Part 3 — POTENTIALLY DANGEROUS, DANGEROUS OR VICIOUS DOG HEARING OR COMPLIANCE

A.

A hearing to determine whether a dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, must be scheduled by the hearing officer upon filing any of the following:

A report filed by an animal services officer with the hearing officer stating that there are reasonable grounds to believe a dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit; or

A request by either the dog owner/guardian or person with a right to control the dog seeking the release of a dog from impoundment pursuant to Section 7.30.060; or

A request by either the dog owner/guardian or person with a right to control a dog that has been declared potentially dangerous, dangerous or vicious in another jurisdiction and that now resides in the city.

B.

Whenever possible, the report filed by the animal services officer must include a sworn and verified statement from the complainant pursuant to Food and Agricultural Code Section 31621, as may be amended.

C.

Once the hearing officer has decided, in accordance with Section 7.30.330 that a dog is not potentially dangerous, dangerous, or vicious, or that the dog is maintained in compliance with the special dog permit, then the hearing officer may not schedule another hearing based on the same incident(s) unless an animal services officer, upon investigation, has determined that there are reasonable grounds to believe the dog is potentially dangerous, dangerous, or vicious, or that the dog is not being maintained in compliance with a special dog permit.

(Ord. 28079.)

Pursuant to Food and Agricultural Code Section 31621, as may be amended, the administrator may cause a notice and report to be mailed first class with return receipt requested or otherwise personally delivered to the dog owner/guardian or person with a right to control the dog, at least five (5) business days prior to the date set for hearing, in substantially the following form:

NOTICE OF HEARING REGARDING POTENTIALLY DANGEROUS, DANGEROUS OR VICIOUS DOG, OR COMPLIANCE HEARING

NOTICE IS HEREBY GIVEN that pursuant to the provisions of Chapter 7.30 of Title 7 of the San José Municipal Code, an Animal Services Officer has reported that there is reasonable cause to believe your dog

is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit.

FURTHER NOTICE IS HEREBY GIVEN that on the _________ day of _________ 20________, at the hour of _________ o'clock, in the office of the Hearing Officer located at _________, the report of an Animal Services Officer will be considered by the Hearing Officer together with any other oral and documentary evidence bearing upon the question of whether your dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit. You may appear and present evidence at the hearing.

In the event your dog is found to be potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, the dog will be ordered to be controlled, confined, destroyed, restricted, or otherwise abated as a public nuisance. In the event your dog is found to be dangerous or vicious, or maintained in violation of the special dog permit, you may be ordered to pay a fine not to exceed five hundred dollars ($500.00) for each dangerous dog incident, and one thousand dollars ($1,000.00) for each vicious dog incident. All costs of impoundment, care, and board of the dog incurred by the City of San José will be assessed against you and must be paid prior to the dog's release.

Dated:

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Administrator

Address

(Ord. 28079.)

The Administrator must cause a notice of the potentially dangerous, dangerous, or vicious dog, or compliance hearing to be mailed or otherwise delivered to all person(s) who have complained about the dog, to the owners of all the properties within three hundred (300) feet of the address where the dog has been maintained, and to the substation of the United States Postal Service serving that address. The notice must be sent at least five (5) business days prior to the date set for hearing in substantially the following form:

NOTICE OF HEARING REGARDING POTENTIALLY DANGEROUS, DANGEROUS OR VICIOUS DOG, OR COMPLIANCE HEARING

NOTICE IS HEREBY GIVEN that pursuant to the provisions of Chapter 7.30 of Title 7 of the San José Municipal Code, an Animal Services Officer has reported that there may be cause to believe that a dog, which is owned or under the control of [NAME] _________ of [ADDRESS] _________, is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit.

FURTHER NOTICE IS HEREBY GIVEN that on the ________ day of _________ 20________, at the hour of _________ o'clock, in the office of the Hearing Officer located at _________, the report of an Animal Services Officer will be considered by the Hearing Officer together with any other oral and documentary evidence bearing upon the question of whether the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit. As parties affected or potentially affected by the dog's behavior, you

are invited to appear and present evidence at the hearing on the issue of whether or not the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit.

In the event the dog is found to be potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, it will be ordered to be controlled, confined, destroyed, restricted, or otherwise abated as a public nuisance.

Dated:

Administrator

Address

(Ord. 28079.)

A.

Pursuant to Food and Agricultural Code Section 31621, as may be amended, the hearing must be held promptly within no fewer than five (5) business days nor more than ten (10) business days after service of notice upon the dog owner/guardian or person with a right to control the dog.

B.

At the hearing to determine whether the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, the dog owner/guardian 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 responsible persons are accustomed to rely in the conduct of serious affairs.

C.

Any witness appearing may present evidence.

D.

Once an animal services officer presents evidence to substantiate the dog's status as potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, the burden shifts to the dog owner/guardian to rebut based on circumstances specified in Section 7.30.030.

E.

The decision of the hearing officer that the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit must be supported by evidence on the record and is final.

F.

The hearing officer must cause written notice of his or her decision to be mailed within fifteen (15) business days after the conclusion of the hearing to the dog owner/guardian or person with a right to control the dog

and to all persons who make a written request for a copy of the decision.

G.

Unless the preponderance of the evidence rebuts the allegation that the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, the hearing officer may determine the dog to be potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, as alleged.

H.

If no evidence is entered at the hearing on behalf of either the dog owner/guardian or person with a right to control the dog, then the hearing officer may determine that the dog is potentially dangerous, dangerous or vicious, or maintained in violation of the special dog permit, as alleged.

I.

The dog owner/guardian or person with a right to control the dog has five (5) business days upon service of the hearing officer's decision to appeal the decision to the superior court pursuant to Food and Agricultural Code Section 31622, as may be amended, or the decision will be deemed final if no appeal is filed on or before the expiration of the appeal period. Service of the decision or appeal may be either personally or by first-class mail, postage prepaid.

J.

Within thirty (30) days of service of the hearing officer's decision, both the dog owner/guardian and person with a right to control a dog that is deemed potentially dangerous, dangerous, or vicious must comply with all the provisions of the hearing officer's decision. Either the failure of the dog owner/guardian 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 administrator to be disposed in accordance with the law. The appeal of the hearing officer's decision to the superior court will suspend the thirty (30) day period until a resolution of the appeal by the court. The administrator may grant either the dog owner/guardian or person with a right to control the dog a fifteen (15) day extension for good cause such as evidence of a good faith effort to comply and circumstances beyond the control of the dog owner/guardian or person with a right to control the dog.

(Ord. 28079.)

A.

The hearing officer may determine, after a dangerous or vicious dog hearing, or compliance hearing, that the dog owner/guardian or person with a right to control a dog that has been deemed dangerous or vicious, or maintained in violation of the special dog permit, should be prohibited from owning, possessing, controlling, or having custody of any dog for up to three (3) years because his or her ownership/guardianship or control of a dog would create a significant threat to the public health, safety, and welfare.

(Ord. 28079.)

The hearing officer may impose fines upon the dog owner/guardian or person with a right to control the dog for creating, maintaining, or fostering a dangerous or vicious dog in an amount not to exceed five hundred dollars ($500.00) for each incident described under Section 7.10.090 and one thousand dollars ($1,000.00) for each incident described under Section 7.10.210. In determining the amount of the fine, the hearing officer may take any and all of the following factors into consideration:

A.

The period of time during which the dog owner/guardian or person with a right to control the dog failed to comply with this chapter;

B.

The nature, frequency, and recurrence of the dangerous or vicious dog behavior;

C.

The ease with which the dangerous or vicious dog behavior could have been abated;

D.

The good faith efforts made to deter the dangerous or vicious dog behavior or ameliorate its effects;

E.

The economic impact of the penalty upon persons responsible for payment;

F.

The impact of the dangerous or vicious dog behavior on the community;

G.

The number and nature of previous enforcement actions by the administrator; and

H.

Such other factors as justice may require.

(Ord. 28079.)