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Item N5BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: __May 20, 2009_______ Division: BOCC ______ Bulk Item: Yes X_ No Department: DIST 3 ____ Staff Contact Person/Phone #: C.Schreck x 3430 AGENDA ITEM WORDING: Approval to advertise and hold a public hearing for an ordinance amending sec. 4-70, Monroe County Code providing for the limiting of chaining or tethering of dogs; providing for penalties; providing for process to contest citation; providing for severability; providing for the repeal of all ordinances inconsistent herewith; providing for incorporation into the Monroe County Code of Ordinances; and; providing an effective date ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: Animal Ordinance last revised in 2006. CONTRACT/AGREEMENT CHANGES: __________________________________________________________________________________ STAFF RECOMMENDATIONS: TOTAL COST: INDIRECT COST: ___N/A______BUDGETED: N/A YesNo_X__ COST TO COUNTY:SOURCE OF FUNDS: N/A ______________ REVENUE PRODUCING:AMOUNT PER MONTHYear ____ Yes No X APPROVED BY: County Atty X OMB/Purchasing Risk Management ____ DOCUMENTATION: Included X Not Required____ DISPOSITION:AGENDA ITEM # Revised 1/09 ORDINANCE NO. - 2009 AN ORDINANCE AMENDING SEC. 4-70, MONROE COUNTY CODE, PROVIDING FOR THE LIMITING OF CHAINING OR TETHERING OF DOGS; PROVIDING FOR PENALTIES; PROVIDING FOR PROCESS TO CONTEST CITATION; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND; AND PROVIDING AN EFFECTIVE DATE. WHEREAS , Monroe County Code Section 4-2 sets forth the purpose of Chapter 4, Monroe County Code, is to provide for the regulation of animals and animal owners and keepers in the interest of the health, safety and welfare of the citizens of Monroe County; now therefore, NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Legislative findings and intent. Section 1. The Board of County Commissioners of Monroe County, Florida, finds that it is inhumane to chain or tie a dog to a stationary object or to confine it in a small space. It is the intent of this ordinance to impose penalties of significance in order to deter such action and to reduce the possibility of repeat violations by rendering the violators ineligible to adopt pets from County animal shelters. Section 2. Sec. 4-70, Monroe County Code is hereby amended to read as follows: Chaining and tethering animals prohibited.— 4-70 Definitions. (A) As used in this section: (1) "Owner" includes any owner, custodian, or other person in charge of a dog. (2) As used in this section, tether means to restrain a dog by tying the dog to any object or structure, including without limitation a house, tree, fence, post, garage, or shed, by any means, including without limitation a chain, rope, cord, leash, or running line. Tethering shall not include using a leash to walk a dog. (B) Restraint by chaining or tethering may be used provided the following conditions are met: It shall be unlawful for a responsible party to tether a dog while outdoors, except when all of the following conditions are met: (1) The chain or tether shall not weight more than one-eighth of the animal’s body weight; (2) the chain or tether shall be at least ten feet in length with swivels on both ends; (3) The chain or tether shall be attached to a properly fitted collar or harness worn by the animal; (4) The animal, while restricted to chain or tether, is able to access shelter with floor, three walls, and roof to protect itself from inclement weather, extreme temperature and sunlight, and has access to sufficient wholesome food and water; and (5) The tethered animal shall not be tethered or chained or allowed to remain tethered or chained from the time a mandatory evacuation of the owner’s area of residency is order until the mandatory evacuation is lifted. (1) The dog is in visual range of the responsible party, and the responsible party is located outside with the dog. (2) The tether is connected to the dog by a buckle-type collar or a body harness made of nylon or leather, not less than one inch in width. (3) The tether has the following properties: it is at least five times the length of the dog's body, as measured from the tip of the nose to the base of the tail; it terminates at both ends with a swivel; it does not weigh more than 1/8 of the dog's weight; and it is free of tangles. (4) The dog is tethered in such a manner as to prevent injury, strangulation, or entanglement. (5) The dog is not outside during a period of extreme weather, including without limitation extreme heat or near-freezing temperatures, thunderstorms, tornadoes, tropical storms, or hurricanes. (6) The dog has access to water, shelter, and dry ground. (7) The dog is at least six months of age. Puppies shall not be tethered. (8) The dog is not sick or injured. (9) Pulley, running line, or trolley systems are at least 15 feet in length and are less than 7 feet above the ground. (10) If there are multiple dogs, each dog is tethered separately. (C) An exception can be made when the animal is left unaccompanied in a public Deleted: e location for a period not to exceed 15 minutes. (D) For a first-time violation, the Department shall issue a warning notice to the responsible party and shall wait at least thirty (30) days before taking any further enforcement action against the responsible party. Thereafter, each violation of this section shall be subject to enforcement in accordance with Sec. 4-46 of this chapter. Formatted: Underline SECTION 3 . Ord. No. 022-2006 §4, Section 4-70, Monroe County Code as previously written, is hereby repealed. SECTION 4. SEVERABILITY . If any portion of this ordinance is for any reason held invalid or declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property or circumstances, such holding shall not affect its applicability to any other person, property or circumstances. SECTION 5. CONFLICT WITH OTHER ORDINANCES . All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. SECTION 6. INCLUSION IN CODE OF ORDINANCES . The provisions of this ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. SECTION 7. EFFECTIVE DATE . This Ordinance shall take effect on ___________, 2009 provided that this Ordinance shall be filed with the Department of State as provided in section 125.66(2), Florida Statutes. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the _____th day of ________, 2009. Mayor George Neugent _______ Mayor Pro Tem Sylvia Murphy _______ Commissioner Heather Carruthers _______ Commissioner Mario DiGennaro _______ Commissioner Kim Wigington _______ (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, Clerk OF MONROE COUNTY, FLORIDA By______________________________ By_________________________________ Deputy Clerk Mayor/Chairperson Sec. 4-46. Enforcement; fines. (a)Violations observed. Upon observing a violation of this chapter, the animal control supervisor or a sworn animal control officer or any other law enforcement officer may either: (1) Issue a citation to the owner or keeper of the animal, that shall be in substantially the same form approved by board resolution for this purpose, and that shall contain: a. The date and time of the issuance of the citation; b. The name and address of the person cited; c. The date and time the civil infraction was committed; d. The facts constituting probable cause for the issuance of the citation; e. The ordinance violated; f. The name and authority of the officer issuing the citation; g. The procedure for the person to follow in order to pay the civil penalty or to contest the citation; h. A statement of the maximum civil penalty (not to exceed $500.00) that may be imposed if the person cited contests the citation and is determined to have violated the ordinance; i. A statement of the civil penalty payable if the person cited does not contest the citation; and j. A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear in court to contest the citation, or fails to appear in court as required by the citation, he shall be deemed to have waived his right to contest the citation, and that, in such case, judgment may be entered against the person for an amount up to the maximum civil penalty of $500.00. In addition, if a person fails to pay the civil penalty, or fails to appear in court to contest the citation or fails to appear in court as required by the citation, the court may issue an order to show cause upon the request of the governing body of the county. This order shall require such persons to appear before the court to explain why action on the citation has not been taken. If any person who is issued such order fails to appear in response to the court's directive, that person may be held in contempt of court. (2) Impound the animal that is the subject of the violation and commence prosecution of the offense pursuant to this chapter or F.S. § 828.27(1)(f) or any subsequent similar provision. (3) The following types of violation of this chapter require a mandatory court appearance by the person cited: a. Aggravated violations resulting in the unprovoked biting, attacking or wounding by a domestic animal; b. Violations resulting in the destruction or loss of personal property; c. Second or subsequent violations; or d. Violations resulting in the issuance of a third or subsequent citation. (4) Persons required to appear in court do not have the option of paying the fine instead of appearing in court. (5) The director of public works shall maintain records to prove the number of citations issued to any one person. (b)Complaints of violations not observed. Upon receipt of an affidavit of complaint signed by one person under oath before an individual authorized to take acknowledgments, setting forth the nature and date of the act, the owner or keeper of the animal, the address of the owner or keeper, and a description of the animal, the animal control supervisor or a sworn animal control officer or other law enforcement officer shall investigate the complaint to determine whether there is probable cause to believe a violation of this chapter has occurred. If probable cause exists, the animal control supervisor or a sworn animal control officer shall commence prosecution of the offense pursuant to F.S. § 828.27(1)(f). (c)Punishment. Upon conviction, any person violating this chapter shall be punished as provided by law. Each day during which the violation continues shall be deemed a separate offense. (1)Civil infraction. Violations of any provision of this chapter shall constitute a civil infraction. The maximum civil penalty shall not exceed $500.00 per violation. (2)Court cost, surcharges and other special charges. Court costs, surcharges and other special charges shall be added by the clerk of the circuit court in the same manner and amounts as provided for class 1 noncriminal violations. (3)Uncontested citation; exceptions. If the party cited does not contest the citation, the penalty given shall be $100.00 except as follows: a.Violations of sections 4-68, 4-69, 4-70, 4-72. Violation by an owner or keeper of a dog or cat of section 4-68 governing abandonment, section 4-69 governing spaying and neutering, section 4-70 governing chaining and tethering, and section 4-72 governing cruelty to animals, constitutes a civil infraction for which the owner or keeper of the animal shall be issued a citation by an officer having probable cause to believe a person has committed an act in violation of those sections. If the citation is paid, the citation shall be subject to the following penalties for each animal: TABLE INSET: First violationWarning Second violationFine of $100.00 All subsequent violationsFine of $250.00 b.Violators ineligible for pet redemption or adoption from a county animal shelter. 1.Second and subsequent violations of 4-68 and 4-70. Any person who has been cited for a violation of section 4-68 or 4-70 and who has not obtained a county court order dismissing the citation shall be ineligible to redeem or adopt any animal from a county animal shelter for a period of three years from the date of the citation. 2.Violations of section 4-72. A person convicted of a violation of F.S. § 828.12, or cited for a violation of section 4-72, which citation has not been dismissed or overruled by a court of law, shall not be permitted to adopt any animal from any county animal shelter until proof is provided that the person has undergone psychological counseling with regard to the violation or completed an anger management treatment program. Any plea of nolo contendere shall be considered a conviction for purposes of this subsection. c.Violation of litter registration requirement. For violation of the litter registration requirement, in addition to the $100.00 fine for a first offense and $250.00 fine for a second offense, the following additional penalty and waiver apply: 1. A $500.00 fine for the third and every subsequent offense; and 2. Waiver of the fine of $100.00 if resolution of the first offense includes the animal being spayed or neutered subsequent to giving birth to the litter. d.Violation of section 4-69(d). For violations of section 4-69(d), the owner shall be fined an additional $100.00 per offense unless the owner agrees to have the animal altered as provided in that subsection. (4)County surcharge. For each civil penalty imposed for violation of an ordinance relating to animal control or cruelty in this chapter, a surcharge of $5.00 shall be paid by the person charged to the county. The proceeds from such surcharges shall be used to pay the costs of training for animal control officers. (5)Contesting citation. Anyone who receives a citation under this section may, within ten days of the issuance of the citation, petition the county court for a hearing on the merits. A copy of the petition shall be filed with the animal control office from which the citation was issued. Filing of the petition with the court shall stay the requirement to pay the fine until the date of the hearing scheduled by the court. Failure to appear at the scheduled hearing shall subject the petitioner to the remedies set forth in this chapter. (6)Show cause order. If a person fails to pay the civil penalty, fails to appear in court to contest the citation, or fails to appear in court when required by a citation mandating court appearance, the court may issue an order to show cause upon the request of the governing body of the county. This order shall require such persons to appear before the court to explain why action on the citation has not been taken. If any person who is issued such order fails to appear in response to the court's directive, that person may be held in contempt of court. (d)Failure to sign citation. Any person willfully refusing to sign and accept a citation issued by an officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S. § 775.082 or F.S. § 775.083, or a fine not to exceed $500.00 in addition to the civil penalty. (e)Each act or omission, per animal, a separate offense. A violation of this chapter as to each animal in the care, custody or control of a person constitutes a separate offense, each separate offense being subject to the penalties provided in this chapter. In all situations where penalties are provided for any act or omission, they shall be held to apply to each and every act or omission. When any act or omission is of a continuing character, each and every day's continuance of the act or omission constitutes a separate offense and a presumption of continuing harm and violation of this chapter that may be separately charged and punished according to the provisions of this chapter. (f)Proof of charged infractions. The commission of a charged infraction at a hearing authorized pursuant to this chapter must be proven by a preponderance of the evidence. (Code 1979, § 3-24; Ord. No. 006-2006, § 1; Ord. No. 022-2006, § 7)