Rabon v. City of Seattle

Grosse, J.

(concurring) — The majority permits the City of Seattle to prevent people from owning dangerous dogs. This conflicts with the dog licensing scheme crafted by the Legislature.

RCW 16.08 divides into two categories, "potentially dangerous” and "dangerous.” Local governments are not limited in their ability to regulate potentially dangerous dogs. RCW 16.08.090(2). But for dangerous dogs, the Legislature mandates that "[t]he animal control authority *308of the city . . . shall issue a certificate of registration to the owner of [a dangerous dog] if the owner presents to the animal control unit sufficient evidence” of registration compliance. RCW 16.08.080(2) (emphasis added). The owner must provide a proper enclosure, warning signs, and a surety bond or liability insurance; and, significantly, a person cannot own a dangerous dog in Washington without a certificate of registration. RCW 16.08.080(2)(a)-(c); RCW 16.08.080(1).

Under the City’s ordinances it is unlawful to own a "vicious” animal. Seattle Municipal Code (SMC) 9.25.083. By definition, a "vicious” animal implicitly includes both potentially dangerous dogs and dangerous dogs. See SMC 9.25.024. Under its ordinances, the City would never find a dog to be "dangerous.” The result is that no Seattle dog owner has the opportunity to register his or her dog using the procedure outlined in RCW 16.08.080.

By eviscerating RCW 16.08’s dual definitions of dogs, the City directly clashes with state statute. Article XI, section 11 of the Washington Constitution prevents such a conflict. A city may enact only regulations under its police power authority that are " 'reasonable and consistent with the general laws.’ ” Brown v. City of Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991) (quoting Hass v. City of Kirkland, 78 Wn.2d 929, 932, 481 P.2d 9 (1971)); Wash. Const. art. XI, § 11. A city ordinance must yield to a statute on the same subject if "a conflict exists such that the two cannot be harmonized.” Brown, 116 Wn.2d at 559 (quoting City of Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 730, 585 P.2d 784 (1978)). Here the City’s scheme cannot be harmonized with the Legislature’s scheme.

Nonetheless, because Rabón has failed to show an equitable right to avail himself of an injunction, the conflict does not require reversal of the trial court. The record clearly demonstrates that he failed to comply with the minimum requirements of maintaining a dangerous dog. Under RCW 16.08.100 an owner must maintain his or her dangerous dog in the proper enclosure and restrain a dog *309when it is outside the enclosure or the owner’s dwelling. Rabón repeatedly allowed his dogs to be loose and unrestrained by a leash in direct violation of the court’s 1992 order. Under these circumstances, I reluctantly agree with the majority that Rabón has not met his heavy burden to demonstrate his right to an injunction. While the dogs are small, and their sins correspondingly so, the intransigence of their owner dictates the result.

Review granted at 131 Wn.2d 1024 (1997).