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HomeMy WebLinkAbout09.24.2007• • APPEAL HEARING September 24, 2007 4:20 p.m. Council Chambers Members present: Mayor Hurley, Kincaid, Welper, Gunderson, Greenwood, Cole, Schmitt, Getty. Moved by Schmitt, seconded by Kincaid that the Agenda, as proposed, be approved. Ayes: Six. Absent: Getty. Motion carried. Mayor Hurley explained that now is the time for the hearing on request of Russ Folkers to appeal Section 5-1B-4 of the Waterloo Code of Ordinance, Dangerous Dogs Prohibited, for a dog named Cleo. Dave Zellhoefer, Assistant City Attorney, reported that he was informed this afternoon by Russ Folkers' attorney that Mr. Folkers wants to take Cleo to a veterinary of his choice to examine Cleo and have the veterinary appear as a witness and render an opinion as to whether Cleo is a dangerous dog. Mr. Zellhoefer noted that there seems to be a difference between the parties as Mr. Folkers says he requested the examination a long time ago and feel they are being denied due process. Animal Control says it was preliminarily discussed, but nothing materialized, and they did not stop him. Mayor Hurley asked if the ordinance references that the dog owner has the right to have the animal examined by a veterinary. Mr. Zellhoefer responded it is general due process. Right now the city does not have a procedure for administrative process. Mr. Zellhoefer stated there would be no hearing today, and all the witnesses have been called off. Mr. Zellhoefer stated that there were two dogs involved, one dog disappeared and we don't want Cleo to mysteriously disappear. Mr. Zellhoefer stated he is asking Al Frerichs, attorney for Russ Folkers, when the dog will be seen, and we are asking for their promise that the dog will be available when we hold the hearing. Mayor Hurley stated the Folkers have general due process right to have a veterinary of their choice examine Cleo, but he wants the dog to remain in the custody of Animal Control. Mr. Zellhoefer stated that the Folkers have a safe and secured fence and the ordinance says that is where the dog can stay. Mayor Hurley asked what latitude does the city council have to put on conditions. Mr. Zellhoefer responded we will get their promise today that nothing will happen to the dog. If it does, we can find Mr. Folkers in contempt. Mr. Zellhoefer noted that Animal Control deemed Cleo as dangerous and sent a letter to Mr. Folkers. The ordinance says that if the animal is deemed dangerous, the Animal Control Officer can order the dog removed from the city or destroy it. Mayor Hurley commented that he thinks the ordinance needs to be fixed and will ask legal to fix it. Maria Tiller, Animal Control Officer, explained that the ordinance does say if the owner has an enclosed pen, he is entitled to hold the dog during the appeal process. One dog is missing. If Mr. Folkers were a responsible owner, we would not be here. Ms. Tiller stated that Mr. Folkers was suppose to produce the other dog by September 9 and then again on Thursday and has not. Ms. Tiller fears Cleo will leave the city limits, and if Cleo is out of the city limits, we cannot continue with the process. Mr. Zellhoefer stated that the city does not need the dog in our hand, we can still deem the dog dangerous, we don't need Cleo here in the city limits. It is a risk, and he would like the dog because it would give the city more control, but we don't need him. Councilperson Schmitt noted there are complaints going back to April 13, 2002 with Cleo's name. Councilperson Schmitt stated he does not feed Cleo should leave the hands of Animal Control. Appeal Hearing September 24, 2007 Page 2 Councilperson Gunderson asked why weren't we holding a hearing on the other dog. Ms. Tiller responded it was her understanding that the dog could not be deemed dangerous if not in our hands. Councilperson Gunderson stated if we hold the hearing in two weeks, he wants evidence presented on both dogs. Councilperson Gunderson noted that according to Mr. Folkers' statement he is aware the dog is chasing rabbits and not on a leash. Tom Frerichs, attorney for Russ Folkers, stated that it is their intent to have the dog examined by a veterinary. Mr. Frerichs noted that Section 5-1B-4(H), Confinement During Appeal, allows Mr. Folkers to have the dog. Mr. Folkers tried to get the dog during the appeal, he has a secured pen in his back yard and should have the dog. Mr. Frerichs stated that Mr. Zellhoefer agrees that Mr. Folkers is entitled to have the dog pending the appeal. Mr. Frerichs stated Mr. Folkers will have a vet look at the dog and determine if he is dangerous. Councilperson Schmitt stated that Mr. Folkers does not use the pen, he lets the dogs run. Mr. Frerichs stated the ordinance say Mr. Folkers is entitled to have the dog. Russ Folkers, 5132 Hess Road, stated he called Animal Control and was told by them to get an attorney. The dog has been locked up for four weeks. Mayor Hurley asked about civil penalty and court costs. Mr. Zellhoefer responded it is scheduled for trial on October 15, 2007, but it will probably be the end of October or beginning of November, so Mr. Folkers is still facing fines. Mayor Hurley asked what about compensation to Animal Control for feeding and boarding of Cleo. Mr. Zellhoefer responded Animal Control should send a bill to Mr. Folkers. Councilperson Getty now present at 4:40 p.m. Councilperson Cole commented that it looks like the council is not going to reach any conclusion today, and she suggested this be turned over to Mr. Zellhoefer and Mr. Folkers to let them work out when the hearing will be held. Mr. Frerichs stated he talked to a veterinary, and he doesn't' think one week is enough time, and they would like one month. Mr. Frerichs stated he is unsure when the vet can appear before the council. Councilperson Cole noted that the complaint says the dog runs loose all the time and they are scared of the owners. Mayor Hurley stated the hearing could be held on October 1 or October 8. Mr. Frerichs responded he is unavailable on October 1 and he will look at his schedule for October 8. Mayor Hurley commented that he is impatient with the process. We have a missing dog, and a dog that is going back into a pen that he has not been using, and we are hearing a promise that they will bring the dog back. Moved by Schmitt, seconded by Gunderson that the hearing be continued to October 8, 2007 and Cleo remain in the custody of Animal Control and a vet be allowed to do the examination at Animal Control or Animal Control can take the dog to the veterinary. Councilperson Cole called for the question. Ayes: Seven. Motion carried. With no further business before the council, it was moved by Schmitt, seconded by Gunderson that the meeting be adjourned at 4:54 p.m. Ayes: Seven. Motion carried. Nancy Eckert City Clerk 1) •