Ordinance No. 1053

ARTICLE IX—POTENTIALLY DANGEROUS AND VICIOUS DOGS

Section 3.54     Authority and Purpose.

The keeping of a dog defined as potentially dangerous or vicious under this chapter shall be declared a public nuisance and shall be abated in accordance with the provision of this article.  The procedure for abatement set forth in this article shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other ordinances or abating public nuisances in any other manner provided by law or under this chapter.  Furthermore, this article shall not preempt or preclude a person from filing a private lawsuit seeking to abate as a private nuisance any dog that is dangerous.  Pursuant to California Food and Agricultural Code Section 31683, the city is granted the authority to adopt its own program for the control of potentially dangerous or vicious dogs.

Section 3.55     Purpose—Exemptions.

a.         This article does not apply to kennels, humane society shelters, the Animal Shelter, or veterinarians, or to dogs while utilized by the sheriff, any police department or any law enforcement officer in the performance of police work.

b.         A “potentially dangerous dog” or “vicious dog” does not mean any dog in a situation in which it is shown that the person or domestic animal suffering the injury or damage had, at the time of the injury or damage:

                        1.         Provoked, tormented, teased, abused or assaulted the dog into the behavior alleged;

                        2.         Committed a willful trespass or other tort upon the private property of the owner of the dog;

                        3.         Committed or attempted to commit a crime; or

                        4.         Threatened or committed an unjustified attack or assault against the owner or person in control of the dog.

Section 3.56     Investigation, Hearing, and Designation of Potentially Dangerous and Vicious Dogs.

a.                   An Animal Control Officer shall investigate any reported incident regarding a potentially dangerous or vicious dog.

b.                  During the investigation, the Animal Control Officer shall compose a report to be permanently retained pursuant to adopted procedures.  The report shall be signed under penalty of perjury by the Animal Control Officer.  The Animal Control Officer shall make his best efforts to take a photograph of the dog to include with the report.

c.                   The Animal Control Officer shall append to the report the statements of witnesses, victims and the dog owner.  These statements shall also be signed under penalty of perjury.

d.                  If after conducting an investigation, the Animal Control Officer determines that probable cause exists that the dog is a potentially dangerous or vicious dog, the Animal Control Officer may impose reasonable conditions to protect the public health, safety and welfare upon the animal owner pending an administrative hearing as provided for in Section 3.57.  These conditions shall be in the form of a provisional abatement order and may include any reasonable conditions, including those contained in Section 3.58.  Notice of the provisional abatement order shall be provided by the Animal Control Officer pursuant to Section 3.6.  Within thirty (30) days of receipt of the provisional abatement order, an administrative hearing shall be held to determine whether the dog is potentially dangerous or vicious.  The administrative hearing shall follow the procedures of Section 3.57.  If the dog owner fails to appear at the administrative hearing or waives their right to the administrative hearing then the provisional abatement shall remain in effect. 

e.                   If after conducting an investigation, the Animal Control Officer determines that probable cause exists that the dog is potentially dangerous or vicious, the Animal Control Officer shall request and be granted an administrative hearing to determine whether an animal is potentially dangerous or vicious.

f.                    The Animal Control Officer shall also immediately impound any dog found to be presenting an imminent threat to the public health, safety and welfare.

Section 3.57     Hearing Procedure.

a.         Pursuant to Section 3.56, where the Animal Control Officer has investigated and determined that there exists probable cause to believe that a dog is potentially dangerous or vicious, the Animal Control Officer shall request an administrative hearing by the Animal Hearing Officer for the purpose of determining whether the dog should be declared potentially dangerous or vicious.

b.         The Animal Hearing Officer shall notify the owner of the dog that a hearing will be held, at which time the Animal Control Officer and the dog owner may present evidence as to whether the dog should be declared potentially dangerous or vicious.  The notice, together with a copy of the petition, shall be provided pursuant to Section 3.6.  The hearing shall be held promptly within no less than ten (10) working days and no more than thirty (30) working days after service of the notice on the owner of the dog.

c.         The Animal Hearing Officer shall conduct the hearing in an informal manner and shall afford the owner of the animal an opportunity to present evidence as to why the dog shall not be declared potentially dangerous or vicious.  The formal rules of evidence shall not apply; however, whenever possible, any complaint received from a member of the public which serves as the evidentiary basis for the Animal Control Officer to find probable cause shall be sworn to and verified by the complainant and attached to the petition filed by the Animal Control Officer.  The Animal Hearing Officer may admit into evidence all relevant evidence, including incident reports and the affidavits or declarations of witnesses; limit the scope of discovery; shorten the time to produce records or witnesses; exclude witnesses from the hearing when not testifying; exclude disorderly or disruptive persons from the hearing; and make other orders necessary to ensure the fair and orderly conduct of the hearing.  The hearing shall be open to the public.

d.         The proceedings of the hearing may be tape recorded if ordered by the Animal Hearing Officer or requested by the owner of the dog.  A stenographic reporter shall also record the proceedings if ordered by the Animal Hearing Officer or requested by the owner.  A copy of the tape recording or transcript of the proceedings shall be made available to any person upon request and upon payment of the cost of preparation thereof.

e.         The Animal Hearing Officer may decide all issues for or against the owner of the dog even if the owner fails to appear at the hearing.

f.          In making a determination that a dog is potentially dangerous or vicious, evidence of the following shall be considered:

                        1.         Any previous history of the dog attacking, biting or causing injury to a human being or other domestic animal;

                        2.         The nature and extent of injuries inflicted and the number of victims involved;

                        3.         The place where the bite, attack or injury occurred;

                        4.         The presence or absence of any provocation for the bite, attack or injury;

                        5.         The extent to which property has been damaged or destroyed;

                        6.         Whether the dog exhibits any characteristics aggressive or unpredictable temperament or behavior in the presence of human beings or other domestic animals;

                        7.         Whether the dog can be effectively trained or retrained to change its temperament or behavior;

                        8.         The manner in which the dog had been maintained or cared for by its owner;

                        9.         Any other relevant evidence concerning the maintenance or care of the dog; and

                        10.       Any other relevant evidence regarding the ability of the owner or the Animal Control Officer, to protect the public safety in the future if the dog is permitted to remain in the city.

g.         After the hearing, the Animal Hearing Officer may find, upon a preponderance of the evidence, that the dog is potentially dangerous or vicious.  The Hearing Officer may order the abatement of the nuisance created by the potentially dangerous or vicious dog by imposing some or all of the abatement conditions found in Section 3.58 for the continued ownership of the animal.  The abatement order shall replace any provisional abatement order issued by an Animal Control Officer unless the abatement order is stayed by judicial action or pending judicial review.  Within fifteen days of the hearing, the determination and abatement order shall be served upon the dog owner pursuant to Section 3.6(a)(1).  The determination order of the Animal Hearing Officer shall be final and conclusive.

h.         If, following the hearing, the subject dog is determined by a preponderance of the evidence to be vicious and, if released to the owner, even where reasonable abatement conditions were imposed, would create a significant threat to the public health, safety, or welfare, the Hearing Officer may order that the dog be humanely euthanized as permitted under California Food and Agricultural Code Section 31645 or its successor provisions.

i.          A reputable presumption that a dog creates a significant threat to the public health, safety and welfare exists where:

                        1.         The dog has been involved in an attack resulting in the death of a person, regardless of the circumstances involved.

                        2.         The dog has been involved in a second attack, without provocation, on another animal or livestock which occurs off the property of the owner and that results in the death of the other animal or livestock;

                        3.         The dog has been involved in a third attack, without provocation, that results in a non-severe injury to a person in a place where such person is acting lawfully;

                        4.         A third attack, without provocation, on another animal or livestock which occurs off the property of the owner of the attacking dog;

                        5.         The owner of a dog previously deemed vicious fails, refuses or is incapable of complying with the terms of an abatement order issued pursuant to this chapter;

                        6.         The animal has been previously found vicious and subsequently exhibits any of the behaviors listed as determinative of potentially dangerous or vicious under Section 3.4 (“Definitions”).

                        7.         Such remedy shall be in addition to all other remedies at law or in equity and shall not limit or restrict other remedies.

j.          Within ten days of the hearing, notice of the order of humane euthanization shall be served upon the owner pursuant to Section 3.6(a)(1).

k.         Any order made by the Hearing Officer to humanely euthanize an animal shall be final unless an appeal is made to a court of competent jurisdiction.

Section 3.58     Abatement Orders and Conditions.

a.         Pursuant to Section 3.57(g), the owner of a dog determined to be potentially dangerous or vicious by the Hearing Officer, shall be required to comply with the abatement order of the Animal Hearing Officer which contains any or all of the following conditions:

                        1.         To immediately register the dog that is found to be potentially dangerous or vicious with the Animal Control Officer to comply with the Animal Control Officer’s requirements for potentially dangerous or vicious dogs, and to keep such dog properly vaccinated at all times.  Should the dog die in any twelve-month term, the owner shall notify the Animal Control Officer of the death within five working days of the death.

                        2.         To keep the dog securely confined on its premises in a locked enclosure approved by the Animal Hearing Officer or the Animal Control Officer from which the dog cannot escape and into which children cannot trespass.  Such a kennel or structure must have secure sides and a secure top attached to the sides.  All structure used to confine a potentially dangerous or vicious dog must be locked with a key or combination lock when such dogs are within the structure.  Such structure must have a secure bottom or floor attached to the sides of the pen or the sides of the pen must be embedded in the ground no less than two feet.  All structures erected to house a dangerous animal must comply with all zoning and building regulations of the city.  All such structures must be adequately lighted, ventilated, and kept in a clean and sanitary condition;

                        3.         To keep the dog securely muzzled, restrained by a substantial leash of no longer than six feet in length and under the control of a responsible person eighteen years of age or older who is physically capable of restraining the dog when the dog is not contained in a locked, secure enclosure;

                        4.         To have the animal spayed or neutered by a licensed veterinarian and to present proof to the Animal Control Officer;

                        5.         To provide and maintain financial responsibility for injuries to the public by obtaining and showing proof of liability insurance in the form and amount deemed to be acceptable by the Animal Hearing Officer or city attorney in light of all the circumstances.  Such insurance policy shall provide that no cancellation of the policy will be made unless ten days written notice is first given to Animal Services and the city clerk’s office;

                        6.         The posting of a bond or other proof of ability to pay a damage award in the amount of fifty thousand dollars;

                        7.         To immediately inform any city, county, postmaster or utility company meter readers and anyone else that lawfully comes onto the property, of the dog’s dangerousness and to inform Animal Control and/or the Chief of Police if the dog is moved to another location inside or outside the city limits as provided by this chapter;

                        8.         To display in a prominent place on the premises a sign easily readable by the public using the words “Beware of Dog” in letters at least three inches high;

                        9.         To have a microchip assigned by Animal Services, implanted into the dog for identification purposes.  The identifying information listed on the microchip shall be noted in the licensing files for that dog. 

                        10.       To consent and agree to the entry upon the premises to any police officer or Animal Control Officer for the purpose of inspecting the dog and/or premises at any time;

                        11.       To make reasonable payment of costs incurred by the city and animal control agent in the hearing process, not to exceed one thousand dollars;

                        12.       To take any other steps deemed reasonably necessary to prevent injuries to the public.

b.         The owner of the dog shall comply with the conditions imposed by the hearing officer within thirty (30) days of the order.  All owners of potentially dangerous or vicious dogs must within ten days of the effective date of the abatement order provide the Animal Control Officer with two photographs of the registered dog clearly showing the color and approximate size of the dog.

c.         No potentially dangerous or vicious dog shall be kept on a porch, patio or in any part of a house or structure that would allow the dog to exit such building on its own volition.  In addition, no such dog may be kept in a house or structure when the windows are open or screen doors are the only obstacle preventing the animal from exiting the structure.

Section 3.59     Failure to comply with Potentially Dangerous or Vicious Dog Order.

a.         It is unlawful for the owner of a dog deemed potentially dangerous or vicious under this chapter to fail to comply with conditions set forth in an abatement order.  Any dog found to be the subject of a violation of an order shall be subject to immediate seizure and impoundment.  The Animal Hearing Officer shall notify the dog owner to show cause whether the dog shall be humanely euthanized for a failure to comply with the conditions contained in the potentially dangerous or vicious dog order.

b.         The Animal Hearing Officer shall provide written notice pursuant to Section 3.6(a)(1) that the dog will be humanely euthanized unless, within fourteen days from the date of notice:

                        1.         The owner has demonstrated to the satisfaction of the Animal Hearing Officer that the owner has fully complied with the requirements and conditions set forth in the abatement order; or

                        2.         The owner has filed in a court of competent jurisdiction a petition that seeks to stay the euthanization of the animal and has served a copy of such petition upon the Animal Hearing Officer.  If, after fourteen days from the date of such notice, the owner has not complied with the provisions of subdivision (1) or (2) of this subsection, the Hearing Officer may, without further notice or process, have the animal humanely euthanized.

Section 3.60     Transfer and Training of Potentially Dangerous and Vicious Dogs.

a.         No person shall sell, transfer or in any other way dispose of a dog deemed potentially dangerous or vicious under this article to any person within the city unless the recipient person resides permanently in the same household and on the same premises as the owner of such dog.

b.         The owner of a dog that has been deemed potentially dangerous or vicious under this article may sell, transfer, or otherwise dispose of such dog or the offspring thereof to persons who do not reside within the city, provided the owner first notifies the Animal Hearing Officer and the Animal Control Officer of the proposed sale or transfer.  Such notice shall be given not less than fifteen days in advance of the sale or transfer and shall specify the name and address of the recipient person.  Upon receipt of such notice, the Hearing Officer or the Animal Control Officer may notify the governmental jurisdiction in which the recipient person is located or resides.  Failure to comply with these notification provisions shall be grounds for immediate impoundment of the dog by the Animal Control Officer.

c.         It shall be unlawful for a person to possess, own or control any dog for the purpose of either temporary or permanent care in the city limits that has been deemed by another governmental jurisdiction to be potentially dangerous, dangerous, vicious, or a threat to the safety of human beings or domestic animals.  The Animal Control Officer may order the person having possession, ownership or control of the dog to remove the dog immediately from the city.  Should such person fail to comply with the Animal Control Officer’s order, the Animal Control Officer may summarily and immediately impound the dog.  The owner of the dog shall be liable for the costs and expenses of impounding and keeping the dog including any necessary veterinary fees.  Such impounded dog may then be disposed of in accordance with the provisions of this chapter.

Section 3.61     Restrictions on Further Ownership of Dogs.

The owner of a dog determined to be a vicious dog shall be prohibited from owning, possessing, controlling, or having custody of any dog for a period of three (3) years, when it is found, after hearing proceedings conducted pursuant to this article that ownership or possession of a dog by that person would create a significant threat to the public health, safety and welfare.

Section 3.62     Keeping a Potentially Dangerous or Vicious Dog by Minors Prohibited.

No dog found to be potentially dangerous or vicious pursuant to this chapter shall be owned by a minor.

Section 3.63     Enforcement and Penalties.

a.         Unless otherwise specified, any violation of this chapter shall be a misdemeanor.

b.         The owner of any dog determined to be potentially dangerous ordered humanely euthanized pursuant to this chapter shall be prohibited from owning, possessing, controlling or having custody of any other dog of the type to which the violation applies for a period of three years from the date of violation when it is found after the hearing conducted pursuant to this article that ownership or possession of such animal by that person would create a significant threat to public health, safety, or welfare.

c.         Any provisions of this chapter may be enforced by the police department, fire department, the Animal Control Officer or any authorized designee of the Animal Services Director.  Complaints of any violations of this article which are subject to the penalties under this section may be presented to the District Attorney’s Office or to the city attorney for prosecution.

d.         In any action, administrative proceeding, or special proceeding initiated by the city under this chapter, the prevailing party may recover attorneys’ fees.  Recovery of attorneys’ fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees.  The award of attorneys’ fees to the prevailing party shall in no circumstance exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding.

e.         The penalties and remedies specified herein shall not be exclusive but shall be cumulative with all other remedies at law or in equity.  The city may, in its discretion, elect to pursue any one or more of the penalties or remedies provided for herein or at law or in equity.

f.          Notwithstanding the preceding, the Animal Control Officer may settle any matter scheduled for a hearing at any time prior to the hearing by written agreement with the applicant, license holder, or owner of the animal, as the case may be. In the event of a settlement, the executed agreement shall become the decision of the Animal Hearing Officer and shall be mailed pursuant to Section 3.6(a)(1).