HomeMy WebLinkAboutReso 13-04 BischofFamViciousDog RESOLUTION NO. 13 - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
MAKING FINDINGS, DENYING THE APPEAL OF THE BISCHOFF FAMILY
BY MICHAEL BISCHOFF, AND AFFIRMING THE DECISION OF THE
CITY MANAGER FINDING THAT THE DOG "BUDDY" IS A VICIOUS DOG
AND SHOULD NOT BE RETURNED TO HIS OWNER, ROBERT BISCHOFF
RECITALS
WHEREAS, Michael Bischoff, on behalf of the Bischoff family, appealed the determination that
the dog "Buddy" is a vicious dog and should not be returned to Michael Bischoff's son, Robert Bischoff,
the owner of "Buddy"; and
WHEREAS, the City Council, at its January 6, 2004 meeting, heard Michael Bischoff's appeal
pursuant to Dublin Municipal Code §5.36.080, which provides that any person aggrieved by an
administrative decision pursuant to §5.36, may appeal the decision to the City Council; and
WHEREAS, the appeal process, set forth in Dublin Municipal Code §1.04.050, requires the
appellant to show cause, on grounds specified in the notice of appeal, why the action excepted to should
not be upheld; and
WHEREAS, pursuant to Food and Agriculture Code §31621, the City may adopt an administrative
hearing procedure to hear and dispose of petitions regarding vicious or potentially dangerous dogs; and
WHEREAS, once a vicious dog determination has been made, if the dog owner contests the
determination, §31622 of the Food and Agriculture Code provides that the dog owner may appeal the
decision to the superior court. Upon appeal, the superior court shall conduct a de novo hearing in order to
make its own determination regarding the dog's viciousness; and
WHEREAS, Food and Agriculture Code §31683 provides that nothing in that chapter shall be
construed to prevent the City from adopting its own administrative hearing procedure; and
WHEREAS, on September 17, 2003, staff received a report from Alameda County Animal
Control regarding a dog bite incident occurring on August 28, 2003. The report stated that a loose dog,
Buddy, bit a young man while he was riding down the street. The victim received three puncture wounds
and two surface abrasions on the right buttock; and
WHEREAS, the animal control officer's report recommended that a vicious dog hearing be
conducted. Pursuant to Dublin Municipal Code §5.36.020, the hearing was scheduled for September 24,
2003; and the Hearing Notice was mailed to the dog owner via first class mail and certified mail, return
receipt requested. Robert Bischoff, Buddy's owner, signed for the certified notice on September 19,
2003; and
WHEREAS, the vicious dog hearing was conducted in accordance with Chapter 5.36 of the
Dublin Municipal Code, on September 24, 2003. Robert Bischoff failed to appear for the hearing. Based
upon information contained within the Animal Control report, Buddy was declared vicious, pursuant to
DMC §5.26.290(A)(1)-(2); and
WHEREAS, the Findings & Order from the vicious dog heating were issUed on September 25,
2003; and
WHEREAS, the Findings & Order were mailed via first class mail and certified mail, return
receipt requested, on September 25, 2003 to Robert Bischoff. The certified mail copy was returned to the
City of Dublin on October 23, 2003, with the notation that delivery was attempted three times, but
returned to sender as "unclaimed." An Animal Control Officer personally served the Findings & Order
on Robert Bischoff on November 7, 2003; and
WHEREAS, on November 7, 2003, Buddy was loose and roaming the City when he was picked
up by Animal Control. On November 10, 2003, Buddy was again running loose in violation of the
fmdings and bit a twelve-year-old boy. He was again picked up by Animal Control and held at the shelter
pending another vicious dog hearing. The Animal Control report regarding this bite, received by the City
of Dublin on November 21, 2003, recommended that a vicious dog heating be conducted; and
WHEREAS, on November 19, 2003, a vicious dog hearing was scheduled for November 25, 2003,
to address concerns that the dog owner did not comply with certain restrictions placed on the dog at the
September hearing. Notice of the November 25, 2003, heating was mailed to the dog owner via first class
mail, and in addition, staff sent an additional notice by certified mail, remm receipt requested. The first
class mail copy has not been returned to the City and the certified mail copy of the findings was returned
to the City of Dublin on December 19, 2003, with the notation that delivery was attempted two times, but
returned to sender as "unclaimed;" and
WHEREAS, on the afternoon of November 24, 2003, staff received a telephone call from Michael
Bischoff, the dog owner's father, inquiring about the hearing date and time. He was advised that the
hearing was scheduled for the following day, November 25, 2003, at 9:30 AM; and
WHEREAS, on November 25, 2003, the vicious dog hearing was conducted in accordance with
Chapter 5.36 of the Dublin Municipal Code. Robert Bischoff, the dog owner, was in attendance at this
hearing. At no time during the hearing did Robert Bischoff discuss concerns regarding lack of notice for
this heating, nor did he ask for a continuation of the hearing in order to prepare; and
WHEREAS, at the vicious dog heating, the Hearing Director made the following findings:
· The evidence demonstrated, and the hearing officer found, that the dog owner was in
violation of the prior hearing findings as he did not contact Animal Control within 15 days
of mailing of the hearing findings to schedule an inspection of the property; and
· The evidence further demonstrated that Buddy was running loose on both November 7th
and November 10th, in violation of the previous hearing findings that required the owner to
ensure that Buddy did not escape from the property; and
· Additionally, the evidence demonstrated that on November 10th, Buddy bit a twelve-year-
old boy while running loose, an attack that meets the criteria for a finding of viciousness
pursuant to the Dublin Municipal Code; and
WHEREAS, based upon information presented at the hearing, including testimony from the dog
owner and the Animal Control Officer, and the Animal Control report that was received by the City after
this hearing was scheduled, it was ordered that the dog not be returned to his owner; and
WHEREAS, before the Hearing Director had even prepared and issued the written order, Robert
Bischoff filed an appeal in the Superior Court pursuant to provisions in the Food and Agriculture Code,
requesting that the dog be returned; and
WHEREAS, the City objected to the Court's jurisdiction because the findings had not been issued
or served, and because Robert Bischoff failed to exhaust his administrative remedies by appealing to the
City Council. The Court, in response to the City's objections, dismissed the appeal; and
WHEREAS, on December 1, 2003, at the court hearing on the appeal, the Findings & Order from
November 25, 2003 heating were personally served on Robert Bischoff. The findings were also mailed to
Mr. Bischoff; and
WHEREAS, pursuant to Dublin Municipal Code §5.36.080, Michael Bischoff, on behalf of the
Bischoff Family, appealed the Heating Director's determination on the following grounds:
1. Improper Service of Hearings
2. Cover-Up of Proof of Service by City and County Employees; and
WHEREAS, the appeal was timely filed with respect to the November 25, 2003 Director's
decision, but was untimely with respect to the September 17, 2003 Director's decision.
WHEREAS, at the appeal heating before the City Council, Robert Bischoff presented no evidence
and did not testify;
WHEREAS, the City Council heard testimony regarding the grounds of appeal from Amy
Cunningham and Michael Bischoff; and
WHEREAS, Amy Cunningham presented, as evidence, the Agenda Statement for January 6, 2004,
which included a detailed chronology of the events and photocopies of service of notice of both vicious
dog heatings.
WHEREAS, Ms. Cunningham also testified that on December 9, 2003, the Bischoff family was
mailed a letter, notifying them that their appeal would be heard by the City Council on January 6, 2004.
In addition, Ms. Cunningham testified that on January 2, 2004, the Staff Report was mailed to the
Bischoff family and additionally, an officer made two attempts, both unsuccessful, to personally deliver
the Staff Report; and
WHEREAS, Michael Bischoff submitted no evidence to support the grounds of the appeal.
According to Michael Bischoff's testimony, he was served with notice of the appeal hearing on January 5,
2004, at 9 PM. Mr. Bischoff offered no credible evidence, however, to support his allegation that the City
improperly or did not serve notice of the September 24, 2003 or November 25, 2003 vicious dog hearings;
and
WHEREAS, Michael Bischoff offered testimony that the California Code of Civil Procedure
requires that an additional five (5) days notice is required when notice is served by mail.
WHEREAS, hearings conducted pursuant to chapter 5.36 of the Dublin Municipal Code shall be
noticed according to the provisions set forth in that chapter. Dublin Municipal Code, §5.36.320 requires
that the Director shall either deliver or mail the hearing notice to the owner or person controlling the dog
or other interested persons, at least five (5) calendar days prior to the date set for the hearing.
WHEREAS, in addition to hearing testimony from Michael Bischoff and Amy Cunningham, the
City Council also heard testimony, regarding Buddy's demeanor, from the following: Animal Control
Officer George F. Potstada III, Darrell Banks, Catherine Burk, Justin Nofchisey, Erin Aguilar, and
Heather Horton.
FINDINGS
WHEREAS, after considering the applicable laws and deliberating on all the evidence received,
the City Council, on the basis of the foregoing Recitals, finds as follows:
A. The City properly noticed both of the vicious dog hearings. The notice of the £u'st hearing
was mailed September 17, 2003, seven (7) days prior to the hearing date of September 24, 2003. Robert
Bischoff, the dog owner, had actual notice of the September hearing, as he signed for the certified notice
on September 19, 2003.
B. The notice of the second hearing was mailed November 19, 2003, six (6) days prior to the
hearing date of November 25, 2003. The Bischoffs clearly had actual notice of the November 25, 2003,
heating since Michael Bischoff telephoned the Hearing Director the day prior to the heating and inquired
of the date and time of the hearing. Additionally, Robert Bischoff attended this meeting.
C. Neither Robert nor Michael Bischoff presented any credible evidence that notice of either
hearing was not received.
D. Neither Robert nor Michael Bischoffhas appealed the Hearing Director's determination
that Buddy is a vicious dog, nor has either presented evidence to counter the findings that Buddy bit two
different people on two different occasions and is a vicious dog.
E. Within less than three months, the dog, Buddy, has escaped from the owner's home or
fenced-in yard on three documented occasions. On two of those occasions, the dog has attacked and
bitten people resulting in injuries. The dog's escapes from the property and biting incidents demonstrate
that the dog owner has not taken preventative steps to protect the community, and that leaving Buddy in
the care and control of the dog owner poses a serious threat to the community's safety.
NOW THEREFORE, the City Council of the City of Dublin hereby determines that the
November 25, 2003 appeal of Michael Bischoff, on behalf of the Bischoff Family, is denied and the
decision of the City Manager, acting as the Director regarding "Buddy" is hereby affirmed.
PASSED, APPROVED AND ADOPTED THIS 20th day of January, 2004 by the following vote:
AYES: Councilmembers McCormick, Oravetz and Mayor Pro Tempore Zika
NOES: None
ABSENT: Mayor Lockhart
ABSTAIN: Comncilmember Sbranti
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K2/G/1-20-04/reso-bi: r6ff. doc (Item 4.7)
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