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CESM Minutes 04/15/2022 April 15,2022 MINUTES OF THE HEARING OF THE COLLIER COUNTY SPECIAL MAGISTRATE: DANGEROUS DOG Naples, Florida, April 15, 2022 LET IT BE REMEMBERED the Collier County Special Magistrate, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building F, 3rd floor, Collier County Government Complex, Naples, Florida, with the following persons present: SPECIAL MAGISTRATE: Honorable Brenda C. Garretson ALSO PRESENT: Colleen Kerins, Assistant County Attorney Danielle Jersey, DAS Officer Helen Buchillon, Administrative Secretary, Code Enforcement Elena Gonzalez, Code Enforcement Specialist 1 April 15,2022 Any person who decides to appeal a decision of the Special Magistrate will need a record of the proceedings pertaining thereto, and therefore may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which an appeal is to be based. Neither Collier County nor the Special Magistrate shall be responsible for providing this record. I. CALL TO ORDER-SPECIAL MAGISTRATE BRENDA C. GARRETSON PRESIDING The Honorable Special Magistrate Brenda C. Garretson called the hearing to order at 9:17 a.m., noting that this is a specially-set hearing for a "Dangerous Dog"appeal. All those testifying at the proceeding did so under oath. II. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. III. APPROVAL OF AGENDA Special Magistrate Garretson approved the agenda. IV. APPROVAL OF MINUTES The minutes of the April],2022, hearing were reviewed by Special Magistrate Garretson and were approved, as submitted. V. MOTIONS A. MOTION FOR CONTINUANCE None B. MOTION FOR EXTENSION OF TIME None C. MOTION FOR REHEARING None VI. STIPULATIONS None VII. PUBLIC HEARINGS A. HEARINGS CASE NO: CEEX20220003055 OWNER: Roberto Garcia OFFICER: Danielle Jersey VIOLATIONS: Collier County Code of Laws and Ordinances, Chapter 14, Article II, Section 14-38. Collier County Domestic Animal Services (CCDAS) has determined that there exists sufficient cause to make the initial determination that the dog is a "Dangerous Dog"; "Rocky" FOLIO: ADDRESS: 26 Ocho Rios St., Naples, FL 34114 Respondent Roberto Garcia was present; his daughter, Jhoselyn, 13, translated. 2 April 15,2022 Collier County Assistant Attorney Colleen Kerins represented the County. Victim Lou Ann Salter was not present. Evidence Entered: Photos, investigative notes and the sworn statement of Luann Salter, the victim. Attorney Kerins testified that: • On March 3, 2022, the victim, Lou Ann Salter, who lives at 138 Ocho Rios St., approached Mr. Garcia's property, at 26 Ocho Rios St. • She noticed that Mr. Garcia was in the yard and she approached to have a conversation with him, as she has done in the past, and put her arm on the fence. • She didn't see Rocky and leaned over the fence with her arm and he jumped up and bit her arm. Through his daughter, Mr. Garcia testified he had no problem entering what was in evidence. Special Magistrate Garretson gave the respondent's daughter time to read the charges to her father, who said he speaks very little English. [A recess was taken from 9.32 a.m. to 9:48 a.m.] Attorney Kerins, while displaying photos on the overhead screen, testified that: • The respondents had the opportunity to review the affidavit, photos and investigative notes. • Ms. Alter sustained bite marks, sutures and a broken rib, injuries that qualify for a severe injury under the Dangerous Dogs Statute for having a physical injury, resulting in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery. • The photo on the screen shows Rocky was in the innermost fenced portion of the property; there are additional fenced-in areas. There is an outermost area, a middle area and an innermost crate-like area, where Rocky usually stays. • Ms. Alter entered through the front fenced-in area, which was open, to speak to Mr. Garcia, leaned on the fenced-in area and was bitten. • Following notification, DAS went out to investigate and made a Dangerous Dog determination. • DAS sent Mr. Garcia a letter on March 25, which he signed to acknowledge receipt. • Three days later, DAS received an emailed request for today's appeal hearing. • It is the County's position that Rocky qualifies as a Dangerous Dog pursuant to the Collier County Codes of Laws and Ordinances, Section 14-38, which reaffirms the State definition of a Dangerous Dog. That includes a dog having aggressively bitten, attacked or endangered, or has inflicted severe injury on a human being on public or private property. Special Magistrate Garretson asked Mr. Garcia to explain what occurred on March 3, adding that he can use photos on the overhead projector to explain. Jhoselyn Garcia translated that: • Her father came home from the store and went to water the plants around his home. 3 April 15,2022 • Ms. Alter walked around the property and he told her not to go near the fence and to be careful because Rocky was there and not to go near him. • Ms. Alter gave Rocky food over the fence. Special Magistrate Garretson noted that the victim's statement says she put her arm over the fence, not just on top of it. During questioning by the magistrate, Jhoselyn Garcia testified that: • Ms. Salter had her arm on the fence, but to feed Rocky, she put her hand in. • Ms. Salter was feeding him bread. • Ms. Salter came to their house to feed Rocky once a week, but she usually throws bread to Rocky. • She had not told Ms. Salter not to feed Rocky before because she's usually at school when Ms. Salter arrives. • Her father was inside the fence, watering the plants in back, and wasn't near Ms. Salter. Even though Ms. Salter was bitten, she didn't let go of the bag of bread. She was still holding it. Special Magistrate Garretson asked if it would be OK if Helen Buchillon, a County Code Enforcement employee, helped with the translation. Mr. Garcia and his daughter agreed, as did Attorney Kerins. [Ms. Buchillon was sworn in.] During questioning by Special Magistrate Garretson, Ms. Buchillon translated that: • Ms. Salter usually walks around the neighborhood and feeds the dogs bread. She's been doing it ever since she moved in a couple of years ago. • Ms. Salter had never been this close to Rocky. • While people are working, she goes inside people's gates and feeds their dogs. • Her father has photos of her feeding dogs at a house on the corner at another time. Attorney Kerins objected, noting those photos didn't involve this property. During questioning by Special Magistrate Garretson, Jhoselyn Garcia and Ms. Buchillon translated that: • To his knowledge, Ms. Salter had never come through the main gate before. • After Rocky bit Ms. Salter, he took her to the hospital and waited for the doctor to say he could leave and then took her home afterward. • Ms. Salter told the doctor that she was wrong, that Mr. Garcia had told her before not to get near the dog and that's why she was bitten. • She regrets getting near the dog. • Ms. Salter's body was never inside the fence,just her hand, so he didn't believe that's what broke her rib. • He was outside that gate, but Rocky was between the two gates. • There is a large fence around the property, a smaller area that's fenced in, and an area where Rocky usually is enclosed. • That area where Rocky was is where her father puts the dog if he needs to move plants or other things around to get in and outside the gate. 4 April 15,2022 • He puts Rocky inside the small gate in order to open it when he moves things around. • The middle gate/area always stays locked and that gate has a lock when you open the door, and Rocky's area is past a gate within that. • Ms. Salter was inside the middle gate. Special Magistrate Garretson asked how Ms. Salter got inside. Attorney Kerins said her arm and hand was on the middle/medium gate area. Special Magistrate Garretson asked why Mr. Garcia thought the dog bit Ms. Salter. Ms. Buchillon translated that she didn't cross over the fence, but she did have her hand over the fence while feeding him. That's when he bit her. He was watering the plants inside, about 12 feet away from her. He wasn't sure what she was doing exactly. Before he heard her scream, he told her, "Don't get close to the gate. That's why we have the signs." When he heard her, he came running. Special Magistrate Garretson noted that the sign says, "Beware of Dog" and asked what the signs were on the right gate. Jhoselyn Garcia explained that the right gate says, "Private Property,"the house number, and "Beware of Dog." Ms. Buchillon translated that another sign shows a picture of a dog and the number for the house. Jhoselyn Garcia translated that the dog on the sign is a cartoon of a dog in a playpen, a doghouse. One gate was open because the car had just come inside the driveway. Special Magistrate Garretson asked if Ms. Salter just walked through two gates. Jhoselyn Garcia said, no,just one gate. Attorney Kerin said no, she just walked through the outermost gate. Ms. Buchillon said that one was locked and that's where she was. She came in through another gate. Special Magistrate Garretson asked, So the middle fence actually has two gates? Attorney Kerins explained that she was at the outermost fence. She did not enter through the black-mesh fence area. She leaned on it. She was on the pavers with her arm resting on the mesh portion of the fence. Jhoselyn Garcia said she was on the right side of the fence, the long side. Attorney Kerins said she was on the side farthest from the house. Ms. Salter never crossed over any thresholds into that area. Special Magistrate Garretson asked Mr. Garcia if there was anything else he wanted to tell her. Mr. Garcia responded, No, it's fine. During questioning by Special Magistrate Garretson, Ms. Buchillon translated that: • He wishes that someone would tell Ms. Salter to stop feeding the dogs because she's making them sick. • The first time he took Rocky out on a leash to walk was four months ago. He hasn't taken him out on a walk for two years due to his own medical issues. • Rocky is always inside the gates and the rest of the time he is inside. • He posted "Beware of Dog" signs as a precaution for everyone who comes to his house 5 April 15,2022 so they know there's a dog there. • He's never been concerned about Rocky being aggressive because he's had friends come over for barbeques. Rocky barks, he tells him to stop and the dog knows them. He's never had issues involving aggression when anyone has come over. • Rocky bit her because her arm was on the fence holding a bag of bread. • He doesn't know if Rocky would have bitten anyone else, a stranger he didn't know, but it's possible if an unknown person put his hand over the fence. • He barks at people he doesn't know. • He believes Rocky bit Ms. Salter that day because he wanted to take the food from her hand. • Normally, Rocky eats dog food from a bowl and isn't used to being fed by hand, except for a little treat. He doesn't give him house food. • The girls ride on Rocky like he's a horse and they've never had a problem with him being aggressive. Attorney Kerins said she had no more questions, but told the Magistrate that it's important to look at the affidavit by Ms. Alter. Most is consistent with what Mr. Garcia said today. "I was walking up the street, saw my neighbor's gate was open, saw Roberto standing on the left side inside the fence. She did not hear the dog growl, which he usually does 6 to 10 feet away. She started talking to Roberto, leaned her arm on the fence for approximately 10-15 seconds before she was attacked." Looking at the location of the bite, that is consistent with leaning on something, not having an arm extended out. You don't have a bite on the hand. You have a bite on the arm, which would indicate that she was leaning on the fence. In addition, from the photos, based on where the pavers are located, she was still in the driveway, not within the curtilage area or back access areas of the property. Per the statutory definition, it's not under dispute today that there was an attack that caused a severe injury by Rocky. The County doesn't have anything else. During questioning by Special Magistrate Garretson, Ms. Buchillon translated that: • Mr. Garcia was about 10-15 feet away from Ms. Salter, watering plants. • He warned her about the dog, that he wasn't in his fenced area. • She was talking, asking how he was doing while he was watering the plants, and he could hear her but not see her because there was a tree blocking his view. • After he heard her scream, he ran and saw Rocky still on her, biting her, so he whacked Rocky on the face to get him to let go and he let go. • Rocky did not attack her again and left with his tail between his legs while still barking. • Mr. Garcia got a towel, covered the bite, took her to the hospital and picked her up when she was released. • Rocky never went outside the gate. He stayed inside the locked areas, the middle gates. Special Magistrate Garretson said the notes mention euthanasia. Is the dog still alive now? Ms. Buchillon translated that he is alive. Attorney Kerins said at this time, the County is not seeking euthanasia. It's just seeking the Dangerous Dog Determination. Special Magistrate Garretson asked about the other affidavit from a neighbor. Attorney Kerins said it's in Spanish and refers to other properties, so the County is not relying 6 April 15,2022 on it. Special Magistrate Garretson asked to be provided with the affidavit describing the injuries that justify the Dangerous Dog Determination, which Attorney Kerins then handed to her. Special Magistrate Garretson said that what she's having trouble with is that within the ordinance, Section 14-38-ID: "A dog shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member. No dog may be declared dangerous if the dog was protecting or defending a human being within the immediate vicinity of the dog. " She said she was having a problem because the victim wasn't here because there is obviously an inconsistency here. Ms. Salter wrote in her affidavit that she was fighting off the dog and got the broken rib at that time, whereas Mr. Garcia's testimony is that he came immediately when she screamed, and he saw that the dog was still attached. Ms. Salter says in her affidavit that there were two different attachments, two different bites. But Mr. Garcia says that as soon as he came around and saw that, he went over and got the dog off of her. Attorney Kerins said that based upon the statutory definition of serious injury, we have a bite to her right arm that required hospitalization and sutures. In the language of 14-38, 1D, which is also reflected in State Statutes 767.12, she was lawfully on the property and she had not passed beyond the curtilage of the property. This was not where she entered a locked gate to go back where Mr Garcia was. She was still on the pavers of the driveway at the time this occurred, and she put her arm on a fence. There's been no testimony today that she was asked to leave the property. There were conversations that he heard her talking and he asked her to remove her arm. Even if that's the case, under the statutory and the Ordinance language, contributory or comparative negligence is not a factor in this. It's whether or not she was lawfully on the property and whether or not there was a serious injury from a bite. We have a serious injury from the bite and we have her on the driveway and she did not pass into a backyard or anything like that. She was in a driveway, she saw Mr. Garcia in the backyard and tried to be neighborly and go have a conversation. That's what it appears to have been, and I agree it's hard to do this without the victim here. Her job would have been a whole lot easier had she decided to show up this morning. But if she was lawfully on the property, which the County argues she was, we don't have any testimony where she was tormenting, abusing, assaulting the dog, the owner, or a family member, and she was not protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault. At most, she tried to feed the dog. Taking all the facts in Mr. Garcia's favor, there was no weaponry involved, she wasn't trying to assault the dog or any part of the Garcia family. Those are just the facts we've agreed on. Special Magistrate Garretson said we don't have Rocky here to tell us what was in his mind, whether he thought that he was being attacked. There's always that problem of not being able to get in the mind of the attacker. Attorney Kerins said that taking all the facts in Mr. Garcia's favor today and erring on the side April 15,2022 of caution, she still thinks it falls within the statutory definition of Dangerous Dog. Special Magistrate Garretson said, you understand, Mr. Garcia, what the things are that you have to do if he is declared a Dangerous Dog? Mr. Garcia answered, Not too much. Ms. Buchillon translated that he understands a little bit of it, but she could explain it to him more. She told him already that he has to register if he's found to be a Dangerous Dog. Attorney Kerins said DAS Officer Jersey could explain that process to him. Special Magistrate Garretson said yes, but Mr. Garcia already has taken steps to protect the public and this sounds to her like a reckless public. That's her biggest concern, that if Mr. Garcia knows, he may not even be objecting because he's already got signs and we know that there have to be signs up and that the dog has to be registered, but Rocky is on the radar already, so that shouldn't be difficult. The muzzle may not be a bad idea. Attorney Kerins said there are not too many more steps involved after he's registered, but Rocky needs to be muzzled when walking on a leash under the designation. DAS Officer Jersey testified there also needs to be an enclosed top to the fenced-in dog enclosure so the dog cannot climb out of that area. Special Magistrate Garretson asked if Rocky can still be outside and get his exercise. DAS Officer Jersey said yes, but Mr. Garcia would have to be outdoors with Rocky to ensure he doesn't escape from the middle enclosure. It must be secure enough to prevent escape. [Ms. Buchillon explained the Dangerous Dog requirements to Mr. Garcia.] Ms. Buchillon translated that Rocky does have a muzzle. He uses it when they bathe him. Special Magistrate Garretson ruled that the County met its burden of showing the injury was a severe injury to a human and that Rocky had aggressively bitten, attacked, endangered or inflicted severe injury to this victim. She did not find that Rocky caused the injury to Ms. Salter's rib. The testimony is undisputed that there was no fighting off the dog. Mr. Garcia got the dog to unlatch. She found problems with the victim's credibility because some of the things in her statement don't really jibe. But she found Mr. Garcia credible. You are correct that the defense, 1D, doesn't quite meet this situation, so that would be the reason if she were to affirm the appeal. It would have been on that basis, but it doesn't exactly fit that. Mr. Garcia had done quite a bit to try to help keep Ms. Salter safe with signs and warning her, "Don't do that," and she did it anyway. Ms. Buchillon translated that Mr. Garcia has put more new signs next to the old ones. DAS Officer Jersey said if he is registered as a Dangerous Dog, Mr. Garcia will have to come to DAS to get DAS-issued signs that say "Dangerous Dog on Premises" in English and Spanish. 8 April 15,2022 Ms. Buchillon explained that to Mr. Garcia and then testified that Mr. Garcia also plans to make the gate higher in the front. Special Magistrate Garretson said even though the facts of this case don't fit under ID, which is the only real affirmative defense he could have used, it is clear from the testimony and what she sees in the notes is that this victim brought it on herself and she did that by going onto people's property uninvited, feeding people's dogs, which she hadn't been given permission to do, and she was warned not only by the signs, but she also was warned by Mr. Garcia vocally to not do exactly what she did. If this were a civil case, it would be comparative negligence, at least. Mr. Garcia,just be aware that if there's any follow up to this, that you have a right to use information from this hearing and her factual findings to assert in your defense if there's any other action. [Ms. Buchillon translated what the Magistrate ruled for Mr. Garcia.] Special Magistrate Garretson told Mr. Garcia that she is compelled by the strict language of the Ordinance and the Statute to deny his appeal, which means that the County's determination that Rocky is a Dangerous Dog will have to stand and you'll have to comply with the requirements. The good news is you're already doing some of these things, so it won't be as big of a burden on you as it would be on a lot of other people she's had in front of her. Ms. Buchillon translated that he asked if he could start the process today. Attorney Kerins said they do have paperwork for him to sign today. Ms. Buchillon translated that he said OK. Special Magistrate Garretson said she wanted him to understand she's bound by the laws and has no discretion in her ruling. [Ms. Buchillon translated for Mr. Garcia.] Special Magistrate Garretson said it would be good for him to have a copy of the Ordinance, which talks about other things that could happen in the future, because subsequent incidents would have severe consequences. DAS will go over everything with you so it's clear you know what you have to do. If you have questions for me, now is the time to ask. Ms. Buchillon translated that everything was good. B. EMERGENCY CASES (None) VIII. NEW BUSINESS A. MOTION FOR REDUCTION/ABATEMENT OF FINES (None) B. MOTION FOR IMPOSITION OF FINES AND LIENS None 9 April 15,2022 None A. MOTION TO AMEND PREVIOUSLY ISSUED ORDER B. MOTION TO RESCIND PREVIOUSLY ISSUED ORDER X. CONSENT AGENDA None A. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE NUISANCE-ABATEMENT LIENS ON CASES REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. B. REQUEST TO FORWARD CASES TO COUNTY ATTORNEY'S OFFICE AS REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. C. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE DAS CITATION LIENS ON CASES REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. XI. REPORTS None XII. NEXT MEETING DATE: Friday. May 6, 2022. at 9 a.m. There being no further business for the good of the County, the hearing was adjourned by order of the Special Magistrate at 11:06 a.m. COLLIER COUNTY SPECIAL MAGISTRATE HEARING (1_ . Brenda C. Garretson, Special agistrate Thes�minutes were approved by the Special Magistrate on 1 [S da , (check one) as presented, V , or as amended 10