§ 20-2.181. Potentially dangerous and vicious dogs.

(a)

Except as otherwise provided under the provisions of subsections (b) through (e) of this section, the provisions of chapter 9, articles 1 through 5, sections 31601 through 31683 and any amendments thereto exclusive of sections 31602, 31603, 31606 and 31644 of the Food and Agricultural Code are adopted and incorporated by reference herein. The hearing provisions set forth in subsection (e) below shall be in addition to the provisions set forth above in section 20-2.122.

(b)

"Potentially dangerous dog" means any of the following:

(1)

Any dog which, when unprovoked on two separate occasions within the prior thirty-six month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner/guardian or keeper of the dog;

(2)

Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604 of the Food and Agricultural Code;

(3)

Any dog which, when unprovoked, has killed, seriously bitten, inflicted injury or otherwise caused injury attacking a domestic animal off the property of the owner/guardian or keeper of the dog.

(4)

Any dog that has been deemed by another governmental jurisdiction as "potentially dangerous", "dangerous," or similar designation.

(c)

"Vicious dog" means any of the following:

(1)

Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being;

(2)

Any dog previously determined to be and currently listed as a potentially dangerous dog which, after its owner or keeper has been notified of this determination, continues the behavior described in subsection (b) of this section or is maintained in violation of Sections 31641, 31642 or 31643 of the California Food and Agricultural Code.

(3)

Any dog that has been deemed by another governmental jurisdiction as "vicious" or similar designation.

(4)

Any dog which has engaged in any aggressive behavior that demonstrates that the dog represents a clear and present substantial danger to public health or safety and that due to substantial risk to public health or safety it is unlikely that the dog could be safely maintained.

(d)

"Severe injury" means any physical injury directly caused by a dog attack that results in muscle tear(s), puncture(s), dislocation(s), broken bone(s) or disfiguring laceration(s), or which requires the suturing of a wound, corrective or cosmetic surgery and hospitalization for any of the aforementioned conditions.

(e)

A hearing on whether a dog shall be declared potentially dangerous or vicious shall be conducted in the following manner:

(1)

If the director has investigated and determined that there exists probable cause to believe that a dog is potentially dangerous or vicious as defined by this section, a hearing shall be conducted. The director shall prepare a petition specifying the basis as to why the dog is potentially dangerous or vicious.

(2)

A documented complaint must be received from a member of the public which serves as the evidentiary basis for the director to find probable cause shall be sworn to and verified by the complainant and shall be attached to the petition.

(3)

Prior to commencement of a potentially dangerous dog hearing and if the allegations of the petition indicate that the dog is potentially dangerous as defined under section 20-2.181(b), the county administrator or his/her designee may offer in writing mediation services as an alternative to a hearing provided both the complainant and the owner/guardian agree in writing to mediation. Mediation must be concluded within thirty days of the offer to mediate. If mediation is refused or is unsuccessful, then the matter shall be referred to a hearing under this subsection.

(4)

The county administrator or his/her designee shall designate a hearing officer from a panel of up to five persons whose membership shall be designated by the board of supervisors. Hearing officer applicants shall have had a minimum of five years experience as a practicing attorney and prior experience in administrative, arbitration or mediation hearings. Prior experience in care and control of animals shall also be considered but is not necessary. The hearing officer shall conduct a hearing as described in section 20-2.122 on whether a dog shall be declared potentially dangerous or vicious. The hearing officer shall be compensated for the actual hours devoted to the hearing and its determination at the county-approved hourly rate for said services.

(5)

The county administrator or his/her designee shall provide written notice to the owner/guardian of the specific behavior of the dog alleged in the petition and the date upon which a hearing will be held to consider the petition. The hearing shall be held within the time limits set forth by the Food and Agricultural Code section 31621 or any amendments thereto. The notice shall advise the owner/guardian of the consequences of a finding of potentially dangerous or vicious. The hearing shall be open to the public and the hearing officer may admit into evidence all relevant evidence, and exercise the full scope of authority set forth in Food and Agricultural Code section 31621. Service of the notice shall be made in accordance with section 1.04.190 of the Marin County Code. Where the owner/guardian's address of any dog is unknown, notice of the hearing shall be given by posting the same in the office of the director and by publication in a newspaper of general circulation. Notice shall then be deemed given on publication of the notice.

(6)

A hearing may be continued if the hearing officer deems it necessary and proper or upon a showing of good cause.

(7)

The time for hearing and the hearing provisions of this subsection shall be stayed if mediation services are offered pursuant to the provisions of subsection (e)(3) of this section. The time for hearing and the hearing provisions of this subsection shall recommence at the date the county administrator or his/her designee has determined in writing that mediation has not been accepted or has been unsuccessful.

(8)

Complaint(s) from the public serve as the evidentiary basis for the director to prepare a petition. At least one of the complainants or his or her designee in the matter must appear and testify at the hearing or the complaint shall be dismissed.

(9)

If the owner/guardian fails to appear at the hearing, the hearing shall nevertheless proceed and an appropriate order shall be issued.

(10)

The hearing officer shall consider all relevant responsible evidence without regard to the formal rules of evidence, including circumstances of mitigation, and the record of any prior violations by the owner/guardian.

(11)

All witnesses shall testify under oath or affirmation. The oath shall be administered by the hearing officer. The hearing officer may, when appropriate, request the production of oral or documentary evidence which is reasonably necessary and relevant to conduct a hearing. All proceedings shall be tape recorded.

(12)

The hearing officer shall issue a written determination based upon a preponderance of the evidence, which shall be mailed to the owner/guardian within seven days after the hearing is completed. A determination that a dog is potentially dangerous or vicious is subject to a de novo review by the Superior Court.

(13)

If a dog is found to be potentially dangerous or vicious by a preponderance of the evidence, the dog shall be so designated on the records of the animal services agency. Such a designation shall be considered in future determinations involving the dog and/or owner/guardian.

(14)

The owner/guardian of a dog for which a potentially dangerous or vicious dog petition has been issued may irrevocably waive his right to a hearing and any further appeal under Food and Agricultural Code section 31622 and accept all conditions, sanctions and penalties set forth in Food and Agricultural Code sections 31641, 31642, and 31643. The county administrator or his/her designee will mail a waiver form to the dog owner/guardian. The waiver must be signed by the dog owner/guardian and received by the county administrator within thirty days from the date of agreement to waive, or a hearing will be scheduled within thirty days of the refusal to sign the agreement to waive.

(15)

Obligations for the owner/guardian of dogs deemed potentially dangerous.

(A)

In accordance with the provisions of Food and Agricultural code section 31641, the owner/guardian of a potentially dangerous dog shall in addition to the regular licensing fee, pay to the animal control agency an annual fee as may be established by separate resolution of the town council for the increased costs of maintaining the records of the dog.

(B)

Within thirty days of the determination that the dog is potentially dangerous, the owner/guardian of the dog sterilized and deliver proof of sterilization of the animal to the animal services agency.

(C)

Within thirty days of the determination that a dog is potentially dangerous, the owner/guardian shall provide a secure and humane enclosure for the dog on the owner/guardian's property. The dog must be confined in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children. Such pen or structure shall be constructed such that the dog cannot climb, dig, jump or otherwise escape of its own volition.

(D)

All dogs found potentially dangerous shall be maintained under immediate control of a responsible adult by a substantial leash appropriate for the size of the dog and no more than six feet in length when off of the property of the owner/guardian.

(E)

The owner/guardian of a dog found potentially dangerous under this section, who has no additional violations of this chapter of the Tiburon Municipal Code, within a thirty-six-month period from the date of designation as potentially dangerous, shall be removed from the list of potentially dangerous dogs by the director. The dog may be, but is not required to be, removed from the list of potentially dangerous dogs prior to the expiration of the thirty-six-month period if the owner/guardian of the dog demonstrates to the director that changes in circumstances or measures taken by the owner/guardian, such as training of the dog, have mitigated the risk to public safety.

(16)

Obligations for the owner/guardian of a dog deemed vicious.

(A)

The owner/guardian of a dog determined to be vicious shall, if it is not subject to destruction, in addition to the regular licensing fee, pay to the animal control agency an annual fee, as may be established by resolution of the town council, to provide for the increased costs of maintaining the records of the dog.

(B)

The owner/guardian of a dog determined to be vicious shall, if it is not subject to destruction, at his/her own expense, have the vicious animal registration number assigned to the dog tattooed upon the dog's left ear or, if the left ear is not available, on the left inner thigh, by a licensed veterinarian or a person trained, authorized and licensed to do business as an animal tattooist. As an alternative to tattooing, an owner/guardian may have a microchip injected beneath the skin, and between the shoulder blades of the animal by a licensed veterinarian. The owner/guardian shall provide proof satisfactory to the animal services agency of such tattooing or microchipping within thirty days of the vicious determination.

(C)

The owner/guardian of a vicious dog shall, if it is not subject to destruction, within ten days of such determination, upon request by the animal services agency present said animal at the animal services agency and allow photographs and measurements of the animal to be taken for purposes of identification.

(D)

Within thirty days of vicious dog determination, the owner/guardian of the dog, if it is not subject to destruction, shall provide proof to the animal services agency that the dog is contained in a secure and humane enclosure for the animal on the owner's property. The animal must be confined in a securely enclosed and locked pen or structure, suitable to prevent the entry of children or unauthorized persons. Such pen or structure shall be constructed such that the animal cannot climb, dig, jump or otherwise escape. The pen or structure shall be constructed with sufficiently strong materials and shall have a top that is secured to the floor and sides of the enclosure.

(E)

Within thirty days of the determination that a dog is vicious, the owner/guardian of the dog, if it is not subject to destruction, shall provide proof of sterilization of the dog to the animal services agency.

(F)

The owner/guardian of a dog found vicious under this section who has no additional violations of any of the provisions this chapter of the Tiburon Municipal Code, after a thirty-six-month period from the date of designation as vicious, may apply to the director to remove the animal from the list of vicious animals. The director shall have the discretion to remove the animal from the list of vicious animals upon proof of the successful completion of at least eight weeks of formal obedience training, other similar evidence of training, or other rehabilitative efforts designed to mitigate the risk to public safety.

(17)

Regulatory measures in addition to those under state law. The administrative hearing officer shall have the authority to impose any of the regulatory actions authorized under the Food and Agricultural Code and this section. To the extent justified by the circumstances, the administrative hearing officer shall have the authority to impose additional regulatory restrictions that have a reasonable nexus to the circumstances of the case which may not be adequately addressed by the normal statutory remedies. Such measures shall be undertaken in the interests of public health and safety, and may include, but not be limited to the following:

(A)

Destruction of the dog;

(B)

Muzzling of the dog;

(C)

Confinement of the dog;

(D)

Displaying conspicuously on the owner/guardian's property such signs as are required by animal services and to be obtained at owner/guardian's expense with a symbol warning of the presence of a potentially dangerous or vicious dog;

(E)

Restrictions upon the owner/guardian of the dog or similar animals;

(F)

Loss of the right to maintain the dog or similar dogs identified by the hearing officer;

(G)

Loss of the ability to take the dog off the confined premises of the owner/guardian's property;

(H)

Restrictions upon the animal services business that may be subject to animal services regulation;

(I)

Similar restrictions upon the dog or dog owner/guardian, or service provider calculated to prevent further loss of property, risk of harm to animals or risk to human life;

(J)

Any measures, not otherwise hereinabove set forth that, are reasonably calculated to reduce the risk of harm to human life and safety, or reasonably calculated to prevent property loss or the loss or harm to animals.

(18)

Failure to comply with regulatory measures. In the event an owner/guardian of a dog fails to comply with the regulatory measures deemed necessary by an administrative hearing officer, a further hearing may be convened for the purposes of determining what, if any, sanctions are appropriately imposed. The procedures for such a hearing are set forth in section 20-2.122(c).

(Ord. No. 505 N.S., § 2 (part); Ord. No. 542 N.S., §§ 2(D)(2), (3), 8-15-2012; ; Ord. No. 578 N.S. , § 1(C), (D), 6-20-2018)