fix open and closed seasons, on a statewide, regional or local basis, as it may find to be appropriate, and to regulate the manner and method of taking, transporting, storing and using birds, game, fur bearing animals, fresh water fish, reptiles, and amphibians.’

Id. at 750; Fla. Const. Art. 4 § 30 (1974) (emphasis added). Regarding the constitutional amendment, the Court further held:

In approving Article IV, Section 30, it was obviously intended to create a governmental agency clothed with power adequate to protect, preserve and promote the fresh water fish and game of the State. The justification for the establishment of such a Commission stems from the State’s interest in animals ferae naturae. It is a concept as old as the Common Law that such animals are owned by the State for the benefit of all of the people. This is not in the nature of a private proprietary ownership. It is in the nature of a title in trust with the public the beneficiary. Under this concept the State has the power to regulate the taking of wildlife and its reduction to possession. To the extent that confinement and transportation are related to the basic purpose of protecting, preserving and promoting the wildlife of the State as a public asset then such activities are subject to control and regulation by the appellee Commission.

Once such animals ferae naturae have been legitimately reduced to private control, confinement and possession, they become private property. When this occurs the owner thereof cannot be deprived of the use thereof, except in accord with all of the elements of due process which protect one’s ownership of private property generally. In other words, once the animals are legitimately removed from their natural condition and are brought into confinement through private ownership, they cease to be a subject of regulation by appellee Commission.

Id. (citations omitted) (emphasis added). Because the Court held that the Commission was created for the preservation of animals ferae naturae, the Commission had no power to regulate non-native animals and domesticated animals in private possession. Id. at 751–2; see also, Black’s Law Dictionary (10th ed. 2014), ferae naturae (“(of animals) wild; untamed; undomesticated”). Therefore, the judgment in favor of the Commission was reversed. Id. at 753. Barrow remains still controlling law from Florida’s highest court.

Following Barrow, the Florida Legislature enacted Florida Statutes §§ 372.921 and 372.922 (renumbered as Florida Statutes §§ 379.303, 379.304, 379.3761, and 379.3762) that authorized the Commission to issue permits for the private ownership and public display of captive wildlife. While legislative history is not available for these statutes, it is generally accepted that the Florida Legislature enacted these statutes in response to the Barrow decision. In fact, the FWC acknowledges this in a 2007 Memorandum. See, Memo. from Carla J. Oglo, Assistant General Counsel, Florida Fish and Wildlife Conservation Commission Office of the General Counsel, to FWC Captive Wildlife Program, Local Ordinances And The Regulation of Captive Wildlife, 1 (May 17, 2007), available at http://meetingdocs.alachuacounty.us/ documents/bocc/agendas/2014-06-10/8dc4a715-8dac4a12-b2315855acb230bf.pdf (accessed July 28, 2015). In this Memorandum, Assistant General Counsel Oglo states:

In 1960, the Florida Supreme Court held that the then Game and Fresh Water Fish Commission had the authority to regulate ferae naturae or untamed animals in the wild, but the agency did not have the authority to regulate ownership of animals once they became the property of someone, especially non-native animals. Barrow v. Holland, 125 So.2d 749, 751 (Fla. 1960). In response to this issue, the Legislature enacted section 372.921 and 372.922 to authorize GFC to regulate captive wildlife, including wildlife possessed as pets or for exhibition or sale.

Yet, despite acknowledging that the statutes granted FWC power over captive animals in response to Barrow, FWC argues in the Memorandum that the 1974 constitutional amendment somehow expanded the FWC’s constitutional mandate to include authority over captive wild animals, rendering Barrow no longer applicable. The only relevant change in language made post-Barrow by the 1968 amendment (and retained in the 1974 and 1999 amendments) was to substitute “wild animal life” for the prior phrase “birds, game fur bearing animals.”

The FWC Memorandum makes no effort to explain how this change could possibly be interpreted to be a conscious effort on the part of the drafters to grant authority over captive animals as a power derived from the constitution rather than by the statutes. The Memorandum relies solely on case law that in fact does not support the FWC position as discussed in Section IV, infra.

III. Interpreting Constitutional Language

As noted, the only relevant change in language made by the 1968 amendment is to substitute “wild animal life” for the prior more cumbersome phrase “birds, game, fur bearing animals.” The Florida Constitution must be read exactly as it is written. Crist v. Fla. Assn. of Crim. Def. Law., Inc., 978 So.2d 134, 140 (Fla. 2008) (“If [the actual language used in the Constitution] is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.”). The actual language of the Constitutional Amendment only grants the FWC “the power to exercise legislative and executive functions over wild animal life.” See, West’s Fla. Stat. Ann. Const. Art. 4 § 9 (2015) (emphasis added). The term “wild” means:

Living in a state of nature and not ordinarily tame or domesticated <wild ducks> Merriam-Webster.com, Wild, http://www.meriam-webster.com/dictionary/wild (accessed August 14, 2015); see also, American Heritage Dictionary 1381 (2d ed., Houghton Mifflin Company 1985) (“wild” defined as “[o]ccurring, growing, or living in a natural state; not domesticated, cultivated, or tamed). Thus, the definition of “wild” animal connotes an animal that lives in its natural habitat. This is in contrast to an animal living as a pet or one living in captivity. “Captive” means “[a]n animal, esp. a wild one, that is caught and kept confined.” Black’s Law Dictionary (10th ed. 2014), captive.

The FWC’s interest in regulating ferae naturae cannot be reasonably interpreted to extend to privately owned animals under the constitutional amendment. Once an animal is in private possession, the animal cannot be considered wild because it is no longer living in a natural state and is under private control, is confined, or is otherwise in possession of an owner. See e.g., Co. of Pasco v. Riehl, 635 So.2d 17, 19 (Fla. 1994) (“[a]n animal becomes private property when it is under the ‘private control, confinement and possession of an owner.’”); see also, Barrow v. Holland, 125 So.2d 749, 751 (Fla. 1960). On the other hand, an animal is within the regulatory authority of the FWC once it is released into the wild (and no longer under private control, confinement, or in possession of an owner).¹ The FWC’s own definition of “wildlife” does not extend to domesticated animals or mention anything about animals in private possession or living in captivity. See, F.A.C. § 68A-1.004(90) (“wildlife” defined as “[a]ll wild or non-domestic birds, mammals, fur-bearing animals, reptiles and amphibians.”). Following the definition, the word “wildlife” is used in several defined terms (“wildlife and environmental area,” “wildlife management area,” and “wildlife refuge”) in each case clearly referring to animals that roam free, not animals in cages or under private ownership. See, F.A.C. § 68A-1.004(91)-(93).

We have no legislative history to rely on to explain the change in constitutional language to “wild animal life.” So we have to ask what makes sense, keeping in mind the Court’s direction in Crist that when the language in the Constitution is clear it should be interpreted as written. There is simply no logical basis whatsoever for interpreting the change from “birds, game, fur bearing animals of the State of Florida” to “wild animal life” as an intention by the drafters to expand the FWC constitutional authority to include captive animals because the words “wild animal life” by definition clearly refer to animals loose in the wild. Because the legislature had already addressed Barrow and granted the FWC authority over captive wild animals by statute, there was no reason for the drafters of the amendment to address Barrow. But, if the drafters intended to expand the FWC’s constitutional authority to extend to captive wildlife, they certainly would not have used the words “wild animal life;” they would have used “captive wildlife” or words with similar clear meaning in the constitutional amendment. We must interpret these decisions by the constitutional drafters using the term “wild animal life” as intentional. The most logical interpretation of the change from “birds, game, fur bearing animals of the State of Florida” to “wild animal life” is that it was either just a simplification of the prior constitutional amendment language or it was intended to expand the species of ferae naturae beyond birds, game or fur bearing, such as manatees and dolphins.

The phrase “wild animal life” is clear, but to the extent that the FWC were to attempt to argue that this phrase is ambiguous, the drafters’ intent (as manifested by the voters) is also clear that the FWC’s constitutional purpose is natural conservation. See e.g., W. Fla. Regl. Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla. 2012) (if constitutional language is ambiguous, “a court must endeavor to construe the constitutional provision in a manner consistent with the intent of the framers and voters.”). The amendments are consistent with the conservation purpose of the original constitutional amendment as described in Barrow where the Court held that the justification for the Commission “stems from the State’s interest in animals ferae naturae,” id. at 751, and the Editor’s Notes to the 1999 amendment describing the constitutional mandate of the FWC to be “natural resources conservation efforts.” As such, the plain language of the constitutional amendment and the overall intent of the constitutional drafters both reflect a conscious decision to grant the FWC the power to regulate only wild (i.e. non-captive) animals. The FWC’s limited authority to regulate captive wildlife and wildlife in private possession is a result of acts of the legislature passed after Barrows, not as a result of constitutional amendments. Based on this, the Florida Legislature retains the authority to enact statutes regulating captive animals, including passing a ban on private ownership of exotic animals such as big cats.

IV. Case Law Cited in FWC Memorandum

In its Memorandum, the FWC takes the position that it “has constitutional authority over all fish and wildlife whether in the wild or in captivity” and its authority “to regulate captive wildlife as part of its constitutional authority is no longer in question.” Memo. from Carla J. Oglo at 1–2. This bold conclusion is unsupported and is very much in question. First, the FWC does not have control over all fish and wildlife because the FWC’s constitutional authority does not extend to threatened and endangered species. See e.g., Fla. Fish and Wildlife Conserv. Commn. v. Caribbean Conserv. Corp., Inc., 789 So.2d 1053, 1054-5 (Fla. 1st DCA 2001); see also, Wilkinson v. Fla. Fish and Wildlife Conserv. Commn., 853 So.2d 1088, 1089 (Fla. 1st DCA 2003). Second, the Barrow decision is still binding authority of Florida’s highest court. The FWC has not cited any binding legal precedent contrary to the holding in Barrow. As such, this issue is still governed by the Court’s decision in Barrow.

Last, the authority relied on by the FWC in its internal Memorandum does not interpret the constitutional amendments and are distinguishable. The FWC cites authority for its position that the FWC’s authority over captive wildlife “is no longer in question.” Two of the FWC’s citations are from opinions by administrative law judges that acknowledge that they have no authority to interpret the Constitution. In the only court case cited by the FWC as authority, the Court does not actually interpret the constitutional amendments, make any findings regarding the FWC’s authority over captive animals, nor does it decide whether the FWC’s regulatory authority over captive animals is based on the constitution as opposed to the statutes.

Ray Haddock & Greyhound Breeders Assn. of Fla. v. Fla. Game and Fresh Water Fish Commn., DOAH Case No. 86-3341RP (1987) is an opinion decided by an administrative law judge. The opinion acknowledges that “[t]he Division of Administrative Hearings has no jurisdiction to determine either Florida or federal constitutional questions which may be pending in this matter.” The administrative law judge does not decide whether the proposed rule regulating black-tailed jack rabbits is constitutional as suggested by the FWC Memorandum. Because the parties only identified the constitutional amendment as the source of the FWC’s power to regulate, the administrative law judge dismissed the case because the Florida Administrative Code does not authorize administrative hearings to decide constitutional issues. No findings were made regarding the FWC’s power; rather, the judge held that he lacked jurisdiction to decide the issue. Therefore, this decision has no precedential value and certainly does not support the FWC’s argument that its authority “to regulate captive wildlife as part of its constitutional authority is no longer in question.”

The second opinion cited is Charles River Laboratories, Inc. v. Fla. Game and Fresh Water Fish Commn., DOAH Case No. 96-2017 (1997), affirmed, 717 So.2d 1003 (Fla. 1st DCA 1998). Like Ray Haddock, the administrative law judge made no conclusion of law that the FWC’s authority over captive animals stems from the Constitution because such a conclusion would exceed the judge’s jurisdiction. Instead, the judge recognized that the permits at issue were authorized pursuant to Florida statute. The judge concluded that the permits were properly issued and this holding was affirmed by the District Court of Appeal. Therefore, the holding of this opinion supports the conclusion that the FWC’s authority in this realm is a creature of legislative enactment and not constitutional prerogative.

The third case, Miramar v. Bain, 429 So.2d 40 (Fla. 4th DCA 1983), stated in dicta, “that the Commission has exclusive authority to enact rules and regulations governing wildlife such as those that are the subject of this appeal,” however, the court did not address the issue of whether the FWC’s authority is based on the constitutional amendment or Florida statutes. To the contrary, there was no dispute that the FWC had authority to issue permits for captive animals (under Fla. Stat. § 372.922 enacted after the Barrow decision). In Miramar, a homeowner challenged a city ordinance that restricted the fences she erected on her property where she kept cougars as pets. The only issue decided by the Miramar court was whether the local ordinance impermissibly conflicted with the FWC’s regulations for private ownership of the cougars. The court held it did not. Therefore, this case provides no authority for the FWC’s claim that its power over captive wildlife comes from the Constitution.

V. Conclusion

The self-serving claim by the FWC that the agency’s authority over captive wildlife comes from the Florida Constitution hinges entirely on whether the 1968 constitutional amendment that changed the phrase “birds, game, fur bearing animals” to “wild animal life” was clearly intended to overrule Barrow in the Constitution rather than rely on the statutes that had already addressed Barrow. The FWC argument that this change in wording granted the FWC constitutional authority over captive animals conflicts with the known purpose of the amendments (conservation of natural resources in the wild), the clear meaning of the phrase “wild animal life,” and any logical analysis of the likely intent of the drafters in choosing to change that phrase. The case law cited by the FWC simply does not support the FWC argument. It is clear, therefore, that authority granted to the FWC by the Constitution is only over ferae naturae, i.e. animals in the wild, consistent with the intent of the Constitution to establish an agency whose mission was to protect and manage Florida’s natural resources. The FWC’s authority over captive wildlife comes only from Florida Statutes §§ 379.303, 379.304, 379.3761 and 379.3762. Since the FWC’s authority over captive wildlife comes from the Legislature by statute, not from the Constitution, the Legislature clearly has the power to change that authority, including passing a ban on private ownership of dangerous big cats.

1. For instance, the FWC regulates the spread of non-native, invasive species that could potentially harm native species and Florida’s ecosystem such as Burmese Pythons, Lionfish, and Tegus. These animals were likely pets under private ownership, but were ultimately released into the wild. See, Fla. Fish and Wildlife Conserv. Commn., Florida’s Exotic Fish and Wildlife, http://www.myfwc.com/wildlifehabitats/nonnatives/ (accessed August 18, 2015).