Friday, October 17, 2008

Fallacy of Change - NO on Gwinnett's Proposed Barking Dog Revisions

Gwinnett County has rolled out the proposed changes in the now controversial "Public Nuisance" dog barking provisions. These changes are in "draft" form as submitted by the county attorney's office.

While there are a few "cosmetic" changes to the ordinance nothing at all was changed under the penalty provisions which allow the county solicitor's office to recommend six month jail terms, up to $1,000 in fines and potential loss of any family pet cited under the ordinance.

Since these sentencing guidelines can be stacked for owners of multiple pets there is nothing in the proposed changes that would prevent pet owners from facing life altering jail sentences, financial ruin through extremely large fines and more importantly the loss of a families pets. In other words, those who own four pets still face up to two years jail and $4,000 in fines while those who own eight pets could see those penalties doubled.

The revised law still fails to address the county's practice of charging barking violations based on the number of dogs owned as opposed to only citing dogs accused of actual violation of the barking ordinance. You could still face jail time - pay fines and even have impounded dogs who aren't even involved in a complaint.

The ordinance also fails to address the costs associated with enforcing laws that still don't include involving animal control in investigating any allegations of ordinance violations. These costs will include the additional expenses occurred trying to enforce another poorly written ordinance in Gwinnett's Recorder's Court.

The county attorney's office failed to take heed to the costs being run up in my failed prosecution on violating the existing dog barking ordinance. Do the citizens of Gwinnett really want to see huge increases in our county court budget that already faces an overloaded case load on crimes that seriously do impact our community?

Are we going to see recommendations further down the road for courts set up exclusively to prosecute dog barking cases and jails to house pet owners convicted of owning a "barking dog"?

As written in this draft these changes are totally not acceptable.

Absent the issue of ignoring the major problem of common sense sentencing guidelines here are the proposed changes. I will address a number of legal and constitutional issues this draft still fails to address.

Instead of seeking new solutions towards laws that encourage and reward responsible pet ownership our leaders in "animal law" issues continue to draft and pass draconian animal ordinances which provide for the impounding of family pets for even minor first time violations.
Instead of seeking ways to prevent pets from becoming "shelter fodder" our leadership creates new categories and excuses for impounding and adding to the number of pets killed. In effect, our laws discourage and punish those who might choose to adopt a pet that otherwise is killed.

10-33. Public nuisance animal.

(a) A public nuisance animal shall mean and include any animal that:

(1) Is repeatedly found at-large; or
(2) Damages the property of anyone other than the owner; or
(3) Is vicious; or
(4) Attacks without provocation; or
(5) Makes any vocalizations for more than 15 minutes without interruption or more than 30 minutes if the vocalization is intermittent. These time limits do not apply if the vocalizations are given as a warning to the presence of an intruder. Officers enforcing this subsection are not required to measure the vocalizations with the use of a sound level meter. Upon notification of a complaint concerning such vocalizations, the owner of such animal shall be given written warning indicating that such animal is creating a disturbance, so long as the complainant provides the officer with the address of the owner. If the disturbance is not resolved within two days or a subsequent compliant is made for such animal by a different individual, who resides at a different location from the first complainant, a court summons shall be issued in accordance with the requirements of this articles; or(5)

(a) animal that makes any vocalizations or more than 15 minutes without interruption or more than 30 minutes if the vocalization is intermittent shall be defined as a public nuisance animal.

(1) These time limits do not apply if the vocalizations are given as a warning to the presence of an intruder.
(2) Officers enforcing this subsection are not required to measure the vocalizations with the use of a sound level meter.
(3) Upon notification of a complaint concerning such vocalizations, the owner of such animal shall be given a written notice from the Animal Control Unit indicating that such animal is creating a disturbance and advising the owner of some possible solutions to rectify the nuisance. The complainant must provide the officer the address of the owner and a physical description of the offending animal before any written notice shall be sent. The owner shall have three (3) days to resolve the disturbance.
(4) If the disturbance is not resolved within three (3) days and the animal control unit receives a second complaint from the original complainant, he or she will be asked to provide a sworn statement regarding the disturbance. The original complainant will also be required to obtain a sworn statement from another individual regarding the disturbance. The statements must be from individuals residing at different addresses in close proximity to the animal creating the disturbance. Upon receipt of the sworn statements, a citation will be issued in accordance with the requirements of this ordinance.
(5) If the disturbance is not resolved within three (3) days and the animal control unit receives another complaint from another individual in close proximity to the animal creating the disturbance, both complainants will be asked to provide a sworn statement. Upon receipt of the sworn statements, a citation shall be issued in accordance with the requirements of this ordinance.
(6) The original barking complaint will remain on file and active for a period of thirty (30) days following the three (3) day resolution period. If no further complaints are made during the thirty (30) day period, the complaint shall expire and the process begin again.

(c) Any such public nuisance animal may be impounded and the owner or possessor charged for a violation of this article.

What follows are the pitfalls and legal issues this draft fails to address. They are:

!) While section (1) addresses an exclusion for "intruders" the law fails to identify what the court's interpretation of intruder is. In my case the judge ruled that intruders DID NOT include what most pet owners view as customary issues they would EXPECT their dogs to bark at including cars parked in front of your house with people who could be stalking your property, strangers walking your neighbors back yard, strangers attempting to access your neighbors property or parked in their driveway thieves breaking into your neighbors, pedophiles watching and filming neighborhood children playing.

This law is written to interpret an intruder to be "someone who physically enters your property".

In fact, our county solicitors office has pointed out that under the current law dogs left outside even in fenced and secure yards for more then the allotted thirty minute timeframe the law allows for "intermittent" barking would be an admission of violating the ordinance even if the only evidence was based on a complaint statement.

2) Section (2) not only doesn't require animal control to measure the noise levels but fails to require any type of investigation to verify that the pet owner is in violation of the ordinance. In fact, these complaints can be filed AT animal control with animal control issuing citations without even verifying that any of the facts stated on complainant's sworn statement are true. Animal control is not required to investigate or even visit the location were the dogs are being cited.

In my case the sworn statement filled out that resulted in my citations being issued included several obvious false statements INCLUDING the fact the complaining party claimed to reside at the house located next to me when in fact she lived several miles away. Animal control not only failed to investigate this issue but did NOT require her to furnish any PROOF of residence including displaying a driver's license. Obviously someone who doesn't even reside in "close proximity" of where the alleged barking dog violation occurs CAN NOT swear to facts such as the "dogs bark day and night".

This law allows for abusive manipulation by real estate speculators and those who might seek some sort of vindictive retribution on issues that have nothing to do with the dogs being cited.

In fact, the sentencing guidelines encourage those who simply don't like dogs, don't want dogs living in their neighborhood to have these dogs removed by exploiting this poorly written ordinance. Those of us who have responsibly owned dogs for years are at the mercy of any unethical predatory realtor only interested in selling a property nearby with no long term commitments to our neighborhoods.

No where in our county codes do we grant private citizens the power to not only bring about criminal charges but in fact manufacture evidence to support those changes WITHOUT any policing investigation except for barking dogs. We would not allow a citizen to go to their local police station and swear out a statement that they witnessed someone driving under the influence or committing road rage WITHOUT assigning an investigating to verify if these changes were even remotely true - yet dog owners do not have the same DUE PROCESS rights?

Further it is an embarrassment when our county attorney's office who writes these drafts and laws fail miserably in addressing truth and credibility issues with their own witnesses. This is the same attorney's office that threatens lengthy jail terms while denying trials by jury, that completely fails to understand what compliance to discovery motions are all about. Only in dog barking cases would the solicitor be allowed to introduce manufactured video's at the trial while ignoring any filed discovery motions in the process.

I would suggest that Gwinnett County Attorney's office spend a little more time brushing up on a document called the U.S. Constitution - especially the first year law school sections that address due process and cruel and unusual punishments. That would be a change we as citizens are all entitled to. We don;t ask for much as citizens on this fine community but we do ask for fairness.

3) Section three is equally confusing - while it suggests that the owner of such animal shall be given a written notice from the Animal Control Unit indicating that such animal is creating a disturbance and advising the owner of some possible solutions to rectify the nuisance - it doesn't address HOW the owner is going to be advised on possible solutions if animal control is not required to investigate any of the accusations involved. I would suggest that this issue of investigating allegations prior to bringing about citations is seriously needed in any ordinance change being proposed.

It is ironic that dog barking appears to be the ONLY animal violations that lacks this step in the process. All of the other issues addressed including dogs running at large, no tags, damage to property require investigations and citations being written based on this investigation.

4) Section (4) addresses the requirements of requiring sworn statements but what are the penalties involved for those who file false and frivolous charges? Is the county going to continue a practice of accepting at face value that all citizens are being honest with their allegations or are pet owners entitled to an accepted "innocent until proven guilty" concept that seems to get lost in these cases.

Simply because a citizen "owns" a dog is not evidence that the dog violated the statute absent of any investigation into the claims on the sworn statement. Going back to my case in addition to being falsely accused of "harboring" dogs that barked day and night I was also accused of breeding dogs, kicking and beating my dogs, keeping my dogs in horrible conditions and that in fact all of the dogs I owned were guilty of violating the ordinance. Despite their being NO evidence that any of these allegations were even remotely accurate animal control focused on the allegation that there might have been a violation of the barking dog ordinance. I say might because even knowing all the facts they still failed to verify any of the claims and accusations on this "sworn" statement so why should pet owners feel any more protected under the revisions being proposed?

The statement " The statements must be from individuals residing at different addresses in close proximity to the animal creating the disturbance. " would require definition as well. This change would have eliminated one, two or all three of the witnesses used in my case who did not "live" in close proximity to the animals doing the barking. The fact is the old law allowed two witnesses who lived several miles away and a third witness who lived over a football field away and admitted to being hard of hearing at the trial. Arguably he couldn't possibly hear "disturbing" dog barking coming from my address. Even IF barking could be heard coming from the direction of my house it would be impossible to determine IF those dogs were mine or IF an intruder was responsible for causing the dogs to bark.

It is ironic that our county attorney's office used a witness with those hearing limitations who testified that while he was hard of hearing and required a hearing aid he could still hear my dogs from his bedroom which prevented him from being able to sleep. I guess the thought of turning down the volume on his hearing aid never crossed his mind? Does the law address these issues? does not but instead uses these weak excuses in obtaining convictions.

5) Section (5) has the same problems as section (4).

6) Section (6) is the only provision that makes any sense. It would have also prevented my case from ending up in court and ending up costing local taxpayers thousands of dollars in court costs that could have been spent elsewhere. Under the existing ordinance it is unclear as to if a pet owner makes substantial changes to correct a problem whether or not those changes were effective or whether there might be a different issue involved.

There are a number of common sense issues that the county attorney's omitted from the proposed changes. I often wonder if the people who draft these laws even own a dog let alone more then one.

News flash for the county attorney's office - DOGS BARK 0 but typically they have a very good reason for doing so. While I fully understand that neighbor's are entitled to privacy and I too would be upset if my dogs or my neighbors dogs barked well into the night the fact is under this law it is also virtually impossible to allow your dog out in your yard for more then thirty minutes without risking being cited if a neighbor feels so inclined.

A much simpler approach would be to address the issue of barking dogs under the county noise ordinance. It is ironic that if a pet owner chooses to allow their dog(s) out in the yard while they are mowing the lawn and that process takes more then thirty minutes they can be cited if there dogs bark intermittently for noise but the much louder noise coming from the lawn mower is legal. It's also concerning that a pet owner who simply takes their dog(s) out in the yard to play at lunch time could be cited if that activity includes playful intermittent barking that lasts for more then thirty minutes - YET property owners who enjoy "playing" with their leaf blowers are completely legal. While can understand the outrage if a property owner pulled out their lawnmower or leaf blower at 3:00 AM it defies logic why the close to 40% of Gwinnett families who own pets are denied access to their own yards during daytime activity. My "offense" occurred in the middle of a Sunday afternoon when many of my fellow neighbors were tending to their chores including possibly mowing their lawns.

I'm still waiting for one of our county legal scholars to explain to me why three minutes of dogs allegedly behaving like dogs on a sunny afternoon is such a danger to the community that twelve year jail terms are in order?

Wouldn't it be much to eliminate all the large government ineffective bureaucracy by simply developing a mediation process to settle these "neighborly" disputes? While that doesn't support case loads for the legal community in arguing when and if the dog barked it does act as a guardian to the county's funds.

A mediation group of enlightened adults (who stop acting like adolescent's) which could include someone representing animal control and the county solicitors office and who could mediate any disagreements without tying our courts on such frivolous nonsense?

This law can be easily manipulated by neighbors who have issues or squabbles that have absolutely nothing to do with the dogs involved. Rather than drawing our neighborhoods together, squabbles that lead to the loss of our family pets will instead serve as a catalyst for ripping them apart. Many citizens who choose Gwinnett as their home also have a love affair with their family pets. The image of having Fluffy or Fido ripped from the family home is one that will seriously damage an already depressed market for the homes we own.No one wants to live in a community where a family lives in fear---even that fear that their family pet could very well be next to be accused of being a "public nuisance." Our community will be judged on how we treat our elderly, our children and our family pets. That is the community's core of family values.

Please forward your comments to:

Our commissioners
Commission Chairman:Charles Bannister770.822.7010

District 1 Commissioner: Lorraine Green 770.822.7001

District 2 Commissioner: Bert Nasuti770.822.7002

District 3 Commissioner: Mike Beaudreau770.822.7003

District 4 Commissioner: Kevin Kenerly 770.822.7004
Current Animal Advisory Board Allison Wilkerson Rooks Gwinnett Municipal Association Carla Brown Member at Large Tricia Smith Gwinnett Extension Service Dennis Kronenfeld Feline Issues Gloria Kennedy Gwinnett Humane Society Gail Laberge Chairperson - Lawrenceville Kennel Club Clara Seals - Member at Large Mary Lou Repress New Shelter Director

Thursday, October 16, 2008

Meeting Gwinnett Animal Advisory Council

There will be a meeting of Gwinnett's Animal Advisory Council's at the Gwinnett Shelter this Thursday evening (October 16th) at 7:00 PM.

While it is unclear what the agenda of issues to be discussed there are early a number of animal welfare issues that need clarification. With the dramatic increases in dogs and cats being killed at the new Gwinnett's Animal Shelter the focus has shifted to the role the county's animal advisory council should have moving forward.

Commissioner Mike Beaudreau has recommended a dialog be opened with local animal advocates and pet owners on alternatives that would open up county animal welfare policies and solutions to those who feel disenfranchised in the process.

Proposals that are being raised which include replacing four council members up for reappointment, term limits on how long volunteers can serve on the AAC and a process of having each of the four elected commissioners nominate one dog owner and one cat owner to the council thus expanding the makeup of the AAC.

Changing the stagnation of ideas coming out of the current AAC is only the first process in turning the tide in our shared animal welfare policies. We must rebuild the current "bridge to nowhere" between the shelter and the local animal rescue community in order to accomplish our community goals.

This recent article in the Gwinnett Daily Post addresses many of the challenges the new shelter faces.

Just because you build a larger, newer shelter does not mean you'll have more adoptions - especially if you leave everything else the same. Comparing numbers from June of 2007 from the old shelter and June of 2008 in the new shelter adoptions are down by 20%. There is an even more dramatic reduction in the number of pets going to local rescue groups with those numbers down by close to 60%.

In June of 2007 there were 124 animals sent to rescue out of the old shelter on Hi Hope Road while that number dropped to 54 in June of 2008. While the problems associated with numbers of pets increasing in the new shelter makes finding solutions more tenuous the issue of a dramatic reduction in the number of pets going to rescue groups is more problematic. There is clear evidence that the rescue community feels not only disenfranchised in the process but fears the intimidation issues as well.

Despite repeated requests animal shelter reports for all of 2007 and the first three quarters of 2008 are not available through the county's web site.

A huge market for second hand pets has flourished when instead people are exposed to wonderful dogs and cats while shopping at local pet supply stores. Shelters finding their numbers of pets being killed increasing have turned instead to building solid working relationships with local rescue groups and by seeking out community volunteers to participate in off site adoptions.

Common sense dictates that pet owners/taxpayers are relied on to fund animal control and therefore should be entitled to help with oversight on county's animal policies. Taxpayers have the right to choose between funding "kill as you go" shelter policies as opposed to implementing cost saving no kill or low kill policies.

This would be a stark contrast to the current makeup of the council which is and has been controlled by special interests.

The last several years has been a turning point for many animal welfare programs seeking to find solutions to rising euthanasia rates when they discovered that pets sell themselves if you simply get them in front of people who are most likely to adopt. No matter how much you dress up any kill shelter there is still going to be the issue that many pet owners simply don't want to have to face the guilt associated with picking out the next family pet in that type of environment.

For shelters that partner with local pet supply stores opportunities are many. Throughout the Atlanta metropolitan area there are dozens of pet supply stores like Petsmart that have formalized adoption centers on weekends and catered the programs to meet the community's needs.

The advantage of marketing pets through rescue groups and pet supply stores also serves pet owners too. People adopting a fostered dog or fostered cat from a licensed rescue group have an abundant choice of pets who are more socialized, healthier and a better fit for their family. Many pet owners who would like to add a rescue pet as the next family pet are ill equipped for dealing with many of the issues that come with adopting straight out of a county kill shelter.

When you cut off that line of local discussion with pet owners and animal advocates as well you destroy all hope towards finding economical and compassionate solutions that no kill movements offer. To get to no-kill it involves developing the partnerships with rescue groups in the community AND with involving local volunteers as part of that solution.

True partnerships only flourish in an atmosphere of mutual respect and trust not in one where condemnation and threats flourish instead. True partnerships grow through seeking out solutions rather then focusing on finding blame. A no-kill community learns how to harness the expertise of many of it's experts in those fields.

A true no-kill policy benefits all pets, mutts, pure breeds, cats by providing an example of responsible pet ownership. Responsible pet owners, responsible animal advocates and responsible shelter staff work as a team in helping to teach others the role they play in that no-kill community.

Over the next four years Gwinnett is in serious need of major changes in nor only our poorly written animal ordinances but more importantly how the county handles it's animal control issues. It is no longer acceptable to simply accept killing off excess dogs and cats as an acceptable solution financed by county funding. Revamping the animal advisory council in a manner that will encourage new ideas is a step in the right direction.

Please take the time to attend tomorrow evening's meeting and have your voice heard on these very important issues that serve all of our community's pets.