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
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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