§ 4-35. Procedures for determinations under Chapter 767, Florida Statutes.

(a)

Definitions. As used in this section, and unless the context clearly requires otherwise, the terms and phrases defined in Section 767.11, Florida Statutes, shall have the meanings therein ascribed, and the following terms and phrases shall have the meanings herein ascribed:

(1)

County means Clay County, Florida.

(2)

County manager means the county manager of the county.

(3)

Department means the department of the county within which the division operates, the department of environmental services.

(4)

Department head means the head of the department of environmental services.

(5)

Division means the county's division of animal services or its successor in function.

(6)

Hearing officer means the hearing officer appointed under subsection (d).

(7)

Registered mail means registered mail as defined in Section 1.10(11), Florida Statutes.

(b)

Purpose. The purpose of this section is to implement certain provisions of Chapter 767, Florida Statutes, within the county by establishing hearing and appeal procedures pertaining to a determination:

(1)

That a dog is classified as a dangerous dog in accordance with Section 767.12, Florida Statutes;

(2)

That a dog must be destroyed in accordance with Section 767.13(1), Florida Statutes;

(3)

That a dog must be destroyed in accordance with Section 767.13(2), Florida Statutes; or,

(4)

That a dog must be destroyed in accordance with Section 767.13(3), Florida Statutes.

(c)

Animal control authority. For purposes of this section, the division shall be the animal control authority within the meaning of Chapter 767, Florida Statutes.

(d)

Prehearing procedures. Any investigation pertaining to a determination under subsection (b) shall be conducted by the division. The department head shall make all initial determinations under subsection (b). If the department head finds upon the division's investigation that sufficient cause exists to make an initial determination under subsection (b) with respect to a dog, both as to being classified as dangerous and as to the appropriate penalty, then the department head shall provide to the owner of the dog a written notification of the sufficient cause finding and proposed penalty by registered mail, certified hand delivery, or service in conformance with the provisions of Chapter 48, Florida Statutes, relating to service of process. A copy of Chapter 767, Florida Statutes, and of this section shall be provided to the owner along with such written notification. The notification may set forth alternative initial determinations under subsection (b). The notification shall inform the owner that within a period of seven (7) calendar days immediately following the date of service thereof, the owner may file with the division a written request for a hearing before a hearing officer on the issue whether a final determination regarding the dangerous dog classification or proposed penalty, or both, under subsection (b) should be made in accordance with the initial determination or alternative initial determinations. The notification must inform the owner that the owner's failure to file a request with the division within such seven (7) day period shall be deemed a waiver of the owner's right to a hearing, and that the department head shall proceed without delay in making a final determination based upon the department head's initial determination or alternative initial determinations. If the owner of the dog shall properly and timely request a hearing, the department head shall immediately notify the county manager, who shall promptly appoint himself or any department head of the county other than the department head of environmental services to serve as the hearing officer. Immediately following appointment, the hearing officer shall schedule a hearing, to be conducted not more than twenty-one (21) calendar days and not sooner than five (5) days after the division's receipt of the request from the owner; provided, upon the owner's consent the hearing may be scheduled after said twenty-one (21) calendar days, but in no event later than sixty (60) calendar days after the division's receipt of the request absent good cause. The hearing officer shall serve written notice upon the owner and the department head regarding the date, time and place of the hearing.

(e)

Hearing rules and procedures. The hearing before the hearing officer shall be conducted in accordance with the following rules and procedures:

(1)

The parties shall be the county and the owner of the dog.

(2)

At the hearing, each party shall have the following rights:

a.

To be represented by counsel at the party's expense;

b.

To compel the attendance of witnesses and the production of tangible and documentary evidence by subpoena;

c.

To examine and cross examine witnesses;

d.

To offer exhibits and documents into evidence;

e.

To examine opposing witnesses on any relevant matter, even though the matter was beyond the scope of direct examination; and

f.

To offer impeachment evidence with respect to any witness regardless of which party first called the witness to testify.

(3)

All testimony shall be under oath administered by the director.

(4)

The county shall have the initial burden of proving that a final determination should be made under subsection (b).

(5)

The owner of the dog shall have the burden of proving any defenses or avoidances to a final determination under subsection (b).

(6)

The standard of proof for any final determination under subsection (b)(1) shall be the preponderance of the evidence.

(7)

The standard of proof for any final determination under subsection (b)(2), (3) or (4) shall be clear and convincing evidence.

(8)

The county shall cause an audio recording of the hearing to be made and preserved.

(9)

The hearing shall be conducted, insofar as practicable, in accordance with the Florida Evidence Code, but the hearing shall be conducted in an informal manner; provided, hearsay evidence shall be admissible, except that no finding of fact shall be based upon hearsay alone.

(10)

The hearing officer shall have the power to issue subpoenas to compel the attendance of witnesses at the hearing upon the written request of either party. The following rules shall apply to a subpoena issued by the hearing officer:

a.

A subpoena may be served by any person authorized by law to serve process. Service shall be made as provided by law.

b.

Any person subject to a subpoena, before compliance and on timely written petition submitted to the hearing officer, may challenge the subpoena and request that the hearing officer quash the same. Such petition must set forth cause for the challenge that would be sufficient grounds under the state law for a court to quash a subpoena. If appropriate, the hearing officer may conduct a hearing on the petition upon prior notice to the petitioner and the parties.

c.

A party may seek enforcement of a subpoena issued by the hearing officer by filing a petition for enforcement in a court of competent jurisdiction. Failure to comply with an order of the court shall result in a finding of contempt of court; provided, no person shall be in contempt while a subpoena is being challenged under subparagraph b.

d.

Witness fees shall be paid as provided by law.

(f)

Final determination. If the owner of a dog who has been provided a notification under subsection (d) has failed to make a timely request for a hearing thereunder, the department head shall proceed without delay in making a final determination under subsection (b) in accordance with the initial determination or alternative initial determinations for which such notification was provided. If such owner has made a timely request for such hearing, then following the conclusion of the hearing the hearing officer shall proceed without delay in making a final determination under subsection (b) in accordance with the initial determination or alternative initial determinations for which such notification was provided.

(g)

Notification. Upon the making of any final determination under subsection (b) with respect to a dog, both as to being classified as dangerous and as to the appropriate penalty, the decision maker shall promptly provide to the owner of the dog a written notification thereof by registered mail, certified hand delivery, or service in conformance with the provisions of Chapter 48, Florida Statutes, relating to service of process. Such notification must inform the owner of the owner's right to file an appeal of the classification and/or the penalty, or both, to the circuit court in accordance with the Florida Rules of Appellate Procedure after receipt of the final determination. If the dog is not held by the division of animal services, the owner must confine the dog in a securely fenced or enclosed area pending resolution of the appeal. If the decision maker is the hearing officer, a copy of the notification shall also be provided to the director.

(h)

Appeal. If the owner of a dog files a timely appeal in the circuit court, then the owner must pay all applicable filing fees. The owner's failure to timely file such appeal shall be jurisdictional. For purposes of the appeal proceeding the parties shall be the county and the owner of the dog. Each party shall promptly serve upon the other copies of all documents filed with the court in connection with the appeal proceeding. Such service shall be certified as provided in the Florida Rules of Civil Procedure, and may be accomplished in any manner authorized under said rules. The circuit court shall promptly conduct a trial de novo on the issue whether such final determination should be upheld. The applicable burden of proof and standard of proof shall be the same in the circuit court as provided for a hearing under subsection (e).

(i)

Applicability. The provisions of this section shall be applicable throughout the incorporated and unincorporated areas of the county.

(Ord. No. 2015-16, § 1, 6-23-15; Ord. No. 2018-22, § 1, 5-8-18)