New Dog Barking Rules in Parts of Orange County, CA: Part II (Intro.to Complaint Procedures)

by Steve Reiss (stevenreiss@scienbizippc.com) 

In a prior post, I started describing the brand-spanking new Orange County barking laws that went into effect in October, 2017.

In this post, using information from OC Animal Care, (OCAC) I will describe the complaint process created by the new laws. 

This complaint process should not exactly make you think the county or city is going to do anything about your neighbor's "incessantly" barking dog.

Indeed, the complaint process places such burdens on the complainant, it will take me two blog posts to drag you through it. 

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Complaint Procedure

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 The Barking Dog complaint process generally comprises multiple steps:

1. Who Could Receive a Citation?
2. Initial Complaint
3. Second Complaint
4. Citation Issuance
5. Civil Citation Administrative Hearing
6. Optional: Education or Mediation Appointments

Initial and second complaints? Don't we want to avoid the need for second complaints?

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1. WHO COULD RECEIVE A CITATION UNDER THE NEW LAW?

Citations can be issued to any "responsible person". This means more than just the owner.

Under the new law, a "responsible person" is defined as any one of the following:

1. A person who allows a barking dog or animal nuisance violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog or animal nuisance.

2. A person whose agent, employee, or independent contractor allows a barking dog or animal nuisance violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog.

3. A person who is the owner of, and a person who is a lessee or sub-lessee with the current right of possession of, real property in or upon which a barking dog or nuisance animal violation occurs.  

4. ...a minor at least 14 years of age may be a Responsible Person subject to the provisions of this subarticle.

Wow, this looks as if it covers all those neglectful landlords, rental agents, dog sitters, kennel owners, and kids with lemonade stands. Maybe this law is pretty good, it will get those lazy landlords and kids to finally stop my neighbor's dog's barking! And I don't have to worry about complaining about the actions of the 14 year old; the minor's parents or legal guardian shall be liable for and held responsible for payment of their minor child's citation fines and/or late penalties. Anyway, I don't want to bankrupt the 14 year old; I just want the county to do something about that barking dog.

Let me grab my paper and pad and write out my complaint. How the heck do I do it?

2. THE BARKING DOG COMPLAINT PROCESS

An outline of the Barking Dog or Animal Nuisance complaint process is listed below.

A. INITIAL COMPLAINT

The complainant must first initiate a complaint in writing, under penalty of perjury, by submitting a completed Barking Dog Complaint Form to Orange County Animal Care ("OCAC").  Be advised, OCAC does not provide identifying information of the complainant at the first step in the process.

Once the initial complaint has been processed, an Animal Control Public Education Officer (PEO) will attempt to contact the owner or responsible person to explain the Barking Dog or Animal Nuisance complaint process and to help resolve the situation. 

"Public Education Officer?" - Does not exactly sound like someone with a muzzle and a cage is on their way.

If the owner or responsible person is not available, a courtesy notice with an attached informational packet will be left at the residence. 

The notice will give the owner or responsible person ten (10) days to resolve the situation.

OCAC makes the responsible party feel good though, saying:

The COURTESY NOTICE is NOT a citation and is only meant to advise the responsible person of the complaint and of the ten (10) day period allowed to resolve the issue. 

But, realizing there are complainants reading the website, OCAC throws them a bone, saying:

Many complaints received are resolved after the delivery of the courtesy notice and do not escalate to the issuance of a citation.

However, "many" is not "all", nor "mos"t, nor 10%...Many just means, well, I don't know what it means.

There are no fines associated with the courtesy notice. 

B. SECOND COMPLAINT

What happens when your neglectful dog owning neighbor isn't scared into shutting up their dog after reading the "courtesy notice" and not having to pay any fines?

If the barking still occurs after the ten (10) day period allowed for the responsible party to correct the issue, a second complaint may be submitted to OCAC by the complainant. 

It is at this point, the complainant is the one inconvenienced: 

OCAC will schedule an affidavit appointment to meet with the complainant.

If OCAC is not contacted within thirty (30) days following the ten (10) day resolution period, the complaint will expire.

In other words, the complainant must keep pushing this forward. Otherwise the "responsible party" has to do nothing.

But, if the complainant is pissed or motivated enough (or, does not have to go to work) to go through the hassle of filing a second complaint within the thirty (30) days, they are given the honor of being "required" to complete an affidavit, signed under penalty of perjury, attesting to the observed violation during the affidavit appointment in order to further their complaint to the issuance of a citation. Who is the person doing wrong?

We are then reminded again by the procedure that OCAC does not investigate or make a determination that a Barking Dog or Animal Nuisance violation has occurred.

Citations are issued after the receipt of a second complaint and are based on the sworn affidavit signed by a complainant. 

Finally! That dog is out of here? Nope!!!

3. CITATION ISSUANCE

Once a signed affidavit is received by OCAC, a citation may be issued. 

The first three (3) citations issued for a Barking Dog complaint are civil citations. After three (3) successful civil citations within a two (2) year period, the fourth citation issued may be a criminal citation. 

Wait a second...why the heck is that "responsible party" being allowed to be irresponsible, for 2 years? That dog is a yapping machine. Little has changed for the better...

But, at least its a citation. Things are done!

Nope, not even...

Unless the responsible person elects to roll over and pay the fine associated with the citation, the citation will be scheduled for an informal administrative hearing so that a Hearing Officer can make a decision on the outcome of the citation. The complainant is required to attend this administrative hearing. If they do not, the civil citation may be dismissed by the Hearing Officer. The responsible person is also required to attend the administrative hearing if they chose to contest the civil citation.

You mean I need to take more time off to get this dog shut up? Yep, sucka.

More than that dude. Remember, since OCAC does not investigate or make a determination that a Barking Dog violation has occurred, it is the responsibility of both parties to bring evidence or testimony to the administrative hearing. In order to be considered, copies of evidence or digital media must be submitted at the hearing. Yep, you, the complainant, need to figure out how to take that video of your neighbor's barking dog off of your phone and onto a CD-ROM.

If I finally manage to convince the Hearing Officer I am right, does that mean this yapping dog is out of there? Nope, but you knew that already.

If the civil citation is upheld, the responsible person will have 30 days to pay the civil citation fine. The same fine they had no real motivation to pay earlier.

Criminal citations issued after the fourth citation are issued for a violation of OCCO 4-1-48 (misdemeanor violation) and submitted to the OC Superior Court for processing and disposition. You can imagine the importance with which the local prosecutor is going to give this matter.

This article is for informational purposes and does not contain legal advice.
 

New Dog Barking Rules In Parts of Orange County, CA: Part I (Introduction)

by Steve Reiss (stevenreiss@scienbizippc.com) 

Effective, October, 12, 2017, in unincorporated portions of Orange County and 14 of her bigger cities*, new dog barking regulations went into effect and will be enforced by OC Animal Care, which contracts with Orange County to enforce the county's animal laws in areas that chose not to have their own animal control agencies.

The highlights of the new regulations seem pretty straight forward, objective, and tough. It makes you think that maybe Orange County learned from all the complaints to its prior barking nuisance laws. Orange County's prior nuisance barking law was described as:

a tedious, time-consuming process that allows violators so much time and so many chances that it’s virtually unenforceable. Of the 2,000 people who inquired about the barking-dog complaint process, 1,500 filed a first-step complaint, but just 25 were ultimately sent to the district attorney.

The criteria for a Barking Dog violation under the new laws are listed below. Complete definitions can be found in Orange County Codified Ordinance (OCCO) Sec. 4-1-3. 

To be a noise violation, the noise disturbance must satisfy at least ONE of the following:

• 30 MINUTES OR MORE OF INCESSANT (NON-STOP) BARKING; OR

• 60 MINUTES OR MORE OF ACCUMULATED INTERMITTENT (ON/OFF) BARKING IN A 24 HOUR PERIOD.

HELPFUL DEFINITIONS:

INCESSANT: Continuing without stopping, or without pause or interruption; unceasing

INTERMITTENT: Occurring in a non-continuous or non-steady fashion. Starting, stopping, and starting again. An occurrence with pauses or interruptions; occasional, sporadic

Barking Dog: a dog that barks, bays, cries, howls or makes any noise for an extended period of time to the disturbance of any person at any time of day or night, 

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Does this language really mean that if you have recorded your neighbor's dog barking non-stop - I mean incessantly- for 45 straight minutes, you make a call and the Sheriff and Animal Control will come right over to make your neighbor cause the barking to stop or take your neighbor's dog away?

Image per Creative Commons/wikihow

Not in the least...

Besides the fact that there are no provisions in the new law to take a nuisance dog away, an irresponsible owner has to be really irresponsible and drag the poor complainant through several hoops before having to take responsibility for the incessant barking of the dog.

However, I guess for really, really barking dogs, maybe double-plus-barking (you had to have read 1984 to get that sarcasm), the county can sue the owner to have the dog declared a public nuisance. OCCO Sec. 4-1-48.** (see definition below)

PERSONAL DISCLAIMER: Don't get my mocking tone and sly sarcasm as anything other than contempt for a regulatory scheme. As a dog owner, I believe people are allowed to their dogs without the nagging of the government, so long as owners make sure the dogs are good citizens. And, as an attorney, I believe private property is never to be taken from citizens without due process.

But as a cynic, when I see a regulatory scheme that seems to not actually do what it is supposed to per the report of the Orange County Board of Supervisors ("Barking Dog and Animal Nuisance complaints represent a quality of life issue for the community. By amending these ordinances, OC Animal Care seeks to establish and effective and balanced mechanism for residents to resolve these issues"), or causes more issues for the noise victim rather than the noise maker, some humor is needed.

Where does this cynicism come from?

When you go to the OCAC website, which is actually quite informative, to read about the new Orange County dog barking regulations, the first thing you read, due to its larger and bold font is:

OCAC does not investigate or make a determination that a Barking Dog or Animal Nuisance violation has occurred...

This immediately makes you wonder who does determine there are nuisances and does it even matter.

The OCAC website then says: 

OCAC facilitates the Barking Dog or Animal Nuisance complaint process, acting as an intermediary between the complainant and responsible person...; and issuing a citation if necessary.  

OCAC can provide assistance mediating the circumstances of the issue or other information between both parties and can provide suggestions on how to resolve the issue with the animal in question. 

"Provide suggestions on how to resolve the issue"?  Most of the barking disputes I have read about require a little bit more than "suggestions". They require a re-education of the barking dog's owner in proper dog ownership manners and/or putting the dog in foster, until the owner adopts proper dog ownership manners.

But, let's go into this thinking positively. After all, the new regulations are supposed to make things better! So what does the complaint process say?

You will have to wait for a future post for me to describe the complaint process.

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*=Fountain Valley, Fullerton, Huntington Beach, San Juan Capistrano, City of Orange, Tustin, Anaheim, Cypress, Lake Forest, Placentia, Yorba Linda, Brea, and Villa Park.

Santa Ana has had this barking dog regulatory structure since 2007. Santa Ana does not contract out to OC Animal Care; the Santa Ana Police Department handles all calls for service regarding barking dogs.

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OCCA Sec. 4-1-48. - Nuisance.

(a) No person shall keep, maintain, or permit, either willfully or through failure to exercise proper control, on any lot, parcel of land or premises under his or her control any animal: 

(1) Which by sound or cry shall disturb the peace and comfort of the inhabitants of the neighborhood, or 

(2) Which affects an entire community or neighborhood, or any considerable number of persons, although the extent of annoyance or damage may differ, or 

(3) Which interferes with any person in the reasonable and comfortable enjoyment of life or property. 

This article is for informational purposes and does not contain legal advice.