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HomeMy WebLinkAboutVicious Animal Appeal-CovillCITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin -1 City Of Oshkosh — QIHKOlH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: March 4, 2011 RE: Agenda Item 11 -25 Appeal of Vicious Animal Designation — Anthony Covill BACKGROUND An Oshkosh resident, Anthony Covill, is appealing the decision of the Health Director which concluded that Mr. Covill's dog, Kit, meets the City's definition of a "vicious animal." Chapter 6 of the Municipal Code has for some time addressed procedures for handling animals that bite or otherwise injure people or animals without provocation. However, this is only the second time that the Council has been presented with such a circumstance. The first instance occurred in September 2010 and ended when the animal owner did not appear before the Council to pursue their appeal. The Council has not been presented with these before because they were dealt with more informally by the previous Health Director. Since the change in management of the Health Department, the Legal Department has been working with the Health Department to develop a standardized process for dealing with these issues. As stated in Chapter 6, animals that bite or otherwise injure on two occasions, without provocation, is considered by the City to be a vicious animal. The Code provides the animal owner with a right to be heard before the Health Director, along with the right to appeal the Health Director's final decision to the Common Council. We are providing you with a full copy of Chapter 6 for your reference. We are also providing you with a copy of the City's file for your reference. The Council has received Mr. Covill's letter requesting a review of this decision and may allow him the opportunity to address the Council with his position on this 0 Memo: Vicious Animal Appeal — Covill — Page 2 issue. However, issues he raised during his meeting with the Health Director include the following: scratches should not be treated the same as bites; the "vicious" designation should be reserved for deaths, maulings and other serious injuries; his dog was only a pup when these incidents occurred; and, many people apparently believe that his dog is nice and friendly. 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 their authority to declare an animal a "vicious animal" as defined by the Code. Mr. Covill was formally notified that the Health Director considered his dog to be a Vicious Animal. He was also notified that he did have the "opportunity to be heard" before the City took further action. Mr. Covill exercised his "opportunity to be heard." The Health Director then held an informal administrative hearing during which Mr. Covill appeared and was given a full opportunity to present information and evidence that he wished the Health Director to consider. He provided verbal information about his dog. He was not present at either of the incidents, but was allowed to talk about them. Mr. Covill's girlfriend was also present at the hearing and provided information to the Health Director. She was allowed to talk about the two incidents. Mr. Covill provided copies of letter or notes from people who like his dog, or otherwise state that they are not afraid of his dog. Mr. Covill did not provide any additional testimony or documentation in support of his claims. The Health Director reviewed the City's file, and the information provided by Mr. Covill, before providing Mr. Covill 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. Covill "appealed" the Health Director's decision to the Council, as is allowed by Section 6- 16(A)(5) of the Municipal Code. In providing legal guidance to the Council, I would start with the obvious and note that the Council is not a Court and issues before it are not Court proceedings. While we cannot compare an appeal to the Council to a proceeding before the Courts of Appeals, 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 Memo: Vicious Animal Appeal — Covill — Page 3 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. Covill and/or the Interim Health Director to address the Council. This is not required, however. Even the highly formal Courts of Appeal do not allow oral arguments and instead simply reviews the file and makes its decision based on what is on paper. After reviewing the file, and listening — if it so chooses - to Mr. Covill 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 follows 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. To the extent that the Council may disagree with the Health Director, I advise the Council to be specific in its conclusion so that the City may effectively carry out the requirements of Chapter 6 in the future. For example, the Council should identify specific injuries which it does not believe fit within the vicious animal computation. The Council should also provide guidance for those circumstances which it believes constitutes or does not constitute provocation. FISCAL IMPACT Not applicable. Memo: Vicious Animal Appeal — Covill — Page 4 RECOMMENDATION This office recommends that the Council affirm the decision of the Health Director. We believe that the information gathered strongly supports the conclusion that Mr. Covill's dog meets the Municipal Code's definition of a vicious animal. We recommend that Mr. Covill be required to either obtain a vicious dog license, or remove the dog from the City. Respectfully Submitted, Approved: Lynri A. Lorenson Mark A. Rohloff City Attorney City Manager C2� iii` ���,�..� -C� -1 r� _c,26s1�2� 0-17 CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903 -1130 City of Oshkosh — onHKCYH City Health Services Division 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903 -1130 2 " Floor, Room 201 Phone: (920) 236 -5030 http;//www.ci.oshkosh.wi.us February 22, 2011 Anthony Covill 2010 Wisconsin St., Apt. 110 Oshkosh, WI 54901 -2282 RE: Kit — Pit Bull Vicious Animal Designation by City of Oshkosh Health Director Dear Mr. Covill: I appreciated the opportunity to meet with you on February 7, 2011 to hear your viewpoints regarding the status of your pet dog, Kit. Please be assured that all of your comments were considered and compared to the information in the City's possession that I had previously reviewed. I have also reviewed the letters and comments that you left with me on February 7. My duty as it relates to your dog is to determine how the incidents on June 16, 2010 and July 6, 2010 fit within the vicious animal definitions and requirements of Chapter 6 of the Municipal Code. The Municipal Code as approved by the Common Council contains its own definition of "vicious animal." The City Code is admittedly broader in scope than those definitions you cited at our hearing. However, it is not relevant to consider whether or not the Municipal Code's use of "vicious animal" sounds "worse" than the two incidents we have been discussing. I can only review the Code as it has been approved by the Common Council. The first general requirement of the vicious animal provisions of Chapter 6 is that there must be a situation involving a bite, injury, death, damage, or an attack. I understand that you do not believe that a scratch is given the same consideration as a bite. I also understand that you believe the injuries in these two instances are minor. Regarding the reason for, and extent of, the injury, it does not matter if the injury is major or minor, or if the skin is broken because of a bite or scratch when considering the potential for rabies transmission and infections. The person receiving the bite or scratch has the same risk for disease transmission and/or infections if the skin is broken. Any incident resulting in broken skin is therefore considered an injury as referenced in the Code. 1 li Anthony Covill February 22, 2011 Page 2 The second general requirement the vicious animal provisions in of Chapter 6 is that the incident must be unprovoked. Chapter 6 includes examples where the animal would be considered to have been provoked. These circumstances include trespassing, teasing, tormenting, abusing, or assaulting the animal or the animal's owner. Incidents involving any of these circumstances are not counted towards the two unprovoked bites limitation of the City's "vicious animal" definition. The two requirements I have listed provide only a summary of the City's vicious animal definitions and requirements. I encourage you to review the actual descriptions and requirements found in Chapter 6. In addition to the issues surrounding bites versus scratches, and major versus minor injuries, people tend to have other questions about the Code's definitions and requirements for vicious animals. These questions relate to consideration for the type or age of the animal, or the fact that the animal has not had another incident for a period of time, or the fact that many other people believe the animal is well - behaved. Unfortunately, Chapter 6 of the Code does not include any exceptions related to the breed of the animal, related to young animals (puppies) or old animals, related to a particular amount of time passing after the last incident, or related to the fact that many people like your animal. Therefore, I have no basis for considering these issues in my review of your situation. 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, Kit, meets the definition of "Vicious Animal" as defined in Section 6- 1(A)(10) of the Code. A summary of my reasoning for this conclusion follow: The first incident, on June 16, 2010, was the subject of a report filed by Oshkosh Police Officer Rachel Kaye. Matthew T. Vang, a juvenile, was visiting his grandparents at your apartment complex. He was riding his bike in the common area of your apartment complex. Kit was tied up near your apartment unit. Matthew was riding his bike near Kit. Kit broke his harness, jumped up on Matthew, and scratched him on his left forearm. Matthew's skin was broken as a result of the scratch. I have no information indicating that Matthew was teasing or tormenting Kit, or that any of the other exceptions found in Chapter 6 apply to this event. I conclude that this incident was unprovoked and resulted in an injury to Matthew. The second incident, on July 6, 2010, was the subject of a report filed by Oshkosh Community Service Officer (CSO) Justin Halbach. Justin Halbach is now an Oshkosh Police Officer. On that date, Angela Ebat was walking her dog on the public sidewalk near your apartment complex. There is a disagreement about which sidewalk Ms. Ebat was using. Magen Eggers - Charles has indicated that Ms. Ebat was walking on the sidewalk adjacent to your apartment complex. Officer Halbach has indicated that he believed Ms. Ebat was walking on the sidewalk located on the other side of the street from your apartment complex. Anthony Covill February 22, 2011 Page 3 Based upon the requirements of Chapter 6, it is not necessary for me to decide which sidewalk Ms. Ebat was walking using. It is undisputed that Ms. Ebat was walking her dog on a public sidewalk. Kit was tied up near your apartment. Kit broke the leash when she saw Ms. Ebat and her dog. Kit ran some distance and approached Ms. Ebat. Ms. Ebat picked up her dog to keep Kit away from it. Kit scratched Ms. Ebat on both the right and left shins. Ms. Ebat's skin was broken as a result of the scratches by Kit. I have no information indicating that Ms. Ebat was teasing or tormenting Kit, or that any of the other exceptions found in Chapter 6 apply. I conclude that this incident was unprovoked and resulted in an injury to Angela Ebat. Based upon the designation of Kit as a "Vicious Animal," Section 6 -16 of the Municipal Code requires that you immediately obtain a Vicious Animal license, or remove Kit from the City of Oshkosh. If you remove Kit from the City, you must contact the City to discuss the documentation necessary to verify that Kit has been removed. 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 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 February 22, 2011. You 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, CI F OSHKOSH ark Ziemer Interim Deal Director MZ /dp cc: David Praska, Assistant City Attorney Anne Boyce, Public Health Sanitarian American Enterprises, LLC P.O. Box 1151 Oshkosh, Wisconsin 54903