§ 5-4.204. Vicious Dog Abatement Hearing Procedure.

Purpose and Intent. Within the City of Modesto there are vicious dogs which constitute a public nuisance which should be abated. The provisions of this section provide an administrative procedure by which dogs found to be a nuisance may be abated following a hearing at which oral and documentary evidence is considered. This section is intended to supplement rather than supplant any other remedy available either under state law or the Modesto Municipal Code.

(a)

Vicious Dog Defined. Any dog, except one assisting a peace officer engaged in law enforcement duties, which demonstrates any of the following behavior, is presumed vicious:

(1)

An attack which requires a defensive action by any person to prevent bodily injury or property damage when such person is conducting himself or herself peacefully and lawfully.

(2)

An attack which results in property damage or in an injury to a person when such a person is conducting himself or herself peacefully and lawfully.

(3)

An attack on another animal, livestock, or poultry which occurs on property other than that of the owner of the attacking dog.

(4)

Any behavior which constitutes a threat of bodily harm to a person when such person is conducting himself or herself peacefully and lawfully.

For the purposes of this section, a person is conducting himself or herself peacefully and lawfully upon the private property of an owner or possessor of the dog when he or she is on such property in the performance of any duty imposed on such person by state or local law or by the laws of [or] postal regulations of the United States, or when he or she is on such property upon invitation, either expressed or implied.

(b)

Investigation. Any incident reported to the Modesto Police Department concerning a vicious dog may be investigated by the Police Chief, or his designee. The investigation may consist of reports of officers made at the time of the incident, or follow-up reports. If, based on the investigation, the Police Chief concludes that there is probable cause to believe that the dog is vicious, he shall so certify in writing within ten (10) working days following completion of the investigation to the person owning or controlling the dog. Thereafter a hearing shall be held pursuant to subsections (d), (e) and (f) below.

(c)

Confinement of Dog. If the Police Chief certifies that there is probable cause to believe that a dog is vicious and a risk to public safety, he may direct any animal control officer, police officer or other authorized employee of the City to enter the yard of any private residence or business in order to seize any such dog, whether running at large or not, and confine said dog at an appropriate animal shelter pending the decision of the City Manager following the hearing provided for in subsections (d), (e) and (f) below. The cost of said confinement shall be paid by the person owning or controlling such dog. The dog shall not be released until such costs have been paid in full.

(d)

Hearing—Schedule. A hearing date shall be set not later than ten (10) working days from the date of certification. The City Manager shall mail or otherwise deliver to the owner or person controlling the dog and other interested persons, including, but not necessarily limited to, all properties within three hundred (300) feet of the address of the owner or person controlling the dog, at least five (5) working days prior to the date set for hearing, a notice in substantially the following form:

NOTICE OF HEARING REGARDING VICIOUS DOG

TO:_______(name)_______;
_______(address)_______

NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 5-4.204 of the Modesto Municipal Code, the Police Chief has certified that there is probable cause to believe a dog owned or controlled by you, a  (breed)  , is vicious.

FURTHER NOTICE IS HEREBY GIVEN that on _______the day of _______, 19___, at the hour of ___ o'clock, in the offices of the City Manager, City Hall, 801 11th Street, Modesto, California, the report of the Police Chief will be considered by the City Manager or an appointed hearing officer with such other oral and documentary evidence bearing upon the question of whether your dog is vicious. You may appear and may present evidence at the hearing. You may also be represented by an attorney. If you fail to appear without giving notice to the City Manager, the matter may proceed in your absence and such absence may be further considered a waiver of your right to present evidence and object to any decision made.

In the event your dog is found to be vicious, it will be ordered to be controlled, confined, destroyed, restricted, or otherwise abated as a public nuisance and any impoundment cost incurred shall be assessed against you.

A copy of this notice has been sent to property owners within three hundred (300) feet of your address.

Dated: ___________
___________
City Manager

(e)

Hearing—Procedure. At the hearing, which may be continued from time to time, both oral and documentary evidence may be taken from any interested person and considered in determining whether the dog is vicious. Any owner who fails to appear after notice as provided herein was given, without obtaining a continuance from the City Manager or an appointed hearing officer, may be deemed to have waived any right to introduce evidence or object to an order made by the City Manager. If the hearing is conducted by a hearing officer other than the City Manager, the hearing officer shall submit a report to the City Manager summarizing the evidence and making a recommendation as to disposition.

(f)

Hearing—Findings: Public Nuisance. If, based upon the hearing, and the report of the hearing officer, if any, the City Manager upholds the findings of the Police Chief that the dog is vicious, the City Manager shall so specify in writing together with the reasons therefor. Any dog found to be vicious is hereby deemed a public nuisance and shall be, pursuant to the order of the City Manager, humanely destroyed, be removed from the City, or the nuisance otherwise abated by appropriate order of the City Manager including, but not limited to, confinement, fencing, muzzling or leashing. The decision of the City Manager shall be made within ten (10) working days after the conclusion of the hearing and shall be final. A copy of the decision shall be sent by certified mail or personally served upon the person owning or controlling the dog.

(g)

Appeal From the Decision of the City Manager. The decision of the City Manager shall inform the person owning or controlling the dog that any appeal of the City Manager's decision must be filed with a court of competent jurisdiction pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6.

(h)

Cost of Impoundment. If the City Manager finds the dog is vicious, the costs of impoundment incurred by the City, including any abatement period, shall be paid by the owner or the person controlling the dog and shall become a lien against the real property upon which the dog was kept and maintained until said lien is paid. If the order includes the release of a dog found to be vicious to the owner or person controlling it, the dog shall not be released until such costs have been paid in full. If such costs have not been paid within thirty (30) calendar days after the date of mailing or delivery of the order, the City Manager may dispose of the dog in any manner provided by law, or return the dog and pursue alternative collection procedures. The total amount of the impoundment charges may be entered on the next fiscal year tax roll as a lien against the property upon which the dog was maintained and shall be subject to the same penalties as are provided for other delinquent taxes, liens or assessments of the City, or an action may be brought in the name of the City to recover the costs of impoundment.

(i)

Criminal Sanctions. The first violation of any order issued pursuant to subsection (f) above shall constitute an infraction. The second and any further violations within twenty-four (24) months of the order shall be misdemeanors.

(Added by Ord. 2766-C.S., § 1, effective 7-4-91; Ord. No. 3586-C.S., § 1, effective 5-9-13)