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HomeMy WebLinkAboutAgenda - 12-07-2020; 12-4 - Information Item - Memo Regarding Further Regulation of Aggressive Dogs 1 ORANGE COUNTY NORTH CAROLINA ANIMAL SERVICES 1601 Eubanks Road http://orangecountync.gov/departments/animalservices phone: (919)942-7387 Chapel Hill, NC 27516 fax: (919)918-2393 November 18, 2020 To: Penny Rich, Chair, Board of County Commissioners and Bonnie Hammersley, County Manager From: Robert A. Marotto, Animal Services Director Re: Further Regulation of Aggressive Dogs Introduction Animal Services staff and the Animal Services Advisory Board have received and reviewed a request from Joseph Williams to strengthen the regulation of aggressive dogs in Orange County. After careful consideration involving the Animal Services staff attorney,there is unanimous agreement that further regulation of dogs is both unnecessary and undesirable. Before turning to Mr. Williams' concerns, I would stress that there is now a greater appreciation of legal provisions for regulating dogs that behave aggressively even when they do not bite a person or another animal. These provisions exist both in Orange County's Unified Animal Ordinance and North Carolina's General Statutes. To a greater degree than previously, Animal Control Officers and others are attentive to whether the facts of a case support enforcement and/or regulation even if an aggressive dog has not bitten someone. Concerns Mr. Williams' concerns stem from his personal experience with a neighbor's leashed dog which exhibited some aggression toward him and his own dog. His concern is that Animal Services was unable to apply dangerous dog regulations because his neighbor's dog was leashed and did not bite him or his dog. His proposed remedy is to introduce restrictions that would be applied to dogs that behaved aggressively even if their behavior didn't justify them being declared a dangerous dog. The restrictions Mr. Williams has proposed are presented in two emails (Attachment I and Attachment 11) and include the following: 1 2 1. Owners and custodians of aggressive dogs maintain a minimum distance—say 25 feet— from other pets and people. This requirement may be imposed by an Animal Control Officers on the basis of a reported incident or for"dogs recognized as being aggressive." 2. Owners and keepers of aggressive dogs be required to muzzle their dog even if the dog is not declared dangerous when a "dog recognized as being aggressive" lives in circumstances involving close contact. Critical Considerations Attachment III is a memo from the Animal Services Advisory Board Officers regarding Mr. Williams' concerns and proposal. The memo outlines in detail the reasons the Animal Services Advisory Board, the Animal Services Director and the Animal Services staff attorney do not support adding further regulations to the County's Unified Animal Ordinance. Three primary reasons may be summarized as follows: 1. Canine aggression absent a bite is already adequately addressed: It is indeed addressed both by Orange County's Ordinance and state laws for dangerous dogs. Under North Carolina's General Statues (67-4.1), there is a provision for declaring a dog potentially dangerous if there is no bite to a person: "Approached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack." An aggressive dogs that does not bite a person is also addressed by two sections of the County's Ordinance. Under the dangerous animal section (4-42 (b) (3)), an animal may be declared potentially dangerous if"it has attempted to bite a person or cause physical harm through a bite(s)to a person" without being provoked to do so. Under the public nuisance section of the Ordinance (4-45 (b) (2)), a dog may be deemed a nuisance for "[h]abitually or repeatedly, without provocation, chasing, snapping at or attacking pedestrians, bicycles, persons lawfully entering the property to provide a service, other animals being walked on a leash or vehicles even if the animal never leaves the owner's property......" 2. Additional due process requirements: Any restriction imposed on an owned animal would need to involve some checks and balances on the agent imposing the restriction. In other words, there would need to be an appeal available to the owner of the animal required to be muzzled or kept at a distance from others. Given that mechanisms already exist for addressing aggressive dogs even when they don't bite, this would be unnecessary and burdensome. 3. Further restrictions may be perceived as excessive regulations: Orange County already regulates dangers animals to a greater degree than many and quite possibly most local jurisdictions in North Carolina. It does so on the basis of the additional requirements and restrictions for these dogs contained in the County's Ordinance rather than only relying upon state law. These provisions were subject to considerable discussion during 2 3 their adoption because of public concerns about potential adverse impacts upon family pets and watch dogs. Timeline The steps taken in reviewing Mr. Williams' concerns and proposed Ordinance amendments are as follows 1. On August 30, 2020 Mr. Williams emailed his concerns to Animal Services and the Animal Services Director responded and recommended that he address his concerns to the Animal Services Advisory Board. (Attachment 1) 2. At the September 26, 2020 meeting of the Animal Services Advisory Board meeting, Mr. Williams presented his proposed ordinance amendments. He did so on the basis of an email summary he shared earlier the same day. (Attachment II) 3. The Animal Services Director reviewed Mr. Williams's concerns with the Anne Marie Tosco, the department's staff attorney, at their regular bi-weekly meeting held on September 17, 2020. He then shared the outcomes of this conversation with the Officers of the Animal Services Advisory Board. 4. The Officers addressed critical considerations in a memo to the Animal Services Advisory Board that recommended that no ordinance amendments be pursued. (Attachment III) This memo was distributed and discussed at the October 21, 2020 meeting of the Animal Services Advisory Board but could not be distributed in advance of the meeting, Accordingly, a decision on the recommendation of the Officers was deferred. 5. At its November 18, 2020 meeting, the Animal Services Advisory Board voted unanimously against making these ordinance amendments and to send this memo as part of a package to the Commissioners and County Manager. cc: Travis Myren, Deputy County Manager Anne Marie Tosco, Orange County Staff Attorney Amanda Schwoerke,JD, Chair, Animal Services Advisory Board Bryan Stuart, Ph.D. Vice-Chair, Animal Services Advisory Board 3 �} �C,/• 4 Bob Marotto From: 10SEPH WILLIAMS<kokomojo50@yahoo.com>. Sent: Friday, September 4, 2020 12:30 PM To: Bob Marotto Subject: [EXTERNAL MAIL!] Re: Animal Services Communication I will follow your recommendation. Thanks sincerely for your response. Joe Williams On Friday,September 4, 2020, 8:37:05 AM EDT, Bob Marotto<bmarotto@orangecountync.gov>wrote: Mr. Williams, I apologize for not responding sooner to your email. It's been a busy week. My recommendation is that you approach the Animal Services Advisory Board (ASAB) before you approach the Board of County Commissioners. The ASAB is a board consisting of residents appointed by our commissioners to work with staff as well as the BOCC on policy matter. The board has been very involved in amending our ordinance including creating Orange County's Unified Animal Ordinance. 1 am copying the ASAB chair and vice-chair on this email in the event you would like to address yourself directly to them about your concerns. Also, I would note that you could address the ASAB for up to three minutes simply by attending one of its upcoming virtual meetings. The next one is the evening of September 16 beginning at 6:30 p.m. The schedule, meeting agendas and other information is posted at https://www.orangecountVnc.gov/1233/Advisory-Board-Hearing-Panel-Pool Finally, I would note that Orange County's restrictions on aggressive and dangerous animals are already quite a bit stronger than those provided by state law. In my experience, one of the most important ways to apply existing regulations is to for concerned county residents to work together effectively to ensure compliance and overall public health and safety. I believe we do so generally and hope that has been your experience with Animal Services. 1 Sincerely, 5 Bob Marotto Animal Services Director Orange County, NC Cc: Amanda Schwoerke, Chair, Animal Services Advisory Board Bryan Stuatt, Vice-Chair, Animal Services Advisory Board Rachel Plast, Administrative Assistant From:JOSEPH WILLIAMS<kokomoj05O@yahoo.com> Sent: Sunday, August 30, 2020 10:46 AM To: OCAS<OCAS@orangecountync.gov> Subject: [EXTERNAL MAIL!] Re: nuisance dog complaint I am in process of creating a document for Orange County Commissioners suggesting some amendments to UNIFIED ANIMAL CONTROL ORDINANCE. I would appreciate any comments. 1.When using a choke chain that the chain be snugged and a stop such as a D-link which would reduce chances of the dog from backing out of the choke chain. 2 That owners of dogs recognized as being aggressive( pit bulls, rotweilers, dobermans, etc) be barred from approaching withing 20 feet of other owners [dogs unless granted permission. 3. Alternatively that a complaint about an aggressive dog could result in similar ban on approaching within 20-30 feet in descretion of animal control officer.This would add an additional tool that is step below the dangerous dog declaration and would increase safety without unduly burdening owners of agressive dogs, 4. In descretion of animal control officer allow a muzzle to be required without dangerous dog declaration 5. Special circumstances such as condominiums or multifamily complexes where close encounter likely be considered. 2 6,Violations of above be defined as misdemeanor assault if no injuries.to persons or pets, low level felony if person or pets injured. 6 On Wednesday,August 26, 2020, 3:50:13 PM EDT,JOSEPH WILLIAMS<kokomoi050@yahoo.com>wrote: In the pic showing the trees you may have to zoom in on the cars to visualize Thanks Joseph Williams PO Box 635 Hillsborough NC 27278 919-260-2577 Bob Marotto Subject: FW: [EXTERNAL MAIL!] Re: Re:Animal Services Communication From: JOSEPH WILLIAMS <kokomoio50@yahoo.com> Sent: Wednesday, September 16, 2020 12:33 PM To: OCAS <OCAS@orangecountync.gov>; Bob Marotto <bmarotto@orangecountync.gov> Cc: 'amanda.schwoerke@gmail.com' <amanda.schwoerkeft—gmail.com>; bryanlstuart@gmail.com; Rachel Plast <rplast@orangecountync.gov> Subject: [EXTERNAL MAIL!] Re: Animal Services Communication SAFETY CONSIDERATIONS RE UNIFIED ANIMAL CONTROL ORDINACE Currently the UNIFIED ANIMAL CONTROL ORDINACE classifies dogs as dangerous or not. In the interests of safety of the dog, owner, and the public there could be some intermediate actions which would not require declaring the dog to be dangerous. would improve safety, and provide a graduated path to better owner management or more adverse decision points. 1) When there has been a report of an aggressive dog, on a public space, trying to attack other dogs or persons then as part of the investigation a warning citation could be issued which would require the owner to attempt to maintain a space of 20 feet between their leashed dog and other dogs or persons and to retreat if necessary and issue verbal warnings to stay away from the leashed dog. Future reports of aggressive acts by the dog and or owner could result in requiring the dog to be muzzled without declaring the dog to be dangerous. 2) In addition, a part of the warning citation could be that if the leashed dog is taken into public spaces like sidewalks, or parks where is may not be possible to maintain a 20-foot space require the dog to be muzzled without declaring the dog to be dangerous. 3) Special circumstances could be defined such as the potential of the dog to cause serious injury or death to other dogs and persons; i.e. the size of the dog, breed of the dog, and degree of aggression of the dog. Also, the space where the report of aggressive behavior took place like multi-family condominiums. or apartment complexes. sidewalks, or parks. All persons should have the right to enjoy public spaces without being frightened, threatened, or intimidated by aggressive dogs and/or owners. 4) Much of this could be in the discretion of the animal control officer. When the officer investigates, they could ask the owner if the feel safer in their home or in public with a breed of dog known to be aggressive, like pit bulls, rottweilers, Dobermans etc. If the owner responds yes then they chose the breed of dog for security issues then the dog could be classified as a security dog and required to be muzzled in public spaces. In short, the dog is being used in place of a weapon for security purposes. 5) To protect the animal control officer in the event of future civil or criminal proceedings a simple chart rating the potential of the dog and owner to cause injury or death to other dogs and person. Items of rating could be the size of the dog, breed of the dog, aggressiveness of the dog, owner's willingness to maintain spacing in public spaces, or willingness to voluntarily muzzle the dog when on public spaces, ability of the owner to physically control the dog, type of leash used, past complaints of aggressive behavior by dog or dog handling by owner. 1 8 6) Choke chains infer that the dog is large enough, and aggressive enough that the owner cannot physically control the dog with strap type leash. This alone should be sufficient to require a muzzle in public spaces. Also, smart dogs or a dog just thrashing in attempt to be aggressive can lunge then back up out of a choke chain and then potentially cause injury to other dogs or owners. The ordinance could require some type of stop be applied to the choke chain to prevent it slacking up and keep it snugged against the dogs neck enough that it cannot slip over the head. A simple D-link, or snap hook, or spring hook, or clovis pin could be used to accomplish this and most are available at hardware stores. I apologize in advance if some of these issues are already incorporated in the ordinance. Due to intubation injuries to my vocal cords during recent surgery I cannot speak clearly or with adequate volume. I am requesting accommodation. Submitted By: Joseph M. Williams PO Box 635 Hillsborough, NC, 27278 Kokomoio50@yahoo.com On Friday, September 4, 2020, 8:37:05 AM EDT, Bob Marotto <bmarottoaoran. eg countync.aov>wrote: r. Williams, I apologize for not responding sooner to your email. It's been a busy week. y recommendation is that you approach the Animal Services Advisory Board (A A ) before you approach the Board of County Commissioners. The ASAB is a board consisting of residents appointed by our commissioners to work with staff as well as the BOCC on policy matter. The board has been very involved in amending our ordinance including creating Orange County's Unified Animal Ordinance. z 9 I ant copying the ASAB chair and vice-chair on this email in the event you would like to address yourself directly to them about your concerns. Also, I would note that you could address the ASAB for up to three minutes simply by attending one of its upcoming virtual meetings. The next one is the evening of September 16 beginning at : 0 p.m. The schedule, meeting agendas and other information is posted at https://www.orangecountync.gov/1233/Advisory-Board-Hearing-Panel-Pool Finally, I .would note that Orange ounty's restrictions on aggressive and dangerous animals are already quite a bit stronger than those provided by state law. In my experience, one of the most important ways to apply existing regulations is to for concerned county residents to work together effectively to ensure compliance and overall public health andsafety. I believe we do so generally and hope that has been your experience with Animal Services. Sincerely, Bob Marotto Animal Services Director Orange County, NC c: Amanda Schwoerke, Chair, Animal Services Advisory Board Bryan Stuart, Vice-Chair, Animal Services Advisory Board Rachel Plast, Administrative Assistant From: JOSEPH WILLIAMS <kokomoio500)_yahoo.com> Seat: Sunday, August 30, 2020 10:46 AM To: OCAS <OCAS@orangecountync.gov> Subject: [EXTERNAL MAIL!] Re: nuisance dog complaint 3 10 I am in process of creating a document for Orange County Commissioners suggesting some amendments to UNIFIED ANIMAL CONTROL ORDINANCE. I would appreciate any comments. 1.When using a choke chain that the chain be snugged and a stop such as a D-link which would reduce chances of the dog from backing out of the choke chain. 2 That owners of dogs recognized as being aggressive ( pit bulls, rotweilers, dobermans, etc) be barred from approaching withing 20 feet of other owners/dogs unless granted permission. 3. Alternatively that a complaint about an aggressive dog could result in similar ban on approaching within 20-30 feet in descretion of animal control officer. This would add an additional tool that is step below the dangerous dog declaration and would increase safety without unduly burdening owners of agressive dogs. 4. In descretion of animal control officer allow a muzzle to be required without dangerous dog declaration 5. Special circumstances such as condominiums or multifamily complexes where close encounter likely be considered. 6. Violations of above be defined as misdemeanor assault if no injuries.to persons or pets, low level felony if person or pets injured . On Wednesday, August 26, 2020, 3:50:13 PM EDT, JOSEPH WILLIAMS <kokomoio50(a)_yahoo.com>wrote: In the pic showing the trees you may have to zoom in on the cars to visualize Thanks Joseph Williams PO Box 635 Hillsborough NC 27278 919-260-2577 4 To: Animal Services Advisory Board (ASAB) From: Amanda Schwoerke, Chair; Bryan Stuart, Vice-Chair; Casey Ferrell, Secretary Re: Joseph Williams' Proposal to Amend the Orange County Unified Animal Control Ordinance Date: October 21, 2020 At our last meeting, on September 16, 2020, the ASAB heard Joseph Williams' proposal to amend the Orange County Unified Animal Control Ordinance to make it easier to designate animals as dangerous; to mandate additional safety measures for dangerous animals; and to increase the discretion of animal control officers to designate animals. After discussing Mr. Williams' proposal with Animal Services and attorney Anne Marie Tosco, we recommend not taking any action on Mr. Williams' proposal. Unfortunately, Mr. Williams has had interactions with dogs in his residence that frightened him. However,Animal Services' decision not to mandate protective measures like muzzling plainly depended on the circumstances of the particular case(s), rather than on any limitations of the Unified Animal Control Ordinance. In fact, the relevant laws already accomplish most of what Mr. Williams proposes. Contrary to Mr. Williams' belief, neither state law nor the Unified Animal Control Ordinance requires direct contact between an animal and a person to designate the animal as dangerous or potentially dangerous. Chapter 67,Article IA, of the NC General Statutes defines as "dangerous," in part, any dog whom Animal Services has determined to have"approached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack."Id. § 67-4.1(a)(1)(a)(2) & (2)(c). The Unified Animal Control Ordinance additionally defines as"dangerous" any animal, "on or off the premises of its owner or keeper" who "without provocation has attempted to bite a person or cause physical harm through bite(s) to a person." Id. 4-42(b)(4). Animal Services has designated numerous dogs as dangerous or potentially dangerous on the basis of these provisions. The result of such designations is to prohibit a dog's owner from leaving the dog unattended on the owner's property unless securely enclosed, or from taking the dog off of the owner's property unless leashed and muzzled. Id. § 4-42(d);NC Gen. Stat. § 67-4.2(a). Moreover, the Unified Animal Control Ordinance prohibits permitting an animal to create a public nuisance, or maintaining a public nuisance created by an animal. The ordinance essentially defines as a"public nuisance" [h]abitually or repeatedly,without provocation, chasing, snapping at or attacking pedestrians, bicycles,persons lawfully entering the property to provide a service, 1 12 other animals being walked on a leash, or vehicles even if the animal never leaves the owner's property, except that this provision shall not apply if such animal is restrained by a pen, fence, or other secure enclosure. . . . Id. § 4-45(b)(2). If owners fail to abate a public nuisance, Animal Services can impound the animal or order the animal removed from the county. Id. § 4-45(c)(2)-(3). Animal Services has taken both actions in the past. Taken together, the dangerous-animal and public-nuisance laws address most of Mr. Williams' concerns. A further centerpiece of Mr. Williams' proposal is granting animal control officers more discretion to designate a dog as dangerous and/or to order protective measures like muzzling and close restraint. But this is a transparent violation of the constitutional guaranties of due process. See U.S. Const. amends. V&XIV, § 1;N.C. Const. Art. 1, § 17. While the issue does not appear to have arisen in North Carolina, courts in several other states have held that due process requires specific findings to declare a dog as dangerous, as well as requiring an opportunity for hearing and appeal. E.g.,Sawh v. City of Lino Lakes, 823 N.W.2d 627 (Minn. 2012); State v. Cowan, 814 N.E.2d 846 (Ohio 2004). Animal Services clearly has a responsibility to ensure the public safety, but it must balance this responsibility with its obligations towards animal owners and their companion animals. Orange County already has some of the strictest dangerous-animal regulations in the state. In defining potentially dangerous and dangerous dogs, the regulations go beyond the criteria used in state law—upon which most local jurisdictions solely rely. This has not been popular with everyone: Animal Services and the ASAB encountered some resistance when proposing the current language in the Unified Animal Control Ordinance, and have heard from residents who believe that the ordinance already goes too far in regulating family dogs and watch dogs. Mr. Williams' proposal would upset the careful balance between competing interests that the Unified Animal Control Ordinance represents. For these reasons, we recommend that the ASAB take no action on Mr. Williams' proposal. 2