Brainerd, Minnesota August 6, 2008

Transcription

1 Brainerd, Minnesota August 6, 2008 Pursuant to due call and notice thereof, the Special Meeting of the Brainerd City Council was called to order at 6:05 P.M. by Council President Kelly Bevans. Upon roll call, the following members were noted present: Aldermen Cumberland, Nesheim, Goedker, Nelson Fisher, and Bevans. Also noted present were Ms. Pamela Miller, Ms. Brook Mallak, P.A., City Attorney Fitzpatrick, Animal Control Officer Don Hannahs and several other witnesses. Noted absent were: Aldermen O Day, Olson, and Mayor Wallin. President Bevans stated that the purpose of tonight s meeting is for the purpose of conducting a Dangerous Dog Hearing. Dangerous Dog Appeal Ms. Pamela Miller Appeal Information: President Bevans reviewed the facts and procedure for tonight s meeting: He stated that a Dangerous Dog citation had been issued on July 2, 2008 to Ms. Pamela Lee Miller, 1820 S 7 th Street, Brainerd, and that Ms. Miller is present tonight as well as her attorney, Brook Mallak of Brook Mallak Law Office, P.A. He stated that the meeting order will be as follows: City Attorney Fitzpatrick will first present the case, Attorney Mallak will follow with Ms. Miller s case, and then the City will be able to ask questions of the attorneys, following those questions, both attorneys will be allowed to cross-examine all witnesses with the Council being able to ask questions at the end of each cross-examination. He stated that at the end of this process, the Council will determine if the Dangerous Dog Designation will be upheld. City Attorney Fitzpatrick stated that the summary was reasonable. President Bevans asked City Attorney Fitzpatrick to summarize the City Ordinance , Subd. 1, regarding the consequences of the Dangerous Dog designation. He stated that the first section says should a dog be found dangerous, the Chief of Police or Animal Control Officer shall have the authority to order euthanasia of a Dangerous Dog, and that on the second page it says after 10 days, the dog is immediately euthanized. He stated that he feels the wording is confusing because one statement says shall and one says may. City Attorney Fitzpatrick stated that this is a civil proceeding as opposed to criminal proceeding and noted under the City Code, the City Council can make a decision on the appeal as to whether or not a dog is a Dangerous Dog. He stated that the Dangerous Dog Designation has significant consequences which include the posting of signs (comprehensible by adults as well as children, such as pictograms),a required kennel for the dog, a bond posted in case the animal hurts someone, the need to have the animal micro chipped for identity, and often home owners insurance repercussions. He stated that he wants to assure the Council that whether or not the City Code gives the Animal Control Officer the ability to euthanize the dog, the City is not heading on that course. City Council, 8/6/08 Dangerous Dog Appeal 1

2 City Attorney Fitzpatrick stated he mentioned it is civil because the level of proof is different than a criminal case, that the test is whether something is more likely true than not true whereas criminal is proof beyond a reasonable doubt, and that under the City Code, the determination needs to be made if this dog exhibited aggressive unusual behavior. He stated that following the incident, Animal Control Officer Hannahs made two determinations: He issued a citation based on his conclusion that this dog is a Dangerous Dog and he wrote a separate ticket for a criminal charge against Ms. Miller for her dog biting another dog. He stated that he wants it noted that the criminal charge has been dismissed. Summary of Facts: The summary of facts will show that the owners of a small, 10 lb miniature pinscher named Kira," are John and Dawn Graff who live at the corner of Wright Street and South 8 th Street, on the north side of Wright Street across from Bethany Good Samaritan Home. Mr. and Ms. Graff have had Kira for a little over a year and also have two cats. On Sunday, June 22, 2008, the Graffs were in the yard talking to a neighbor friend and Kira was fastened to a trolley run in which the dog has a harness with a leash that slides along a cable. The Graffs heard Kira begin to bark and then cry out, obviously in pain, and ran to the dog where Mr. Graff saw Kira lying on her back being attacked by a German shepherd, namely Ms. Pamela Miller s dog, who was chewing on her. Mr. Graff shouted at the large dog and then ran to physically pull them apart. The larger dog was being led by a young girl and was wearing a leash. The leash got wrapped around the sign post, and Mr. Graff then felt the dog was going to attack him. The Graff s picked up Kira and took her to the vet, where she was treated and released. Five days later the wounds got infected and Kira had emergency surgery and has since recovered. The medical bills for Kira were in excess of $2,000 and were paid by Ms. Miller s home owners insurance and have been submitted just to show the consequence of the larger dog s behavior. Discussion of Incident: Per City Attorney Fitzpatrick, one of the things that struck the Graff s as unusual, was that Kira barking at the dog walking by was not unusual, and that the difference this time was the young girl having control of the dog instead of an adult. Ms. Miller s attorney, Ms. Brooke Mallak, stated that there are things her client is not disputing as far as the level of proof, and that all the bills have been paid by the insurance company. She stated that subdivision 2 of the Animal Control Ordinance , paragraph D, states that the procedure for notifying an animal owner that the Animal Control Officer has determined their animal dangerous is by Registered Mail, but in this situation, the Animal Control Officer delivered the notice in person instead of mail. She stated that what the Council needs to determine is whether the German Shepherd, whose name is Brandi, acted in an unusually aggressive manner under the circumstances. She stated that it is true that Ms. Miller walks Brandi in the neighborhood often and should be used to the barking dog; however, in this particular situation Ms. Miller s 7-year-old granddaughter, 5-year old grandson, two 6-year-old neighbor children and an 8-year-old neighbor child were along with her and Brandi, and that her granddaughter was in control of the retractable leash Brandi was on. She stated City Council, 8/6/08 Dangerous Dog Appeal 2

3 that when Ms. Miller s group got to the corner of Wright and South 8 th Street, the Graff s dog, Kira, was behind a rock garden/bush on the corner and no barking had started, but upon their approach, Kira jumped out and started barking, and that this startled Brandi and caused her to react by trying to protect the children and Ms. Miller. She stated that a dog is not smart enough to realize that the threat is much smaller than them or on a trolley system. She stated that the situation quickly came chaotic with Kira barking, Brandi protecting, the children yelling, Ms. Miller yelling and trying to get control of the leash, and eventually the Graffs coming in to protect Kira, and that the fact that Brandi bit Kira is not in question, but whether or not Brandi acted in an unusually aggressive manner considering the consequences that led to the incident. President Bevans asked the Council if they had any questions, as there were no questions, he turned the meeting back to City Attorney Fitzpatrick. Witness Testimony: City Attorney Fitzpatrick called his first witness, Brainerd Police Department Deputy Chief Corky McQuiston, and asked him to state his name and position with the City. He asked him a series of questions relating to his involvement after the incident. A summary of facts will show that Deputy McQuiston went to the Graff s property on July 22 nd and took photographs of the dog trolley system at their property, all on the request of the City Attorney. These photographs were passed to Attorney Mallak for her review and submitted, upon Deputy McQuistion s approval and verification, as Exhibits 1,2,3, and 4, to which there were no objections. The photos showed various views of the dog trolley system at the Graff residence, which City Attorney Fitzpatrick compared to a clothesline, which runs from their home to a tree in the yard, and Kira s leash runs along that cord. Deputy McQuiston confirmed that he checked the trolley system, and it was in working order, and that the measurement from the end of the leash to Wright Street is approximately 12 feet and that it is approximately 8 feet from South 8 th Street, so that the dog that was fastened to the harness system could not get closer than feet on the Wright Street side and 7-8 feet on the South 8 th Street side. Attorney Fitzpatrick stated, No further questions. Attorney Mallak asked, in reference to the pictures, did he take them on July 22, 2008, which would be approximately one month after the incident? Deputy McQuiston stated that this is correct. Attorney Mallak stated, No further questions. President Bevans asked Deputy McQuiston if he had had any previous experiences with Ms. Miller s dog, Brandi. Deputy McQuiston stated that he had not. City Attorney Fitzpatrick stated that he neglected to have the witnesses sworn in. President Bevans administered the oath to Mr. John Graff and Deputy McQuiston, (Hannahs and Mrs Graff??) City Council, 8/6/08 Dangerous Dog Appeal 3

4 City Attorney Fitzpatrick called his second witness, Mr. Jon Graff, and asked him to state his name and address. Mr. Graff stated he resides at 1836 South 8 th Street, and that he had lived at that address for 26 years. He confirmed that he has, within his home, two older cats in addition to their dog, Kira, whom he and his wife adopted from HART in November of 2007, and that she is a cross between a miniature pinscher and a Chihuahua. He described the trolley system he uses for Kira, upon City Attorney Fitzpatrick s request, as a system he installed 5 years ago for a previous dog which had since passed away. He confirmed that he was talking with a neighbor when the incident occurred and that Kira was on the trolley system at the time and that he thought her barking was routine, but he next heard a terrible cry from her and immediately went to see what was wrong. He stated that when he reached the dogs, Kira was lying on her back and Brandi was above her, biting her, and after seeing how much larger the dog was he stepped in and attempted to separate the dogs. He confirmed that his wife took Kira, who was covered in blood and saliva from Brandi and then he noticed that Brandi s leash had gotten tangled around the tree or a sign but she was still lunging at him and Kira seemingly wanting to attack. He stated that Kira was in severe pain and that her right side was completely ripped open, and that he and his wife immediately turned their attention to getting her to an emergency veterinarian. He confirmed that the trolley system was not damaged in and had not changed from the time of the incident to the day Deputy McQuiston s photos were taken. City Attorney asked Mr. Graff if Brandi, the German shepherd, was in his yard, to which Mr. Graff replied quite a ways into my yard, and that it was behind the rock shown in the pictures. Mr. Graff confirmed that the veterinarian care included stitches and eventually an infection which led to a severe surgery to save her life at great expense. City Attorney Fitzpatrick showed Mr. Graff Exhibit 5, which Mr. Graff confirmed were all bills for treatment that Kira had as a result of the incident with Ms. Miller s dog, Brandi, and that Ms. Miller s home owners insurance company had paid the bills in full. Exhibit 5 was submitted for evidence with no objections. Attorney Fitzpatrick stated, No further questions. Attorney Mallak asked Mr. Graff if him standing by the boat would have been obstructing his view as well as blocking the sight of him from a passer-by, and he stated that it would. He confirmed that he ran up, yelling as loud as he could, when he heard his dog cry, in order to get the large dog off of his dog. She asked Mr. Graff how long his dog was barking before the yelp, and Mr. Graff replied that it had been for less than 45 seconds. He confirmed that he did not hear any other noise besides the barking and then the yelping, and that he and his wife were talking to the neighbor when the incident happened. He confirmed that the dog is currently around 10 pounds, and that the veterinary bills that were submitted as Exhibit 5 do not list the specific work done to repair his dog s injuries. Attorney Mallak stated, No further questions. President Bevans asked if the Council had any questions. Alderman Goedker asked Mr. Graff if he had noticed anyone else yelling or screaming, and Mr. Graff stated that he only was aware of himself screaming at the time. Alderman Goedker asked if his dog was closer to the tree or the house, and Mr. Graff stated that his dog was right in-between the tree and the house and confirmed that the dog has free reign of the tether system all the way to the shrubbery. President Bevans asked if Mr. Graff would have been concerned if he had known Brandi was coming down the street on a walk. Mr. Graff answered that Brandi and Ms. Miller City Council, 8/6/08 Dangerous Dog Appeal 4

5 had walked by many times before and there had never been a problem, so he would not have been concerned at all. Alderman Nesheim asked how Kira is doing now, and Mr. Graff stated that a few bills for medications and minor expenses had recently been submitted to the insurance, but that she is doing very well, amazingly in his opinion. President Bevans asked Mr. Graff if he feels Brandi is a Dangerous Dog. Mr. Graff stated that if he had not been at the scene, his dog would have been mutilated. President Bevans asked again if Mr. Graff feels Brandi is a Dangerous Dog. Mr. Graff stated, Yes I do. City Attorney Fitzpatrick stated,, No further questions. City Attorney Fitzpatrick called his third witness, Ms. Dawn Graff, and asked her to state her name and address. Ms. Graff spelled her name and stated that she lives at 1836 South 8 th Street in Brainerd and confirmed that she is married to Mr. Jon Graff that had just testified. She stated that she agreed with Mr. Graff s characterization that Kira has gotten along with their two cats and that she has never observed a problem between the animals. She confirmed that Kira does bark to make her presence known which is common in small dogs, but that she has never seemed aggressive. Attorney Fitzpatrick asked Ms. Graff if it was true that no changes had been made to Kira s dog trolley system between the time of the incident and the day Deputy McQuiston took the pictures which had been submitted for evidence, and Ms. Graff confirmed this. Ms. Graff stated that when the incident happened, she was standing with Mr. Graff next to a boat visiting with a friend and Kira was out on the trolley system which she is attached to by a harness which has a clip on her back. She stated that she too heard Kira s bark first and then a terrible cry that caused Mr. Graff to check on Kira right away and Mr. Graff cried Oh my God, no! She stated that when she approached the scene, Mr. Graff was pulling Brandi off Kira and picking Kira up and she confirmed that the incident happened between the flower garden and the house. She stated that she grabbed Kira and noticed a large gash on her right side and that one of Kira s boobs was swollen terribly as if she had just had pups. Attorney Fitzpatrick asked if Ms. Graff had observed a 7- year-old girl within the scene. Ms. Graff stated that she did see the girl, and noticed that the girl had control of the leash, but in her haste to take care of Kira, she did not pay attention to what the girl was doing, specifically. City Attorney asked Ms. Graff if she felt that the girl had the dog or if the dog had her, and Ms. Graff stated that she assumed that the dog had her because of the dog s weight, but could not say for sure. Ms. Graff stated that her and her husband ran into the home to call the vet, but after noticing both of their phones were outside she ran out to get hers and Ms. Miller was outside and asked if Kira was alright, to which she responded no, she s not, and ran back into the house. She confirmed that she did not know Ms. Miller but was familiar with her from the neighborhood and had seen her walking by many times with Brandi. She confirmed that Kira barks at other dogs going by, as well as everything going by, but that that Kira had never had any problem with a dog before. Upon Attorney Fitzpatrick s inquiry, Ms. Graff confirmed that Kira had been through emergency medical care that day and then emergency surgery that following Friday, that the bills were approximately $2200, and City Council, 8/6/08 Dangerous Dog Appeal 5

6 that Ms. Miller s home owners insurance paid these bills. Attorney Fitzpatrick stated, No further questions. Attorney Mallak asked Ms. Graff to explain what she noticed when she came to the scene of Kira being bitten. Ms. Graff stated that she noticed a couple young children were in the street, but her main focus was taking care of her dog. Attorney Mallak asked if Ms. Graff s assumption that the dog had the girl was based purely on the size and weight of the dog. Ms. Graff stated that her statement was based on the size of Brandi and the size of the girl and of the scene before her in which Brandi was attacking Kira. Attorney Mallak asked if Brandi s leash was tied around the tree or the sign on the corner, and Ms. Graff stated that she did not see this herself, but that Mr. Graff had made that statement. Attorney Mallak stated, No further questions. Alderman Cumberland asked Ms. Graff if the dogs had been acquainted from the past, and Ms. Graff stated that, as far as she knows, they had not. Alderman Cumberland asked if Kira is around other small children and if she tolerates them well. Ms. Graff stated that they do not have children in the home, but are around friends with children often and Kira tolerates them fine. President Bevans stated to Ms. Graff that there has been some testimony today about the nature of dogs, and that this hearing is really about one dog, and that Ms. Graff had stated that Kira barked at everything going by as many small dogs do. He asked Ms. Graff if Kira had ever bitten anyone, and Ms. Graff stated that Kira had not. President Bevans asked what Kira would do if he came into the yard, and Ms. Graff stated she would bark and growl, but then want to be picked up after she sniffed him out. He asked Ms. Graff if on normal circumstances she would have been worried about Kira when seeing Brandi walking down the street, to which Ms. Graff replied absolutely not. He asked if she feels Brandi is a Dangerous Dog. Ms. Graff stated the she does, based on the incident that happened. President Bevans asked if there were any further questions, and there were none. City Attorney Fitzpatrick stated that the last witness he d like to call is Animal Control Officer Don Hannahs. He asked Officer Hannahs to spell his name and state his position with the City of Brainerd. Mr. Donald Hannahs spelled his name and stated that his duties involve enforcing the City Ordinance relating to Animal Control, and that he had been in the same field for 15 years. City Attorney Fitzpatrick asked if occasionally Officer Hannahs had to make a determination that an animal is dangerous, to which Officer Hannahs replied yes. He stated, upon Attorney Fitzpatrick s inquiry, that he works with other jurisdictions and that in a year s time he responds to well over 100 animal situations throughout Brainerd and the surrounding areas. He confirmed that, out of approximately animal calls per month, there are usually 2 or 3 he would consider dangerous at the most, and that he makes this determination by the severity of the situation, the reason the animal is acting out, and how the animal reacts to other animals or people. City Attorney asked several questions concerning the incident on June 22 nd between the dogs of Mr. and Ms. Graff and Ms. Miller; summary follows: Officer Hannahs stated that he received a call from Sergeant Holst of the Brainerd Police Department informing him that a dog attacked another dog at 1836 s 8 th Street, Brainerd, City Council, 8/6/08 Dangerous Dog Appeal 6

7 and that Sergeant Holst stated that there was no need to respond at time because the owners of the attacked dog did not know who the German shepherd that attacked their dog belonged to. He stated that a few days later, Ms. Graff called him with Ms. Miller s name as the owner of the German shepherd that attacked her dog, so he then spoke to Ms. Miller and went to her home to identify her and her dog. He stated that Ms. Miller told him that she and her grandchildren and some neighbor kids had gone for a walk with her dog Brandi being led by her 7-year-old granddaughter, and that when they came around the corner on South 8 th Street, a miniature pinscher on a cable-run had run out towards the road barking at her and her dog and that her dog ran into the yard and grabbed the small dog. Officer Hannahs stated that Ms. Miller told him that that her granddaughter had never released the leash, and that the owner of the small dog ran out and started shouting obscenities at them. He stated that, in his estimation, the German shepherd looked to be an older dog around 90 pounds. He confirmed that when he went to Ms. Miller s, he obtained vaccination information which was current, and then returned to his office to begin putting the case together. He stated that he also went to the property of the Graffs the day after seeing Ms. Miller, and that he had observed the condition of the trolley system and determined it to be intact as stated earlier by other witnesses. He confirmed that he had spoken to both Mr. and Ms. Graff that day, and that he also had heard their testimonies this evening which he stated were consistent with their statements to him. He stated that after the investigation he wrote up paperwork for a Dangerous Dog and a citation for a Vaccinated Dog Bite to Another Dog. He confirmed that the label of a Dangerous Dog holds serious consequences and that he does not take this responsibility lightly. Attorney Fitzpatrick asked what some of the consequences for a Dangerous Dog label are. Officer Hannahs stated that the dog has to be micro chipped, kept in proper enclosure on the owner s property, and that a sign from the State has to be posted on their property that has pictures rather than words so that children can interpret its meaning. He stated that the owner must provide a surety bond or an insurance policy in the aggregate amount of $50,000 payable to any person the dog may injure in the future, as well as pay a filing fee to register the dog as a Dangerous Dog with either the County or local Police Department. Attorney Fitzpatrick asked if he is correct in stating that it is not the intention of the City to order the dog to be euthanized. Officer Hannahs stated that this is correct. Attorney Fitzpatrick asked Officer Hannahs about another alternative in which the dog could be ordered to have permanent removal from City limits if determined dangerous, and asked Officer Hannahs if he had known of this ever happening. Officer Hannahs stated that he has not known any situations that have been handled that way. Attorney Fitzpatrick asked Officer Hannahs what it was in particular that caused him to apply the Dangerous Dog label to Brandi after the incident. City Council, 8/6/08 Dangerous Dog Appeal 7

8 Officer Hannahs stated that, after talking with the Graffs, he had to make the determination that had the Graffs not been in the position they were, Brandi could have harmed Kira more seriously or even caused the death of Kira. He stated that he acknowledges and recognizes that this is serious matter. Attorney Fitzpatrick asked if Officer Hannahs still feels, now 1 ½ months after the initial determination, that this is a dangerous animal. Officer Hannahs stated, For the circumstances, yes. Attorney Fitzpatrick stated, No further questions. Attorney Mallak asked what other jurisdictions Officer Hannahs contracts with for animal control. Officer Hannahs stated that he works with 13 contracts right now including Crow Wing County, Baxter, Nisswa, Lakeshore, and many others, and he confirmed that he does the work on his own and has been doing the work full-time for about 15 years. Attorney Mallak asked if Officer Hannahs had attended any training for this position. Officer Hannahs stated that he is both State and Nationally certified as an Animal Control Officer, through the Minnesota Animal Control Association, and the National Animal Control Association. Attorney Mallak asked Officer Hannah if he s been working in Brainerd the whole 15 years he s been doing this work, and Officer Hannahs stated he had, and confirmed that he was very familiar with the dog portion of the Code. Attorney Mallak asked Officer Hannahs to confirm that he had also issued Ms. Miller a criminal charge for Vaccinated Dog Bites Dog and state what section of the ordinance this is under. Officer Hannahs confirmed that he had, in fact, issued this charge, and that Section covers this charge, and that he is aware that the citation was ultimately dismissed, but stated that he did not know why it was dismissed. Attorney Mallak asked if Officer Hannahs was aware then, that the reason the citation was dismissed was because there is no ordinance that lists a charge for Vaccinated Dog Bites Dog, but only for Vaccinated Dog Bites Person. Officer Hannahs stated that may have been my mistake. Attorney Mallak asked if Officer Hannahs had prepared a report on this matter, and if it was done prior to issuing this citation. Officer Hannahs stated the report had been done afterwards. Attorney Mallak asked Officer Hannahs if the Graffs had stated that, based upon the tether system, their dog could get within 3 to 4 feet of the street and if he had checked that distance himself upon his visit to their home. City Council, 8/6/08 Dangerous Dog Appeal 8

9 Officer Hannahs confirmed that the Graffs had said this and that he had pulled the cord out but not measured it. He confirmed that he also saw the Graffs dog, Kira, at that time. Attorney Mallak asked Officer Hannahs, in regards to his earlier statement in which he said motivation is not necessarily taken in to consideration when determining whether to give a Dangerous Dog notice, if that meant that the fact that a dog might be provoked does not affect his decision? Officer Hannahs stated that it is hard to tell what provokes a dog in many situations, and that he is not an animal behavior specialist. He stated that a portion of his decision was based on what Brandi did to Kira, and another portion of his decision was based on what might have happened if the Graffs had not been home. Attorney Mallak asked if Ms. Miller had expressed to Officer Hannahs that she feels the reason Brandi was more aggressive is because the dog was trying to protect the children that were along on this particular walk, and Officer Hannahs stated that this is correct. He confirmed again that he feels the dog is about 90 pounds and resembles a German shepherd breed, and that the Graffs dog looks to be about 8 to 10 pounds. Attorney Mallak stated, No further questions. Attorney Fitzpatrick asked Officer Hannahs if he had, in fact, stated to Attorney Mallak that Ms. Miller had expressed to him that she feels the reason Brandi was more aggressive is because the dog was trying to protect the children that were along on this particular walk, and Officer Hannahs stated that this is correct. Attorney Fitzpatrick stated even though she told you those things, in your opinion that didn t justify what happened and you still feel that the dog s reaction made the label as a Dangerous Dog appropriate? Officer Hannahs replied, That is correct. City Attorney asked, And that s still your opinion today? Officer Hannahs replied, Yes. Attorney Mallak stated, It s still your opinion, but you made the statement that, when you make these decisions, provocation does not come in to the equations as to whether or not you decide the dog is dangerous, so regardless of if Ms. Miller had told you that, you would have still done the Dangerous Dog notice. Officer Hannahs replied, Yes. Alderman Nelson Fisher asked Officer Hannahs if he d ever been called to investigate Ms. Miller s or the Graffs dog before this incident, and Officer Hannahs stated he had not. Aldermen Goedker asked if Officer Hannahs had seen the German shepherd, Brandi, and asked whether he noticed any out of the ordinary behavior. Officer Hannahs stated that he had, in fact, seen the dog and that he did not notice anything out of the ordinary. City Council, 8/6/08 Dangerous Dog Appeal 9

10 Alderman Goedker asked why the dog is already micro chipped. Officer Hannahs stated that a lot of people use the micro chips to help find lost dogs, so it is mainly used to get animals back to their owners. President Bevans asked if the requirement for enclosure of a Dangerous Dog means it never gets let out, and Officer Hannah s stated that if the dog is outside the enclosure, it has be in the capable hands of an adult on a leash not exceeding 6 feet. President Bevans asked if the requirements listed are all immediately enforced in a Dangerous Dog label, and if the label stays on the dog forever. Officer Hannahs stated that the requirements are to go into effect immediately when an animal is deemed dangerous, but that a dog can be taken off of a Dangerous Dog list after certified training and proof that it is no longer a threat. President Bevans asked if there are training facilities in the local area and Officer Hannahs stated that there are. Attorney Mallak asked if State statute states that a Dangerous Dog that is on a leash must also be muzzled, and Officer Hannahs stated that State statute states that it should be but he is not sure of the City ordinance reading on that requirement. Attorney Mallak stated that the State statue had been changed in the last year regarding a Dangerous Dog label, which Officer Hannahs was not aware of, and that one of the changes is a $300,000 required surety bond instead of a $50,000 surety bond, and that anyone that has a Dangerous Dog label to notify the place where the dog is registered if the dog s home is moved and if they die, as well as letting anyone they rent from know the dog s label. She asked if the certificate that a dog has had training would go to Officer Hannahs and he stated that the situation had not come up for him yet. Attorney Mallak stated, No further questions. Attorney Fitzpatrick asked Officer Hannahs if all the requirements for designating that a resident has a dangerous animal are put in place to protect the general public and that the recent increase in surety bond amount probably indicates that the Legislature treats these animals seriously because they know they can cause serious harm? Officer Hannahs stated that he believes this is true. Attorney Fitzpatrick stated that he has no additional witnesses at this time. Attorney Mallak called her first witness, Ms. Pamela Miller. President Bevans swore her in. Attorney Mallak asked Ms. Miller to spell her name and recite her address. Ms. Miller spelled her name, Pamela Miller, and stated that she lives at 1820 South 7 th Street, Brainerd. Ms. Miller confirmed that she has one pet, Brandi, who she was adopted from HART about 1 year ago, and that she had other dogs before Brandi. She stated that HART thought she was 2 or 3 years old when she adopted her, but she feels, along with her veterinarian, that Brandi is actually around 5 or 6 years old. She stated that she thinks that Brandi is not purebred German shepherd, and confirmed that she is the only pet she has, but that she has been around other dogs often and has never been aggressive before with any other dog or any person ever. Ms. Miller stated that the incident happened around 3:30-4:00 P.M., that she and her 7-year-old granddaughter, 5- year-old grandson, and 3 neighbor children who were 6, 8 and 8-years old. She confirmed that her granddaughter was walking Brandi on the retractable leash at a length of approximately 3 feet or so out at a locked position. She stated that the children and her were walking west on Wright Street on the road because Wright Street does not City Council, 8/6/08 Dangerous Dog Appeal 10

11 have sidewalks, and that Brandi was also on the road the whole time. She stated that the Graffs dog, Kira popped out at them and then started barking, and that she feels this startled Brandi. Ms. Miller stated that her granddaughter was holding the leash and that her granddaughter and a couple of the kids were in front of herself and a couple of the kids were behind her. She stated that she did not hear any barking before the dog jumped out, and that the dog jumped out from behind the landscaping on the corner of the yard toward her dog. She stated that when she saw what was happening, she started running up to the dogs to get Brandi off of Kira and all of the kids were also yelling Brandi s name, and that the whole thing happened in less than a minute. Attorney Mallak asked how far into the yard the incident had taken place and Ms. Miller stated that her estimate is probably no more than 1.5 to 2 feet from the curb. She stated that Mr. Graff and his wife came out after they heard a yelp and they were trying to get the dogs apart while she was trying to get to the dogs and her granddaughter, and then the Graffs were tending to their dog while she reached the children who were upset over the incident. She stated that she walked past the Graff s home on almost a daily basis for the past year and that there had never been a problem, and that she feels the only reason Brandi acted aggressively this time was because she was being protective of the kids. She stated that before this incident when Kira barked as just she and Brandi walked by, Brandi would just tug a little to be curious of the small dog. Attorney Mallak stated, No further questions. Attorney Fitzpatrick asked if she was told about Brandi s background when she adopted her from HART. Ms. Miller stated that she was told by HART that Brandi was very easy-going and loves people, but that she does not believe that HART knew exactly where she came from. She confirmed that Brandi is a healthy and strong dog, and that after the attack on Kira, she acted as if nothing had happened. She stated that Brandi never shows her teeth or growls at people other than when they may be walking by outside and she growls a bit to alert Ms. Miller. She stated that during the incident, Brandi inched herself over to Kira after being startled, and drug the granddaughter who was trying to hold her back. Attorney Fitzpatrick stated, No further questions. Alderman Goedker asked how long the retractable leash that Brandi was on can stretch. Ms. Miller stated that it can stretch out maybe 4 or 5 feet, but she is not sure. He asked if the time frame between the small dog barking and the cry of pain was a very short time and Ms. Miller stated it was. Alderman Nelson Fisher stated that most of the retractable leashes that she has seen extend quite a bit further, such as feet. Ms. Miller stated that the leash only extends to maybe 5 feet and you can make it shorter. Alderman Nelson Fisher stated that even if the leash was extended all the way to 5 feet, it was wrapped around a tree or post at one point, and she asked if that s how it really was, that the kids were all within a couple feet of each other. Ms. Miller stated that some kids were in front of her, some behind and one in a wagon that she was pulling and that the moment the incident happened she was not close enough to grab the leash. Alderman Cumberland asked Ms. Miller to describe Brandi s demeanor that day, asking if she was excited with all the children around. Ms. Miller stated that Brandi is very used to the children because they come over very often just to see Brandi and she was her normal self that day. Alderman Cumberland asked the weight of the dog compared to City Council, 8/6/08 Dangerous Dog Appeal 11

12 the granddaughter, and Ms. Miller stated that Brandi is 95 pounds and her granddaughter is 53 pounds, and has walked Brandi in the past. Alderman Nesheim asked if there have been any incidences of Brandi biting anyone else, and Ms. Miller stated there had been none. President Bevans stated, with all the facts in mind, all of this activity occurred within a radius of less than 7 feet and asked if Ms. Miller was right next to her granddaughter. Ms. Miller stated that she was a couple feet behind her granddaughter, and that Brandi did not get wrapped around the tree until after the biting incident and Kira had been picked up. President Bevans stated that he is unclear as to how Mr. Graff made it to the scene right away and Ms. Miller did not. Ms. Miller stated that Mr. Graff reacted quicker she didn t know what was going on until the yelp. President Bevans stated that Mr. Graff didn t react until he heard the yelp either. Ms. Miller stated that Mr. Graff ran and that she was pulling a wagon with one of the children in it. President Bevans stated that subd. 1 of Ordinance states a dog is considered dangerous after it has and that the forth item, (item D), states exhibited unusual aggressive behavior. He stated that his question to Ms. Miller, in splitting the terms up, is was your dog aggressive to the little dog? Ms. Miller stated Ya, she was. President Bevans asked, Was your dog unusually aggressive? Ms. Miller stated, I had never seen that in her. President Bevans asked, But was she? Ms. Miller stated, Was she aggressive? President Bevans asked, We know she was aggressive, but was she unusually aggressive? Ms. Miller stated, Yes well, I mean.. President Bevans stated that he just wanted to clarify that is the definition in the Ordinance. Attorney Fitzpatrick stated that the attack did not happen on the street, and that it was after Ms. Miller reached her dog and got control of her that her leash got tangled, and Ms. Miller stated that it was. Attorney Mallak asked Ms. Miller, You ve never seen Brandi act this way before, correct? Ms. Miller stated that she had not. Attorney Mallak asked Ms. Miller if that is the reason she would characterize Brandi s aggressive behavior as unusual, because it had never happened before, and Ms. Miller agreed that it was. City Council, 8/6/08 Dangerous Dog Appeal 12

13 President Bevans stated asked the Attorneys to make their closing statements. Closing Statements: City Attorney Fitzpatrick thanked the Council for coming to the meeting tonight, stating that this is a very important matter because it is concerning public safety. He stated the whole business about dangerous animals and Dangerous Dog s is to regulate them and to be sure that, when appropriate, children and others in the public are warned about animals that may be dangerous. He stated that Officer Hannahs has 15 years worth of experience and has seen dogs in many circumstances and does not take the labeling of a Dangerous Dog lightly. He stated that the requirements that are included in the State statute are not necessarily a bad thing; it is a warning to the general public. He stated that most disturbing about this incident is how ordinary it was until the moment a 10 pound dog ended up on its back liable to be killed had her owner not separated her from another dog. He stated that the dogs are familiar with neighborhood and have seen each other many times, but for some reason something triggered one dog to react differently. He stated that maybe the dog was instinctively reacting, but what bothers him is the propensity that was demonstrated by the larger dog to act this aggressively when confronted by circumstances that it didn t understand; Brandi may have been startled but her response is what s troubling and concerns him. He stated that the City is trying to protect against the possibility of the next incident another incident, and that the next time it could be a small child that gets attacked rather than a small dog, and that whatever it may be, Officer Hannahs, the owners of Kira and himself are of opinion that this animal, because of behavior, has earned itself a label and that the public should be cautious. He stated that one thing that caught his ear was that, although Ms. Miller carried out an act of kindness by adopting her dog from HART, there is no way of knowing Brandi s history before she was part of Ms. Miller s home, and unfortunately this history could have included abuse or injury and could have gone on 3-6 years depending on Brandi s age, which is also uncertain. He stated that something in Brandi s background may have built in a tendency to react in this way and warrant the Dangerous Dog label. He stated Brandi is a 95 pound healthy strong dog and can pull 7 year old around and that he is even a little surprised the Mr. Graff had the courage to pull a 95 pound dog off his small dog, but he was motivated by love and concern. In closing, he stated that the underlying concern is having an animal within the City limits that hurt and, from all apparent signs, would have killed a small dog in that dog s own yard, for reasons know one will ever fully understand. He stated that, based on this known information, he feels it is the City s duty to impose the requirements set by the State Legislature and make the determination that this dog is a Dangerous Animal with the statutory requirements be applied. Attorney Mallak stated that she agrees with Attorney Fitzpatrick on several points such as the importance of public safety, especially concerning dogs; however, any size dog has the ability to do immeasurable amounts of harm. She stated that this has to be taken into consideration when looking at this situation, because of the fact that Kira can fit into Brandi s mouth and so her size made it much easier for her to be harmed more severely. She stated that this was not a normal walk of Ms. Miller and Brandi because of the added factor of all the children and Brandi s natural instinct to protect them when Kira ran out from behind the large landscaping area barking at all of them with no previous warning. She stated that also, Ms. Miller could have and had many times before held a curious Brandi back and has expressed many times her concern and apology, but that on this day her granddaughter was in control of the leash, so things City Council, 8/6/08 Dangerous Dog Appeal 13

14 were different. She stated that all of these factors do not make Brandi a Dangerous Dog. She stated that Mr. Graff stated that, had he not been there to separate the dogs, his dog could have easily been killed, and that this may be true, but it is also true that the Graffs stated that Kira barks at everything and anything that goes by and that she runs out to the edge of the yard while doing so. She stated that that everything happened so quickly, and that this was an isolated incident in which Brandi felt she felt she needed to protect what she felt was a threat, first as Kira and then as Mr. Graff running and shouting at her with the added confusion of Ms. Miller and the children also yelling and screaming in fear all around her. She stated that the dogs may have seen each other in passing many times but were not acquainted further than that, and that Brandi has been in contact with other dogs and children with no problems. In closing she stated that Brandi is not a Dangerous Dog, and that she reacted reasonably under the circumstances of being provokes, frightened and protective, and she asked the Council to find in favor of Ms. Miller and not uphold the Dangerous Dog classification. President Bevans stated that each Council member needs to give their vote tonight as to whether the Dangerous Dog petition needs to be upheld, and that he feels is would be appropriate to give your reason for the decision. Attorney Fitzpatrick stated that he feels it is not only important but necessary for the Council members to give some explanation for their answer. Alderman Goedker asked to see the Exhibits that had been submitted. Alderman Nelson Fisher asked for a short recess. President Bevans called a recess from 8:20 to 8:25 P.M. Council Decision: President Bevans stated that the first order of business is to determine whether there is any Council member that feels they cannot render a decision this evening. As no Council member spoke, President Bevans asked for each Council member to discuss their feelings on the appeal before making a motion, taking discussion on the actual motion, and then doing a vote. Alderman Goedker stated that, in reviewing his notes and considering fact or fiction, it seems that everyone agrees about what happened, and it all comes down to whether the dog should be considered a Dangerous Dog or not. He stated that he believes that the dog should be considered a Dangerous Dog because our animal control officer has enough experience to make the determination and that this is not a common situation and falls under the code of unusually aggressive behavior. He stated that his main concern is preventing this sort of occurrence or worse in the future. He stated that he believes all animals are unpredictable, and that there should be some additional warning to the public about this or any dog that might pose a threat because he would hate to see this happen again. He stated that he does not feel anyone is at fault and that it was just a bad accident that happened, but that the City needs to do what it can so that it doesn t happen again. Alderman Nelson Fisher stated that her thoughts are similar to Alderman Goedker s. She stated that she is not an expert such as Officer Hannah s, but that she has lived with City Council, 8/6/08 Dangerous Dog Appeal 14

15 a few dogs in her life, and that they can be unpredictable. She stated that, in this case, there is no history information on Brandi, so nobody knows what or when she might become protective such as she may have been in this case. She stated that something similar could happen again and that it would be a shame, especially if on a person. She stated that she does believe that Ms. Miller s dog is probably normally a gentle dog and unaggressive, but that at her size, she can be very dangerous if provoked, and that the City has the obligation to think of public safety first. President Bevans stated that there has been a lot of testimony regarding the size of Kira and the injuries, the leash, and the trolley system; all pertinent facts to case. He stated that regardless of what motivates a dog, the fact that she acted so aggressively when feeling threatened, as well as the opinion of Officer Hannahs is what makes him feel this is a Dangerous Dog. Alderman Nesheim stated that she aches for both of the owners, stating it is regrettable and unfortunate that both owners have had to experience this incident. She stated that both of her in-laws have had German shepherds for years, and that her children grew up with them and the breed s personalities and attributes. She stated that she believes that their trait of protectiveness of children may have come out in Brandi and that she does not believe this is a Dangerous Dog. She stated that she understands animals can change, but I don t think that is the case here because of her experience with other German shepherds she had interacted with. Alderman Cumberland stated that Brandi s response was to the provocation, confusion and excessive noise surrounding the incident. She states that based on past behavior, the granddaughter holding the leash was appropriate, but it is known now that it should have been an adult in control. She stated that because Brandi s history is unknown, and the fact that German Shepherds that she has known have been both gentle and somewhat dominating, her future behavior is not certain either. She stated that she is going to have to agree that Brandi should be labeled a Dangerous Dog. President Bevans asked for a motion. MOVED AND SECONDED BY ALDERMEN GOEDKER AND NELSON FISHER TO DENY THE APPEAL BY MS. PAMELA MILLER TO DENY THE APPEAL FOR THE LABEL OF Dangerous Dog TO BE APPLIED TO HER DOG. President Bevans asked for discussion specifically on the motion. Alderman Goedker stated that he wants it known that the motion in no way reflects Ms. Miller s behavior as a responsible dog owner, and that this is just about the dog. Alderman Cumberland stated that she is voting in favor of denying appeal based on the unusually aggressive behavior and her lack of willingness to take future risks. Alderman Nesheim stated that she is voting against the motion. Alderman Goedker stated that he is voting in favor of the motion because he feels that the dog did exhibit unusually aggressive behavior and is capable of being a threat because of her size and abilities. He stated that the community needs to be warned because of public safety. City Council, 8/6/08 Dangerous Dog Appeal 15

16 Alderman Nelson Fisher stated that she is voting in favor of the motion because of concerns for the possibility that Brandi will respond in the same manner as she did in this incident at some point in the future. President Bevans stated that he is voting in favor of the motion based on the actions of the dog being unusually aggressive. Adjourn to the College Drive Project Management Team Meeting at Central Lakes College on Tuesday, August 12, 2008 at 3:30 P.M. The Chair adjourned the meeting at 8:45 P.M. City Council, 8/6/08 Dangerous Dog Appeal 16