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Ordinance No. 1089381 ORDINANCE NO. 1089 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS ADDING SECTION 3 -4 TO CHAPTER 3 OF THE CODE OF THE CITY OF CYPRESS RELATING TO ANIMAL CONTROL AND BARKING DOGS. WHEREAS, the City of Cypress has entered into a contract with the County of Orange to provide the City with animal control and licensing services; and WHEREAS, said contract stipulates that the City of Cypress may adopt similar animal control and licensing regulations as adopted by the County of Orange for enforcement purposes; and WHEREAS, in order for the program to be enforceable within the City of Cypress, the City has determined to adopt the County's "Barking Dog Ordinance" within its own municipal code. NOW, THEREFORE, the CITY COUNCIL of the CITY OF CYPRESS does hereby ordain as follows: SECTION 1. Section 3 -4 is hereby added to the Cypress Municipal Code to provide, in its entirety, as follows: "Sec. 3 -4.1 Barking dog. The term "barking dog" shall mean a dog that barks, bays, cries, howls or makes any noise for an extended period of time to the disturbance of any person at any time of day or night, regardless of whether the dog is physically situated in or upon private property. Such extended period of time shall consist of incessant barking for 30 minutes or more in any 24 -hour period, or intermittent barking for 60 minutes or more during any 24 -hour period. A dog shall not be deemed a "barking dog" for purposes of this section if, at any time the dog is barking, a person is trespassing or threatening to trespass upon private property in or upon which the dog is situated, or when the dog is being teased or provoked. Sec. 3 -4.2 Barking Dog Violation & Civil Fine. (a) It shall be a violation of Section 3 -4.1 to keep, maintain, or permit a barking dog and violation of the same shall be subject to civil fine. (b) This subsection establishes the administrative procedures for the imposition, enforcement, collection, and administrative review of civil fines for barking dog violations pursuant to Government Code § 53069.4 and the City's plenary police powers as the same may be delegated by contract to the County of Orange. (c) The issuance of a civil citation under this subsection is solely at the City's discretion and is one option the City has to address barking dog violations. By adopting this subsection, the City of Cypress does not intend to limit its discretion to utilize any other remedy, civil or criminal, including those public nuisance remedies set forth in elsewhere in this code. (d) The purpose of issuing civil citations pursuant to this subsection is to encourage voluntary compliance with the provisions of this Section and to eliminate nuisances for the protection and benefit of the entire community. Sec. 3 -4.3 Definitions. The following definitions apply to the use of these terms for the purposes of this subsection: 382 (a) Animal Care Services means the department within Orange County Health Care Agency authorized to perform the functions described Codified Ordinances of the County of Orange, as the same may be amended from time -to- time. (b) County means the County of Orange. (c) Civil citation means a notice issued pursuant to this subsection that there has been a violation of this Section 3 -4. (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, unless the last day is a holiday, and then it is also excluded. (e) Director means the Health Care Agency Animal Care Services Director, or his or her designee. (f) Enforcement Officer means any Animal Care Services employee or agent designated in writing by the Director. (g) Hearing Officer means a person appointed by the County Executive Officer or designee to serve as a Hearing Officer for administrative hearings. (h) Issued means giving a civil citation to a violator. Issuance occurs on the date when a barking dog civil citation is personally served on the violator, or the date it is mailed to the property where the barking dog is located or where the barking dog violation occurred, or the date the citation is posted in a conspicuous place either on the property where the barking dog is located or where the barking dog violation occurred. When service is made by posting, the barking dog citation shall also be mailed within 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 subsection. (j) Owner means any person who possesses, has title to or an interest in, harbors or has control, custody or possession of a dog, and the verb forms of "to own" shall include all those shades of meaning. (k) 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 violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog. (2) A person whose agent, employee, or independent contractor allows a barking dog violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog. (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 violation occurs. (4) For purposes of this subsection, "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 subsection, there may be more than one Responsible Person for a barking dog violation, and a minor at least 14 years of age may be a Responsible Person subject to the provisions of this subsection. 383 Sec. 3 -4.4 Barking dog citation -- general. (a) Any Enforcement Officer has the authority to issue a civil citation to any Responsible Person for a barking dog 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. 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 citation when due. Where the Responsible Person is a minor under the age of eighteen (18) years, the minor's parents or legal guardian shall be liable for and held responsible for payment of their minor child's citation fines and/or late penalties. In any case, the Responsible Person (by his /her parents when the Responsible Person is under the age of eighteen) shall have the right to appeal the issuance of the citation pursuant to the provisions of this subsection. (b) Prior to issuing a civil citation for a barking dog, the Responsible Person shall be given a 10 -day period within which to correct the problem. (c) Each day a barking dog violation exists beyond the initial 10 -day period allowed for correction shall be a separate violation and be subject to a separate citation and fine. A barking dog 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 sections of this code. Sec. 3 -4.5 Barking dog citation contents. Each barking dog citation shall contain the following information: (a) Date on which a complaint or personal inspection established the barking dog violation(s). (b) Name of the Responsible Person for the barking dog violation(s) (if known). (c) Address where the barking dog violation(s) occurred. (d) The Code section(s) violated. (e) Whether the violation(s) were established by inspection or 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 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 citation and/or civil fine. (1) Date upon which the barking dog 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 violation occurred. 384 (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. Sec. 3 -4.6 Service of barking dog citation. A barking dog citation may be served as follows: (a) An Enforcement Officer may personally serve the barking dog 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 violation occurred. (c) An Enforcement Officer may post a copy of the barking dog citation in a conspicuous place on the property where the barking dog 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 violation occurred as reflected on the County's property tax rolls. A copy of the citation shall also be mailed within 24 hours of posting the citation addressed to "Resident" at the address where the barking dog violation occurred. Sec. 3 -4.7 Amount of barking dog civil fines. Fines for violating the provisions of this subsection shall be as follows: First Citation Issued (Per Citation): $250.00 Second Citation within Same 12 -Month Period (Per Citation): $275.00 Third Citation within Same 12 -Month Period (Per Citation): $303.00 Fourth Citation within Same 12 -Month Period (Per Citation): $333.00 Fifth Citation within Same 12 -Month Period (Per Citation): $366.00 Sixth and Subsequent Citations Issued within Same 12 -Month Period (Per Citation) $403.00 Any Fine Not Paid within Fifteen (15) Days of Due Date 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. Sec 3 -4.8 Payment of barking dog civil fines. (a) After receiving a barking dog violation citation, a violator may respond by either of the following methods: (1) The violator may choose to correct the barking dog violation and pay the barking dog 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 the Hearing Officer at the conclusion of the hearing if the Hearing Officer upholds the barking dog citation. The Hearing Officer may allow the violator an additional period of time within which to pay the fine if, in the Hearing Officer's sole discretion, such additional time for payment is necessary. (b) To avoid a late penalty, fines for barking dog violations must be received by the Director within fifteen (15) 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 violation. The issuance of a barking dog citation and/or payment of a fine shall not bar the County from taking any other enforcement action regarding a barking dog violation that is not corrected, including issuing additional barking dog citations and/or criminal complaints. (d) In the event that a fine imposed under the authority granted by this subsection remains unpaid for fifteen (15) 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. If a Hearing Officer upholds the issuance of a citation in an administrative hearing, the late penalty will be assessed if the fine is not paid as required at the conclusion of the hearing, or other time for payment determined by the Hearing Officer. Sec. 3 -4.9 Administrative hearing. (a) Any person who receives a barking dog citation may contest it by appearing at the assigned administrative hearing date, time and location noted on the barking dog citation. A violator may contest the barking dog citation by denying that a violation occurred, by denying that it was not corrected within the original 10day 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 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 citation. Sec 3 -4.10 Hearing procedures. (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 subsection (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 Animal Care Services related to the barking dog citation are delivered to the Hearing Officer. 386 (c) The violator and complainant shall be given the opportunity to testify and to present evidence relevant to the barking dog citation. A parent or legal guardian of a violator who is a juvenile, under eighteen (18) years of age, must accompany the juvenile to the hearing or the administrative hearing will be deemed abandoned by the violator. Such abandonment shall also constitute a failure to exhaust administrative remedies concerning the violation set forth in the barking dog citation. (d) The citation itself and accompanying complainant's affidavit signed under penalty of perjury attesting to the barking dog 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) Neither the Enforcement Officer nor any other representative of the County shall be required to attend the hearing. However, any such appearance and/or additional submission may be made at the discretion of the Enforcement Officer or any other Animal Care Services employee. (f) The Director may continue a hearing once if a request for continuance is made showing good cause by a violator, a complainant, or a representative of the County. A Hearing Officer may also continue a hearing upon his or her own motion. All continuance requests shall either: (i) be made in person at the hearing, or (ii) be made by a written request received by the Director via e -mail, facsimile or letter at least one week (7 days) prior to the hearing date. 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. 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 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. Sec. 3 -4.11 Administrative hearing decision. (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 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 citation, the civil fine imposed for the violation shall be due at the conclusion of the administrative hearing, or at some other time as directed by the Hearing Officer. 387 If the decision is to dismiss the barking dog 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. Sec. 3 -4.12 Right to judicial review. (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 § 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) 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. Sec. 3 -4.13 Collection of unpaid fines. (a) The County at its discretion is hereby authorized to 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 subsection have been collected. (b) Failure to timely remit payment of a citation fine and/or late penalty authorized under section 3- 4.8(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 constitute a misdemeanor under Cypress Municipal Code § 1- 7(a), punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the County jail for a period of not more than six (6) months or by both such fine and imprisonment." SECTION 2. Severability. The City Council of the City of Cypress hereby declares that should any section, paragraph, sentence or word of this ordinance of the Code, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. SECTION 3. Savings Clause. Neither the adoption of this ordinance nor the repeal or renumbering of any other ordinance of this city shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. SECTION 4. Publication. The City Clerk shall certify to the passage and adoption of this ordinance, and shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted. This ordinance shall be in full force and effect thirty (30) days after its final passage and adoption, and within fifteen (15) full days after its final passage, the City Clerk shall cause it to be published in a newspaper 388 of general circulation and shall post the same at City Hall, the Police Department and the Community Center. FIRST READING at a regular meeting of the City Council of said City held on the 12th day of March 2007, and finally adopted and ordered posted at a regular meeting held on the 26th day of March, 2007. MAYOR OF THE CITY OF CYPRESS ATTEST: CITY CLERK OF THE CITY OF CYPRESS STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, DENISE BASHAM, City Clerk of the City of Cypress DO HEREBY CERTIFY that the foregoing was duly adopted at a regularly scheduled meeting of said City Council held on the 26th day of March, 2007, by the following roll call vote: AYES: 5 COUNCIL MEMBERS: Bailey, Mills, Narain, Seymore and Luebben NOES: 0 COUNCIL MEMBERS: None ABSENT: 0 COUNCIL MEMBERS: None CITY CLERK OF THE CITY OF CYPRESS -s -