Loading...
HomeMy WebLinkAboutOrd 04-21 Amending Article IV (Abatement of Vicious Dogs) of Section 5.36 (Animal Control) of the Dublin Municipal Code Regarding Potentially Dangerous and Vicious DogsOrd. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 1 of 6 ORDINANCE NO. 04 - 21 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING ARTICLE IV (ABATEMENT OF VICIOUS DOGS) OF SECTION 5.36 (ANIMAL CONTROL) OF THE DUBLIN MUNICIPAL CODE REGARDING POTENTIALLY DANGEROUS AND VICIOUS DOGS WHEREAS, since incorporation, the City has contracted Animal Control Field Services with the Alameda County Sheriff’s Office, who is responsible for the basic functions of Animal Control, including the investigation of complaints and dog bites; and WHEREAS, the City is responsible the Vicious Dog Hearing process, as described in Article IV of Section 5.36 of the Dublin Municipal Code; and WHEREAS, the City desires to update Article IV of Section 5.36 of the Dublin Municipal Code to clarify the appeal process for Vicious Dog Hearings, add a designation lesser than “vicious dog,” and to improve the overall administration of the program NOW, THEREFORE, The City Council of the City of Dublin does ordain as follows: Section 1. Recitals. The above recitals are true and correct and made part of this Ordinance. Section 2. Approval of Amendments. Article IV of Section 5.36 of the Dublin Municipal Code is amended as follows (with additions in italics and deletions in strikethrough). Article IV. Abatement of Potentially Dangerous and Vicious Dogs 5.36.280 Purpose and intent. Within the city there are potentially dangerous and vicious dogs which constitute a public nuisance which should be abated. The provisions of this article set forth the procedures for finding a dog potentially dangerous or vicious and subjecting the dog to appropriate controls and enforcement action provide an administrative procedure by which dogs found to be a nuisance may be abated following a hearing at which oral and documentary evidence is considered. This article is intended to supplement rather than supplant any other remedy available either under state law or city ordinance. 5.36.285 Exceptions. A. This article does not apply to humane society shelters, animal control facilities, or veterinarians or to dogs while utilized by any police department or any law enforcement officer in the performance of police work. B. No dog may be declared potentially dangerous or vicious if any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass or other tort upon premises occupied by the owner or keeper DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838 Ord. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 2 of 6 of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime. C. No dog may be declared potentially dangerous or vicious if the dog was protecting or defending a person within the immediate vicinity of the dog from an unjustified attack or assault. D. No dog may be declared potentially dangerous or vicious if an injury or damage was sustained by a domestic animal which at the time the injury or damage was sustained when teasing, tormenting, abusing, or assaulting the dog. E. No dog may be declared potentially dangerous or vicious if the injury or damage to a domestic animal was sustained while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog. 5.36.290 Vicious dog defined Definitions. A. “Potentially dangerous dog” means any of the following: 1. Any dog which, when unprovoked, on two separate occasions within the prior 36- month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog. 2. Any dog which, when unprovoked, bites a person causing a less severe injury than that defined in subsection B of this section. 3. Any dog which, when unprovoked, has seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog. B. “Severe injury” means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery. C. “Vicious dog” means any of the following: 1. Any dog which, when unprovoked, inflicts severe injury on or kills a human being. 2. Any dog that has killed or caused the death of another domestic animal. 3. Any dog previously determined to be a potentially dangerous dog which, after its owner has been notified of this determination, continues to behave in the manner described in subsection A of this section. A. Any dog, except one assisting a peace officer engaged in law enforcement duties, which demonstrates any of the following behavior is presumed vicious: DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838 Ord. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 3 of 6 1. An attack which requires a defensive action by any person to prevent bodily injury or property damage when such person is conducting himself or herself peacefully and lawfully; 2. An attack which results in property damage or in an injury to a person when such person is conducting himself or herself peacefully and lawfully; 3. An attack on another animal, livestock, or poultry which occurs on property other than that of the owner of the attacking dog; 4. Any behavior which constitutes a threat of bodily harm to a person when such person is conducting himself or herself peacefully and lawfully. B. For the purposes of this section, a person is conducting himself or herself peacefully and lawfully upon the private property of an owner or possessor of the dog when he or she is on such property in the performance of any duty imposed on such person by state or local law, or by the laws or postal regulations of the United States, or when he or she is on such property upon invitation, either express or implied. 5.36.300 Investigation, Determination, and Notice—Certification of viciousness. A. Any dog quarantined pursuant to Section 5.36.230 of this chapter for biting a human being or animal and any incident reported to the Director City concerning a potentially dangerous or vicious dog may be investigated by the Director. If, based on the investigation, the Director concludes it is concluded there is probable cause to believe that the dog is potentially dangerous or vicious, the owner shall be notified he shall so certify in writing together with the reasons therefor within ten (10) business days following completion of the investigation to the person owning or controlling the dog. If, based on the investigation, it is concluded there is probable cause to believe that a dog has engaged in the first occasion of the potentially dangerous conduct described in 5.36.290 (A)(1), the City may issue a warning notice to the person owning or controlling the dog. A warning is not required in the determination as to whether a dog is potentially dangerous or vicious. B. Any dog determined to be potentially dangerous or vicious is hereby deemed a public nuisance and shall be abated by appropriate order which may include but not limited to, any of the following actions or a combination thereof: 1. Take no further action against the dog and its owner; 2. Require that the dog be permanently removed from the City; 3. Determine that the owner will lose all rights of ownership and control of the dog; 4. Restrict the owner’s future ownership of a dog; 5. Order that the dog be put on a leash not to exceed six feet long whenever accessible to public and/or be securely tied, fenced, confined, chained or muzzled; 6. Order the attendance and successful completion of behavior training classes; 7. Order the animal humanely euthanized; 8. Order any other appropriate action. C. Notice of the determination that an animal is a potentially dangerous or vicious animal shall include notice of the right of the owner to a hearing to appeal the determination and notice that the determination will be deemed final if a hearing is not requested within seven (7) business days of the date of the notice. Notice shall further specify whether the animal is determined to be a potentially dangerous animal or vicious animal and a public nuisance, and if so found, what measures are ordered to abate the public nuisance. Notice shall be given in writing by first class mail in substantially the following form: DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838 Ord. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 4 of 6 NOTICE REGARDING POTENTIALLY DANGEROUS OR VICIOUS DOG NOTICE IS HEREBY GIVEN that pursuant to the provisions of the City of Dublin Municipal Code, Chapter 5.36, Article IV, it has been determined that there is probable cause to believe that you have an interest in, or have control or custody or possession of, or are keeping that certain animal described below, and that said animal is a potentially dangerous or vicious dog. [Description of Animal; Facts Giving Rise to Notice; and Restrictions/Abatement Ordered] FURTHER NOTICE IS HEREBY GIVEN that you have the right, within seven (7) business days of the date of this notice, to request a hearing before a hearing officer as to whether the animal is a potentially dangerous or vicious dog and a public nuisance, and if found to be a potentially dangerous or vicious dog and a public nuisance, what measures are ordered to abate the public nuisance. The hearing officer will consider the written reports and other oral and documentary evidence in making a decision. You and other interested parties may present written and oral evidence at the hearing. If you do not request a hearing in writing, the determination that the dog is a potentially dangerous or vicious dog and therefore a public nuisance will stand, and the hearing officer may issue such orders as deemed necessary for abatement of the public nuisance. In the event your dog is found to be potentially dangerous or vicious it will be ordered to be abated as a public nuisance, subject to a fine, and any impoundment cost incurred shall be assessed against you. Abatement may include, but not be limited to, confinement, fencing, muzzling, leashing, or humane euthanasia. Dated: __________ Director 5.36.310 Confinement of dog. If there is probable cause to believe that a dog is vicious poses an immediate threat to public safety, and the Director so certifies, the City such officer shall ensure order that the dog is be securely confined either on the premises of the owner or person controlling the dog, or, if considered necessary to protect the public health, safety and welfare, at an appropriate animal shelter. The confinement shall continue pending the City’s determination and the period for requesting a hearing, and if a hearing is requested, pending the decision of the hearing officer following the hearing as provided for in Section 5.36.30020. 5.36.320 Notice of hearing. A hearing date shall be set no later than ten fifteen (150) business days from the date of receipt of a written request for a hearing certification. The Director hearing officer shall promptly set a time and place for the hearing and notice of the hearing shall be mailed or otherwise delivered to the owner or person controlling the dog or other interested persons., at least five (5) days prior to the date set for hearing, a notice in substantially the following form: NOTICE OF HEARING REGARDING VICIOUS DOG DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838 Ord. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 5 of 6 NOTICE IS HEREBY GIVEN that pursuant to the provisions of Ordinance No. _______ of the City of Dublin, the Director has certified there is probable cause to believe your dog (description) ___________ is vicious. FURTHER NOTICE IS HEREBY GIVEN that on _____ the ____ day of _______, 20___, at the hour of ___ o’clock in __________ Alameda County, California, the report of the Director will be considered by the Director together with such other oral and documentary evidence bearing upon the question of whether your dog is vicious. You may appear and may present evidence at the hearing. In the event your dog is found to be vicious it will be ordered to be controlled, confined, destroyed, restricted or otherwise abated as a public nuisance and any impoundment cost incurred shall be assessed against you. Dated: __________ Director 5.36.330 Hearing. At the hearing, which may be continued from time to time, both oral and documentary evidence may be taken from any interested person and considered in determining whether the dog is potentially dangerous or vicious. The hearing officer may uphold, modify or dismiss the City’s determination on the basis of evidence produced at the hearing. Subsequently, the hearing officer shall give written notice of his or her decision within fifteen (15) business days of the hearing to the owner. This decision shall be final. 5.36.340 Findings—Deemed public nuisance. If, based upon the hearing, the Director finds that the dog is vicious he shall so specify in writing together with the reasons therefor. Any dog found to be vicious is hereby deemed a public nuisance and shall be, pursuant to the order of the Director, humanely destroyed or removed from the area, or the nuisance otherwise abated by appropriate order including, but not limited to, confinement, fencing, muzzling or leashing. The decision of the Director shall be made within ten (10) days after the conclusion of the hearing and shall be final. A copy of the decision shall be sent by certified mail or otherwise delivered to the person owning or controlling the dog. (Ord. 27-87 § 33) 5.36.345 Appeal. Any person aggrieved by any decision or action resulting from the hearing may appeal such decision to the Alameda County Superior Court in the manner set forth in California Food and Agricultural Code Section 31622. The filing of an appeal shall stay the decision or action appealed from. 5.36.350 Cost of impoundment. If the Director finds the dog is potentially dangerous or vicious, the city-incurred costs of impoundment including any abatement shall be paid by the owner or the person controlling the dog and shall become a lien against the real property upon which the dog was kept and maintained until said assessment is paid. If the order includes the release of a dog found to be potentially dangerous or vicious to the owner or person controlling it, the dog shall not be released until such costs have been paid in full. If such costs have not been paid within thirty (30) days after the date of mailing or delivery of the order, the Director may dispose of the dog in any manner provided by law. 5.36.360 Payment of assessment. DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838 Ord. No. 04-21, Item 4.12, Adopted 06/01/2021 Page 6 of 6 The assessment shall be due and payable within twenty thirty (320) days after the date of mailings or delivery of the order. If the assessment is not paid on or before said date the total amount thereof shall be entered on the next fiscal year tax roll as a lien against the property upon which the dog was maintained and shall be subject to the same penalties as are provided for other delinquent taxes or assessments of the city, or an action may be brought in the name of the city to recover the assessment. 5.36.365 Fines. Any violation of this article involving a potentially dangerous dog shall be punished by a fine not to exceed five hundred dollars ($500). Any violation of this article involving a vicious dog shall be punished by a fine not to exceed one thousand dollars ($1,000). Section 3. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 4. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its final adoption. Section 5. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 6th day of June 2021, by the following vote: AYES: Councilmembers Hu, Josey, Kumagai, McCorriston and Mayor Hernandez NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: ____________________________ City Clerk DocuSign Envelope ID: 5494AF8D-1CCB-41DA-A06F-A427A008E838