Board of Administrative Appeals

Agenda prepared by: City Clerk (925) 779-7009 BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL SPECIAL MEETING Council Chambers 200 “H” Street FEBRUARY 20, 2014 3:00 P.M. 3:00 P.M. ROLL CALL: Diana Busenbarrick, Chairperson Deborah Simpson, Vice Chairperson Andrew Schleder Mike Schneider PLEDGE OF ALLEGIANCE 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS MINUTES FOR MAY 2, 2013 AND SEPTEMBER 26, 2013 MINUTES Recommended Action: Motion to approve the minutes MINUTES B. APPROVAL OF SPECIAL MEETING/WORKSHOP MINUTES – COUNCIL/COMMISSIONS/ BOARDS FOR SEPTEMBER 9, 2013 Recommended Action: Motion to approve the minutes MINUTES 2. APPEALS A. CITATION NO. 32555 – Appeal of Administrative Citation issued regarding Unlicensed Dog [§6- 1.20(B)], No Rabies Proof [§6-1.12.2], No Dog Fancier’s (Kennel) Permit [§6-1.24.1] (x5 dogs) for Katrina Moore, 2844 Hayes Way, Antioch, CA STAFF REPORT PUBLIC COMMENTS—Only unagendized issues will be discussed during this time WRITTEN/ORAL COMMUNICATIONS ADJOURNMENT PLEASE TURN OFF CELL PHONES BEFORE ENTERING COUNCIL CHAMBERS. The meetings are accessible to those with disabilities. Auxiliary aides will be made available for persons with hearing or vision disabilities upon request in advance at (925) 779-7009 or TDD (925) 779-7081. Agenda and related writings provided to members are available for viewing by the public during normal office hours at the City Clerk’s Office, located on the 3RD Floor of City Hall, 200 H Street, Antioch, CA 94509.  BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL Regular Meeting May 2, 2013 3:00 p.m. Council Chambers Chairperson Busenbarrick called the meeting to order at 3:00 P.M. on Thursday, May 2, 2013 in the Council Chambers. ROLL CALL: Present: Chairperson Schneider, Simpson, Jennings, Chairperson Busenbarrick Absent: Board Members Schleder Staff Present: City Attorney, Lynn Tracy Nerland City Clerk, Arne Simonsen Animal Control Officer, Gabrielle Johnson Minutes Clerk, Kitty Eiden PLEDGE OF ALLEGIANCE Chairperson Busenbarrick led the board, staff, and public in the Pledge of Allegiance. 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS MINUTES FOR APRIL 11, 2013 On motion by Board Member Schneider, seconded by Board Member Simpson, the Board of Administrative Appeals approved the Minutes of April 11, 2013. The motion carried the following vote: Ayes: Board Member Simpson, Schneider, Jennings and Chairperson Busenbarrick Absent: Board Member Schleder City Attorney Nerland explained the manner in which the proceedings would be conducted and reviewed the options available for the Appeals Board. 2. APPEALS A. CITATION NO. 31821 – Appeal of Administrative Citation issued regarding Excessive Barking Dogs for Alejandro Lopez, 2905 Cashew Street, Antioch, CA [§6-1.18] 1A.01 02-20-14 BOARD OF ADMINISTRATIVE APPEALS Regular Meeting May 2, 2013 Page 2 of 4 Animal Control Officer Johnson presented the staff report dated May 2, 2013 recommending the Board of Administrative Appeals uphold the Administrative Citation No. 31821 for the Violations of Antioch Municipal Code § 6-1.18 Excessive Barking on March 15, 2013. In response to the Board, Animal Control Officer Johnson stated she could not determine why the dog was barking. She was able to confirm the dog was barking excessively from 8:00 P.M. – 8:26 P.M. APPELLANT Alejandro Lopez reported that he left his property at 7:11 P.M. and returned home at 8:30 P.M. on March 15, 2013. He stated upon his return, he found the citation and witnessed the reporting party agitating his dog by scraping and sweeping along the fence. He noted when he asked the neighbor why he was agitating his dogs, he was told to get rid of them or the City would be suing for nuisance. He commented that he reported the incident to the Antioch Police Department. He provided photos of the property and a petition of signatures from neighbors indicating they did not have a problem with his animals. In response to the Board, Mr. Lopez reported Animal Control and Antioch Police Department had been called to his property fourteen (14) times and only three (3) calls were founded. He clarified that immediately following this incident, he called and left a message with the Animal Control Department and contacted the Antioch Police to report his neighbor, for agitating his dog. He reported that he had purchased anti-barking devices and since the incident on March 15, 2013, there had been no additional complaints. He stated he felt one (1) reporting party making fourteen (14) complaints was not excessive. He also noted that he had contacted Animal Control when they had left their contact information at his residence and he was aware that Animal Control had deemed some of the complaints as non-excessive barking. Jeanette Lopez stated that they had always responded to calls from Animal Services. She reported they had purchased anti-bark collars; however, they were not effective when their dogs were antagonized. She noted at times, reports of her dogs barking, were dogs that actually belonged to other neighbors. She reported she had moved the birds to the front of the house and put the dogs inside at night to address the reporting party’s complaints. She added that none of her other neighbors had complained. Clara Wilson, Antioch resident, stated she was a neighbor of the appellant and reporting party. She reported that there had been several incidences with the reporting party in the neighborhood and she felt these complaints were personal attacks. She noted the dogs were not a problem in their neighborhood and their barking was not excessive. City Clerk Simonsen, for the record, reported the City Clerk’s office received a voicemail message on April 30, 2013 from Mr. Yount indicating he would not be able to attend this meeting. He noted he had returned the call and left a voicemail for Mr. Yount indicating he could provide written comments prior to the meeting and nothing had been received. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting May 2, 2013 Page 3 of 4 REBUTTAL Animal Control Officer Johnson clarified there were fourteen (14) calls for service, eleven (11) were specifically related to barking and the others were neighbor disputes. She noted seven (7) complaints were founded and four (4) were cited. She further noted no one was home at the time the three (3) administrative citations were issued and they were given at night, at approximately the same time. She clarified that at the time she issued the third citation, she did not witness any banging on the fence and she left the residence at 8:32 P.M. She reported there were five (5) citations total and one was taken away following meetings with the appellant and reporting party. She noted there was an audio recording submitted of the birds and dogs, however, they did not issue a citation since those incidences could not be confirmed. In response to Board Member Schneider, Animal Control Officer Johnson stated she educated both parties and made suggestions to resolve the issues. She indicated that she had witnessed excessive barking and neighbors confirmed that the dogs barked. She reported both parties had led to the fact that there may be a personal issue between them; however, she believed the reporting party just wanted the barking issue resolved. She stated with regards to Mr. Lopez, there was a feeling that he felt there was no problem to resolve. She clarified that Animal Control had not received any complaints since the March 15, 2013 citation and Mr. Yount was the main reporting party. Board Member Schneider stated he felt the Board should consider the lack of testimony today from the reporting party responsible for the complaints. Board Member Jennings expressed concern that all the complaints were from the same reporting party and he felt there should be mediation between the parties involved. Board Member Simpson stated Animal Control had heard barking in the neighborhood and when they witnessed the appellant’s dog barking it was occurring at the same time of night. She stated she believed something had occurred to cause the dogs to bark and she did not feel the barking was excessive. Chairperson Busenbarrick expressed concern there was only one reporting party on all the citations. Board Member Jennings added that he did not believe the issue was just a barking dog concern and he recognized that the appellant had obtained anti-barking devices. Board Member Schneider acknowledged that there had been no further incidences since the last citation. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting May 2, 2013 Page 4 of 4 A motion was made by Board Member Schneider, seconded by Board Member Simpson, recommending the citation be dismissed based on the following: 1) Lack of knowledge of the motivating factors for the barking, and 2) Extensive circumstances. City Attorney Nerland explained that intent and motivation were not provisions in the code and cautioned the Board regarding setting a precedent for other cases. The motion was withdrawn by the maker of the motion and second. A motion was made by Board Member Schneider and seconded by Board Member Jennings to recommend the citation be dismissed based on the following: 1) The evidence and testimony, and 2) The fact that the barking had not disturbed the entire neighborhood. City Attorney Nerland clarified the language from the municipal code states, ”No person shall allow any dog which he owns, keeps, harbors or controls within the City to bark or howl with such frequency or in such manner as to disturb the peace of the immediate neighborhood”. The motion was withdrawn by the maker of the motion and second. A motion by Board Member Schneider, seconded by Board Member Simpson, the Board of Administrative Appeals recommended the City dismiss the citation based on the testimony given with regards to the lack of frequency of the dog barking in such a manner to disturb the immediate neighborhood. Chairperson Busenbarrick announced the appeal was upheld and the citation was denied. PUBLIC COMMENTS Alejandro Lopez reported that he had offered arbitration with Mr. Yount; however, he refused both attempts. He announced there would not be another citation for his property. WRITTEN/ORAL COMMUNICATIONS - None ADJOURNMENT Chairperson Busenbarrick adjourned the Administrative Board of Appeals meeting at 3:54 p.m. to the next regularly scheduled meeting on June 6, 2013. Respectfully Submitted, __________________________ Kitty Eiden Minutes Clerk  BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL Regular Meeting September 26, 2013 3:00 p.m. Council Chambers Chairperson Busenbarrick called the meeting to order at 3:04 P.M. on Thursday, September 26, 2013 in the Council Chambers. ROLL CALL: Present: Chairperson Busenbarrick, Board Members Schneider and Simpson Absent: Board Members Schleder and Jennings Staff Present: City Attorney, Lynn Tracy Nerland City Clerk, Arne Simonsen Minutes Clerk, Kitty Eiden Supervisor of Animal Services, Monika Helgemo PLEDGE OF ALLEGIANCE Chairperson Busenbarrick led the Board and audience in the Pledge of Allegiance. 1. CONSENT CALENDAR A. Approval of Minutes for May 2, 2013 and September 9, 2013 Council/Commissions/Boards Special Meeting/Workshop) On motion by Board Member Schneider, seconded by Board Member Simpson, the Board of Administrative Appeals unanimously continued the Approval of Minutes for May 2, 2013 and September 9, 2013. City Attorney Nerland welcomed everyone to the meeting, explained the manner in which the hearing would be conducted, and reviewed the options available for the Appeals Board. 2. APPEALS A. Oath for all intending to testify on an appeal City Clerk Simonsen administered the Oath for all persons present intending to testify on the appeal. B. Appeal filed by Roderick De La Cruz and Courtney De La Cruz, 2051 Reseda Way, Antioch, CA 94509 to overturn the “Vicious Dog” determination by Antioch Animal Control Services for two (2) dogs: “Jewels” (A108965) and “Duke” (A108984) (Animal Services Case #A13-000024) 1A.02 02-20-14 BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 26, 2013 Page 2 of 4 Supervisor of Animal Services Helgemo presented the staff report dated September 18, 2013 recommending the Board of Administrative Appeals deny the appeal and uphold the Vicious Animal Declaration of August 22, 2013 and that both “Jewels” and “Duke” not be returned to the Dog Owners, but be humanly euthanized instead. In response to the Board, Supervisor Helgemo explained that there was a previous incident with the dogs, which was described as a mutual combat and the bite that resulted was not verified or reported until after this incident occurred. She reported that during her investigation, Mr. De La Cruz indicated Jewels could be aggressive. She noted no photos had been taken of the dogs by Animal Control due to their aggressive behavior. APPELLANT Mr. and Mrs. De La Cruz differed their speaking time to their Attorney, Mr. Mark McLaughlin. City Attorney Nerland reported the appellant had submitted four documents that had been provided to the City Clerk and Board. Copies of the documents were made available in Council Chambers. Attorney Mark McLaughlin, speaking on behalf of Mr. and Mrs. De La Cruz, stated Antioch Animal Services’ decision to deem “Jewels” and “Duke” vicious, was based upon incomplete, conflicting, and misleading information. He noted they do not dispute “Jewels” bit the neighbor victim child; however, the declaration from the dog owner’s other child indicated that “Jewels” was provoked. He further noted that first responders took possession of “Jewels” immediately however “Duke” was not taken until three (3) days later, after the mother of the neighbor victim child, claimed both dogs were involved in the attack. He questioned where the information had come from since the neighbor victim child indicated he had not remembered many details of the incident. He stated Animal Services Supervisor Helgemo interviewed the neighbor victim child while he was still in the hospital and she had asked leading questions therefore information ascertained would most likely be unreliable evidence. He commented that his clients would like to save both dogs, however, due to the nature of the injuries if they feel provocation was not sufficient to render “Jewels” not vicious, then the Board could find “Jewels” should be euthanized. With regards to “Duke”, he stated the declaration from the dog owners other child and the lack of physical evidence indicated he was not involved in the incident and by a preponderance of the evidence, the Board could decide he should not been deemed vicious and euthanized. In response to Chairperson Businbarrick, Mr. McLaughlin stated no pictures were taken of “Duke” after the attack because Animal Services did not think he was involved until the mother contacted them a few days later. Board Member Schneider commented that when the neighbor victim child was interviewed at the hospital; he had provided a cognitive response and had not appeared to be confused. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 26, 2013 Page 3 of 4 In response to Board Member Schneider, Mr. McLaughlin felt Animal Services lacked the expertise to consider scientific evidence related to the bite marks. He commented that the eleven (11) year old witness, who was not attacked, recollection of the events, was more reliable. He stated there was no evidence to support a previous incident regarding the dogs and questioned if that information was said in an attempt to recover money from his clients or their insurance company. PROPONANTS Judith Roberts, Antioch resident, submitted information to the Board and stated due to past experience, she did not believe the De La Cruz’s son was a credible witness. She reported there was a history of the dog owners not properly supervising their animals and they had made statements indicating “Jewels” was over-protective and a threat to her child. Robert Walton, Antioch resident, reported he had previously owned a pitbull and he supported euthanizing violent dogs. Melody Ralls, neighbor victim child’s Mother, presented the Board of Appeals with a blue folder that included a text message, trauma admission history and physical report, and graphic injury photos of neighbor victim child. She stated her son would not lie and his statements were consistent. She cautioned that if the owners regained possession of their dogs, the next victim may not be a survivor. REBUTTAL Animal Services Supervisor Helgemo clarified the following:  There was no physical evidence on either dog  Regarding a statement indicating the neighbor victim child had broken his hand, when she questioned how the dog owner’s child knew that information, he stated he “heard it”  First statements made to Antioch Police Officer Tinajero indicated the dogs were not provoked to attack  The dogs were too aggressive to measure their mouths however pictures indicated the bite marks were two different sizes and there were too many for the attack to be made by one dog Speaking to an email dated August 22, 2013 from Courtney De La Cruz, Animal Services Supervisor Helgemo clarified they had indicated their statement was changing due to a re- enactment of the incident with the dog owner’s children and she noted when the dog owner’s children gave verbal statements, their story was inconsistent. In response to Chairperson Busenbarrick, Animal Services Supervisor Helgemo stated the neighbor victim child was near the top of the stairs when “Jewels” grabbed his arm and when BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 26, 2013 Page 4 of 4 he yelled, both dogs attacked. She noted when the dog owner’s victim child attempted to grab “Jewels”, she (“Jewels”) redirected and then had bitten him. When Mr. and Mrs. De La Cruz arrived at the scene, the neighbor victim child was laying with his head at the bottom of the stairs. In response to Board Member Schneider, Animal Services Supervisor Helgemo indicated the behavior with the male/female pack mentality was consistent. City Attorney Nerland clarified that it would take a majority of Board Members, two (2) out of three (3), to determine the preponderance of evidence that there was probable cause to determine the dogs were vicious and should be euthanized. Board Members Schneider and Simpson agreed that there were numerous inconsistencies in statements from the De La Cruz family and there was sufficient evidence to support both dogs were not provoked to attack the victim and should be deemed vicious and euthanized. On motion by Board Member Schneider, seconded by Board Member Simpson, the Board of Administrative Appeals unanimously, denied the appeal and upheld the Vicious Animal Declaration of August 22, 2013 and that both “Jewels” and “Duke” not be returned to the Dog Owners , but be humanly euthanized instead. PUBLIC COMMENTS - None WRITTEN/ORAL COMMUNICATIONS - None ADJOURNMENT Chairperson Busenbarrick adjourned the Administrative Board of Appeals meeting at 4:03 p.m. to the next regularly scheduled meeting. Respectfully Submitted, __________________________ Kitty Eiden Minutes Clerk  CITY COUNCIL BOARD OF ADMINISTRATIVE APPEALS ECONOMIC DEVELOPMENT COMMISSION PARKS AND RECREATION COMMISSION PLANNING COMMISSION POLICE CRIME PREVENTION COMMISSION SPECIAL MEETING/WORKSHOP Special Meeting September 9, 2013 6:30 p.m. Antioch Police Department Community Room 300 L Street On September 9, 2013, the workshop was called to order by Mayor Harper at 6:44 p.m. City Council members present were Mayor Harper, Mayor Pro Tem Rocha, Council member Tiscareno and Council member Wilson. Council member Agopian had an excused absence. Staff present: Alan Barton, IS Director Mike Bechtholdt, Deputy Public Works Director Ron Bernal, Public Works Director/City Engineer Allan Cantando, Chief of Police Michelle Fitzer, Human Resources/Economic Development Director Jim Jakel, City Manager Dawn Merchant, Finance Director Lynn Tracy Nerland, City Attorney Tina Wehrmeister, Community Development Director Consultant Stacey McLaughlin of Mountaintop Insight facilitated the workshop. Public Comment: Karl Dietzel stated that the Council should start spending tax money on public safety and not these “fun get-togethers.” 1. Preparation for Workshop Stacey McLaughlin provided the Council and staff with an introduction to the process of the “Community Café.” She explained that this process has been used for information gathering in several different settings. The purpose this evening is to gather community input on the future of Antioch. Ms. McLaughlin explained the role of the table hosts and discussed with Council the role that they would take at this initial meeting. It was decided that the Council would observe the table activities for this meeting. 1B 02-20-14  2. Strategic Planning Process for Community Workshops At 7:27 pm Mayor Harper welcomed the Board/Commission members and the public in attendance to the first Antioch Community Café. Stacey McLaughlin was introduced. Roll Call: City Council Present: Mayor Harper, Mayor Pro Tem Rocha, Council member Tiscareno and Council member Wilson. Council member Agopian had an excused absence. Board of Administrative Appeals Members Present: Vice Chair Deborah Simpson. Economic Development Commissioners Present: Vice Chair Keith Archuleta, Richard Asadoorian, Peter Donisanu, Rhoda Parhams, Martha Parsons, and Lamar Thorpe. Parks and Recreation Commissioners Present: Chair Roy Immekus, Gene Davis, Rodney McClelland, and Brent Thibeaux. Planning Commissioners Present: Chair Virginia Sanderson, Greg Baatrup, Krystal Hinojosa, Kerry Motts, and Thomas Westerman. Police Crime Prevention Commissioners Present: Vice Chair Lovece Headd, Richard Augusta, William Cook, Gregory Hayes, and Hansel Ho. Each of the Boards/Commissions introduced themselves and had a spokesperson share what the Board/Commission’s function is. Stacey McLaughlin provided an overview of the process for all of the participants. The Café began and participants worked on contributing thoughts/suggestions/ideas on the two questions posed. Feedback of the process was provided as follows: Positive Engaging/forward thinking Non-traditional – very well done Opportunity to hear and be heard Not just about crime – a healthy discussion about things other than crime Improvements Distill questions for future cafes to 5 words Language issues? Spanish/Filipino/Chinese The workshop with the Board/Commission members was adjourned at 9:47 pm. The Council and staff stayed to debrief the process with Ms. McLaughlin. The meeting was fully adjourned at 10:20 pm.