Part 9 — DANGEROUS ANIMAL

A.

Any animal, other than a dog, which demonstrates any or all of the following behavior, is rebuttably presumed dangerous:

An attack, without provocation, which requires a defensive action by any person to prevent bodily injury and/or property damage in a place where such person is conducting himself/herself peaceably and lawfully.

An attack, without provocation, on another animal or livestock which occurs off of the property of the owner/guardian of the attacking animal.

An attack, without provocation, that results in an injury to a person in a place where such person is conducting himself/herself peaceably and lawfully.

Any behavior, without provocation, that constitutes a physical threat of bodily harm to a person in a place where such person is conducting himself/herself peaceably and lawfully.

Any animal owned or kept primarily, or in part, for the purpose of animal fighting or any animal trained for animal fighting.

B.

For the purposes of this section, a person is peaceably and lawfully upon the private property of an owner/guardian of the animal when such person is on such property in the performance of any duty

imposed upon such person by the laws of this state or any city or county, or by the laws or postal regulations of the United States, or when such person is on such property upon the expressed or implied invitation of any person with the authority to issue such invitation.

(Ord. 28079.)

A.

No person may keep, harbor, maintain, sell, trade, or let for hire a dangerous animal, other than a potentially dangerous, dangerous, or vicious dog which is subject to separate requirements under Chapter 7.30 of this Title 7, without first obtaining a permit from the administrator.

B.

No permit may be required of any zoo, university, college, governmental research agency, or other bona fide scientific institution, as determined by the administrator, engaging in scientific or public health research.

C.

For the purpose of this section, a zoo is considered any organization which exhibits animals to the general public at regular specified hours, equaling at least thirty (30) hours a week for thirty-six (36) weeks a year, and whose animals, whether maintained for exhibit purposes or not, are not for sale to private individuals.

D.

The owner/guardian of a dangerous animal and person with a right to control a dangerous animal must post the entrances to the property where the animal is kept with a sign, of at least twelve (12) inches square, that can be read from a publicly accessible location, warning persons of a dangerous animal.

(Ord. 28079.)

A.

An application for a permit to keep, harbor, maintain, sell, trade, or let for hire a dangerous animal must be made in writing to the administrator and accompanied by a processing fee as set forth in the schedule of fees adopted by resolution of the city council.

B.

Such application must be on a form approved by the administrator. The applicant must furnish a list of the types of animals to be maintained or used for the stated purpose, together with the approximate number of animals of each type.

C.

The administrator may establish regulations and standards relating to:

The maximum number and species of animals to be kept or maintained on the premises;

The construction, sanitation, and maintenance of the premises; and

Any other regulations and standards in conformity with and for the purpose of carrying out the intent of this title. Compliance with such rules and regulations are prerequisites to the issuance and continued validity of any permit provided pursuant to this part.

D.

The administrator, based on a review of the facts and circumstances of the application, may require any such animal to be properly caged, tethered, or restrained in zoo-type facilities that meet or are in addition to, or more restrictive than, state guidelines issued under the provisions of Section 671 of Title 14 of the California Administrative Code, as may be amended, and federal standards issued under Chapter 1 of Title 9 of the Code of Federal Regulations, as may be amended. Nothing in this part permits the keeping of dangerous animals where zoning provisions or state law would prohibit such keeping.

E.

The permit holder must maintain a record of the names and addresses of persons from whom animals are received and to whom the animals are sold, traded, or given. This record must be presented to the administrator for review upon request.

(Ord. 28079.)

Any permit issued under this part expires twelve (12) months from the date of issuance. The procedure for the renewal of a permit is the same as for an original permit. Upon failure to make application for the renewal of a permit within thirty (30) days of the expiration of a permit, or prior thereto, the applicant must pay in addition to the permit a late renewal fee. The permit fee and late renewal fee must be as set forth set forth in the schedule of fees adopted by resolution of the city council.

(Ord. 28079.)

The permit may not be sold, assigned, or transferred and covers only the premises designated and the person to whom the permit was originally issued.

(Ord. 28079.)

As a condition to the issuance or renewal of a permit under this part, the administrator or an authorized representative has the authority to inspect the premises where the dangerous animal is maintained at any reasonable time.

(Ord. 28079.)

Notwithstanding anything to the contrary, the administrator may deny or revoke a permit to keep or maintain any dangerous animal, based on a review of the facts and circumstances, when any one (1) or all of the following apply:

A.

Any such animal may not be kept or maintained without endangering the safety of any person(s) or property;

B.

The keeping of the animal would constitute a public nuisance;

C.

The animal would be subject to suffering, neglect, cruelty, or abuse; or

D.

The keeping of the animal is incompatible with the residential or other uses of the surrounding area.

(Ord. 28079.)

If the administrator seeks to deny the application or revoke the permit, the administrator must send the applicant or permit holder a notice of intent to deny or revoke, which must state the following:

The reasons for the denial or revocation;

That the applicant or permit holder may appeal the intended decision by requesting a hearing in writing;

That the request for a hearing must be received by the administrator within five (5) business days after service of such notice if he or she wishes to challenge the denial or revocation. Service may be personally or by first-class mail, postage prepaid;

That the failure to request a hearing within the time specified may result in the seizure of the dangerous animals; and

That the failure to appeal the administrator's intended decision terminates the applicant or permit holder's right to a hearing.

(Ord. 28079.)

A.

Upon receipt of a request for a permit denial or revocation hearing, the hearing officer must set the date, time, and place for the hearing. The hearing officer must cause notice of the hearing to be mailed to the person requesting a hearing at least five (5) business days before the date of the hearing.

B.

At the hearing, the applicant or permit holder and the administrator 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.

The hearing officer may also cause notice to be sent to the owners of each property within three hundred (300) feet of the property designated in the permit or permit application. This notice must state:

The date, time, location, and nature of the hearing;

The reasons for the denial or revocation; and

That the parties notified have a right to present any relevant evidence with regard to the denial or revocation of the permit.

(Ord. 28079.)

A.

The decision of the hearing officer is final. Any appeal of the final administrative decision must be pursuant to Section 1.16.010.

B.

The hearing officer's decision must be supported by evidence on the record.

C.

The hearing officer may decide that the owner/guardian or person with a right to control the animal will lose all rights of ownership/guardianship and control of the animal; and may order that the animal will be destroyed after the animal has bitten or injured a person on one (1) or more occasions. The hearing officer may declare an animal to be dangerous as defined in this title. The hearing officer may require the owner/guardian and person with a right to control the animal, before the animal is released to his or her custody, to obtain a permit under Section 7.60.910 and sign a commitment which contains conditions, such as, but not limited to, the following:

The owner/guardian and/or person with a right to control the animal agree as a condition of the animal's release:

To keep the animal confined to the premises of the owner/guardian and/or person with a right to control the animal and in an enclosure approved by the administrator;

To keep the animal securely muzzled, leashed, and under the direct physical restraint of a person eighteen (18) years of age or older who is physically capable of restraining the animal when the animal is off the property of the owner/guardian and person with a right to control the animal;

That a violation of this commitment may result in the animal being impounded and destroyed;

To prove financial responsibility by posting a bond or certificate of insurance in the amount of ten thousand dollars ($10,000.00), or more as determined by the Administrator with the advice of the City of San José Risk Manager;

To inform, along with the administrator, any city and/or county employee, any postmaster, utility company meter reader, and anyone else who enters the property with implied consent or who enters the property

peaceably and lawfully, of the animal's dangerousness if the animal is moved and maintained in any other area of the city for more than twenty-four (24) hours;

To care for the animal consistent with Chapter 7.20 of this title;

To have the animal complete obedience and training classes; and

To provide the animal with microchip identification.

D.

Failure to comply with any condition of the hearing officer's decision is a violation of this section and would subject the dangerous animal to summary seizure and disposal in accordance with the law.

(Ord. 28079.)

If a permit has been denied or revoked, the administrator may not accept a new permit application from the same person for the same activity at the same location within six (6) months of the denial or revocation, unless the applicant shows and the administrator finds by inspection and/or investigation, that the grounds upon which the previous application was denied or the permit revoked no longer exist.

(Ord. 28079.)