Irvine Municipal Code Ch. 12 Barking Dog Violation and Civil Fine

A. Notwithstanding Section 4-5-709 of this Code, this chapter makes any violation for keeping, maintaining, or permitting a barking dog as defined in Section 4-5-1202B subject to civil fine.

B. This chapter establishes the procedures for the imposition, enforcement, collection and administrative review of civil fines for barking dog violations pursuant to Government Code § 53069.4 and the City's enforcement authority of the animal regulations.

C. The issuance of a civil citation under this chapter is solely at the City's discretion and is one option the City has to address barking dog violations. By adopting this chapter, the City does not intend to limit its discretion to utilize any other remedy, civil or criminal, including the enforcement of Section 4-5-709 of the Irvine Municipal Code's animal regulations.

D. The purpose of issuing civil citations pursuant to this chapter is to encourage voluntary and complete compliance with the provisions of this Code and to eliminate barking dog nuisances for the protection and benefit of the entire community.

(Ord. No. 09-10, § 1, 9-22-09)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, unless the context clearly indicates a different meaning:

A. Animal services means the field services unit of the City's Animal Services Program assigned to Public Safety.

B. Barking dog means a dog that barks, bays, cries, howls, or makes any noise audible beyond the boundaries of the property on which the dog is situated for an extended period of time to the disturbance of any person at any time of day or night, regardless of whether the dog is physically situated in or upon private property. Such extended period of time shall consist of incessant barking, baying, crying, howling, or making of any noise for 30 minutes or more in any 24-hour period, or intermittent barking, baying, crying, howling, or making any noise for 60 minutes or more during a 24-hour period. A dog shall not be deemed a "barking dog" for purposes of the chapter if at any time the dog is barking, a person is trespassing or threatening to trespass upon private property in or upon which the dog is situated, or when the dog is being teased or provoked.

C. City means the City of Irvine. For the purpose of payment of fines and penalties, the City shall mean the City's Finance Department.

D. Civil citation means a notice issued pursuant to this chapter that there has been a violation of this chapter.

E. Day or days, as used in this chapter, shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.

F. Director of Public Safety, for the purpose of this chapter, means the Chief of Police or his or her designee.

G. Enforcement officer means any animal services officer or law enforcement officer or any designated representative of the Director of Public Safety empowered to enforce the provisions of the animal regulations, including this chapter.

H. Hearing officer means a person or entity, private or public, employed or contracted by the City, appointed by the Director of Public Safety or his or her designee, to serve as a hearing officer for administrative hearings.

I. Issued means giving a civil citation to a violator. Issuance occurs on the date when a barking dog civil citation is personally served on the violator, or the date it is mailed to the property where the barking dog is located or where the barking dog violation occurred, or the date the citation is posted in a conspicuous place either on the property where the barking dog is located or where the barking dog violation occurred. When service is made by posting, the barking dog citation shall also be mailed within 24 hours of posting to any address known for the violator with return receipt requested.

J. Notice of decision means a form used by a hearing officer to inform a violator and/or complainant of an administrative hearing decision regarding the provisions of this chapter.

K. Owner means any person who possesses, has title to or an interest in, harbors or has control, custody or possession of a dog, and the verb forms of "to own" shall include all those shades of meaning.

L. Responsible person. A responsible person may also be referred to as a "violator" herein. A responsible person is any of the following:

1. A person who allows a barking dog violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog.

2. A person whose agent, employee, or independent contractor allows a barking dog violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog.

3. A person who is the owner of, or is a lessee or sub-lessee with the current right of possession of, real property in or upon which a barking dog violation occurs.

4. For the purposes of this chapter, "person" includes a natural person or legal entity, and the owners, majority stockholders, corporate officers, trustees, and general partners of a legal entity.

5. For the purpose of this chapter, there may be more than one responsible person for a barking dog violation.

(Ord. No. 09-10, § 1, 9-22-09)

A. Any enforcement officer has the authority to issue a civil citation to any responsible person for a barking dog violation that the enforcement officer did not see or hear occur based on a complaint, signed under penalty of perjury, lodged by a member of the community who has been disturbed by the barking dog. A responsible person to whom a civil citation is issued shall be liable for and shall pay to the City the fine or fines described in the barking dog citation when due.

B. Prior to issuing a civil citation for a barking dog, the responsible person shall be given, at minimum, a 10-day period within which to correct the problem. No civil citation for a barking dog will be issued prior to the complainant(s) completing and signing a formal complaint under penalty of perjury attesting to the violation(s).

C. The enforcement officer may, prior to the issuance of a civil citation:

1. Attempt to make personal contact with the responsible person(s) in person, by telephone or by registered letter in an effort to correct the problem.

2. Grant a reasonable extension period to permit additional time to correct the problem not to exceed 10 days.

3. Offer both parties (the responsible person and the complainant) the option to voluntarily attend mediation by an approved mediator or mediation service at their expense.

D. Each day a barking dog violation exists beyond the provisions described under B or C of this section shall be a separate violation and be subject to a separate citation and fine. A barking dog civil citation may include a violation for one or more days on which a violation exists, and for violation of one or more Code sections.

(Ord. No. 09-10, § 1, 9-22-09)

Each barking dog citation shall contain the following information:

A. Date on which a complaint or personal inspection established the barking dog violation(s).

B. Name of the responsible person for the barking dog violation(s), if known.

C. Address where the barking dog violation(s) occurred.

D. The Code section(s) violated.

E. Whether the violation(s) were established by inspection or by complainant.

F. Amount of the fine for the violation(s) and procedure to pay the fine to avoid a late payment penalty.

G. Designation of prior civil citations issued for the same Code violation(s), if known by the enforcement officer.

H. Procedure for paying the fine, including the location and manner, as well as the time period in which the fine must be paid and the consequences of failure to pay the fine.

I. Procedure for requesting an administrative hearing.

J. A warning that a barking dog violation is a nuisance and that a failure to pay the fine or request and appear at an administrative hearing result in Section 4-5-1212, including a description of the penalties.

K. Signature of the enforcement officer who issued the barking dog citation and/or civil fine.

L. Date upon which the barking dog citation and/or civil fine was issued.

M. Proof of service to be completed by the enforcement officer indicating whether the citation was issued by personal service, by mail, or by posting in a conspicuous place on the property where the barking dog violation occurred.

N. Any other information deemed necessary by the enforcement officer for enforcement or collection purposes.

(Ord. No. 09-10, § 1, 9-22-09)

A barking dog citation may be served as follows:

A. An enforcement officer may personally serve the barking dog citation on the responsible person. The responsible person shall be requested to sign a copy of the citation showing his or her receipt of the citation and notice of the responsible person's right to an administrative hearing. Signing the citation shall not constitute an admission of guilt.

B. An enforcement officer may mail the civil citation by certified mail, return receipt requested, if the property owner and/or occupier's name is known, but the violator is not present when personal service is attempted. The citation shall be mailed to the address where the barking dog violation occurred.

C. An enforcement officer may post a copy of the barking dog citation in a conspicuous place on the property where the barking dog violation occurred if the property owner and/or occupier's name is unknown. In this event, the citation shall also be mailed, addressed to the owner of the property where the barking dog violation occurred as reflected on the Criss Cross Directory, I-Leads or other source. A copy of the citation shall also be mailed within 24 hours of posting the citation addressed to "Resident" at the address where the barking dog violation occurred.

(Ord. No. 09-10, § 1, 9-22-09)

Fines for violating the provisions of this chapter shall be as established by resolution of the City Council, which may be amended from time-to-time.

Any fine not paid within 15 days of the date the civil citation was issued shall be subject to a late penalty in an amount equal to the unpaid fine, such that the total amount due shall be equal to double the unpaid fine amount.

(Ord. No. 09-10, § 1, 9-22-09)

A. After receiving a barking dog violation citation, a violator may respond by either of the following methods:

1. The violator may choose to correct the barking dog violation and pay the barking dog citation fine without contesting the fine in an administrative hearing. In that event, payment of the citation fine must be received by the Finance Department within 15 days from the date the civil citation was issued. Payment shall be made in person or by mailing the fine amount and a copy of the civil citation to the Finance Department by U.S. first class mail.

2. A violator may choose to request an administrative hearing as prescribed in Section 4-5-1208B. In the event that an administrative hearing is granted, the fine is due and payable to the hearing officer at the conclusion of the hearing if the hearing officer upholds the barking dog citation. The hearing officer may allow the violator an additional period of time within which to pay the fine if, in the hearing officer's sole discretion, such additional time for payment is necessary.

B. To avoid a late penalty, fines for barking dog violations must be received by the Director of Public Safety within 15 days of the date they are due as specified in Subparagraph A.1 or A.2 above or at the conclusion of an administrative hearing which is granted pursuant to this chapter when it is determined by the hearing officer that the violation did occur.

C. Payment of a fine shall not excuse the violator from correcting the barking dog violation. The issuance of a barking dog citation and/or payment of a fine shall not bar the City from taking any other enforcement action regarding a barking dog violation that is not corrected, including issuing additional civil barking dog citations and/or filing criminal complaints.

D. In the event that a fine imposed under the authority granted by this chapter remains unpaid for 15 days after it is due and payable pursuant to Subparagraph A.1 or A.2 above, an amount equal to the fine shall be added as a late penalty and the late penalty and fine shall become due immediately. If a hearing officer upholds the issuance of a citation in an administrative hearing, the late penalty will be assessed if the fine is not paid as required at the conclusion of the hearing, or other time of payment determined by the hearing officer. The failure to pay the penalty fine and/or late penalty shall constitute a criminal misdemeanor.

(Ord. No. 09-10, § 1, 9-22-09)

A. Purpose. It is the purpose and intent of the City Council to afford due process of law to any person who is issued a barking dog citation. Due process of law includes adequate notice, and opportunity to participate in a hearing, and an adequate explanation of the reasons justifying the fine.

B. Request for hearing. Within 10 days of the date the civil citation is issued, the violator must make a written request for a hearing. All requests must be submitted to the Director of Public Safety.

C. Notification of hearing. At least 20 calendar days prior to the date of the hearing, the City shall, by mail or personal service, give notice to the violator of the time, date, and location of the hearing.

D. Contesting the citation. Any person who receives a barking dog citation may contest the barking dog citation by attending an administrative hearing and denying that a violation occurred, by denying that it was not corrected within the original 10-day correction period or during an approved extension period, if applicable, or by denying that the violator is a responsible person for the violation. (Refer to Section 4-5-1207A.2 for the procedure to formally request an administrative hearing.)

E. Failure to appear. A failure to personally appear at a scheduled administrative hearing shall constitute an abandonment of any defense the violator may have to the barking dog citation.

(Ord. No. 09-10, § 1, 9-22-09; Ord. No. 19-12, Exh. A, 8-13-19)

A. Hearings shall be conducted by a hearing officer either:

1. On the assigned date, time and place specified when a hearing request is granted; or

2. On the date assigned when a continuance pursuant to Section 4-5-1209B.5 below has been granted.

B. The violator and complainant shall be notified of the assigned hearing date, time and location by the Director of Public Safety or his or her designee.

1. The Director of Public Safety or his or her designee will ensure all pertinent documents and records in the possession of animal services related to the barking dog citation are delivered to the hearing officer.

2. The violator and complainant shall be given the opportunity to testify and to present evidence relevant to the barking dog citation. An administrative hearing will be deemed abandoned by the violator or by the complainant if either fails to appear at the assigned hearing. Such abandonment shall also constitute a failure to exhaust administrative remedies concerning the violation set forth in the barking dog citation by either party.

3. The citation itself and accompanying complainant's affidavit signed under penalty of perjury attesting to the barking dog violation provided to the hearing officer shall be accepted by the hearing officer as prima facie evidence of the violation and the facts stated in such documents.

4. Neither the enforcement officer nor any other representative of the City shall be required to attend the hearing. However, any such appearance and/or additional submission may be made at the discretion of the enforcement officer or any other animal services employee. The hearing officer may request that the enforcement officer attend the hearing at his or her discretion.

5. The Director of Public Safety or his or her designee or the assigned hearing officer may continue a hearing once if a request for continuance is made showing good cause by a violator, a complainant, or a representative of the City. A hearing officer may also continue a hearing upon his or her own motion. All continuance requests shall either:

a. Be made in person at the hearing; or

b. Be made by a written request received by the Director of Public Safety or his or her designee via e-mail, facsimile or letter at least five days prior to the hearing date.

If a continuance is granted, the parties will be notified, and a new hearing date shall be scheduled within 10 working days of the date on which the original hearing was scheduled to occur. If the request for continuance is denied, the parties will be notified, and the hearing shall proceed as originally scheduled. If the violator or complainant is not present on an assigned hearing date and no continuance of the hearing has been granted, the hearing shall be deemed abandoned or dismissed in accordance with subsection C.3 below.

C. The hearing shall be conducted as follows:

1. The hearing shall be conducted informally and the legal rules of evidence shall not apply.

2. The hearing officer shall not have the authority to issue a subpoena or subpoena duces tecum.

3. The failure of the violator to appear at the hearing, unless the hearing was continued per subsection B.5 of this section, shall constitute an abandonment of the administrative hearing, and a failure to exhaust administrative remedies concerning the violation set forth in the barking dog citation. The violator's failure to appear shall be noted on the notice of decision completed by the hearing officer and mailed to the violator and complainant. The failure of the complainant to appear at the hearing, unless the hearing was continued per subsection B.5 of this section, shall constitute an abandonment of the complaint and shall be grounds for a dismissal of the barking dog citation. The complainant's failure to appear shall be noted on the notice of decision completed by the hearing officer and mailed to the violator and complainant.

(Ord. No. 09-10, § 1, 9-22-09)

A. After considering all the evidence and testimony submitted at an administrative hearing, the hearing officer shall issue a written decision to the violator and complainant to uphold or to dismiss the barking dog citation issued upon a conclusion of whether or not a violation occurred for which the violator was a responsible person. The hearing officer shall make such notification within 10 working days of the hearing date. The hearing officer's decision is final. The hearing officer has no discretion or authority to reduce the amount of a fine.

B. If the hearing officer's decision is to uphold the barking dog citation, the civil fine imposed for the violation shall be due at the conclusion of the administrative hearing, or at some other time as directed by the hearing officer. If the decision is to dismiss the barking dog citation, the civil fine shall no longer be due and payable.

C. Whenever the hearing officer is not a City employee, the hearing officer's continued employment, performance evaluation, compensation, and benefits shall not directly or indirectly be linked to the amount of citations upheld or dismissed, or the amount of fines, by the hearing officer.

(Ord. No. 09-10, § 1, 9-22-09)

A. A responsible person may seek judicial review of the administrative hearing decision by filing an appeal with the Superior Court within 20 calendar days after the responsible person receives a copy of the notice of decision at the conclusion of the hearing in accordance with the provisions of California Government Code § 53069.4. The appeal filed with the court must also contain a proof of service showing that a copy of the appeal was served upon "City Clerk of the City of Irvine, #1 Civic Center Plaza, Irvine, California 92623-9575". The responsible person must pay the appropriate Superior Court filing fee when the appeal is filed.

B. No judicial appeal is permitted where a violator has failed to appear at an assigned administrative hearing, or is deemed to have abandoned the contest of the barking dog citation by an unexcused nonappearance at the hearing, or where a citation has been dismissed by a hearing officer because a complainant has failed to appear at an assigned administrative hearing.

(Ord. No. 09-10, § 1, 9-22-09)

A. The City at its discretion may pursue any and all legal and equitable remedies for the collection of unpaid fines and late penalties. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines and late penalties owed by a violator under this chapter have been collected.

B. Failure to timely remit payment of a citation fine and/or late penalty authorized under Section 4-5-1207D above may result in criminal liability. Nonpayment of such fine and/or late penalty shall be a misdemeanor.

(Ord. No. 09-10, § 1, 9-22-09)