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HomeMy WebLinkAbout18A - HEARING OFCRS RPTREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 18, 2008 TITLE: HEARING OFFICER'S REPORT - RE COI~II~~NDAT I ON CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO (~,~~ ._©g ~ 1 d --Cry -© ~ FILE NUMBER Adopt hearing officer's decision in its entirety which recommends the denial of an appeal of the Santa Ana Animal Control Officer's declaration of a vicious dog pursuant to Santa Ana Municipal Code §5- 72. DISCUSSION On July 10, 2008, Daniel Miller's appeal of a determination by the Santa Ana Animal Control Officer of a vicious dog was received in the Clerk's Office. The Santa Ana Municipal Code assigns responsibility to the Clerk of the Council for setting the appeal hearing, giving proper notice, and following through with subsequent procedures. The hearing on this matter was conducted on May 14, 2008, and the report of the hearing officer was filed with the Clerk of the Council as required. Pursuant to Chapter 3-10 of the Santa Ana Municipal Code, the City Council may adopt or reject the proposed decision in its entirety, or may modify the proposed decision. Staff recommends adoption of the hearing officer's report as presented. FISCAL IMPACT The cost of the hearing procedure was $4,675.00. Funds were available in 11-021-6291. 18A-1 Hearing Officer's Report August 18, 2008 Page 2 APPROVED AS TO FUNDS AND ACCOUNTS: _ ~j' ~= ~G".4~ 'c-C-~c" Patricia E. Healy Clerk of the Council /' / Francisco Gutierrez Executive Director Finance & Management Services Agency 18A-2 1 2 3 4 S 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 2S 26 27 28 HON. JACK K. MANDEL (RET.) JAMS S00 N. State College Blvd. Suite 600 Orange, CA 92868 Telephone: (714) 939-1300 Fax: (714)939-8710 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE Daniel Miller, Plaintiff and City of Santa Ana, Defendant JAMS Ref. No. 1200040532 AMENDED APPEAL FROM A DETERMINATION BY SANTA ANA ANIMAL CONTROL OFFICER OF A VICIOUS ANIMAL FACTS LEADING TO THIS HEARING: On November 17, 2007 in the early morning Daniel Miller was walking his dog, a mature Rottweiller, named BEAR, of approximately 1101bs. Contact was made with a l Olb CI~flH[JAHUA, reamed Cookie, the property of Nora Sergent, a widow. Both Mr. Miller and Mrs. Sergent reside in 2"d floor condos in the same complex. There had been an earlier altercation between the same two dogs in 2003. In this instance the Rottweiller killed the CHIHUAHUA. The facts as presented by the two pet owners dramatically differ and conflict. Under no interpretation could the diverging facts be construed into the same scenario. i 18A-3 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While reasonable people may hear and see the same thing differently, in this instance Mr. Miller is trying to save the life of his "closest friend" "BEAR", while Mrs. Sergent is grieving death, and dealing with the killer, of her "companion", "Cookie". Santa Ana Police Department Animal Services Officer Santra Howey, investigated the case and interviewed the only two witnesses, Mr. Miller and Mrs. Sergent, each admittedly with bias. After careful review of the conflicting statements the investigating officer came to the conclusion that classified "BEAR", the Rottweiler, as a "vicious dog". First Issue• Was there a prior hearing by a neutral from St. Vincent DePaul Society where the issues were heard and determined thus making this hearing moot as "res adjudicate"? Argument by Mr. Miller based upon logic and confusion of S.A.P.D. and their dropping some charges. The City Attorney rebutted, saying that Municipal Code procedure requires an Appeal of the Animal Control Officer's determination that in fact was filed by Miller and his then counsel. The court: A hearing results in a written opinion and decision. None has been provided Miller. Santa Ana City Attorney states that none exists as the "hearing" was abandoned before it began and not in compliance with Santa Ana Municipal Code regulations. Finding: No such alleged hearing took place and this "Appeal" tribunal is free to act, a hearing and ultimately rule and is not impeded by any "res adjudicate" determination. Second Issue• Is Bear the Rottweiler a vicious animal consistent with Santa Ana Municipal Code? Daniel Miller, angrily, erratically, aggressively, attacked the City of Santa Ana Police and Animal Control Investigator as well as Mrs. Sergent, and her former, now deceased, CHIHUAHUA. His position was that Bear was on an unbreakable leash, that he always walked the Rottweiler on the specially designed unbreakable leash, that Cookie, the CH]HIJAHUA attacked him; that this dog was aggressive and always attacked him and his dog, while circling and remaining just out of reach; that he Miller slipped on oil in the car port and that the z 18A-4 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHIHUAHUA attacked his face; that only then, did the disinterested and passive BEAR came to I I his rescue. NORA SERGENT: With tears and great Pathos(?), Bear is the bully of the neighborha Everyone fears the aggressive vicious Rottweiler, particularly this little old Hispanic lady and h now dead l Olb pet; that she was out on her deck at 7:30 AM experiencing the morning while Cookie did "his business" on the flowers at the second story level; that Bear broke free (he was on a red leash, not the indestructible cable leash) rushed up the stairs and broke the back of her little dog with one bite returning down the stairs with the victim in his mouth. Daniel Miller submits approximately 30 written letters attesting to the Rottweiler having gentle and loving disposition and not being a danger to anyone or anything. ~i Nora Sergent submits some 75 signatures on a petition calling for the removal of Bear the II', Rottweiler as a vicious attack dog and killer {and a community nuisance). Discussion: Daniel Miller testifies that the CHIHUAH[.JA bit him on hands, arm, and face. Santa Ana Police Officers testify that wounds were from a bigger dog. Miller rebuts that a Rottweiler would leave a tearing wound not a puncture wound and these were puncture wounds. Each party had their respective conflicting theories as to why blood stains occurred in various places. Conflicting testimony as to the leash used that morning. Testimony conflicted as to whether the attack took place in carport or up the stairs toward Sergent's second floor condo. Also testimony conflicted as to which dog attacked first. Decision• Based upon Santa Ana Municipal Code §5-72(b) "The burden of proof shall be on the animal control officer to show by a preponderance of evidence that the dog should be declared vicious." Based on all the facts, Mrs. Sergent's version is the more believable account as to what ~ transpired, and thus the preponderance of evidence is with the City of Santa Ana. 3 18A-5 1 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mrs. Sergent's CHIHUAHUA is dead. Daniel Miller's Rottweiler is a vicious dog pursuant to the Santa Ana Municipal Code. The Appeal is denied. J ck K. Mandel Baring Officer Judge of the Superior Court (Ret.) a 18A-6 PROOF OF SERVICE JAMS REF. #: 1200040532 CASE NAME: Miller, Daniel vs. City of Santa Ana I, Gina Monteiro, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is JAMS, Inc., 500 N. State College Blvd., Suite 600, Orange, California, 9286$. On July 10, 2008, I served the attached AMENDED APPEAL FROM A DETERMINATION BY SANTA ANA ANIMAL CONTROL OFFICER OF A VICIOUS ANIMAL on the interested parties in the within action by the method described below, addressed as set forth on the attached page: [~J BY U.S. MAIL I deposited true copies of the document described above enclosed in a sealed envelope in the mail at Orange, California, with postage thereon fully prepaid. [ ] BY U.S. MAIL I deposited true copies of the document described [certifed] above enclosed in a sealed envelope by certified mail at Orange, California, with postage thereon fully prepaid. [ J BY FAX I caused such documents to be faxed to the above-mentioned address(es). ~] BY EMAIL I caused such documents to be emailed to the above-mentioned addresses} email. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 10, 2008 at Orange, California. ~.(~L1La 1~~~ Gina Monteiro 18A-7 SERVICE LIST JAMS REF. #: 1200040532 CASE NAME: Miller, Daniel vs. City of Santa Ana Ryan Hodge Esq. City of Santa Ana 20 Civic Center Plaza M-29 PO Box 1988 M-29 Santa Ana, CA 92702 Tel: 714-647-6520 - t~~~~aoi Fax: 714-647-6515 Daniel Miller 1320 N. Cabrillo Suite # Santa Ana, CA 92701 Tel: 714-496-0737 18A-8 MEMORANDUM ~~ ~aucatiori 1 sc To: City Clerk Pat Healy Date• September 25, 2008 FCOm: PnlirP ("hief Subject: COUNCIL ITEM 18A, HEARING OFFICER'S REPORT RECOMMENDATION RELATED TO VICIOUS DOG DECLARATION At the Council meeting of August 18, 2008, the City Council voted to continue this item to the Police Chief for further review. After review of the hearing officer's report and the accompanying documentation, this case was referred to Caroline Haldeman, owner of Sirius K9 Training in Yorba Linda. Caroline is a graduate of the School of Animal Science in Atlanta, GA, and she is also a graduate of the Tom Rose School of Dog Training in St. Louis, MO, the most prestigious school in the United States. She has a pro-expert dog trainer certificate and, over the past 17 years, has instructed hundreds of group classes and private lessons in canine obedience, protection and agility. Caroline's resume and expertise is well accepted and she is recognized in the court as an expert. RECOMMENDATION On Sunday, September 7th, Caroline Haldeman, owner of Sirius K9 Academy, completed her evaluation of Mr. Miller's dog Bear. I have attached a copy of this report for you. Her recommendation, which I concur with, is to require that Mr. Miller neuter his dog Bear as soon as possible, to have a muzzle on Bear whenever he is in public and for his dog to be declared vicious. In order to remove the vicious declaration, Mr. Miller will be required to have his dog complete the American Kennel Club's Good Citizen Program and the dog reevaluated by Sirius K9 Training. I have attached a copy of the AKC requirements. 4 PAUL M. WALTERS Chief of Police ~c Attachments: Sirius K9 Academy's Evaluation of Bear AKC's Canine Good Citizen Program 18A-9 . .. =u ~f~N~~ IgEAO \.~.: Sirius K9 Academy 3740 Prospect Ave Yorba Linda, CA 92886 714-296-9714 September 17`h, 2008 Chief Paul Walters Santa Ana Police Department 60 Civic Center Plaza Santa Ana, CA 92701 714-245-8003 RE: EVALUATION OF BEAR I completed the evaluation of a dog named "Bear" upon your request on Sunday September 7`t`, 2008. I assessed the dog at my dog training facility, Sirius K9 Academy located at 3740 Prospect Ave, Yorba Linda, CA 92886 at 1300 hours. The owner Daniel Miller brought him into my facility on a home made tether leash approximately 6' - 7' long that he stated he had made himself after his dog broke his red nylon leash. The tether leash was attached to a large choke chain around the dog's neck. No other collar, training, or restraint device was on the dog. I spent one hour with Mr. Miller and his dog Bear during the evaluation. Bear is approximately 9 years old, a large male Rottweiler that is not neutered. The dog came into my facility pulling Mr. Miller up the stairs leading into my facility and continued to pull once they were inside the building. Bear was limping noticeably on a front leg and Mr. Miller stated that the dog had hip and elbow dysplasia and recently was injured by stepping in a gopher hole. Mr. Miller stated he found the dog in a Home Depot parking lot 8 %2 years ago. He also stated that the reason Bear was not neutered was because he had another dog at home, a 10 year old dominant male Lab mix that is also not neutered. Mr. Miller said he had Bear professionally trained at Sandman's Canine Services located in Tustin, CA in 2004. The training consisted of several private lessons and approximately one week of in-kennel training. Mr. Miller stated the in-kennel training was to try and socialize Bear. He stated that Bear was very protective of him. No additional or follow up training had been completed to date. Upon interviewing Mr. Miller about Bear's history of dog /human aggression, Mr. Miller told me in detail the story of an incident that occurred between his neighbor's dog and Bear in 2007 whereupon Bear killed the dog, a Chihuahua. He stated Bear had previously gone after his neighbor's dog "Cookie", the Chihuahua, in 2002 after a contractor left his gate open. He stated his neighbor Mrs. Sergent, who owned Cookie, went to the doctor after she stated Bear bit her on the finger, he stated that at that time his Home Owner's insurance covered the incident. He also stated that Bear attacked another neighbor's dog, a Shitzu, after the dog ran up to him and his dog. He stated Bear at the time was at the end of the leash in front of him when this occurred, and that consequently Bear attacked the dog. He stated the vet bill for the dog Bear attacked was approximately $500 dollars. He also admitted that Bear got into a dog fight at a dog park with an Australian Shepherd in 2001. He said neither dog was seriously injured and nothing became of the incident. Mr. Miller also stated that his dog Be~}~a~s ~~ums and often tries to catch them at his ~' ` condominium complex. He stated that Bear had caught and attacked a possum approximately 2 years ago at his complex. He did not know if the possum survived the attack but said that when he later returned to check on the possum, it was gone. After interviewing Mr. Miller about his dog's history, I evaluated Bear's level of obedience training. The only command Bear responded to fairly well was "sit". Mr. Miller did manage to get Bear into a down position, however, the dog would not hold that position for longer then a few seconds. When I asked Mr. Miller to walk Bear at his side on a loose leash, Mr. Miller stated his dog did not know how to heel and that Bear always pulls him when on leash. He also stated that his dog did not have a formal recall command to come to him. After evaluating Bear's obedience training, I then evaluated his level of animal aggression. I used several stuffed dogs that I frequently use to evaluate dog aggression issues, including a stuffed cat. Bear immediately targeted on each of the stuffed animals, ranging in size from very small to medium size. Bear pulled at the leash and attempted to go after the stuffed animals, including lunging at them as I walked by pulling a small stuffed dog on a leash. Bear's focus on these animals after I moved them was intense. He would not stop staring at them and continued to pull on the leash to get to them for the remainder of the evaluation, even long after I stopped moving the animals. He also focused on a stuffed cat that was on the ground that was never moved. I also evaluated Bear's reaction to a real dog. An older docile female Pointer dog was brought into the building on leash. The dog was quiet and submissive and paid no attention to Bear, even so, Bear pulled to go see her and also continued to pull on the leash to go to the stuffed animals. Based on my extensive experience with aggressive dogs and knowledge gained as a professional dog trainer and handler for the last 16 years, it is my professional opinion that Bear is a liability to the community. This assessment is based on physical interaction with the dog, interviewing the owner, as well as reviewing records of previous attacks. I strongly believe that Bear would bite another dog if given the opportunity (i.e. if a dog would come up to him or be within Bear's field of vision on or off leash.) This conclusion is due to several factors; The dog's natural instinct to protect his owner, his very high prey /chase drive, the dog's previous incidents of attacking numerous dogs as well as possibly injuring an owner of one of the dogs that was attacked, the attack of the possum, the lack of control and obedience training by the owner, the substantial size and power of the dog, the denial that there is a problem by the owner, the lack of dog handling experience and knowledge on the owner's part, and lastly, because the dog is not neutered. I made the following recommendations to Mr. Miller; I told him to seek additional professional training and that his goal should be to pass the AKC Canine Good Citizen (CGC) test with Bear, to neuter Bear as soon as possible, and to have a muzzle on Bear when he is in public. Please call me at 714-296-9714 if you have any questions. Sincerely, Caroline Haldeman Owner /Training Director Sirius K9 Academy 18A-11 AKC's Canine Good Citizen® (CGC) Program AMERICAN • ,• KENNEL CLUB'' AKC's Canine Good Citizen® (CGC) Program Training/Testing: CGC Test Items Page 1 of 3 Before taking the Canine Good Citizen test, owners will sign the Responsible Dog Owners Pledge. We believe that responsible dog ownership is a key part of the CGC concept and by signing the pledge, owners agree to take care of their dog's health needs, safety, exercise, training and quality of life. Owners also agree to show responsibility by doing things such as cleaning up after their dogs in public places and never letting dogs infringe on the rights of others. After signing the Responsible Dog Owners Pledge, owners and their dogs are ready to take the CGC Test. Items on the Canine Good Citizen Test include: Test 1: Accepting a friendly stranger This test demonstrates that the dog will allow a friendly stranger to approach it and speak to the handler in a natural, everyday situation. The evaluator walks up to the dog and handler and greets the handler in a friendly manner, ignoring the dog. The evaluator and handler shake hands and exchange pleasantries. The dog must show no sign of resentment or shyness, and must not break position or try to go to the evaluator. Test 2: Sitting politely for petting This test demonstrates that the dog will allow a friendly stranger to touch it while it is out with its handler. With the dog sitting at the handler's side, to begin the exercise, the evaluator pets the dog on the head and body. The handler may talk to his or her dog throughout the exercise. The dog may stand in place as it is petted. The dog must not show shyness or resentment. Test 3: Appearance and grooming This practical test demonstrates that the dog will welcome being groomed and examined and will permit someone, such as a veterinarian, groomer or friend of the owner, to do so. It also demonstrates the owner's care, concern and sense of responsibility. The evaluator inspects the dog to determine if it is clean and groomed. The dog must appear to be in healthy condition (i.e., proper weight, clean, healthy and alert). The handler should supply the comb or brush commonly used on the dog. The evaluator then softly combs or brushes the dog, and in a natural manner, lightly examines the ears and gently picks up each front foot. It is not necessary for the dog to hold a specific position during the examination, and the handler may talk to the dog, praise it and give encouragement throughout. Test 4: Out for a walk (walking on a loose lead) This test demonstrates that the handler is in control of the dog. The dog may be on either side of the handler. The dog's position should leave no doubt that the dog is attentive to the handler and is responding to the handler's movements and changes of direction. The dog need not be perfectly aligned with the handler and need not sit when the handler stops. The evaluator may use apre-plotted course or may direct the handler/dog team by issuing instructions or commands. In either case, there should be a right turn, left turn, and an about 18A-12 http://www.akc.org/events/egc/training_testing.cfm 9/25/2008 AKC's Canine Good Citizen® (CGC) Program Page 2 of 3 turn with at least one stop in between and another at the end. The handler may talk to the dog along the way, praise the dog, or give commands in a normal tone of voice. The handler may sit the dog at the halts if desired. Test 5: Walking through a crowd This test demonstrates that the dog can move about politely in pedestrian traffic and is under control in public places. The dog and handler walk around and pass close to several people (at least three). The dog may show some interest in the strangers but should continue to walk with the handler, without evidence ofover-exuberance, shyness or resentment. The handler may talk to the dog and encourage or praise the dog throughout the test. The dog should not jump on people in the crowd or strain on the leash. Test 6: Sit and down on command and Staying in place This test demonstrates that the dog has training, will respond to the handler's commands to sit and down and will remain in the place commanded by the handler (sit or down position, whichever the handler prefers). The dog must do sit AND down on command, then the owner chooses the position for leaving the dog in the stay. Prior to this test, the dog's leash is replaced with a line 20 feet long. The handler may take a reasonable amount of time and use more than one command to get the dog to sit and then down. The evaluator must determine if the dog has responded to the handler's commands. The handler may not force the dog into position but may touch the dog to offer gentle guidance. When instructed by the evaluator, the handler tells the dog to stay and walks forward the length of the line, turns and returns to the dog at a natural pace. The dog must remain in the place in which it was left (it may change position} until the evaluator instructs the handler to release the dog. The dog may be released from the front or the side. Test 7: Coming when called This test demonstrates that the dog will come when called by the handler. The handler will walk 10 feet from the dog, turn to face the dog, and call the dog. The handler may use encouragement to get the dog to come. Handlers may choose to tell dogs to "stay" or "wait" or they may simply walk away, giving no instructions to the dog. Test 8: Reaction to another dog This test demonstrates that the dog can behave politely around other dogs. Two handlers and their dogs approach each other from a distance of about 20 feet, stop, shake hands and exchange pleasantries, and continue on for about 10 feet. The dogs should show no more than casual interest in each other. Neither dog should go to the other dog or its handler. Test 9: Reaction to distraction This test demonstrates that the dog is confident at all times when faced with common distracting situations. The evaluator will select and present two distractions. Examples of distractions include dropping a chair, rolling a crate dolly past the dog, having a jogger run in front of the dog, or dropping a crutch or cane. The dog may express natural interest and curiosity and/or may appear slightly startled but should not panic, try to run away, show aggressiveness, or bark. The handler may talk to the dog and encourage or praise it throughout the exercise. Test 10: Supervised separation This test demonstrates that a dog can be left with a trusted person, if necessary, and will maintain training and good manners. Evaluators are encouraged to say something like, http://www.akc.org/events/cgc/training testing.c 9/25/2008 AKC's Canine Good Citizen® (CGC) Program "Would you like me to watch your dog?" and then take hold of the dog's leash. The owner will go out of sight for three minutes. The dog does not have to stay in position but should not continually bark, whine, or pace unnecessarily, or show anything stronger than mild agitation or nervousness. Evaluators may talk to the dog but should not engage in excessive talking, petting, or management attempts (e.g, "there, there, it's alright"). Equipment Page 3 of 3 All tests must be performed on leash. Dogs should wear well-fitting buckle or slip collars made of leather, fabric, or chain. Special training collars such as pinch collars, head halters, etc. are not permitted in the CGC test. We recognize that special training collars may be very useful tools for beginning dog trainers, however, we feel that dogs are ready to take the CGC test at the point at which they are transitioned to regular collars. The evaluator supplies a 20-foot lead for the test. The owner/handler should bring the dog's brush or comb to the test. Encouragement Owners/handlers may use praise and encouragement throughout the test. The owner may pet the dog between exercises. Food and treats are not permitted during testing, nor is the use of toys, squeaky toys, etc. to get the dog to do something. We recognize that food and toys may provide valuable reinforcement or encouragement during the training process but these items should not be used during the test. Failures -Dismissals Any dog that eliminates during testing must be marked failed. The only exception to this rule is that elimination is allowable in test Item 10, but only when test Item 10 is held outdoors. Any dog that growls, snaps, bites, attacks, or attempts to attack a person or another dog is not a good citizen and must be dismissed from the test. httn://www.akc.org/eventslc~c/training testina!c~~` ~ 4 9/25/2008