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Home My WebLink About2013/03/05 Item 10CITY COUNCIL AGENDA STATEMENT ~`„~;~ CITY OF CHUTA VISTA March 5, 2013 Item No. ~~ ITEM TITLE: SUBMITTED BY: REVIEWED BY: CONSIDERATION OF ORDINANCE AMENDING CHULA VISTA MUNICIPAL CODE SECTION 6.24.040 (BARKING DOGS) TO BETTER ADDRESS AND MORE EFFICIENTLY RESOLVE THE BARKING DOG COMPLAINT AND ENFORCEMENT PROCESS CHULA VISTA ANI AL CARE FACILITY /{//,,C~ . CITY MANAGER ASSISTANT/DEP TY CITY MANAGER 4/STETS VOTE: YES ^ NO BACKGROUND Recently the Animal Care Facility has been receiving a higher volume of barking dog complaints. Often these complaints are lodged numerous times even when staff has cited the owner and undertaken enforcement action against the dog in question. Citizens have voiced their frustrations about the current barking dog complaint process. Both Animal Care Facility staff and patrons have requested that changes be made to the current process. These updates will provide additional options and clearer guidance to a citizen for resolving a barking dog complaint. They will also result in a quicker resolution process with regard to these types of complaints. These updates are based on other, more successful municipal barking dog programs throughout the state and will support the Animal Care Facility staff s ability to provide the best customer service they can on this issue. DISCUSSION Citizens have complained that despite lodging formal complaints with the Animal Care Facility that the barking dog they complained about continues to disturb them. Staff researched other City ordinances and policies and believes that providing different options to a complaining party may better aid in resolving the issue. These options include aCity-hosted mediation between all parties, nuisance litigation and a "direct to court" infraction citation for a barking dog. In sum, the updates accomplish the following: • They provide a clearer definition of ownership responsibility; 10-1 3/5/13, Item No. ~~ Page 2 of 3 • They exempt situations where the dog in question is provoked or is barking in response to a person who may be undertaking lawful business on the property; ^ They provide a specific time pazameter for how long the dog must bark before it can be considered a barking dog; • They require specific address and contact information about complainants so staff can better track barking dog complaints and respond directly to the complaining person (previously numerous anonymous complaints were sent to Animal Care which affected staff's ability to address and resolve a barking dog complaint); • They authorize staff with the ability to issue an infraction citation over a barking dog so that all parties have the ability to attend a court hearing and have the matter heard and resolved by a superior court judge; They provide the option of mediation in city offices if all parties agree which would then hold the enforcement process in abeyance until the mediation is completed; and ^ They declare a barking dog a nuisance per the code which provides a complaining party with the ability to file a civil lawsuit with regard to the complaint. The updates were made over a period of months as staff spent time researching, reviewing and discussing with other agencies their policies, ordinances and enforcement processes involving barking dog complaints. Staff updated the section by taking excerpts from these more successful ordinances and inserting them where appropriate into the code. These updates will better obtain compliance, improve enforcement efforts, and save staff time and resources as well as resolving the complaints in a more efficient and productive manner. ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to the CEQA. Thus, no environmental review is necessary. RECOMMENDATIONS Council adopt the ordinance revisions. BOARDS/COMMISSION RECOMMENDATION N/A. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. 10-2 3/5/13, Item No. ~0 Page 3 of 3 FISCAL IMPACT None anticipated. If anything, less staff time will be used in responding to barking dog questions and complaints now that the process is better detailed in the code. If mediation is requested, however, this could result in additional work for staff. ATTACHMENTS Ordinance. 10-3 ORDINANCE NO ORDINANCE AMENDING CHULA VISTA MUNICIPAL CODE SECTION 6.24.040 (BARKING DOGS) TO BETTER ADDRESS AND MORE EFFICIENTLY RESOLVE THE BARKING DOG COMPLAINT AND ENFORCEMENT PROCESS WHEREAS, the City Council finds and declares that barking dogs aze a private nuisance in that they can frequently disturb a person's interest in the use and enjoyment of his land and their quality of life; and WHEREAS, the City Council finds and declares that incessant dog bazking can disturb neighbors to the point that the dog's barking needs to be addressed through issuing an infraction citation that requires attendance in superior court; WHEREAS, Animal Care Facility staff has received numerous complaints of barking dogs despite undertaking the enforcement process as detailed by the current code; WHEREAS, Animal Care Facility staff spends a lot of its time in addressing barking dog complaints without much if any tangible results; WHEREAS, the current bazking dog ordinance does not do enough to resolve barking dog complaints nor does it provide a complaining party with additional options other than continuing to complain about the dog; WHEREAS, the barking dog Municipal Code provisions need to be updated in response to citizen and staff concerns about the barking dog complaint and resolution process; and WHEREAS, the code updates will better obtain compliance, improve enforcement efforts, and will save staff time and resources as well as resolving the complaints in a more efficient and productive manner. NOW THEREFORE the City Council of the City of Chula Vista does ordain as follows: Section I. That Section 6.24.040 of the Chula Vista Municipal Code, with the above recitations incorporated herein, is hereby amended to read as follows: 6.24.040 Barking Ddogs Enforcement Procedure & Nuisance. A. Definitions 1 "Bazkin¢ dog" means anv dog that barks. bays cries. howls or makes anv noise audible beyond the boundaries of the pronerty on which the dog is situated for an 10-4 Ordinance No. Page 2 extended period of time to the disturbance of anv person at anv time of day or night, regardless of whether the dog is physically situated in or upon private gropertv. a. A dog shall not be deemed a "barking dog" for purposes of these provisions if, at anv time the dog is barking, a person is trespassing or threatening to trespass upon private gropertv in or upon where the dog is situated or when the dog is being teased or provoked or when the dog is reacting to a gropertv owner's invitee or by a person attempting to conduct lawful business at the property. b Nothing contained herein shall be construed to apply to reasonab]e noises emanating from legally operated dog and cat hospitals hmnane societies shelters farm and/or agricultural facilities or areas where the keeping of animals or fowl is permitted pursuant to city or county codes. 2 "Extended period of time" shall consist of incessant barks, bays. cries. howls, or other noise for sixtyS60) minutes or more uninterrupted in anv 24-hour period. 3 "Uninterrupted" shall mean barking may not stop for five (5) minutes or more during the sixty (60) minutes. 4 A "Responsible Person" is defined as any one of the following: 1 A person who allows a barking dog violation to exist, whether through willful action failure to act, or failure to exercise proper control over a barking dog• 2 A person whose agent employee or independent contractor allows a barking dog violation to exist -whether through willful action, failure to act, or failure to exercise groper control over a barking dog. 3 A person who is the owner of and a person who is a lessee or sublessee with the current right of possession of real property in or upon where a barking dog violation occurs. 5 "Chula Vista Animal Care Facility" ("CVACF") is the City department responsible for animal control and ma~ragement. CVACF, and its Officers, are acting under the authority of the CVACF and City Managers and are therefore authorized to utilize the procedures for code compliance and enforcement contained in CVMC Chapters 1..20 and 1.41. B. Initial Barking Dog Complaints. The_initial complaints about a bazking doe are to be processed as detailed below. These steps must be undertaken prior to any barking dog citation issuance pursuant to subsections C and D below. 1 A Chula Vista resident lodees a barking dog complaint form with the Chula Vista Animal Care Facility ("CVACF"). The complaint must state: 1) the home address email address and contact information for the complaining party; 10-5 Ordinance No. Page 3 2) the address location of the bazking dog• and 31 specifics of when and for how loner the barking dog barks bays cries or howls. CVACF will not process a complaint without the above-listed information. The complainant must complete the complaint form in its entirety and mail or deliver it to the Chula Vista Animal Care Facility at 1S0 Bever Way. Chula Vista, CA, 91911. 2 In response to the above complaint CVACF will make an attempt to contact the responsible owner via phone or by writing to notify them of the complaint The responsible owner will be given 10 days to resolve the situation. 3 The complainant can lodge a second complaint with the same information required by subsection A above 15 days from the initial complaint should the dog continue to bark. 4 In response to the second complaint CVACF will make an attemnt to contact the responsible owner via phone or by writing to notify them of the second complaint and to let them know the next step could be issuing a barking d~ citation pursuant to subsection C or D below. 5 After two complaints have been lodged CVACF will not nrocess barking dog complaints against this specific animal. Chula Vista Animal Caze recommends that neighbors make an attempt to resolve the problem with the responsible person prior to filing a formal complaint. Sometimes the r~onsible person is unaware of the noise and grateful for the opportunity to address the issue If a formal complaint is submitted CVACF will assist in an effort to help in the resolution of the reported problem. C. Barking Dog Infraction Citation~~1. A Chula Vista Animal Control Officer .,r «^°--~°~` ^r~°°` has the authority to issue a c-mail-citation to any responsible person for a barking dog as defined herein °~~1~rthat the enforcement officer did not see or hear occur based on a-complaints, signed under penalty of perjury, lodged by two members of the community (the "complainants") who have been disturbed by the barking dog and who reside in Chula Vista at separate addresses within one-hundred (100) feet of the property boundary line where the barking dog is maintained " `• '~ + `""`"«''°'' F -.] l 11 - 1, !`' 1, F . F,..^...7 °,...«:H°.l :.. 41. 1. 1 .] r..ti...+ ..,1. °.~. Y J ~ a ~ln- 1, •1,1 Sao >, r 1 e . +1,^ ..~.. r r 1 1 -,1' 1. 11 1+ 1;,.1.1° F «,.«.7 1.°1.7 « x:1+1° F «.+°..«+°.+~ ..f fl.°;« a a e - 2 - 1, 1, '1+1 .. ...]°« fl,o ~ F 1 Q\ 1. 11 L, t1+„ ^l,t t^ P° F / «~b .. One of the complainants must have lodged two complaints against the barking dog pursuant to subsection B above comnlainants' complaints signed under penalty of periurv, shall be prima facie evidence of a violation of this section. This citation will be issued as an infraction and will not be issued unless the complainants sign a written promise to appear at the court hearing. D. Barking Dog Administrative Citation A Chula Vista Animal Caze Officer has the authority to issue an administrative citation to any responsible person for a barking dog as 10-6 Ordinance No. Page 4 defined herein that the enforcement officer did not see or heaz occur based on complaints, signed under penalty of periury lodged by two members of the community (the "complainants") who have been disturbed by the barking dog and who reside in Chula Vista at separate addresses within one-hundred (100) feet of the property boundary where the bazking dog is maintained. One of the complainants must have lodged two comvlaints against the barking dog pursuant to subsection B above. Complainants' complaints signed under penalty of periury shall be prima facie evidence of a violation of this section This citation will be issued administratively and will not be issued unless the complainants sign a written promise to appear at the administrative appeal hearing if the responsible party lodges a timely administrative appeal. E. Option of Mediation. Citations under subsections C or D above will not be issued, or will be held in abeyance in the event that the complainants and the responsible party attempt to provide mediation at no cost to the requesting parties but if it is unable to the requesting parties will agree to fund it in equal. pro-rata shares between themselves. F Barking Dog Nuisance (Private). Any barking dog that satisfies the definition of subsection A above is hereby declared to be a private nuisance that permits a Chula Vista citizen to file a civil lawsuit in San Diego County Superior Court against the resnonsible party The filing party is encouraged to obtain as much evidence as possible, including but not limited to audio recordings in support of his or her nuisance lawsuit. City officers and records may be subpoenaed in response to a lawsuit of this nature but the City will obtain reimbursement for the costs thereof. G These provisions are the sum-total of CVACF's involvement w2th barking dog complaints and citations. CVACF will not confiscate does for barking alone. Tl i. 1,.. ~ ^ ~:Y.ln f « r^ ^ n l.n L ;.... ,7,.. - .,:. .t,.a:..« A J Y Y .,. .. .. .. ^ 0 0 a: F '1 7 A 1 F '1 1,...e b ~~e« «r«..1 e «Ae«o«.10..4 ) n l. n..«r«n n«L. .. . «b nf.,«_~il 7.... b ,...,, f . ,. t.n..l.;«.. A.... r 1 a 1, 1, ~ r ~ 1,« ..A . .:11A,1 ..f:.. Fna . 0 4r . c~4_r. 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Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. Section III. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. Section IV. Effective Date 10-10 Ordinance No. Page 8 This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented By: Chance Hawkins Deputy City Attorney Approved as to form by: Glen R. Googins City Attorney 10-11 ORDINANCE NO. ORDINANCE AMENDING CHULA VISTA MUNICIPAL CODE SECTION 6.24.040 (BARKING DOGS) TO BETTER ADDRESS AND MORE EFFICIENTLY RESOLVE THE BARKING DOG COMPLAINT AND ENFORCEMENT PROCESS WHEREAS, the City Council finds and declazes that barking dogs are a private nuisance in that they can frequently disturb a person's interest in the use and enjoyment of his land and their quality of life; and WHEREAS, the City Council finds and declares that incessant dog bazking can disturb neighbors to the point that the dog's barking needs to be addressed through issuing an infraction citation that requires attendance in superior court; WHEREAS, Animal Care Facility staff has received numerous complaints of barking dogs despite undertaking the enforcement process as detailed by the current code; WHEREAS, Animal Care Facility staff spends a lot of its time in addressing barking dog complaints without much if any tangible results; WHEREAS, the current barking dog ordinance does not do enough to resolve barking dog complaints nor does it provide a complaining party with additional options other than continuing to complain about the dog; WHEREAS, the barking dog Municipal Code provisions need to be updated in response to citizen and staff concerns about the barking dog complaint and resolution process; and WHEREAS, the code updates will better obtain compliance, improve enforcement efforts, and will save staff time and resources as well as resolving the complaints in a more efficient and productive manner. NOW THEREFORE the City Council of the City of Chula Vista does ordain as follows: Section I. That Section 6.24.040 of the Chula Vista Municipal Code, with the above recitations incorporated herein, is hereby amended to read as follows: 6.24.040 Barking Dogs, Enforcement Procedure & Nuisance. A. Definitions 1. "Barking dog" means any dog that barks, bays, cries, howls or makes any noise audible beyond the boundaries of the property on which the dog is situated for an extended period of time to the disturbance of any person at any time of day or night, regardless of whether the dog is physically situated in or upon private property. 10-12 Ordinance No. Page 2 a. A dog shall not be deemed a "bazking dog" for purposes of these provisions if, at any time the dog is barking, a person is trespassing or threatening to trespass upon private property in or upon where the dog is situated, or when the dog is being teased or provoked, or when the dog is reacting to a property owner's invitee or by a person attempting to conduct lawful business at the property. b. Nothing contained herein shall be construed to apply to reasonable noises emanating from legally operated dog and cat hospitals, humane societies, shelters, farm and/or agricultural facilities, or areas where the keeping of animals or fowl is permitted pursuant to city or county codes. 2. "Extended period of time" shall consist of incessant barks, bays, cries, howls, or other noise for sixty (60) minutes or more uninterrupted in any 24-hour period. 3. "Uninterrupted" shall mean barking may not stop for five (5) minutes or more during the sixty (60) minutes. 4. A "Responsible Person" is defined as any one of the following: 1. A person who allows a barking dog violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog. 2. A person whose agent, employee, or independent contractor allows a barking dog violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog. 3. A person who is the owner of, and a person who is a lessee or sublessee with the current right of possession of, real property in or upon where a barking dog violation occurs. 4. A person who possesses, has title to or an interest in, harbors or has control, custody or possession of a barking dog. 5. "Chula Vista Animal Care Facility" ("CVACF") is the City department responsible for animal control and management. CVACF, and its Officers, are acting under the authority of the CVACF and City Managers and are therefore authorized to utilize the procedures for code compliance and enforcement contained in CVMC Chapters 1.20 and 1.41. B. Initial Barking Dog Complaints. The initial complaints about a barking dog are to be processed as detailed below. These steps must be undertaken prior to any barking dog citation issuance pursuant to subsections C and D below. 1. A Chula Vista resident lodges a bazking dog complaint form with the Chula Vista Animal Care Facility ("CVACF"). The complaint must state: 1) the home address, email address and contact information for the complaining party; 2) the address location of the barking dog; and 3) specifics of when and for how long the barking dog barks, bays, cries, or howls. CVACF will not process a complaint without the above-listed information. The complainant must complete the complaint form in its entirety and mail or deliver it to the Chula Vista Animal Care Facility at 130 Beyer Way, Chula Vista, CA, 91911. 10-13 Ordinance No. Page 3 2. In response to the above complaint, CVACF will make an attempt to contact the responsible owner, via phone or by writing, to notify them of the complaint. The responsible owner will be given 10 days to resolve the situation. 3., The complainant can lodge a second complaint, with the same information required by subsection A above, 15 days from the initial complaint should the dog continue to bark. 4. In response to the second complaint, CVACF will make an attempt to contact the responsible owner, via phone or by writing, to notify them of the second complaint and to let them know the next step could be issuing a barking dog citation pursuant to subsection C or D below. 5. After two complaints have been lodged CVACF will not process barking dog complaints against this specific animal. Chula Vista Animal Care recommends that neighbors make an attempt to resolve the problem with the responsible person prior to filing a formal complaint. Sometimes he responsible person is unaware of the noise and grateful for the opportunity to address the issue. If a formal complaint is submitted, CVACF will assist in an effort to help in the resolution of the reported problem. C. Barking Dog Infraction Citation. A Chula Vista Animal Control Officer has the authority to issue a citation to any responsible person for a barking dog as defined herein that the enforcement officer did not see or hear occur based on complaints, signed under penalty of perjury, lodged by two members of the community (the "complainants") who have been disturbed by the barking dog and who reside in Chula Vista at separate addresses within one- hundred (100) feet of the property boundary line where the barking dog is maintained. One of the complainants must have lodged two complaints against the barking dog pursuant to subsection B above. Complainants' complaints, signed under penalty of perjury, shall be prima facie evidence of a violation of this section. This citation will be issued as an infraction and will not be issued unless the complainants sign a written promise to appear at the court hearing. D. Barking Dog Administrative Citation. A Chula Vista Animal Care Officer has the authority to issue an administrative citation to any responsible person for a barking dog as defined herein that the enforcement officer did not see or hear occur based on complaints, signed under penalty of perjury, lodged by two members of the community (the "complainants") who have been disturbed by the barking dog and who reside in Chula Vista at separate addresses within one-hundred (100) feet of the property boundary line where the barking dog is maintained. One of the complainants must have lodged two complaints against the barking dog pursuant to subsection B above. Complainants' complaints, signed under penalty of perjury, shall be prima facie evidence of a violation of this section. This citation will be issued administratively and will not be issued unless the complainants sign a written promise to appear at the administrative appeal hearing if the responsible party lodges a timely administrative appeal. E. Option of Mediation. Citations under subsections C or D above will not be issued, or will be held in abeyance, in the event that the complainants and the responsible party agree in writing to mediation. The City will provide its offices for this mediation. Mediation needs to be completed within 30 days of selecting this option. The City will attempt to provide mediation at 10-14 Ordinance No. Page 4 no cost to the requesting parties but if it is unable to the requesting parties will agree to fund it in equal, pro-rata shares between themselves. F. Barking Dog Nuisance (Private). Any barking dog that satisfies the definition of subsection A above is hereby declared to be a private nuisance that permits a Chula Vista citizen to file a civil lawsuit in San Diego County Superior Court against the responsible party. The filing party is encouraged to obtain as much evidence as possible, including but not limited to audio recordings, in support of his or her nuisance lawsuit. City officers and records may be subpoenaed in response to a lawsuit of this nature but the City will obtain reimbursement for the costs thereof. G. These provisions are the sum-total of CVACF's involvement with barking dog complaints and citations. CVACF will not confiscate dogs for barking alone. Section II. Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. Section III. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. Section IV. Effective Date This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented By: ~, Chance Hawkins Deputy City Attorney Approved as to form by: Glen R. oogins City Attorney 10-15