Barbara Worgess, Director
COCONINO COUNTY BOARD OF SUPERVISORS
PROVIDING FOR REGULATING OF EXCESSIVE AND UNRESTRAINED BARKING DOGS WITHIN COCONINO COUNTY, PROVIDING FOR ADMINISTRATIVE HEARINGS OF BARKING DOG COMPLAINTS IN COCONINO COUNTY
County authority to regulate, restrain and prohibit the excessive and unrestrained barking of dogs is derived from A.R.S. §11-1005 (A)(6); County authority to establish civil penalties for the violation of barking dog regulations is derived from A.R.S. §11-1005 (A)(6)(b); County authority to establish a Hearing Officer to hear such civil violation is derived from A.R.S. §11-1006.
This Ordinance repeals and rescinds Coconino County Ordinance 92-01 adopted by the Board of Supervisors on February 24, 1992.
C. PROHIBITED CONDITIONS
In all unincorporated areas of Coconino County it shall be unlawful for any person to permit, either willfully of through failure to exercise due care and control, any dog to bark or howl in an unreasonable, continual or unprovoked manner which disturbs the peace and quiet of any person or persons.
1. The Board of Supervisors and Coconino County Director of Health Services, or designee, hereinafter known as the Health Officer, shall enforce the provisions of this ordinance.
2. The Health Officer or his/her designees shall investigate, and report on all barking dog violations.
E. HEARING OFFICER
The Board of Supervisors shall appoint a Hearing Officer to hear and determine barking dog violations. Individuals determined by the Hearing Officer to be violating any provision of this ordinance shall be responsible for a barking dog violation, which is punishable by a civil penalty of not more than five hundred dollars ($500.00) for each violation. F. HEALTH OFFICER
1. Inspection of Premises: Upon receipt of a complaint of a barking dog, the Health Officer or his/her designated Animal Management Officer shall review all reported violations of this Ordinance.
2. Notice of Complaint: If the Animal Management Officer receives a complaint regarding a barking dog, he/she shall serve notice of the complaint to the owner of the barking dog. The Notice of Complaint shall note the nature of the violation, the section of the code violated, information of possible penalties if violation is not ceased and steps necessary to bring about compliance. The notice shall order the owner to control the barking dog and advise that a civil complaint may be issued within seven (7) days of receipt of notice of complaint.
3. Notice of Hearing: If the violation(s) persist after the time specified in the Notice of Complaint, then the Animal Management Officer will notify the Health Officer or his/her designee, who shall issue a Notice of Hearing. The Notice of Hearing shall be served upon the owner/alleged violator and the complainant at least seventeen (17) days prior to the hearing if by personal service, or at least thirty (30) days prior to the hearing if by certified mail with return receipt. A notification of the specific time and date by which the alleged violator must appear at the hearing office to submit a plea shall be enclosed with the Notice of Hearing.
4. Set for Hearing: If a Notice of Hearing is issued the matter shall be set for a hearing before the Coconino County Hearing Officer.
5. Failure to Appear: If the alleged violator fails to appear by the date and time specified in the notice accompanying the Notice of Hearing, the allegations filed against the alleged violator shall be deemed admitted, and the Hearing Officer shall enter judgment for the County and impose a penalty subject to Section G of this Ordinance.
G. HEARING OFFICER PROCEDURE
1. Commencement: Every action or proceeding brought before the Hearing Office for a violation of this Ordinance shall be commenced by the filing of a notice of hearing by the Health Officer or Animal Management Officer. No notice shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific violation, if the notice contains either a written description or reference to the applicable section of 11-1005 and Ordinance 2003-05 pertaining to the violation.
2. Appearance: The alleged violator or his/her attorney shall appear in person at the hearing office on the date and time specified in the notice accompanying the notice if hearing to admit or deny responsibility. Appearance may also be made by mailing to the Hearing Officer and appearance form provided by the Hearing Officer or in lieu of such form, a short statement signed by the alleged violator or his/her attorney admitting the allegations of the notice.
3. Admission of Responsibility: The alleged violator may admit responsibility by appearing in person or by mailing to the hearing office an appearance form. Once a formal admission of responsibility is received by the hearing office, the Hearing Officer shall set a time and place for the determination of the penalty for the violation, at which time both the alleged violator and Health Officer or Animal Management Officer shall be given an opportunity to state their position on the amount of penalty to be imposed by the Hearing Officer.
4. Denial of Responsibility: The alleged violator may deny responsibility by appearing in person or by mailing to the Hearing Officer an appearance form provided by the Hearing Officer or in lieu of such form, a denial signed by the alleged violator or his/her attorney. Once a formal denial is received by the Hearing Officer, the hearing officer shall schedule the matter for hearing and notify the alleged violator or his/her attorney of the date, time and place for the hearing. Upon appearance, it shall be the responsibility of the alleged violator or his/her attorney to notify the hearing officer of an incorrect address or any different address than what is set forth on the nuisance citation.
5. Representation by Counsel: After submittal of formal denial, the Hearing Officer shall promptly notify the alleged violator of his/her right to be represented by counsel at his/her expense. The alleged violator must notify the Hearing Officer in writing at least ten (10) days prior to the hearing date of his/her choice to be represented by counsel. The Hearing Officer may continue a hearing if the alleged violator does not make notification of his/her decision to secure counsel within the aforementioned time frame.
Should the County elect to secure counsel, the County must, in writing, notify the Hearing Officer and the alleged violator at least ten (10) days prior to the hearing.
6. Order of Hearing:
a. The order of the Hearing Officer proceeding shall be as follows:
1. The Hearing Officer shall call the case and briefly describe the procedures to be followed.
2. County’s statement
3. Complainant’s statement
4. Testimony of the Complainant’s witnesses.
5. Respondent’s statement.
6. Testimony of the respondent’s witnesses.
7. Testimony of other attendees at the discretion of the Hearing Officer.
8. Respondent’s rebuttal
9. County rebuttal.
10. Cross-examination of witnesses shall be strictly limited to subjects or evidence elicited during direct testimony.
11. Closing statement of the parties or their counsel.
12. Ruling by the Hearing Officer. At the conclusion of the hearing, the Hearing Officer shall determine whether a barking dog exists and, if a violation is found to exist may impose civil penalties in accordance with Section H of this Ordinance. A ruling shall include findings,
Conclusion and opinion of the Hearing Officer.
b. At the discretion of the Hearing Officer, a hearing may be continued for a period not exceeding sixty (60) days if it appears that the interests of the justice so require. The Hearing Officer shall not continue a hearing without first giving notice to both parties. The Hearing Officer shall notify both parties in writing of the new hearing date. c. The Hearing Officer may question witnesses or representatives of either party.
d. The Arizona Rules of Evidence shall not apply before a Hearing Officer. Any evidence offered may be admitted subject to a determination by the Hearing Officer that the offered evidence is relevant.
e. Audio tape recordings of the hearing shall be made and kept on record at the hearing office for a period of one (1) year. In addition, a record of the proceedings may be made by a court reporter if requested by the alleged violator at the alleged violator’s expense.
f. If the alleged violator fails to appear at the time set for the hearing, the alleged violator shall be found to be in default, the statement of responsibility shall be deemed admitted, and the Hearing Officer shall enter finding for the County and impose civil sanction, and report such judgment to the Health Officer.
g. If the complainant fails to appear at the set time for the hearing, the Hearing Officer shall dismiss the Notice of Violation unless the Hearing Officer, for good cause shown, continues the hearing to another date.
h. At any time, the Hearing Officer may set aside a finding entered upon a failure to appear if it is deemed by the Hearing Officer that the alleged violator or the complainant was not served a Notice of Violation, or for any other reason where necessary to prevent an injustice. In the event a finding is set aside for failure to appear, the Hearing Office shall reset the matter for hearing.
H. FINDING OF RESPONSIBILITY/CIVIL SANCTIONS
1. If the alleged violator, after the hearing, is found responsible for the barking dog violation, the Hearing officer shall enter finding for the County and impose a civil penalty of not more than five hundred dollars ($500.00).
2. The Hearing Officer has the option of suspending the initial fine should extenuating circumstances exist.
I. APPEAL TO THE BOARD OF HEALTH
1. Any party may appeal to the Board of Health the final finding and/or sanction of the Hearing Officer. A written notice of appeal shall be filed with the Animal Management Office within seven (7) days after the Hearing Officer’s finding.
2. The notice of appeal shall identify the finding and/or sanction appealed. It shall be signed by the appellant or appellant’s counsel, and shall contain the names, addresses, and telephone numbers of all parties and their attorneys. When a party appeals, the Animal Management Office shall send a copy of the notice of appeal to the other party or attorney.
3. Appeals shall be limited to the record of the proceeding before the Hearing Officer, and so new evidence may be introduced. The record of the proceedings shall include all materials in the Hearing Officer’s file, all evidence admitted at the hearing, and the official record as per Section G.8.e of this Ordinance.
4. Upon receiving the notice of appeal the Animal Management Office shall within thirty (30) days prepare and transmit the record and schedule the appeal before the Board of Health.
5. The parties may stipulate that the appeal may e heard on less than a complete record or upon stipulated facts. The designation of the stipulated recode shall be in writing and filed with the Animal Management Office within fifteen (15) days after the notice of appeal.
6. Upon sending the record to the Board of Health, the Animal Management Office shall notify both parties that they have five (5) days from the date of the letter to submit a memorandum stating the parties’ position to be submitted at the Board of Health hearing.
7. The memoranda shall be submitted to the President of the Board and shall not exceed five (5) pages in length.
8. A notice of appeal before the Board of Health shall be posted at least twenty-four (24) hours prior to the hearing. The Animal Management Office shall mail a notice of the hearing to both parties not less than five (5) days prior to the meeting.
9. The President of the Board of Health shall preside at the appeal and shall decide on all questions pertaining to the procedure. Final decisions on the merits of the case shall be made upon motion and majority vote of the quorum.
10. At the Board of Health hearing, arguments on appeal shall be limited to five (5) minutes for each party unless extended by the President of the Board of Health.
11. After consideration of the merits of an appeal, the Board of Health may increase, decrease or modify any sanction imposed by the Hearing Officer as permitted by law, and may:
a. Affirm the action of the Hearing Officer;
b. Affirm in part and reverse in part, and if necessary, remand for further proceedings;
c. Reverse the action of the Hearing Officer and, if necessary, remand for further proceedings;
d. A decision to reverse the action of the Hearing Officer in whole or in part must be based upon a finding of an abuse of discretion by the Hearing Officer.
J. APPEAL OF A DECISION OF THE BOARD OF HEALTH
An appeal of the decision of the Board of Health may be made by filing a complaint in the Coconino County Superior Court within thirty (30) days of the Board’s decision, pursuant to A.R.S. Title 12, ch.7, art.6 (A.R.S. sec. 12-901 et seq.).
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