(1) If the owner is known, and unless the owner signs a statement permanently relinquishing ownership of the animal to the city enforcement agent, the owner shall be provided with a written notice containing, at a minimum, the following information:
a. Within ten (10) days of the owner's receipt of the notice, the city intends to file a written request with the magistrate or special magistrate for a hearing to determine if the animal was in distress or danger or is vicious, destructive or dangerous, and to determine the appropriate remedy, including possible forfeiture.
b. The owner's right to present witnesses and be represented by an attorney at the hearing.
c. The following statement, printed in bold twelve (12) point type or larger capital letters:
YOUR ANIMAL MAY BE HUMANELY DESTROYED IF IT IS FORFEITED TO THE CITY ENFORCEMENT AGENT.
d. The bond amount required pursuant to section 4-11(h), along with a statement that if the bond is not posted within ten (10) days of receipt of the notice, the animal shall be deemed forfeited to the city enforcement agent to be placed by adoption in a suitable home or humanely destroyed.
e. The owner's right to receive disclosure of witnesses and evidence and the owner's obligation to disclose witnesses and evidence as provided in section 4-11(a)(4) and (5).
(2) If the owner's whereabouts cannot be determined, the notice shall be mailed to the owner at the owner's last-known address by registered or certified mail, return receipt requested.
(3) If the city files a written request for a hearing before the magistrate or special magistrate the hearing shall be set for a date not less than fifteen (15) nor more than twenty (20) working days after the request has been filed with Tucson City Court. The request for hearing shall contain either a written description of the legal basis for the hearing or citation to the specific code section and subsection that provides the legal basis for the hearing.
(4) As required disclosure to the other party, each party shall:
a. provide the name of any victim and the names, addresses and telephone numbers of any other witnesses the party plans to call at the hearing with a fair description of the substance of each witness' expected testimony, and
b. make available for examination and reproduction any exhibits and written or recorded statements of any witness which have been prepared and may be offered at the hearing.
(5) The disclosure required by paragraph (4) above shall be made by the city not later than ten (10) days prior to the hearing and by the animal owner not later than five (5) days prior to the hearing. If a party fails to make disclosure as required by this section, the other party shall have the right, if requested, to a recess or continuance to permit examination of the evidence. At the court's discretion, undisclosed evidence or witnesses may be excluded from the hearing.
(b) If the owner fails to appear at the hearing, the magistrate or special magistrate shall order the animal forfeited to the city enforcement agent to be placed by adoption in a suitable home or humanely destroyed.
(c) At the hearing, the magistrate or special magistrate shall order the animal to be forfeited to the city enforcement agent to be placed by adoption in a suitable home or humanely destroyed if the magistrate or special magistrate finds from a preponderance of the evidence either:
(1) That an animal was in distress caused by mistreatment, tie-out, exposure to the elements, extremes of temperature, lack of adequate ventilation or drainage, lack of sanitation, deprivation of proper food or potable water, restraint, restriction of movement, confinement, lack of sufficient exercise space, constrictive gear, injury, illness, physical impairment or parasites; or
(2) That the well-being of the animal was threatened by a dangerous condition or circumstance; and either:
(3) That the distress of the animal or dangerous condition or circumstance was caused or allowed to be caused by the willful act or omission or negligence of the owner; or
(4) That it is likely the animal would be in distress from any cause, or its well being would be threatened by any dangerous condition or circumstance if the owner retains ownership of the animal.
(d) An animal is deemed to be in distress if it is on a tie-out.
(e) The hearing shall be conducted pursuant to the City of Tucson Local Rules of Practice and Procedure in City Court Civil Proceedings, except that the more specific requirements of this section shall apply in the case of conflicting provisions.
(f) At the hearing, if the magistrate or special magistrate finds by clear and convincing evidence that an animal is dangerous or vicious or destructive, or is a danger to the safety of any person or other animal, then the magistrate or special magistrate shall order the owner to do one (1) or more of the following:
(1) That the animal shall be spayed or neutered by a licensed veterinarian at the owner's expense and that the owner of the animal shall comply with the provisions of sections 4-13(e), (f) and (g); or
(2) That the animal be banished from the city limits after first being spayed or neutered, microchipped and tattooed by a licensed veterinarian at the owner's expense; the animal may be forfeited to the city enforcement agent or the owner shall provide a certificate of spaying or neutering, microchipping and tattooing from a licensed veterinarian to the city enforcement agent within the time given by the court to ensure the humane destruction of the animal or the spaying or neutering, microchipping and tattooing of the animal before banishment; or
(3) That the animal be humanely destroyed.
(g) Use of the civil procedures and remedies provided for in this chapter shall neither require nor preclude other enforcement action on the same facts, including a criminal prosecution of the owner. The civil procedures and remedies provided for in this chapter are remedial and not punitive, and are not precluded by an acquittal or conviction in a criminal proceeding. This section shall not be construed as precluding the destruction of any animal if destruction is otherwise authorized by law, nor shall anything in this section be construed as precluding the spaying or neutering of any animal. If any provision of this section is in conflict with any other provisions of this Code, the provisions of this section shall be controlling.
(h) If an animal is impounded pursuant to this section, the owner must post twenty (20) days of impoundment fees in advance as a bond to defray some of the costs of boarding, impoundment and any veterinary care needed. This sum shall be listed as the bond amount on the notice provided to the owner pursuant to section 4-11(a)(1)(d). If the bond is not posted within ten (10) days of receipt of the notice, the animal shall be deemed forfeited to the city enforcement agent to be placed by adoption in a suitable home or humanely destroyed.
(i) A defendant in a criminal proceeding who testifies at a hearing held pursuant to this section does not, by so testifying, waive the right to remain silent during a trial in the criminal proceeding; and if a defendant in a criminal proceeding does testify at the hearing, neither this fact nor the defendant's testimony at the hearing shall be mentioned at the trial in the criminal proceeding unless the defendant testifies at the trial in the criminal proceeding concerning the same matters.
(j) After a hearing conducted under this section, the magistrate or special limited magistrate shall issue an order that includes written findings of fact and conclusions of law.
(k) Appeal by either party of the decision of the magistrate or special magistrate shall be by way of special action to the superior court on the record of the hearing. If either party claims the record to be incomplete or lost, and the magistrate or special magistrate who conducted the hearing so certifies, a new hearing shall be conducted before that magistrate or special magistrate. The owner must post a bond equivalent to sixty (60) days of impoundment costs in order to perfect the owner's appeal. Notice of the amount due shall be given to the owner by the magistrate or special magistrate at the time of the order to show cause hearing if forfeiture is ordered. The appealing party shall bear the cost of preparing the record of the hearing on appeal. No appeal shall be taken later than ten (10) days after the decision.
(l) Unless good cause is shown, the owner shall be liable for all veterinary, impound and board fees resulting from the animal's impoundment until a final decision by the magistrate or special magistrate including the pendency of an appeal. The owner shall not be responsible for any fees if the owner prevails at the hearing or ultimately on appeal.
(Ord. No. 6044, § 1, 6-25-84; Ord. No. 6197, § 1, 3-11-85; Ord. No. 8996, § 5, 12-8-97; Ord. No. 9804, § 1, 1-13-03; Ord. No. 10206, § 2, 10-4-05)