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CESM Minutes 12/17/2010 (Dangerous Dog) December 17,2010 MINUTES OF THE HEARING OF THE COLLIER COUNTY SPECIAL MAGISTRATE DANGEROUS DOG APPEAL Naples, Florida, December 17, 2010 LET IT BE REMEMBERED that the Collier County Special Magistrate Dangerous Dog Appeal, 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 Garretson ALSO PRESENT: Kerry Adams, Code Enforcement Administrative Secretary Colleen Davidson, Code Enforcement Administrative Secretary HEARING OF THE COLLIER COUNTY SPECIAL MAGISTRATE AGENDA DATE: December 17,2010 at 9:00 A.M. LOCA TION: Collier County Government Center, 3299 East Tamiami Trail, 3rd Floor, Naples, Florida 34112 NOTE: 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 VERBA TIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE 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 Garretson presiding A. Hearing rules and regulations II. APPROV AL OF AGENDA III. APPROV AL OF MINUTES IV. MOTIONS V. PUBLIC HEARINGS A. Hearings 1. CASE NO: OWNER: OFFICER: VIOLA TIONS: CEEX20100021107 JERRY HOUSE AND HERBIE HOUSE OFFICER DAVID LEVITT COLLIER COUNTY ORDINANCE 2008-51, AS AMENDED, AND/OR SUBSECTION 767.11 (1), FLORIDA STATUTES. DANGEROUS DOG. VIOLA TION ADDRESS: 2914 RANDALL CIRCLE, NAPLES 2. CASE NO: OWNER: OFFICER: VIOLA TIONS: CEEX20100021104 VERONICA MCCULLION OFFICER PETER HINKLEY COLLIER COUNTY ORDINANCE 2008-51, AS AMENDED, AND/OR SUBSECTION 767.11 (1), FLORIDA STATUTES. DANGEROUS DOG. VIOLATION ADDRESS: KETCH DRIVE, NAPLES B. Emergency Cases: VI. NEW BUSINESS A. Motion for Imposition of Fines: VII. OLD BUSINESS VIII. CONSENT AGENDA IX. REPORTS X. NEXT MEETING DATE: January 14,2011 at 9:00 A.M. located at the Collier County Government Center, 3301 East Tamiami Trail, Building F, 3rd Floor, Naples, Florida XI. ADJOURN 2 December 17,2010 I. CALL TO ORDER The Honorable Special Magistrate Brenda Garretson called the Hearing to order at 9:06 AM. The individuals testifying during the proceedings did so under oath. The Special Magistrate announced, in addition to the two Dangerous Dog cases, an Emergency Case would be heard under the Utility Ordinance, and outlined the Rules and Regulations to be observed during the Hearings. II. PUBLIC HEARINGS: A. Emergency Hearing: PU 4516 - CEEX 201000021558 - BCC vs. Creative Choice Homes XIV. LTD. Public Utilities Senior Investigator Ray Addison and Compliance Officer Tonya Phillips requested the Hearing and were present. Cindy Walters, Regional Property Manager for Proxy Pro Management, and Solange Michaels, represented the Respondent. Violations: Ordinance 2005-54, Sections 19, C (9) Repeat Violation: Litter on ground and in roll-off without cover/lid creating a Health/Safety/Welfare issue. Litter consisted of, but was not limited to, paper, plastic, and putrescible waste not properly stored. Folio No.: 00296840003 Violation Address: 8690 Weir Drive, Naples, FL Cindy Walters resides at 5421 Ginger Cove, Tampa, FL 33634. Solange Michaels resides at 4030 Winkler Avenue, #204, Fort Myers, FL 33916. Citation #4516 was issued on December 1,2010. During a routine patrol, Investigator Phillips observed excessive litter/trash around the compactor, and hand-delivered the Notice to Appear to the Respondent's representative, James Puckett.. Thirty-four photographs were introduced by the Investigator, marked as County's Composite Exhibit "A," and admitted into evidence. The Investigator inspected the site twice a day for seventeen days after the Citation was issued. The violation has not been abated. Ms. Walters stated several reasons contributed to the problem: · The compactor broke and there were delays delivering the necessary part. · Waste Management was slow to deliver additional dumpsters and gave conflicting information to Code Enforcement. · Trash was placed in the roll-off container to prevent animals from further dispersing the trash but it did not have a lid or tarp to contain the trash. 2 December 17, 2010 · Residents would toss trash bags from their cars as they left the apartment complex. Ms. Walters noted the Maintenance staff did not begin work until 8:00 AM. The photos taken by Public Utilities were prior to the start time. The groundskeeper's hours have been changed to 6:00 AM - 3 :00 PM.. Corrective actions taken by Proxy Pro Management: · Compactor was been repaired and the site will be monitored more frequently by Maintenance. · The entire maintenance staff was terminated and new staff begins work on December 20, 2010 · Cameras with lights have been ordered to photograph residents who dump trash and residents will continue to be fined for non-compliance. · The previous contract has been terminated and a new contract entered into with Waste Management. · New equipment will be obtained directly from Waste Management and delivered before the end of February 2011. Additional measures suggested by the Special Magistrate and the County: · Hire a security guard to patrol during the evenings. · Request Sheriff s Department patrol the premises and issue Citations. · Investigate hiring a commercial cleaning company. · Remove compactor and place several dumpters around the premises. · Increase trash pick-up by Waste Management (twice a week or more). Public Utilities volunteered to go door-to-door in the complex to hand out pamphlets and/or schedule a meeting to instruct residents on the proper dispoal of their trash. The Special Magistrate stated a Health/SafetylWelfare issue was present. Finding the Notice of Hearing was properly served, the Respondent was found GUILTY of the alleged violation and ordered to pay a civilfine of $1, 000. 00 per day for each day the violation remained unless altered by a subsequent Stipulation or Order of the Special Magistrate. The Special Magistrate ordered the Respondent to immediately clean the area surrounding the compactor by the close of business on December 17,2010. She further ruled the fine would be imposed, but it was stayed until the Respondent presented a Plan of Action to Public Utilities on or before Monday, December 20, 2010. The Special Magistrate noted if compliance was not achieved, the fine will be imposed retoractively. The case was referred to the January 14,2011 Docket by the Special Magistrate and Ms. Walters acknowledged notification. 3 December 17, 2010 B. Hearings: 1. CEEX 20100021107 - BCC vs. Jerry House and Herbie House Domestic Animal Services Officer David Levitt requested the Hearing and DAS Supervisor Dana Alger was present. The Respondents were also present. Mark Smith and Eric Bertelsen appeared as witnesses for the Respondents. Violations: Collier County Ordinance 2008-51, as amended, and/or Subsection 767.11(1), Florida Statutes, Dangerous Dog Violation Address: 2914 Randall Circle, Naples, FL The Respondents reside at 2914 Randall Circle, Naples, Florida. Mark Smith resides at 2912 Randall Circle, Naples, Floirda. Eric Bertelsen resides at 2920 Hawthorne Court, Naples, Florida 34104 The Special Magistrate noted the Respondents were appealing Domestic Animal Services' Finding and classification of the dog as "dangerous" under the Ordinance which was derivedfrom Florida Statutes, Chapter 767.11 (1). Supervisor Alger cited the County Ordinance under "Definitions and Procedures": "Dangerous or vicious dog means any dog that, according to the records of the appropriate authority: A. Has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property ... " "Definition of severe injury: Any physical injury that results in broken bones, multiple bites, disfigurement, or lacerations requiring sutures or reconstuctive surgery. " The dog, "Harvey," is a mixed breed and is currently held at the DAS facilities. The date of the incident was October 24,2010 and the Finding was made on November 16,2010. Respondent, Jerry House, presented his case. · The dog is a Labrador mix, was acquired by Herbie House at six-weeks of age, and is now 1 12 years old. · The dog is theraputic for Jerry House who suffers from PTSD due to his service in Viet Nam. · On the date of the incident, Jerry House was playing with the dog in his yard and briefly went inside and upon returning, heard Daniel Forbes, the Victim, who rents from Mr. House's neighbor, screaming at the dog, Harvey. · Mr. Forbes swung an axe handle at the dog who was carrying a toy football in his mouth. · Daniel Forbes then "charged" at Mr. House, who was in his driveway, swinging the axe handle at him. 4 December 17, 2010 The Special Masigrate asked if the police were called to the scene. The Respondent replied they were, but he did not file charges against Mr. Forbes to "keep peace in the neighborhood." · At that point, the dog bit Daniel Forbes and could have seriously injured him but did not. The Special Magistrate questioned the Respondent concerning whether his property was fenced, if the dog was allowed to run free, and how he controls the dog. The Respondent stated his yard is not fenced, the dog does roam free but responds to verbal commands when called. The Special Magistrate further questioned the Respondent regarding the dog's interactions with other dogs and why the Respondent thought the attack occurred The Respondent stated his dog often played with his neighbor's puppy in their combined yards. He further stated the bite was a result of a physical attack on himself by his neighbor's renter who grabbed the Respondent, ripping his shirt. It was only after the Respondent was attacked that his dog bit the renter. When the renter stopped his attack, the Respondent was able to control his dog who responded to the command to "sit," and put the dog inside the house. In response to the Special Magistrate's question, Mr. House stated he did not see any blood on Mr. Forbes who refused the offer of medical treatment, as stated in the police report. He further related: · The police were initially called by Mr. Forbes. · The dog was placed under quarantine by DAS despite proof that it had been vaccinated against rabies, and has been under the control ofDAS for the past 60 days. · In his opinion, the dog did not show aggression to the Victim. (Note: A copy of the Sheriff's Department report was included in the information provided to the Special Magistrate.) · According to the Sherrifs report, Mr. Forbes went into his house and obtained the axe handle, then chased the dog from the yard into the street. · The Respondent observed Mr. Forbes chasing the dog who still had his toy in his mouth. · The Respondent was confronted by Daniel Forbes in the Respondent's driveway. · The Respondent stated the dog has played with his 7 -month old grandson, a neighbor's cat, and puppy without incident. · Documents provided by DAS stated a hearing would take place within 21 days after the dog was declared to be "dangerous." 5 December 17, 2010 Mark Smith testified as follows: · Has known Harvey since it was approximately six-weeks old and Harvey plays with his three dogs. · Has had almost daily contact with Harvey and has not seen the dog show aggression toward anyone. · Daniel Forbes rented his guest house, but the Witness is in the process of evicting him. · Mr. Forbes was a problem tenant and Mr. Smith had felt threatened by him, stating "I think Daniel has a real problem with people... he takes everything as a personal threat and engages in a fight." The Special Magistrate questioned Mr. Smith about his personal observations of Harvey and if there were any problems. The Witness replied he has seen the dog on a daily basis and the only thing the dog has ever done was to bark briefly when startled. If the dog was told to stop or go home, it would respond appropriately.. The Witness stated he owns a black Lab, a Retriever, and a Lab-Chow puppy. He questioned how the definition of "dangerous dog" applied since it was "a very provoked attack" upon Mr. House. The Witness cited the Sheriff s report which stated the bites were moderate. He observed the tenant provoking the dog, chasing the dog, and attacking the dog. The Special Magistrate asked Mr. Smith if he thought it was a defensive action on the part of the dog? Mr. Smith agreed and stated Daniel Forbes has been around the dog, Harvey, many times without incident. It was his opinion there was a problem between Daniel and Jerry - that Daniel did not like Jerry. He concluded Daniel could have stopped his attack on Jerry at any time but did not and that was when Harvey nipped him. Objection by the County: Supervisor Alger noted the Sheriff s Office report stated there were no other independent witnesses to the incident. When the DAS officer was at the scene, only the Respondent and the Victim were present. She was surprised that witnesses were produced. The Special Magistrate advised the Supervisor to question the next witness and determine if she needed to call a rebuttal witness. RECESS: 10:30 AM RECONVENED: 10:47 AM The Respondent read an exercpt from West's Florida Statutes Annotated: "No dog may be declared dangerous if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault. " 6 December 17, 2010 ( 767.12 - Classification of dogs as dangerous; certification of registration; notice and hearing requirements; confinement of animal; exemption; appeals; unlawful acts) DAS Animal Control Officer Darcy Andrade was sworn in, stating she had additional information to present. Eric Bertelsen testified as follows: · Heard some yelling and a little bit of barking. · Looked over his back yard fence and saw Daniel chasing after the dog with some kind of club in his hand. Mr. Bertelsen explained there are 5 or 6 lots in the neighborhood that are pie-shaped, so he could view his neighbor, Jerry's, yard. · He stated Daniel threw the club which hit the dog. He ran over and grabbed it again. Then he saw Jerry come out. · The dog yelped when the club hit him and continued to run away from Daniel · The dog nipped Daniel approximately three times in reaction to his attacks on Jerry . · The Witness was very familiar with Harvey and has seen him around the neighborhood - the dog frequently plays with Mr. Bertersen's cat. · He did not observe any blood on Mr. Forbes and was approximately 75 to 80 feet from the incident. Supervisor Alger stated Officer Andrade conducted a door-to-door survey of the neighbor. In her report, the Officer wrote: "One person I spoke to witnessed the majority of the attack but basically was not willing to come forward and sign an affidavit or allow me to use his name" and "... other neighbors claim that the dog runs loose." The Supervisor continued that many neighbors were concerned the dog has been allowed to loose. The Special Magistrate noted the dog was not charged with running loose. There were no further questions by the County. Michael Browne, residing at 11231Zh Street North, Naples, Florida 34102, testified as follows: · Has witnessed Harvey playing in Mark's yard with children and other dogs and has not witnessed any aggression from Harvey. · Has known Harvey since he was a puppy and Harvey has played with his 7- month old puppy who is smaller than Harvey. · Had felt threatened by Daniel in the past, whom he has known since before he lived at Mark's. · He stated, "Daniel is emotionally unstable - there are times when is okay and other times when he is not." · He stated, "Harvey is not a bad or vicious dog." 7 December 17, 2010 John Raby, residing at 4651 Gulfshore Blvd. North, Unit 905, Naples, Florida 34103, testified as follows: · Has known Jerry for 8 or 9 months and has been to his house on an almost daily basis. · Has played with the dog and never showed any aggression and has seen Harvey play with other dogs. · The dog listens to Jerry. · He stated Harvey is not an aggressive dog in his opinion - an aggressive dog would bite anybody. There were no questions from the County for either Witnesses. Respondent, Herbie House, the dog's owner, testifed asfollows: · Picked up Harvey when he was six weeks old · Would not allow a dangerous dog · Dog plays with his nieces and nephews · Has a good temperament There were no questions from the County. The County presented its case: Supervisor Alger stated: · Mr. Forbes was not present to testify, but his Affidavit was presented to the Special Magistrate. · Another affidavit was from a neighbor who claimed that Harvey chased her children and herself while riding bicycles until Mr. House came out and pulled the dog back. The neighbor was with her seven year old and the two- year old was on the back of her bicycle. Supervisor Alger noted a pattern of behavior on the dog's part. · The problem stems from the fact that the dog was allowed to be alone. Mr. House would settle the situation after-the-fact. She further stated: · Mr. Forbes was threatened by the dog, Harvey, when he exited his house to make a trip to his car - he chased the dog from his property and Mr. House came out to contain the dog after-the fact · She asked if no one is there to monitor the dog, how do you know the dog is not acting in an aggressive manner when someone is afraid to tell you? · The dog is allowed to go do whatever it wants to do. · When people come to Mr. House's residence, he control the dog and the visitors do not witness any aggresion on the dog's part. The Special Magistrate noted the Supervisor was discussing there was an opportunity or a possibility, not citing other instances of aggression. 8 December 17, 2010 Supervisor Alger continued: · When Mr. House was on scene and Mr. Forbes was running around, the dog was not being controlled and able to bite Mr. Forbes while Mr. House was right there. The Special Magistrate viewed the photographs of Mr. Forbes' wounds and asked why Mr. Forbes did not attend the Hearing. The Supervisor stated he had been sent the information concerning the Hearing, but she was unable to reach Mr. Forbes by telephone. The Special Magistrate stated she would review Mr. Forbes' Affidavit carefully, and asked why Mr. Forbes felt compelled to come back out if he was afraid of the dog? · He has children in his family and was afraid his family might arrive home while the dog was still out and acting in that manner. There was a comment from the audience that Mr. Forbes did not have any children. Supervisor Alger stated she could only go by what she was told. The Special Magistrate explained to the audience that DAS is required to present the case and enforce the Ordinance. She was concerned that Mr. Forbes did not attend the Hearing and asked if he had contacted DAS at all since the incident. The Supervisor stated he called in the beginning but has not called since the investigation began. The Supervisor detailed the puncture wounds shown in the photographs on Mr. Forbes' wrist and the back of his leg, noting there was a bruise on his back from the impact of the bite - trauma around the puncture. She stated it was apparent the dog was in pursuit of Mr. Forbes. She also acknowledged Mr. Forbes refused medical attention and confirmed the incident report and photographs were taken within an hour after the incident. Supervisor Alger stated the basis of the incident was the animal running at large - if the animal had been contained or walked on a leash, the situation might not have happened. Rebuttal by the Respondent: · He stated Harvey would never have been bitten Daniel if he had not attacked him. · Harvey was protecting the Respondent. The Special Magistrate stated she would examine the documentation presented carefully in order to give a ruling at the conclusion of the Hearing. BREAK: 11.24 AM RECONVENED: 11:45 AM 9 December 17, 2010 The Special Magistrate posed additional questions to Mr. Bertelsen and Mr. Smith concerning their observations of the incident and the location of the properties. She specifically questioned Mr. Smith about Daniel Forbes family and was informed Mr. Forbes was married but did not have any children as he claimed. FINDINGS OF FACT: · There were some inconsistencies in the testimony presented. · Mr. Forbes was not present and there was no opportunity for him to be cross- examined. · There were several inconsistencies in Mr. Forbes statement - he said he was chasing the dog from his "back yard" and the inconsistency about children. · The testimony presented a picture of the person who is alleged to be the Victim as being more of the aggressor in the situation than the dog. · In Mr. Forbes' own statement, he said the dog was able to be calmed down after he and Mr. House had words. · His statement continued, "The dog only did what was his instinct" which could be interpreted as being supportive of the testimony given here that the dog was instinctively trying to protect his owner. · His statement does not mention anything about his physically accosting Mr. House which is not a full statement and did not really present the whole picture. · He also wrote, "This has built up from a lack of control of his dog in my opinion" which is supported by the testimony from the Respondent and his witnesses that Mr. Forbes had a problem with Mr. House. The Special Magistrate referred to the Ordinance and the definition of a dangerous and vicious dog to "inflict severe injury on a human being. " She noted there were multiple bites but no broken bones and no "disfiguring lacerations requiring sutures or reconstructive surgery" She noted there was no testimony or evidence presented that the Victim had to have sutures. The Special Magistrate concluded: · Mr. Forbes did himself a disservice by not being present. · The decision is based on what has been presented. · DAS can only present the evidence that it has. · The weight ofthe evidence is on Harvey's side. The Special Magistratefound that Harvey was not a "dangerous" dog and overruled the assessment from Domestic Animal Services. An Order will be entered stating the Respondent won his Appeal. The Special Magistrate suggested that the Respondent should become familiar with the Ordinance in order to observe the restriction and protect his animal. 10 December 17, 2010 2. CEEX 20100021104 - BCC vs. Veronica McCullion Domestic Animal Services Officer Peter Hinkley requested the Hearing and was present. The Respondent was represented by her attorney, Scott Rowland of Cardillo, Keith, & Bonaquist, P A, Esqs. Sandra Campanella appeared as a witness. Violations: Collier County Ordinance 2008-51, as amended, and/or Subsection 767.11(1), Florida Statutes, Dangerous Dog Violation Address: Ketch Drive, Naples, FL The Respondent resides at 560 Ketch Drive, Naples, Florida and the owner of the dogs. Ms. Campanella resides at 5083 28th Place SW, Naples, Florida 34116. Attorney Rowland presented a Trial Book to the Special Magistrate and to Officer Hinkley. The Special Magistrate stated she would take judicial notice of the Statutes contained in the Trial Book, the contents of which was admitted without objection from the County. The Special Magistrate noted the Respondents were appealing Domestic Animal Services' Finding and classification of the dog as "dangerous" under the Ordinance which was derivedfrom Florida Statutes, Chapter 767.11 (1). Attorney Rowland stated: · There was a jurisdictional issue. · The time to hold a Hearing had expired as it has been more than 21 days since his client requested a hearing. The Special Magistrate asked Officer Hinkley if he wished to call the County Attorney's Office. Officer Hinkley declined Officer Hinkley stated on November 24,2010, the Respondent was notified that the Hearing was postponed and that both parties agreed to the postponement. The Special Magistrate asked if the initial Hearing had been previously scheduled within the twenty-one day period and the Officer concurred Attorney Rowland objected to the Officer's statement. She asked if there was a Stipulation allowing the Hearing to be continued Supervisor Dana Alger stated she contacted the Respondent by telephone when the initial Hearing, scheduled for November, was postponed to December. She cited a note in the file. Attorney Rowland requested to see the file note, and stated his client did not consent to a Continuation. 11 December 17, 2010 Supervisor Alger stated she was not aware the Respondent was represented by Counsel when she spoke to her. Attorney Rowland stated his client was prepared to testify she was called and notified the date was changed which did not constitute consent to a Continuance. Consent indicates voluntary acknowledgement beyond being told "this is the date of the Hearing." He continued the Statute was very clear about the time frame. He reviewed the file note and stated there was no written Consent or service of a Notice, or anything beyond what appeared to be the Supervisor's report of the telephone conversation. The Ordinance requires actual written consent to a Continance. Article II of the County's Ordinance, Chapter 14-35, Section B, "Procedure," Subparagraph (2), was cited as follows: "(2) Any owner of a dog that is initially declared dangerous by the Director of Animal Services may appeal that decision to the Code Enforcement Special Magistrate. This hearing shall be held as soon as possible, but not more than 21 calendar days and no sooner than 5 days after receipt of request from the owner. The hearing may only be continued by agreement of both parties. " Attorney Rowland stated the issue was what constituted agreement and simply notifing the Respondent that a date had been moved did not constitute agreement to continue the Hearing. He was representing Ms. McCullion at the time she was called, and he was informed by his client that December 17th was the scheduled date for the Hearing. He did not receive any prior Notice of Hearing only the Notice citing December 1 ih as the Hearing date. Colleen Davidson stated the November Special Magistrate Hearing had been cancelled and the cases were moved to the December 3rd Agenda, but the McCullion case was received after the Agenda was filled. Since it could not be placed on the December 3rd Agenda, notification of that date was not sent to the Respondent. Attorney Rowland noted that, technically, the case was never set and could not be continued. The Special Magistrate agreed since the case was never set, it could not be continued She suggested because there would be consequences and the DAS Officers did not have legal expertise, DAS should consult the County Attorney's office to obtain legal advice concerning any response or rebuttal. The Special Magistrate noted she was operating under the County's Ordinance which referred to Florida Statutes. If the Ordinance was more specific, the Ordinance would control. RECESS: 12:10 PM RECONVENED: 12:17 PM 12 December 17, 2010 Assistant County Attorney, Colleen Greene, appeared on behalf of the County, and spoke with the DAS Officers. The Special Magistrate reviewed Chapter 14-35 of the County's Ordinance, Section B, "Procedure," Subparagraph (1) and suggested Attorney Greene also review it: "(1) If the Director of Animal Services, or his or her designee, makes an initial determination that a dog is dangerous, based on the initial investigation, the County shall provide written notification of that determination to the owner of the dog. Notice shall be by certified mail, by certified hand delivery, by service pursuant to Florida Statutes, Ch. 48, or as otherwise authorized by Florida Statutes. The Director's initial determination shall automatically become final unless the dog's owner, within seven calendar days after receipt of the Notice, files a written request for a hearing to challenge the Director's initial determination. The written request must be submitted to Animal Services. If the dog's owner files a timely written request for a challenge hearing, the effective date of the determination shall be the date of the final decision of the Special Magistrate. " The Special Magistrate asked where was the beginning point to count the 21 days. Attorney Greene stated the date was to be within 21 days of the Request for a Hearing. The Special Magistrate stated the seven days began to run from the date the Respondent received Notice and cited to the Chapter: "Notice shall be by certified mail, by certified hand delivery, by service pursuant to Florida Statutes, Ch. 48, or as otherwise authorized by Florida Statutes." Attorney Greene stated the DAS Investigation Acknowledgement, signed by Veronica McCullion, was hand-delivered to her on November 10,2010. The Respondent did file a timely request for a Hearing. Proper notice was given initially and was not an Issue. Attorney Greene stated the Hearing was scheduled to be held on November 16th, but was cancelled. The Special Magistrate summarized: · The case was to have been included on the November Docket which is prepared by Code Enforcement in advance. · Due to a personal issue, Code Enforcement continued the cases to December in order to assist the Special Magistrate. · The Respondent was not formally asked about her position. · Attorney Rowland stated the Respondent did not receive a Notice of Hearing because the case was not actually set and there could not be a Continuance. Attorney Greene stated the DAS records note the Respondent consented to continue the case. The Ordinance provides the Hearing may be continued by agreement of 13 December 17,2010 both parties. The DAS Officer testified she did have the consent of the Respondent to continue. Attorney Rowland stated he was told, as was his client, that the Hearing was set for December 1 th - it was the only date ever given. The Respondent did not dispute that DAS contacted her and said the Hearing was set for December 17th. He continued the Ordinance was very clear that a Hearing is to take place within 21 days and only the Hearing - "not the Docket or the intention of a Docket" - can be continued with the consent of both parties. Attorney Greene stated the conversation between DAS and the Respondent occurred within the 21 days and the Respondent gave consent to the December 1 th date. She further stated DAS was within the guidelines of the Ordinance. The Special Magistrate stated the intent of the restrictions and notification is Due Process. She questioned if a Hearing was not set, did the Respondent have the right to consent to a Hearing outside the time line. Attorney Rowland stated it was not established that his client consented to anything - she was called and told of the date. There was no Notice of Hearing that the case had been set. The Special Magistrate agreed with Attorney Rowland that there could not be a Continuance. She stated if the Respondent consented to a particular date, it could also be interpreted that she consented to the Hearing being outside of the 21 days - whether it was set as an original setting or as a Continuance. The Special Magistrate askedfor the Respondent's direct testimony in order to rule appropriately. DAS testified they believed it was consent and not a notification. Attorney Rowland stated he wanted the record to reflect his position and argument that it didn't matter because the case was never set. Direct testimony of the Respondent by AUorney Rowland: Q. Ms. McCullion, were you contacted by DAS and notified of a Hearing date? A. Yes. Q. When was that? Do you recall? A. Honestly, I don't have that in my records. Q. Were you asked if you agreed that the Hearing would be set for a certain date? A. No. Q. Were you told when the Hearing was going to be set? A. Yes. Q. Was that for today's date? A. Yes. Q. Were you told at any prior point that the Hearing had been set for any other date? A. I had never received any notice on any other dates. Q. Were you ever told that it had been "set" other than for today? A. No. 14 December 17,2010 Re-Direct questioning of the Respondent by Attorney Greene: Q. When the Hearing was scheduled and when you spoke to Ms. Alger on the telephone regarding the date, did you express any concerns or object to the date of the Hearing? A. No. In this whole case, I think I've been very compliant with all of the Officers and anybody in authority, so certainly, when she contacted me and told me that the date was set, I just accepted that. Q. Did you make any demand to have the Hearing date set any earlier than today? A. No. Q. And I think you just testified that there was some conversation in November about scheduling your Hearingfor a time in November? Is that correct? A. Yes. Q. And at that time, did you consent to have the Hearing held in November? A. No. Q, Will you explain again, for the record, what was the conversation in November that you are referring to? A. I don't have full recollection of that - this has been seriously stressful for all these months - I just know that when the papers were given to me that I was told there would be a Hearing coming up at some point in time - I don't recall if there was an actual date said at that time or not - I believe that they told me it was to be the last Friday of the month or something like that or whatever the particular day was - but that they weren't sure they were going to get me on. The Special Magistrate reviewed the Respondent's written Request for a Hearing. Colleen Davidson stated Code Enforcement did not have any intention of scheduling the case for November 5th because the re~uest had not been received - the case would have been scheduled for the December 3r Hearing, but the December Docket was too full so Code Enforcement scheduled the December 17th Hearing to handle the cases. The Special Magistrate asked Attorney Greene if she wanted to make an argument concerning whether or not the expiration of the 21 days caused her to lose jurisdiction. Attorney Greene stated: · The Special Magistrate still had jurisdiction to hear the case because the parties had been working together on the case. · DAS hand-delivered the Notice to the Respondent and acted within the scope of the Ordinance. · There was an extreme situation where the Special Magistrate's calendar was suspended and the Hearing was rescheduled. · DAS timely provided Notice to the Respondent and she agreed or did not object. · The dog is not in custody with DAS but is at home with its owner. · In accordance with procedural due process, the Respondent had an opportunity to be heard with the assistance of her attorney. 15 December 17, 2010 The Special Magistrate ruled the Ordinance did say "agreement" andfailure to object would not be agreement - agreement is in the affirmative. Neither side is able to say that the Respondent definitely, affirmatively said, "Yes, I am fine with the Hearing date." The Finding is that the 21 days did expire. The Special Magistrate asked Attorney Greene if the County does not meet the 21 day deadline, what is the result? Attorney Greene stated the Ordinance provided the Hearing shall be held within 21 days, but her argument was DAS worked with the Special Magistrate's office and the Respondent and that there was a meeting of the minds. The Special Magistrate found that there was no meeting of the minds. It did not occur to anyone that there was a time deadline that would not be met. The Respondent's point was she was called and told "this is the date that we basically set" and she didn't feel she could make an objection. The Special Magistrate stated to obtain an agreement, you have to go beyond and ask, "Do you agree" or "Is there a problem" - which could mean to the Respondent that she could have had a conflict on her calendar. It was not affirmative enough to rise to the level of an agreement. She stated Attorney Rowland was correct and asked Attorney Greene if she had a comment. Attorney Greene stated the incident took place in Collier County and Collier County DAS has jurisdiction over the care and custody of domestic animals owned by the Respondent and the Victim's dog. If the Special Magistrate did not have jurisdiction, the County Court would have jurisdiction based on venue alone. The Special Magistrate ruled the case should be tried in County Court. The Hearing was concluded at 12:40 PM. COLLIER COUNTY SPECIAL MAGISTRATE HEARING Brenda Garretson, Special Magistrate The Minutes were approved by the Special Magistrate on as presented _, or as amended 16