By Dave Oedel, March 22, 2015, Macon, Georgia:
This dog fight will go on. On Monday, March 9, 2015, five members of the Macon-Bibb County Board of Health split 3-2 on whether to deem three female pitbull dogs, Cocoa, Pearl and Justice, “dangerous.” As previously reported in the Macon Monitor, those dogs were involved in the death of another dog, Renalto, that was passing by the pitbulls’ home on a walk with Renalto’s owner, Claudio Naranjo, from Miami. The pitbulls are owned by Ryan Brinson and kept at the home of his mother, Veronica Brinson, at 124 Brookefield Drive in the Brookefield subdivision of north Macon off Bowman Road.
Board of Health members Bert Bivins, Ethel Cullinan and David Garrow voted to find the dogs “dangerous” within the meaning of both state law and a Macon-Bibb ordinance. Two other Board members, Elaine Lucas and Chris Tsavatewa, dissented.
Veronica and Ryan Brinson have filed a motion for a “new trial” with the Board of Health, and are also filing notice of an appeal to Bibb County’s Probate Court.
The split decision reflected serious difficulties with the case, some of which are built in to the basic structure of the relatively new dangerous dog law in Georgia and related ordinance in Macon-Bibb.
Other problems arose in the course of this particular three-day hearing before Macon-Bibb’s Board of Health. Most notably, the victim’s owner Naranjo, who herself received an injury on her hand while trying to separate the dogs, did not appear to testify or offer an affidavit on any of the Board’s three hearing days. As a result, almost all the evidence was hearsay.
This was the first instance of a hearing on a dangerous dog designation in Macon-Bibb. Moreover, it was apparently only the third hearing so far anywhere in the state since the Responsible Dog Ownership Act was passed in 2012.
According to Macon-Bibb animal control officer Sonja Adams who brought this charge against the three Brinson dogs, in the five Macon-Bibb cases in which Adams has designated dogs to be “dangerous,” owners generally have not contested her determination. The great majority of those owners apparently voluntarily submit the dogs to be euthanized. One owner, though, has kept a dog after that determination, according to Adams, because of her great love of the pet.
Although a dangerous dog determination seems practically likely to result in euthanization to avoid strict liability by owners for any harm (plus the increased possibility of owners being targeted by unscrupulous manufacturers of legal claims), the Brinsons are trying another route. They’re fighting the determination itself, a route facilitated because Veronica Brinson is a lawyer defending her son’s dogs without compensation.
Lucas and Tsavatewa in dissent focused on the “missing pieces” of the case against the dogs, according to Lucas, and the legal standards and requirements needed to find any dog “dangerous.” “Which dog or dogs were dangerous,” Lucas wanted to know? All three dogs were said by Adams to have been “involved” in the situation, but Adams wasn’t there, and it was unclear to Lucas whether one or all were culpable.
Lucas also expressed concern about a process that was being made up as the animal rescue officials and later the Board went along, giving less sense of fair notice about just who had to bear what burden of proof, for instance, and how.
Lucas also thought it odd that Renalto’s owners never showed up to complain on any of the three days of Board hearings. As for evidence of other instances involving these particular dogs, Lucas was unpersuaded that any such instances were shown to have involved any of these dogs.
Tsavatewa emphasized that the Board was instructed that the burden was on animal control and Macon-Bibb to show each dog to be dangerous, not beyond a preponderance of the evidence, but to a greater degree – substantial evidence. Tsavetewa also expressed serious doubt about whether the attacking dogs were really off their own property at critical times, as the photo showed Naranjo’s husband Jose Munoz to have driven his car into the area of the Brinsons’ back yard where he attacked one of the dogs with a knife.
Tsavatewa further noted that Tarina Gore, the hostess of Renalto and Claudio Naranjo, readily admitted that Renalto himself was walking off-leash, and that Naranjo herself was well onto the Brinson lawn. Naranjo’s modest hand injuries as to which there was no medical report may have been legally discounted by a concept in the law known as assumption of the risk, Tsavatewa suggested, or otherwise been deemed insubstantial if no medical report about them was offered.
To the contrary, the Board members voting to find the dogs dangerous apparently did not focus nearly so keenly on the specifics of the law, the intricacies of the evidence, or niceties about which dog might have been more culpable. Instead, as Ethel Cullinan later explained it, she felt it was her duty to “look at the big picture.”
Cullinan said, “You have to err on behalf of public safety rather than due process to the owner or dog.” Cullinan added that she felt relieved that the Board was not being asked to decide itself whether to euthanize the dogs. “That was not on the table,” she said, even though early experience in Macon-Bibb suggests that, as a practical matter, four out of five dangerous dog determinations will result in euthanasia. Garrow also emphasized that the lack of a need to order that the three dogs be put down made his decision a lot easier.
When asked about whether she thought it relevant that Renalto was off-leash, Cullinan seemed surprised, and did not recall any evidence on that point. That evidence, albeit hearsay, was made by an unforced admission in sworn and recorded testimony by Tarina Gore, recounting what Naranjo had told her.
Bert Bivins initially indicated that he would consent to be interviewed about what later turned out to be the key swing vote in the case. Despite numerous calls to Bivins after the ruling, Bivins has not responded.
As previously reported, Board of Health members Stacy Carr and Paul Mossman attended none of the three days of hearings.
Going forward, Macon-Bibb Health Administrator Nancy White suggested that the rules might be changed in the future to provide for a more “summary” procedure.
On the other hand, Board lawyer and hearing officer Julia Magda suggested that the Board should in the future be given subpoena power.
Providing a more trial-like procedure as suggested by Magda would seem to be at odds with White’s suggestion of streamlining the procedure at the Board stage.
Another lingering legal issue in the determination of “dangerous dog” status is that the ordinance, like the state law, seems to conceptualize dogs as being dangerous, or not, solely on the basis of latent qualities of the dog or dogs, rather than because of intertwined or separate ownership or control issues. Some dog trainers suggest that most dogs can be dangerous at times depending on many factors, many involving owner training and control. Some experts argue that emphasis on dog characteristics in isolation from context is fundamentally flawed.
In this respect, however, Macon-Bibb’s ordinance tracks Georgia law. Any deeper fix for that matter would have to await another legislative session of Georgia’s General Assembly. Crossover day, the day by which new legislation must pass one body of Georgia’s legislature, has already passed for 2015.