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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


City of Carpinteria vs Larry Burkhart

Case No: 1439588
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Petition to Determine if Dog is Potentially Dangerous

# 1439588 CITY OF CARPINTERIA V. LARRY K. BURKHART Date: January 27, 2014 Matter: Petition to determine if dog is potentially dangerous Tentative Ruling: Petitioner City of Carpinteria has filed a petition to determine if a white and brown male American Staffordshire pit-bull named Jake, owned or kept by respondent Larry K. Burkhart, is a potentially dangerous dog. The petition is based upon the provisions of Food & Agriculture Code §§ 31601, et seq., which set forth a progressive statutory scheme designed to address the threat to public health and safety posed by vicious and potentially dangerous dogs. This law allows a dog to be declared “potentially dangerous” under specified circumstances, including when the dog has, when unprovoked, on two separate occasions within a 36-month period, killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog. F&AC § 31602(c). Such a finding has consequences, including requirements that the dog be properly licensed and vaccinated (§ 31641), be kept indoors or in a securely fenced yard from which it cannot escape and into which children cannot trespass when on the owner’s property, and may only be off premises if restrained by a substantial leash of appropriate length under the control of a responsible adult (§ 31642), and a requirement that animal control be advised if the dog dies, or is sold, transferred, or permanently removed from the city or county where the keeper resides (§31643). If there are no additional instances of proscribed behavior within 36 months from the date the dog is designated potentially dangerous, the dog will be removed from the list of potentially dangerous dogs. That can happen earlier if the owner demonstrates a change in circumstances that has mitigated the risk to public safety. (§ 31644). If, however, the dog declared potentially dangerous has further instances of proscribed behavior, or if the owner does not comply with the limitations set forth in Sections 31641- 31643, the dog can be declared “vicious.” F&AC § 31603(c). Under Section 31645, a dog determined to be vicious may be destroyed if its release would create a significant threat to the public health, safety, and welfare; if not destroyed, conditions must be imposed to protect such public health, safety, and welfare. § 31645. Here, the City has presented declarations, including that of the City’s Code Compliance/Animal Control Officer, David Hernandez, establishing that animal control received a call from Respondent Burkhart on 5/1/13, informing them that Jake had strayed off the property and attacked a Retriever named Hershey, causing a puncture wound. Hershey’s owner, Dale Frary, provided a declaration describing the incident, in which he was walking Hershey on a leash and saw Jake sitting in a car. Jake suddenly ran toward them and attacked Hershey, going for her throat and pinning her to the ground. Ultimately, Mr. Burkhart was able to retrieve a lease and control Jake, who received a puncture wound. Mr. Frary also suffered a contusion to his face. Animal control sent Burkhart a code compliance letter on 5/8/13, advising him that the attack on Hershey constituted the first incident of potentially dangerous behavior under F&AC § 31602(c), and warned that if Jake exhibited further potentially dangerous behavior, the City would petition to have Jake determined a potentially dangerous dog. Burkhart was issued an administrative citation with a $100 penalty, which he paid. On December 2, 2013, animal control was dispatched after a 911 call was received about a stray pit bull terrier. It was learned that Tamie Jo Blais was walking her dogs, when Jake jumped the fence and attacked her dogs. Ms. Blais has provided a declaration describing the incident, stating she was walking both of her dogs (Willie and Jack, the latter of which had a cone around his neck after a recent vet visit) on retractable leashes, when she saw Jake in a yard enclosed with a wrought iron fence. As they walked by on the sidewalk, Jake started growing and charged at the fence, getting his head stuck in it. She crossed the street to get away from him, and when she looked back at him after doing so, he jumped the fence and charged them. She turned her back, and Jack slammed into her body. She heard her dog Jack yelp, and turned to see that Jake had Jack by the shoulder. A man driving by stopped to help, and was able to get her dogs away. She grabbed Jake by his collar, after which a woman came out of the residence to gain control of him. She was scratched, and there was a lot of blood. Jack suffered a puncture wound, which had to be cleaned and stapled shut, and he was given antibiotics. The man who assisted was Ricardo Zuniga, who has also provided a declaration describing the incident. Burkhart was sent a second code compliance letter about the incident, advising him that the City would be filing this petition. He was issued an administrative citation with a $200 penalty for allowing Jake to stray off the property. This petition was then filed on January 10, 2014. City contends that the two incidents show there is probable cause to believe that Jake should be declared potentially dangerous. They seek to have Burkhart fined $500 for each future violation under Section 31662, ordered to comply with Sections 31641-31643, and ordered to wear a muzzle at all times when off the owner’s property. Anaysis: The owner has the ability to appear in court and present evidence as to why Jake should not be declared potentially dangerous. Because there is no way of knowing what evidence he might present (e.g., that the dog was provoked, etc.), there can be no definitive tentative ruling. However, the incidents which occurred, which are supported by the evidence presented with the petition, would support a finding that Jake is “potentially dangerous” under Food & Agriculture Code section 31602(c). Specifically, in each instance, Jake left the owner’s property on two occasions within a 36 month period and inflicted injury upon other domestic animals. Assuming there is no issue of provocation, or other evidence presented which shows that Jake is not potentially dangerous, it would appear appropriate to make the finding, and order Jake to be subject to the additional requirements of Sections 31641- 31643, and ordered to wear a muzzle off the property.
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