Loading...
HomeMy WebLinkAboutItem 6.1 Dog Hear Appeal Moresi (2) J t' .~. CITY CLERK File # []BJ[Q][Q]-~fO] ( AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 19, 1999 SUBJECT: Vicious Dog Hearing Appeal Report Prepared By: Nicole A. Tutt, Attorney at Law, Meyers, Nave, Riback,Silver & Wilson and Amy Cunningham, Administrative Assistant, Police Services ATTACHMENTS: 1. Moresi Vicious Dog Hearing Findings 2. Letter of appeal from Hallgrimson McNichols, LLP RECOMMENDATION: ~ /UJ ! \. 1. Open hearing 2. Receive staff report and public comment 3. Close hearing 4. Deliberate 5. Determination on appeal FINANCIAL STATEMENT: None r \, BACKGROUND: On July 16, 1999, staff received a report from Alameda County Animal Control regarding a dog bite incident occurring June 19, 1999. The report recommended that a vicious dog hearing be conducted. The hearing was scheduled for July 28, 1999. On July 27, 1999, the dog owner, Esio Moresi. contacted the designated Hearing Director to request a continuation in order to obtain legal representation. Mr. Moresi was given until August 3, 1999, to have his legal representative contact the Hearing Director. Mr. Phillip Vermont of Hallgrimson McNichols, LLP, contacted Hearing Director on August 2, 1999, and the parties agreed the hearing would be held August 19, 1999. The vicious dog hearing was held August 19, 1999. Those present included: Ezio and Gale Moresi, the dog owners, :Mr. Phillip Vermont, the Moresi's attorney, Deputy Hesselein, from Dublin Police Services, Deena Hambleton, Vicious Dog Hearing Secretary, and Amy Cunningham, Hearing Director. The - hearing was conducted in accordance with City of Dublin Municipal Code Section 5.36, Animal Control. The animal control report was read into the hearing record and all parties were provided "With an opportunity to present relevant information. After all information was presented, the .Moresi' s dog, Timber, was declared vicious per Dublin Municipal Code Section 5.36.290, and the following restrictions were imposed on the owner of the dog: 1) the owner shalltakeadequate precautions to ensUre that the dog is only out of the fencedbach.]'ard when on a leash and under the control of an adult, and 2) the owner shall contact Alameda County Animal Control for inspection of the fencing within 15 days of the final determination of this hearing, and make any modifications required by Animal Control to adequately contain the dog. ~ -----------------------------------------------------------------------------------------------~------------- COPIES TO: Phillip Vermont, Hallgrimson, McNich ols, L.L.P. lTEMNO..~ Pursuant to Dublin Municipal Code Section 5.36.080, the dog owner has requested an grounds stated in the attached letter by Phillip Vermont dated August 30, 1999. RECOMMEI\'l)ATION: Staff recommends that the City Council conduct the Public Hearing, obtain any necessary information from concerned parties, deliberate and determine whether or not the findings ~.... and determination of the August 19, 1999 Hearing should be upheld. If the City Council determines that, . said findings and determination should not be upheld, then the City Council will need to make findings regarding the merits of the appeal and determine whether other or any restrictions should be imposed. ....,. , .....,I -;1..- }-, f I 1 /' I CITY OF DUBLIN _.~, PO, Box 2340, Dublin, California 94568 . City Offices, 100 Civic Plaza, Dublin, California 94568 FINDINGS VICIOUS DOG HEARING Dog: Timber Owner: Esio Moresi Victim: Sean McCully Date of Incident: 6/19/99 Date of Hearing: 8/19/99 WHEREAS, a hearing in accordance with Dublin Municipal Code (DMC) Section 5.36 was conducted on August 19, 1999, and WHEREAS, the Owner of the dog was present at the hearing; and WHEREAS, on June 19, 1999, Mr. McCully was bitten on the leg by a loose dog while walking on the service road leading to the reservoir above Topaz Circle, and /......-..., WHEREAS, it was subsequently determined that the above mentioned dog is owned by Esio Moresi, and WHEREAS, in accordance with Section 5.36.290(A)(1,2,4), any dog which demonstrates any of the following behavior, is presumed vicious: "An attack which requires a defensive action by any person to prevent bodily injury when such person is conducting himself or herself peacefully and lawfully;" "An attack which results in an injury to a person when such person is conducting himself or herself peacefully and lawfully;" "Any behavior which constitutes a threat of bodily harm to a person when such person is conducting himself or herself peaceful~y and lawfully;" WHEREAS, based upon the information presented at the hearing, the dog was declared vicious according to the Municipal Code; . ~- NOW, THEREFORE, in accordance with Section 5.36.340 of the Dublin Municipal Code, the following restrictions are imposed to address this nuisance: 1. The owner shall take adequate precautions to ensure that the dog is only out of the fenced backyard when on a leash and under the direct control of an adult. .- ATTACHMENT 1 Administration (925) 833-6650 . City Council (925) 833-6605 . Finance (925) 833-6640 . Building Inspection (925) 833-6620 Code Enforcement (925) 833-6620 . Engineering (925) 833-6630 . Parks & Community Services (925) 833-6645 .Economic Development -(925) 833-6650 . Police (925) 833-6670 . Public Works (925) 833-6630 Community Development (925) 833-6610 . Fire Prevention Bureau (925) 833-6606 / ! '"""'" 2. The owner shall contact Alameda County Animal Control, at telephone number 803- 7040 for inspection of the fencing within 15 days of the fmal determination of this hearing, and make any modifications required by Animal Control to adequately contain the dog. 3. Any violation of these conditions shall be cause to conduct another hearing to determine whether further restrictions are required. 4. In accordance with Section 5.36.340, this decision shall be final. Signed: Cir"mIlJ~;y} Amy Cunningham, DirectorlDesignee Date /lss c:animal/doghear/find ....." NOTICE OF RIGHT TO APPK4.L You have the right to appeal this decision to the City Council. Any appeal must be filed "\.Vithin five (5) calendar days from the date of the issuance of this decision. A Notice of Appeal must be filed with the City Clerk and shall state specific grounds as to why the decision should not be approved. Failure to file an appeal within the specified time limit shall constitute a waiver of the right to appeal and the attached decision shall be final. '...."I . . . - - RECEIVED AUG 3 0 1999 Pleasanton. California 94588-3348 CITY OF DUBLIN Stephen L.R. McNichols Jr. Steven L Hallgrimson Eric Wong Howard S. Miller Kevin W. Wheelwright Ronald I. Rainey Nickolas P. Toollotos II Michael E. Kyle Phillip G. Vermont Nancy L Brandt Charles W. Volpe Mark Makiewicz :. ., ------. PLEASANTON OFFICE 5000 Hopyard Rood. Suite 400 HALLGRIMSON . . .McNICHOLS . .t.LP '---'." ~..".' ".---..' .".' ..~a%:~.. .:.:: Telephone 925-460-3700 Fox 925-460-0969 www.hallgrimson.com August 30, 1999 Leslie A. Baxter Erin L. Kvistad Tneresa N. Muley Donald A. Odell City Council City of Dublin City Offices, 100 Civic Plaza Dublin, CA 94568 Re: Esio Moresi (Vicious Dog Hearing)/Findings Received 8-27-99 Our File No. M0795.001 To \\Thom it May Concern: ~ Please be advised that this office represents Esio and Gail Moresi in regards to the above-referenced matter. By this letter, Mr. and Mrs. Moresi hereby appeal the findings of Amy Cunningham that the Moresi's dog is vicious. This appeal is made on several grounds: 1. The dog is to old to be vicious; 2. The dog was locked in a gated yard at home, at all times pertinent hereto; 3. As a result, the animal control officer/sheriff has identified the incorrect animal as the culprit; 4. The City has failed to meet its burden of proof and has violated the Moresi's due process rights; 5. The testimony of the officer at the hearing contradicts, and is inconsistent with the animal control officer's report; 6. The reporting party declines to be involved in this proceeding (therefore depriving the Moresi's ofthe right to cross-examine witnesses against them). Please notify the undersigned of the appeal hearing date. ,- ~.Q\~ ATTACHMENT 2 P:\DA T A\M\l"IORESI\LETIERSIAPPEALL TR:August 30. 1999 SAN JOSE OFFICE. 40 South Market Street. Suite 700. Son Jose. CA 95113-2303. Tel 408-275-6600 . Fax 408-275-0315 -~ FROM MEiERS, NAVE, RIBACK, SILVER & WILSON , (MON) 10,18' 99 15:20/ST. 15:19/NO. 4860102277 P 2 SUMMARY OF EVENTS iN VICIOUS DOG MATTER June 19.1999 Sean McCully was bitten by a loose dog while he was out walking on the selVlce road leading to the reservoir above Topaz Circle. Sheriff Deputies Hesselein and Johnson had witnessed two dogs at large in the same vicinity, and attempted to get the dogs into their patrol car with negative results. The Deputies then called Animal . Control to assist in apprehending the dogs. The three officers patrolled the area with negative results. June 20. 1999 Officer Scheibner undertook a search of the records at the East County Animal Shelter based on the description of the dogs given by the Sheriff Deputies and 'Mr. McCully. Officer Scheibner found a matching description for two dogs owned by Esio Moresi. residing at 7691 Topaz Circle. Deputies Hesselein and Johnson went to Mr. Moresi's house and positively identified the dogs as the dogs they had seen running at large the previous night. June 21. 1999 Officer Scheibner contacted Mr. Moresi to discuss the incident. Mr. Moresi stated that he was not at home When the incident occurred. Officer Scheibner noted that he had issued a warning to the Moresi's on a prior occasion after finding their dogs at large. Officer Scheibner requested that Mr. McCully be permitted to come to Mr. Moresi's residence to identify the dogs. Mr. Moresi agreed. and Mr. McCully proceeded to Mr. Moresi's residence, where he positively identified the dogs as the two dogs he had seen the night before, and identified Mr. Moresi's dog, Timber, as the dog which bit him. Officer Scheibner then quarantined the dog at home, iSsued a citation for the following: two dogs at large) biting dog and no dog license, and then recommended a vicious dog hearing. August 19. 1999 A vicious dog hearing was held by Designated Hearing Director, Amy Cunningham, following the procedures for abatement of a vicious dog pursuant to Article IV of Title 5 of the Dublin Municipal Code. FROM MEYERS, NAVE, RIBACK, SILVER & WILSON , (MON) 10.18' 99 15: 21/ST. 15:19/NO. 4860102277 P 3 At the hearing, the Designated Hearing Direotor made the following findings; 1. Mr. McCully was bitten on the leg by a loose dog while walking on the service road leading to the reservoir above Topaz Circle. 2. Mr. Moresi is the owner of the biting dog. 3. The dog is vicious pursuant to thedefinit10n contained in Section 5.36.290(A){1,2A) of the Dublin Municipal Code. The Designated Hearing Director then issued the following restrictions: 1. Mr. Morest shall take adequate precautions to ensure that the dog i3 only out of the fenced backyard when on a leash and under the direct control of an adult. (Compliance with leash law.) -~ 2. Mr. Morosi shall contact Alameda County Animal Control for inspection of the fencing within 15 days of the final determination of the hearing I and make modifications required by Animal Control to adeQuately contain the dog. August 30. t999 Designated Hearing Director received a letter addressed to the City Council, appealing the findings. made at the August 19 hearing. October 19. 1999 Appeal to City Council pursuant to Sections 5.36.080 and 1.04.050 of the Dublin Municipal CR.7 (3/90) I)UB,LIN POL.LeE SEHVICES CASE NO. TYPE RPT: [] CRIMINAL I ] PHONE [ ] INSURANCE DATE/TIME REPORTED [ DENT I] DOM VIO I ~FO NLY [ ] COMPLAINT INCIDENT FORM C( q 0 - 'Z-'-u. 0 REFER CASE M(s) PAGE 'OF I c q<;;q -z..e>'S C CODE SECTlONIS) I- OCCURRED BETWEEN TIME DAY(S) OCCURRED :z LU > o <..;;....ct Gtq \C\~c. SA-~ LU AND TIME ~'-CXZ.'^-C- lOCATION OF OCCURRENCE CITY t-(..0{lt- COLOR CRIME/INCIDENT W~\2.-\Z;u.)~e..j:)e.G012 6-roi;;..z<:.G~.\:+ iQ'J. Dvcuv'\. VICTIM VEH LICENSE NO. STATE YEAR MAKE MODEL STYLE STATE SSN. OTHER >> BUSINESS NAME. .ADDRESS. CITY. ZIP OCCUPATION BUS. PHONE o.'\. C~\C1..qq, .-0.. ~ -z...o'.=,o \-'c.002..S ':::t:.. i....-:-.A.~ D i""'""',:->,,~_,,,",~ \:<:) -1 ,q'2.. 'E,"\'i=I -~ '" - ',' >"<" 10+ Q" e_GC:~~ \. j....<2., A -0' <G,~\ ,"'" " .L )L\.\Z"\' L..;; ,,,,,-,'-1< "\\-1';: Q.:c.;;.-~~"V'\. " ~ .')~ l..~t~~.r, - <5 Cl , \.::> .-;' ."- ,,\..\...z:- A X-.IV _~o v""~ I~^~""') ~ ..AA \2. ~ \.-\ \:Z " L..JA"';" L,...;.i,~,-\6...",-c-~ c:J ^ -r"f-\ ~ "-", 'L., ..,-~. ..-ct..c....... ~ .~.f...,--r.- ~ -rc> -:-l.(~ >v:i~-n:::. "- ~~\r~ (\?'~::>uJ ~,u.(Lc<Z.Lc....!.-c...~ Q\'j~O _Oo. ,-.c"J'\..\ ~ \...;.e.' l...0 ~,-'6 ;'\. . .., ". ~'" G-'."l . ().-;:>X., 2s.2: 0.")0-'\'(2;1.. 'be..,. -'w, '-...,14>\..I-r~c..00 I 1 ..J i I j \u'(.:::,l.-y--\ 1?:'2'A-e GA~. . '-"""" ..."'~'- A "Z....-,'C-.z. --:C~ ,_,.:~~)0"\"::> ~ ,SA'O Uc \-~,c....Q ALQ..~..,'..r)~~ ~''''''-\I''<-~C:.i,) .,:>,,-,.:.., 7. \'~c...,,,,,...'Iv...... \.,..J\-\C -T"eL"J '>-\ i.N'\. ~~ 4~,....:JL?""::, G-'G\ n.;;;;;:. e~<:....;;zi.',--"",,\;:> ____.....;;0 ~"""'" A-00 ~,0C<-.JL-'-J ~ --I ~r::::~:~=~c::::~':~:::-n:;~:~7~:::;::';"7"= "", j PROPERTY CODE: S = Stolen R = Recovered l ~ Lost E = Evidence 0 = Under Observation I A = 8102 W&I (5150) D = Domestic Violence F = Found W = Search Warrant (Use all applicable codes. For example. if property is both stolen & recovered. code is SIR) OC:(P L..J ~S A .~ OV\.D v:\-~ ,"\~ \-\.....:~"'-'( 1'-"" "~-:J ~-\G 6~GSZ, v-.JII.\S l.A.z..tce 00(,0::';' ;.. G\..Jo: . ?, -re.Uu........ ~ ." '~ ~"'C:>" -n..t0 ~'0<S G'Z < ! ~. \-\-\---'-' 0'''9 ......-\ =".... ~c.:,,:./\ .'" ~",,~~...\ J:'\T .l-\.~-=, Lli?~~- 1-1 :-':---(""U;Ik-" _ ~::::(\ \'Z:~~'- \"'" . -rj. ,~ b......~. '::'V'D W.u,T-.::i. l-k;;--"",c::..::-;" '6n-- \-1,.--=-:,. SUBMITTED Y = Yes N = No NO. ARTICLE QTY SERIAL NO. BRAND/MAKE MODEL NAMEINO. MISC DESCRIPTION CODE VALU~NT-, \ . I ~~ i ~ ~____ r i N FIREARMS $ JEWELRY/PRECIOUS METAL $ HOUSEHOLD GOOOS $ CLOTHING LOCAL-STOLEN MOTOR VEH OfFICE EOUIPMENT TV/RAOIO!CAMcHAS $ $ $ $ ~ CONSUMABLE GOOOS LIVESTOCK MISCELLANEOUS TOTAL $ $ $ $ REPORTING OFFICER CORPUS NUMBE t... \A\1S.Sc2l.~ ~ U iAZ-<-f!S , .OZe56 \. PROPERTY VALUES CASHiNOTES $ I CERTIFY THIS IS A TRUE AND ACCURATE DESCRIPTION OF MY LOSS ClflZEN SIGNATURE Date of Report Dog Bite 6-20-99 1300 hOll rs RECEIVED ,MEDA COUNTY SHERIFF'S DEF. TMENT FIELD SERVICES JUL 1 6 1999 Page 1 of 2 CITY OF DUBLIN Detail Number 328 , . Type of Report Incident Date 6-19-99 1900 hours Reporting Officer Thomas Scheibner Owner Mo rF~si Last Name Esio First Name A MI 5-31-47 DOB 52 Age 7691 Topaz Circle Address Dublin City 94568 Zip Code Home Phone (925) 828-7472 Work Phone Victim Y1fr-rlr - Last Name .ltJ . First Name ............ ...>>;,;...... ...,.. MI - DaB - Age ""W Zip Code 1If'_. City Home Phone Work Phone Guardian/ Witness Last Name First Name MI DOB Age Address City Zip Code Home Phone Work Phone Witness Last Name First Name MI DOB Age Address City Zip Code Home Phone Work Phone Animal Dog Breed Husky X Color Black & White Sex Female (s) Age Arllllt Wei g h t 65 1 bs Name Timber Rabies Tag No. 157417 License No.. nonp City nlJhlin Animal Quarantined At Home Master Sheet No. . Vicious Dog Hearing Recommendation Yes XX No BITEFORM.51 (05/97) Bite/Attack Report . Page 2 of 2 Approximately 1930 hours, 6-19-99, I received detail #328 from dispatch to contact Sheriff Deputies at the intersection of Stagecoach Road and Amador Valley Boulevard, regarding a report of a vicious dog at large. Approximately 2000 hours, I made contact with Deputies Johnson and Hesselein. They reported that two dogs were running around the area acting vicious. One had even bitten a man walking his dog. The deputies and I patrolled the area with negative results. I carried the detail over for the next day. I would contact the victim then. \9\~~proximatelY 1300 hours, I ma~e contact with"'l lW_,at his residence~ T'lJn L_~tated the following: Approximately 1900 hours, I was walking my dog on the service road leading to the reservoir above Topaz Circle. I was walking down the hill when I saw two dogs coming up. They were being frolicky and playful with each other. I was not too worried until the dogs saw us and started to growl at us.-I stood still. The black and white one came close then went around behind...1!1e. I thought it was only sniffing me when it bit me on my right calf. I yelled at it and they both ran on up the hill. I went home and treated the wound myself. ~ received several scratches on his right calf. Approximately 1530 hours, I checked the licensing records at the East County Shelter. I located an address, 7691 Topaz Circle, that had two dogs meeting the description of the two loose dogs. Deputies Johnson and Hesselein went to this address. They stated that the dogs there were the ones they had seen the night before. Approximately 1100 hours, 6-21-99. I contacted Moresi at his residence. Moresi stated the following: I was not at home when the incident occurred. I called home at that time and tal ked to my son. He told me the dogs were in and the gates were locked. I can not find any way that my dogs could have gotten out. I requested from Moresi that I bring' n- ___over to his house so he could make a positive identification of the dogs. I told him that there is a possibility his dogs may not be the ones that bi t.J!1II L ~. Moresi agreed. Approximately 1815 hours.,JIf~'"UIL and I arrived at the Moresi residence. d'* -lh was able to positively identify the two dogs. I verified Moresi's dogs had a current rabies vaccination, but did not have a current dog license on the biter. The dog was quarantined at home. Moresi was issued a citation for the following Dublin City Ordinances: 5.36.220 Dog At Large X2 5.36.230 Biting Dog 5.36.100 No Dog License A records check revealed no prior attacks. I had given them a warning about loose dogs a few "months earlier. I,,~eZ?mmend a .ViciOUS dog hearing. (see attached narrative) /CL<:~ L kM~ Thomas Scheibner Sheriff's Technician Animal Control Officer 00 Z ~ qOf I KEt!OMrlE;JtJ ~ t /0 tlEClr..c: iAlL7 ,,,::c/Y-j'/(/trJ1/5, pr-..JPG!fv/'{j:;;ff- 1-(3--q~ ~ f:() ~ -- ~"~~_T~~~~~ CT: ABIES CONTROL INVESTIGATION REl-,,_{T ALAMEDA COUNTY HEALTH CARE SERVICES AGENCY ENVIRONMENTAL HEALTH VECTOR CONTROL SERVICES DISTRICT Report # 32? - vco: MS# Q/R: PERSON BITTEN Forward yellow copy & quarantine notice within 48 hours to Vector Control District (LAST) LOCATION OF INCIDENT YES NJ7 4- r#l<-/rtL7 STR~ Tv t//lZ- C i (( IF NO, DID YOU ADVISE VICTIM TO SEEK TREATMENT? NAME OF PH.YSICIAN OR HOSPITAL TELEPHONE NUMBER DESCRIPTION AND LOCATION OF ANIMAL Fe~1e ;- TYPE OF BITING DOMESTIC: CAT STRAY OTHER WILD: SKUNK BAT OTHER o u at. t1J 1 If;- 6 ANIMAL NOW UNDER QUARANTINE? LOCATION ANIMAL SHELTER 0 VETERINARY HOSPITAL 0 NO COMPLETE THE FOllOWING . AGE LESS THAN FOUR MONTHS X FOUR MONTHS AND OLDER NOT KNOWN CURRENTLY L1CENS~ YES ~ NOT KNOWN LICENSE No. KENNEL # OWNER'S PREMISES ~ VACCINA~ORE BITE: ~ NO DATE OF VACCINATION NOT KNOWN ADDRESS {'- 1- 7 ~AT? 9' TELEPHONE NO. DATE RECEIVED DATE CLOSED CASE CLOSED BY HEAD SENT TO LABORATORY: RELEASED FROM QUARANTINE BY DATE NO DATE REPORT RECEIVED WITHIN 48 HOURS OF ATTACK: YES NO STRAY RECOVERED: YES NO NOT STRAY VICTIM GIVEN ANTI-RABIES TREATMENT: YES NO NOT KNOWN, ANIMAL CHECK FOR PROPER ISOLATION? YES DATE YES DATE NO ANIMAL; DIED? YES DATE NO RESULTS VICTIM NOTIFIED:YES DATE NO INCONCLUSIVE o o o COMPLETE THE FOLLOWING VACCINATED AFTER BITE: YES NO NOT KNOW IF YES, WHEN: LICENSED AFTER BITE: YES NO NOT KNOWN IF YES, WHEN: KILLED? YES DATE NO POSITIVE DISPOSITION UNKNOWN? 0 NEGATIVE WRITTEN VERBAL FORWARD YELLOW COpy & QUARANTINE NOTICE TO: COMMENTS: Alameda County Vector Control Services District 1131 Harbor Bay Parkway, Ste. 166 Alameda, CA 94502-6Sn 400-WD-1 Agency 6 Issued 1Iieensed and not vaccinated fO:_E~fics, Z '? BY ORDER OF THE COUNTY HEALTH OFFIC~R Date of Bite r; -/? -, r c;. , :2~L-crn~ L JY: I~('. ~'.~ '<{. . ..... Date of Release (Name) (Name) 6-30-'!L WHITE: ISSUED TO ANIMAL OWNER YELLOW: RETAINED BY ISSUING AGENCY PINK: SENT AT ONCE TO DISTRICT OFFICE, ENVIRONMENTAL HEALTH SERVICES required prior Oefo to anlln:iI's (-/1-: ] release 2. cf~. f ammal is Irantine. In compliance with Title 17, Caq~orni~Administrative CodeiSection. 260~ (b), (1), (2), and (3) you are nereby notified th~t it .is necessary that your 1/0 (,J- be ~solated m strtct confinement und~r proper care and observatIOn In a place and manner approved by the Health Officer for a period~.pf 14 days (dogs and cats 10 days) after the day of infliction of the bite. Approved places for confinement are.local animal contr6(s.helters, Oakland SPCA, or veterinary hospitals. Confinement on owncr's premises, at an approved boarding kennel or ata 'veterinarian's hospital may be permitted under conditions outlined for Isoladon on owner's premises on reverse sid6.-1'Ire animal may not be moved without permission.The Public Health Service assumes no responsibility for expenses incurre9)n.~ohiting an anfihal. censing a!1~;f~'-accination sna be from Description of Anima 1'0 'lIC) lie( j It- ALAMEDA COUNTY HEALTH CARE SERVICES AGENCY Public Health Service NOTICE TO QUARANTINE ANIMAL 16 (//( x JJ1"r7:Y.:.\ () LI/1L//L/ City i ., .X,- I- '. I ..., / ,,!,. ." \ ,. l (~ -.t, .tc.; '.~ : ';~ , 1 I I ] i I I :~: t: .z .::., .!~. I ; 11 1 I 1 COUNT-V OF ALAMEDA SHERIF DEPARTMENT No.~H 498123 rt1Jb ZIP CODE O Booking Required o ~~~:~S-;1?rt%~!t~~~:;~~~q*~~~~.~~~\$~i~~~~::~;{~}*~if~~~~1 CITY OF OCCUR. FORM APPROVED BY JUDICIAL COUNCIL OF CALIF. REV. 7.1-85 V.C. <0508(B), ~13(BJ P.C. 853.9 (Citation Report Form) -: --. ------ -- -. - -.... S NO >( ;z- .( ( f>qff&-br ,. de) 9' I /' V"./ v" 2.. .;. !>~'J'~~20X<.. ;G; J/;,.2;0 r: 7". t<:JcJ 4/89 Type of Report RECEIVED _AMEDA COUNTY SHERIFF'S DE. .RTMENT FIELD SERVICES JUL 9 11999 Page 1 of 2 CJ~ OF DUBLIN Detail Number Assaultive Behavior Date of Report 6-22-99 1800 hours Incident Date 6-21-99 1815 hours Reporting Officer Thomas Scheibner Owner Moresi Last Name Ezio First Name A MI 5-31-47 DaB 52 Age 7691 Topaz Ci rc1e Address Dublin City 94568 Zi p Code Home Phone (925) 828-7472 Work Phone Victim ~Iill wlr I~ .,. Last Name ~lm i. Fi rst Name ~.4IL- ..... MI DaB ... .Age ~.l_tfII:, Address ~ City ~ Zip Code Home Phone_ Work Phone Witness Dublin Police Officer Johnson BadQe #1164 Last Name First Name MI DaB Age On Rer.orrl At nps Address City Zip Code Home Phone Work Phone Witness Dubin Police Officer Hesselein #1108 Last Name First Name MI DaB Age On Rer.orrl At nps Address City Zip Code Home Phone Work Phone Animal Breed Color Sex Age Weight Name Rabies Tag No. License No. City Animal Quarantined At Master Sheet No. Vicious Dog Hearing Recommendation Yes No BITEFORM.51 (05/97) Bitei Attack Report Approximately 1815 hours, 6-21-99, ~-l and 1 arrived at Moresi's residence to view Moresi's dogs for an identification, regarding a dog bite. 1 had previously made arrangements with Moresi for this purpose. During my phone conversation with Moresi, he asked for the name of the person that was going to do the identification. I gave him. JN11111.'s name as a gesture of good will. . Upon our arrival at Moresi's residence, Moresi demanded to seey"l JjllT identification. He stated that his insurance agent recommended it. I informed Moresi that at this point we were only doing an identification of his dogs. He did not need to see JIIl1 ru....'s identification. Moresi started to yell to~, who was parked across the street, to show his 10. I placed myself in front of Moresi, telling him no. Moresi then went around me, going up ton.,nt.:s car and leaning on the passenger window demanding his 10. I could see_ was not comfortable with the situation. I forced myself between Moresi ancf~s car, backing Moresi up a few steps. I told him we were there for the dog identification only. Moresi started yelling that I was denying him his first amendment rights. He refused to bring his dogs out and told me not to come onto his property. He walked back to his house. I followed him trying to reason with him. He told me again not to come onto his property. I then called for assistance from the Dublin Police. While awaiting the arrival of the police, I waited across the street from Mores;'s house, with .-m-- InJu Moresi came from his house demanding his right to see~s 10. At this point Officers Johnson and Hesselein arrived and the situation. was explained to them. The officers told Moresi that he did not need to see~ 10 since I was doing an investigation of a dog bite. 1 was responsible for_s 10. They reiterated to Moresi they had already identified his dogs as the ones that were out that night. Page 2 of 2 Moresi calmed down at that point and the identification progressed smoothly from that point on ._ositively identified the dogs as the ones that were out and the black and white one was the one that bit him. When Moresi went to get his dogs, the officers asked .-I'II.ill ~what had happened. 'f .JI"IJr~stated the following: Moresi came to my car demanding to see my 10. Officer Scheibner got between Moresi and myself. 1 am very glad that he did. Officer Johnson stated they saw Moresi ranting and waving his hands when they arrived. ~iS ccount is true to the best of my recollection. C2 y;~ (J~-'\W,-- homas Scheibner . Sheriff's Technician Animal Control Officer OC 2-991 f(3zl!(yvJlrJ!ff.AlO Nu fUel1-(iZ;2 Ikcf70AJ '~/46M, Su?u'!'SutZ 1 FROM MEYERS, NAVE, RIBACK, SILVER & WILSON , (MONl10.18'99 8:49/ST. 8:48/NO.4860102231 P ?v" Oetober15~ 1999 Amy CUnningham City of Dublin, City Offices P.O. Box 2340 Dublin CA. 94568 DcarAJny~ I .am writing this letter in reg61'ds to Mr. Mpresi .And }Ug dog. On June 19, 1999. I was walking down the service road that leads to the water storage tank behind. Topaz Circle when I was approached by two dogs.. I picked my 2 year old QhiJd up in .my anus and ~topped walking ~ thiriking they would sniff and then leave. Instead, one ofthc dogs bit me on the leg. Both dogs then nm otfup the hill. On June 21, 1999, I fOnowed the animal controloflicer to the borne of Mr. E!i1io Maresi at 7691 Topaz Circle. Mr. MOl'Csi brought two dugs to the front ofbis home for me to see. ~ recogniz<<! both ofthero as the dogs who had approached me on June 19, 1999. I was told the dog I identiiied as the one who bit me W$ named I"Timber". I was pleased to learn that Timber wa:s wen cared for, and I was not likely to get infected by the bite. Sincerelyr ~ro .~'...".-~>'.'...'..... . .. . : '- SUMMARY OF ARGUMENTS ON APPEAL The More&i~s have argued 6 grounds for this appeal. 1. Timber is too old to be vicious. The Moresi's have not presented any evidence to this support this statement, however, and it is possible that any dog, regardless of its age, could exhibit aggressive behavior under certain circumstances. 2. Timber was locked in a gated yard at home at the time Mr. McCully was bitten. In fact, however, Mr. Moresi stated at the hearing on August 19 that no one was at home between the hours of 3:00 - 8:00 p.m. on the day Mr. McCully was bitten. It is possible that the dogs escaped from the yard during this time. 3. The animal control officer/sheriff has identified the incorrect animal. Sheriff Deputies Hesselein and Johnson positively identified Mr. Moresi's dogs as the dogs they saw running at large on June 19, 1999. Animal Control Officer Scheibner had given the Moresi's prior warnings regarding loose dogs. Mr. McCully positively identified the Moresi's dogs as the dogs he saw at large, and Timber as the dog who bit him. 4. The City has failed to meet its burden of proof. The Designated Hearing Director based her findings on the definition of a vicious dog pursuant to Dublin Municipal Code Section 5.36.290(A)(1,2,4) of the Dublin Municipal Code, which definition reads as follows: (A) Any dog, except one assisting a peace officer engaged in law enforcement duties, which demonstrates any of the following behavior, is presumed vicious: (2) an attack which results in property damage or in injury to a person when such person is conducting himself or herself peaceably and lawfully. 5. The testimony of the officer at the hearing contradicts and is inconsistent with the animal control officer's report. The Moresi's have failed to adequately demonstrate these inconsistencies. 6. The reporting party declines to be involved in this proceeding thereby depriving the Moresi's of the right to cross-examine witnesses against them. As explained above, this Council does not have the power of subpoena, and therefore cannot compel Mr. McCully to attend and participate in this matter. Because of that fact, hearsay evidence must be admitted, as long as the Council deems that evidence to be trustworthy. In this matter, an official report by a law enforcement officer should be deemed trustworthy. At this point, it is up to the Council to make a determination as to whether the findings and determination of the Designated Hearing Director should be upheld, and whether the restrictions placed on Mr. Moresi by the Designated Hearing Director should remain in place. Once again, those restrictions are as follows: 1. Mr. Moresi shall take adequate precautions to ensure that the dog is only out of the fenced backyard when on a leash and under the direct control of an adult. (Compliance with the City's leash law.) and 2. Mr. Moresi shall contact Alameda County Animal Control for inspection of the fencing within15 days of the final determination of the hearing, and make modifications required by Animal Control to adequately contain the dog.