Article 2 — KEEPING AND RESTRAINT OF DOGS AND CATS

Editor's note— Section 1 of Ord. No. 2836, adopted May 6, 1975, repealed former art. 2, §§ 4-1-17—4-1- 21, 4-1-27—4-1-31 and 4-1-37—4-1-41, relative to animal licenses, and derived from Code 1961, §§ 41.021—41.0215. Section 3 of said ordinance enacted a new art. 2, §§ 4-1-45—4-1-50, as herein set out.

SUBARTICLE 1. - GENERALLY[3]

Editor's note— Ord. No. 06-011, § 2, adopted November 21, 2006, amended the Code by adding a Subarticle 2 to this article; therefore, the Subarticle 1 heading was added at the discretion of the editor.

No person owning or having charge, care, custody, or control of any dog shall cause or permit, either willfully or through failure to exercise due care or control, any such dog to be upon any private property unless such dog be restrained thereon by a fence, wall, substantial chain, leash not exceeding six (6) feet in

length, other appropriate physical restraint, or is under the charge of a person competent to exercise care, custody, and control over such dog.

No person owning or having charge, care, custody, or control of any dog shall cause or permit, either willfully or through failure to exercise due care or control, any such dog to be upon any public property unless such dog be restrained by a substantial chain, or leash not exceeding six (6) feet in length, and is under the charge of a person competent to exercise care, custody, and control over such dog, unless the owner or operator of such public property grants written permission for such dog to be on such property without such chain or leash.

(Ord. No. 2836, § 3, 6-6-75; Ord. No. 2908, § 1, 5-4-76)

No person having the charge of any dog, except a blind, deaf or disabled person with his or her guide dog, signal dog or service dog, or a person training a guide, signal or service dog, shall permit said dog to be under any circumstances within public school property, the county park known as Upper Newport Bay, any public beach, or any building owned or occupied by the County, including any space in buildings partially occupied by the County.

Exceptions. The provisions of this section are not applicable to dogs that are in direct supervision of County personnel or in areas designated by the Board of Supervisors as allowing dogs. In the event the Board of Supervisors, by resolution, authorizes dogs to be upon any public beach, the provisions of this section shall not be applicable thereto.

The terms "guide dog," "service dog," and "signal dog," in this section shall be given the same meaning as set forth in Penal Code Section 365.5.

(Ord. No. 2836, § 3, 5-6-75; Ord. No. 2908, § 1, 5-4-76; Ord. No. 98-15, § 32, 12-8-98; Ord. No. 08-011, § 1, 5-6-08)

Every person owning or having charge of any female cat or dog shall strictly confine such animal during its breeding season (i.e., while it is in heat) in a building or other enclosure adequate to keep such cat or dog confined.

(Ord. No. 2836, § 3, 5-6-75)

(a)

No person shall keep, maintain, or permit, either willfully or through failure to exercise proper control, on any lot, parcel of land or premises under his or her control any animal:

(1)

Which by sound or cry shall disturb the peace and comfort of the inhabitants of the neighborhood, or

(2)

Which affects an entire community or neighborhood, or any considerable number of persons, although the extent of annoyance or damage may differ, or

(3)

Which interferes with any person in the reasonable and comfortable enjoyment of life or property.

(b)

Violation of the noise standards set out in section 4-6-5 shall be treated as a violation of this section.

(c)

Violation of either subsection (a) or (b) above, or both, may form the basis of a violation of this section. Nothing herein shall be deemed to require performance of any test or other measurement except as required to prove a violation of section 4-6-5.

(d)

Noise generated by animals utilized in the production of crops, livestock or poultry is not subject to this section.

(e)

A violation of this section is a public nuisance.

(f)

The existence of such nuisance for each and every day after the service of a notice in writing from the Director or his authorized deputies and agents, or district attorney or city attorney or prosecuting attorney, to remove, discontinue or abate may be deemed a separate and distinct offense.

(Ord. No. 2836, § 3, 5-6-75; Ord. No. 2908, § 1, 5-4-76; Ord. No. 04-009, § 1, 6-8-04)

No person, owning or having care, custody, or control of any animal, shall permit, either willfully or through failure to exercise proper control, such animal to trespass or be upon any private property of another person without the consent of such person.

(Ord. No. 2836, § 3, 5-6-75; Ord. No. 2908, § 1, 5-4-76)

A person having custody of any dog shall not permit, either willfully or through failure to exercise due care or control, any such dog to defecate or urinate upon:

(a)

A public sidewalk or parkway comprising the area between the street and sidewalk:

(b)

The floor of any common hall in any apartment house, tenement house, motel or other multiple dwelling;

(c)

Any entranceway, stairway or wall immediately abutting on a public sidewalk;

(d)

The floor of any theatre, shop, store, office building or other building used by the public; or

(e)

Any County park or beach.

The person having custody of any dog shall immediately remove any feces deposited by such dog.

(Ord. No. 2836, § 3, 5-6-75)

(a)

Dog owners and custodians of dogs shall, at all times, take all reasonable precautions to prevent their dogs from biting, attacking or attempting to bite any person or from interfering with the use of public or private property. It shall be unlawful for any person to fail to comply with this subsection.

(b)

Any person owning or having custody or control of a vicious dog commits a violation of this Code if, as a result of that person's failure to exercise ordinary care, the dog bites, attacks, wounds or otherwise injures or kills a human being and the owner or custodian knew or should have known of the vicious or dangerous nature of the dog.

(c)

Nothing in this section shall authorize the bringing of a criminal action pursuant to a violation of subsection (a) or (b) of this section if the bite, attack, attempted bite, injury or threat was sustained by a person who, at the time, was committing a willful trespass upon the premises occupied by the owner or custodian of the dog, or was committing or attempting to commit a crime upon the premises occupied by the owner or custodian of the dog, or was teasing, tormenting, abusing or assaulting the dog or who has, in the past, teased, tormented, abused or assaulted the dog.

(Ord. No. 3693, § 5, 3-22-88)

Secs. 4-1-52—4-1-59. - Reserved. SUBARTICLE 2. - BARKING DOG VIOLATION AND/OR ANIMAL NUISANCE CIVIL FINE[4]

Editor's note— Ord. No. 17-008, § 1, adopted September 12, 2017 changed the title of subarticle 2 from "Barking Dog Violation and Civil Fine" to "Barking Dog Violation and/or Animal Nuisance Civil Fine."

(a)

Any violation for keeping, maintaining, or permitting a barking dog or any animal nuisance as defined in section 4-1-3 is subject to civil fine.

(b)

This subarticle establishes the administrative procedures for the imposition, enforcement, collection, and administrative review of civil fines for barking dog and animal nuisance violations pursuant to Government Code section 53069.4 and the County's plenary police power.

(c)

The issuance of a Civil Citation under this subarticle is solely at the County's discretion and is one option the County has to address barking dog or animal nuisance violations. By adopting this subarticle, the County does not intend to limit its discretion to utilize any other remedy, civil or criminal in nature.

(d)

The purpose of issuing Civil Citations pursuant to this subarticle 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.

(e)

Noise generated by animals while actively utilized in the production of crops, or commercial livestock or commercial poultry; or animals maintained at a facility established pursuant to Government Code section 25802, are not subject to this section.

(Ord. No. 06-011, § 2, 11-21-06; Ord. No. 17-008, § 2, 9-12-17)

The following definitions apply to the use of these terms for the purposes of this subarticle:

(a)

OC Animal Care means the department within Orange County Community Resources authorized to perform the functions described in sections 4-1-1 through 4-1-180 of this Division and any other ordinance or law that delegates such authority to the OC Animal Care department or its director.

(b)

County means the County of Orange.

(c)

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

(d)

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, excluding any holidays.

(e)

Director means the OC Animal Care Director, or his or her designee.

(f)

Enforcement Officer means any OC Animal Care employee or agent designated in writing by the Director.

(g)

Hearing Officer means a person designated to serve as a Hearing Officer for administrative hearings. Any hearing officer designated shall be designated from among those individuals appointed by the County Executive Officer, or designee, for the purpose of conducting administrative hearings.

(h)

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

(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 subarticle.

(j)

Complainant means any person who witnesses, observes or experiences a barking dog or animal nuisance violation per section 4-1-3 definitions. For the purposes of this section, a complainant cannot be a party that files on behalf of another person who witnesses the violations such as a landlord or property management company.

(k)

Owner means any person who possesses, has title to or an interest in, harbors or has control, custody or possession of a dog, or any other animal 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 or animal nuisance violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog or any other animal nuisance.

(2)

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

(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 animal nuisance violation occurs.

(4)

For purposes of this subarticle, "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 subarticle, there may be more than one responsible person for a barking dog or animal nuisance violation. A responsible person, subject to the provisions of this subarticle, must be at least eighteen (18) years of age.

(Ord. No. 06-011, § 3, 11-21-06; Ord. No. 17-008, § 3, 9-12-17)

(a)

Any Enforcement Officer has the authority to issue a civil citation to any responsible person for a barking dog or animal nuisance 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 animal nuisance. A responsible person to whom a civil citation is issued shall be liable for and shall pay to the County the fine or fines described in the barking dog or animal nuisance

citation when due. In any case, the responsible person shall have the right to appeal the issuance of the citation pursuant to the provisions of this subarticle.

(b)

Prior to issuing a civil citation for a barking dog or animal nuisance the responsible person shall be given a ten (10) day period within which to correct the problem. If after this (10) ten day period, the barking dog or animal nuisance issue still occurs, the complainant shall be given a thirty (30) day period in which to report a subsequent violation by the completion of an affidavit, signed under penalty of perjury, reporting the date and time of the violation.

If a subsequent violation is not reported within the thirty (30) day period, the complainant must start the process over and file another initial complaint, allowing for ten (10) day waiting period, if they choose to continue the complaint.

(c)

A barking dog or animal nuisance 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.

(d)

The filing of an initial complaint opens a file for the complainant against the responsible person. Each file shall remain open until the expiration of the thirty (30) day period without the issuance of a citation, or until a citation is ultimately dispositioned by an administrative Hearing Officer or voided by OC Animal Care. A respective complainant can only have one (1) open complaint against a respective responsible person at any time.

(Ord. No. 06-011, § 4, 11-21-06; Ord. No. 17-008, § 4, 9-12-17)

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

(a)

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

(b)

Name of the responsible person for the barking dog or animal nuisance violation(s) (if known).

(c)

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

(d)

The Code section(s) violated.

(e)

Whether the violation(s) were established 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 animal nuisance 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 animal nuisance citation and/or civil fine.

(l)

Date upon which the barking dog or animal nuisance 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 animal nuisance violation occurred.

(n)

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

(o)

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

(Ord. No. 06-011, § 5, 11-21-06; Ord. No. 17-008, § 5, 9-12-17)

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

(a)

An Enforcement Officer may personally serve the barking dog or animal nuisance 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 animal nuisance violation occurred.

(c)

An Enforcement Officer may post a copy of the barking dog or animal nuisance citation in a conspicuous place on the property where the barking dog or animal nuisance 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 animal nuisance violation occurred as reflected in a reliable database or other resource that is assessable to the Enforcement Officer as researched using research from a reliable source. A copy of the citation shall also be mailed within twenty-four (24) hours of posting the citation addressed to "Responsible Party" at the address where the barking dog violation occurred.

(Ord. No. 06-011, § 6, 11-21-06; Ord. No. 17-008, § 6, 9-12-17)

Fines for a barking dog or animal nuisance violation (per citation) as provisioned within this subarticle, shall be as follows:

First offense: .....$250.00

Second offense within same 12-month period: .....$275.00

Third offense within same 12-month period: .....$303.00

Fourth offense within same 12-month period: .....$333.00

Fifth offense within same 12-month period: .....$366.00

Sixth and subsequent offense within same 12-month period: .....$403.00

Any fine not paid within thirty (30) days of due date (by US postmark) shall be calculated as follows:

The amount of the appropriate fine listed above added to a late penalty in the same amount as the fine such that the total amount due is double the unpaid fine amount.

(Ord. No. 06-011, § 7, 11-21-06; Ord. No. 17-008, § 7, 9-12-17)

(a)

After receiving a barking dog or animal nuisance violation citation, a violator may respond by either of the following methods:

(1)

The violator may choose to correct the barking dog or animal nuisance violation and pay the barking dog or animal nuisance citation fine without contesting the fine in an administrative hearing. In that event, payment of the citation fine must be received by the Director prior to the date assigned for administrative hearing as noted in the citation. 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 County, or to any address.

(2)

A 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 OC Animal Care within thirty (30) days from the conclusion of the hearing if the Hearing Officer upholds the barking dog citation.

(b)

To avoid a late penalty, fines for barking dog or animal nuisance violations must be received by the Director within thirty (30) days of the date they are due as specified in subparagraph (a)(1) or (a)(2) above.

(c)

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

(d)

In the event that a fine imposed under the authority granted by this subarticle remains unpaid for thirty (30) 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.

(Ord. No. 06-011, § 8, 11-21-06; Ord. No. 17-008, § 8, 9-12-17)

(a)

Any person who receives a barking dog or animal nuisance citation may contest it by appearing at the assigned administrative hearing date, time and location noted on the barking dog or animal nuisance citation. A violator may contest the barking dog or animal nuisance 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 animal nuisance 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 animal nuisance citation.

(Ord. No. 06-011, § 9, 11-21-06; Ord. No. 17-008, § 9, 9-12-17)

(a)

Hearings shall be conducted by a Hearing Officer either: (i) on the date, time and place specified in the barking dog citation, or (ii) on the date assigned when a continuance pursuant to section 4-1-59.9(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 Director or his/her designee will provide all pertinent documents and records in the possession of OC Animal Care related to the barking dog citation or animal nuisance citation to the Hearing Officer.

(c)

The violator and complainant shall be given the opportunity to testify and to present evidence relevant to the barking dog or animal nuisance citation. Either party may have legal representation at the hearing, but the testimony of what was observed by either party must come from the party themselves.

(d)

The citation itself and accompanying complainant's affidavit signed under penalty of perjury attesting to the barking dog or animal nuisance 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.

(e)

The Enforcement Officer shall not be required to attend the hearing. However, any such appearance and/or additional submission may be made at the discretion of other OC Animal Care employees.

(f)

The Director may continue a hearing once if a timely request for continuance is made showing good cause by a violator, a complainant, or a representative of the County. A request to the Director is timely only if received at least seven (7) days prior to the scheduled hearing. Such a request shall be made to, in writing and received by the Director via e-mail, facsimile or letter. 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 continued hearing was first scheduled to take place.

(1)

A Hearing Officer may also continue a hearing once upon his or her own motion if a request for continuance, showing good cause, is made by a complainant, responsible person, or a representative of the County. Such a request shall be made in written form and received by the Director via e-mail, facsimile or letter up to the date of the administrative hearing, to be included in the administrative file, or be made in person at the administrative hearing. If such a request for continuance is received, the Hearing Officer may approve or deny the request upon his or her own motion. If such a request for a continuance is granted, the parties will be notified, and a new hearing date shall be scheduled that is within thirty (30) days of the date on which the original hearing, or first continuance of the hearing was scheduled to take place, whichever is later. 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 (i) below.

(g)

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

(h)

The Hearing Officer does not have the authority to issue a subpoena or subpoena duces tecum.

(i)

The failure of the violator to appear at the hearing, unless the hearing was continued per subsection (f) above, shall constitute an abandonment of the administrative hearing, and a failure to exhaust administrative remedies concerning the violation set forth in the barking dog or animal nuisance 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 (f) above, 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. 06-011, § 10, 11-21-06; Ord. No. 17-008, § 10, 9-12-17)

(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 animal nuisance 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 animal nuisance citation, the civil fine imposed for the violation shall be due within thirty (30) days of the hearing. If the decision is to dismiss the barking dog or animal nuisance citation, the civil fine shall no longer be due and payable.

(c)

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 upheld, by the Hearing Officer.

(Ord. No. 06-011, § 11, 11-21-06; Ord. No. 17-008, § 11, 9-12-17)

(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. The appeal filed with the court must also contain a proof of service showing that a copy of the appeal was served upon "Clerk of the Board of Supervisors, County of Orange, Robert E. Thomas Hall of Administration Building, 10 Civic Center Plaza, Room 465, Santa Ana, California 92702." The responsible person must pay the appropriate Superior Court filing fee when the appeal is filed.

(b)

Pursuant to section 1010.6 of the Code of Civil Procedure, rule 2.253(b)(2) of the California Rules of Court, Orange County Superior Local Rule 352, and Local Rule 601.01 all documents filed by attorneys in limited civil must be filed electronically unless the Court rules otherwise. Self-represented parties are exempt from the mandatory electronic filing requirement set for in the Orange County Superior Court Local Rule 352, and Local Rule 601.01 and but strongly encouraged to participate voluntarily in electronic filing and service.

(c)

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. 06-011, § 12, 11-21-06; Ord. No. 17-008, § 12, 9-12-17)

(a)

The County 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 subarticle have been collected.

(b)

Failure to timely remit payment of a citation fine and/or late penalty authorized under section 4-1-59.7(d) 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 pursuant to section 1-1-34, punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the County jail for a period of not more than six (6) months or by both such fine and imprisonment.

(Ord. No. 06-011, § 13, 11-21-06; Ord. No. 17-008, § 13, 9-12-17)