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Rooster Limit Is Constitutional

William Fulton on
Mar 3, 2019

It’s constitutional to limit residents to four roosters on a property without a permit, the Sixth District Court of Appeal has ruled.

Monterey County requires a “rooster keeping operation permit” for any property owner who wants to maintain more than four roosters on a single property. Among other things, the county requires that the permit applicant not to have been convicted of criminal cockfighting or animal cruelty. Other requirements include maintaining clean and orderly pens for the roosters. More information about the rooster ordinance can be found here.

Two property owners, Heriberto Perez and Miguel Angel Reyes Robles, challenged the ordinance as unconstitutional and on appeal limited themselves to the argument that the ordinance was unconstitutional on its face. They lost every argument they put forth.

Cockfighting and cruelty to roosters were in the news last year when an animal rights group posted video supposedly outing an unpermitted cockfighting operation in the unincorporated community of Royal Oaks near Elkhorn Slough. The same rooster ordinance was at issue in that case. However, the property owners in that case were different than the property owners in the Royal Oaks case.

The Sixth District make short work of the rooster case, requiring only nine pages to knock down all the constitutional arguments. Among the arguments that the court shot down were the following:

  • A Fifth Amendment taking argument, which requires the finding of a regulatory taking. However, in this case the court could not act because the Perez and Robles limited themselves to a facial challenge and did not include arguments about an as-applied challenge. There is also .. evidence regarding whether either plaintiff is eligible for a rooster keeping permit, has been granted or denied one, or has even applied for one,” the court wrote. “The extent to which the ordinance affects plaintiffs depends on whether they have a rooster keeping permit. Without evidence on that point, we are further unable to determine whether a regulatory taking has occurred.”
  • A violation of the interstate commerce clause because the plaintiffs argued that getting down to four roosters would require them to sell additional roosters out of state. But, the court said, the ordinance “does not force all rooster owners to “immediately divest” themselves of all but four roosters; it merely requires a permit to keep more than four roosters on a single property.
  • An equal protection based on the fact that minors, though not adults, can maintain more than four roosters under the ordinance, either for educational purposes of for a Future Farmers of America or 4-H project. While conceding that minors are treated differently than adults, the court concluded that the exceptions for minors served a legitimate governmental purpose – teaching minors how to maintain many roosters in a safe manner.

The Case:

Perez v. County of Monterey, No. H044364 (February 14, 2019)

The Lawyers:

For property owners: Lynne Marie Patterson, (714) 848-3606

For Monterey County: Michael J. Whilden, Deputy County Counsel, (831) 755-5045

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