               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT


ANDY G. STRICKLAND,                        )
                                           )
              Appellant,                   )
                                           )
v.                                         )             Case No. 2D17-3984
                                           )
PINELLAS COUNTY, FLORIDA,                  )
                                           )
              Appellee.                    )
                                           )

Opinion filed December 12, 2018.

Appeal from the Circuit Court for
Pinellas County; Jack Day, Judge.

William D. Slicker, St. Petersburg, for
Appellant.

Ashley N. Donnell, Assistant County
Attorney, Pinellas County Attorney's
Office, Clearwater, for Appellee.


ROTHSTEIN-YOUAKIM, Judge.

              Andy G. Strickland appeals an order dismissing with prejudice his

complaint for declaratory relief against Pinellas County.1 We affirm because his

complaint failed to state a cause of action for declaratory relief.



              1Stricklandidentified the defendant as the Board of Commissioners of
Pinellas County, but as the County pointed out below, Pinellas County is the proper
              In June 2017, Strickland filed a complaint in circuit court alleging the

following:

              On March 4, 2016, his neighbor's dog was "running free" and attacked his

dog without provocation. His neighbor then filed an affidavit with Pinellas County

Animal Services falsely accusing his dog "of being the aggressor dog." Based solely on

that affidavit, which he was not given an opportunity to challenge, Pinellas County

Animal Services then sent him a letter entitled "Notification of Dangerous Propensities,"

informing him that "Animal Services had reason to believe that [his] dog had exhibited

dangerous propensities and that if a future incident occurred, [he] could be criminally

charged." In response to a letter that he subsequently sent to the Pinellas County

Board of County Commissioners on the matter, he received another letter stating that "it

has been determined that [his dog] is potentially exhibiting dangerous propensities that

could potentially deem him dangerous."

              Strickland claimed that the action taken by Animal Services "was agency

action that required due process to determine the validity of the allegations in the

affidavit" and that the action "was done without due process since [he] was never given

the opportunity to dispute what was stated in the [a]ffidavit." He claimed further that he

"is in doubt as to his rights due to the threat of criminal prosecution . . . and is entitled to

have such doubt removed."

              Strickland attached to his complaint the two letters that he had received

from the County. The first letter—a "NOTIFICATION OF DANGEROUS




entity. See § 125.15, Fla. Stat. (2016) ("The county commissioners shall sue and be
sued in the name of the county of which they are commissioners.").


                                              -2-
PROPENSITIES" dated April 6, 2016—was from the director of Pinellas County Animal

Services and informed Strickland that in accordance with chapter 767, Florida Statutes,

Animal Services had conducted "a dangerous animal investigation" of his dog. The

letter stated, in part:

               After reviewing the incident of: January 14th, 2015[,] and
               March 4th, 2016[,] a decision was made not to classify the
               animal at this time. While circumstances may not cause
               your pets to fall into the dangerous category at this time,
               Animal Services has reason to believe that your dog has
               exhibited dangerous propensities and it is incumbent on
               you, the animal owner, to insure that no other incidents
               occur. If a future incident does occur, depending on the
               circumstances, you could be charged criminally.

               ....

               Pinellas County has determined that animals not classified
               dangerous pursuant to State and County law can still pose a
               serious risk to public health and safety. Although your
               animal has not been classified as dangerous, you could still
               be classified as an Irresponsible Pet Owner under section
               14-38 of the Pinellas County Code if you are found to have
               two previous convictions for Animal Safety and Welfare
               Violations occurring on separate dates.

               I emphasize that, at this time, Animal Services did not make
               a determination to classify your animal(s) dangerous or you
               as an irresponsible owner. However, steps should now be
               taken to correct situations that may contribute to its
               misbehavior.

(Emphases in original.)

               The letter set forth sections 767.01, 767.13(2), and 784.05(1), Florida

Statutes (2015), which apply to owners whose dogs have caused damage, injury, or

death. That version of section 767.13(2), notably, prescribed criminal liability for an

owner "[i]f a dog that has not been declared dangerous attacks and causes severe

injury to or death of any human . . . [and] the owner of the dog had prior knowledge of


                                            -3-
the dog's dangerous propensities, yet demonstrated a reckless disregard for such

propensities under the circumstances."2

              The letter further advised Strickland of measures that "should now be

taken to correct situations that may contribute to [his dog's] misbehavior":

              First, I recommend that the animal be sterilized if it has not
              already been done. Other measures include stronger
              leashes, repair of fence/gate, secure marked enclosures,
              muzzle your pet(s) when out on walks, and positive control
              of your pet(s). You may find Obedience Training to be of
              great help in preventing a potentially serious problem in the
              future.

(Emphases in original.)

              The second letter, dated May 31, 2017, and signed by an assistant county

attorney, stated that Animal Services had "determined that [Strickland's dog] would not

be classified as dangerous" and that Strickland "would not be classified as an

'irresponsible pet owner.' "3 The letter went on to state that Animal Services

nonetheless had "determined that [the dog] is potentially exhibiting dangerous

propensities that could potentially deem him dangerous" and that Animal Services had

provided information "for responsible pet ownership." The letter further stated that "the

County has determined that no further action is deemed appropriate."




              2Section    767.13(2) has since been amended and no longer imposes
liability for a dog that has not been declared dangerous. See ch. 2016-16, § 3, Laws of
Fla. (effective March 8, 2016).
              3This letter was in response to a "notice of claim" letter sent by Strickland's
attorney on May 26, 2017, which stated that pursuant to section 768.28, Florida
Statutes, Strickland "gives notice that he is in doubt as [to] his rights due" to the first
letter he received and "that he intends to pursue an action to clarify his rights."


                                            -4-
               The County moved to dismiss Strickland's complaint for declaratory relief,

arguing that Strickland had failed to allege a justiciable controversy and a bona fide

dispute between the County and him. The County asserted that no legal findings had

been made regarding Strickland's dog and that the letter from Animal Services served

only to warn Strickland of "possible ramifications and relevant law." Strickland

responded that his complaint met the requirements for declaratory relief because the

letters contained findings that his dog has "dangerous propensities" and he faces the

threat of criminal prosecution. He argued that he was "contesting that the County found

that [his dog] had allegedly exhibited dangerous propensities without following any due

process."

               The trial court summarily granted the County's motion to dismiss and

dismissed Strickland's complaint with prejudice, stating: "The statement in question,

'We have reason to believe your dog, etc.' is not accusatory and merely reflects the

existence of an allegation, a fact that is undisputed. The case presents no justiciable

issue."

               On appeal, Strickland argues that the trial court erred in dismissing his

complaint because he met the standard for declaratory relief. This court reviews the

trial court's dismissal de novo. See Ribaya v. Bd. of Trs. of City Pension Fund for

Firefighters & Police Officers in City of Tampa, 162 So. 3d 348, 352-53 (Fla. 2d DCA

2015) ("[W]hen a defendant challenges a complaint for declaratory relief on the ground

that it fails to state a cause of action, i.e., that it is legally insufficient, the trial court rules

on that motion as a matter of law. In that situation, this court reviews the order de novo

as an issue of law." (footnote omitted)).




                                                 -5-
              A complaint for declaratory relief must allege the following:

              (1) there is a bona fide dispute between the parties; (2) the
              plaintiff has a justiciable question as to the existence or
              nonexistence of some right, status, immunity, power or
              privilege, or as to some fact upon which existence of such a
              claim may depend; (3) the plaintiff is in doubt as to the claim;
              and (4) there is a bona fide, actual, present need for the
              declaration.

Id. at 352. "Thus, absent a bona fide need for a declaration based on present,

ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief."

Treasure Chest Poker, LLC v. Dep't of Bus. & Prof'l Regulation, 238 So. 3d 338, 341

(Fla. 2d DCA 2017) (quoting Santa Rosa County v. Admin. Comm'n, Div. of Admin.

Hearings, 661 So. 2d 1190, 1193 (Fla. 1995)).

              The trial court correctly dismissed Strickland's complaint because his

allegations did not establish a present, bona fide dispute between him and the County

that places him in doubt regarding his rights. Although the County stated that his dog

exhibits potentially "dangerous propensities," which is a term used in section 767.13(2),

designating an animal as having "dangerous propensities" as that term is used in

section 767.13(2) is not within the County's authority.4 See generally § 767.12. At oral

argument, the attorney for the County confirmed that the sole purpose of the letters was

to inform Strickland that there had been a complaint against his dog but that Animal

Services was taking no action based on the results of its investigation. Indeed, both



              4IfAnimal Services had instead preliminarily determined that Strickland's
dog was dangerous, Strickland would clearly have been entitled to notice and a hearing
before any final determination was made. See § 767.12(1) (requiring animal control
authority to investigate reported incidents involving any dog that may be dangerous,
allowing an owner the opportunity for a hearing prior to making a final determination,
allowing the owner to file a written request for a hearing and requiring a hearing to be
held as soon as possible, and then allowing the owner to appeal to the county court).


                                             -6-
letters emphasized that Strickland's dog had not been classified as dangerous and that

while subject to various ordinances and statutes, Strickland does not face an imminent

threat of prosecution any more than does any other dog owner. See BAC Funding

Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA

2010) ("When exhibits are attached to a complaint, the contents of the exhibits control

over the allegations of the complaint.").

              The allegations and exhibits, therefore, establish that Strickland has only a

fear that he may be subject to legal consequences if something further happens with his

dog.5 Such a speculative fear is not sufficient to warrant declaratory relief. See

Treasure Chest, 238 So. 3d at 341 (holding that operator of poker games was not

entitled to declaratory relief where it "did not allege that it faces an imminent threat of

administrative action or criminal prosecution" but alleged "only that the notices [it

received from the regulatory agency] have 'placed it in fear' that it will be criminally or

administratively prosecuted"); El Faison Dorado, Inc. v. Hillsborough County, 483 So. 2d

518, 520 (Fla. 2d DCA 1986) ("Since the [plaintiff] has failed to allege or demonstrate

that there is an imminent threat of prosecution . . . for violation of the ordinance, the

[plaintiff] has failed to establish its right to a declaratory judgment in these

proceedings."). Accordingly, the trial court correctly dismissed Strickland's complaint.

              Affirmed.

SILBERMAN and ATKINSON, JJ., Concur.



              5Although   the County's language regarding the dog's possibly dangerous
propensities was intended solely to inform Strickland of negative consequences that he,
like any dog owner, could face in the future, we understand how that language might
strike just such a fear in a dog owner receiving the letter. The County may wish to
consider using less problematic language in the future.

                                             -7-
