HomeMy WebLinkAbout18A - HEARING OFCR RPT
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
CLERK OF COUNCIL USE ONLY:
AUGUST 18, 2008
TITLE:
HEARING OFFICER'S REPORT -
RECOMMENDATION
APPROVED
D As Recommended
D As Amended
D Ordinance on 151 Reading
D Ordinance on 2nd Reading
D Implementing Resolution
D Set Public Hearing For
...
(lJtJ(2,
CITY MANAGER
CONTINUED TO
FILE NUMBER
RECOMMENDED ACTION
Adopt hearing officer's decision in its entirety which recommends the
denial of an appeal of the Santa Ana Animal Control Officer's
declaration of a vicious dog pursuant to Santa Ana Municipal Code 55-
72.
DISCUSSION
On July 10, 2008, Daniel Miller's appeal of a determination by the
Santa Ana Animal Control Officer of a vicious dog was received in the
Clerk's Office.
The Santa Ana Municipal Code assigns responsibility to the Clerk of
the Council for setting the appeal hearing, giving proper notice,
and following through wi th subsequent procedures. The hearing on
this matter was conducted on May 14, 2008, and the report of the
hearing officer was filed with the Clerk of the Council as required.
Pursuant to Chapter 3-10 of the Santa Ana Municipal Code, the City
Council may adopt or reject the proposed decision in its entirety,
or may modify the proposed decision. Staff recommends adoption of
the hearing officer's report as presented.
FISCAL IMPACT
The cost of the hearing procedure was $4,675.00.
available in 11-021-6291.
Funds were
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Hearing Officer's Report
August 18, 2008
Page 2
/A
------"C...) t'J$t-G~
patricia E. Healy
Clerk of the Council
APPROVED AS TO FUNDS AND ACCOUNTS:
~(!~
~Francisco Gutierrez
Executive Director
Finance & Management Services Agency
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13 City of Santa Ana,
HON. JACK K. MANDEL (RET.)
JAMS
500 N. State College Blvd.
Suite 600
Orange, CA 92868
Telephone: (714) 939-1300
Fax: (714) 939-8710
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE
Daniel Miller,
JAMS Ref. No. 1200040532
Plaintiff
and
AMENDED APPEAL FROM A
DETERMINATION BY SANTA ANA
ANI~CONTROLO~CEROFA
VICIOUS ANIMAL
Defendant
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FACTS LEADING TO TmS HEARING:
On November 17, 2007 in the early morning Daniel Miller was walking his dog, a mature
Rottweiller, named BEAR, of approximately 11 Olbs.
Contact was made with a 100b ClllHUAIlliA, named Cookie, the property of Nora
Sergent, a widow.
Both Mr. Miller and Mrs. Sergent reside in 2nd floor condos in the same complex.
There had been an earlier altercation between the same two dogs in 2003.
In this instance the Rottweiller killed the CHIHUAHUA.
The facts as presented by the two pet owners dramatically differ and conflict. Under no
interpretation could the diverging facts be construed into the same scenario.
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1 While reasonable people may hear and see the same thing differently, in this instance Mr.
2 Miller is trying to save the life ofhis "closest friend" "BEAR", while Mrs. Sergent is grieving th
3 death, and dealing with the killer, of her "companion", "Cookie".
4 Santa Ana Police Department Animal Services Officer Santra Howey, investigated the
5 case and interviewed the only two witnesses, Mr. Miller and Mrs. Sergent, each admittedly with
6 bias. After careful review of the conflicting statements the investigating officer came to the
7 conclusion that classified "BEAR", the Rottweiler, as a "vicious dog".
8 First Issue:
9 Was there a prior hearing by a neutral from St. Vincent DePaul Society where the issues
10 were heard and determined thus making this hearing moot as "res adjudicate"?
11 Argument by Mr. Miller based upon logic and confusion of S.A.P .D. and their dropping 0
12 some charges.
13 The City Attorney rebutted, saying that Municipal Code procedure requires an Appeal of
14 the Animal Control Officer's determination that in fact was filed by Miller and his then counsel.
15 The court: A hearing results in a written opinion and decision. None has been provided b
16 Miller. Santa Ana City Attorney states that none exists as the "hearing" was abandoned before it
17 began and not in compliance with Santa Ana Municipal Code regulations.
18 Finding: No such alleged hearing took place and this. "Appeal" tribunal is free to act, hold
19 a hearing and ultimately rule and is not impeded by any "res adjudicate" determination.
20 Second Issue:
21 Is Bear the Rottweiler a vicious animal consistent with Santa Ana Municipal Code?
22 Daniel Miller, angrily, erratically, aggressively, attacked the City of Santa Ana Police and
23 Animal Control Investigator as well as Mrs. Sergent, and her former, now deceased,
24 CHllIUAHUA. His position was that Bear was on an unbreakable leash, that he always walked
25 the Rottweiler on the specially designed unbreakable leash, that Cookie, the CHllIUAHUA
26 attacked him; that this dog was aggressive and always attacked him and his dog, while circling
27 and remaining just out of reach; that he Miller slipped on oil in the car port and that the
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1 ClllHUAHUA attacked his face; that only then, did the disinterested and passive BEAR came to
2 his rescue.
3 NORA SERGENT: With tears and great Pathos(?), Bear is the bully of the neighborhood
4 Everyone fears the aggressive vicious Rottweiler, particularly this little old Hispanic lady and her
5 now dead 100b pet; that she was out on her deck at 7 :30 AM experiencing the morning while
6 Cookie did "his business" on the flowers at the second story level; that Bear broke free (he was
7 on a red leash, not the indestructible cable leash) rushed up the stairs and broke the back of her
8 little dog with one bite returning down the stairs with the victim in his mouth.
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10 Daniel Miller submits approximately 30 written letters attesting to the Rottweiler having
11 gentle and loving disposition and not being a danger to anyone or anything.
12 Nora Sergent submits some 75 signatures on a petition calling for the removal of Bear the
13 Rottweiler as a vicious attack dog and killer (and a community nuisance).
14 Discussion:
15 Daniel Miller testifies that the CHIIDJAHUA bit him on hands, arm, and face. Santa
16 Ana Police Officers testifY that wounds were from a bigger dog. Miller rebuts that a Rottweiler
17 would leave a tearing wound not a puncture wound and these were puncture wounds.
18 Each party had their respective conflicting theories as to why blood stains occurred in
19 various places. Conflicting testimony as to the leash used that morning.
20 Testimony conflicted as to whether the attack took place in carport or up the stairs toward
21 Sergent's second floor condo. Also testimony conflicted as to which dog attacked first.
22 Decision:
23 Based upon Santa Ana Municipal Code ~5-72(b) "The burden of proof shall be on the
24 animal control officer to show by a preponderance of evidence that the dog should be declared
25 vicious."
26 Based on all the facts, Mrs. Sergent's version is the more believable account as to what
27 transpired, and thus the preponderance of evidence is with the City of Santa Ana.
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Mrs. Sergent's CHIHUAHUA is dead. Daniel Miller's Rottweiler is a vicious dog
pursuant to the Santa Ana Municipal Code.
The Appeal is denied.
k~
J k K. Mandel
earing Officer
Judge of the Superior Court (Ret.)
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JAMS REF. #:
CASE NAME:
PROOF OF SERVICE
1200040532
Miller. Daniel vs. Citv of Santa Ana
I, Gina Monteiro, am employed in the County of Orange, State of California. I am over
the age of 18 and not a party to the within action. My business address is JAMS, Inc., 500 N.
State College Blvd., Suite 600, Orange, California, 92868.
On July 10, 2008, I served the attached AMENDED APPEAL FROM A
DETERMINATION BY SANTA ANA ANIMAL CONTROL OFFICER OF A VICIOUS
ANIMAL on the interested parties in the within action by the method described below,
addressed as set forth on the attached page:
IX] BYU.S. MAIL
[ ] BY U.S. MAIL
[certified]
[]BYFAX
~] BY EMAIL
I deposited true copies of the document described above enclosed
in a sealed envelope in the mail at Orange, California, with
postage thereon fully prepaid.
I deposited true copies of the document described
above enclosed in a sealed envelope by certified mail at Orange,
California, with postage thereon fully prepaid.
I caused such documents to be faxed to the above-mentioned
address( es).
I caused such documents to be emaiIed to the above-mentioned
address ( es) email.
I declare under penalty of perjury under the laws .of the State of California that the
foregoing is true and correct. Executed on July 10,2008 at Orange, California.
ufiu\.tL;~j-lAAD
Gina MonteIro
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SERVICE LIST
JAMS REF. #: 1200040532
CASE NAME: Miller. Daniel vs. City of Santa Ana
Ryan Hodge Esq.
City of Santa Ana
20 Civic Center Plaza M-29
PO Box 1988 M-29
Santa Ana, CA 92702
Tel: 714-647-6520 - ~t+15~0l
Fax: 714-647-6515
Daniel Miller
1320 N. Cabrillo
Suite #
Santa Ana, CA 92701
Tel: 714-496-0737
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