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Agenda - 2/19/2008WOODBURN CITY COUNCIL SPECIAL MEETING AGENDA FEBRUARY 19, ZOOH - 6:00 P.M. 1. CALL TO ORDER AND FLAG SALUTE 2. ROLL CAII 3. GENERAL BUSINESS -Members of the public wishing to comment on items of general business must complete and submit a speaker's card to the City Recorder prior to commencing this portion of the Council's agenda. Comment time may be limited by Mayoral prerogative. A. City Administrator Recruitment 4. ADJOURN TO WORKSHOP 5. WORKSHOP A. Conduct a Workshop On Changes to the Animal Control Ordinance "'Habra interpretes disponibles Para aquellas personas que no hablan Ingles, previo acuerc{o. Comunic~uese al 0503) 980-2485." February 19, 2008 City Council Special Workshop Agenda Page i ~~~o FRO~YI THE CITY~iD1i~IINISTRfiTOR'S OFFIC'E' TO: City Council and Mayor FROM: John C. Brown, City Administrator DATE: February 14, 2008 SUBJECT: FEBRUARY 19, 2008 SPECIAL COUNCIL MEETING You were given a staff report and discussion draft of the animal control ordinance at the January 14, 2008 City Council meeting. No changes have been made to the draft ordinance since that time nor is there any new material to consider. A copy of that staff report and draft ordinance is attached for your use. 11H ~~~ OODBUR W N lncorpornreA 18R9 ~ ,~ January 14, 2008 TO: Honorable Mayor and City Council FROM: John C. Brown, City Administrat SUBJECT: Draff Animal Control Ordinance RECOMMENDATION: It is recommended the City Council: 1. Provide input regarding the suggested provisions of the attached animal control ordinance; and 2. Determine a preferred means for obtaining community involvement in the ordinance adoption process. BACKGROUND: Then-Mayor Jennings appointed a Livability Task Force in 1999, which was active until approximately 4 years ago when a budget reduction eliminated staff support for the group. Among its tasks was a review of certain City ordinances, to modernize and apply current community standards to them. The group worked with my office, the City Attorney's Office, and the Police Department in looking at some of the ordinances in greatest need of attention. The Task Force met in public, and incorporated public input into its recommendations for ordinance changes. A consolidated Traffic Ordinance (combining and streamlining three former ordinances addressing traffic, parking and abandoned vehicles) was discussed and revised by the Task Force and passed by the Council. Anew Noise Ordinance was created, endorsed by the Task Force, and then adopted by the Council. A comprehensive rewrite of the existing Nuisance Ordinance was discussed with the Task Force then passed by the Council. The Task Force then targeted completion of the Animal Control ordinance, and worked with staff and the public for several months to discuss changes. Staff advised changes had to be carefully evaluated to assure that any changes are consistent with current law. That analysis took a back seat to other demands on legal and law enforcement staff during the past few years, until the Council recently requested the matter be given higher priority. Agenda Item Review: City Administrates-~~ City Attorney V~~'~ Finance 61 Honorable Mayor and City Council January 14, 2008 Page 2 DISCUSSION: The attached ordinance and accompanying staff report were developed in cooperation by the City Attorney's Office and the Police Department. As the material indicates, the ordinance was completely redrafted for consistency with the current state of the law, and in recognition of some of the animal control issues that were addressed in recent years at the staff level or by your Council. Policy considerations have been addressed by staff in the manner they believe appropriate. These are highlighted in the staff report in the event you would like to see them treated differently. Staff considers the ordinance a working draft. Unlike some ordinances which have limited application or effect, the animal control ordinance may have implications for many of Woodburn's residents. Rules addressing livestock or exotic animals, the duties of those keep animals, and what constitutes dangerous dogs and how cases involving them are to be handled, are probably not widely understood. For the sake of public information and input, Staff recommends the Council undertake a public review of a draft ordinance, prior to adopting a final version. Among the alternatives available for that review are: • Convening a task force for the limited purpose of reviewing changes, soliciting public comment, and recommending a final version to the Council. Members of the original Livability Task force may have an interest in serving on such a group. • Conducting neighborhood meetings, through the Neighborhood watch program. This could include contact with approximately 40 neighbor- hoods across the City; it will not reach residents in areas where a neighborhood watch groups don't exist, or aren't active. • Conducting Council workshops on the matter. • Conducting public hearings on the matter. • Other alternatives as determined by the Council. At least three of these options can be televised, if conducted in the Council Chambers, to inform and involve the maximum number of residents. FINANCIAL IMPACT: None. 62 % ' \ /, 9r~Y~.~ , '~IOODBUR j~ (neu rVcrgt er( 18F9 December 3, 2007 TO: Honorable Mayor and City Council FROM: N. Robert Shields, City Attorney Scott Russell, Chief of Police SUBJECT: Draff Animal Control Ordinance RECOMMENDATION: Review the report and draft ordinance for future discussion. BACKGROUND: Woodburn's existing animal control ordinance is based upon a template originally drafted by the League of Oregon Cities (LOC), which was adopted in numerous Oregon jurisdictions. The City Council has amended the ordinance over the years but has never completely rewritten it. Since originally drafting the ordinance template, LOC has made no efforts to revise it. Therefore, rather than continue to make ad hoc amendments, it is preferable for the City to adopt a completely new ordinance addressing the different aspects of animal control. In drafting the new ordinance, numerous ordinances in many municipalities were reviewed and considered. A large number of Oregon cities use county animal control programs and many cities were found to have outdated ordinances. The new ordinance is not based upon a template, but was drafted specifically for Woodburn. While there are a number of policy determinations that remain for Council discussion, staff has spent a significant amount of time on the operational and legal aspects. In this regard, we believe that the new ordinance is based upon the current best practices in animal control and that it will be a better tool for the City to use in public education and enforcement. Agenda Item Review: City Administrator City Attorney Finance 63 Honorable Mayor and City Council December 3, 2007 Page 2 DISCUSSION: What follows is a summary of the specific sections of the new ordinance and accompanying rationale for how the language was drafted. Where there is a legal or operational consideration, this is explained. Where there is a major policy determination, this is pointed out. Finally, relevant comparisons are made to changes from the language of the existing ordinance. Whereas Clauses -Authority of the City "Whereas clauses" explain the Council's actions and are important when an ordinance is challenged in court. The old ordinance contained no whereas clauses. First, the whereas clauses to the new ordinance provide that Woodburn is establishing an animal control program, as permitted by state law, except in areas where state law specifically preempts local regulations or where the ordinance does not address the subject. Second, the whereas clauses reference the City's ability to completely prohibit the keeping of wildlife and exotic animals under ORS 609.205 (which the new ordinance does). Prohibiting wildlife and exotic animals is obviously a policy choice for the City Council. Even if the City does not address this, the keeping of these animals is subject to state and federal law requirements. However, the concerns are as follows: (1) If state and federal permits are complied with, it is possible that such animals could be kept within the City. An extreme example of this is Wild Cat Haven, a big cat facility near Sherwood that draws assorted wild cats from all over the world. (2) Any City permit system for exotic animals has civil liability implications because the City is approving the keeping of animals within its boundaries that it knows to be dangerous. The existing ordinance allows the keeping of exotic animals under a permit system (although, historically, the City has never received a permit application). Finally, the whereas clauses reference the Council's recognition of its "authority and obligation to regulate animals to protect the public health and safety" balanced against its "obligation to act fairly and provide adequate due process for keepers of animals." This is important to articulate because, in extreme cases, the municipal judge has the power under the new ordinance to order that an animal be euthanized. Dogs are considered personal property in Oregon (ORS 609.020) and since euthanasia involves the taking of property by 64 Honorable Mayor and City Council December 3, 2007 Page 3 the government, the due process obligation must be recognized in order for the ordinance to be upheld. Relationship to Other Laws Animal law is complicated in that various types of animals are regulated simultaneously by federal, state and local statutes. Also, the applicable law is both civil and criminal. The new ordinance is a civil regulation. When criminal law provisions exist outside of the ordinance to address certain conduct (i.e., cruelty to animals, animal fighting, animal neglect), these provisions were not duplicated in the new ordinance because these types of violations would be addressed through the criminal enforcement system. Keeping of Certain Animals Prohibited State law defines "wildlife" broadly as "fish, shellfish, wild birds, amphibians and reptiles, feral swine as defined by State Department of Agriculture rule and other wild mammals." ORS 496.004(19). Similarly, there is a broad state law definition for "exotic animals." ORS 609.305 defines an "exotic animal" as "any member of the family Felidae not indigenous to Oregon, except the species Felis catus (domestic cat); any nonhuman primate; any wolf (Canis lupus); any nonwolf member of the family Canidae not indigenous to Oregon, except the species Canis familiaris (domestic dog); and any bear, except the black bear." Section 2 of the new ordinance is a specific list of types of animals not permitted in the City. This list was arrived at by reviewing numerous other animal control ordinances and considering the practical code enforcement aspects. A conscious choice was made to "spell out" the animal types rather than merely reference portions of state laws or administrative rules. This approach makes it clear to the public and to code enforcement personnel what specific types of animals are prohibited. Livestock Prohibited Many different definitions exist for the term "livestock." The definition contained in the new ordinance is from ORS 609.125 except that psittacines (i.e., parrots, macaws, parakeets) are not included. Exclusion of livestock in the City has been expressed as a policy choice that the Council wants to make. From a code enforcement perspective, we do not believe that making this policy choice will create many enforcement issues regarding the current keeping of livestock in the City. 65 Honorable Mayor and City Council December 3, 2007 Page 4 Limited Number of Chickens and Ducks Despite the general prohibition on the keeping of livestock, Section 4 of the new ordinance permits keeping a total of three or fewer chickens or ducks. This ordinance provision is similar to the City of Portland's and was drafted in response to a specific issue that previously came before the Council. However, in the discussion with code enforcement, one issue that came up was the keeping of roosters. Because of this concern, we modified Portland's language to include a specific prohibition of roosters. General Duties of Animal Keepers Section 5 of the new ordinance addresses the duties of animal keepers (keeper is broadly defined and includes all owners) and succinctly states their basic responsibilities (i.e., not permitting an animal to run at large, not allowing unreasonable noise, not allowing an animal to destroy property, and removing excrement deposited in public areas.) Even though a dog barking repeatedly could also violate the Noise Ordinance, from a code enforcement perspective it is useful to include a similar noise provision in the Animal Control Ordinance. Placing of Poisonous Food/Leaving Animal in Car Sections 6 (Placing of Poisonous Food Prohibited) and 7 (Confining Animals in Motor Vehicles Prohibited) are important provisions from an enforcement point of view. Leaving an animal by itself in an automobile is not uncommon. Confining an animal in this manner during hot weather can create a serious situation resulting in injury or death of the animal. Doq Licensing Under state law, residents of cities with dog control programs must obtain dog licenses from the county. This is the present practice and will not change. Levels of Dangerous Dogs -Analysis Sections 9 through 17 of the new ordinance are innovative in Oregon and represent a major change in Woodburn's animal control program. The new ordinance specifies a process where the municipal judge has the authority to classify problem dogs based on their behavior. The keepers of the dogs can be 66 Honorable Mayor and City Council December 3, 2007 Page 5 assessed fines and ordered to take certain actions to contain their dogs so as to prevent future dangerous behavior. Understanding how the new ordinance provisions are innovative requires a basic explanation. Cities and counties have two main types of dog ordinances. The first type is a "one bite ordinance." Under a "one bite ordinance," in order to convict someone of "keeping a vicious dog" it is necessary to prove that the person kept the dog with some knowledge that the dog was dangerous. The second type of ordinance is a "classification ordinance." Under a "classification ordinance," dogs are classified, typically based upon breed or for engaging in certain behaviors. Classification ordinances that ban certain breeds (i.e., pit bulls) have been legally challenged with varying results. Classification ordinances based on specified dangerous dog behavior are legally more defensible than classification ordinances based upon breed. Under these ordinances, dogs engaged in certain specified dangerous behaviors are classified by a court and the keeper of the dog has the right to contest the classification. Based upon the level of classification decided upon by the court, the owners must then take certain actions in order to prevent future dangerous behavior by the dog. Woodburn's existing ordinance is a "one bite ordinance," as are the vast majority of the ordinances in Oregon. The disadvantage to this type of ordinance is that unless there are prior documented incidents where the dog is shown to be dangerous (i.e., "one bite"), it may be impossible for the City to prove the offense of "keeping a vicious dog." By way of contrast, the new ordinance is a "classification ordinance" based upon dog behavior. It is based partially upon an ordinance that was developed by Multnomah County. A similar ordinance exists in Eugene and in a handful of other Oregon jurisdictions. This new ordinance classification procedure is innovative because it departs from the traditional "one bite" standard ordinance and takes proactive steps to prevent future dangerous behavior by dogs. However, innovative ordinances are always subject to more legal challenges. Changing in the existing ordinance in this manner is ultimately a policy matter for the Council. Levels of Dangerous Dogs -Procedure If the Council agrees with the behavior classification as a policy matter, the procedure under the new ordinance is as follows: (1) After a dog engages in dangerous behavior (see Section 9) under the ordinance, the keeper is cited into municipal court for keeping a specified level of dangerous dog; (2) If a "not 6? Honorable Mayor and City Council December 3, 2007 Page 6 guilty" plea is entered, the municipal court sets the matter for a hearing on whether the person kept a dog that engaged in the alleged behavior; (3) The keeper has the right to appear at the classification hearing and present any applicable defenses (see Section 10) to the municipal court; (4) After the evidence is taken at the hearing, the municipal judge makes a classification ruling and issues an order. (5) In addition to the payment of civil infraction penalties (see Sections 11 through 14), the municipal court orders the keeper to take certain measures to deal with the level of dangerous dog (see Section 16); (6) If the municipal court classifies a dog's behavior as Level 4 (i.e., the dog caused serious physical injury or death to a person or, while at large, killed another dog or cat), a disposition hearing must be held to determine what to do with the dangerous dog. Level 4 Dangerous Dog Disposition Hearing After the municipal judge classifies a dog's behavior as Level 4, the court must then make a decision as to what do with the dog. Under the new ordinance, the court can order a dog that has committed Level 4 behavior to: (1) be euthanized; or (2) be sent to a secure animal facility at the keeper's expense; or (3) be removed from the City as specified in the ordinance (see Section 17). The reason for these different options is that appellate courts have consistently ruled that due process must be afforded and some discretion must be exercised before a city takes a dog from an owner. There are no Oregon cases that specifically address this, but there is no reason to conclude that Oregon law is any different since due process is required before the government takes property and dogs are considered personal property (ORS 609.020). The disposition procedure for Level 4 dangerous dogs under the new ordinance is drafted to be consistent with the legal guidelines set out by the Washington Supreme Court in Rabon v. City of Seattle. In that case, the court ruled that under Seattle's ordinance the process provide to a dog owner was insufficient because there was a trial on the question of whether the dog was vicious but no opportunity for the owner to address why the dog should not be destroyed. The new ordinance is consistent with the Rabon case because it provides the keeper of a Level 4 dangerous dog the opportunity to be heard at a disposition hearing (see Section 17). By way of comparison, under the existing ordinance, the municipal court has the power to order a vicious dog abated (i.e., destroyed) as a nuisance and the City Attorney's office files motions requesting the court to impound and destroy vicious dogs. However, an important difference is that, under the existing ordinance, once the municipal court orders 68 Honorable Mayor and City Council December 3, 2007 Page 7 destruction the dog, the owner has five days to retrieve the animal from impoundment, pay all impoundment costs, and remove the dog from the City. Under the new ordinance, the disposition of the Level 4 dangerous dog is decided by the municipal court and, even if the dog is ordered removed from the City, certain specific conditions must be complied with. (see Section 17 E) Legal Review of Municipal Court Decision The Woodburn Municipal Court is not a court of record and its decisions on some state law cases are reviewable de novo (i.e., a new trial) by the Marion County Circuit Court. However, this is not true in Writ of Review cases. A Writ of Review is the legal mechanism where a Circuit Court has a limited review of a governmental quasi-judicial decision in a non-land use case. The new ordinance specifies that review of the municipal court's decisions under the ordinance are exclusively by Writ of Review (see Section 21). The Marion County Circuit Court would have jurisdiction to review the law applied by the municipal court and its record and findings. Impoundment Section 18 of the new ordinance provides broad impoundment authority. This is an important operational part of the ordinance. It was reviewed and revised by the police department, was coordinated with the existing Marion County procedures, and is adequate to support ordinance enforcement. Penalties and Legal Actions Monetary penalties under the new ordinance are set out in Sections 11 through 14 and in Section 19. Under Ordinance 1998, the Civil Infraction Ordinance, a list of the monetary maximums for penalties is as follows: (1) $750.00 for a class 1 civil infraction. (2) $500.00 for a class 2 civil infraction. (3) $250.00 for a class 3 civil infraction. (4) $125.00 for a class 4 civil infraction. (5) $100.00 for a class 5 civil infraction. In addition to the monetary penalties, the new ordinance provides that it can also be enforced by filing an action in any court of competent jurisdiction as an additional remedy (see Section 20). 69 Honorable Mayor and City Council December 3, 2007 Page 8 • ~ FINANCIAL IMPACT: There is no financial impact. DISCUSSION DRAFT COUNCIL BILL NO. ORDINANCE NO. AN ORDINANCE CONCERNING THE CARE AND CONTROL OF ANIMALS; ESTABLISHING REGULATIONS AND PENALTIES; AND REPEALING ORDINANCE 1638. WHEREAS, the City of Woodburn is a home rule city with the legal power to regulate animals within its corporate boundary; and WHEREAS, more specifically, ORS Chapter 609 authorizes cities to have an animal control program, to prohibit the keeping of wildlife and exotic animals (ORS 609.205) and to impose reasonable restrictions on the keeping of dogs; and WHEREAS, it is the purpose of this Ordinance to regulate animal behavior so to prevent animals from becoming a nuisance, endangering any person, animal or property, or creating a health hazard; and WHEREAS, the City has the authority and obligation to regulate animals to protect the public health and safety; and WHEREAS, the City also recognizes its obligation to act fairly and provide adequate due process for keepers of animals under this Ordinance; and WHEREAS, this Ordinance is intended to establish a city animal control program and supersedes ORS Chapter 609, except as specifically provided by state law, or where this Ordinance does not provide for a parallel rule, definition, or procedure; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Definitions. For purposes of this Ordinance, these terms are defined as follows: A. ANIMAL. Any nonhuman vertebrate. B. ANIMAL CONTROL OFFICER. A person designated by the Woodburn Chief of Police to enforce this Ordinance. C. AT LARGE. Any animal, excluding domestic cats, that is off the premises of its keeper and is not on a leash held by a person capable of controlling the animal. Page 1 - COUNCIL BILL NO. ORDINANCE NO. 71 DISCUSSION DRAFT D. DOG. Any mammal of the canidae family. E. EUTHANIZE. To put an animal to death in a humane manner by a licensed veterinarian or a certified euthanasia technician. F. KEEP. To have physical custody or otherwise exercise dominion and control over. G. KEEPER. A person or legal entity who owns, or has a possessory property right in an animal or who harbors, cares for, exercises control over, or knowingly permits any animal to remain on premises occupied by that person. H. LIVESTOCK. Animals, including but not limited to fowl, horses, mules, burros, asses, cattle sheep, goats, llamas, emu ostriches, swine or any furbearing animal bred and maintained for commercial purposes and kept in pens, cages, or hutches. I. MUNICIPAL JUDGE. The judge of the Woodburn Municipal Court. J. PERSON. Any natural person, association, partnership, firm or corporation. K. PHYSICAL DEVICE OR STRUCTURE. A tether, trolley system, other physical control device or any structure made of material sufficiently strong to adequately and humanely confine the animal in a manner that would prevent it from escaping. L. PEACE OFFICER. Has the meaning provided in ORS 161.015 (4). M. PHYSICAL INJURY. Physical impairment or as evidenced by scrapes, cuts, punctures, bruises or physical pain. N. POLICE DOG. A dog that is trained for law enforcement purposes and is under the control of a peace officer. O. SECURE ANIMAL SHELTER. An animal shelter that agrees to accept an animal and that agrees to the following conditions: 1. Not to release the animal from the shelter for the rest of the animal's natural life; 2. Not to allow the animal to come into contact with the general public for the rest of the animal's natural life; Page 2 - COUNCIL BILL NO. ORDINANCE NO. 72 DISCUSSION DRAFT 3. To indemnify, defend, and hold the City harmless from any and all future claims of any kind or nature whatsoever relative to past or future care and custody of the dog and to the dog's future behavior; 4. To notify the City if the shelter goes out of business or can no longer keep the animal and to abide by the City's disposition instructions. P. SECURE ENCLOSURE. Shall be any of the following: 1. A fully fenced pen, kennel or structure that shall remain locked with a padlock or combination lock. Such pen, kennel or structure must have secure sides, minimum of five feet high, and a secure top attached to the sides, and a secure bottom or floor attached to the sides of the structure or the sides must be embedded in the ground no less than one foot to prevent digging under it. The structure must be in compliance with the City's building code and ordinances; or 2. A house or garage. When dogs are kept inside a house or garage as a secure enclosure, the house or garage shall have latched doors kept in good repair to prevent the accidental escape of the dog. A house, garage, patio, porch or any part of the house or condition of the structure is not a secure enclosure if the structure would allow the dog to exit the structure of its own volition Q. SERIOUS PHYSICAL INJURY. Any physical injury which creates a substantial risk of death or which causes disfigurement, or protracted loss or impairment of health or of the function of any body part or organ. Section 2. Keening of Certain Animals Prohibited. A. No person shall keep, within the city, any of the following animals of either thoroughbred or hybrid stock or pedigree: 1. All poisonous animals, including rear-fang snakes; 2. Apes such as chimpanzee (Pan), gibbons (Hylobates), gorillas (Gorilla), orangutans (Pongo), and siamangs (Symphalangus); 3. Baboons (Papio, Mandrillus); 4. Bears (Ursidae); 5. Bison (Bison); 6. Cheetahs (Acinonyx jubatus); 7. Crocodilians (Crocodilia); 8. Constrictor snakes with a maximum size at maturity of 15 inches or more, including but not limited to boa, python, and anaconda; 9. Coyotes (Canis latrans); Page 3 - COUNCIL BILL NO. ORDINANCE NO. ?3 DISCUSSION DRAFT 10. Deer (Cervidae), such as white-tailed deer, elk, antelope, and moose; 1 1. Elephants (Elephas and Loxodonta); 12. Game cocks and other fighting birds; 13. Hippopotami (Hippopotamidae); 14. Hyenas (Hyaenidae); 15. Jaguars (Panthera onca); 16. Leopards (Panthera pardus); 17. Lions (Panthera leo); 18. Lynxes (Lynx); 19. Monkeys, old world (Cercopithecidae), new world; 20. Ostriches (Struthio); 21. Piranha fish (Characidae); 22. Pumas (Fells concolor), such as cougars, mountain lions, and panthers; 23. Raptors, such as condors, eagles, kites, falcons, osprey, owls, harriers, hawks, b uzzards and vultures (Falconiformes and Stigiformes orders) 24. Rhinoceroses (Rhinocero tidae); 25. Serval Cats (Fells serval or Leptailarus serval) 26. Sharks (Class Chondrichthyes); 27. Snow leopards (Panthera uncia); 28. Tigers (Panthera tigris); or 29. Wolves (Canis lupus and hybrids). B. The provisions of this section shall not apply to: 1. An educational or medical institution, if the animal is kept for the primary purpose of instruction, study or research; or 2. A circus, carnival or other similar itinerant show business, if the animal is kept for the primary purpose of public entertainment; or 3. A veterinarian employed by the federal government or currently licensed by the Oregon State Veterinary Examining Board, if the animal is kept for the primary purpose of diagnosis or treating. Section 3. Keeaina of Livestock Generally Prohibited. Except as permitted by this Ordinance, no person shall keep livestock within the City. Section 4. Keeoing of Limited Number of Chickens or Ducks Permitted. Notwithstanding Section 3 of this Ordinance, a person shall be allowed to keep a total of three or fewer chickens or ducks within the City. This section shall not be construed to as to allow the keeping of roosters, which are prohibited. Page 4 - COUNCIL BILL NO. ORDINANCE NO. 74 DISCUSSION DRAFT Section 5. Duties of Animal Keeaers. A. It shall be a violation of this Ordinance for a keeper of an animal to: 1. Permit an animal to be at large. 2. Permit an animal to cause unreasonable noise at any time of the day or night by repeated barking, whining, screeching, howling, braying or other like sounds which may be heard beyond the boundary of the keeper's property. 3. Permit an animal to damage or destroy property of persons other than the keeper. 4. Fail to immediately remove any excrement or other solid waste deposited by an animal in any public area. Section 6. Plcacin4 of Poisonous Food Prohibited. No person shall knowingly place food of any description containing poisonous or other injurious ingredients in any area reasonably likely to be accessible to animals, except as provided by law for nuisance, vector, or predator control. Section 7. Confining Animals in Motor Vehicles Prohibited. A. No animal shall be confined within or on a motor vehicle at any location within the city under such conditions as may endanger the health or well-being of the animal, including but not limited to dangerous temperature, lack of food, water or confinement with a dangerous animal. B. An animal control or police officer is authorized to remove an animal from a motor vehicle when the officer reasonably believes that the animal is confined in violation of this section. Any animal so removed shall be delivered to the animal control Shelter after the removing officer leaves written notice of the removal and delivery, including the officer's name, in a conspicuous, secure location on or within the vehicle. Section 8. Doa Licensin4. Any person owning or keeping a dog within the City shall purchase for such a dog a license as required under the provisions of ORS 609.100. Section 9. Levels of Dangerous Dogs. A. For purposes of this Ordinance, the classification of various levels of dangerous dogs shall be based upon these specific behaviors exhibited by the dogs. Page 5 - COUNCIL BILL NO. ORDINAN'~E NO. 75 DISCUSSION DRAFT 1. Level 1 behavior is established if a dog, while at large, is found to menace, chase, display threatening or aggressive behavior or otherwise threaten or endanger the safety of any person. 2. Level 2 behavior is established if a dog, while at large, bites or causes physical injury to any dog or cat. 3. Level 3 behavior is established if a dog bites or causes physical injury to any person. 4. Level 4 behavior is established if: (a) A dog causes the serious physical injury or death of any person; or (b) A dog, while at large, kills a dog or cat. Section 10. Classification of Dogs by Municipal Judge. A. In addition to any other penalties imposed under this Ordinance, the municipal judge shall have the power to classify dangerous dogs based upon the dogs' behavior. This classification shall be based upon evidence proving the dogs' behavior by a preponderance of the evidence. The following affirmative defenses may be presented: 1. The dog's behavior was the direct result of the victim abusing or tormenting the dog, or 2. The dogs' behavior was directed against a trespasser on the keeper's property. B. Police dogs are not subject to classification by the Municipal Judge under this Ordinance. Section 11. Keeping of Level 1 Dangerous Doa; Penalty. It shall be unlawful for any person to keep a Level 1 Dangerous Dog within the City. Any person who violates this section commits a Class 4 civil infraction. Section 12. Keeping of Level 2 Dangerous Dog; Penalty. It shall be unlawful for any person to keep a Level 2 Dangerous Dog within the City. Any person who violates this section commits a Class 3 civil infraction. Page 6 - COUNCIL '_ NO. ORDINA[ °O. ?6 DISCUSSION DRAFT Section 13. Keeping of Level 3 Dangerous Dog; Penalty. It shall be unlawful for any person to keep a Level 3 Dangerous Dog within the City. Any person who violates this section commits a Class 3 civil infraction. Section 14. Keeping of Level 4 Dangerous Dog; Penalty. It shall be unlawful for any person to keep a Level 4 Dangerous Dog within the City. Any person who violates this section commits a Class 1 civil infraction. Section 15. Keeping of Dog Pursuant to Court Order Permitted. Notwithstanding Section 11 through 14 of this Ordinance, dogs classified as dangerous dogs by the Municipal Judge may be lawfully kept pursuant to the terms of a Municipal Court order. Section 16. Disposition of Dangerous Dog Cases. A. In addition to any other penalties imposed under this Ordinance, the keeper of a dog found by the municipal judge to be a dangerous dog shall be ordered by the court to do the following: 1. If the dog was found to have engaged in Level 1 behavior, the keeper shall provide a physical device or structure that prevents the dog from reaching any public right-of-way or adjoining property, and shall restrict the dog by such a device or structure whenever the dog is outside the keeper's home and not on a leash off the keeper's property. 2. If the dog was found to have engaged in Level 2 or Level 3 behavior, the keeper shall provide a secure enclosure and confine the dog within such enclosure whenever the dog is not on a leash off the keeper's property or inside the home of the keeper. Section 17. Disposition of Level 4 Dangerous Dog Cases; Disposition Hearing. A. If the dog was found by the municipal judge to have engaged in Level 4 behavior, the municipal judge shall determine either: (1) that the City be ordered to euthanize the dog; (2) that the dog be sent at the keeper's expense to a secure animal shelter; or (3) that the dog be removed from the City as specified in this Ordinance. The keeper shall be responsible for all fees and charges related to the care and keeping of the dog. B. Before ruling on the final disposition of the dog, the municipal judge shall notify the ker_ ar that the dog was found to have engaged in Level 4 behavior, shall ex~ fo the keeper the Court's o~y tinny under this Ordinance, Page 7 - COUNCIL ORDINAL ?? DISCUSSION DRAFT and shall then set the matter for a disposition hearing at the earliest possible date found acceptable to the municipal judge. C. At the disposition hearing, the keeper shall be afforded the opportunity to appear and address the municipal judge regarding which option available under this Ordinance is appropriate for the dog. The municipal judge shall also allow the City to be heard on the question of appropriate disposition. D. The municipal judge will consider ordering that the dog be sent to a secure animal shelter only at the request of the keeper. The keeper shall bear the burden of establishing that an animal shelter is available that meets the criteria for a secure animal shelter, that the shelter will accept the dog, and that the keeper is willing and able to pay all expenses for transporting the dog. E. Prior to releasing an animal for removal from the City pursuant to this Ordinance the municipal judge shall require: (1) proof that an appropriate place outside of the incorporated limits of the City is available to keep the dog; (2) proof that the animal control authority in the jurisdiction to which the dog is being moved has been informed of the relocation and has had an opportunity to address the Court; (3) agreement by the dog's owner to indemnify, defend, and hold the City harmless from any and all future claims of any kind or nature whatsoever relative to past or future care and custody of the dog and to the dog's future behavior. F. After conclusion of the disposition hearing, the municipal judge shall issue an order finding that the dog has engaged in Level 4 behavior and providing for disposition of the dog. This order shall include findings justifying the Court's action. A copy of the order, including notice of the right to file a Writ of Review in Marion County Circuit Court shall be sent by regular and certified mail, return receipt requested, or delivered by personal service to the keeper of the dog. Section 18. Shelter Oaerations: Imaoundment. Release and Disaosal. A. The Marion County Animal Control Shelter is designated as the facility to receive, care for and confine any animal delivered to its custody under the provisions of this Ordinance. This impound facility shall be operated by Marion County Animal Control for the conduct of necessary business concerning impounded animals. Impounded animals may be temporarily housed in a kennel designated by the Chief of Police prior to their transport to the Marion County Animal Shelter. B. Any animal may be impounded by an animal control officer or peace officer and held at the facility when it is the subject of a violation of this Page 8 - COUNCIL BILL NO. ORDINANCE NO. 78 DISCUSSION DRAFT Ordinance, when an animal requires protective custody and care because of mistreatment or neglect by its keeper, or when otherwise ordered impounded by a Court. C. Impoundment is subject to the following holding period and notice requirements: 1. An animal bearing identification shall be held for five working days before any action is taken to dispose of the animal. The City shall make reasonable effort within twenty-four hours of impoundment to notify the keeper, shall send by registered or certified mail, a written notice of the impoundment to the last known address of the keeper, advising the keeper of the impoundment, the date by which redemption must be made and the fees payable prior to redemption release. 2. An animal that does not bear identification shall be held for three working days before any disposition may be made. 3. Animals held for period prescribed herein, or as otherwise required by ORS 433.340 to 433.390, and not redeemed by the keeper, shall be subject to disposal consistent with Marion County Animal Control procedures. 4. In instances where a peace officer impounds animals from a person taken into custody, the peace officer shall issue a receipt to the person reciting the redemption requirements under this Ordinance and shall serve this receipt upon the person. D. Unless restrained by Court order, the impound facility shall release any impounded animal to the keeper or the keeper's authorized representative upon payment of all applicable impoundment, shelter, care, medical costs, license fees or other applicable fees or deposits. E. An animal held for the prescribed period and not redeemed by its keeper or the keeper's representative or agent becomes the property of Marion County and may be released for adoption or otherwise disposed of pursuant to Marion County Rules and Regulations and applicable state law. Section 19. Penalty for Unsaecified Violations. The violation of any section of this Ordinance where the penalty is not specified constitutes a Class 4 civil infraction. Section 20. Authorized Enforcement Officers. The following City officials are authorized to enforce this Ordinance: Page 9 - COUNCIL BILL NO. ORDINANCE NO. 79 DISCUSSION DRAFT A. An animal control officer; B. A peace officer; and C. The Woodburn City Administrator or designee. Section 21. Institution of legal Proceedings. The City Attorney, acting in the name of the City, may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any provision of this Ordinance as additional remedy. Section 22. Exclusive Review in Marion County Circuit Court. All determinations by the municipal judge under this Ordinance shall be final and subject only to Writ of Review in the Marion County Circuit Court pursuant to ORS Chapter 34. Section 23. Savin4s Clause. The repeal of any ordinance by this Ordinance shall not preclude any action against any person who violated the ordinance prior to the effective date of this Ordinance. Section 24. Severability. The sections and subsections of this Ordinance are severable. The invalidity of any section or subsection shall not affect the validity of the remaining sections and subsections. Section 25. Repeal. Ordinance No. 1638 is hereby repealed. Approved as to form: City Attorney Approved: Date Kathryn Figley, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 10 -COUNCIL BIL ~. ORDINANCE 80 Feedback Received On Discussion Draft / Section 4 - Keeping of a Limited of Chickens or Ducks Permitted Under the Discussion Draft, Livestock is not permitted in the City but a person is allowed to keep a total of three or fewer chickens or ducks (no roosters). This language is based on Portland's ordinance was added to the draft based upon a earlier case before the City Council. FEEDBACK -Some Council members and a member of the public have questioned the need for this exception. STATUS -This is a policy decision for the City Council. / Section 3 -Keeping of Livestock Prohibited Section 3 prohibits "livestock", which is defined to include "fowl". FEEDBACK -Some Council members have pointed out that "fowl" is undefined. Under the main state law section that defines "livestock" (Chapter 609), "fowl" is also undefined. STATUS -After the Public Workshop on the Discussion Draft, a definition of fowl will be added. / Section 2 A. 8 -prohibits the keeping of constrictor snakes FEEDBACK - A Council member pointed out that the language of this subsection could be revised. STATUS -Staff will revise this section after Council discussion. r/ ~Cr ~4 ~~~~ 1~.~ ~TOODBUR j~j In, orl~c rn r<rl IF,Cq December 3, 2007 TO: Honorable Mayor and City Council FROM: N. Robert Shields, City Attorney Scott Russell, Chief of Police SUBJECT: Draff Animal Control Ordinance RECOMMENDATION: Review the report and draft ordinance for future discussion. BACKGROUND: Woodburn's existing animal control ordinance is based upon a template originally drafted by the League of Oregon Cities (LOC), which was adopted in numerous Oregon jurisdictions. The City Council has amended the ordinance over the years but has never completely rewritten it. Since originally drafting the ordinance template, LOC has made no efforts to revise it. Therefore, rather than continue to make ad hoc amendments, it is preferable for the City to adopt a completely new ordinance addressing the different aspects of animal control. In drafting the new ordinance, numerous ordinances in many municipalities were reviewed and considered. A large number of Oregon cities use county animal control programs and many cities were found to have outdated ordinances. The new ordinance is not based upon a template, but was drafted specifically for Woodburn. While there are a number of policy determinations that remain for Council discussion, staff has spent a significant amount of time on the operational and legal aspects. In this regard, we believe that the new ordinance is based upon the current best practices in animal control and that it will be a better tool for the City to use in public education and enforcement. Agenda Item Review: City Administrator City Attorney Finance 63 Honorable Mayor and City Council December 3, 2007 Page 2 DISCUSSION: What follows is a summary of the specific sections of the new ordinance and accompanying rationale for how the language was drafted. Where there is a legal or operational consideration, this is explained. Where there is a major policy determination, this is pointed out. Finally, relevant comparisons are made to changes from the language of the existing ordinance. Whereas Clauses -Authority of the City "Whereas clauses" explain the Council's actions and are important when an ordinance is challenged in court. The old ordinance contained no whereas clauses. First, the whereas clauses to the new ordinance provide that Woodburn is establishing an animal control program, as permitted by state law, except in areas where state law specifically preempts local regulations or where the ordinance does not address the subject. Second, the whereas clauses reference the City's ability to completely prohibit the keeping of wildlife and exotic animals under ORS 609.205 (which the new ordinance does). Prohibiting wildlife and exotic animals is obviously a policy choice for the City Council. Even if the City does not address this, the keeping of these animals is subject to state and federal law requirements. However, the concerns are as follows: (1) If state and federal permits are complied with, it is possible that such animals could be kept within the City. An extreme example of this is Wild Cat Haven, a big cat facility near Sherwood that draws assorted wild cats from all over the world. (2) Any City permit system for exotic animals has civil liability implications because the City is approving the keeping of animals within its boundaries that it knows to be dangerous. The existing ordinance allows the keeping of exotic animals under a permit system (although, historically, the City has never received a permit application). Finally, the whereas clauses reference the Council's recognition of its "authority and obligation to regulate animals to protect the public health and safety" balanced against its "obligation to act fairly and provide adequate due process for keepers of animals." This is important to articulate because, in extreme cases, the municipal judge has the power under the new ordinance to order that an animal be euthanized. Dogs are considered personal property in Oregon (ORS 609.020) and since euthanasia involves the taking of property by 64 Honorable Mayor and City Council December 3, 2007 Page 3 the government, the due process obligation must be recognized in order for the ordinance to be upheld. Relationship to Other Laws Animal law is complicated in that various types of animals are regulated simultaneously by federal, state and local statutes. Also, the applicable law is both civil and criminal. The new ordinance is a civil regulation. When criminal law provisions exist outside of the ordinance to address certain conduct (i.e., cruelty to animals, animal fighting, animal neglect), these provisions were not duplicated in the new ordinance because these types of violations would be addressed through the criminal enforcement system. Keeping of Certain Animals Prohibited State law defines "wildlife" broadly as "fish, shellfish, wild birds, amphibians and reptiles, feral swine as defined by State Department of Agriculture rule and other wild mammals." ORS 496.004(19). Similarly, there is a broad state law definition for "exotic animals." ORS 609.305 defines an "exotic animal" as "any member of the family Felidae not indigenous to Oregon, except the species Felis catus (domestic cat); any nonhuman primate; any wolf (Canis lupus); any nonwolf member of the family Canidae not indigenous to Oregon, except the species Canis familiaris (domestic dog); and any bear, except the black bear." Section 2 of the new ordinance is a specific list of types of animals not permitted in the City. This list was arrived at by reviewing numerous other animal control ordinances and considering the practical code enforcement aspects. A conscious choice was made to "spell out" the animal types rather than merely reference portions of state taws or administrative rules. This approach makes it clear to the public and to code enforcement personnel what specific types of animals are prohibited. Livestock Prohibited Many different definitions exist for the term "livestock." The definition contained in the new ordinance is from ORS 609.125 except that psittacines (i.e., parrots, macaws, parakeets) are not included. Exclusion of livestock in the City has been expressed as a policy choice that the Council wants to make. From a code enforcement perspective, we do not believe that making this policy choice will create many enforcement issues regarding the current keeping of livestock in the City. 65 Honorable Mayor and City Council December 3, 2007 Page 4 Limited Number of Chickens and Ducks Despite the general prohibition on the keeping of livestock, Section 4 of the new ordinance permits keeping a total of three or fewer chickens or ducks. This ordinance provision is similar to the City of Portland's and was drafted in response to a specific issue that previously came before the Council. However, in the discussion with code enforcement, one issue that came up was the keeping of roosters. Because of this concern, we modified Portland's language to include a specific prohibition of roosters. General Duties of Animal Keepers Section 5 of the new ordinance addresses the duties of animal keepers (keeper is broadly defined and includes all owners) and succinctly states their basic responsibilities (i.e., not permitting an animal to run at large, not allowing unreasonable noise, not allowing an animal to destroy property, and removing excrement deposited in public areas.) Even though a dog barking repeatedly could also violate the Noise Ordinance, from a code enforcement perspective it is useful to include a similar noise provision in the Animal Control Ordinance. Placina of Poisonous Food/Leaving Animal in Car Sections 6 (Placing of Poisonous Food Prohibited) and 7 (Confining Animals in Motor Vehicles Prohibited) are important provisions from an enforcement point of view. Leaving an animal by itself in an automobile is not uncommon. Confining an animal in this manner during hot weather can create a serious situation resulting in injury or death of the animal. Doa Licensing Under state law, residents of cities with dog control programs must obtain dog licenses from the county. This is the present practice and will not change. Levels of Dangerous Dogs - Analxsis Sections 9 through 17 of the new ordinance are innovative in Oregon and represent a major change in Woodburn's animal control program. The new ordinance specifies a process where the municipal judge has the authority to classify problem dogs based on their behavior. The keepers of the dogs can be 66 Honorable Mayor and City Council December 3, 2007 Page 5 assessed fines and ordered to take certain actions to contain their dogs so as to prevent future dangerous behavior. Understanding how the new ordinance provisions are innovative requires a basic explanation. Cities and counties have two main types of dog ordinances. The first type is a "one bite ordinance." Under a "one bite ordinance," in order to convict someone of "keeping a vicious dog" it is necessary to prove that the person kept the dog with some knowledge that the dog was dangerous. The second type of ordinance is a "classification ordinance." Under a "classification ordinance," dogs are classified, typically based upon breed or for engaging in certain behaviors. Classification ordinances that ban certain breeds (i.e., pit bulls) have been legally challenged with varying results. Classification ordinances based on specified dangerous dog behavior are legally more defensible than classification ordinances based upon breed. Under these ordinances, dogs engaged in certain specified dangerous behaviors are classified by a court and the keeper of the dog has the right to contest the classification. Based upon the level of classification decided upon by the court, the owners must then take certain actions in order to prevent future dangerous behavior by the dog. Woodburn's existing ordinance is a "one bite ordinance," as are the vast majority of the ordinances in Oregon. The disadvantage to this type of ordinance is that unless there are prior documented incidents where the dog is shown to be dangerous (i.e., "one bite"), it may be impossible for the City to prove the offense of "keeping a vicious dog." By way of contrast, the new ordinance is a "classification ordinance" based upon dog behavior. It is based partially upon an ordinance that was developed by Multnomah County. A similar ordinance exists in Eugene and in a handful of other Oregon jurisdictions. This new ordinance classification procedure is innovative because it departs from the traditional "one bite" standard ordinance and takes proactive steps to prevent future dangerous behavior by dogs. However, innovative ordinances are always subject to more legal challenges. Changing in the existing ordinance in this manner is ultimately a policy matter for the Council. Levels of Dangerous Dogs -Procedure If the Council agrees with the behavior classification as a policy matter, the procedure under the new ordinance is as follows: (1) After a dog engages in dangerous behavior (see Section 9) under the ordinance, the keeper is cited into municipal court for keeping a specified level of dangerous dog; (2) If a "not 67 Honorable Mayor and City Council December 3, 2007 Page 6 guilty" plea is entered, the municipal court sets the matter for a hearing on whether the person kept a dog that engaged in the alleged behavior; (3) The keeper has the right to appear at the classification hearing and present any applicab{e defenses (see Section 10) to the municipal court; (4) After the evidence is taken at the hearing, the municipal judge makes a classification ruling and issues an order. (5) In addition to the payment of civil infraction penalties (see Sections 11 through 14), the municipal court orders the keeper to take certain measures to deal with the level of dangerous dog (see Section 16); (6) If the municipal court classifies a dog's behavior as Level 4 (i.e., the dog caused serious physical injury or death to a person or, while at large, killed another dog or cat), a disposition hearing must be held to determine what to do with the dangerous dog. Level 4 Danaerous Dog Disposition Hearing After the municipal judge classifies a dog's behavior as Level 4, the court must then make a decision as to what do with the dog. Under the new ordinance, the court can order a dog that has committed Level 4 behavior to: (1) be euthanized; or (2) be sent to a secure animal facility at the keeper's expense; or (3) be removed from the City as specified in the ordinance (see Section 17). The reason for these different options is that appellate courts have consistently ruled that due process must be afforded and some discretion must be exercised before a city takes a dog from an owner. There are no Oregon cases that specifically address this, but there is no reason to conclude that Oregon law is any different since due process is required before the government takes property and dogs are considered personal property (ORS 609.020). The disposition procedure for Level 4 dangerous dogs under the new ordinance is drafted to be consistent with the legal guidelines set out by the Washington Supreme Court in Ration v. Cify of Seattle. In that case, the court ruled that under Seattle's ordinance the process provide to a dog owner was insufficient because there was a trial on the question of whether the dog was vicious but no opportunity for the owner to address why the dog should not be destroyed. The new ordinance is consistent with the Ration case because it provides the keeper of a Level 4 dangerous dog the opportunity to be heard at a disposition hearing (see Section 17). By way of comparison, under the existing ordinance, the municipal court has the power to order a vicious dog abated (i.e., destroyed) as a nuisance and the City Attorney's office files motions requesting the court to impound and destroy vicious dogs. However, an important difference is that, under the existing ordinance, once the municipal court orders 68 Honorable Mayor and City Council December 3, 2007 Page 7 destruction the dog, the owner has five days to retrieve the animal from impoundment, pay all impoundment cosfs, and remove the dog from the City. Under the new ordinance, the disposition of the Level 4 dangerous dog is decided by the municipal court and, even if the dog is ordered removed from the City, certain specific conditions must be complied with. (see Section 17 E) Legal Review of Municipal Court Decision The Woodburn Municipal Court is not a court of record and its decisions on some state law cases are reviewable de novo (i.e., a new trial) by the Marion County Circuit Court. However, this is not true in Writ of Review cases. A Writ of Review is the legal mechanism where a Circuit Court has a limited review of a governmental quasi-judicial decision in a non-land use case. The new ordinance specifies that review of the municipal court's decisions under the ordinance are exclusively by Writ of Review (see Section 21). The Marion County Circuit Court would have jurisdiction to review the law applied by the municipal court and its record and findings. Impoundment Section 18 of the new ordinance provides broad impoundment authority. This is an important operational part of the ordinance. It was reviewed and revised by the police department, was coordinated with the existing Marion County procedures, and is adequate to support ordinance enforcement. Penalties and Legal Actions Monetary penalties under the new ordinance are set out in Sections 11 through 14 and in Section 19. Under Ordinance 1998, the Civil Infraction Ordinance, a list of the monetary maximums for penalties is as follows: (1) $750.00 for a class 1 civil infraction. (2) $500.00 for a class 2 civil infraction. (3) $250.00 for a class 3 civil infraction. (4) $125.00 for a class 4 civil infraction. (5) $100.00 for a class 5 civil infraction. In addition to the monetary penalties, the new ordinance provides that it can also be enforced by filing an action in any court of competent jurisdiction as an additional remedy (see Section 20). 69 Honorable Mayor and City Council December 3, 2007 Page 8 FINANCIAL IMPACT: There is no financial impact. 70 DISCUSSION DRAFT COUNCII BILL NO. ORDINANCE NO. AN ORDINANCE CONCERNING THE CARE AND CONTROL OF ANIMALS; ESTABLISHING REGULATIONS AND PENALTIES; AND REPEALING ORDINANCE 1638. WHEREAS, the City of Woodburn is a home rule city with the legal power to regulate animals within its corporate boundary; and WHEREAS, more specifically, ORS Chapter 609 authorizes cities to have an animal control program, to prohibit the keeping of wildlife and exotic animals (ORS 609.205) and to impose reasonable restrictions on the keeping of dogs; and WHEREAS, it is the purpose of this Ordinance to regulate animal behavior so to prevent animals from becoming a nuisance, endangering any person, animal or property, or creating a health hazard; and WHEREAS, the City has the authority and obligation to regulate animals to protect the public health and safety; and WHEREAS, the City also recognizes its obligation to act fairly and provide adequate due process for keepers of animals under this Ordinance; and WHEREAS, this Ordinance is intended to establish a city animal control program and supersedes ORS Chapter 609, except as specifically provided by state law, or where this Ordinance does not provide for a parallel rule, definition, or procedure; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Definitions. For purposes of this Ordinance, these terms are defined as follows: A. ANIMAL. Any nonhuman vertebrate. li. ANIMAL CONTROL OFFICER. A person designated by the Woodburn Chief of Police to enforce this Ordinance. C. AT LARGE. Any animal, excluding domestic cats, that is off the premises of its keeper and 'is not on a leash held by a person capable of controlling the animal. Page 1 - COUNCIL BILL NO. ORDINANCE NO. 71 DISCUSSION DRAFT D. DOG. Any mammal of the canidae family. E. EUTHANIZE. To put an animal to death in a humane manner by a licensed veterinarian or a certified euthanasia technician. F. KEEP. To have physical custody or otherwise exercise dominion and control over. G. KEEPER. A person or legal entity who owns, or has a possessory property right in an animal or who harbors, cares for, exercises control over, or knowingly permits any animal to remain on premises occupied by that person. H. LIVESTOCK. Animals, including but not limited to fowl, horses, mules, burros, asses, cattle sheep, goats, llamas, emu ostriches, swine or any furbearing anima{ bred and maintained for commercial purposes and kept in pens, cages, or hutches. MUNICIPAL JUDGE. The judge of the Woodburn Municipal Court. J. PERSON. Any natural person, association, partnership, firm or corporation. K. PHYSICAL DEVICE OR STRUCTURE. A tether, trolley system, other physical control device or any structure made of material sufficiently strong to adequately and humanely confine the animal in a manner that would prevent it from escaping. L. PEACE OFFICER. Has the meaning provided in ORS 161.015 (4). M. PHYSICAL INJURY. Physical impairment or as evidenced by scrapes, cuts, punctures, bruises or physical pain. N. POLICE DOG. A dog that is trained for law enforcement purposes and is under the control of a peace officer. O. SECURE ANIMAL SHELTER. An animal shelter that agrees to accept an animal and that agrees to the following conditions: 1. Not to release the animal from the shelter for the rest of the animal's natural life; 2. Not to allow the animal to come into contact with the general public for the rest of the animal's natural life; Page 2 - COUNCIL BILL NO. ORDINANCE NO. 72 DISCUSSION DRAFT 3. To indemnify, defend, and hold the City harmless from any and all future claims of any kind or nature whatsoever relative to past or future care and custody of the dog and to the dog's future behavior; 4. To notify the City if the shelter goes out of business or can no longer keep the animal and to abide by the City's disposition instructions. P. SECURE ENCLOSURE. Shall be any of the following: 1. A fully fenced pen, kennel or structure that shall remain locked with a padlock or combination lock. Such pen, kennel or structure must have secure sides, minimum of five feet high, and a secure top attached to the sides, and a secure bottom or floor attached to the sides of the structure or the sides must be embedded in the ground no less than one foot to prevent digging under it. The structure must be in compliance with the City's building code and ordinances; or 2. A house or garage. When dogs are kept inside a house or garage as a secure enclosure, the house or garage shall have latched doors kept in good repair to prevent the accidental escape of the dog. A house, garage, patio, porch or any part of the house or condition of the structure is not a secure enclosure if the structure would allow the dog to exit the structure of its own volition Q. SERIOUS PHYSICAL INJURY. Any physical injury which creates a substantial risk of death or which causes disfigurement, or protracted loss or impairment of health or of the function of any body part or organ. Section 2. Keepin4 of Certain Animals Prohibited. A. No person shall keep, within the city, any of the following animals of either thoroughbred or hybrid stock or pedigree: 1. All poisonous animals, including rear-fang snakes; 2. Apes such as chimpanzee (Pan), gibbons (Hylobates), gorillas (Gorilla), orangutans (Pongo), and siamangs (Symphalangus); 3. Baboons (Papio, Mandrillus); 4. Bears (UrsidaeJ; 5. Bison (Bison); 6. Cheetahs (Acinonyx jubatus); 7. Crocodilians (Crocodilia); 8. Constrictor snakes with a maximum size at maturity of 15 inches or more, including but not limited to boa, python, and anaconda; 9. Coyotes (Canis latrans); Page 3 - COUNCIL BILL NO. ORDINANCE NO. 73 DISCUSSION DRAFT 10. Deer (Cervidae), such as white-tailed deer, elk, antelope, and moose; 11. Elephants (Elephas and Loxodonta); 12. Game cocks and other fighting birds; 13. Hippopotami (Hippopotamidae); 14. Hyenas (Hyaenidae); 15. Jaguars (Panthera onca); 16. Leopards (Panthera Pardus); i 7. Lions (Panthera leo); 18. Lynxes (Lynx); 19. Monkeys, old world (Cercopithecidae), new world; 20. Ostriches (Struthio); 21. Piranha fish (Characidae}; 22. Pumas {Fells concolor}, such as cougars, mountain lions, and panthers; 23. Raptors, such as condors, eagles, kites, falcons, osprey, owls, harriers, hawks, buzzards and vultures (Falconiformes and Stigiformes orders) 24. Rhinoceroses (Rhinocero tidae); 25. Serval Cats (Fells serval or Leptailarus serval) 26. Sharks (Class Chondrichthyes); 27. Snow leopards (Panthera uncia); 28. Tigers (Panthera tigris); or 29. Wolves (Canis lupus and hybrids). B. The provisions of this section shall not apply to: 1. An educational or medical institution, if the animal is kept for the primary purpose of instruction, study or research; or 2. A circus, carnival or other similar itinerant show business, if the animal is kept for the primary purpose of public entertainment; or 3. A veterinarian employed by the federal government or currently licensed by the Oregon State Veterinary Examining Board, if the animal is kept for the primary purpose of diagnosis or treating. Section 3. Kee~ing of Livestock Generally Prohibited. Except as permitted by this Ordinance, no person shall keep livestock within the City. Section 4. Keeain4 of Limited Number of Chickens or Ducks Permitted. Notwithstanding Section 3 of this Ordinance, a person shall be allowed to keep a total of three or fewer chickens or ducks within the City. This section shall not be construed to as to allow the keeping of roosters, which are prohibited. Page 4 - COUNCIL BILL NO. ORDINANCE NO. 74 DISCUSSION DRAFT Section 5. Duties of Animal Keeaers. A. It shall be a violation of this Ordinance for a keeper of an animal to: 1. Permit an animal to be at large. 2. Permit an animal to cause unreasonable noise at any time of the day or night by repeated barking, whining, screeching, howling, braying or other like sounds which maybe heard beyond the boundary of the keeper's property. 3. Permit an animal to damage or destroy property of persons other than the keeper. 4. Fail to immediately remove any excrement or other solid waste deposited by an animal in any public area. Section 6. Placing of Poisonous Food Prohibited. No person shall knowingly place food of any description containing poisonous or other injurious ingredients in any area reasonably likely to be accessible to animals, except as provided by law for nuisance, vector, or predator control. Section 7. Confining Animals in Motor Vehicles Prohibited. A. No animal shall be confined within or on a motor vehicle at any location within the city under such conditions as may endanger the health or well-being of the animal, including but not limited to dangerous temperature, lack of food, water or confinement with a dangerous animal. B. An animal control or police officer is authorized to remove an animal from a motor vehicle when the officer reasonably believes that the animal is confined in violation of this section. Any animal so removed shall be delivered to the animal control Shelter after the removing officer leaves written notice of the removal and delivery, including the officer's name, in a conspicuous, secure location on or within the vehicle. Section 8. Dog Licensing. Any person owning or keeping a dog within the City shall purchase for such a dog a license as required under the provisions of ORS 609.100. Section 9. Levels of Dangerous Dogs. A. For purposes of this Ordinance, the classification of various levels of dangerous dogs shall be based upon these specific behaviors exhibited by the dogs. Page 5 - COUNCIL BILL NO. ORDINANCE NO. 75 DISCUSSION DRAFT 1. Level 1 behavior is established if a dog, while at large, is found to menace, chase, display threatening or aggressive behavior or otherwise threaten or endanger the safety of any person. 2. Level 2 behavior is established if a dog, while at large, bites or causes physical injury to any dog or cat. 3. Level 3 behavior is established if a dog bites or causes physical injury to any person. 4. Level 4 behavior is established if: (a) A dog causes the serious physical injury or death of any person; or (b) A dog, while at large, kills a dog or cat. Section 10. Classification of Doas by Municipal Judge. A. In addition to any other penalties imposed under this Ordinance, the municipal judge shall have the power to classify dangerous dogs based upon the dogs' behavior. This classification shall be based upon evidence proving the dogs' behavior by a preponderance of the evidence. The following affirmative defenses may be presented: 1. The dog's behavior was the direct result of the victim abusing or tormenting the dog, or 2. The dogs' behavior was directed against a trespasser on the keeper's property. B. Police dogs are not subject to classification by the Municipal Judge under this Ordinance. Section 11. Keeping of level 1 Dangerous Doa; Penalty. It shall be unlawful for any person to keep a Level 1 Dangerous Dog within the City. Any person who violates this section commits a Class 4 civil infraction. Section 12. Keeping of Level 2 Dangerous Doss: Penalty. It shall be unlawful for any person to keep a Level 2 Dangerous Dog within the City. Any person who violates this section commits a Class 3 civil infraction. Page 6 - COUNCIL BILL NO. ORDINANCE NO. 76 DISCUSSION DRAFT Section 13. Keeping of Level 3 Dangerous Doa; Penalty. It shall be unlawful for any person to keep a Level 3 Dangerous Dog within the City. Any person who violates this section commits a Class 3 civil infraction. Section 14. Keeping of Level 4 Dangerous Doa; Penalty. It shall be unlawful for any person to keep a Level 4 Dangerous Dog within the City. Any person who violates this section commits a Class 1 civil infraction. Section 15. Keeping of Doa Pursuant to Court Order Permitted. Notwithstanding Section 11 through 14 of this Ordinance, dogs classified as dangerous dogs by the Municipal Judge may be lawfully kept pursuant to the terms of a Municipal Court order. Section 16. Disposition of Dangerous Dog Cases. A. In addition to any other penalties imposed under this Ordinance, the keeper of a dog found by the municipal judge to be a dangerous dog shall be ordered by the court to do the following: 1. If the dog was found to have engaged in Level 1 behavior, the keeper shall provide a physical device or structure that prevents the dog from reaching any public right-of-way or adjoining property, and shall restrict the dog by such a device or structure whenever the dog is outside the keeper's home and not on a leash off the keeper's property. 2. If the dog was found to have engaged in Level 2 or Level 3 behavior, the keeper shall provide a secure enclosure and confine the dog within such enclosure whenever the dog is not on a leash off the keeper's property or inside the home of the keeper. Section 17. Disposition of level 4 Dangerous Doa Cases• Disposition Hearin . A. if the dog was found by the municipal judge to have engaged in Level 4 behavior, the municipal judge shall determine either: (1) that the City be ordered to euthanize the dog; (2j that the dog be sent at the keeper's expense to a secure animal shelter; or (3) that the dog be removed from the City as specified in this Ordinance. The keeper shall be responsible for all fees and charges related to the care and keeping of the dog. B. Before ruling on the final disposition of the dog, the municipal judge shall notify the keeper that the dog was found to have engaged in Level 4 behavior, shall explain to the keeper the Court's options under this Ordinance, Page 7 - COUNCIL BILL NO. ORDINANCE NO. 77 DISCUSSION DRAFT and shall then set the matter for a disposition hearing at the earliest possible date found acceptable to the municipal judge. C. At the disposition hearing, the keeper shall be afforded the opportunity to appear and address the municipal judge regarding which option available under this Ordinance is appropriate for the dog. The municipal judge shall also allow the City to be heard on the question of appropriate disposition. D. The municipal judge will consider ordering that the dog be sent to a secure animal shelter only at the request of the keeper. The keeper shall bear the burden of establishing that an animal shelter is available that meets the criteria for a secure animal shelter, that the shelter will accept the dog, and that the keeper is willing and able to pay all expenses for transporting the dog. E. Prior to releasing an animal for removal from the City pursuant to this Ordinance the municipal judge shall require: (1) proof that an appropriate place outside of the incorporated limits of the City is available to keep the dog; (2) proof that the animal control authority in the jurisdiction to which the dog is being moved has been informed of the relocation and has had an opportunity to address the Court; (3) agreement by the dog's owner to indemnify, defend, and hold the City harmless from any and all future claims of any kind or nature whatsoever relative to past or future care and custody of the dog and to the dog's future behavior. F. After conclusion of the disposition hearing, the municipal judge shall issue an order finding that the dog has engaged in Level 4 behavior and providing for disposition of the dog. This order shall include findings justifying the Court's action. A copy of the order, including notice of the right to file a Writ of Review in Marion County Circuit Court shall be sent by regular and certified mail, return receipt requested, or delivered by personal service to the keeper of the dog. Section 18. Shelter Operations; Impoundment. Release and Disposal. A. The Marion County Animal Control Shelter is designated as the facility to receive, care for and confine any animal delivered to its custody under the provisions of this Ordinance. This impound facility shall be operated by Marion County Animal Control for the conduct of necessary business concerning impounded animals. Impounded animals may be temporarily housed in a kennel designated by the Chief of Police prior to their transport to the Marion County Animal Shelter. 6. Any animal may be impounded by an animal control officer or peace officer and held at the facility when it is the subject of a violation of this Page 8 - COUNCIL BILL NO. ORDINANCE NO. 78 DISCUSSION DRAFT Ordinance, when an animal requires protective custody and care because of mistreatment or neglect by its keeper, or when otherwise ordered impounded by a Court. C. Impoundment is subject to the following holding period and notice requirements: l . An animal bearing identification shall be held for five working days before any action is taken to dispose of the animal. The City shall make reasonable effort within twenty-four hours of impoundment to notify the keeper, shall send by registered or certified mail, a written notice of the impoundment to the last known address of the keeper, advising the keeper of the impoundment, the date by which redemption must be made and the fees payable prior to redemption release. 2. An animal that does not bear identification shall be held for three working days before any disposition may be made. 3. Animals held for period prescribed herein, or as otherwise required by ORS 433.340 to 433.390, and not redeemed by the keeper, shall be subject to disposal consistent with Marion County Animal Control procedures. 4. In instances where a peace officer impounds animals from a person taken into custody, the peace officer shall issue a receipt to the person reciting the redemption requirements under this Ordinance and shall serve this receipt upon the person. D. Unless resfirained by Court order, the impound facility shall release any impounded anima! to the keeper or the keeper's authorized representative upon payment of all applicable impoundment, shelter, care, medical costs, license fees or other applicable fees or deposits. E. An animal held for the prescribed period and not redeemed by its keeper or the keeper's representative or agent becomes the property of Marion County and may be released for adoption or otherwise disposed of pursuant to Marion County Rules and Regulations and applicable state law. Section 19. Penalty for Unspecified Violations. The violation of any section of this Ordinance where the penalty is not specified constitutes a Class 4 civil infraction. Section 20. Authorized Enforcement Officers. The following City officials are authorized to enforce this Ordinance: Page 9 - COUNCIL BILL NO. ORDINANCE NO. 79 DISCUSSION DRAFT A. An animal control officer; 8. A peace officer; and C. The Woodburn City Administrator or designee. Section 21. Institution of Lecal ProceedinQS. The City Attorney, acting in the name of the City, may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any provision of this Ordinance as additional remedy. Section 22. Exclusive Review in Marion County Circuit Court. All determinations by the municipal judge under this Ordinance shall be final and subject only to Writ of Review in the Marion County Circuit Court pursuant to ORS Chapter 34. Section 23. Savings Clause. The repeal of any ordinance by this Ordinance shall not preclude any action against any person who violated the ordinance prior to the effective date of this Ordinance. Section 24. Seyerability. The sections and subsections of this Ordinance are severable. The invalidity of any section or subsection shall not affect the validity of the remaining sections and subsections. Section 25. Repeal. Ordinance No. 1638 is hereby repealed. Approved as to form: City Attorney Date Approved: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 10 -COUNCIL BILL NO. ORDINANCE NO. Kathryn Figley, Mayor 80 ~l~'c~ ~/~~/~ ~ (P ; 3 3P t-r~ ~, ~- February 19, 2008 Dear City Council and workshop members, We are unable to attend the animal control ordinance workshop February 19, 2008. We would however like to place on record our opposition to Section 4 in regards to keeping 3 or fewer chickens and ducks within the Woodburn city limits. As long time Woodburn residents we have had numerous opportunities to experience neighbors who have kept chickens. Regardless of how careful they were to keep the animals contained they still frequently got loose and cause considerable damage. Because they scratch in the dirt any soil is fair game, in one summer alone we had to replant the flower beds 3 different times and finally gave up. The excrement that covered the cedar fence, driveway, porch and steps is difficult to remove when dry and easily tracked in the house while still soft. We understand that the ordinance will require the animals to be contained on the owners property but the reality is that chickens are difficult to corral and catch once they get loose. They are wide ranging and once roaming cause their owners to trespass on others property to locate them. We would respectfully request you reconsider Section 4 of the proposed Animal Control Ordinance. Thank you for your consideration. Teresa Timmons John Timmons ~/t ~'hc~ ~ ~v~~rc ~ ('rc ~`f C~r~~1~~uK erg ,__y~ 1 ~- ~~DI~n. CAS G,tl2~, ~7~- 1~-~.v~i~U~. S~- ~lc~ll Q~~ .. .~; _h s °'i a ( ~ `r-a. ~~~ i ~7,,q rs ti~z ~ ,~~~ ~ ~e~l~m~~ ~~v ~~~~~, ~ 1 ~- ~ 6 s rr~~ ~ ~~~~~ TPA rw r~