§ 4-20. Damage by dogs; classification of dangerous dogs.
(a)
Marion County adopts by reference as a part of this chapter all of F.S. Ch. 767, as the same may be amended from time to time. In the event of a conflict between F.S. Ch. 767, and this chapter, the provisions of the statute shall control. The procedures of this chapter also provide regulations supplemental to F.S. Ch. 767.
(b)
The department of animal services shall investigate reported incidents involving any dog that may be dangerous and , if possible, shall interview the owner and require a sworn affidavit from any person with personal knowledge of the facts asserted therein, including any animal control officer or enforcement officer, desiring to have a dog classified as dangerous.
(c)
The animal control officer shall attempt to obtain a current, valid address of the owner during such investigation, including requiring the owner to provide the owner's correct current street address and phone number and any other contact information of the owner, such as email addresses, which the county may use for all future notices and communications with the owner. The owner shall further advise the animal control officer of the address at which the animal resides, if different from the address of the owner. If the owner refuses to provide such information to the animal control officer, the animal control officer shall make a notation of such refusal in the investigation file, and shall advise the owner that such refusal shall be deemed to be a waiver of any claim of lack of notice as to future proceedings or communications from the county. If the owner is currently transient or otherwise has no current street address, it shall be the responsibility of the owner to physically come to the animal services center once every five (5) days to pick up any notifications that relate to the owner.
(d)
Possession of dog while investigation is pending
(1)
The animal control officer shall be authorized to pick up and impound a dog if probable cause is established as provided in section 4-7.
(2)
Upon demonstration to the animal control officer that the owner is able to humanely and safely confine the animal in a securely fenced or enclosed area pending the outcome of the investigation and resolution of any hearings or appeals related to the dangerous dog classification or any penalty imposed under this section, the owner shall, in most cases, be permitted to retain custody of the dog, or obtain release of the dog from the animal services center, upon payment of any applicable fees and charges.
(3)
In exceptional cases, notwithstanding receipt of evidence regarding the owner's ability to safely confine the dog, the department of animal services may obtain or retain custody of the dog based on the determination of the animal control officer, based on first hand observations, that the release of the dog to the owner presents an unreasonable risk to the public.
(e)
After the investigation, the director shall make an initial determination as to whether there is sufficient cause to classify the dog as dangerous or impose a penalty and shall afford the owner an opportunity for a hearing prior to issuing a final order. The department of animal services shall provide written notification of the sufficient cause finding and the director's proposed classification and penalties to the owner, by registered mail, certified hand delivery, or service in conformance with the provisions of F.S. Ch. 48, relating to service of process, to the address previously provided by the owner. The owner may file with the director, at 5701 SE 66th Street, Ocala, FL 34480, a written request for a hearing within seven (7) calendar days after the date of receipt of the notification of the sufficient cause finding. The owner's request for hearing shall, even if previously given as provided above, state the owner's correct current street address , phone number, fax number, and, if available, email address, where the owner agrees to receive notices of hearing, and other communications from the department of animal services. If requested, the hearing shall be held as soon as possible, but not more than twenty-one (21) calendar days and no sooner than ten (10) calendar days after receipt of the request from the owner.
(f)
The director shall mail a notice of hearing to the owner by certified mail at the mailing address shown on the owner's request for hearing. The notice of hearing shall advise the owner that, if a person decides to appeal any decision made by the director as a result of the hearing, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. If a facsimile number or email address has also been provided by the owner, the notice shall also be provided by those means as well. Failure of the owner to receive either facsimile or email notice shall not however be deemed to be insufficient notice where the notice of hearing has been properly addressed, and sent by certified U.S. mail for delivery to the owner. The director shall see that the mail notice of hearing is mailed at least seven (7) calendar days before the hearing. The notice shall specify the date, time, and location of the hearing. Proof by affidavit of the mailing of such notice, as provided for herein, shall be deemed to be prima facie evidence of sufficient notice of hearing. The director or the dog classification board, as provided below, shall conduct the hearing on or after the eleventh day and on or before the twenty-first day after receipt of the request. If the owner fails to timely request a hearing, the owner shall be deemed to have waived his or her rights to contest the dangerous dog classification or any penalty imposed under this section. The director's initial determination that the dog be classified as a dangerous dog or that a penalty be imposed shall become final, by operation of law, without requirement for a hearing.
(g)
The board of county commissioners may, by resolution, create a dog classification board, comprised of five (5) appointed members and one alternate, for the purpose of conducting hearings and presenting recommended orders to the director prior to the final determination.
(1)
Each county commissioner shall appoint one member to the dog classification board, and the chair, with the concurrence of a majority of the other county commissioners shall also appoint the alternate member. The dog classification board shall be comprised of members who do not currently sit on any other elected or appointed board in Marion County, and who, to the extent such are available for appointment, demonstrate by training, education, experience or employment, both an interest in animal welfare and control, and the objectivity and demeanor to fairly hear dog classification cases. The dog classification board, as provided for herein, shall be established within sixty (60) calendar days of the effective date of the ordinance from which this chapter derives, and upon its creation, shall replace the current dog classification board.
(2)
The nature of the hearing before the dog classification board shall be an informal adversarial proceeding in which formal rules of evidence do not apply. The parties may be represented by counsel at their own expense, and shall be afforded the opportunity to present evidence, and to cross-examine adverse witnesses. Witness testimony shall be given under oath. It shall be the responsibility of the owner to ensure the preparation of a verbatim transcript of the hearing in the event the owner desires to appeal the final determination in the case. Following the hearing, the dog classification board shall transmit a recommended order to the director. The recommended order must recite the essential findings of fact and conclusions of law upon which the recommendation is based. The recommended order must be supported by competent, substantial evidence on the record of the hearing. Hearsay evidence shall be admissible in the hearing, but a finding of fact may not be based solely on hearsay evidence. The owner shall be permitted to submit to the director an alternate recommended order, with citations to the record supporting his or her position. The director shall have the discretion, on a given case, to forego the procedure of the dog classification board, and personally convene a hearing using the foregoing procedural rules, before entering a final written decision.
(h)
Following the hearing or by operation of law, the director shall render a written final order. The order shall be deemed rendered when it is filed with the clerk of court in county commission records. The director shall have the discretion to not adopt the recommended order if it is not supported by competent substantial evidence, or, if the director cites to other compelling substantial evidence that justifies a different result. The director shall provide a copy of the final order to the owner by regular U.S. mail delivery at the address previously provided by the owner if the decision is that the dog is not found to be dangerous. In the event that the final decision is that the dog is a dangerous dog, that decision shall be the classification of the dog as a dangerous dog, and shall be delivered to the owner in accordance with subsection (i), below. An owner with no mailing address shall make arrangements to physically come and pick up the written decision from the department of animal services.
(i)
The director shall provide a written final order to the owner by registered mail, certified hand delivery or service to the address provided by the owner's request for hearing. The owner may appeal the classification, penalty, or both within thirty (30) calendar days after receipt of the final order by petition for certiorari to the circuit court in accordance with the Florida Rules of Appellate Procedure. If the dog is not held by the animal services department, the owner must confine the dog in a securely fenced or enclosed area pending a resolution of the appeal. In exceptional cases, notwithstanding receipt of evidence regarding the owner's ability to safely confine the dog, the animal services department may obtain or retain custody of the dog based on the determination of the animal control officer, based on first hand observations, that the release of the dog to the owner presents an unreasonable risk to the public. If the final order recommends destruction, the dog shall not be destroyed for thirty (30) calendar days after the owner receives the final order, unless the owner waives the right to appeal to the circuit court in writing. If the owner files a written appeal to the circuit court within thirty (30) calendar days, the dog may not be destroyed while the appeal is pending. The owner is responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure.
(j)
The animal services department may not classify a dog as dangerous or impose a penalty if an attack occurred while the person alleged to have been attacked was unlawfully on the property of the dog's owner.
(k)
A dog shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member. No dog may be declared dangerous if the dog was protecting or defending a human being or another animal including livestock within the immediate vicinity of the dog from an unjustifiable attack or assault.
(l)
Within fourteen (14) calendar days after issuance of the final order classifying the dog as dangerous or the conclusion of any appeal that affirms such final order, the owner of the dog shall obtain a certificate of registration for the dog from the department of animal services, upon payment of any and all fees established by the board, and annually thereafter renew the certificate of registration upon payment of any and all renewal fees. Only a person who is at least eighteen (18) years of age, and presents the following evidence, may obtain the certificate of registration for a dog classified as dangerous:
(1)
A current certificate of rabies vaccination signed by a licensed veterinarian for the dog.
(2)
A current county animal license for the dog.
(3)
Proper enclosure for the dog classified as dangerous as defined in this chapter.
(4)
The posting of the confinement property with clearly visible warning signs at all entry points that inform both children and adults of the presence of a dangerous dog on the property. Signs may be obtained from the department of animal services, upon payment of any and all sign fees established by the board of county commissioners, which signs shall include the words, "warning: dangerous dog." [F.S. § 767.12(5)(a)]
(5)
Permanent identification of the dog, by means of microchip implantation.
(6)
Two (2) current color photographs showing the color and size of the dog.
(7)
Permanent surgical sterilization of the dog by gonadectomy.
It shall be unlawful for an owner of a dangerous dog to fail to obtain a certificate of registration as provided in this section.
(m)
It shall be unlawful for the owner to fail to immediately notify the department of animal services when the dog classified as dangerous:
(1)
Is loose, unconfined or missing.
(2)
Has bitten a human being or attacked another animal including livestock.
(3)
Is sold, given away, or dies.
(4)
Is moved to another address.
The owner of the said dangerous dog must notify department of animal services prior to relocating the dog. The animal control authority in the new location must be notified by the owner of a dog classified as dangerous that the dog is in that authority's jurisdiction. Before a dangerous dog is sold or given away, the owner shall provide the name, address, and telephone number of the new owner. The new owner must comply with all the requirements of this section.
(n)
It is unlawful for the owner of a dangerous dog to permit the dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash rated to withstand the weight and strength of the dog, and under the control of a competent adult physically able to restrain the dog. The muzzle shall be made in a manner that will not cause injury to the dog or interfere with its vision, breathing, panting, or drinking, but will prevent it from biting any person or animal. A properly fitted basket muzzle or agitation muzzle is recommended. The owner may exercise the dog in a securely fenced or enclosed area that does not have a top, without a muzzle or leash, if the dog remains within the owner's sight and only members of his immediate household or persons eighteen (18) years of age or older are allowed in the enclosure when the dog is present. When being transported, the classified dangerous dog shall be safely and securely restrained within a vehicle, which vehicle shall be posted with warning signs that a dangerous dog is in the vehicle. It shall be unlawful for a person to use a dog classified as dangerous for hunting or herding purposes.
(o)
Any person who violates any provision of this section is guilty of a noncriminal infraction, punishable by a fine not exceeding five hundred dollars ($500.00). [F.S. § 767.12(7)]
(p)
As a condition to each dog's classification, any animal control officer shall, at any reasonable hour, have the right to inspect the owner's premises to determine compliance with F.S. Chs. 767 and 828, and this chapter. It shall be unlawful for an owner to deny the animal control officer or enforcement officer access to inspect the outside of the owner's premises to determine compliance as provided in this section. If authorized by a warrant issued by a court of competent jurisdiction, an animal control officer or enforcement officer shall be permitted to inspect the inside of the owner's premises.
(q)
This section does not apply to dogs used by law enforcement officials for law enforcement work.
(r)
The Marion County Animal Center shall not release any dog subject to a dangerous dog investigation unless the owner presents evidence of their ability to safely confine the dog as provided above, and that all fines and fees related to such dog have been paid. If the owner fails to make payment of all fines and fees within fourteen (14) calendar days of the completion of all hearings and appeals, the dog shall be considered abandoned by the owner and thereafter destroyed in an expeditious and humane manner.
(Ord. No. 11-55, § 1, 10-18-11; Ord. No. 14-06, § 1, 4-1-14; Ord. No. 16-34, § 1, 10-4-2016; Ord. No. 18-21, § 1, 8-7-2018)