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5-1-12 Minutes Special Called Mtg CITY OF ATLANTIC BEACH SPECIAL CALLED MEETING CODE ENFORCEMENT BOARD MINUTES 6:00 P.M. — May 1, 2012 IN ATTENDANCE: Veda Harless, Chair Ian Luthringer Dayna Williams, Secretary Juliette Hagist Alan Jensen, City Attorney Richard Ouellette Suzanne Green, Prosecuting Attorney Nicholas Dodaro Benjamin de Luna, Alternate Barbara Weiss ALSO IN ATTENDANCE: Vic Gualillo, Commander Kelly Caton, Animal Control Officer Chair Veda Harless called the meeting to order at 6:00 p.m., followed by the Pledge of Allegiance to the Flag by all present. Secretary Dayna Williams read the roll, finding a quorum was present. 1. Approval of Minutes Motion: Approve minutes of the Code Enforcement Board meeting of April 17, 2012. Moved by de Luna, Seconded by Luthringer (This motion was voted on later in the meeting.) 2. Administration of Oath to Defendants/Witnesses Chair Veda Harless gave the oath to the defendants and witnesses. 3. New Business A. 91 W 11 Street, #104, Kenneth Nickles, Jr, Police Case #12- 05180: Atlantic Beach City Code, Chapter 4, Sec. 4 -10 Dangerous Dog Chair Harless requested all parties keep their comments to the facts pertaining to the case. Prosecuting Attorney Suzanne Green stated the Board had been provided with a copy of the Ordinance we are proceeding under. She stated Kenneth Nickles is the owner of the dog, Buddy, which is the issue here. She further stated the section we are focusing on is Sec. 4 -10 Dangerous Dogs, and wants the Board to know that this Ordinance is strict, we are not here for emotions or feelings, we have to follow what the Ordinance says and the Law says, and it says if a dog has aggressively bitten a human when unprovoked, you must find as a dangerous dog. She added she is going to reflect and make the Board look at Sec. 4 -10 (1) (a)(d), and (4). She requested the Board keep that in mind as they hear the evidence and understand what we are working with here is what we have to present. Ms. Green then called Ms. Audrey Lynn Brewer to the podium. Chair Harless asked the witness to state her name and address. The witness stated Audrey Lynn Brewer, 1730 Main Street, Atlantic Beach, FL 32233. Chair Harless asked her to state what happened. Ms. Brewer stated she and her boyfriend went to Mr. Nickles' house to take him to get a battery for his car, the door was open and Mr. Nickles told her to come on in. She stated she had been there many times before and as soon as she walked through the door he got me (Buddy, the dog). Chair Harless inquired what the nature of the injury was, if any. Ms. Brewer said she was severely hurt. Ms. Green interjected they had pictures on a cell phone and the Board requested they show the pictures at this time. Ms. Green asked Ms. Brewer if she provoked the dog at all and Ms. Brewer stated she did not. Ms. Green asked if Ms. Brewer had any knowledge if the dog had bitten before or since her incident and she replied yes to both questions. Mr. Luthringer requested Ms. Brewer repeat her answer regarding the dog biting before and since her incident. Ms. Brewer responded she did not witness the bite that occurred before, but was told about it, and that the dog has bitten since. Ms. Green asked Ms. Brewer if the pictures on the cell phone accurately depicted her injury at the time and who took the pictures. Ms. Brewer answered yes, in regards to her injury, and Seth, her boyfriend, had taken them. Chair Harless asked if EMT'S or 911 had been called and was she treated on site. Ms. Brewer stated they took her to the trauma center at Shands. Ms. Green asked how many stitches she incurred and Ms. Brewer stated fifty. Ms. Green further asked if she had to engage an attorney to try and recoup her costs and Ms. Brewer said yes. Mr. Luthringer asked if the dog broke any bones and were there multiple bites or just one bite. Ms. Brewer stated one bite. Mr. Luthringer asked if the doctor thought it would leave a scar and she answered yes. Mr. Dodaro asked if we had any copies of the medical records. Ms. Green explained she is not presenting any records because the Ordinance is strictly in reference to the dog bite, not the nature or the extent of the injury. Ms. Brewer volunteered the information that she was going in for surgery this coming Sunday. Ms. Weiss asked where the homeowner was when he told Ms. Brewer to enter. She responded he was in the living room near the front door. Mr. Dodaro asked if they would be provided a copy of the picture of the injury and does the picture depict the right or left thigh. Ms. Green indicated they should be able to provide the picture and it was the left thigh in the picture. Mr. Luthringer expressed concern that they did not have medical records or expert testimony to form a basis to believe this laceration is disfiguring and requires reconstructive surgery. Ms. Green reiterated that the Ordinance states a dangerous dog is defined as any dog that has aggressively bitten, attacked, or inflicted injury on a human being on public or private property. It is not the extent of the disfigurement which is why nothing is presented to the Board on that issue. Discussion ensued regarding the lack of expert testimony, the definition of a severe injury, and the fact that the Board is taking the word of the witness that there will be a scar and disfigurement. Ms. Green responded that if the Defense presents anything to the opposite, then the Board can consider that. Ms. Green agreed the definition of a severe injury was defined in the Ordinance under Sec. 4 -10 (3), but the testimony here is the sutures and the reconstructive graft plastic surgery. Ms. Hagist asked Ms. Brewer if she had encountered the dog before or had any problems with him. Ms. Brewer replied she had been around him since he was a puppy, her dog plays with him and they have never had a problem. Mr. Dodaro asked Ms. Brewer when the owner offered for her to come into the home, did he make any comment of warning that the dog was loose in the house. Ms. Brewer stated she has never had any problem with the dog, and has walked into the home before with the dog there without incident. Mr. Dodaro asked if she had any thoughts on why it was different this time and she responded she did not know what made him charge at her this time. Discussion ensued regarding the age, breed and neutering of the dog. The witness said he was five years old, he is not neutered and he is a bulldog mix. Ms. Green asked Ms. Brewer if she would have concerns for him to be around children or her own dog again, and Ms. Brewer stated she had never seen him aggressive. Mr. de Luna asked Ms. Brewer if she had been witness to the prior two bites they had been told about and she said no. Chair Harless excused the witness and Ms. Green called Officer Harding. Chair Veda Harless asked the witness to state his name and the areas where he patrols. He stated Robert K. Harding and he has been with the Atlantic Beach Police Department for twenty - six years. Ms. Green asked Officer Harding if it was correct that he responded to dispatch on April 1, 2012 to Driftwood Apartments regarding an animal complaint and wrote a report. He Minutes of the Code Enforcement Board on May 1, 2012 Page 2 of 6 affirmed that was correct. Ms. Green presented a copy of the report to him and asked him to confirm that it was his report and he said it was. She asked him to tell the Board what he discovered when he responded to the complaint. He stated that upon arrival Ms. Brewer was in the back of the rescue truck. He stated he spoke with Mr. Nickles and Ms. Brewer's boyfriend, Seth, and they informed him that the dog had bitten her after she crossed the threshold in the apartment unprovoked. He explained one of the rescue EMS team told him she would need about one hundred stitches and that the dog was a one hundred pound bulldog mastiff mix named Buddy who bit her in the upper left thigh. Ms. Green asked if she was then transported and treated and he said yes. She then introduced the Offense Report to the Board for review. Officer Harding said the dog was in the apartment and he requested Mr. Nickles restrain him and bring him outside so he could look at the dog. Chair Harless asked Mr. Harding what the dog's behavior was like towards him. He stated it was not aggressive, but appeared to be a pretty strong dog. He added he then had Mr. Nickles return the dog to the apartment. Chair Harless asked if there were any other incidents reported to the City of Atlantic Beach in regards to this dog. Officer Harding stated that Mr. Nickles told him, about four years ago when he lived at 120 Mayport Road at a trailer park, his dog bit a repairman or somebody else, but he did not know if that had been verified or not. Mr. Dodaro inquired if the owner of the dog, Mr. Nickles, disputed any details of the case as presented today. Officer Harding answered not at all, stating the owner reported that the dog ran out of a back bedroom and bit Ms. Brewer on the leg. Mr. Ouellette asked if the Officer was aware of the earlier incidents that had been reported earlier in the testimony. Officer Harding said he was aware of the one he responded to and the ones the owner of the dog told him about. Ms. Hagist noted the report states the dog owner had a rabies card but it was out of date. Officer Harding explained that in order for the city to allow the homeowner to keep the dog in quarantine they must have an updated rabies vaccination card. Mr. Nickles had one, but it was not current. He further explained that is when Kelly Caton, the Animal Control Officer, advised she needed to keep the dog quarantined for ten days to make sure it did not have rabies. Chair Harless excused Officer Harding and Ms. Green called Animal Control Officer Kelly Caton to the podium. Chair Harless asked the witness to state her name and position. She stated Kelly Caton and she has been with the City of Atlantic Beach for five years as an Animal Control Officer and had two years experience prior to that with the City of Jacksonville. Ms. Green presented a report stating that Ms. Caton responded and followed up on April 3, 2012 to an incident that happened on April 1, 2012. She asked Ms. Caton if this was a copy of her report. Ms. Caton replied that it was a copy of her report, but she actually responded on April 1, 2012. Ms. Caton stated Officer Harding called her and explained the situation and it was decided at that time she should come in and continue the investigation and take custody of the dog. Ms. Green asked her to explain what transpired from that point on. Ms. Caton stated she met with Officer Harding and he explained to her that it was a large dog and asked if she needed some assistance because of the size of the dog She told Mr. Harding no, then responded to Mr. Nickles' address and had Mr. Nickles put the dog in the back of her truck. She further explained that the dog was large and sending mixed signals and she was uncomfortable with him and he was uncomfortable with her. She decided to put the dog on the control pole and never handled the dog without using the control pole. Chair Harless asked her to describe a control pole. Ms. Caton stated it is a five foot metal pole with a cable running through and has a noose. It serves as a stiff leash so she can control the dog without him being able to get to her. Ms. Hagist asked what it was called again, and Ms. Caton replied a control pole or a catch pole. Chair Harless asked Ms. Caton if she had anything else she felt was important for the Board to hear. Ms. Caton stated that Mr. Nickles had told her about the previous bite and she checked her records back to 2008 and could not find any records. She added she did not dispute it, but had no verification that it did happen. Ms. Green asked Ms. Caton if she had signed two Affidavits in regards to this incident. Ms. Caton stated Minutes of the Code Enforcement Board on May 1, 2012 Page 3 of 6 she had. Ms. Green presented the Affidavits and asked Ms. Caton if she recognized them and was that her signature. Ms. Caton replied yes to both questions. Ms. Green asked if these were the Affidavits with regards to the bites as required by the Ordinance. Ms. Caton answered yes. Ms. Green introduced the reports and Affidavits to the Board for review. Ms. Hagist questioned if the bandage Ms. Caton had on her left arm was from this incident. Ms. Caton replied that she has dealt with three one - hundred pound dogs recently, including this incident, which contributed to the injury of her elbow. Ms. Green asked Ms. Caton if she did a rabies control investigation because the rabies was out of date and did Mr. Nickles update them. Ms. Caton replied the State Statute states that if the dog does not have a current rabies card then they must be quarantined. She added that when she released the dog to the owner she wrote Mr. Nickles a citation for the rabies not being current, but told him she would rescind it if he would vaccinate the dog within five days and he did. Ms. Green stated there were only two citations and Ms. Caton said, no, there was only one. She added that one citation was for the bite, and the other is for the boarding because the dog did stay in her kennel for ten days. Ms. Green asked if it was correct that notice was given by the Chief of Police to Mr. Nickles with regards to City of Atlantic Beach Animal Control calling the dog dangerous on April 10, 2012. Ms. Caton confirmed that was true. Mr. Luthringer asked Ms. Green if that is the notice called for by Statute to classify him as Dangerous Dog and is this the ten -day hearing. Ms. Green responded that it is twenty days and this hearing was requested by Mr. Nickles. Mr. Luthringer said he was just confirming they were in the right spot procedurally. Mr. Dodaro asked Ms. Caton if she could clarify the description of the breed of dog. He said it had been described as a bull mastiff mix earlier, but a comment on the police report has a description of a pit bull mix. Ms. Caton said she would call him an American Bulldog mix, like a giant pit bull. Ms. Green asked Ms. Caton if there was any provocation by the victim to the dog. Ms. Caton stated that both parties were in shock regarding the attack and there was not any provocation. Chair Harless asked Ms. Caton her opinion as to the behavior of this dog. Ms. Caton replied that it was difficult to read him as he was sending mixed signals due to the stressful situation he was dealing with. For that reason she chose to keep him on a catch pole every time she moved him. Mr. Dodaro inquired if anyone, during the series of events that occurred, explained to Ms. Caton anything that may have occurred in the life of the dog that would have changed his behavior at all. She replied that Mr. Nickles did walk his dog on a regular basis and had a good relationship with his dog. Chair Harless excused Ms. Caton and called Mr. Nickles to the podium. Chair Harless asked the witness to state his name and address and explain his situation. He stated Kenneth Nickles, 91 West 11 Street, Apt 104, Atlantic Beach, FL 32233. He explained that he called Seth because his car broke down and needed Seth's help. He said that Audrey (Ms. Brewer) came along to visit his wife. He said Audrey came up to the door and walked in the house and the dog came out of the back room and just bit her on the leg. The dog has known her for five years and has never done anything like that. He added that his dog had been over to their house and had never hurt their dog or done anything like this. He does not have any idea why he behaved this way. Chair Harless asked what Mr. Nickles did when he saw what happened. He stated that he got up and got the dog off of Ms. Brewer and put him in the bedroom. The dog did not continue to try to get back at her; he calmed down. Mr. Luthringer asked if she had done anything to provoke the dog and he replied no, the door was open and he (Mr. Nickles) had invited them onto the property. Ms. Weiss asked if he was the original owner and Mr. Nickles said he was not, that he got the dog when he was six months old and he was a "health dog ". He stated that he got a prescription from a doctor who gave his wife the dog to help her with her rehabilitation. Ms. Weiss asked if there were any children in the apartment and he responded that it was his wife, a kitty cat, and him. Ms. Weiss asked if the dog had ever been trained by a certified trainer and he said no. She then asked him how often he walks the dog, and he stated about four or five times a day and said he now had a muzzle for him. Ms. Weiss asked Minutes of the Code Enforcement Board on May 1, 2012 Page 4 of 6 if the dog was ever locked up or chained when he was in the apartment and Mr. Nickles said no, that he roams free in the house. Ms. Weiss wanted to know how the dog reacts when people knock on his door. He stated that he barks and goes up to the door, but when Mr. Nickles invites them in, the dog goes right up to them without incident. Mr. de Luna asked Mr. Nickles to describe the first biting incident. Mr. Nickles said they had an electrician come to the house to do some repairs. He added that the dog was sitting on the couch with him and when he told the man to go around to the back of the trailer the dog ran after him and bit him on the bottom and left a little puncture mark. He said the man told him that he reported it to the health department, but Mr. Nickles never heard from them and Ms. Caton could not find any records about the incident. Ms. Weiss asked Mr. Nickles if he was concerned about the dog's behavior and he said not really, not around anybody. She asked how did he know it would not happen again. Mr. Nickles stated he had no way of knowing that. She further asked what kind of precautions he was taking. He responded that he puts the dog in the bedroom and eases him out when people come in the house. Chair Harless excused Mr. Nickles from the podium. Ms Green stated, in closing, she wants to refer back to Sec. 4 -10 to reiterate (1) (a), which is the primary focus we have here. The City is presenting this case that the dog has aggressively bitten or afflicted severe injury. It does not have to be both, so our position is aggressively bitten and I believe we have presented enough evidence, with fifty stitches, that there has been an aggressive, unprovoked bite by this dog. Mr. Nickles has been very forthcoming regarding another bite incident too. I believe under the Ordinance that the Board has to find this is a dangerous dog. Chair Harless gave Mr. Nickles the opportunity to make a closing statement at this time. She inquired if he had been given the full Code and asked if he understood the ramifications if the dog is classified as a dangerous dog. He stated that he understood. Chair Harless asked Ms. Green if her recommendation was to find the dog as dangerous. Ms. Green stated that was correct. Chair Harless wanted to verify that once the dog is declared dangerous there are some fail safes or procedures that Mr. Nickles will need to complete. Ms. Green stated that was correct; there is liability insurance, proper enclosure, current certification of rabies under the Ordinance. She added that Mr. Nickles had been given all this information and he agreed that was true. Mr. Luthringer wanted further clarification and understanding of the Ordinance between the finding of a dangerous dog that has aggressively bitten versus a dog that has caused severe injury and the distinction between what we could recommend in this case based on the testimony we were presented. He presented his views on his understanding of the Ordinance in this particular case and then the Chair asked for a motion so they could discuss what he has said. Motion: The Board finds the dog named Buddy, owned by Kenneth Nickles, whose address is 91 West 11 Street, Apt 104, Atlantic Beach, FL 32233, be declared as a dangerous dog under the provisions of Sec. 4 -10 of the Code of Ordinances of the City of Atlantic Beach Moved by de Luna, Seconded by Luthringer The motion was approved unanimously. Chair Harless asked if we should go forward with imposing what restrictions and accepting what Statutes will go with that motion. Mr. de Luna stated he believed the Statutes were clear; that once it is classified as a dangerous dog then everything follows. Chair Harless asked Ms. Green if that is correct and Ms. Green said yes. Chair Harless asked Ms. Green to clarify if there would be restitution to Ms. Brewer and should that be included in the motion. Ms. Green stated she did not think so at this time. They did not present any medical bills and they were still ongoing at Minutes of the Code Enforcement Board on May 1, 2012 Page 5 of 6 this point in time. Ms. Green added that Ms. Brewer does have a private attorney and will be pursuing that. Chair Harless stated the motion will carry and the dog will be classified as a dangerous dog and Mr. Nickles will receive everything in writing as to what that entails. Mr. de Luna stated he had a point of order. He stated he believed we may have the question with regards to our approval of the minutes for the last meeting. He added that we had the first and second motions, but we did not have the question. Chair Harless asked all those in favor and all those opposed. The motion was approved unanimously. 4. Miscellaneous Business None 5. Adjournment There being no further discussion, the meeting adjourned at 6:39 p.m. L' 0( 1 , Veda Harless, Chair Day L. Williams, Secretary Minutes of the Code Enforcement Board on May 1, 2012 Page 6 of 6