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HomeMy WebLinkAboutDocumentation_Workshop_Tab 03_01/29/2013 ���; �!��� ��`�; �� arrosNevs ar ww 1111 Hypaluxo Road, Sufte 207 �� �;��r .�.�.�6.� JOHN CORBETT TEIEPHOPIE {561) 586-7116 TRELA J. WHITE TELECdPIER {561) 58fr9611 KEITH W. DAVIS* BRADLEY W. BIGGS•^ • Board CertiFled in Cty, County and Incal Govemment Law R. MA% L!?HM14N � State Certified County and Circuit Court MediaWr AB[GAIL FORRESTER JORANdBY **AECP, LEEO AP JENNiF£R GAR�WER ASHTON ERIN L DEADY, P.A., Of CaunsQl's T�: Ma.yor Patemo, Vice Mayor Arena, Council Members Brennan, D'Ambra and Okun CC: Village Manager Couzzo FROM: Village At�orney Keith W. Davis, Esq. DATE: January 22, 2013 RE: Updates to Ani�mal Control Ordinance As clirected by the Vi�lage Coezncil at its January 10, 2013 regular meeting, I have researched the law pertaining to local animal control ordina.nces, and offer the following with regard to the extent th�.t the Village can adopt its owr� codes: As a starting point, Florida law allows a municipality to adop# its own anirnal conixol code, Sec. 828.27, F.S. specifically provic�es that a municipality may "enact ardinances relating fo animal control or cruetty..." State law requires any such ordinance to include certai.n provisions, including those tha.t make violations a civil infraction with a maximum penaliy of $SOO.QO; and those that allow for appeal to the couniy court. The statute also suggests, but does not mandate, that municipally hired animal control officers should complete appropriate training (county employed animal control o�'icers are required to complete such training}. A lacal ordinance may, at the option of the enacting jurisdiction, require court appearances for allega.tions of certain aggravated violations that result in unprovoked biting, attacking or wounding of a domestic animal; destruction of personal property; second or subsequent vialations of animal cruelty laws; or third or subsequent violations of any provision of the ardinance. In these instances, the alleged violator would ha.ve to go to court and would not have the option of paying the fine to the Village. This sectian of state law goes on to say that no local ordi.nance may conflict with state law on #he subject of animal control or animal cruelty. Chapter 767, F.S. deals specifically with dangerous dogs. The state statutory definition of a dangerous dog is: 1 Any dog that has, accarding to the records of the appropriate authority, (a) aggressively bitten, attacked or endangered, or has inflicted severe injury on a human being on public or private property, or (b) has more than once severely injured or killed a domestic animal while off the owner's property, or (c} has, when unprovoked, chased or approached a person upon the streets, sidewalks or any public grounds in a menacing fashion or apparent attitude of attack, as attested to in a sworn affidavit, and dutifully investigated hy the appropriate authority. Tt,us chapter of state law gaes on to provide a pracess for deaiing with dangerous dogs. Generally, it provides for the following: The Iocal animal control authorfty shall investi.gate reported incidents of dangerous dog activity, interview the owner, and obtain affidavits, etc. from persons desirin.g to have a dog classified as dangerous. Any dog under such investigation shall either be impounded or humanely canfined by the owner in a secured, fenced, enclosed. area pendi.ng resolution of the investigahan. Upon initial determinatian by the local animal control authority, the awmer sha11 be afforded a hearing prior to making a final determination. .The local animal contral authority sha11 establish appropriate heazing procedures, inclutling opportunity for appeal to the county court of a final de#ermination that a dog is dangerous. Upon a final dete�mination tha.t the dog is dangezous, the dog must be registered with the local animal control authority annually. Registration is issusd ugon a determination that the dog has proper rabies vaccinations, is confined in a proper enclosure which is posted, and that permanent identification has been placed on the dog {e.g., a tat�oo or chip implant}. The lacal government may impase reasonable fees for all aspects of t�is process. Owners of dangerous dogs must immediately notify the local animal control authority if the dangerous dog gets loose, has bitten a person or another animal, is soid or given away (name and address of the new owner must be given to the authoriry) or dies, or is moved to another address. Dangerous dogs may not be taken out of their enclosure unless muzzlcd, restrained by a substantial chain or leash, and are at alI times under the control of a competent person. As noted above, and in agreement wi#h Sec. 828.27, F.S., violations aze non-criminal infractions, and fines may be assessed up ta the maximum of $500.00. Chapter 7b7 goes on to provide for the disposition o£ a dangerous dog that attacks a person or animal as follows: Lf a dangerous dog attacks or bites a person or other domestic animal without provocation, the owner is guiity of a 1Deg. MM (maximum penalty of $1,000.OQ 2 fine and I year in jail). The dog is placed in quarantine by the local animal control autharity, the owner is notified and given the opportuniiy to have a hearing and appeal, and ultimately the dog is destroyed. If the attack on a person is severe (broken bones, multiple bites or disfiguring iacerations) or results in a fatali�y, the owner is gui.lty af a 3 Deg. Fel. (maxirnum penalty of $5,000.00 and 5 years in prison). The dog is placed in quarantine by the local animal control authority, fhe owner is notified and given the opportunity #o have a hearing and appeal, and ultiina.tely the dog is destroyed. Tf a dog not previously declared dangerous attacks and causes severe injury or death to a human, the owner is not guilty of a crime (unless it can be proven that the owner had prior knowledge of the dog's dangerous propensities, in which case the owner would be guilty of a 2Deg. MM {maxinaum penaliy of $500.00 aud 60 days in jail)), but the dog is placed in quarantine by the local animal control autharity, the owner is notified and given the opportwuty to have a hearing an.d appeal, and ultimately fihe dog is destroyed. LOCAL GOVERNMENTS ARE PERNIITTED TO ENACT ADDI1'�ONAL RESTRICTI�NS AND REQUOREMENfS ON OWNERS 4F DANGEROUS D4GS, AND ARE FURTHER PERMITTED TO DEVELOP PROCEDURES AND CRITERIA FOR 1MPLEMENTATION OF THESE STATE LAWS PROVIDED NO BREED SPECIFIC REGULATIONS SHALL BE PERIVIITTED, AND STATE LAW REQUlREMENTS ARE NOT LESSENED. This means that the Village cauld adopt local regulations that place greater restrictions on owners of dangerous dogs; however, the Village may not change the state definition of, or process far making a determination of a dangerous dog, This issue was recently litigated in Broward County. Hoesch v. Broward County, 53 So.3d 1177 (Fla. 4�` DCA 20I1). Broward County attempted to broaden the definition of "dangerous dog" by including a dog that had only once severely injured or killed a domestic animal while off t.Iie owner's property (state law requires mare than once). 'The court held that this was in conflict with state law and struck down the Browazd County ordinance. Palm Beach County has addressed this issue in a somewhat different way. Instead of bmaden.i.ng the defini#ion of "dangerous dog" as Broward County attempted to do, Palm Beach County has created a category of dog called "aggressive dogs." In the Pa1m Beach County ordinauce, an aggressive dog is one that has only once severely injured or killed a domestic animal while off the owner's property. The investigation and designation grocess for determining a dog to be aggressive is identical to that for dangerous dags. The pena.lties and requiremen#s for keeping an aggressive dog are less severe than that for keeping a dangerous dog. The owner of a dog determined to be aggressive must have such dog implanted with an ID chip, must have the dog spayed/neutered, and must keep the dog muzzled, leashed and under the control of a competent person at all times it is off the owner's property. Other than the aggressive dog designation process, fihe county's ordinance essentially mirrors state law on the handling of dangerous dogs. Although the county's "aggressive dag" designation process has never been challenged in a court of law, it d�s not seem to conflict with any provision of state law. As such, it should be able to withstand judicial scrutiny. 3 Finally, I point out that the Village may not increase any of the penalties proeided by state law for any like violati.ons of a local animal cantrol or dangerous dog ordinance. Given the foregoing, it is my recommendation to the Village Council that Ordinance 6-13, as attached, be adopted. The attached version of the ordinance contai.ns a few revisions from the version discussed by the Council earlier this month. Most notably, there is a new section 10-38 which addresses da.ngerous dogs by specifically referring to the county code, and by adding a fiirther regulation �pon owners of dangerous dogs, prohibiting them from bringing an.y dog designated as aggressive, dangerous ar vicious into any dog park oz onta any other property owned or opera#ed by the Village. Please contact me shauld you have any questions or comments in advance of the Febn�ary Village Council meeting. 4 ORDINANCE NO. 6-13 AN ORDINANCE OF THE VII.LAGE COUNCIL OF TAE VILLAGE OF TEQUESTA, FLORIDA, AMENDING THE VILLAGE CODE OF ORDINANCES AT CH.APTER 10. A1�TIMALS, BY PROVIDING A DEFINiTION FOR THE TERM "FERA,L CAT", ENCOURAGING VOLUNTARY PARTICIPATION IN THE PAL.M BEACH COUNTY "TRAP, NEUTER AND RELEASE" PROGRAM, AND PROHIBITING TFiE FEEDING OF FERAL CATS; FURTHER REVISING THE CODE REGARDING NUMBER OF HOUSEHOLD PETS; PROVIDING THAT EACH AND EVERY OT`I�R SECTION A1�TD SUSSECTION OF CHAPTER 10. ANIMALS. SHALL REMAIN IN FULL FQRC`E AND EFFEGT AS PREVIOUSLY ADOPTED; PROVIDING A CONFLIC°r5 CLAUSE, A SEVERABILITY CLAUSE AND AUTHORITY TO COD�TY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, the Village Council of the Village of Tequesta desires to amend the Villaga Code of Ordinances at Chapter 10. Animals by providing a defini�ion for the term "feral cat", encouraging voluntary participation in the Palm Beach County "trap, neuter an.d release" progta�m, and prolubiting the feeding of feral cats; further revising the code regarding number of household pets; and WHEREAS, the Village Council of the Village of Tequesta believes it to be in the best interests of the health, safety, and welfare of the citizens of the Village of Tequesta. that the Village amend its animals cade as stated herein. NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE 4F TEQiTESTA, FLORIDA, THAT: Section 1: Chapter 10, Animals. of the Code of Ordinances of the Village of Tequesta is hereby amended by providing a definition for the term "feral ca.t", encouragi.ng voluntazy participation in the Palm Beach County "trap, neuter and release" program, and prohibiting #he feeding af feral cats; further revising the code regarding number of household pets; praviding that Chapter 10. Animals. shall hereafter read as follows: ATRICLE I. — IN GENERAL Sec. 10-1. - Defin.itions. Sec. 10-2. - Enforcement; penatt� Sec. IO-3. - Villa�e declared bird sanctuary. Sec. 10-4. - Keepin� of animals generally. Sec. 10-5. - Ma.ximum number of household pets. Sec. lU-6. - Deposit of excreta on public propertv or propertv of another. Sec. 10-7. - Abandonrnent. Sec. 10-8. - Animals creating nuisaz�ce. Sec. 10-9. - Animals with contagious daseases. Sec. 10-10. - Raising or boazdin� animals or fowl. Secs. 10-11-10-30. - Re�erved. Sec. 10 - Definition�. The fallawing words, terms and phrases, when used in this chapter, sha11 have the meani.ngs ascribed to them in this section, except where Ehe context clearly indicates a different meaning: Animal means every living dumb creature, both domestic and wild. At large means off the premises of the owner, unless accompanied by a n a� attendant, who shall at all times maintain�ontrol over � such cat or dog �e�.� by ��]$�� a u s ' collar a�nd leash, which leash shail at n�time ��e exceed � e� feet in iength. Domesticated household pet and domesticated animal includes dags, cats, parrots, parakeets, canaries, rabbits, guinea. pigs, hamsters, fish, turtles and ot�er animals that can be legally sold in a licensed pet shop in the state, excluding animals which are included as exotic or wild anima.Is and/or which would require a permit from the state sllawing such animals to be sold or possessed. F r cat means anv cat with no antiarent owner or identification that is annarent�v wild untamed. unsacialized unmanaeeal�le or unable to be an�roached or � Livest�ck includes all animals af tha equine, boviae or swine class and includes goats, sheep, mules, horses, hogs or cattle and domesticated poultry. Owner includes any person owining, keeping, }�arboring or otherwise maintaining an animal. In any prosecution under this chapter where it sha11 be found that a cat oz dog is in the custody or �nder contral of a minor, it shall be presumed that the owner of such cat ar dog is the parent or legal guardian of sueh minor. Sec. 10-2. - Enforeement; penalty. In accordance with articles i, n and III of this chapter and F.S. § 162A9, the special magistrate of the village in charge of code enforcement is hereby grante�i jurisdiction for enforcement of articles I, II and III of this chapter and shall have the power to impose a fine in the maximum sum of $250.00 per day, with each day the violation occurs constituting a separate offense, on any person who violates the provisions of this chapter and a maximurn fine of $500.00 per da.y for repeat violators. In addxtion to enforcement by means of the code enforcement s�ciai magistrate, the village may, at its discretion, utilize any otlaer lawful means to enforce articles I, II and III of this chapter. Sec.10-3. - Village decl�red bird sanctuary. (a} It is hereby declared that all territory embraced within the corporate limits of the village shall be a bird sanctuary. (b) It shall be unlawful for any person within the village to shaot, tra.p or in any manner kill, wound or maim any bird of any kind, or at any time to throw at any birds of any ki.nd any missile with slingshots or any other weapon, or to d'[sturb their eggs or their young or their nests. Sec.10-4. - Keeping of animals ge�nerally. No person shall keep, possess or maintain an.y liee animal, including livestock ar fowl, within the village, except as follows: Dogs, cats, parrots, paralcee#s, canaries, rabbits, guinea. pigs, hamsters, gerbils, turtles and other animals that can be legally sotd in a licensed pet shop in the state may be kept, possessed and maintained as household pets wit�in the village so long as they are kept, possessed and maintained in compliance with the pravisions of this chapter; provided that these househ�ld pets do not constitute a nuisance to neighbors because of excessive noise or odors. Proper sanitary measures shall be observed and fallowed at a11 times in connection with the keeping, maintaining or gossessing of sucb pets. Sec. IQ-5. - Mazimum number of household pets. No person shall keep, maintain, possess or harbor any domesticated household pets or domesticated animals upon his premises greater fihan a total of six in number, and a violation of this limitation sha11 constitute prima facie evidence of creating and maintaining a nuisance and a violation of this cha.pter. Tl�e limitation established in this section shall not apply to dogs or ca.ts under f� �ee znonths of age or to fish. Sec. 10-6. - Deposit of excreta on public property or prnperty of anoi:her. {a) It shall be unlawful for any person to aid, abet, assist or allow any animal under his care, custody or control, or subject to his command, #o deposit or place on any of the public or private sidewalks, parkways or walkways or parts of streets, or public parks or ways on the oceanfront devoted to #he use of the pubIic, or upon premises ovv�ned by any person other than the owner ar custodian af such animal, any offal, feces or excreta of such animal. (b) The owner or custodian of any animal is bereby required to remove and dispose of, in a sanitary manner, the offal, feces oz excreta of any such animal deposited or placed in violation of this secfion. Removal of any such offal, feces or excreta in a sealed container shall constitute pxima facie complian.ce with this section. Sec. 10-7. - Abandonment. No person shall desert or abandon any dog,� or other animai within the village. Sec.10-8. - Animals creating nuisance. {a) The owner af any animal which habitually barks, whines, howls or causes othcr objectionable noi.se, or which destroys or damages any property of ano�er person or which causes serious annoyance to a neighboring residence and interferes with the reasonable use and enjoyment of his property, or which is otherwise offensive so as to crea.te a nuisance, shall be deemed to be committing an act in violation of this section. (b) Upon receipt af one affidavit of camplaint, signed by one resideat of the �illage, made under oath before an individual authorized by law to take acknowledgments, setting forth tl�e nature and the da.te of the act, the owner of the animal, the address of the owner and a description of the animal doing such act, the police officer, animal control officer or other authorized aeent of the vLla�e �s a�ent shall investigate the complaint to determine whether the act complai.ned of violates this section. Sec.10-9. - Animals wi#h contagiaus diseases. (a) ATa person owning any dog or cat, knowing it to be afflicted with any contagious disease or in an unhealthy c4ndition, shall permit such dog or cat to be out in public within the village limits. If a police officer anim ff�cer o au en e� suspects tha.t a dog or cat while running at large is nat in a healthy condition or that it is suffering from any contagious disease, such officer or shall tempararily im�pound such dog or cat, contact the apprapriate county agency and turn the animal over to such agency. Sec.10-10. - Raising or boarding animals or fowl. The raising or boarding of animals or fowl is prohibit,ed except where boarding is incidental to the operation of a veterinarian's office. Secs.10.11-10-30. - Reserved. ARTICLE II. – DOGS AND CATS Sec. 10-31. - Re�istration; inooulation. Sec.10-32. - Weari.ag of collaz atid tag, Sec. 10-33. - Unauthoz�zed removal of coilar or ta�. Sec. 10-34. - Dogs runrun� at lazge. Sec. 10-35. – Fera1 cats. Sec. 10- �. - Imnaundment. Sec. 1Q- 31 �b. - Enforcement. Secs. 10- �$ ��10-60. - Reserved. Sec. i0-31. - Registrahon; inoculatian. {a} Every person who is the owner, keeper or harborer of any dog or cat over the age of fow months within the village shall have such do� or cat reeistered and vaccinated bv a licensed veteri.nar'an a�ainst rabies at re�ular interv_als , in �cordance with the vaccine manufacturer's directi.ons as rea uired bv S ec. 828.30 �7orida Statutes * � • � �- �� �+ �. w. +�,e �,,,,.,+�. �i � uvaa u �J �. (b) Dogs shall at all times wear a ta.g denating currently effective registration and � inoculation data issued by �� authorized v terinarian/clinic or by the county animal control department. Cats shall not be required to wear a collaz or tag, but shall be required to be registered and inoculated pursuant to the provisions of this article. Sec.10-32. - Wearing of collar and tag. Every owner shall provide each dog mare than four months of age kept, harbored or ofilierwise maintained by him in the village wifi.Y► a sturdy collar to which the license tag refen�ed to in section 10-31 shall be securely fastened, and it shall be the owner's duty to mahe certain that the collax and tag are worn at a11 times by the dog e�se�� F - :-- i °•.M �� �'^ �� �° ' "�'' � ' , Cats shall nat be required #a be collared or tagged, . . , but sha11 be zequired to be licensed and inoculated pursuant to the provisions of this article. Sec.10-33. - Unaathorized removal of collar or tag. No person, other than the owner or keeper, sla.all remove or cause to be removed the collaz or tag required by sectian 10-32 from an.y dog or ca.t within the village. Sec.1.0-34. - Dogs running af large. No dog shall run at large within the village or upon the property other than �at of its owner unless the dog is running on properiy other than that of its owner with the express or implied consent of the owner af the property. n lowin� an� do� to n�ta_�.t laree contrarv to this section sha11 be guilry of a violation of this section. Sec. 10 — Feral cats � Villa.�e residents are enc tir�ged to voluntarilv narticinate in the Palm Beach Countv Animal Care and Control "Tran. 1�Ieuter and Aelease" nmgram for feral cats as contained i Sec 48 of the P m Beach Countv Animal Care and Conirol inan� p� i�fion in the nro�ram Eenerallv reauires volun#arv tranuin� of feral cats with trans that are manufactured for such n»���- ��ng the i�anned cat t0 t�16 untv facilitv and navin� the current fee for snavin�/ne� erin�. � The feedin� or ke�nin� of fer I cats whether or not in a feral cat col �. is nrohibited. unless the colonv has been re�istered with Palm Beach Countv Animal Care and Contxol and the cat(sl have been nrocessed throu� the cauntv "Tran, Neuter and Reiease" nro e� m as contained in Sec 4-8 af the Palm Beach Countv Animal Care and Control Ordinance. Sec.10- � �. - Impauadment. (a) Whenever a dog or cat is within the village in violation of the provisions of this article, any police officer oz er authorized agent of the viilage may take charge of such dag or cat and impound it and turn it over to the county animal control department or anv other licensed animal shelter facilitv, , within 24 hours. (h) Any police officer other authorized a.sen of the village who impounds or ofherwise acquires possession of a dog or cat which has a license tag aflixed shall make evezy effort to notify the owner as soon as is reasonably possible. (c} At any time prior to an impounded dog or cat being released to the county animal confirol department or anv other licensed animal shelter facili� #�e-� , the ownez of such dog or cat may apply for its release and such release shall be granted, provided the owner shall pay to the village a an administrative fee as set by resolution of the village council and on file in the village clerk's office, which shall compensate the village for all expenses incurzed in the capture, feeding and care of such dog or cat during the period of its retention by the village or under its authority. (d) Any owner of an impounded dag or cat who fails to pay the required administrative fee witlun 48 hours of the release of the owner's dog or ca.t shall be guilty of a violation of this section. Sec.10- � 36. - Enforcement. Consistent with law and this arkicle, the code enforcement special magistrate shall have jurisdiction to enforce this article wifhin the viltage corpozate linaits. Sec.10-3& — Dan�erous do�s. � e Villa�e of Tec�uesta. shall ufalize fihe Palm Beach Countv Animal Care and Control Ordinan.ce as it re�ulates aE ssive. dan�erous and vicious do�s. � No dog that has been declared to be a�ressive dan�erous or vicious mav b� brou�ht into aav do� nark or onto anv other nronertv owned or onerated bv the illage of Teauesta. Secs.10- �2 3�'�10-60. - Reserved. ARTICLE III. — SEA TURTLE PROTECTION. [This Article shail zemain in full forca and effect as previously adopted.] Section 2: Each and every otber Section and Subsection of Chapter 10. Animals. shall retnain in full force and effect as previously adopted. Section 3: All ordinances or parts of ordinances in canflict be and the same are hereby repealed. Section 4: Should any section or provision of this Ordinance or any portion thereof, any paragraph, sentence or word be declared hy a court of cornpetent jurisdiction to be in�alid, such decision shail not affect the validity of the remainder of this Ordinance. Sectioa 5: Specific authority is hereby granted to codify this Ordinance. Section 6: This Ordinance sha11 take effect immediately upon passage.