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HomeMy WebLinkAbout2024-12-02 Ordinance 3133_Dangerous and Vicious AnimalsORDINANCE NO. 3133 AN ORDINANCE AMENDING CHAPTER 56, WAUKEE MUNICIPAL CODE, DANGEROUS AND VICIOUS ANIMALS TO MAKE CERTAIN PROVISIONS CONSISTENT WITH STATE LAW AND TO UPDATE THE PROCEDURE FOR APPEALS. WHEREAS, state law restricts the possession of dangerous animals in this state in Chapter 717F Iowa Code (2024); AND, WHEREAS, the provisions of the Chapter 56 of the Waukee Municipal Code contains provisions in conflict with State law; AND, WHEREAS, the City of Waukee has determined it is in the best interest to amend Chapter 56 of the Waukee Municipal Code; AND, BE IT THEREFORE ORDAINED by the City Council of the City of Waukee: Section 1: Chapter 56. Waukee Municipal Code, should be and the same is hereby repealed and enacted in lieu thereof is as follows: 56.01 DEFINITIONS. For use in this chapter, the following terms are defined: 1. "Dangerous wild animal" or "dangerous animal" means those animals defined by Iowa Code 717F.1(5) as Dangerous Wild Animals by the State of Iowa 2. "Serious injury" means any physical injury to a human or domestic animal by an animal resulting in bone fracture, muscle tear, disfiguring laceration, or an injury requiring multiple sutures, corrective surgery, cosmetic surgery, or death. 3. "Provocation" means the threat, injury, or damage caused by the animal was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the animal, or was tormenting, abusing, or assaulting the animal, or was upon the premises occupied by the owner of the animal without permission. 4. "Vicious animal" means any animal (except for a dangerous animal per se, as listed under the definition of dangerous animal in this section) which: A. Without provocation, bites or attacks a person or a domestic pet causing serious injury, whether on public or private property; B. Without provocation, has killed a domestic pet whether on public or private property; C. According to records of a health department, police department, or humane society, or according to other records available to the Police Department has directly inflicted serious injury on a human being without provocation regardless of whether on public or private property: D. Any dog that has been trained for dog fighting, animal fighting or animal baiting or is owned or kept for such purposes, or E. Has a demonstrated propensity, tendency, or disposition to attack, to cause injury to, or to otherwise threaten the safety of humans or domestic animals. 56.02 KEEPING OF DANGEROUS ANIMALS PROHIBITED. No person shall keep, shelter, or harbor any dangerous animal as a pet, or act as a temporary custodian for such animal, or keep, shelter or harbor such animal for any purpose or in any capacity within the City. 56.03 KEEPING OF VICIOUS ANIMALS PROHIBITED; EXCEPTIONS. No person shall keep, shelter, or harbor for any reason within the City a vicious animal except in the following circumstances: 1. Animals under the control of a law enforcement or military agency. 2. The keeping of guard dogs; however, guard dogs must be kept within a structure or fixed enclosure at all times, and any guard dog found at large may be processed as a vicious animal pursuant to the provisions of' this chapter. Any premises guarded by a guard dog shall be prominently posted with a sign containing the wording "Guard Dog," "or words of similar import, and the owner of such premises shall inform the Police Chief that a guard dog is on duty at said premises. 56.04 SEIZURE, IMPOUNDMENT AND DISPOSITION OF DANGEROUS OR VICIOUS ANIMALS. 1. In the event that a dangerous animal or vicious animal is found at large and unattended upon public property, park property, public right-of-way or the property of someone other than its owner, thereby creating an imminent hazard to persons or property, such animal may, at the discretion of the Police Chief or designee, be destroyed if it cannot be confined or captured. The City shall be under no duty to attempt the confinement or capture of a dangerous animal or vicious animal found at large, nor shall it have a duty to notify the owner of such animal prior to its destruction. 2. Upon the complaint of any individual that a person is keeping, sheltering or harboring a dangerous animal or vicious animal on premises in the City, the Police Chief shall cause the matter to be investigated and if after investigation, the facts indicate that the person named in the complaint is keeping, sheltering or harboring a dangerous or vicious animal in the City, the Police Chief shall order the person named in the complaint to safely remove such animal from the City or destroy the animal within three days of the receipt of such an order. Such order shall be contained in a notice to remove the dangerous or vicious animal, which notice shall be given in writing to the person keeping, sheltering, or harboring the dangerous animal or vicious animal, and shall be served personally or by certified mail. 3. The order to remove a dangerous animal or vicious animal issued by the Police Chief may be appealed in the manner provided in this chapter. Failure to file such written notice of appeal in the manner provided in this chapter shall constitute a waiver of the right to appeal the order of the Police Chief. 4. If the original order of the Police Chief is not appealed and is not complied with within three days, or the order after appeal is not complied with within three business days of its issuance, the Police Chief is authorized to seize, impound or destroy such dangerous or vicious animal. If the decision of the chief of police is affirmed the person owning, sheltering, harboring or keeping such dangerous or vicious animal remove such animal from the City or destroy it. The decision and order shall immediately be served upon the person against whom rendered in the same manner as the notice of removal. 6. Failure to comply with an order of the Police Chief issued pursuant to this chapter and not appealed (or affirmed on appeal) constitutes a simple misdemeanor. 56.05 APPEALS. 1. An appeal of the decision of the chief of police pursuant to section 56.04 may be taken as follows: (a) Filing deadline. The notice of appeal must be filed within three business days after the date of the decision appealed from. Failure to timely file a written notice of appeal shall constitute a waiver ofthe right to appeal the decision. (b) Dale cif filing. The notice of appeal shall be considered filed when received by the office of the city clerk at city hall. However, a notice of appeal delivered by U.S. mail or overnight courier shall be considered to have been timely filed if the postmark date is within the time allowed to file the appeal. (c) Conlents. The notice of appeal shall contain the following information: (1) The name and address of the appellant. (2) Contact information for the appellant, including phone number, mailing address and, if available, an e-mail address to which all further notices may be served. (3) The name, phone number and mailing address of any attorney or other person authorized to represent the appellant in the appeal proceedings and to receive the notice of the hearing. (4) The nature of the decision appealed from, including the case or file number if available. (5) The grounds on which the appeal is taken. (6) The name and/or office of the person who made the decision, if known. (d) Filingfee. A notice of appeal shall not be considered filed until the appellant has paid an application fee in the amount set in the schedule of fees adopted by the city council by resolution. 2. A hearing concerning the appeal shall be scheduled as follows: (a) Upon receipt of a notice of appeal the city clerk shall promptly notify the chief of police. The affected department shall be responsible for investigating the nature and merit of the appeal and shall promptly contact the city clerk to schedule a date and time for consideration of the appeal by an administrative hearing officer. (b) Timing of hearing. A hearing shall be scheduled for consideration of the appeal by an administrative hearing officer as promptly as reasonably possible. (c) Service of notice of hearing. The city clerk shall cause notice of hearing on an appeal to be served on the designated representative of the appellant, or on the appellant if no representative has been designated, in one of the following ways: (i) By personal service. (ii) By service upon any adult at the address provided in the notice of appeal, or by posting on those premises ifno adult is present to accept service. (iii) If service cannot be timely made pursuant to (i) or (ii) above within the city boundaries, then by service upon any adult residing at the premises where the animal has been regularly kept or by posting on those premises if no adult is present to accept service, and by calling the telephone number provided for the designated representative of the appellant, or the appellant ifno representative has been designated, and leaving a message with anyone who answers or any answering machine identifying the appeal, and the scheduled date, time and place of the hearing on the appeal. (d) Nolice. The notice of hearing shall identify the date, time and place of the hearing, and shall give notice that default judgment may be entered upholding the decision being appealed if the appellant fails to timely appear at the hearing, either in person or by an authorized representative. (e) Withdrawal of decision. In the event the affected department elects to withdraw a decision which is the subject of a pending appeal, the affected department shall promptly notify the appellant and city clerk of the withdrawal of the decision. 3. Stay during appeal. (a) An appeal stays all proceedings in furtherance of the decision appealed from, unless the director of the affected department certifies to the city clerk in a written statement that a stay would in the director's opinion, cause imminent peril to life or property for reasons set forth in the statement. In such case, such proceedings shall not be stayed. Notice that the proceedings in furtherance of the decision appealed from will not be stayed and will be pursued by the city shall be promptly given to the appellant by phone at the number provided in the notice of appeal, or by regular mail to the address provided in the notice of appeal. (b) During the appeal process, the animal in question shall be confined indoors or in a securely enclosed, locked pen, kennel, or structure on the premises of the owner or caretaker, except when properly leashed, muzzled, and under the immediate control of a person 18 years of age or older in such a way to prevent the animal from biting persons or other animals. Any pen, kennel, or structure shall have a secure bottom or floor and roof ensuring the animal does not escape the enclosure. If the owner or person having control of such animal cannot comply with these requirements, the animal shall be impounded pending the outcome of the appeal process. (c) Impoundment Costs. Any animal alleged to be dangerous or vicious and which is held under impoundment or quarantine at an animal shelter or veterinary office shall not be released to the owner but shall continue to be held at the expense of the owner pending the outcome of the hearings. All costs of such impoundment or quarantine shall be paid by the owner. 4. Administrative hearing officer —Powers and duties. (a) One or more administrative hearing officers shall be appointed by the city administrator. (b) An administrative hearing officer shall have all powers necessary to conduct fair and impartial hearings including, but not limited to, the power to: (1) Conduct administrative hearings and issue decisions in conformance with this chapter. (2) Administer oaths and affirmations. (3) I -fear testimony. (4) Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing. (5) Regulate the course of the hearing in accordance with this chapter and other applicable law. (6) Issue a final order which includes findings of fact and conclusions of law. 5. Hearing Process. (a) An attorney or other representative who appears on behalf of any person shall file a written appearance on a form to be provided by the city attorney for such purpose, unless such attorney or representative was identified in the notice of appeal. (b) The administrative hearing officer may grant continuances only upon a finding of good cause shown. (c) All testimony shall be given under oath or affirmation. (d) The appellant or the appellant's representative, and a representative of the affected department shall have the right to question any witness. (e) If at the time set for a hearing neither the appellant nor the appellant's representative of record appears, the administrative hearing officer may find the appellant in default and proceed with the hearing, accept evidence relevant to the appeal, and conclude with a final determination. (t) The formal and technical rules of evidence shall not apply in the conduct of the hearing. Evidence, including hearsay, may be admitted only if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. (g) The record of all hearings before an administrative hearing officer shall include: (i) a record of the testimony presented at the hearing, which may be made by tape recording or other appropriate means, (ii) all documents presented at the hearing; (iii) a copy of the decision appealed from and of the notice of hearing; and (iv) a copy of the findings and decision of the administrative hearing officer. 6. Burden of proof. The appealable decision which has been memorialized in writing and signed by the chief of police shall be prima facie evidence of the correctness of the facts specified therein. The decision shall not be reversed or amended except upon proof by a preponderance of the evidence that such decision is contrary to the law or this code, or is unsupported by the facts. 7. Final determination. (a) Upon conclusion of the hearing on an appeal brought pursuant to this chapter, the administrative hearing officer shall issue a final determination affirming, amending and affirming, or reversing the appealed decision. The administrative hearing officer shall have the authority to enter any order, determination or remedy that could have been entered by the city officer in the decision on appeal. (b) If the appealed decision is reversed, the administrative hearing officer may order the refunding of the appeal fee collected pursuant to this section. If the appealed decision is amended and affirmed, the administrative hearing officer may direct the refunding of a portion of the appeal fee proportionate to the appellant's success on the merits of the appeal. (c) In the issuance of a final determination on any appeal, the administrative hearing officer shall inform the appellant of their right to seek judicial review of the final decision by a certiorari action filed with the district court of Dallas County, Iowa, within 30 days of entry of the decision. (d) The final determination of the administrative hearing officer shall be promptly served on the designated representative of the appellant, or on the appellant if no representative has been designated, in one of the following ways: (I ) By regular mail addressed to the address provided in the notice of appeal. (2) By service upon any adult at the address provided in the notice of appeal, or by posting on those premises if no adult is present to accept service. (3) By personal service. 8. Appeal of final determination. (a) Any party aggrieved by a final determination made by an administrative hearing officer pursuant to this article may challenge whether the officer exceeded proper jurisdiction or otherwise acted illegally by commencing a certiorari action in the district court for Dallas County, Iowa. The petition to initiate a certiorari action must be filed within 30 days after the entry of the final determination unless an extension of time is allowed by the reviewing court pursuant to Division XIV of the Iowa Rules of Civil Procedure. The city administrator is hereby authorized to initiate a certiorari action on behalf of the city when the city administrator, in consultation with the city attorney, deems it necessary and appropriate. (b) The filing of an action in the district court challenging the final determination of the administrative hearing officer does not automatically stop the city from taking action pursuant to such final determination. Unless the city has been served with an order from the district court directing otherwise, the city may proceed with enforcement of a final determination. Section 2. Repealer. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 3. Severability Clause. If any section, provision or part of this ordinance shall be adjudged invalid or unconstitutional, such adjudication shall not affect the validity of the ordinance as a whole or any section, provisions or part thereof not adjudged invalid or unconstitutional. Section 4. Effective Date. This ordinance shall be in effect from and after its final passage, approval and publication as provided by law. Passed by the Council the 2°d day of December, 2024, and approved this 2nd day of December, 2024. Courtney Clarke, Mayor Attest: �/*" 0' b4w4�f Rebecca D. Schuett, City Clerk