To: Honorable Mayor and Members of Town Council
From: Heidi J. Hugdahl, Deputy Town Attorney
Title
Discussion/Direction: Proposed Animal Code Amendment (One hour of public comment anticipated)
Body
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General Background
Town staff has undertaken a comprehensive and complete rewrite of the Town’s Municipal Code Title 6 - Animals, after spending considerable time identifying and discussing the challenges attendant in the current iteration. The “team” primarily included the Municipal Prosecutor, the Town’s Animal Control Officers, the Court Administrator, and the Town Attorney’s office. Given the length of time that has elapsed, since that portion of the Town’s Code was last reviewed in a comprehensive fashion, many sections of the current code are antiquated, and are in need of updating - to keep in step with best practices and developments in the law and technology, and our growing community. The team reviewed codes in other Colorado municipalities and across the country. Data (specific to dog bites) from the Town, and neighboring jurisdictions was taken into consideration as was input from others versed in this area. Numerous articles and literature have been reviewed during the process. The Town has supported this process through outreach to Castle Rock residents and held two Open Houses in an effort to fully engage residents in discussions related to all aspects of the current and proposed rewrite of Title 6.
Outreach and Community Input
On April 11, 2017, the Town held the first of two Open Houses. Every Town resident was mailed a postcard advisement (attached) of the Open House, and comment forms were made available-in hard copy, and on line. Town residents were afforded an opportunity to comment on a myriad of animal related matters, and broad topics were introduced in an effort to focus the discussion. (Attached is a copy of the packet that was made available). Information was also circulated to residents in “Your Town Talk,” and included in the water bill, in April 2017, and again in January, 2018. (Attached).
Additionally, there were a number of social media postings: 1/18/2017 Twitter Post CCM Colorado News; 3/29/2017 Facebook Post Town of Castle Rock Government; 3/29/2017 Twitter Post Town of Castle Rock; 4/26/2017 Facebook Post Town of Castle Rock Government; 5/2/2017 Facebook Post Town of Castle Rock Government; 5/11/2017 Facebook Post Town of Castle Rock Government; 6/16/2017 Facebook Post Town of Castle Rock Government; 6/29/2017 Facebook Post Town of Castle Rock Government; 9/5/2017 Facebook Post Town of Castle Rock Government; 12/13/2017 Twitter Post Town of Castle Rock; and 1/12/2018 Twitter Post Town of Castle Rock.
At the December 5, 2017 meeting, Council was provided an update (attached), and advised that a second Open House would be scheduled in January, 2018. On January 31, 2018, the Town held a second Open House (attached is a copy of the packet that was made available to the attendees and online). And, again, every Town resident was mailed a postcard advisement (attached).
During this entire process, the Town has continued to gather feedback from residents and non-residents. The feedback (with the exception of emails that contained graphic photographs) will be posted with this memorandum on the Town’s website. (To the extent a request is made to see the graphic photographs, efforts will be made to make that information available to a requesting party). The information posted contains feedback from April 2017 through March 1, 2018.
For ease of review, a good faith effort has been made to sort the feedback by year - namely 2017 and 2018 - and by resident, non-resident, and unknown. We have undertaken our best efforts to compile all feedback, but the information came to the Town through a variety of channels. Efforts have been undertaken to redact email addresses and phone numbers. Also attached are unsolicited letters, received by the Town, from the Colorado Humane Society and the American Kennel Club. (Attached).
At this writing, the Town has received approximately 700 feedback forms, emails and online responses. (Please note that some are duplicative). This memo will be further supplemented with a breakdown of the data.
With regard to the responses received to date, a vast majority of the focus has been on the breed-specific ban. And, primarily, only Town residents have commented on a variety of other animal related topics such as feeding wildlife (and birds), chickens, bees, barking dogs, exotic animals, livestock, dogs running at large, licensing, cats and problems associated with animal waste on Town trails and open spaces.
Overview of the Proposed Code Rewrite
A draft of the proposed rewrite (attached) has been included for this discussion and direction item. Additional work will need to be done, based on a more in depth review of all the feedback, including information provided in and around the January Open House, and based on anticipated direction and input from Council. While not meant to be exhaustive, but illustrative, we envision making additional suggested changes to the potentially dangerous dog section, in an effort to better address some of the concerns that have been recently expressed by residents. We also believe there is a need to enhance sections related to feeding birds, again, based on recent resident input, and we want to revisit provisions related to enforcement tools, impoundment, penalties, and some of the suggested processes to fine tune those sections. We also think that we need to look at discrete topics related to animal waste, leashing and tethering, licensing, chickens (including coop size) and bees (including hive size and location). Finally, the definition section will require further work, and it is possible that we may receive additional feedback that might warrant further modifications before a final product will be completed. In any event, we wanted to provide residents and Council with the broad vision - albeit in draft form - in an effort to better facilitate our discussions.
The primary purpose and focus of the rewrite is to promote the general welfare and safety of the public while promoting responsible animal ownership and regulating the general welfare of the citizens and animals residing in the Town.
One of the pivotal proposals in the introduction of a two-tiered behavior based system is dealing with any potentially dangerous and dangerous animals in Town. Under this proposal, the Town, through its Animal Control/Law Enforcement Officer, Prosecutors and Municipal Judges would have better guidance and additional resources to deal with complex issues presented in this arena. It is believed that this two-tiered system will better address and evaluate the animal’s behavior while adding additional safeguards and processes for continued ownership of a potentially dangerous animal within the Town.
A potentially dangerous animal, by definition, is any animal that may be a threat to public safety as demonstrated by any of the following behaviors:
- causes injury (less than serious bodily injury) to any person or domestic animal;
- without provocation, approaches a person in a terrorizing manner;
- attacks a person;
- acts in a highly aggressive manner and is kept in such a way that it may be able to escape.
Any animal adjudged potentially dangerous, through conviction or entry of a plea in the Court, may be permitted to remain in the Town if the owner applies for and receives a potentially dangerous animal permit. The permitting process focuses on the safe return of the animal to its family with specific requirements to protect the public as a whole. After thirty-six months, from initial permitting, the animal may be released from the permit at the discretion of Animal Control.
Any animal adjudged to be a dangerous animal, which by definition is an animal that causes serious bodily injury or behaves in a manner which would have resulted in serious bodily injury, will not be permitted to remain in the Town.
The proposed rewrite would increase the permitted “barking” time from 5 consecutive minutes to 10 consecutive minutes. The new provisions also focus on intervention with an education of the dog owner by using an optional verbal and required written warning system. Safeguards have also been recommended in an effort to protect the integrity of this type of violation.
The proposed rewrite includes a comprehensive process for impoundment of animals within the Town. The importance of timely addressing impoundment issues and due process protections for animals and owners has been emphasized in this rewrite.
Updated provisions concerning licensing, collars, tags, or microchipping as a means of identification are also being proposed. The primary purpose of these sections is a renewed emphasis and awareness of the importance of vaccinations for all dogs, cats or ferrets four (4) months of age or older.
The rewrite addresses and defines Pet Animal Facilities (including kennels, rescues, fosters, breeders, livestock, pet shops and pet spas) within the Town. Licensing requirements are consistent with the State and regulation of these licenses would be the responsibility of the Commissioner of the Colorado Department of Agriculture. The proposed revisions also introduce, incorporate and require compliance with the Pet Animal Care and Facilities Act “PACFA.” This important legislation and the adoption of it by reference into our code will allow local Animal Control Officers to work in conjunction with representatives from the Department of Agriculture on applicable issues within our Town.
Regulations concerning the keeping and maintaining of bees will be moved from the zoning portion of the Town’s Municipal Code to Title 6. Recommendations have been made regulating the humane care and treatment of bees, as well as the size, location and design of the hives, including a flyaway barrier or privacy fence.
A comprehensive ordinance concerning the keeping and maintaining of chickens in Town has been introduced. This provision has been recommended based on feedback from residents. The proposed section will regulate the keeping and maintaining of chickens, including provisions related to the numbers (only hens would be permitted), humane care and treatment, and the size, design, and location of the coop.
The proposed rewrite includes provisions prohibiting the feeding of wild animals and contemplates specific requirements related to the feeding of birds. A prohibition against keeping livestock, wild, or exotic animals has been recommended as well as clarification and enhanced definitions related to these sections.
The proposed rewrite would limit the number of dogs to no more than three, and the number of cats to no more than five, but only dogs or cats older than six months would be included in any count. (The current code caps the total number of animals allowed at six).
Finally, the proposed rewrite includes additions to the powers and duties section as it relates to the Town’s Animal Control Officers/Law Enforcement and a prohibition against interfering with them.
Breed-Specific Ban
Under the current code, American Pit Bull Terriers, American Staffordshire Terriers, and Staffordshire Bull Terriers, and dogs presumed to be a majority mix of one or more of those breeds are generality referred to as "Pit Bulls."
Recommendations to replace the Town’s current breed-specific ban provisions have included the following considerations:
► continued focus on public health and safety;
► the uncertainty the ban might cause for local vets, doggie day cares, boarding and grooming facilities, and local stores that sell pet product;
► the difficulties related to enforcement for the Town’s Animal Control Officers, Law Enforcement Officers, the Municipal Prosecutor and the Municipal Judge;
► review of neighboring jurisdictions laws and the absence or presence of breed specific legislation;
► developments in the law including Service Animals under the Americans with Disabilities Act;
► an evolution of thought regarding addressing an animal’s behavior as an indicator of future acts, instead of how the animal looks; and
► feedback from Town residents that clearly favors lifting the breed specific ban as well as feedback from residents who are opposed to this recommendation.
The foregoing points serve as further augmentation to the more detailed bulleted information contained in the packet, and on line, from the January, 2018 Open House.
Feedback from the Public
Copy of the feedback is posted at www.CRgov.com/animals <http://www.CRgov.com/animals> and is available for review.
Additional Considerations Related to Breed-Bans (A number of articles have been posted as well at www.CRgov.com/animals <http://www.CRgov.com/animals>)
A number of organizations including: the American Bar Association; the American Kennel Club; the American Veterinary Medical Association; the American Veterinary Society of Animal Behavior; the Center for Disease Control and Prevention; the Obama Administration; State Farm Insurance; the U.S. Department of Housing and Urban Development; the National Canine Research Council; the U.S. Department of Justice; the American Society for the Prevention of Cruelty to Animals; the Association of Pet Dog Trainers; Best Friends Animal Society; the Humane Society of the United States; and the National Animal Control Association support the adoption of comprehensive breed-neutral dangerous dog laws. (People for the Ethical Treatment of Animals “PETA” supports breed-bans). Generally, it is thought that breed-neutral laws better ensure due process protections for owners and encourage responsible pet ownership, rather than attempting to distinguish dogs based on one or more specific breeds, including dogs thought to be mixes of those breeds, as inherently “dangerous” based on the dog's physical appearance. Under a breed-specific rubric dogs are judged based on a number of physical characteristics, none of which take into account the dog’s actual disposition or behavior. As a result of the inherently subjective nature of such evaluations breed-specific provisions may impact the property rights of responsible dog owners related to the seizure and destruction of property (family pets) simply based on the fact that the dog may appear to belong to one or more of any targeted breed based on its genetic make-up or appearance.
The American Bar Association advocates that “public safety and property rights are safeguarded when governmental entities target a specific dog or dog owner's behavior, not appearance.” Also, as a fundamental underpinning, are traditional notions of fairness and due process-which are typically triggered in situations where there are alleged failures related to adequate notice to the public and to the officers charged with enforcement in order to prevent arbitrary and discriminatory application of the law. Furthermore, given the subjective nature of such visual assessments there is significant room for error and even experienced professionals do not always agree. The vagueness attendant to making such determinations can lead to challenges related to notice considerations, and too much discretion by officials in identification practices can result in subjective and arbitrary enforcement of the law, which can lead to vagueness challenges and alleged due process violations. The ABA also discusses the economic and efficiency aspects of breed-bans, as well as the difficulties related to identification and enforcement and the negative impact on individuals, including those with disabilities under the Americans with Disabilities Act (ADA). The ABA states that “measures that protect the public from dogs that are actually dangerous have proven to increase public safety,” and ultimately urges governmental agencies to enact comprehensive breed-neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both individual dog owner and dogs, and to repeal any breed-specific provisions.
Review was undertaken of a comprehensive article regarding the issue of dog bite related fatalities. Data collected over a 10-year period supported the conclusion of the multifactorial nature of dog bites and stressed the importance of collaborating with professionals in animal behavior when attempting to understand and prevent dog bite-related injuries to humans. Multiple factors under the control of dog owners were identified as indicators including: isolation of dogs from positive family interaction and other human contact; mismanagement of dogs by owners; abuse or neglect of dogs by owners; dogs left unsupervised with a child or vulnerable adult who may be unfamiliar to the dog; whether a dog has been neutered; and maintenance of dogs in an environment where they are trapped, neglected, and isolated and have little control over either the environment or choice of behavior that can potentially predispose dogs to enhanced territorial, protective, and defensive behaviors toward stimuli that occur commonly in everyday life. The study’s primary objective was to examine potentially preventable factors in human dog bite-related fatalities on the basis of data from sources that were more complete, verifiable, and accurate than media reports used in previous studies using a sampling of dog bite related fatalities occurring in the United States from 2000 to 2009. The major co-occurrent factors included absence of an able-bodied person to intervene, incidental or no familiar relationship of victims with dogs, owner failure to neuter dogs, compromised ability of victims to interact appropriately with dogs, dogs kept isolated from regular positive human interactions versus family dogs, owners' prior mismanagement of dogs, and owners' history of abuse or neglect of dogs characterized by coincident and preventable factors, but breed was not one of them. The results supported previous recommendations for multifactorial approaches, instead of single-factor solutions such as breed-specific legislation, for dog bite prevention.
The role of the breed was also analyzed in an article by the AVMA, titled “Dog Bite Risk and Prevention: The Role of Breed.” As stated in the conclusion “[m]aulings by dogs can cause terrible injuries and death-and it is natural for those dealing with the victims to seek to address the immediate causes. However as Duffy et al (2008) wrote of their survey based data: "The substantial within breed variation. . . suggests that it is inappropriate to make predictions about a given dog's propensity for aggressive behavior based solely on its breed." While breed is a factor, the impact of other factors relating to the individual animal (such as training-method, sex and neutering status), the target (e.g. owner versus stranger), and the context in which the dog is kept (e.g. urban versus rural) prevent a specific breed from having significant predictive value in its own right.
Also the nature of a breed has been shown to vary across time, geographically, and according to breed subtypes such as those raised for conformation showing versus field trials. Given that breed is a poor sole predictor of aggressiveness and pit bull-type dogs are not implicated in controlled studies it is difficult to support the targeting of this breed as a basis for dog bite prevention.”
Dogs.Bite.org has published statistics that suggest in a 12 Year period from - 2005 to 2016, 392 Americans suffered death due to dog bite injury with Pit Bulls accounting for 254 deaths (or 64.8%), with Rottweilers next, at 14 deaths (or 11.0%). DogsBite.org also produced an article titled “Breed-specific legislation FAQ,” that provides a number of reasons why breed-specific law work suggesting a dramatic reduction in pit bull attacks on people and animals as well as having a positive impact on shelters. The article states that well-written breed specific laws have a 100% success rate when challenged based on constitutionally grounds, it stresses the importance of mandatory spaying and neutering, and makes suggestions regarding enforcement. The article also explains that there are not negative impacts on the budget related to enforcement. An overview of how and why breed legislation first began is provided-namely in direct response to the “savagery” of pit bull attacks and the catastrophic and fatal injurers inflicted by Pit Bulls. The article claims that breed-specific legislation recognizes the cost and severity of victim’s injuries and that of the 860 cities that regulate specific dog breeds, 100% target pit bulls because of their propensity to attack and inflict severe and disfiguring injures.
Review was also undertaken of the more in depth complexities related to breed identification in an article titled Comparison of Adoption Agency Breed Identification and DNA Breed Identification of Dogs.
Conclusion
Based on a number of considerations our team will be making a recommendation to Council to lift the breed-specific ban and to institute a two-tiered, behavior based, potentially dangerous and dangerous dog system.
Attachments
• Draft Ordinance
• April 2017 Postcard
• 2017 Open House Information
• April 2017 Your TownTalk
• January 2018 Postcard
• 2018 Open House Information
• January 2018 Your TownTalk
• American Kennel Club Legislation Position Paper
• Humane Society Letter