Hearing Examiner #: HE-13-MISC-004
City Contact:Humane Society
Hearing Date: 01/25/2013
Description: Humane Society Appeal of Jeffery Slack re "Tank " a perro de presa canario mix
Decision Date: 01/28/2013
came before the Bellingham Hearing Examiner on the 25th
day of January on the appeal of Jeffrey Slack regarding the mandatory alteration of an impounded dog, "Tank", by the Whatcom Humane Society.
At the request of the parties this matter was considered in an expedited manner based on the written submissions of the parties.
In addition to the Bellingham Municipal Code, the following documents were considered as part of the record: Appeal Request and Letter from Jeffrey Slack dated 1/23/13; Whatcom Humane Society Return to Owner/Guardian Contract dated 1/2/13 signed by Jeffrey Slack; Mandatory Spay/Neuter Ordinance Guidelines; Letter of Appeal to Humane Society signed by Jeffrey Slack (undated); Letter from Whatcom Humane Society dated 1/15/13; Animal View Report #A18690370 (4 pages); Case View Report #C01979027 (2 pages); Case View Report #C01967625 (1 page); Case View Report #C01958453 (2 pages); E-mail from City Hall Central Receptionist dated 1/23/13.
I. FINDINGS OF FACT
1. On December 19, 2012, "Tank", a one year, 10 month old unaltered male Perro de Presa Canario Mastiff dog was impounded by the Whatcom Humane Society from the Villa Inn on N. Samish Way in Bellingham. The animal control officers received a report of an abandoned dog in a room at the motel from the motel manager/owner. The property owner stated that the dog had been left unattended in the room and requested that the Humane Society remove the animal. The dog was not currently licensed at the time. The officers left a notice on the door to the room that the dog had been impounded.
2. Jeffrey Slack contacted the Humane Society regarding redemption of the dog and was informed the charges that would be required prior to redemption, including the impound fee, boarding fees and a license fee. Mr. Slack indicated that he did not have the funds to redeem the dog at that time and that he would need more time to obtain the funds. He redeemed the dog on January 2, 2013, paying over $300.00 in fees. Mr. Slack signed the notice indicating that a second impound of Tank within 12 months would result in the mandatory altering of the dog prior to redemption.
3. Animal control officers had a prior contact with "Tank" and Mr. Slack on December 8, 2012. Bellingham Police officers contacted the Humane Society for assistance when they observed a dog in the back of a pick-up truck unattended for more than one hour without food or water. Mr. Slack arrived back at the pick-up while the officers were present and was allowed to leave with Tank.
4. On January 6, 2013 an animal control officer was dispatched to an apartment on W. Maplewood Avenue in Bellingham on a report of a resident requesting assistance with a dog left at her residence. The residence was requesting that the Humane Society remove the dog. The resident reported that the dog had been left at her residence and she did not know when or if the owner would return. The officer received reports that the dog had been used to threaten and antagonize people and that it had been abused and kicked. The officer found Tank in the residence and, at the request of the property owner, impounded the dog.
5. The animal control officer had been present at the W. Maplewood location prior to the January 6, 2013 impound and observed Mr. Slack with Tank and the witnesses. The officer had been in the area on another call when he witnessed Mr.Slack yelling at one of the witnesses. The witness indicated that he had called the police after Mr. Slack threatened him with the dog. The witness indicated that the resident had opened the door and let Tank out unleashed and unattended and that Tank had diarrhea which dripped on his belongings. An altercation ensued regarding cleaning up the mess. The witnesses requested that the officer remain until Police arrived. The animal control officer remained for about five minutes and then left before Police came. Mr. Slack left the property after the altercation.
6. Jeffrey Slack again contacted the Humane Society and was informed that Tank would be subject to the mandatory altering provisions of the Bellingham Municipal Code prior to release. He indicated that he wished to appeal.
7. Mr. Slack's appeal to the Humane Society was denied by Director Laura Clark in a written determination dated January 15, 2013. Mr. Slack attempted to appeal this decision but filed the appeal in the wrong jurisdiction, with the Whatcom County Hearing Examiner. Upon discovering his error he contacted the Humane Society requesting additional time and instructions for filing an appeal. He eventually filed the appeal with the Bellingham Hearing Examiner on January 23, 2013.
8. Both Mr. Slack and the Humane Society requested expedited review, based on the written submittals. Mr. Slack indicated he would file additional materials on or before January 25, 2013 but no additional materials were submitted.
9. The parties were informed on January 25, 2013 that the appeal was being denied, with a written decision to follow.
10. The Humane Society records indicate that Mr. Slack did not have a telephone. Contact with Mr. Slack was in person or through other individuals.
11. Mr. Slack indicated in his appeal statements that on the occasion of the first impound Tank as left in his friend's motel room with her permission while he was helping the friend move her belongings to another location. He says he left the dog secure in the room and returned to find that it had been impounded. He states that the second impound occurred while he left Tank with a friend while he was shopping and that he returned after about one and one-half hours to find the dog had been impounded. He states that the dog had diarrhea because of a change in diet and that the fried called the Humane Society because she thought Tank was ill and had messed on the stairs to the residence. Mr. Slack states that Tank is a rare breed, valued at about $5,000.00 and that he wishes to use Tank for breeding purposes. He also states that he plans to move to Tennessee and start a kennel.
12. The Humane Society witness reports indicate that Mr. Slack had engaged in an altercation with another resident of the complex after Tank had experienced diarrhea that dripped onto his belongings and that Mr. Slack had threatened the resident with the dog. The records also indicate reports of abuse of the dog.
II. CONCLUSIONS OF LAW
1. BMC 7.08.090 provides that an unaltered dog that is impounded more than once during a 12 month period shall be altered prior to release after the second impound unless the Humane Society determines that the owner has shown good cause to excuse the circumstances leading to the impound. The Humane Society's determination is subject to appeal to the Hearing Examiner but review is limited to whether the Director's decision was arbitrary or capricious.
2. BMC 7.08.060 provides that dogs are subject to impound within the City of Bellingham under certain circumstances, including, but not limited to, if they are found off the premises of the owner and not under the control of the owner or keeper, if they are found without a required license and not in the presence of the owner/keeper, or if they are left on other public or private property and the owner of the property requests that the dog be removed, stating the reason for the request.
3. Tank was impounded under circumstances authorized by the Bellingham Municipal Code.
4. There is no dispute that Tank was impounded by Bellingham animal control officers twice within a 12 month period. In this case, the dog was impounded for the second time within four days of release from the first impound.
5. There was sufficient evidence in the record upon which the Director could conclude that the Appellant had not shown good cause that the circumstances leading to the impoundment of Tank should be excused.
6. The Director's decision not to excuse the circumstances leading to the impoundment of Tank and to require mandatory alteration of Tank prior to redemption, as provided in BMC 7.08.090 was not arbitrary or capricious.
7. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.
The appeal is denied. The determination of the Director was not arbitrary or capricious.
ENTERED this 28th
day of January 2013.
Bellingham Hearing Examiner