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Jimenez v. Multnomah County

Court of Appeals of Oregon

March 6, 2019

Christian JIMENEZ, Plaintiff-Appellant,
v.
MULTNOMAH COUNTY and Multnomah County Animal Services, Defendants-Respondents. Jeffrey CARLSON, Plaintiff-Appellant,
v.
MULTNOMAH COUNTY and Multnomah County Animal Services, Defendants-Respondents.

          Submitted August 29, 2017

          Multnomah County Circuit Court 16CV16664; Kathleen M. Dailey, Judge.

          Robert E. Babcock fled the briefs for appellants.

          Jenny M. Madkour and David N. Blankfeld fled the brief for respondents.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Plaintiffs were cited with permitting their dogs to engage in prohibited behavior under Multnomah County Code (MCC) § 13.305(B)(10) and (11). Those citations were upheld by a hearings officer and affirmed by the trial court. On appeal, plaintiffs assert that the hearings officer improperly construed the applicable law and that the trial court erred in affirming the hearings officer's decisions. Plaintiffs assert that human conduct is required to establish a violation of the code, and that there is no evidence of human conduct in this case. Held: MCC § 13.305(B)(10) and (11) require a showing that an owner or other [296 Or.App. 371] person described in § 13.305(A) permitted the dog to engage in prohibited behavior. Here, there was sufficient evidence to support an inference that plaintiffs did "permit" their dogs' behavior.

         [296 Or.App. 372] EGAN, C. J.

         These two cases, which were consolidated for appeal, require us to interpret provisions of the Multnomah County Code ("MCC") that make it unlawful for a person to "permit" a dog to engage in certain dangerous behavior. MCC § 13.305(B). Plaintiffs were cited with Notices of Infraction ("NOIs") alleging violations of MCC § 13.305(B)(10) and (11). A hearings officer affirmed the NOIs. In both cases, plaintiffs filed petitions for writs of review under ORS 34.040, asserting that the hearings officer improperly construed the law in affirming the NOIs. The trial court dismissed both petitions, affirming the hearings officer's orders. We review the trial court's decision for legal error. ORS 34.040 (trial court must allow writ of review "in all cases in which a substantial interest of a plaintiff has been injured" and an inferior court appears to have "[improperly construed the applicable law"); see also City of Eugene v. Comcast of Oregon II, Inc., 359 Or. 528, 540, 375 P.3d 446 (2016) (determination of the meaning of municipal ordinances is one of law for the court). As explained below, we affirm.

         The relevant facts are brief and undisputed. Chucky, plaintiff Jimenez's dog, was "at large" when he attacked and injured one dog, and when he attacked and killed another dog.[1] Cain, plaintiff Carlson's dog, was "at large" when he ran after a child, knocked him down, and aggressively bit him. Jimenez and Carlson each received NOIs stemming from these incidents. Relevant to this appeal are NOIs they each received alleging violations of section 13.305(B)(10) and (11) of the Multnomah County Code, [2] which provide, in relevant part,

[296 Or.App. 373] "(B) It is unlawful for any person to commit any of the following:
"(10) Permit any dog to engage in any of the behaviors described in § 13.401(A) or (B);[3]
"(11) Permit any dog to engage in any of the behaviors described in § 13.401(C) through (D)[.]"[4]

         Plaintiffs timely appealed their NOIs, and each attended a separate hearing before a hearings officer. The hearings officer later summarized the witnesses' testimony. At Jimenez's hearing regarding Chucky, Jimenez stipulated that Chucky was "at large" on the day of the alleged incident. In his testimony at the hearing, Jimenez also stated that his dogs "got out" on that day. Multnomah County Animal Services ("MCAS") Officer Eder testified that shortly after the day of the alleged incident, she went to Jimenez's home five times to inspect Chucky's enclosure, and that each time, it "did not meet the specifications for a secure enclosure/ kennel." After hearing testimony from several additional witnesses, the hearings officer found:

"It is clear from the evidence that Chucky, while at large, attacked and injured [another dog], *** and therefore engaged in Potentially Dangerous Dog Level 2 behavior as denned in MCC § 13.401(B)."

         [296 Or.App. 374] The hearings officer also found:

"It is clear from the undisputed evidence that Chucky attacked and killed [another dog] ***. Therefore, I find that the County has proven by a preponderance of the evidence that Chucky, while at large, engaged in Potentially Dangerous Dog Level 4 behavior as denned in MCC § 13.401(D)(1)(b)***."

         Thus, the hearings officer upheld the NOIs, imposed fines, and suspended Jimenez's ownership of Chucky.

         At Carlson's hearing regarding Cain, several witnesses testified. The hearings officer summarized the evidence, and as relevant to the NOI at issue in this case, we recount the following taken from that summary. MCAS Officer Morinville testified that while he was searching for Cain at Carlson's property just after the alleged incident occurred, he "saw a dog jump on a car by the fence and the fence was 'layed down'; therefore the dog had access to the street." Morinville said that "there had been previous reports of dogs loose in the area." Plaintiff Carlson's neighbor also submitted written testimony that "there were many incidents where [Cain and another dog] were out chasing people." Finally, as summarized, plaintiff Carlson testified that he rented the property "from a friend who liked the protective quality" of his dogs and that he lived in a trailer at the back of the property. Carlson described the property as a fenced parking lot with a gate that was secured with a chain bike lock. He said that there was a car located "near the fence" that had dog prints on it, and he described the car as "his dogs' 'stoop.'" ...


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