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HomeMy WebLinkAboutAppeal of Vicious Animal DesignationCITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, 54903-1130 City of Oshkosh 0 OfHKOfH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: September 23, 2010 RE: Agenda Item #25 - Appeal of Vicious Animal Designation BACKGROUND Although the process has been in Chapter 6 of the Municipal Code for some time, the Council is being presented for the first time with an appeal of the Health Director's determination that a dog owned by a City resident is a "Vicious Animal" as defined by the Municipal Code. Chapter 6 of the Municipal Code provides that a Vicious Animal is essentially one that has two unprovoked bites of another animal or of a human. We are providing you with a copy of Chapter 6 for your reference. You are also being provided with a copy of the City's file in this matter, which includes the police reports, the previously issued vicious animal license, correspondence, and the Health Director's recent activity and decision. will not go into detail about the dog bites because that information is located in the file. Therefore, 1 will only touch on very basic elements of this issue. First of all, I should mention that this case is somewhat unusual because the two bites in question occurred in 2005 and 2007. The dog owner, Mr. Van Dinter, obtained a Vicious Animal license after the second bite. Vicious animal license's last one year. Mr. Van Dinter did not respond to subsequent efforts to persuade him to renew his vicious animal license. Mr. Van Dinter now states that he doesn't think it was his dog involved in one of the bites, that he didn't want to get a vicious animal license in the first place even though he used his limited funds to pay for the permit, and that it is the City's responsibility to pay for forensic analysis of animal bites to prove that the bite marks actually match the jaw /teeth structure of the animal. Mr. Van Dinter co Memo: Vicious Animal: 9/23/10: Pg. 2 believes that anything short of such scientific evidence, paid for by the City, linking the bite with the dog should exonerate his dog. The reason this is coming before the Council at this time is because over the past year, the Health Department has been working with our office to develop a formal, and hopefully routine, policy to deal with animal bites. The previous Health Director handled the procedure for dealing with bites, with occasional input from our office. This informal system appears to have worked for the time. However, because we believe that the number of bites has increased, and because of the change in the Health Director position, we believe that a formal procedure should be developed so that staff can efficiently and consistently process the animal bites, and so that all animal owners will have the opportunity to understand the process, and have an opportunity to formally present information they want the City to consider. ANALYSIS The Council has delegated the authority to enforce rules dealing with animal issues to the Health Director. Chapter 6, paragraph 6- 16(A)(1) of the Municipal Code allows animal owners an "opportunity to be heard" by the Health Director before the Health Director uses his /her authority to declare an animal a "vicious animal" as defined by the Code. In this particular instance, even though Mr. Van Dinter had previously obtained a Vicious Animal license, he was more formally notified that the Health Director considered his dog to be a Vicious Animal, but that he did have the "opportunity to be heard" before the City took further action. Mr. Van Dinter exercised his "opportunity to be heard." The Interim Health Director then held an informal administrative hearing during which Mr. Van Dinter appeared and was given a full opportunity to present information and evidence that he wished the Health Director to consider. He offered verbal testimony, but did not provide any testimony from any other person, or any documentation in support of his claims. After Mr. Van Dinter stated that he had no further information to provide, the hearing was closed. The Health Director reviewed the City's file, and the information provided by Mr. Van Dinter, before providing Mr. Van Dinter with a written determination finding that his dog meets the definition of Vicious Animal and, as a result, he must either obtain a vicious animal license or remove the animal from the City. Mr. Van Dinter elected to "appeal" the Health Director's decision to the Council, as is allowed by Section 6- 16(A)(5) of the Municipal Code. Memo: Vicious Animal: 9/23/10: Pg. 3 To state the obvious, the Council is not a Court and issues before it are not Court proceedings. Using the formal description of the jurisdiction of Courts of Appeals would not be helpful in this situation. However, Black's Law Dictionary has a general, but useful, definition of "appeal." This Dictionary simply refers to appeal as the review of the decision of a lower body. This "review" obligation is different from the Health Director's obligation to provide an "opportunity to be heard." Therefore, the Health Director holds a hearing, and the Council reviews the Health Director's decision. Reviewing the decision of a lower body, in this case the Health Director, will therefore consist of reviewing the record and determining if the conclusion of the Health Director is reasonable. An appeal is not the time for hearing testimony, receiving new evidence, or for otherwise conducting a new hearing on this issue. The Council may wish to allow Mr. Van Dinter and /or the Interim Health Director to address the Council. This is not required, however. To use the Court analogy, in many instances the Court of Appeals does not allow oral arguments but instead simply reviews the file and makes its decision based on what is on paper. After reviewing the file, and listening to Mr. Van Dinter and the Health Director, the Council is responsible for making a decision. Because the lower body usually has spent considerable time listening to testimony and observing the demeanor of witnesses providing testimony, the lower body is in the best position to evaluate the testimony and their decision is usually given deference. Given the role that appellate bodies play in the system, they will review the record to ensure that the applicable Codes were followed, and that the decision of the lower body is reasonable. It should not be determinative that a Council member may feel differently about issues, because reasonable minds may differ. The issue is whether the Health Director followed the applicable Code and whether his decision is reasonable in light of the evidence presented. I recommend that the Council follow the above procedure in their review of this matter. I recommend that the Council review the record and make its decision based upon the record that has been put together by the Health Director FISCAL IMPACT Not applicable. Memo: Vicious Animal: 9/23/10: Pg. 4 RECOMMENDATION This office recommends that the Council affirm the decision of the Health Director. We believe that the evidence gathered strongly supports the conclusion that Mr. Van Dinter's dog is a vicious animal as defined by the Municipal Code, and as a result he should be required to either obtain a vicious dog license, or remove the dog from the City. Res ctfully Submit d, Lorens n City Attorney Approved: "'4 zdA4-'fi Mark A. Rohloff City Manager CITY HALL 215 Church Avenue P.O. Brno 1130 Oshkosh, Wisconsin 54903 -1130 City of Oshkosh — 0 City Health services Division 215 Church Avenue P.O. Box 1130 Oshkosh, W1 54903 -1130 2 Floor, Room 201 Phone: (920) 236 -5030 http; / /www.d.oshkosh.wi.us August 13, 2010 Michael L. Van Dinter 30 W. 10' Avenue Oshkosh, WI 54902 -6004 RE: Butch — Lab Mix Vicious Animal Designation by City of Oshkosh Health Director Dear Mr. Van Dinter: I appreciated the opportunity to meet with you on August 11, 2010 to hear your viewpoints regarding the status of your pet, Butch. Please be assured that all of your comments were considered and compared to the information previously in the City's possession. After reviewing all of the information available to me, and based upon the authority given to me by Section 6 -16 of the Municipal Code of the City of Oshkosh, I have determined that your dog, Butch, meets the definition of "Vicious Animal" as defined in Section 6- 1(A)(10) of the Code. A brief summary of my reasons for this conclusion follows: The first incident occurred on July 4, 2005, and was the subject of an Incident Report by the Oshkosh Police Department. Based on your statements at the meeting on August 11, 2010, you agree that this incident was an unprovoked bite by Butch of a person riding a bicycle. near your residence. The second incident occurred January 3, 2007, and was the subject of an Incident Report by the Oshkosh Police Department. On that date, an individual named Jacob Dallman, was riding his bicycle near your residence at that time, which was 810 Prospect, when he was bit by a dog. The dog that bit him, a medium sized black and white dog, was running unleashed in the street along with a black and brown dog. Mr. Dallman's initial description of the dog that bit him to the investigating officer matched a description of Butch. Later that same day, Mr. Dallman personally observed the dog he identified as the one that bit him walk past his house and into your residence at 810 Prospect. 00 Michael Van Dinter August 13, 2010 Page 2 The incident report confirms that on January 3, 2007 you owned both a medium sized black and white dog (Butch), along with a black and brown dog. The incident report states that you admit you were not home at the time of the bite, but you were sure that Butch could not have been responsible because he is not allowed outside without a leash. You indicated at a later interview by the investigator that your roommate did let Butch out in the backyard, but that he would have been unable to leave the backyard. You stated on August 11, 2010 that you have always believed that Butch did not bite Mr. Dallman. Instead, you state that there was at that time, a second pair of dogs in your neighborhood that match the description of your two dogs. You also stated that it was unfair that you were never given the opportunity to view the bite marks. You stated that viewing the bite marks would have proven Butch did not bite because he was missing his eye tooth so his bite mark would have been unique. Later on August 11, you also stated that he was missing some of his front teeth. You stated that Butch could not have bit because he isn't an aggressive animal. You stated that Butch never left the house or the back yard unless he was leashed. I take the issue of a potential mistaken identification very seriously, as I believe that the primary purpose of the Vicious Animal provisions of the Municipal Code are to protect the public health and safety. Regulating a non - biting dog while allowing a biting dog to run free does not achieve this goal. However, in this case I believe that there is a tremendous amount of information proving that Butch was the dog involved in the biting incident on January 3, 2007. The bite occurred very near your residence. The victim's description of the dog matches the description of Butch. The victim also personally identified the dog that bit him as Butch when Butch walked past his house and into your residence. You admit that you were not home at the time of the bite. In the Incident Report, you first stated that Butch could not have been outside, and then later stated that your roommate admitted that Butch was let out into the backyard during the time in question. If there were issues or questions related to the identity of a dog that bit someone, it should have been discussed at the time of the bite while everyone's memory was current. Because 3 %Z years. have passed since the bite, we must rely on the written information we have. After the January 3, 2007 incident, you were cited for an animal at large violation. You eventually entered a "no contest" plea to this charge. You had the opportunity to present a mistaken identity defense at this time, but chose not to. On June 6, 2007, you stated that you reluctantly obtained a vicious animal permit from the City. You had the opportunity to present a mistaken identity defense at this time, but chose not to. In December 2008 you were cited for failing to renew your vicious dog license. A default judgment was entered when you did not show up in Court. You had an opportunity to present a mistaken identity defense at this time, but chose not to. Michael Van Dinter August 13, 2010 Page 3 You indicated at our August 11, 2010 meeting that it was unfair that you have never been given the opportunity to view the bite marks, or at least photographs of the bite marks. I will take you at your word and assume that you previously made such a request. I have not viewed any photographs so I don't know if they exist, and if photographs do exist, what they would tell us. I am not an attorney, but it would seem that somewhere in the various court proceedings I noted above, this issue could have been taken care of Unfortunately, all I can do is review the documents we have. The Incident Report, which alleges that on January 4, 2007, you told the investigating officer that you "had been advised not to cooperate any further." The Incident Report also alleges that on January 5, 2007, the investigating officer and Mr. Dallman went to your home to identify Butch, but were refused access to the dog. Your lack of cooperation with the investigation does not reflect well on your current claim that others have not been cooperative. Based on the information I have reviewed, I therefore believe that Butch meets the definition of "Vicious Animal" as described in the Municipal Code. Based upon the designation of Butch as a "Vicious Animal," Section 6 -16 of the Municipal Code requires that you immediately obtain a Vicious Animal license. You can review the requirements for such a license in Chapter 6 of the Code, a copy of which was previously mailed to you. The Code is also available from the City Clerk's office, or available via the City's website, www.ci.oshkosh.wi.us If you have specific questions about the requirements, you can contact Anne Boyce, City Public Health Sanitarian, at (920) 236 -5030. You have the right to appeal this decision. Your appeal is to the Oshkosh Common Council. In order to appeal, you must file a written notice of appeal with the City Clerk no later than five (5) business days after the date my letter is mailed to you, which is August 13, 2010. It will be notified when this is placed on a Council agenda. If you appeal, Section 6 -16 of the Code also has information about what you have to do from the time this letter is mailed until the Council makes the final determination. Sincerely, CITY OF OSHKOSH ovx� I Mark Ziem Interim H Director MZ/dp Avid /David Praska, Assistant City Attorney Anne Boyce, Public Health Sanitarian Pine Apartments III, LLC 3389 County Road A, Oshkosh, Wisconsin 54901 Michael L. Van Dinter 30 W. 10 Avenue Oshkosh, WI 54902 August 18, 2010 Oshkosh City Clerk 215 Church Avenue Oshkosh, WI 54903 s ! AUG 18 2010 C11 TY CLER' 0 F, E RE: Butch -Lab Mix Appeal to Vicious Animal Decision by City of Oshkosh Health Director To Whom It May Concern: I am formally submitting my written appeal in the decision made, on the letter I received on August 13, 2010, from Mr. Mark Ziemer, deeming my dog Butch being classified as a "Vicious Animal." My appeal is based on three arguments that I believe will prove to the members of the Oshkosh Common Council that Butch was not the dog that bit Jacob Dallman on January 3, 2007. I believe that this is in fact a case of "Mistaken Identity." The Incident Report made by the Oshkosh Police Department following the dog bite states Jacob was bit by the dog between approximately 2:00 — 3:00 pm on January 3, 2010. The Report also indicated that I was gone for the day, which I was, but my roommate Mr. Ed Ratsman, stated he had let Butch out during the evening, and not at the time of the bite. Mr. Ratsman insisted he chained Butch to the "Cable Runner" located between the house and garage in the back yard. My second area of concern is the fact that I never got a chance to view any of the pictures taken of the bite - marks, which I believe need to be taken when an animal bite is suspected. Had I had the opportunity to view the pictures, I feel the evidence shown would have exonerated Butch because he has a very distinctive bite pattern, as he is missing front teeth and part of his eye tooth. My third area of concern is that a few weeks following the incident, my girlfriend at the time and I witnessed two other dogs runnin free in our neighborhood that matched the description of Jacob Dallman on the day he was bitten. I feel that it was these dogs, and not Butch that were responsible for the injuries obtained by Jacob Dallman. I respectfully request the opportunity to go before the Oshkosh Common Council to discuss these facts before a decision is reached regarding Butch. I'm truly sorry for the injuries that were sustained by Jacob Dallman on January 3, 2010, but I feel that in a traumatic situation the 10 -12 year old boy may have mistaken my dog for one of many dogs that frequently roamed the neighborhood unleashed. Thank you for your time and consideration, and I respectfully await your decision. Sincerely � , �� Michael L. Van Dinter