Ontario Municipal Code Art. 2.5 Barking Dog and Noisy Animal Violations and Civil Fines

For the purposes of this Article, unless otherwise apparent from the context, certain words and phrases used in this Article are defined as follows:

(a) "Barking dog" means a dog that barks, bays, cries, howls or makes any noise 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 for 30 minutes or more in any 24-hour period, or intermittent barking for 60 minutes or more during any 24-hour period. A dog shall not be deemed a "barking dog" for purposes of this 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.

(b) "Civil Citation" means a notice issued pursuant to this Article that there has been a violation of this Chapter.

(c) "Day or Days" as used in this Article 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.

(d) "Director" means the Community Improvement Director, or his or her designee.

(e) "Enforcement Officer" means the City Manager, Police Chief, Humane Officer, City Health Officer, Sheltermaster, Community Improvement Officer, or other such persons as the Council may designate.

(f) "Hearing Officer" means the person designated by the City Manager, or his or designee, to serve as the overseeing authority for administrative hearings held pursuant to this Article 2.5.

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

(h) "Noisy Animal" shall mean any animal other than a dog that makes a noise which emanates from the animal. The noise must be for an extended period of time to the disturbance of another person, either continuously for 30 minutes or more in any 24-hour period, or intermittently for a total of 60 or more accumulated minutes during any 24-hour period. An animal shall not be considered a "noisy animal" for purposes of this Article if the animal is making noise because a person is trespassing or threatening to trespass upon private property in or upon which the animal is situated, or when the animal is being teased or provoked, or if the animal is injured.

(i) "Notice of Decision" means a form used by a Hearing Officer to inform a violator and/or complainant of an administrative hearing decision regarding provisions of this Chapter.

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

(k) 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 or noisy animal violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog or noisy animal.

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

(3) A person who is the owner of, and a person who is a lessee or sublessee with the current right of possession of, real property in or upon which a barking dog or noisy animal violation occurs.

(4) For purposes of this Article, "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 purposes of this Article, there may be more than one Responsible Person for a barking dog or noisy animal violation, and a minor at least fourteen (14) years of age may be a Responsible Person subject to the provisions of this Article.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) This Section makes any violation for keeping, maintaining, or permitting the behavior of a barking dog or noisy animal, as defined in § 6-1.250, subject to civil fine.

(b) This Article therefore establishes the administrative procedures for the imposition, enforcement, collection, and administrative review of civil fines for barking dog or noisy animal violations pursuant to Government Code section 53069.4 and the plenary police power of the City.

(c) The issuance of a civil citation under this Article is solely at the City's discretion. By adopting this Article, the City does not intend to limit its discretion to utilize any other remedy, civil or criminal, including declaring a barking dog or noisy animal a public nuisance and abating as such.

(d) The purpose of issuing civil citations pursuant to this Article is to encourage voluntary and complete compliance with the provisions of this Code and to eliminate nuisances for the protection and benefit of the entire community.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) A barking dog or noisy animal, as defined in § 6-1.250, may be declared to be a public nuisance that may be abated as provided in this Section.

(b) A barking dog or noisy animal may be deemed a public nuisance when two or more declarations, made under penalty of perjury and made by declarants living in separate households, are filed with the Enforcing Officer within a sixty (60) day period stating in detail all of the following:

(1) That the declarant is a resident of a residential neighborhood located within 200 yards of the boundaries of the premises where the dog or animal is located;

(2) Within the past month declarant has heard the dog bark or animal make noise for substantially long periods to the extreme annoyance of the declarant.

(c) Upon receipt of two such declarations, the Enforcing Officer shall assign an officer to investigate the complaints. The officer shall personally interview both the complainants and the Owner and/or Responsible Party.

(d) If the investigating officer determines that there is merit to the complaints, the Owner and/or Responsible Party shall be notified by the officer that the dog's barking, or animal's noises, is annoying the neighbors and that it must be abated.

(e) If any further declaration is received by the Enforcing Officer concerning the same barking dog or noisy animal, within a six (6) month period from the last of the initial declarations, the Enforcing Officer may take action by notifying the Owner and/or Responsible Party by certified mail, return receipt requested, that an administrative hearing is to be held. Such administrative hearing will be held in accordance with the provisions of § 1-5.08 of this Code.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) In addition to treating a barking dog or noisy animal as a public nuisance, any Enforcement Officer also has the authority to issue a civil citation to any Responsible Person for a barking dog or noisy animal 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 or noisy animal. 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 or noisy animal citation when due. Where the Responsible Person is a minor under the age of eighteen (18) years, the minor's parents or legal guardian shall be liable for and held responsible for payment of their minor child's citation fines and/or late penalties. In any case, the Responsible Person (or his/her parents or legal guardian, when the Responsible Person is under the age of eighteen) shall have the right to appeal the issuance of the citation pursuant to the provisions of this Article.

(b) Prior to issuing a civil citation for a barking dog or noisy animal, the Responsible Person shall be given a 10-day period within which to correct the problem.

(c) Each day a barking dog or noisy animal violation exists beyond the initial 10-day period allowed for correction shall be a separate violation and may be subject to a separate citation and fine. A barking dog or noisy animal civil citation may include a violation for one (1) or more days on which a violation exists, and for violation of one (1) or more Code sections.

(§ 3, Ord. 3229, eff. January 19, 2023)

Each barking dog or noisy animal citation shall contain the following information:

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

(b) Name of the Responsible Person for the barking dog or noisy animal violation(s) (if known).

(c) Address where the barking dog or noisy animal violation(s) occurred.

(d) The Code sections 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) Notification of an assigned administrative hearing date, time and location where the civil fine may be contested.

(i) Description of the procedure for requesting a continuance of the assigned administrative hearing.

(j) A notice that a barking dog or noisy animal violation is a nuisance and that collection of unpaid fines and/or penalties can result in additional fines, penalties and/or imprisonment in the County jail.

(k) Signature of the Enforcement Officer who issued the barking dog or noisy animal citation and/or civil fine.

(l) Date upon which the barking dog or noisy animal citation and/or civil fine was issued.

(m) Proof of service to be completed by the Enforcement Officer indicating whether citation was issued by personal service, by mail, or by posting in a conspicuous place on the property where the barking dog or noisy animal violation occurred.

(n) A self-addressed envelope in which the violator can mail the civil fine to the City if the citation is not contested.

(o) Any other information deemed necessary by the Enforcement Officer for enforcement or collection purposes.

(§ 3, Ord. 3229, eff. January 19, 2023)

A barking dog or noisy animal citation may be served as follows:

(a) An Enforcement Officer may personally serve the barking dog or noisy animal 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 or noisy animal violation occurred.

(c) An Enforcement Officer may post a copy of the barking dog or noisy animal citation in a conspicuous place on the property where the barking dog or noisy animal 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 or noisy animal violation occurred as reflected on the County's property tax rolls. 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 or noisy animal violation occurred.

(§ 3, Ord. 3229, eff. January 19, 2023)

Fines for violating the provisions of this Article shall be as follows:

(a) An administrative fine not exceeding one hundred dollars ($100) for a first violation.

(b) An administrative fine not exceeding two hundred dollars ($200) for a second violation within one (1) year of the first violation.

(c) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one (1) year of the first violation.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) After receiving a barking dog or noisy animal citation pursuant to § 6-1.256, the violator may respond by either of the following methods:

(1) The violator may choose to correct the barking dog or noisy animal violation and pay the fine stated in the citation to the City within thirty (30) days from the date of the citation. A late payment of twenty dollars ($20) shall be charged if the fine is not paid within thirty (30) days of the citation date. Payment shall be made by enclosing the fine amount by check or money order in the self-addressed envelope attached to the civil citation and mailing the envelope to the Director by U.S. first class mail, postage prepaid. The Director may authorize payment to be made in accordance with any other method, at any location within the City, or to any address.

(2) The violator may choose to appear at an administrative hearing on the assigned administrative hearing date contained in the citation. In that event, the fine is due and payable to the Hearing Officer at the conclusion of the hearing if the Hearing Officer upholds the barking dog or noisy animal 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) Payment of a fine shall not excuse the violator from correcting the barking dog or noisy animal violation. The issuance of a barking dog or noisy animal citation and/or payment of a fine shall not bar the City from taking any other enforcement action regarding a barking dog or noisy animal violation that is not corrected, including issuing additional barking dog or noisy animal citations and/or criminal complaints.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) Any person who receives a barking dog or noisy animal citation may contest it by appearing at the assigned administrative hearing date, time and location noted on the barking dog or noisy animal citation. A violator may contest the barking dog or noisy animal citation by denying that a violation occurred, by denying that it was not corrected within the original ten (10) day correction period, if applicable, or by denying that the violator is a Responsible Person for the violation.

(b) If the citation fine is not paid prior to the assigned date and time of the administrative hearing noted on the barking dog or noisy animal citation, the violator must personally attend the administrative hearing on the date, time and place specified. A failure to personally appear at the administrative hearing shall constitute an abandonment of any defense the violator may have to the barking dog or noisy animal citation.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) Hearings shall be conducted by a Hearing Officer either: (i) on the date, time and place specified in the barking dog or noisy animal citation, or (ii) on the date assigned when a continuance pursuant to subsection (f) below has been granted. The violator and complainant shall be notified of the assigned hearing date, time and location by the Director or his/her designee.

(b) The violator and complainant shall be given the opportunity to testify and to present evidence relevant to the barking dog or noisy animal citation.

(c) The citation itself and accompanying complaint's affidavit signed under penalty of perjury attesting to the barking dog or noisy animal 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.

(d) Neither the Enforcement Officer nor any other representative of the City shall be required to attend the hearing.

(e) The failure of the recipient of an administrative citation to appear at the administrative citation hearing, including after a continuance is granted pursuant to subsection (f) below, shall constitute forfeiture of the fine and a failure to exhaust his/her administrative remedies.

(f) The Director may continue a hearing one time upon a request for continuance made by the violator, complainant, or a representative of the City, which request must be based upon a showing of good cause. A Hearing Officer may also continue a hearing upon his or her own motion to request additional information with respect to the violation. All continuance requests shall either: (i) be made in person at the hearing, or (ii) be made by a written request received by the Director via e-mail, facsimile or letter at least one week (7 days) prior to the hearing date. If a continuance is granted, the parties will be notified, and a new hearing date shall be scheduled that is within fourteen (14) days of the date on which the hearing was first scheduled to take place. If the request for continuance is denied, the parties will be notified, and the hearing shall proceed as originally scheduled.

(g) The hearing shall be conducted informally, and the legal rules of evidence need not be followed.

(h) The Hearing Officer is not required to provide transcriptions of hearings, but is required to make available tapes of hearings for a fee.

(§ 3, Ord. 3229, eff. January 19, 2023)

(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 or noisy animal citation based upon a conclusion of whether or not a violation occurred for which the violator was a Responsible Person. 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 or noisy animal 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 or noisy animal citation, the civil fine shall no longer be due and payable.

(c) The employment, performance evaluation, compensation and benefits of the Hearing Officer shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld by the Hearing Officer.

(§ 3, Ord. 3229, eff. January 19, 2023)

(a) A Responsible Person may seek judicial review of the administrative hearing decision by filing an appeal with the Superior Court within twenty (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 section 53069.4.

(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 or noisy animal 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.

(§ 3, Ord. 3229, eff. January 19, 2023)

(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 § 6-1.257 above will result in criminal liability and a warrant may be issued for a violator's arrest. Nonpayment of such fine and/or late penalty shall be a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the County jail for a period of not more than six (6) months or by both such fine and imprisonment.

(§ 3, Ord. 3229, eff. January 19, 2023)