Florida Couple’s Home Aviary May Be Restored

ORLANDO (CN) - A federal judge voided a Florida county's laws that barred a couple from selling toucans from the bird aviary in their back yard.

David and Jennifer Foley raise toucans and are licensed to possess, exhibit and sell the birds from their residence and a second property in Christmas, Fla.

Orange County said it received a complaint that the Foleys were selling birds from their home in 2007. A code-enforcement officer observed the aviaries and advised the couple that they needed a building permit for such structures.

When he saw that the Foleys had not removed the aviaries in a second inspection of the residence three weeks later, he issued a citation.

The county ordered the couple to obtain the proper permit or take the aviaries down. When the Foleys learned that the property is zoned R-1A, a residential zoning district that does not allow the aviaries, they sued the county, several code-enforcement employees, and members of the county commission and zoning-adjustment board.

They contended that the aviculture regulations were invalid and that Orange County therefore cannot use them to prevent the sale of residentially raised toucans.

The Foleys claim that portions of Orange County's land use ordinances, which prohibit the operation of a commercial aviary at the residence altogether and at the second property absent a special use permit, conflict with a provision of the Florida Constitution that provides the Florida Fish and Wildlife Commission with all of the "regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life."

The couple said the county's claims against them are arbitrary, irrational and violates their rights to due process.

U.S. District Judge Roy Dalton ultimately tossed the Foleys' against county employees and the zoning board, directing the couple to amend their complaint to sue only Orange County.

Last week he denied Orange County's motion to dismiss as moot.

The court then granted the Foleys summary judgment on the claims that the land use regulations were unlawful.

"The portions of Orange County's land use regulations that prohibit 'commercial aviculture, aviaries' and 'breeding, keeping, and raising of exotic animals' are inconsistent with general law of Florida and are therefore void," the 29-page order states.

"The court concludes that Orange County cannot use its land use ordinances to regulate the possession or sale of captive wildlife," he stated.

Dalton concluded the order by saying that the only issue left to resolve is how to remedy the Foleys' claim. Briefing on this issue is due by Sept. 6.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit