Judge Scott DuPont ruled that there was no evidence that the dog, Muneco, had 'aggressively attacked.' Muneco was held at the Humane Society for 11 months while the case proceeded.
For 11 months, Elen Puerta's dog — a pit bull mix named Muneco — had been held in limbo at the Flagler County Humane Society after an alleged bite. A city Animal Control hearing officer ordered that Muneco be euthanized, and Puerta's appeal sent the case to circuit court.
When Humane Society of Flagler County director Amy Carotenuto called Puerta Nov. 29 to tell her that Circuit Judge Scott DuPont had found in Muneco's favor, and that the dog could go home, Puerta was already in the Humane Society's parking lot: She visited every day.
"It was the time that I always go … until they close," Puerta said. "I was there in the parking lot. I was happy to take him home. ... He was really happy."
Other than the hearing officer, Nicole Turcotte, no one involved in the case — including city of Palm Coast Animal Control staff and the victim herself, who thought the incident was a "freak accident" — requested that Muneco be killed.
The alleged bite had occurred the morning of Dec. 29, 2016, while Puerta and her family were on vacation. Her friend Joaquim Carvalho was watching Muneco, and had taken the dog out for a walk. Neighbor Sherry Helmich, 69, was out on her morning walk and saw Muneco.
He was wagging his tail, and she stopped to pet him. But as she turned to go, the dog jumped up and placed his paws and face on Helmich’s left arm, according to a city of Palm Coast animal bite incident report filled out by a Flagler County Sheriff’s Office deputy.
Helmich's injury was serious — she'd require 44 stitches. But it wasn't clear to city Animal Control staff that the wound was caused by a bite and not a scratch.
Palm Coast Animal Control officer William Doonan saw Helmich's injuries.
In a statement at the Feb. 2 Animal Control hearing that DuPont would later quote in his order and opinion, Doonan stated: "It looked more like he (Muneco) jumped up and just — the dog jumped up, she said she pulled away, and the person walking the dog pulled the dog down. So it could have been the tooth and it ripped it, it could have been a scratch, I have no idea."
When Puerta first heard that Muneco had bitten a woman and caused severe injury, her first inclination was to have Muneco put down. After all, she didn't want Muneco to hurt anyone else, including her two boys, who were 8 and 14.
After she returned to Palm Coast, she said as much when city Animal Control Officer Eva Rodriguez brought her papers to sign to declare Muneco a dangerous dog.
That meeting, Rodriguez said, was "very emotional," and when Puerta said she planned to put the dog down, Rodriguez told her the city wasn't asking for that.
Rodriguez told Puerta that she could take Muneco home that very day from the Humane Society — where he'd been held since the date of the incident — if she would sign paperwork stating that she wouldn't contest a designation of Muneco as a dangerous dog.
By the next day, Puerta had learned more about the case and decided to fight the designation.
"The only evidence in the record directly addressing Muneco's aggressiveness reveals that even when his food bowl and toys were taken from him, his tail was pulled, he was pinched, or he was startled, Muneco could not be incited to exhibit any signs of aggression. ... The court finds that all of the evidence supports the finding that Muneco was playing and that the incident was a 'freak accident.'"
— SCOTT DUPONT, circuit court judge
It didn't seem like Muneco had been trying to hurt Helmich, she said, and even Helmich, in her statement on the incident, had written, "(Muneco) could have been mad I was leaving so he tried to grab onto me. If he does not display aggression in quarantine, I don't think he should be put down. I think a freak accident."
And what would be the risk of appealing, since even the city's animal control staff didn't want Muneco put down?
Quite significant, it turned out: Although Florida law states that a dog found dangerous "may" be put down, the city's code used the word "shall" in cases in which the dog is determined through an animal control hearing to have "aggressively attacked and caused severe injury."
In other words, Puerta could sign the papers agreeing to the "dangerous dog" designation and a set of associated requirements, like getting insurance for Muneco and having him wear a muzzle. The designation also meant that she could be criminally prosecuted, and Muneco could be put down, if Muneco bit someone in the future. But appealing the designation introduced a new risk that the dog could be ordered to be killed — a penalty higher than the one being appealed in the first place.
The city's own staff noted the discrepancy and were already working on changing the ordinance when Muneco's case occurred.
The city’s attorney, Jennifer Nix, wrote in an email to Puerta’s attorney before a hearing date was set that losing the potential appeal of the dangerous dog designation could expose Muneco to the risk of being ordered to be put down, but that it “is not an ‘automatic death sentence.’”
“If this initial determination is appealed,” Nix wrote, “it will be noted by the city that in light of revisions to the city code currently being worked on (initiated prior to this bite incident), the state statutes control, and destruction of the dog is not mandated.”
Since even the city Animal Control officers didn't want Muneco to be killed, Puerta didn't think that was a serious possibility.
But Turcotte interpreted the city ordinance as mandating the dog's destruction. And even though Nix said during the hearing that the city didn't want the dog put down and was following the state law rather than city ordinance, Turcotte wasn't sure that she had authority to ignore the city's code. Anyway, she said, state law also allowed for the dog to be destroyed, and she would have ordered Muneco's death even without the city code.
"I cannot fathom that biting, jumping and injuring someone severely cannot be considered aggressive behavior," Turcotte said at the hearing. "I agree with the city's observation that this is a dangerous dog. It is clear to me that there is a severe injury to the victim."
She ordered that Muneco be killed pursuant to city code. Puerta appealed, and Muneco was ordered to be held at the Humane Society until the appeal ended.
That was costly for the Puerta family: For about the first two months, Muneco was held at a dangerous dog rate of $30 a day. Because Muneco's stay was so extended and because Humane Society staff tested the dog and determined that they did not need to use dangerous dog precautions with him, the rate was reduced to a standard boarding rate of $15 per day, Carotenuto said. Muneco was held at the Humane Society from Dec. 29, 2016, to Nov. 29, 2017.
Since the incident, the city has amended its code.
"Because the hearing officer made that recommendation, we recommended to City Council — and they approved — a change to our ordinance that addressed the hearing officer’s comments about whether the dog had to be put down," city spokeswoman Cindi Lane wrote in an email. "The amended ordinance allows more discretion for the hearing officer in cases such as this."
In ordering Muneco's death, Turcotte erred, DuPont wrote.
DuPont upheld Turcotte's determination that Muneco was dangerous — a determination that, under both state law and the city's code, could be applied to a dog that inflicted severe injury on a person, even if that injury did not occur in the course of an aggressive attack.
But, he wrote, "application of City Code 8-44(c) to order the dog's automatic destruction, however, mandates that the dog have both 'aggressively attacked and caused severe injury.'"
DuPont found "no competent substantial evidence in the record to support the Hearing Officer's finding that Muneco 'aggressively attacked' Ms. Helmich or City Code 8-44(c) requires Muneco's destruction."
The testimony of both witnesses to the incident — Helmich and Carvalho — "evidenced that this was a 'freak accident,'" DuPont wrote.
Staff at the Humane Society, he noted, had "unanimously described an obedient, well-behaved, playful, friendly dog."
"As a matter of fact, the only evidence in the record directly addressing Muneco's aggressiveness reveals that even when his food bowl and toys were taken from him, his tail was pulled, he was pinched, or he was startled, Muneco could not be incited to exhibit any signs of aggression," DuPont wrote. "The record reveals that Muneco was happy and friendly to Ms. Helmich at the time of the incident. Ms. Helmich sustained her injury when she pulled her arm and Mr. Carvalho pulled Muneco away when he placed 'his face and paws' on her arm to get her to continue petting him. The court finds that all of the evidence supports the finding that Muneco was playing and that the incident was a 'freak accident,' and finds no evidence that Muneco aggressively attacked Ms. Helmich."
The city was satisfied with DuPont's decision.
"The decision by the judge is appropriate and consistent with the ‘Initial Determination’ and recommendation made by city staff and our legal team to protect the public and spare the dog's life," City Manager Jim Landon said. "It is a great victory for the dog and the city.”
Puerta is relieved to have her dog back. But she still found the judge's order disappointing because it upheld the classification of Muneco as dangerous.
"He’s very gentle. He doesn’t even bark. He’s super cool," she said. "I have to be happy that he’s here. Because he deserved to be here with the family. …All the time I used to think of all those dogs (at the Humane Society) that need a family, and our dog — that we love him and we take care of him — has to be in that situation. It kind of sucks. It doesn't make sense."
At the Humane Society of Flagler County, staff were pleased that Muneco could be returned to his family, which Carotenuto described as "probably the most devoted family we’ve ever run into."
But Humane Society staff will miss him. They took pictures kissing Muneco goodbye before he left.
"It’s bittersweet — mostly sweet, because we’re happy he’s back home," Carotenuto said. "Everybody definitely loved him here."
Muneco is now back to playing with Puerta's two sons.
He seems to move a bit slower and sleep a bit more than he did a year ago, perhaps because he wasn't doing as much running during his long confinement as he had before, Puerta said.
"I don’t think he deserved what happened, but … I think life happens like that," Puerta said. "Life not always is fair; life not always is good. Life has good and bad, and that’s life. There's not anything you can do about that."