The Pledge of Allegiance was omitted since it was done at the meeting prior. Mayor Davis asked for public comment and there was none.

Transcription

1 TOWN OF MELBOURNE BEACH SPECIAL TOWN COMMISSION MEETING Thursday, January 31, 2013 Community Center 509 Ocean Avenue Immediately following Regular Town Commission meeting (continued) I. CALL TO ORDER Mayor Tom Davis The meeting was called to order at 8:10 p.m. II. ROLL CALL Present: Mayor Tom Davis Vice Mayor Rocco Maglio Commissioner Jean Marshall Commissioner Jay Gurecki Commissioner Lisa Farrall Town Attorney Paul Gougelman Town Manager Bill Hoskovec Town Clerk Rhonda Danielle III. PLEDGE OF ALLEGIANCE AND A MOMENT OF SILENCE The Pledge of Allegiance was omitted since it was done at the meeting prior. IV. PUBLIC COMMENT Mayor Davis asked for public comment and there was none. V. OLD BUSINESS 1. Discussion and possible action regarding follow up discussion and possible action regarding dogs. Commissioner Gurecki said that some folks had voiced concerns over an incident that occurred on 01/01/2013 regarding a pit bull attack on a kitten that resided on Flamingo Lane. The owners of the kitten asked for action so the Commission had talked about instituting an ordinance requiring $300,000 of liability for pit bull terriers by breed. He said he has done some research regarding breed specific bans and it is not feasible. Attorney Gougelman agreed that they couldn t be breed specific. Commissioner Gurecki said there are a lot of breeds that can have that behavior. He relayed there had also been another incident last week regarding an attack on a dog by another dog that was not a pit bull. The injured dog required surgery and seems to be recovering. He stated he has looked at the Brevard County ordinance regarding

2 2 dangerous dogs and it is liberal and he is not in favor of it. He asked the Town Manager if he had sent the letter to the County Commission yet as requested by the Commission at the last meeting. Town Manager Hoskovec said he had not sent the letter to the County Commission yet but had sent a certified letter to the property owner who owns the residence where the pit bulls reside from the first attack. Commissioner Gurecki said they should discuss what should be in the content of the letter tonight and then send it out. He proposed that if folks feel threatened by a dog to contact the Police Department and they could look into the incident. He said a formal report should be written as well as talking to the animal owner and find out if they were aware of this behavior. He said after the January 1 st incident he went and talked to the owner of the pit bull in question and he admitted that his dog doesn t like cats. He said the owner said he was also aware that his dog had gotten out on several occasions and was aware of his dog s behavior but he did not know his neighbors felt threatened. He said he would like to have the Police Department involved to try and make sure an incident doesn t escalate but if for whatever reason they cannot resolve it between neighbors a report should be made. If the owner of the dog in question doesn t agree to corrective action then we would put the dog into a category of threatening the community and its high likelihood of potentially attacking a dog or a person. He proposed at that time they should be required to get additional liability insurance and if they choose not to get it or let it lapse it would then go to a fine situation. Commissioner Farrall said it seemed to her that we have had enough incidents where these dogs could be declared dangerous. She said there has been incidents of people being chased and one incident where a dog wandered into someone s house. She said she didn t understand why someone couldn t declare these dogs as dangerous and then the dangerous dog restrictions could be put into place. 2 Bob Brown who is an employee of Brevard County animal control said the problem with breed specific bans is you can t prove what breed a dog is. He said as far as the incident with the kitten, he spoke with the owner of the pit bull who is Mr. Green and on the 16 th he signed for a dangerous dog warning letter. At this point we have culpable negligence if there is damage in the future to anyone or anything because he has been officially warned. He said part of the problem is that there is a good neighbor syndrome and when an incident occurs they don t have it documented but when something heinous occurs they call and want something done right now. He said the problem could have been brewing for over a year but they want a solution in thirty minutes. He read from the County ordinance what constitutes a dangerous dog. He recommended that people document the incidents because he can t declare a dog dangerous unless there are prior reports. He also said there are not many insurance companies that will carry you if you own a pit bull. There is a list of dangerous dogs they have and if you own one your premiums will double or they won t insure you at all. He said he has spoken with Mr. Green and issued him a dangerous dog warning. He said if there are any other infractions we will pick the dog up and impound it for a dangerous dog inspection and at that point

3 3 we will go through the process with the dangerous dog council. We would go before this board as well as the dog owner and we would both plead our case and we would then follow their decision. He said without due process of law the government cannot seize property and being that a dog is a piece of property we can t have it removed every time it barks. Since Mr. Green signed the dangerous dog letter we have documented proof that he is aware. He then went over the requirements Mr. Green has to follow since this has occurred. Commissioner Farrall asked if it would help if the owners of the kitten that was attacked should do an official report so he has a file. Mr. Brown replied that in the future with any infraction they should be notified. Mayor Davis asked for public comment. John Hall of 703 Hibiscus asked if there was an insurance policy on the dog in question now. Mr. Brown replied not at this time because he has not been declared dangerous. Mayor Davis asked Mr. Brown if it would help him if our Police Department documents incidents and if they are then forwarded to him can they be used as supporting documents. Mr. Brown said if they are sworn law enforcement officers they can write a statement if they see a dog being aggressive. Since they are sworn officers it would carry weight. He said they follow Florida State Statute regarding dangerous dogs and he read what that constitutes. Mayor Davis clarified that Florida State Statutes trump the Brevard County ordinance as well as anything offered in Melbourne Beach. Mr. Brown said it was more restrictive. Attorney Gougelman asked Mr. Brown if Mr. Green s dog would be declared a dangerous dog since it was the first incident. Mr. Brown replied no but the bite would still go on the dog s record. Attorney Gougelman asked if these letters could be issued if there was record of a dog snarling or growling. Mr. Brown said there has to be multiple incidents documented. 3 Attorney Gougelman asked if there was a dog that showed highly aggressive behavior perhaps six times but doesn t bite anyone could a culpable negligence letter be generated.

4 4 Mr. Brown replied six times might be enough but it would be a case by case situation. It would depend on the type of aggression. If the dog is exhibiting behavior and if we believe after an investigation it could be a prelude to an attack or it is escalating to the attack level he would then have to determine if there are sufficient findings for a declaration. Attorney Gougelman asked what Melbourne Beach could do as far as an ordinance and what could be enacted or enforced. Mr. Brown felt that the town could enact restrictions such as a city registry tag where dog owners would be required to register their dogs as a Melbourne Beach dog and have varying degrees of cost depending on the behavior of the dog. He said if the dog was stopped by them though it wouldn t matter to them if the dog had a Melbourne Beach tag on because he would still follow the requirements as written by Brevard County. Vice Mayor Maglio said after listening to the discussion he felt there was nothing precluding the town to enact that insurance would have to be carried if there was an attack and if you don t get the insurance the town will fine you. Mr. Brown said that would have to be enforced by the town. He said the only problem with that was County Code and read that section of the ordinance to the Commission. He said when you mess around with the definition of a dangerous dog you have to be very careful with how you approach it. Vice Mayor Maglio said it could be for a dog that has killed another animal and at that point they would be required to carry insurance. Mayor Davis asked the attorney if that would be possible. Attorney Gougelman stated they could probably make something like that work but when you get into enforcement of it is where the money comes into play. He said it would be a municipal ordinance and you would not be able to enforce it in a Code Enforcement situation but he wasn t sure. He said you would have to cite someone and then attempt to prosecute it in County court. He said the maximum fine would be $ and/or 60 days in jail but it would not be considered criminal in nature. He said from his perspective they could probably do it but there would be some glitches such as how to handle prosecution. He said he could drive to Viera to prosecute but told them not to object when they see a big bill come in. He said from a purely financial standpoint that might not be the best solution. He said the community is obviously indicating concern and they were elected to balance all of these things. 4 Commissioner Gurecki said that one of the concerns he has with enacting legislation after the fact is your pretty much dealing with cleaning up a mess. He said he didn t like having an ordinance in place where you have to wait for a crime to occur before you take action.

5 5 Mayor Davis asked for public comment. Rick Cobb of 202 Flamingo Lane said he was bitten by the dog in question and asked why his bite didn t count against the dog. Mr. Brown replied that he was bitten because it was a provoked bite. He stuck his hand in the middle of a dog fight. Jan Meeks of 703 Hibiscus Trail said her frustration is that were giving the dog all of the rights. She said she agreed with the Commissioners that you cannot keep waiting for something to happen. You have to have the threshold that if a human or a pet is threatened you have to do something before it gets out of control. She said she realized there are legal issues but we have to start somewhere. She said the bottom line is we don t feel safe and our pets aren t safe. Attorney Gougelman said the problem that we are struggling with is putting together some sort of ordinance to control the situation. He gave a situation that occurred in Maryland where they declared pit bulls as inherently dangerous dogs but Florida says you can t adopt an ordinance that violates state law. He said we all live by the law that s on the books and unfortunately he can t change it. Attorney Gougelman again asked Mr. Brown to read the definition of a dangerous dog. Mr. Brown read the statutes definition of a dangerous dog. Attorney Gougelman clarified to Mr. Brown that if it was just a snarling dog there would have to be substantial record. Mr. Brown concurred. Attorney Gougelman said if there is an attack on an animal state law says that it has to be more than one attack. The problem that we are dealing with is State law. Mr. Brown said the due process is what is handcuffing all of us. Mayor Davis passed the gavel to Vice Mayor Maglio. Mayor Davis made a motion to direct the Town Attorney to research and prepare a code or ordinance to address far less than the State Statute. Attorney Gougelman said he would have to research it but felt they could probably do something like that. He said he felt where the rubber is going to hit the road is a financial issue as far as enforcement is concerned. Commissioner Gurecki seconded the motion. 5

6 6 Mayor Davis said he would like to see included a sanction to include fining up to $500 and/or 60 days in jail. Attorney Gougelman said he could look into that but wanted them to be aware that would be problematic for two reasons. You re going to end up running counter to the State law and counter to the County code. He said the County code he could deal with but the State law is a different issue. Commissioner Farrall said her concern was she didn t want to have anything that would prevent us from using Brevard County Animal Control. Attorney Gougelman said as we move through the process of putting something together we want to remember that we don t want to put ourselves in a position of running counter to the County ordinance and then losing animal control. That would make this difficult situation even worse than it is. As we develop some proposals the Commission may want to consider taking them to Brevard County and say this is something we think you should look at. He said you may also want to forward something to the State legislature telling them there is a problem in communities and something needs to be done. Vice Mayor Maglio asked if there was any public comment. Kim Varco of 612 Hibiscus Trail asked if muzzling a dog in public could be considered to be included. Margot Dorfman of 423 Sixth Avenue said she concurred with Commissioner Farrall to make sure that we don t lose protection under the county. She agreed that we need to go to the County and State and see about getting changes at those levels and she offered to assist in any way she could to make that happen. Commissioner Marshall asked for clarification on muzzling since we can t specify by breed of dog. She asked if everyone would have to muzzle their dogs in public. Mr. Brown said that was a novel approach and it might be a way that they can get a little bit of traction. He said they wouldn t enforce it but if one of the Police Officers is riding down the road and they see that a dog isn t muzzled they can stop. Vice Mayor Maglio called for the vote. The vote was 5-0 with the motion passing. 6

7 7 VI. ADJOURNMENT A motion to adjourn was made by Commissioner Gurecki; the motion was seconded by Commissioner Farrall; motion carried, 5-0. The meeting adjourned at 9:32 p.m. Mayor Tom Davis Rhonda Danielle, CMC 7