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HomeMy WebLinkAboutAppeal of Vicious Animal-LiskaCITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 903 -1130 City of Oshkosh - OfHKOfH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: March 4, 2011 RE: Agenda Item 11 -38 Appeal of Vicious Animal Designation — Stephanie Liska BACKGROUND An Oshkosh resident, Stephanie Liska, is appealing the decision of the Health Director which concluded that Ms. Liska's dog, Ringer, 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, are 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 Ms. Liska's letter requesting review of this decision and may allow her the opportunity to address the Council with her position on this .• •.. Memo: Vicious Animal Appeal — Liska — Page 2 issue. However, issues she raised during her meeting with the Health Director include the following: one bite was the result of a neighborhood child surprising Ringer while playing Frisbee with the dog; and, the second incident involved a scratch of another neighborhood child which Ms. Liska states she did not witness and does not believe that it actually occurred. 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. Ms. Liska was formally notified that the Health Director considered her dog to be a Vicious Animal. She was also notified that she did have the "opportunity to be heard" before the City took further action. Ms. Liska exercised her "opportunity to be heard." The Health Director then held an informal administrative hearing during which Ms. Liska appeared and was given a full opportunity to present information and evidence that she wished the Health Director to consider. She provided verbal information about her dog. She discussed the two incidents. Ms. Liska's boyfriend was also present at the hearing and provided information to the Health Director. He was allowed to talk about the two incidents. The Health Director reviewed the City's file, and the information provided by Ms. Liska before providing Ms. Liska with a written determination finding that her dog meets the definition of Vicious Animal and, as a result, she must either obtain a vicious animal license or remove the animal from the City. Ms. Liska "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 obligation to provide an "opportunity to be heard." Therefore, the Health Director holds a hearing, and the Council reviews the Health Director's decision. Memo: Vicious Animal Appeal — Liska — Page 3 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 Ms. Liska and /or the Interim Health Director to address the Council. This is not required, however. Even the highly formal Court of Appeal usually does 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 Ms. Liska 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 — Liska — 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 Ms. Liska's dog meets the Municipal Code's definition of a vicious animal. We recommend that Ms. Liska be required to either obtain a vicious dog license, or remove the dog from the City. Respectfully Submitted, Approved: Lynn. Lorenson Mark A. Rohloff City Attorney City Manager MAR 0 2 2011 To whom this may concern, ! Stephanie Uoka owner of Ringer (Australian Cattle Dog) would like to appeal the Oshkosh Common Council about my dog's vicious status. I would appreciate a chance to be heard. I look forward to hearing from you. I can be reached at 920-250-1972. Stephanie Liska CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903 -1130 City of Oshkosh — OlHKQlH City Health Services Division 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903 -1130 2nd Floor, Room 201 Phone: (920) 236 -5030 http;//www.ci.oshkosh.wi.us February 22, 2011 Stephanie M. Liska. 3405 Logan Drive, Apt. 3 Oshkosh, WI 54901 -8202 RE: Ringer — Australian Cattle Dog Vicious Animal Designation by City of Oshkosh Health Director Dear Ms. Liska: . I appreciated the opportunity to meet with you on February 7, 2011, to hear your viewpoints regarding the status of your pet, Ringer. Please be assured that all of your comments were considered and compared to the information in the City's possession that I previously reviewed. My duty as it relates to your dog is to determine how the incidents on June 3, 2010 and December 31, 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 other definitions you may run across in dictionaries and other sources. Therefore, 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 the vicious animal provisions of Chapter 6 is that there must be a situation involving a bite, injury, death, damage, or an attack. The two main questions people seem to have about this requirement are the fact that a bite or scratch can meet this requirement by simply breaking the victim's skin even though it may appear minor to some people, and the fact that a scratch is given the same consideration as a bite as long as it breaks skin. a Stephanie M. Liska February 22, 2011 Page 2 Regarding the 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 potential rabies transmission and infections. A 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 an injury. The second requirement of the vicious animal provisions 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 bite limitation of the City's "vicious animal" definition. The two requirements I have listed provided 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 that 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 other people like your animal. Therefore, I have no basis for considering these issues in my analysis. 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, Ringer, 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 3, 2010, was the subject of a report filed by Oshkosh Community Service Officer (CSO) Bryan Hahn. It appears undisputed that Cesar C. Lopez, a juvenile, was playing with a Frisbee in the common area of your apartment complex and that Ringer was tied up near your apartment. Beyond these undisputed facts, there are some minor disagreements about the events surrounding the bite. CSO Hahn's report alleges that you stated that Cesar was simply playing with a Frisbee and was bitten as he was running past Ringer to retrieve the Frisbee. At our meeting, you indicated that Cesar was actually playing Frisbee with Ringer. You also indicated that Cesar's brother was nearby, but they were not playing together. You indicated that Stephanie M. Liska February 22, 2011 Page 3 Ringer was watching Cesar's brother even though Ringer was playing with Cesar. You indicated that Ringer was surprised by Cesar's retrieval of the Frisbee even though you believed they were playing together. Finally, you stated that Cesar threw the Frisbee toward Ringer, and was bitten in the ankle when he retrieved it and then ran away from Ringer. Cesar's skin was broken as a result of the bite. I have no information indicating that Cesar was teasing or tormenting Ringer, or that any of the other bite - related exceptions found in Chapter 6 apply to this event. While I have questions about your description of events, these details ultimately do not matter because there have been no indications from you or from CSO Hahn's report indicating that Cesar provoked Ringer. It is undisputed that Ringer bit Cesar. Neither you nor CSO Hahn's report indicate any actions by Cesar indicate that he provoked Ringer prior to the bite. I conclude that the June 3, 2010 incident was unprovoked and resulted in an injury to Cesar. The second incident, on December 31, 2010, was the subject of a report filed by Oshkosh Police Officer Ian Seaholm. On that date, the Incident Report states that Jazmine E. Coffin, a juvenile, was attempting to pet Ringer when she was bitten by Ringer. The Report states that you were not with Ringer when the bite occurred. You stated on February 7, 2011 that Jazmine and her babysitter, Jelrice R. Thomas, asked to pet Ringer. You stated that you allowed Jelrice to pet Ringer. You also stated that while Jelrice did pet Ringer, Jazmine did not pet Ringer and you did not believe that she was even close to Ringer. You stated that you never saw Ringer injure Jazmine. You also stated that you were present the entire time Ringer was outside. You stated that your boyfriend was also nearby, smoking. Finally, you stated that even though you were present the whole time, you did not witness anything happening to Jazmine. I find Officer Seaholm's identification of a dog bite on Jazmine to be credible. You acknowledge that Jazmine was with her babysitter and that both were in the vicinity of Ringer. Jazmine's skin was broken as a result of the bite. I have no information indicating that Jazmine was teasing or tormenting Ringer, or that any of the other Chapter 6 exceptions apply to this incident. I conclude that the December 31, 2010, incident was unprovoked and resulted in an injury to Jazmine. Based upon the designation of Ringer as a "Vicious Animal," Section 6 -16 of the Municipal Code requires that you immediately obtain a Vicious Animal license, or remove Ringer from the City of Oshkosh. If you remove Ringer from the City, you must contact the City to discuss the documentation necessary to verify Ringer 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 Stephanie M. Liska February 22, 2011 Page 4 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 OF OSHKOSH t: ark Zi er Interim Health Director MZ /dp cc: David Praska, Assistant City Attorney Anne Boyce, Public Health Sanitarian JF Oshkosh, LLC S74 W17065 Janesville Rd Unit 301 Muskego, Wisconsin 53150