Fremont Municipal Code Art. II Administrative Appeal Hearing

(a) The animal services manager shall serve notice of the administrative appeal hearing and report, if applicable, by first-class mail with return receipt requested or personal delivery to the dog owner or person with a right to control the dog, at least five business days prior to the date set for hearing.

(b) The animal services manager may serve notice of the administrative appeal hearing by first-class mail with return receipt requested or personal delivery to all person(s) who have complained about the dog, to witnesses of the dog’s behavior, or to the owners of all the properties within 300 feet of the address where the dog has been maintained. The notice must be sent at least five business days prior to the date set for hearing. (Ord. 16-2018 § 1, 6-5-18.)

(a) All administrative appeals from actions taken under this chapter shall be heard as provided by this article. The hearing procedures specified in Cal. Food & Agric. Code § 31621 et seq. are expressly not adopted.

(b) A hearing under this section shall be informal and open to the public, but witnesses may be excluded. The person requesting the administrative hearing under this section must be present at the hearing. The hearing shall be conducted in accordance with this section before a hearing officer designated by the city manager or designee. The hearing officer shall audibly record the proceedings. The hearing officer shall regulate the course of the proceedings and shall permit the parties and may permit others to offer written or oral comments on the issues. The hearing officer may limit the use of subpoenas, witnesses, testimony, evidence, rebuttal, and argument. The hearing officer may allow the cross-examination of witnesses to the extent necessary to ensure a fair hearing and may limit cross-examination of witnesses as necessary to maintain proper decorum.

(c) At the hearing under this section, the dog owner or person with a right to control the dog and the city may be represented by counsel, may present evidence, and may cross-examine witnesses. Strict rules of evidence do not apply. Any relevant evidence may be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Relevant admissible evidence includes but is not limited to incident reports and witness affidavits. A formal oath is not required for witnesses to provide testimony.

(d) Unless provided otherwise, the city bears the burden of proof at the hearing. The owner or person with the right to control the dog has the burden of proof to demonstrate the existence of any mitigating circumstance that may apply.

(e) The decision of the hearing officer that the dog is a potentially dangerous dog or a vicious dog, or maintained in violation of the potentially dangerous dog permit, must be supported by evidence on the record and is final. If no evidence is entered at the hearing on behalf of either the dog owner or person with a right to control the dog, then the hearing officer may determine that the dog is a potentially dangerous dog or a vicious dog, or maintained in violation of the potentially dangerous dog permit, as alleged.

(f) The hearing officer must serve written notice of his or her decision by regular mail within 14 calendar days after the conclusion of the hearing to the dog owner or person with a right to control the dog, to the city, and to all persons who make a written request for a copy of the decision.

(g) Within 30 days of service of the hearing officer’s decision, both the dog owner and person with a right to control a dog that is deemed a potentially dangerous dog or a vicious dog must comply with all the provisions of the hearing officer’s decision. Either the failure of the dog owner or person with a right to control the dog to comply with all the provisions of the hearing officer’s decision will result in the surrender of the animal to the animal services manager to be disposed of in accordance with state law. The animal services manager may grant either the dog owner or person with a right to control the dog a 15-day extension to comply with the hearing officer’s decision for good cause, such as evidence of a good faith effort to comply and circumstances beyond the control of the dog owner or person with a right to control the dog. (Ord. 16-2018 § 1, 6-5-18.)

In any hearing conducted pursuant to this chapter, the hearing officer shall have the power to examine witnesses under oath and compel their attendance and/or the production of evidence before him or her by subpoenas issued by him or her in the name of the city. Failure to obey a subpoena issued by the hearing officer is a misdemeanor. At the time of service, the person serving any subpoena issued pursuant to this section may pay or offer to pay the witness a witness fee plus mileage at the current rates established by statute for attendance of a witness in civil action in superior court. (Ord. 16-2018 § 1, 6-5-18.)

(a) Any determination made after a hearing under Section 6.60.080 shall be final and conclusive and may not be appealed except as provided in subsection (b) of this section. The procedures specified in Cal. Food & Agric. Code § 31622 et seq. for judicial review are expressly not adopted.

(b) A petition for writ of mandate challenging a final decision under Section 6.60.080 may be filed in the superior court in accordance with the provisions of the California Code of Civil Procedure.

(c) The requirements of this chapter for keeping a potentially dangerous dog are not stayed pending judicial review unless expressly provided by court order.

(d) The owner or person with the right to control the dog may submit a written request to the animal services manager for a complete record of the proceedings which will be prepared and delivered to the owner or person with the right to control the dog as soon thereafter as reasonably possible. The owner or person with the right to control the dog may be charged the actual cost of transcribing or otherwise preparing the record. (Ord. 16-2018 § 1, 6-5-18.)

(a) A dog classified as vicious shall be destroyed after the later of the following dates:

(1) The expiration of the time to request a hearing under Section 6.60.060 when a hearing is not timely requested.

(2) Five days after personal service or seven days after service by mail of the administrative hearing decision, unless a written notice of intent to seek judicial review is delivered to the animal services manager or a petition for writ of mandate has been filed and a copy served on the city clerk.

(3) Twenty days after delivery of the notice of intent to seek judicial review of a final decision under Section 6.60.080, unless:

(A) An administrative stay under subsection (b) of this section is granted;

(B) A court has stayed destruction of the dog pending judicial review, then after the expiration of the court stay; or

(C) A petition for writ of mandate has been timely filed with the superior court and a filed endorsed copy has been timely served on the city of Fremont.

(4) If a petition for writ of mandate is filed with the superior court and the superior court upholds the administrative hearing officer’s decision finding the dog to be vicious, then two days after personal service or seven days after mail service of notice of entry of judgment.

(5) Five days after termination of an administrative stay under subsection (b) of this section, unless a petition for writ of mandate has been timely filed and a copy served on the city clerk.

(b) A dog owner or person with the right to control the dog may request a temporary administrative stay of the destruction of his or her dog pending the filing of a petition for writ of mandate by filing a written request for stay with the animal services manager and making an advanced payment for kenneling costs. The stay shall be granted and effective for a number of days equal to the number of days of advanced kenneling costs received. The temporary stay will terminate when a petition for writ of mandate has been timely filed and a copy served on the city clerk or at the expiration of the time to file a writ of mandate.

(c) The owner and person with a right to control the dog shall be jointly and severally liable to the city of Fremont for the cost of impoundment, kenneling, euthanasia, and disposal of the dog’s remains. (Ord. 16-2018 § 1, 6-5-18.)

The hearing officer may determine, after a potentially dangerous dog or a vicious dog hearing, or potentially dangerous dog permit compliance hearing, that the dog owner or person with a right to control a dog that has been deemed vicious or maintained in violation of the potentially dangerous dog permit should be prohibited from owning, possessing, controlling, or having custody of any dog for up to three years because his or her ownership or control of a dog would create a significant threat to the public health, safety, and welfare. (Ord. 16-2018 § 1, 6-5-18.)