The predecessor to the FWC (the agency name has changed over the years) was established in 1942 by an amendment to the Florida Constitution which became current Article 4, Section 9. It originally gave the Commission power over “birds, game, fur bearing animals, and fresh water fish of the State of Florida.” In later amendments to the Constitution this phrase was changed to “wild animal life and fresh water aquatic life.”

 

The FWC originally interpreted the 1942 language to give the agency power over captive wildlife in addition to Florida’s native free wildlife. In 1960 their attempt to regulate captive animals ended up in the Florida Supreme court with Barrow v. Holland, 125 So.2d, 749, 751 (Fla 1960).  The Court ruled that the amendment did NOT give FWC power of captive animals. As a result, the Legislature stepped in and passed currently numbered Florida Statutes §§ 379.303, 379.304, 379.3761, and 379.3762 to add regulatory authority over captive wildlife to the agency’s powers.

 

In 2007 in house counsel for FWC produced a memorandum arguing that FWC’s powers over captive animals comes from BOTH the statutes and the Constitution. To the extent the power comes from the Constitution, their argument is that the agency’s powers cannot be altered by the legislature except in the very limited way provided for in the Amendment, which states “The legislature may enact laws in aid of the commission, not inconsistent with this section.”

 

The basis for this FWC position in the memo is that changes to the Amendment language since 1942 have rendered Barrow no longer applicable law and that references to the Constitutional powers in certain subsequent cases support this interpretation.

 

An analysis of those changes in language in the amendments to the Constitution and of the cited cases by attorneys at Johnson, Pope, Bokor, Ruppel & Burns, LLP and concurred with by University of Florida Constitutional Law Professor Joe Little reveals that the FWC argument is flawed and that FWC’s power over captive animals comes entirely from the statute, not at all from the Constitution (see https://www.jpfirm.com/news-resources/constitutional-authority-florida-legislature-ban-private-ownership-exotic-animals/ ). What the Legislature giveth, the Legislature can take away. Therefore it is clear that the Florida legislature has the authority to ban private ownership of big cats as other state legislatures have done.

 

WHAT CAN FLORIDA LEARN FROM OTHER STATES AND

WHAT SHOULD THE FLORIDA BAR RECOMMEND TO ADDRESS THIS PROBLEM?

https://vimeo.com/222234998/

There are only four remaining states that have no laws regarding ownership of dangerous big cats. Until 2011 Ohio was one of those known for having a very large population of unregulated exotic animals.  Then, in a horrible incident known as “the Zanesville massacre” that made national news, Terry Thompson, an exotic animal owner, intentionally released 56 dangerous animals including 18 tigers and 17 lions and then committed suicide. As dark approached law enforcement officials were forced to shoot to kill 49 of those animals. Subsequently Zanesville’s Sheriff Lutz has become a strong advocate of national legislation to limit private possession of big cats (see his moving video at 4991058dae ) and the National Sheriffs’ Association has endorsed a federal bill severely limiting ownership of big cats (Big Cat Public Safety Act, H.R 1818/S.2990).

 

What renders almost all of the state laws largely ineffective is that they operate much like the Florida law that only prohibits owning the animals as pets.  I.e. they exempt anyone who has a USDA license.  This includes all of the roadside zoos who continue to keep these animals in conditions that are unnatural and cruel given what we know about how intelligent and sentient these animals are. The animals endure these conditions because, as described in detail above, trying to enforce regulations intended to protect the animals is simply not practic