(A) Notice of hearing.
(1) When a hearing is requested by the animal owner or custodian, Animal Services shall set a date and time for the hearing and send a notice thereof by first class mail at least five business days before the scheduled hearing date to the owner or custodian at the address set forth on his or her request for a hearing and shall notify the victim and the Chief of Police of such hearing.
(a) The hearing shall be set no more than ten business days from date of notice of hearing.
(2) Conversely, if, or after an investigation, the identified facts show that cause to conduct a potentially dangerous or vicious animal hearing has not been shown, Animal Services shall notify the animal owner or custodian to reclaim their animal from Animal Services.
(B) Conduct of hearing.
(1) The hearing shall be conducted before a person appointed as a Hearing Officer.
(2) The hearing shall be open to the public.
(3) The owner or custodian may be represented by counsel at their own discretion and cost. If Animal Services plans to be represented by counsel, such fact will be made clear to the owner or custodian upon writing regarding the time and place of the hearing. Animal Services representation by counsel does not in any way entitle the owner or custodian to be represented by counsel.
(4) The burden is on the animal owner or custodian to present evidence that the animal is not potentially dangerous or vicious.
(5) The technical rules of evidence shall not be applicable to the hearing, except that the Hearing Officer's decision may not be based wholly on hearsay evidence.
(6) The Hearing Officer may find, based upon the preponderance of the evidence, that:
(a) The animal is not potentially dangerous or vicious and should be returned to its owner or custodian;
(b) The animal is not potentially dangerous or vicious but that the attack, bite, or injury was the result of improper or negligent training, handling, or maintenance and that the license should be revoked and the animal relinquished to Animal Services;
(c) The animal is potentially dangerous or vicious but may be returned to the owner or custodian with stipulations and/or restrictions; or
(d) The animal is potentially dangerous or vicious and that it should be humanely euthanized no sooner than the fifth business day following the mailing of notice of determination.
(7) The Hearing Officer shall make other orders required or authorized by this chapter.
(8) The Hearing Officer may decide all issues for or against the owner or custodian of the animal even if the owner or custodian fails to appear at the hearing. Failure to appear at the hearing will be deemed a forfeiture of the animal.
(C) Consideration of evidence. In considering whether an animal is potentially dangerous and/or vicious, the Hearing Officer shall consider evidence including, but not limited to, the following:
(1) Any previous history of the animal attacking, biting or causing injury to a human being or other animal.
(2) The nature and extent of injuries inflicted and the number of victims involved.
(3) The location where the bite, attack or injury occurred.
(4) The presence or absence of any provocation for the bite, attack, or injury.
(5) The extent to which property has been damaged or destroyed.
(6) Whether the animal exhibits any characteristics of being trained for fighting or attacking, or other evidence to show such training or fighting.
(7) Whether the animal exhibits characteristics of aggressive or unpredictable temperament or behavior in the presence of persons or other animals.
(8) Whether the animal can be effectively trained or re-trained to change its temperament or behavior,
(9) The manner in which the animal had been maintained by its owner or custodian.
(10) Any other relevant evidence concerning the maintenance of the animal.
(11) Any other relevant evidence regarding the ability of the owner or custodian to protect the public safety in the future if the animal is permitted to remain in the city.
(D) Mitigating circumstances. In considering whether an animal is potentially dangerous and/or vicious, the Hearing Officer may hear and consider evidence of any of the following mitigating circumstances:
(1) That the injury or damage complained of was sustained by a person who was committing a willful trespass or other tort upon the premises occupied by the owner or custodian of the animal, or was teasing, tormenting, abusing, or assaulting the animal, or was committing or attempting to commit a crime.
(2) That the animal was protecting or defending a person within the immediate vicinity of the animal from an unjustified attack or assault.
(3) That the injury or damage complained of was sustained by a domestic animal which at the time of the injury or damage was teasing, tormenting, abusing, or assaulting the animal which is the subject of the hearing.
(4) The injury or damage complained of was to a domestic animal and was sustained while the animal in question was working as a hunting animal, herding animal, or predator control animal on the property of, or under the control of, its owner or custodian and the damage or injury complained of was to a species or type of domestic animal appropriate to the work of the animal.
(E) Determinations and orders—Notice—Compliance—Appeal—Finality of appeal.
(1) Within ten calendar days after the hearing is conducted, the Hearing Officer shall notify in writing Animal Services and the owner or custodian of the determination and orders issued, by first class mail or personal service at the address appearing on the request for hearing.
(2) If a determination is made by the Hearing Officer that the animal is potentially dangerous or vicious, and is returning the animal to the owner or custodian, the owner or custodian shall comply with divisions (F) and (G) of this section within 15 calendar days after the date of determination or 20 calendar days if notice of the determination is mailed to the owner or custodian by first class mail.
(3) If a determination is made by the Hearing Officer that the animal is not potentially dangerous or vicious, but that the bite, attack or injury was the result of improper or negligent training, handling or maintenance, the following may apply:
(a) The license may be revoked and reissued with reasonable terms, conditions or restrictions imposed for the training, handling or maintenance of the animal to protect the public health safety and welfare, only if it is determined that the owner or custodian is able and willing to properly train, handle or maintain the animal and a similar incident is not likely to occur in the future with proper training, handling or maintenance; or
(b) The owner or custodian is unable or unwilling to properly train, handle or maintain the animal and that a similar incident is not likely to occur in the future with proper training, handling or maintenance, the animal shall be relinquished to Animal Services.
(4) If Animal Services or the owner or custodian of the animal contests the determination, he or she may, within five business days of the receipt of the notice of determination, appeal the decision of the Hearing Officer to the Chief of Police.
(a) All sheltering fees, including the hearing request fees, shall be paid in full by the owner or custodian prior to acceptance of the appeal hearing request.
(b) Failure to pay all associated fees within five business days will result in a forfeit of the appeal and the original hearing decision shall stand.
(5) The appeal shall be heard by an Appeals Hearing Officer, appointed by the Chief of Police, other than the Hearing Officer who originally heard the petition.
(6) The Chief of Police shall give notice by first class mail to Animal Services, to the appellant or animal owner or custodian if Animal Services is the appellant, and to the victim(s), of the date, time and location of when the appeal will be heard.
(a) The notice of the appeals hearing shall be mailed within five business days with the appeals hearing set no more than ten days business days from date of mailing.
(7) The Hearing Officer hearing the appeal shall conduct a hearing de novo, but upon submission of all relevant evidence, including but not limited to Animal Control reports, transcripts, and other testimony, from the first hearing, and make its own determination as to potential danger and viciousness of the animal and make other orders authorized by this chapter, based upon evidence presented.
(8) The hearing shall be conducted in the same manner set forth in division (B) above.
(9) Judicial review of a decision made after an appeal hearing pursuant to this section shall be made pursuant to § 1094.6 of the Cal. Code of Civil Procedure where and to the extent said section may be applicable.
(a) Failure to pay sheltering fees upon receipt of such fees after ten business days will result in animal abandonment by the animal owner or custodian at which time the animal can be humanely euthanized, transferred to a rescue or other sheltering facility as set forth in Cal. Civil Code § 1834.5 and Cal. Food and Agricultural Code § 31254.
(F) Registration. Any animal which has been declared by the Hearing Officer to be potentially dangerous or vicious within the meaning of § 6.12.050, and is being returned to the owner or custodian, shall be subject to special registration requirements as follows:
(1) An owner or custodian of a potentially dangerous or vicious animal is required to pay, in addition to any licensing or license fee, an annual special registration fee (as applicable) which shall be valid and renewable concurrent with the effective dates of the licensing of the animal. Late registration is subject to a penalty fee equal to two times the annual registration fee.
(G) Keeping of a potentially dangerous or vicious animal. In addition to any other provisions provided in the except as otherwise provided decision rendered by the Hearing Officer, the keeping of an animal which has been declared potentially dangerous or vicious and returned to the animal owner or custodian by the Hearing Officer shall, at the minimum, be subject to the following provisions:
(1) The animal must at all times, when not under restraint by leash on public property, be securely confined in an enclosure under lock within a lawful fence.
(2) The animal must, at all times when kept in any part of a house or structure, be confined in such a manner that the animal cannot exit such building on its own volition.
(3) The animal must, at all times, be licensed and registered as required by this chapter and must be kept in compliance with all the regulatory provisions of this chapter in its entirety.
(4) The animal owner or custodian must notify Animal Services in writing within three calendar days if the location of the animal is to be permanently changed. An administration fee will be charged to modify the issued license.
(5) The owner or custodian must allow Animal Services to inspect the property at such time as reasonable to insure the provisions ordered by the Hearing Officer are being complied with. All costs associated with these provisions or any other or additional provisions ordered by the Hearing Officer shall be borne by the owner or custodian of the animal which has been declared to be potentially dangerous or vicious.
(H) Right to destroy. Nothing in this section shall be construed to prevent Animal Services from destroying an animal which is in the act of dangerous or vicious behavior towards any person or other animal as set forth in § 6.12.050, if such immediate destruction is reasonably necessary to protect public safety.
(Ord. 17-13, passed 12-19-2017)