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HomeMy WebLinkAboutORD 2002-138 2000-2002 COU1oT'TY OF ~IAWAI~I ~'~`ATE OF I ~AV~1AI`I ]BILL NO. 277 Draft 5 ORDINANCE NO®'~ A BILL FOR AN ORDINANCE AMENDING CI-IAPTER 4, I-IAWAI`I COUNTY CODE, 1983 (1995 EDITION), AS AMENDED, RELATING TO ANIMALS AND TIIE REGULATION OF DANGEROUS DOGS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWA1`I: SECTION 1. Purpose. Prior to 2001, state law allowed the imposition of conditions on vicious or dangerous dogs only after two bites had occurred. Act 222, Session Laws of Hawai' i 2001, eliminated the "two bite" minimum and enabled the counties to adopt their own dangerous dog laws. Specifically, Act 222 authorized the counties, in part, to enact and enforce ordinances "regulating persons who own, harbor, or keep any dog that has bitten, injured, or maimed a person" or "injured, maimed, or destroyed an animal belonging to another person," provided the ordinances are consistent with state law. The purpose of this ordinance is to adopt provisions for the regulation of dogs that inflict injury upon a person or other animal. This ordinance also removes potential conflicts between the county's dangerous dog ordinance and the provisions of state statute. This ordinance reorganizes various sections of Chapter 4, Hawaii County Code in order to consolidate all pertinent provisions relating to the regulation of dangerous dogs and conditions and penalties that may be imposed upon the owners of dangerous dogs. SECTION 2. Article 1, Section 4.1 ("Definitions"), Hawaii County Code, is amended as follows: "Article 1. Definitions. Section 4-1. Definitions. As used in this chapter: (a) ["Animal" does not include dogs and cats.] "Animals," unless provided otherwise, include but are not limited to those animals that are customary and usual pets such as dogs, cats, rabbits, birds, honeybees and other beasts which are maintained on the premises of a dwelling unit and kept by the resident of a dwelling unit solely for personal enjoyment and companionship, such as, without limitation, for a hobby, for legal sporting activities and for guarding of property; animals exclude aviary game birds and fish as defined in Hawaii Revised Statutes. Animal shall further mean any "animal," "farm animal" or "poultry" as those terms are defined in Section 4.31. (b) "At large" means on the premises of a person other than the owner of the dog or other small domesticated animal without the consent of the occupant of the premises, or on a public street, alley, highway, or in any public place except when under the control of a responsible person or an authorized representative of the owner. (c) "Animal ["Officer or humane] control officer" means any employee of a county- contracted animal control services provider or the Hawaii County Police Department who is authorized to carry out and enforce the provisions of this chapter. Such individual shall also be known as and may bear the title of "humane officer." (d) "Attack" means aggressive physical contact with a person or animal initiated by the dog which may include, but is not limited to, the dog jumping on, leaping at, or biting a person or animal. (e) "Bodily injury" means the same as that defined in HRS Section 707-700. (f) "County animal control service" means the animal control services provider contracted by the county to keep stray or unlicensed dogs. (g) "Dangerous dog" means any dog which, without provocation, attacks a person or animal. A dog's breed shall not be considered in determining whether or not it is dangerous. (h) "Enforcement officer" means any person authorized and designated to enforce the provisions of this article; however, only an officer of the Hawaii County Police Department may arrest a person pursuant to the provisions of this article. (i) "Farm animals" means pigs, cows, goats, sheep, horses, camels and llamas. [(d)] (k) "Humane society" means any eleemosynary organization formed for the purpose of providing humane care and treatment of dogs, cats and other animals. (1) "Negligently" shall have the same meaning as is ascribed to the term in HRS Section 702-206. (m) "Owner" means any person owning, harboring or keeping a dog; provided that if the 2 owner is a minor under the a~~e of 18 years the arent guardian or other person having the care, custody or control of the minor shall be rebuttably presumed to be the owner. The person to whom the license was issued pursuant to HRS Section 143-2 shall be rebuttably~resumed to be the owner of the door purposes of this section. (n) "Person" means and includes corporations estates associations,~partnerships and trusts as well as one or more individual human beings." (o) "Poultry" means chickens pigeons turkeys geese ducks and peacocks not regulated by state law. (p) "Provocation" means that the attack by a dog_upon a,person or animal was,preci itated under circumstances reasonably expected to evoke a vicious response from the dog, including, but not limited to, the following_ (1) The dog was protecting or defending its owner or a member of its owner's household from an attack or assault: (2) The person attacked was committing a crime while on the property of the owner of the dog; (3) The person attacked was tormenting abusing or assaultin the dog; (4) The dog_was attacked bathe animal; ~5) The do,g was respondingpain or injury inflicted by the attacked person or animal• or ~6) The dog was protecting itself its kennels or its offspring from the attacked person or animal and the attack was committed on its owner's property. (q) "Serious injury°'_to a domestic animal means physical injury to the animal involving broken bone, a laceration requiring stitches, a concussion, or a tearin 7 or rupture of an organ. [(e)] ~ "Sterilized dog" means a spayed female dog and a neutered male dog. [(f)] ~ "Stray" means [either]~lj an unlicensed dog or dog without a license for the current year[,]; (2) any dog on the premises of a person other than the owner of the dog, without the consent of an occupant of such premises, (3) any dog on a public street, on public or private school ~roundsLor in any other public place, except when under the control of the owner by leash, cord, chain or other similar means of physical restraint, provided that such leash, cord, chain or other means is not more than eight feet in length, and provided 3 further that this provision shall not be construed to permit that which is prohibited by any other law; or (4) a cat or small domesticated animal wandering or running at large, or found upon any public place [highway, street, alley, court, place, square and grounds] or found not upon the lands of the owner or not under the charge or control of one in possession. [(g)] (t) "Vicious dog" means a dog which: (1) Places a person or other animal in imminent danger of bodily injury; or (2) Has bitten any person or animal. A dog shall not be deemed vicious where the vicious behavior in question is the result of the dog being [teased,] tormented, assaulted, or otherwise abused by the victim of the vicious behavior." SECTION 3. Sections 4-31, 4-31.1, 4-31.2 and 4-31.3 of Article 4. Prohibitions, Division 2, Dogs, Chapter 4, Hawaii County Code, relating to "vicious dogs" are repealed. These sections are replaced by new sections 4-31 titled "Regulation of Dangerous Dogs", 4-31.1 titled "Definitions", 4-31.2 titled "Dangerous Dogs; Prohibited Acts; Conditions on Owner; Penalties", 4-31.3 titled "Citation and Summons; Seizure; Relinquishment of Ownership", 4-31.1 titled "Inspection", 4-31.5 titled "Exemption". 4-31.6 titled "Civil Action Not Precluded", and 4-31.7 titled "Severability." "[Section 4-31. Confinement of vicious dogs. (a) Every vicious dog shall be confined by the owner within a building or secure enclosure and shall be securely muzzled or caged whenever off the premises of its owner. (b) Any person found guilty of violating this section maybe fined not more than $1,000 or imprisoned for not more than thirty days, or both. The minimum sentence to be imposed upon a person found guilty of violating this section shall be as follows: (1) For a first conviction, a fine of not less than $100, but not more than $1,000. (2) For a second conviction which occurs within five years of a prior conviction under this section, a fine of not less than $500, but not more than $1,000. (3) For a third conviction which occurs within five years of two prior convictions, a fine of not less than $1,000. 4 Section 4-31.1. Vicious dog; notice. If, upon investigation of a report of an incidence of vicious behavior, an officer determines that (A) an incident constituting vicious behavior did occur, and (B) the indicated dog was the dog which did behave in a vicious manner, then the officer shall give the owner of said dog a written notice stating that the dog has been deemed a vicious dog, that the owner must comply with the Hawaii County Code § 4-31(a) concerning the confinement of vicious dogs, and of the penalties for failure to comply with said requirements of confinement. Section 4-31.2. Appeal of vicious designation; hearing. The notice that a dog has been deemed a vicious dog shall also inform the owner that he may, within thirty days, request a hearing before the executive in charge of the humane society with whom the county has contracted for animal control in the district in which the reported incident of vicious behavior has occurred or his designated representative for the purpose of disputing the designation of the dog in question as a vicious dog. The hearing shall be held in accordance with HRS Chapter 91, the Hawaii Administrative Procedures Act, and the aforesaid executive of the humane society or his designated representative presiding over the hearing shall notify the dog owner of his decision in writing after the hearing. Section 4-31.3. Rules for hearings on viciousness. The executives in charge of the humane societies with whom the County has contracted for animal control duties shall jointly adopt a set of rules, pursuant to HRS chapter 91, for hearings on the issue of whether or not a dog shall be deemed a vicious dog.] Section 4-31. Regulation of Dangerous Dogs; Prohibited Acts; Conditions on Owner; Penalties. (a) A dog owner commits the offense of negligent failure to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in: (I) the maiming or causing of serious injury to or the destruction of an animal; or (2) bodily injury to a person. A person convicted under this subsection shall be guilty of a petty misdemeanor and sentenced in accordance with subsections (c), (d), and (e). 5 (b) For the purposes of this section, "reasonable measures to prevent the dog from attacking" shall include but not be limited to: (1) measures required to be taken under Sections 4- l 4, 4-15, 4-18, 4-20, 4-23, 4-30 and 4-32 of this chapter to prevent the dog from becoming a stray; and (2) any conditions imposed by the court for the training of the dog or owner or for the supervision, confinement or restraint of the dog for a previous conviction under this section. (c) A dog owner convicted under subsection (a) shall be sentenced to one or more of the following: (1) A fine of not less than X200 nor more than $2,000; (2) A period of imprisonment of up to 30 days, or in lieu of imprisonment, a period of probation of not more than six months in accordance with the procedures, terms and conditions provided in HRS Chapter 706, Part II; (3) Restitution to any individual who has suffered bodily injury or property damage as a result of an attack by the dog; (d) Unless the dog has been or is ordered to be humanely destroyed, the dog owner shall also be sentenced to the following mandatory provisions, in addition to the provisions of subsection (c): (1) The owner shall provide the owner's name, address and telephone number to the county animal control service; (2) The owner shall provide the location at which the dog is currently kept, if such location is not the owner's address; (3) The owner shall promptly notify the appropriate animal control service of: (A) Any changes in the ownership of the dog or the location of the dog along with the names, addresses and telephone numbers of new owners or the new address at which the dog is located; (B) Any further instances of an attack by the dog upon a person or an animal; (C) Any claims made or lawsuits brought as a result of further instances of an attack by the dog; or (D) The death of the dog. 6 (4) The owner shall obtain a license for the dog pursuant to HRS Section 143-2, if the dog is not currently licensed; and (5) Unless already identified by microchip, the dog shall be permanently identified, at the owner's expense, by injecting into the dog an identification microchip using standard veterinary procedures and practices. The microchip identification number of the dog shall be provided to the county animal control service. (e) In addition to the provisions of subsections (c) and (d), the dog owner may also be sentenced to any of the following terms or conditions: (1) When indoors, the dog be under the control of a person eighteen years of age or older; (2) When outdoors and unattended, the dog be kept within a locked fenced or walled area from which it cannot escape; (3) When outdoors and unattended, the dog be confined to an escape-proof kennel; (4) When outdoors, the dog be attended and kept within a fenced or walled area from which it cannot escape; (5) When outdoors, the dog be attended and kept on a leash no longer than six feet in length and under the control of a person eighteen years of age or older; (6) When outdoors, the dog be attended and muzzled with a muzzle that prevents the dog from biting any person or animal but does not cause injury to the dog or interfere with its vision or respiration; (7) A sign or signs be placed in a location or locations directed by the court advising the public of the presence and dangerousness of the dog; (8) The owner and dog, at the owner's expense, attend training sessions conducted by an animal behaviorist, a licensed veterinarian or other recognized expert in the field; (9) The dog be neutered or spayed at the owner's expense, unless the neutering or spaying of the dog is medically contraindicated; (10) The owner procure liability insurance or post bond of not less than $50,000, or for a higher amount if the court finds a higher amount appropriate to cover the medical and/or veterinary costs resulting from potential future actions of the dog; (11) The dog be humanely destroyed; or (12) Any other condition the court deems necessary to restrain or control the dog. For the 7 purposes of this subsection, an escape-proof kennel means a kennel which allows the dog to stand normally and without restriction, which is at least two and one-half times the length of the dog, and which protects the dog from the elements. Fencing or wall materials required under this section shall not have openings with a diameter of more than two inches, and in the case of wooden fences, the gaps therein shall not be more than two inches. Any gates within such kennel or structure shall be lockable and of such design as to prevent the entry of children or the escape of the dog, and when the dog is confined to such kennel or area and unattended, such locks shall be kept locked. The kennel may be required to have double exterior walls to prevent the insertion of fingers, hands or other objects. (f) Upon probable cause, an enforcement officer may either arrest or issue a summons and citation to the owner for violation of subsection (a). Section 4-31.1. Citation and Summons; Seizure; Relinquishment of Ownership (a) Upon finding probable cause to believe that there has been a violation of Section 4-31(a), an enforcement officer may, in addition to arresting or issuing a summons and citation to the owner pursuant to Section 4-31, have the dog seized and impounded if the dog is posing an imminent threat to human beings or to other animals. Such impoundment may be at the premises of a licensed veterinarian or at a commercial kennel. All expenses of the boarding and retention of the dog shall be borne by the owner. (b) If a dog is seized and impounded pursuant to this section, the citation shall notify the owner that if he or she does not appear at the time and place stated in the summons, the dog shall be subject to relinquishment pursuant to subsection (d). (c) Any person who refuses to surrender a dog that is subject to relinquishment pursuant to this section shall be guilty of a petty misdemeanor and fined not less than $200 nor more than $2,000, imprisoned not more than 30 days, or both. (d) In the event that the owner of a dog seized and impounded pursuant to this section fails to appear in court as required, ownership of the dog shall be deemed relinquished and the court may order disposition of the dog as it deems appropriate. 8 (e) Notwithstanding any relinquishment of ownership of the dog pursuant to subsection (d) or voluntary relinquishment of ownership of the dog, the owner shall still be responsible for all expenses of boarding the dog and any penalties which maybe imposed by the court. Section 4-31.2. Exemption. The provisions of this article shall not apply to dogs owned by any law enforcement agency and used in the performance of law enforcement work. Section 4-31.3. Civil action not precluded. Nothing contained in this article shall preclude any person injured by a dog from bringing a civil action against the owner of such dog pursuant to the applicable provisions of state law. Section 4-31.4. Severability. If any provision of this article or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provisions or applications, and to this end the provisions of this article are severable." SECTION 4. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the brackets and bracketed material need not be included. SECTION 5. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL EMBER, COUNTY OF HAWAII Kona, Hawaii Date of Introduction: November 20, 2002 Date of 1St Reading: November 2 0, 2 0 0 2 Date of 2~d Reading: December 18 , 2002 Effective Date: December 26, 2002 9 ~~C~'fV~ OFFICE OF THE COUNTY CLERK o • o_ tom. B County of Hawaii J ~ H i 10 ,Hawaii ~+~~P (DRAFT 5 ) ROLL CALL VOTE Introduced By: Nancy Pisicchio AYES NOES ABS EX Date Introduced: November 20, 2002 Arakaki X First Reading: November 20, 2002 Chung X Published: November 2 7, 2 0 02 Elarionoff X Jacobson X REMARKS: Leithead-Todd X Pisicchio X Safarik X Tyler X Yagong X 8 0 1 0 Kona Second Reading: December 18, 2002 ROLL CALL VOTE To Mayor: DP~ember 20, 2002 AYES NOES ABS EX Returned: December 2 6, 2 0 0 2 Arakaki X Effective: December 26, 2002 Chung X Published: January 10 , 200 3 Elarionoff X Holschuh X REMARKS: Jacobson X Leithead-Todd X Reynolds X Safarik X Tyler X 8 0 1 0 I DO HEREBYCERTIFYthat the_foregoing 131LL n'as adopted by the County C'nuncil published as indicated above. APPROVED AS TO FORM AND LEGALITY: C CIL CHAIRMAN CORPORATION COUNSEL COUNTY OF HAWAII 2002 COUNTY CLERK Date DEC 2 3 277 (Draft 5) Bill No.: ~(~F'Q^` Reference: C-796.4/FC-293 4pprnre isupprored This duv Ord Nn.: ~ ,f. ?~~ce..w~6~,r , 20 0~- MA r' 7)UNTY OF HA WAIL