Board of Administrative Appeals

Agenda prepared by: Office of the City Clerk (925) 779-7009 BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL THURSDAY, NOVEMBER 5, 2020 3:00 P.M. PURSUANT TO GOVERNOR GAVIN NEWSOM’S EXECUTIVE ORDER N-29-20, THIS MEETING WILL BE HELD AS A TELECONFERENCE/VIRTUAL MEETING. OBSERVERS MAY VIEW THE MEETING LIVESTREAMED VIA THE BOARD OF ADMINISTRATIVE APPEALS’ WEBSITE AT: https://www.antiochca.gov/boaa/meeting/. Notice of Opportunity to Address the Board of Administrative Appeals Members of the public wishing to provide public comment prior to or during the meeting may do so in the following ways (#2 pertains to the Zoom webinar platform): 1) Prior to 1:00 p.m. the day of the meeting – Written comments may be submitted electronically to the City Clerk at the following email address: cityclerk@ci.antioch.ca.us. All comments received before 1:00 p.m. the day of the meeting, will be provided to the Board Members before the meeting. Please indicate the agenda item and title in your email subject line. 2) After 1:00 p.m. the day of the meeting and during the meeting – Please see the Speakers’ Rules for instructions on how to comment, on the inside cover of this Agenda. The Speakers’ Rules are also listed on the Board of Administrative Appeals website located on the following link: https://www.antiochca.gov/boaa/meeting/. The City cannot guarantee that its network and/or the site will be uninterrupted. To ensure that the City Clerk’s Office receives your comments, you are strongly encouraged to submit your comments in writing by 1:00 p.m. the day of the meeting. The Board of Administrative Appeals’ Agendas, including Staff Reports, are posted onto our City’s Website 72 hours before each meeting. To view the agenda information, click on the following link: https://www.antiochca.gov/government/agendas-and- minutes/board-of-administrative-appeals/.  BOARD OF ADMINISTRATIVE APPEALS SPEAKERS' RULES IMPORTANT NOTICE REGARDING THIS MEETING: To protect our residents, officials, and staff, and aligned with the Governor’s Executive Order N-29-20, certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting. Members of the public seeking to observe the meeting may do so at https://www.antiochca.gov/boaa/meeting/. Members of the public wishing to provide public comment may do so in the following ways (#2 pertains to the Zoom Webinar): 1) Prior to 1:00 p.m. the day of the meeting – Written comments may be submitted electronically to the City Clerk at the following email address: cityclerk@ci.antioch.ca.us. All comments received before 1:00 p.m. the day of the meeting, will be provided to the Board Members before the meeting. Please indicate the agenda item and title in your email subject line. 2) After 1:00 p.m. the day of the meeting and during the meeting – To participate and provide oral public comments during the meeting, click on the following link to register in advance, to access the meeting via Zoom Webinar: https://www.antiochca.gov/speakers ▪ You will be asked to enter an email address and a name. Your email address will not be disclosed to the public. After registering, you will receive an email with instructions on how to connect to the meeting. ▪ When the Chair/Vice Chairperson announces public comments, click the "raise hand" feature in Zoom. For instructions on using the "raise hand" feature in Zoom, visit: https://www.antiochca.gov/raise_hand. Speakers will be notified shortly before they are called to speak. ▪ When called to speak, please limit your comments to the time allotted (up to 3 minutes, at the discretion of the Chair/Vice Chairperson). After hearing from the public, the agenda item will be closed. Deliberations will then be limited to members of the Board. The City cannot guarantee that its network and/or the site will be uninterrupted. To ensure that the City Clerk’s Office receives your comments, you are strongly encouraged to submit your comments in writing by 1:00 p.m. the day of the meeting. In accordance with the Americans with Disabilities Act and California law, it is the policy of the City of Antioch to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including individuals with disabilities. If you are a person with a disability and require information or materials in an appropriate alternative format; or if you require any other accommodation, please contact the ADA Coordinator at the number or address below at least 72 hours prior to the meeting or when you desire to receive services. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility. The City’s ADA Coordinator can be reached @ Phone: (925) 779-6950, and e-mail: publicworks@ci.antioch.ca.us.  NOTICE OF AVAILABILITY OF REPORTS This agenda is a summary of the discussion items/actions proposed to be taken by the Board of Administrative Appeals. The public has the opportunity to address the Board on each agenda item. Comments regarding matters not on this Agenda may be addressed during the "Public Comments" section on the agenda. No one may speak more than once on an agenda item or during “Public Comments”. AGENDA 3:00 P.M. ROLL CALL Deborah Simpson, Chairperson Ademuyiwa “Ade” Adeyemi, Vice Chairperson Marie Livingston Darrell Goodbeer Antwon Webster Vacant, Alternate PLEDGE OF ALLEGIANCE PUBLIC COMMENTS – Only unagendized issues will be discussed during this time. 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS MEETING MINUTES FOR SEPTEMBER 3, 2020 Recommended Action: Motion to approve the Minutes. B. CODE ENFORCEMENT – APPROVAL OF THE LEVY OF SPECIAL ASSESSMENTS ON CERTAIN PROPERTIES FOR UNPAID ADMINISTRATIVE CITATIONS AND LIEN PROCESSING FEES FOR THE MONTHS OF JULY AND AUGUST 2020 Recommendation: The Board of Administrative Appeals shall confirm each assessment and the amount thereof, as proposed or as corrected and modified, and order it assessed against the property. The Board shall also direct that the same be recorded with the Contra Costa County Recorder’s Office and thereafter the assessment shall constitute a special assessment and lien against the property. WRITTEN/ORAL COMMUNICATIONS MOTION TO ADJOURN: After Written/Oral Communications, the Chairperson/ Vice Chairperson will make a motion to adjourn the meeting. A second of the motion is required, and then a majority vote is required to adjourn the meeting. BOARD OF ADMINISTRATIVE APPEALS [2] NOVEMBER 5, 2020  BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL Regular Meeting September 3, 2020 3:00 P.M. Meeting Conducted Remotely The City of Antioch, in response to the Executive Order of the Governor and the Order of the Health Officer of Contra Costa County concerning the Novel Coronavirus Disease (COVID-19), held Board of Administrative Appeals meetings live stream (at https://www.antiochca.gov/boaa/meeting/). The Board of Administrative Appeals meeting was conducted utilizing Zoom Audio/Video Technology. Chairperson Simpson called the meeting to order at 3:00 P.M. on Thursday, September 3, 2020 in the Council Chambers. ROLL CALL: Present: Board Members Adeyemi, Webster, Livingston and Chairperson Simpson Absent: Board Member Goodbeer (arrived at 3:04 P.M.) Staff Present: Interim City Attorney, David Richie City Clerk, Arne Simonsen Minutes Clerk, Kitty Eiden Code Enforcement Manager, Curt Michael Associate Community Development Technician, Maria David Animal Control Officer, Alexandra McCarthy Animal Control Officer, Melissa Ethridge 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS SPECIAL MEETING MINUTES FOR JULY 9, 2020 On motion by Board Member Webster, seconded by Board Member Adeyemi, the Board of Administrative Appeals approved the Special Meeting Minutes for July 9, 2020. The motion carried the following vote: Ayes: Adeyemi, Webster, Livingston and Simpson Absent: Goodbeer B. CODE ENFORCEMENT APPROVAL OF THE LEVY OF SPECIAL ASSESSMENTS ON CERTAIN PROPERTIES FOR UNPAID ADMINISTRATIVE CITATIONS & LIEN PROCESSING FEES FOR THE MONTH OF MAY AND JUNE 2020. On motion by Board Member Livingston, seconded by Board Member Webster, the Board of Administrative Appeals confirmed each assessment and the amount thereof, as proposed or as corrected and modified, and order it assessed against the property in the amount of $80,241. 1A 11-05-20 BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 2 of 7 The Board also directed that the same be recorded with the Contra Costa County Recorder’s Office. The motion carried the following vote: Ayes: Adeyemi, Webster, Livingston and Simpson Absent: Goodbeer 2. REGULAR AGENDA OATH for all intending to testify City Clerk Simonsen administered the Oath to all those intending to testify. A. ANIMAL SERVICES CASE NO. 20-043873 – APPEAL FILED BY VICTORIA FUENTES FOR HER DOG “"BAM BAM" ANIMAL ID A134748 – VICIOUS ANIMAL HEARING [ANTIOCH MUNICIPAL CODE: §6-1.801 (B) (b) §6-1.805 (A) (2)]. Animal Control Officer McCarthy presented the staff report dated September 3, 2020 recommending the Board of Administrative Appeals deny the appeal and uphold the Vicious Animal Declaration of July 15, 2020 and Order to Surrender of July 17, 2020 and that “Bam Bam” not be returned to the dog owner but he be humanely euthanized instead. In response to Board Member Webster, Animal Control Officer McCarthy explained that it was unclear if the dog was aggressive due to injury because the person who stabbed the dog had altered his story regarding what had occurred. She noted the dog was tied up; however, it was not under control of the owner. She commented that originally it was reported that the dog was ordered to attack Jacob; however, after the dog was impounded, Jacob called into animal services stating the dog was just protecting the owner. City Clerk Simonsen announced that Board Member Goodbeer arrived at the meeting via zoom. In response to Board Member Livingston, Animal Control Officer McCarthy explained that the dog had been aggressive while impounded at the Antioch Animal Shelter. In response to Board Member Webster, Animal Control Officer McCarthy reported the dog was a 9-month-old pit bull. APPELLENT Victoria Fuentes reported that Jacob provoked her dog. She noted there were conflicting reports written by Officer Nilsen and Animal Control. She explained that Bam Bam became vicious while she was being attacked which could be verified by the police report. She noted the dog became protective after that event so now he was always on leash and she used caution. She reported that she submitted letters explaining the incident at Bonfare occurred because someone who did not have permission to be in the area and was warned the dog was aggressive approached him while he was tied up. She also explained after Jacob stabbed Bam Bam, he assisted animal control by placing the dog in their vehicle. With regards to the final event, she reported that Deana who was a witness to a prior event, admitted attacking her and indicated that she knew BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 3 of 7 better than to approach the dog. She commented that animal control did not take video evidence or ask her for a statement and their reports were inaccurate. Daniel Rubio reported he had assisted Victoria in seeking veterinary care for Bam Bam and he owned his sister. He commented that Bam Bam had only been aggressive when provoked and when Victoria was in danger. He explained that after Jacob stabbed Bam Bam, the dog was calm enough to let Jacob pick him up and load him into the animal control vehicle. He stated it was highly unlikely Bam Bam would attack if not provoked. In response to Board Member Livingston, Mr. Rubio clarified he was not a witness to any of the incidents. In response to Board Member Webster, Ms. Fuentes stated after Bam Bam was stabbed he was taken to the Antioch Animal Shelter and treated. She reported the wounds healed; however, he left the shelter with kennel cough. In response to Board Member Adeyemi, Ms. Fuentes stated that her dog was tied up with caution during each incident. Animal Control Officer McCarthy explained that during the incident that involved Deana, she was first bitten on the knee and then on the calf where she will need a skin graft. She reported during the first incident, Animal Services treated Bam Bam’s wounds. In response to Board Member Webster, Ms. Fuentes stated that prior to the stabbing incident, Bam Bam displayed aggressive behavior when he was protecting her during an attack. She noted following that event the dog was skeptical of people. She reiterated following the initial incident every time Bam Bam became aggressive he was tied up and provoked. REBUTTAL Animal Control Officer McCarthy reported that they needed the assistance of Jacob or Victoria whenever the dog was loaded into their van because it was not safe for the Animal Control Officer due to the risk of being bit. She noted that they had to use a control pole to get the dog out of the van. She explained that Ms. Fuentes signed the warning letter on June 16, 2020 indicating that another incident would result in the dog being impounded and a hearing would be conducted to possibly declare her dog a potentially dangerous or vicious animal. She commented that 2-days after the dog was released it bit someone else and caused significant harm. She noted that because Ms. Fuentes did not have a house in Antioch, they changed the vicious animal requirement to an order to surrender since she had no means to contain the animal. She further noted Ms. Fuentes provided a Bay Point address; however, after further discussion, she decided she wanted to remain in Antioch. She added that without providing an address for the animal to live, there was a concern for public safety and that was why Animal Services was recommending the order to surrender for euthanasia. In response to Board Member Webster, Ms. Fuentes explained that her dog was loyal, protective and would not attack if unprovoked. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 4 of 7 Board Member Webster commented that dogs suffered from traumatic incidents. Board Member Livingston stated without permanent housing or the ability to confine Bam Bam, it was very serious situation because of past incidents where the dog was aggressive. On motion by Board Member Adeyemi, seconded by Board Member Livingston, the Board of Administrative Appeals denied the appeal and upheld the Vicious Animal Declaration of July 15, 2020 and Order to Surrender of July 17, 2020 and that “Bam Bam” not be returned to the dog owner but he be humanely euthanized. The motion carried the following vote: Ayes: Livingston, Adeyemi, Simpson Noes: Webster Absent: Goodbeer Ms. Fuentes asked to see her dog prior to him being euthanized. Animal Control Officer McCarthy stated that typically they did not allow the dog owner to see the dog prior to euthanasia due to safety issues; however, she would ask the Animal Shelter Manager if it was possible. Following the vote on Item A, Board Member Goodbeer returned to the meeting and explained that he had lost his connection. B. ANIMAL SERVICES CASE NO. 20-051274 – APPEAL FILED BY ESMERALDA ASEVEDO FOR HER DOG “MADDIE” ANIMAL ID A135066 – POTENTIALLY DANGEROUS ANIMAL HEARING [ANTIOCH MUNICIPAL CODE §6-1.801 (B): POTENTIALLY DANGEROUS DOG OR ANIMAL (C) AND VICIOUS DOG OR ANIMAL (B), ANTIOCH MUNICIPAL CODE §6-1.501 (C) ANIMAL AT LARGE. Animal Control Officer Ethridge presented the staff report dated September 3, 2020 recommending the Board of Administrative Appeals deny the appeal and uphold the Potentially Dangerous Animal Declaration of July 13, 2020. In response to Board Member Livingston, Animal Control Officer Ethridge stated the Antioch Municipal Code stated that an animal at large was considered an animal that was not confined or contained by a leash and supervised by a competent owner. With respect to the potentially dangerous animal determination, she noted that properly being contained in the yard would entail always being supervised in the backyard. She reported Maddie was currently staying with a family member of the dog owner in a different city. She added that if the determination stood, Animal Services in the City where the dog resided would be informed and they would follow through with protocol for this type of incident. In response to Chairperson Simpson, Animal Control Officer Ethridge stated requirements for Maddie had not been met; however, they had been told that they would be able to follow through with the requirements at the new location, if the determination was to stand. She explained that one of the circumstances that was impeding Maddie returning home was that there were already three other dogs living in the residence and the Antioch Municipal Code (AMC) stated that any more than three dogs required a multiple pet permit. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 5 of 7 In response to Board Member Adeyemi, Animal Control Officer Ethridge reiterated that the home where the dog was currently located was out of Antioch’s jurisdiction and if the determination stands they would have to follow through with the requirements of the jurisdiction where she was located. She noted it would be acceptable to return the dog to the owner if the requirements were met including obtaining a permit to have four dogs in the home. In response to Board Member Webster, Animal Control Officer Ethridge stated the behavior displayed on the day of the incident was different than during her stay at the shelter; however, with these cases they had to consider the potential for this to occur again. She stated they put requirements in place to ensure the safety and protection of other people and their pets. In response to Chairperson Simpson, Animal Control Officer Ethridge stated a multiple pet permit application had to be approved prior to the dog being released to Ms. Asevedo’s residence. Interim City Attorney Richie stated given the discussion regarding the multiple pet permits it would be appropriate for the Board to take notice of 6-1.303 A1 of the AMC which limited adult dogs over 6-months to three or less for more than 30-days in a single dwelling and 6-1.303B of the AMC, which contained the application provisions for a multiple pet permit. In response to Board Member Webster, Interim City Attorney Richie clarified that the multiple pet application process required the Animal Shelter Supervisor to ensure several factors. Animal Control Officer Ethridge commented that she had not received an application for a multiple pet permit from Ms. Asevedo. In response to Board Member Webster, Animal Control Officer Ethridge clarified that if ownership of the dog changed the citation for the violation of the animal being at large would stand. APPELLENT Esmeralda Asevedo stated that there was no evidence that Maddie killed the chickens, and she did not believe the AMC was followed. She commented that the photo of the deceased chickens appeared to have no blood and the feathers remained intact, the photo of the injured chicken showed dark blood which could have been old and the in photo of Maddie she appeared scared, and there were no feathers on her. She noted that a pile of dirt near the fence was evidence that the neighbor was responsible for creating the hole. She further noted that there was a false statement made by her neighbor that there were four deceased chickens. She clarified that her dogs were not outdoor dogs or diggers and there was no evidence Maddie dug the hole. She noted her neighbor never brought this issue to her attention. She reiterated that false information was provided by the neighbor and information had been omitted by Antioch Animal Control. She explained that the AMC indicated an Animal Supervisor should have considered that the neighbor dug the hole which created an opening and if he had not done so this incident would not have occurred. She noted the neighbor had not informed her that they would be working along the fence line and they violated the ordinance prohibiting chickens from being kept within 20-feet of a dwelling. She expressed concern that there was no definition of a domestic animal in the AMC and the Potentially Dangerous Animal (PDA) determination referenced code that BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 6 of 7 stated an incident must occur on two separate occasions within a 36-month period. She commented that Maddie was good with people and other dogs. She stated that they believed another animal could have killed the chickens or Maddie was provoked by the chickens. She reported that Maddie would not be returning to their home. She asked for the City to remove the potentially dangerous animal and animal at large determinations. She stated that she attempted to get a police report because the neighbor had admitted to digging the hole, but she was unable to do so. In response to Board Member Webster, Ms. Asevedo stated that Maddie had not displayed this type of behavior before and she regularly visited the dog park with no incidents. In response to Board Member Webster, Animal Control Officer Ethridge stated if the determination was appealed, fees would be waived; however, the citation would stand because when she visited the property, she witnessed the dog at large. City Clerk Simonsen added that there was a report from the Antioch Police Department showing $1,111.00 as the total amount due, which included the $450.00 Dangerous Animal Investigation Fee. He reported that $1194.00 was applied toward the appeal. He explained that when the appeal was received, Animal Control provided an updated statement of the charges to that date. He announced that an email sent to the City Clerk’s office by Ms. Asevedo was forwarded to staff and Board Members. In response to Board Member Livingston, Animal Control Officer Ethridge explained that the citation for Maddie being at large would follow her wherever she was located. If the potentially dangerous animal determination was upheld, they would contact the jurisdiction where she lived so they could follow their requirements. She added that the City had not received an application for a multiple pet permit. In response to Board Member Webster, City Clerk Simonsen clarified that the applicant had not submitted a hardship waiver so that option was no longer available. Board Member Livingston supported Maddie being relocated. Interim City Attorney Richie clarified that this was an appeal of the determination of dangerous animal so the options before the Board would be to approve Ms. Acevedo’s appeal, deny the appeal or return the animal to the residence; however returning Maddie would put the owner out of compliance with the section of code limiting the number of dogs so that issue would have to be resolved prior to the dog returning. City Clerk Simonsen explained that once the appeal was received there was a tolling period which placed everything on hold during the period of placing this item on an agenda. He further noted if the appeal was denied the ability for the appellant to appeal the decision would start today. In response to Board Member Webster, Animal Control Officer Ethridge explained that because Maddie was found to be responsible for killing three chickens and wounding another, by BOARD OF ADMINISTRATIVE APPEALS Regular Meeting September 3, 2020 Page 7 of 7 definition, the AMC referred to a vicious dog determination; however, given her lack of history, size and demeanor Animal Services believed that the potentially dangerous dog determination was more appropriate. She noted if an incident occurred again, they would have the opportunity to make proper arraignments to prevent it from reoccurring. She commented that she believed Maddie had the potential to repeat this behavior, if given the opportunity. On motion by Board Member Webster, seconded by Board Member Adeyemi the Board of Administrative Appeals upheld the appeal and removed the Potentially Dangerous Animal Declaration of July 13, 2020 and ordered the $450.00 Dangerous Animal Administrative Fee be refunded to Esmeralda Asevedo. The motion carried the following vote: Ayes Goodbeer, Webster, Adeyemi Noes: Livingston, Simpson PUBLIC COMMENTS – None WRITTEN/ORAL COMMUNICATIONS – None ADJOURNMENT On motion by Board Member Goodbeer, seconded by Board Member Adeyemi, the Board of Administrative Appeals unanimously adjourned the meeting at 4:43 P.M. Respectfully submitted: Kitty Eiden KITTY EIDEN, Minutes Clerk 1B