Chapter 6.10
DOG CONTROL HEARINGS
Sections:
6.10.020 Policy and scope of chapter.
6.10.030 Delegation of authority.
6.10.040 Hearings officer rules.
6.10.050 Appeal of hearings officer orders.
6.10.060 Dog control hearings procedural rules – Authority.
6.10.070 Dog control hearings procedural rules – Effective date.
6.10.080 Dog control hearings procedural rules – Hearings.
6.10.010 Title.
This chapter shall be known as the dog control hearing ordinance and shall be so cited and pleaded. [Ord. 1214 § 1, 2005.]
6.10.020 Policy and scope of chapter.
A. ORS 609.015 provides that ORS 609.030 through 609.110 apply in every county except as otherwise provided by county charter or ordinance. The provisions of ORS 609.030 through 609.110 do not limit the powers of counties to adopt ordinances and regulations relating to the control of dogs.
B. Certain hearings are required to be held by the board of commissioners, pursuant to Chapter 6.05 MCC and ORS Chapter 609. This chapter provides for the delegation of that authority to the Marion County hearings officer(s). [Ord. 1264 § 2(18), 2008; Ord. 1214 § 2, 2005.]
6.10.030 Delegation of authority.
The board delegates to the Marion County hearings officer(s) the duties and functions of holding hearings, issuing necessary orders and opinions, imposing restrictions and conditions on the keeping of a dog, and imposing civil penalties, fees and costs where such hearings are held pursuant to Chapter 6.05 MCC and ORS Chapter 609. [Ord. 1214 § 3, 2005.]
6.10.040 Hearings officer rules.
The dog control hearings procedural rules in MCC 6.10.080 are hereby adopted by the board of commissioners as the procedural rules for the conduct of hearings held by the hearings officer(s) for those hearings required under Chapter 6.05 MCC and ORS Chapter 609. [Ord. 1214 § 4, 2005.]
6.10.050 Appeal of hearings officer orders.
A. All opinions and orders issued by the Marion County hearings officer(s) pursuant to this chapter shall be final and no appeal can be made to the board of commissioners.
B. Notwithstanding subsection (A) of this section, the dog keeper in a case before the hearings officer pursuant to ORS 609.155 may request that the Marion County board of commissioners examine the determination. Requests for examination are made in accordance with the dog control hearings procedural rules in MCC 6.10.080. [Ord. 1214 § 5, 2005.]
6.10.060 Dog control hearings procedural rules – Authority.
On June 29, 2005, the Marion County board of commissioners adopted Ordinance No. 1214 and delegated to the Marion County hearings officer the responsibility to conduct public hearings and reach decisions on issues raised under Chapter 6.05 MCC and ORS Chapter 609. The Marion County board of commissioners hereby promulgates the following rules for conduct of hearings by the hearings officer. These rules shall be known as the dog control hearings procedural rules. [Ord. 1214 § 4(I), 2005.]
6.10.070 Dog control hearings procedural rules – Effective date.
These rules shall be effective on July 1, 2005. [Ord. 1214 § 4(II), 2005.]
6.10.080 Dog control hearings procedural rules – Hearings.
A. Scheduling.
1. Time and Number of Hearings. Hearings shall be scheduled to begin on business days between 8:00 a.m. and 5:00 p.m. The hearings officer may limit the number of hearings held on any given date and may adjourn or continue any hearing scheduled to another date certain if the hearing cannot be concluded within a reasonable hour.
2. Continuances. The hearings officer may continue a hearing to a date certain so that additional information may be made part of the record or further public testimony heard. The date, place and time when the hearing will reconvene shall be announced by the hearings officer at the hearing. No additional notice of hearing need be given for a continued hearing, provided the new hearing date is announced at the scheduled hearing.
3. Postponements. Postponements shall be handled as continuances.
B. Procedure.
1. Recording. All hearings shall be tape recorded.
2. Commencement of Hearing. The hearings officer shall open the record, announce the nature and purpose of the hearing, and summarize the rules for the conduct of hearings.
3. Ex Parte Contact. At the commencement of the hearing the hearings officer shall announce the substance of any ex parte contact with the hearings officer made prior to the hearing.
4. Preliminary Objections. All objections to notice, jurisdiction, or conflicts of interest shall be noted in the record.
a. Notice of Civil Infraction. The hearings office shall inquire whether there are any objections to the notice of civil infraction. Hearings on violations of Chapter 6.05 MCC shall be initiated through the service of a notice of civil infraction summons. The hearings officer may set aside a notice of civil infraction if it is found to be substantively deficient. However, the hearings officer also has discretion to allow a deficient notice of civil infraction to be amended.
b. Other Forms of Notice. If other forms of notice are deficient, a new hearing will be scheduled. The new notice will be provided by mail to all parties entitled to notice as a matter of right and all those requesting notice at the time of the hearing. However, if the parties who did not receive proper notice are present at the hearing and request additional time to make comments, the hearings officer has the discretion to grant a continuance of the hearing to a date certain. Notice will not be deemed deficient for failure of any person to receive the notice if the notice was properly sent.
c. Jurisdiction. The hearings officer shall inquire whether there is any objection to the jurisdiction of the hearings officer to hear the matter. The hearings officer shall have the discretion to either terminate the hearing or to take the matter of jurisdiction under advisement and rule on the objection at the time the order is issued. If the hearings officer lacks jurisdiction to consider the matter, the action will be dismissed.
d. Conflict of Interest. The hearings officer shall inquire whether there is any objection to the hearing on the basis of conflict of interest. The hearings officer shall not preside over any hearing in which he or she has a direct or substantial conflict of interest. In cases of conflict, the hearings officer shall continue the hearing to a date certain and provide notice of a new hearing, as set forth in subsection (A)(2) of this section. Another hearings officer shall preside over the particular case. Upon full disclosure of any potential conflict, and subject to the agreement of all participants and the hearings officer, the hearings officer has the discretion to proceed to hear the case.
5. Appearances. Marion County dog control shall appear and present the allegations under Chapter 6.05 MCC or ORS 609.155 and shall present any witnesses. Failure of the owner of a dog at issue to appear shall not be grounds for dismissal of the action.
6. Contents of Hearings Officer File. At the commencement of the hearing, the hearings officer shall summarize the contents of any file that has been assembled prior to the hearing. This file shall be made available for public inspection. The hearings officer may take official notice of public documents contained in the file.
7. Testimony.
a. Sworn Testimony. Other than legal argument presented by duly licensed Oregon attorneys, all testimony shall be taken under oath or affirmation. A witness giving oral testimony at the hearing will be sworn at the time the testimony is presented. Any testimony submitted in written form at the hearing must be by sworn affidavit, administered by an official empowered to administer oaths. Duly licensed Oregon attorneys may make legal argument without being sworn, as long as any facts on which the argument is based are supported by sworn oral testimony or written affidavit. Argument not based on sworn testimony or affidavit will not be considered in reaching a decision.
b. Opportunity to Be Heard. Any person wishing to give relevant testimony concerning the case at issue shall be afforded the opportunity to be heard at the discretion of the hearings officer.
c. Order of Testimony. Testimony will generally be received by the hearings officer in the following order, although this order of testimony may be modified at the discretion of the hearings officer:
i. Marion County Dog Control. A representative of Marion County dog control shall present information on any investigation conducted. All reports, photographs, statements and exhibits that are part of the investigation shall be presented.
ii. Other witnesses on behalf of Marion County dog control.
iii. If the hearing is under ORS 609.155, the keeper or owner of livestock.
iv. All witnesses in favor of dog owner or keeper.
v. Rebuttal. Because the burden of proof remains with Marion County dog control, Marion County dog control shall be afforded the opportunity to present rebuttal testimony or evidence prior to the close of the record. However, no rebuttal testimony or evidence shall be permitted in cases brought under ORS 609.155 where Marion County dog control is not represented by an attorney.
d. Identification. Persons appearing before the hearings officer shall state and spell their name, give their address and representative capacity, if any, for the record.
e. Limitations. The hearings officer shall have the discretion to set a time limit for persons giving testimony at the hearing, and may exclude or limit any testimony which is cumulative, repetitious, irrelevant or immaterial. The hearings officer also has the discretion to bar any person from the hearing room or to adjourn the hearing, if necessary, for disorderly or disruptive conduct.
f. Questioning Witnesses.
i. The hearings officer has the discretion to ask any person questions if the hearings officer deems it necessary to clarify the issues at hand, comments or exhibits.
ii. Attorneys or the dog keeper may directly question or cross-examine any witness. Any other witness or participant may present questions, either orally or in writing, to the hearings officer. The hearings officer has the discretion to request the answer to such questions from a particular witness. The hearings officer may limit cross examination and direct questioning of any witness where such questioning is cumulative, repetitious, irrelevant, immaterial or disruptive.
8. Closing the Record. The record will be closed at the conclusion of the hearing unless, within the discretion of the hearings officer, the record is declared open to receive additional evidence or to continue the hearing to a date certain. Once the record is closed, no further evidence or testimony will be accepted or considered by the hearings officer.
C. Evidence.
1. De Novo Proceedings. All proceedings, pursuant to Chapter 6.05 MCC and ORS 609.155, shall be de novo; that is, the hearings officer will consider all evidence presented anew.
2. Burden of Proof. Marion County dog control has the burden of demonstrating by a preponderance of the evidence that the dog in question is in violation of the provisions of Chapter 6.05 MCC and ORS 609.155.
3. Testimony and Exhibits. All oral testimony given under oath and written testimony submitted by sworn affidavit may be admitted into the record, subject to objections enumerated below. In addition, demonstrative evidence may be admitted in the form of exhibits, in accordance with the requirements for exhibits.
4. Submission of Materials. Letters, documents and any other written material as submitted shall be handled in the following manner:
a. Prior to Hearing. Materials will be considered part of the hearings officer file, and the contents will be announced as provided by this chapter.
b. During the Hearing. Materials submitted during the hearing shall be marked as an exhibit and entered into the record. Each exhibit shall be marked for purposes of identification with a sequential number.
c. After the Hearing. Materials submitted after the hearing will be accepted only if the person submitting them was directed to do so by the hearings officer and only if the material was received prior to any deadline specified.
d. Size and Form. Subject to the discretion of the hearings officer, only exhibits and documents capable of being offered and incorporated into the record or being reproduced for the record shall be admitted.
5. Exclusion. The hearings officer shall have the discretion to exclude any material or testimony that is cumulative, repetitious, irrelevant or immaterial.
6. Objections. Objections to admission of evidence shall be noted in the record. Generally, objections will be considered with respect to the weight to be given and the particular evidence offered. The hearings officer shall have the discretion to admit or exclude any evidence presented and may reserve ruling on the admissibility or exclusion of such evidence until the time that the final order is issued.
7. Official Notice. Matters officially noticed by the hearings officer need not be established by evidence and may be considered by the hearings officer in the determination of the case. The hearings officer may take official notice of the following:
a. Facts that are judicially noticeable;
b. Ordinances, resolutions, rules and regulations of the United States, the state of Oregon, Marion County, and of the incorporated cities within Marion County;
c. Photostatic copies of public records submitted for the record, or citations thereto, which are not controverted.
D. Decision and Review.
1. Written Decision. The hearings officer’s decision shall be issued only in written form. The decision shall be based solely upon testimony and evidence contained in the record.
2. Content. The decision shall include the following:
a. A statement of the nature of the issue.
b. A statement of the criteria relevant to the decision.
c. A description of the proceedings, including a list of participants, a list of exhibits, and a statement of any objections raised at the hearing.
d. Findings of fact.
e. Order specifying disposition of the case.
f. Statement that any penalty, cost or fee not paid within 30 days after delivery or mailing of the order may be assigned to a collection agency or recorded with any county clerk in this state to create a lien, or both.
g. Statement of the effective date of the order. Orders shall be effective as of the date the order is issued.
3. Finality. The decision of the hearings officer is final. However, the dog owner in a case before the hearings officer pursuant to ORS 609.155 may request that the Marion County board of commissioners examine the determination. If the board of commissioners does not grant the request within 14 days, the request shall be deemed denied. Requests that the board of commissioners examine a determination must be filed with the Marion County board of commissioners within five calendar days of the date the determination was delivered or mailed.
4. Review. The decision of the hearings officer may be appealed by filing a petition for review. The process and timelines for filing a petition for review are spelled out in ORS 34.010 et seq., and ORS 609.165.
5. Notice of Decision. A copy of the decision of the hearings officer shall be provided to Marion County dog control, the dog keeper and to any other person making a written request for a copy of the decision before the close of the hearing.
6. Return of Exhibits. An exhibit may be returned to the person, or the person’s agent, who introduced the exhibit, provided the return was requested when the exhibit was submitted. If return is not requested, exhibits may be destroyed. [Ord. 1214 § 4(III), 2005.]