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HomeMy WebLinkAbout12.03.2007• • APPEAL HEARING December 3, 2007 4:15 p.m. Council Chambers Members present: Mayor Hurley, Kincaid, Welper, Gunderson, Greenwood, Getty, Schmitt, Cole. Moved by Schmitt, seconded by Kincaid that the Agenda, as proposed, be approved. Ayes: Seven. Motion carried. Mayor Hurley explained that the purpose of today's meeting was to continue with the appeal hearing adjourned on September 24, 2007. Mr. Folkers and his attorney will be allowed 20 minutes to present information and witnesses, the city will be allowed 20 minutes, and 20 minutes will be allowed for council to deliberate. Tom Frerichs, attorney for Russ Folkers, stated he had a letter from Mr. Folkers' doctor that he was unable to attend today's hearing due to an illness. Mr. Frerichs asked that the council make a determination under their statute, which would be under Sections A, B or C. Mr. Frerichs noted that Lexis is not a dog owned by Mr. Folkers and cannot be part of today's hearing. Mr. Frerichs asked the council to make a determination as statute permits, and let Mr. Folkers take his dog from Animal Control and take Cleo out of the city. Rosemary Paar, 1910 Winston Place, read from a prepared statement of the dog attack which occurred on August 26, 2007, a copy of which is on file in the City Clerk's office. Mrs. Paar explained that her 11 year old daughter put a leash on their 8 lb. Bishon Friese and went out the front door. Within seconds, Mrs. Paar heard screaming and ran to the door. Her daughter was coming in at the same time, screaming that the dogs had Sassy. Mrs. Paar stepped outside, and two big pit bulls had Sassy on the ground attacking and biting her. Mrs. Paar had a towel in her hand and started swinging and kicking at the dogs and screaming for help, but the dogs would not let go of Sassy. The white dog picked up Sassy in its mouth and flung her to the ground. Mrs. Paar saw two men across the street looking at the scene. The white dog grabbed Sassy in its mouth and both dogs ran across the street with Sassy to the yard with the men. Mr. Paar ran out of the house and ran across the street, and at that point the white dog dropped Sassy. Mr. Paar took Sassy to the Vet Clinic and Mrs. Paar called the Vet and got the answering service and explained that Sassy was attacked by two pit bulls and asked them to contact the Vet to meet them at the office. Mrs. Paar called 911, and they instructed her to contact Animal Control. Mrs. Paar explained that the two men were at Folkers' house. Councilperson Cole asked how this has affected Mrs. Paar's daughter. Mrs. Paar responded her daughter is very frightened and will not go out front, and she has to be in a locked car before the garage door can be opened. Dave Zellhoefer, Assistant City Attorney, explained that Mr. Frerichs had to leave, but he asked that a letter from Scott Streets, a witness for Mr. Folkers, and the letter from Mr. Folkers' doctor be submitted. Mr. Zellhoefer submitted five photos of Sassy after the attack. Mr. Zellhoefer questioned Rosemary Paar and asked if she saw Sassy or her daughter provoke the dogs. Mrs. Paar responded that nothing was done, they did not call or whistle. Mrs. Paar stated that the two men across the street, Mr. Folkers and another young man, did nothing to help even though she was screaming. In answer to a question from Councilperson Schmitt, Mr. Zellhoefer stated that Cleo is the only dog that is part of today's hearing. Lexis is out of town and Cleo is the only dog that the city has jurisdiction. Mr. Zellhoefer noted that a court hearing has been set for the first week in January regarding the citations written on Cleo for dog at large and fear of attack. Mr. Zellhoefer explained that Mr. Folkers accepted the letter for Cleo, but the letter regarding Lexis was returned to Animal Control unopened. Lexis is out of town and according to the city's ordinance Mr. Folkers has done what was required. Appeal Hearing December 3, 2007 Page 2 Dr. Patricia Connell, 1944 Winston Place, reported she has lived at this address for ten years, and over the past two years both dogs have been allowed to run loose. The dogs have personally attacked her and other neighbors and the people living next door to the Paars. These dogs roam the neighborhood all the time. Several neighbors have installed chain link fences. Both of Mr. Folkers' dogs have been allowed to run loose. People are uncomfortable when they are out walking and will not walk pass Folkers. Those walking the other direction, Cleo and Lexis are at the door waiting for them. Dr. Connell stated the neighbors did not do anything earlier other than call Animal Control for fear of retribution from Mr. Folkers. But after this incident, they had to step in. Councilperson Gunderson asked Maria Tiller, Black Hawk County Animal Control Officer, if there is previous history at South Hills involving Mr. Folkers' dogs. Ms. Tiller responded she was not award of anything at South Hills. Moved by Schmitt, seconded by Kincaid that the hearing be closed and oral and written comments be received and placed on file. Ayes: Seven. Motion carried. Moved by Cole, seconded by Greenwood that the dog violation against Cleo be affirmed under Section 5-1B-1(A) and Section 5-1B-1(B). Prior to a vote on the above motion, the following comments were heard. Councilperson Gunderson noted that the dog has to be removed from the city within seven days and asked if Mr. Folkers does not pay the boarding fees and expenses charged for confinement of Cleo at the Cedar Bend Humane Society will the dog be put to sleep. Mr. Zellhoefer stated that Mr. Frerichs has promised they will file in the courts to stop the city from destroying Cleo. They want to get Cleo and move him out of the city. The fees could be filed in Small Claims Court. Tim Boller noted that the city's ordinance says the confinement would be at the owner's expense, and the council could make that part of the condition but not part of the motion. The other option is to declare Cleo dangerous and Folkers will remove Cleo from the city, and we can fight for the dollars as a separate action. The council needs to decide if they want to make payment of the fees a part of the motion. Mr. Boller noted that Mr. Folkers has filed a suit in district court against the city and the two animal control officers that his civil rights were violated because the dogs were seized without due process. If Mr. Folkers can prove this, he could ask for monetary and attorney fees. Councilperson Gunderson stated he feels Mr. Folkers should pay all the fees as it is no different than a person who is in jail and has to pay. Mr. Boller suggested the council go into Executive Session to answer some of the council's questions. Councilperson Schmitt agreed with Councilperson Gunderson that Mr. Folkers should pay all boarding fees and expenses as the majority of the bill was run up because Mr. Folkers appealed in federal court. Councilperson Gunderson asked if council votes to remove the dog, how long before Mr. Folkers can bring him back. Mr. Zellhoefer responded Mr. Folkers cannot bring the dog back to the city. Mr. Boller noted that it is inferred in the city's ordinance that the dog has to be permanently removed from the city. Moved by Cole, seconded by Schmitt that the council adjourn to Executive Session at 4:49 p.m. Ayes: Seven. Motion carried. Mr. Zellhoefer reported that pending litigation is an approved topic for Executive Session. Moved by Cole, seconded by Schmitt that the council adjourn Executive Session at 5:01 p.m. Ayes: Seven. Motion carried. • • Appeal Hearing December 3, 2007 Page 3 • • Council members voted on the following motion made earlier in the meeting. Moved by Cole, seconded by Greenwood that the dog violation against Cleo be affirmed under Section 5-1B-1(A) and Section 5-1B-1(B). Ayes: Seven. Motion carried. With no further business before the council, it was moved by Cole, seconded by Gunderson that the meeting be adjourned at 5:03 p.m. Ayes: Seven. Motion carried. Nancy Eckert City Clerk