SCRAPS Case No. 2010-0202 Dakota CITY OF SPOKANE VALLEY HEARING EXAMINER
In the matter of an appeal concerning "Dakota", a )
female, Border Collie breed dog; to determine whether) FINDINGS OF FACT,
such dog is"Potentially Dangerous" under ) CONCLUSIONS OF LAW,
Section 7.30.040 of the Spokane Valley Municipal ) AND DECISION DEFERRING
Code; ) IMPOSITION OF
DETERMINATION
Appellant/Owner: David Van Alstine )
) SCRAPS Case No. 2010-0202
This matter coming on before Michael C. Dempsey, Hearing Examiner Pro Tem for the
City of Spokane Valley, for a"potentially dangerous" dog appeal hearing held in the above file
on July 15, 2010, under Section 7.30.040 of the Spokane Valley Municipal Code (SVMC); and
the Hearing Examiner considering the testimony, documents and argument submitted by the
Spokane County Regional Animal Protection Services (SCRAPS), and appellant David Van
Alstine; hereby makes the following Findings of Fact, Conclusions of Law and Decision, based
on a preponderance of the evidence;:
I. FINDINGS OF FACT
1. On April 8, 2010, at approximately 8:23 p.m., Deputy Todd Miller and Deputy Jeff
Bailey of the Spokane County Sheriff's Office, in their capacity as police officers for the City of
Spokane Valley, responded to the scene of a disturbance at a residence located at 215 S. Moen, in
:
the Greenacres area of Spokane Valley, Washington. The residence is owned by Michael Reed.
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2. Deputy Miller and Bailey had been called to the residence by David Van Alstine, the
owner of the above-described dog, "Dakota", a female Border Collie breed. Van Alstine had just
been evicted from the residence by Michael Reed; after traveling to the area from his residence in
Pasco, Washington, to help Reed with a flooring job. Reed previously drove Van Alstine to his
residence, after Van Alstine's vehicle broke down en route to Spokane Valley.
3. Prior to being evicted, Van Alstine and Reed had gotten into an argument; and Van
Alstine had quit the flooring job. The two men then started drinking and got into a short
argument, during which Reed threw a beer bottle at Van Alstine and damaged a wall in the
residence. Reed then locked Van Alstine out of the main part of the residence.
4. Van Alstine had been staying in a bedroom in the residence, located near the door leading
into the residence from the back of the garage. "Dakota" was at the time nursing seven (7), 20-
day old puppies. Van Alstine had constructed a temporary np en or whelping box, with an open
top, for the dogs and puppies. The temporary pen was placed in a corner of the garage lying near
the main garage door, away from door from the garage leading into the residence. See diagram
drawn by David Van Alstine.
Findings, Conclusions and Decision 2010-0202 Page 1
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5. Upon his arrival, Deputy Miller contacted Van Alstine in the garage; where Van Alstine
had"Dakota"on a leash, and with the puppies located in temporary pen.
6. After talking to Van Alstine, Deputy Miller contacted Michael Reed to get his version of
the events. Reed was very agitated, and yelling that he wanted Van Alstine out of his residence.
7. Deputy Miller re-contacted Van Alstine, in order to have him collect his belongings. Van
Alstine tied up "Dakota" in the garage, where the dog was bedded down in the temporary pen
with the puppies. "Dakota" was tied to a heavy air compressor using a 3-foot leash, with
"Dakota"having only 12 to 18 inches of leash to move about. Officer Miller accompanied Van
Alstine into the bedroom attached to the garage, to get the remainder of Van Alstine's
belongings.
8. While Deputy Miller was in the bedroom with Van Alstine, Deputy Bailey stayed behind
in the garage. At this time, at approximately 9:00 p.m., Sergeant Donald Manning of the
Sheriff's Office arrived at the residence and contacted Deputy Bailey in the garage. Bailey was
assembling a large cardboard box so Van Alstine could move his dog and puppies away from the
residence, and briefed Manning on the situation.
9. Sergeant Manning, in his written report on the bite incident, advised that he was standing
approximately two (2) feet from the temporary pen; and when he held his hand out about one (1)
foot from"Dakota", the dog leapt up, and without warning latched her teeth onto the upper
knuckle of Manning's left hand. Manning indicated in the report that "Dakota" did not let go of
his hand until Manning kicked"Dakota" in the chest. At this time, Deputy Miller heard Sergeant
Manning yell something, from Miller's location in the bedroom attached to the garage.
10. Deputy Bailey, in his brief written supplemental report on the bite incident, advised that
Sergeant Manning entered the garage of the Reed residence, and stood on his left; Bailey
explained the circumstances of the disturbance at the residence; five (5) seconds after this,
"Dakota" leapt up and latched her teeth onto Sergeant Manning's hands; Sergeant Manning had
to kick the dog in the chest to remove it from his hand; and Sergeant Manning then had to be
treated for the bite.
11. If Sergeant Manning was standing on Deputy Bailey's left, it appears that he was standing
near the air compressor to which the leash attached to "Dakota" was tied. See diagram drawn by
Van Alstine.
12. Sergeant Manning sustained puncture wounds, bleeding and bruising to the top of his left
hand; on and above his left knuckle. See photos in case file. The wound was treated at Valley
Hospital without sutures.
13. After the incident, Deputy Miller met SCRAPS Officer Emylee Tolliver and Van Alstine
at the Walmart store in Spokane Valley. Van Alstine was advised that "Dakota" would have to
be quarantined and impounded for 10 days. Van Alstine helped load the dog into the SCRAPS
Findings, Conclusions and Decision 2010-0202 Page 2
truck, but strongly objected to the puppies being quarantined with "Dakota"at the SCRAPS
impound shelter. Van Alstine eventually agreed to let the puppies be impounded.
14. On April 19, 2009, Van Alstine was allowed to redeem "Dakota" and the puppies from
SCRAPS.
15. On April 9, 2010, SCRAPS Officer Emylee Tolliver personally served Van Alstine with a
"potentially dangerous dog"declaration, which did not include any restrictions on "Dakota". On
April 23, 2010,Van Alstine requested an administrative review of the declaration by SCRAPS.
16, On April 24, 2010, SCRAPS Office Nicole Montano, acting as designee for SCRAPS
Director Nancy Hill, issued a decision upholding the declaration. Montano conducted the
administrative review by listening to Van Alstine over the telephone, and reviewing Sergeant
Nanning's written report on the bite incident.
17. On May 8, 2010, Van Alstine timely appealed the potentially dangerous dog declaration
to the Hearing Examiner. On May 13, 2010, SCRAPS provided written notice to Van Alstine of
a hearing to be held on his appeal on May 27, 2010. The hearing was eventually continued at the
request of Van Alstine, for good cause, until July 15, 2010. The basis of the continuance was to
allow Van Alstine to obtain the police reports regarding the bite incident.
18. On July 13, 2010, at 4:36 p.m., Van Alstine faxed two (2) letters to the Spokane Police
Department at the Spokane County Public Safety Building, which houses both County Sheriff
and City of Spokane law enforcement personnel. The letters were written by Van Alstine to
Sergeant Manning and Deputy Miller, and requested their presence at the July 15, 2010 hearing.
Deputy Miller contacted Van Alstine before the hearing, in response to the letter, and advised
him that he had been subpoenaed to appear in another matter. Sergeant Manning did not contact
Van Alstine, in response to the letter.
19. Prior to the hearing, SCRAPS Director Nancy Hill sent Sergeant Manning a letter,
requesting him to appear at the hearing. Manning advised SCRAPS Director Nancy Hill just
prior to the hearing that he had forgotten about the matter, and had scheduled a training which
would prevent him from appearing at the hearing.
20. On July 15, 2010, the Hearing Examiner held a public hearing on the potentially
dangerous dog appeal. The following persons appeared and testified at the public hearing:
Nancy Hill and Emylee Tolliver David Van Alstine
SCRAPS 1707 W. Bonneville Street
2521 N. Flora Road Pasco, WA 99301
Spokane Valley, WA 99216
21. The Hearing Examiner takes notice of Chapter 7.30 of the City Municipal Code, and
Chapter 5.04 of the Spokane County Code.
Findings, Conclusions and Decision 2010-0202 Page 3
22. At the hearing, the documents contained in SCRAPS' case report on the incident part of thy
record were made part of the record by the Hearing Examiner. The following exhibits offered by
Van Alstine at the hearing were also made part of the record:
-Supplemental Report dated 4-9-10 by Deputy Jeff Bailey, regarding bite incident
-Diagram of interiors of garage and attached bedroom of residence at 215 S. Moen Street,
drawn by David Van Alstine
-Letter dated 7-12-10 from David Van Alstine to Deputy Bailey, requesting Bailey to
appear at appeal hearing on 7-15-10
-Letter dated 7-12-10 from David Van Alstine to Sergeant Manning, requesting Manning to
appear at appeal hearing on 7-15-10
-Printed record of transaction faxing letters from David Alstine to Deputy Miller and
Sergeant Manning dated 7-12-10, from Van Alstine to Spokane City Police, on 7-13-10
at 4:35 p.m.
-Copy of cover and pages 45 and 67 from"GRRR!", book written by Mordecai Siegal &
Matthew Margolis; copy of cover of"Good Dog, Bad Dog", book written by same
Authors; and copy of p. 75 from"How to Speak Dog", book written by Sarah
Whitehead
23. The record includes the documents and testimony entered into evidence at the public
hearing, and the items taken notice of by the Examiner.
24. At the public hearing, David Van Alstine questioned the statements made by Sergeant
Manning and Officer Bailey in their reports that Manning had to kick "Dakota" to get her to
release his hand from the bite; because there was no evidence in the record of the bottom of
Manning's left hand being bitten, consistent with a grabbing of the hand by "Dakota".
25. Van Alstine also contended that the bite was "provoked" by Sergeant Manning; by failing
to exercise good judgment around a female dog with young puppies, including standing too close
to the temporary pen at a distance of two (2) feet, and extending his left hand into the dog's
personal space within one (1) foot or less of the dog. Van Alstine supported his opinion with
excerpts from books written by well known authorities on dog behavior.
26. Van Alstine testified that"Dakota"was a young dog that he had acquired when the dog
"found"him at a park in Pasco, in January of 2010.
27. At the hearing, Van Alstine submitted a short police report from Deputy Bailey on the bite
incident, which had not been made available to SCRAPS.
28. SCRAPS Officer Emylee Tolliver testified at the hearing that while "Dakota" was being led
into the SCRAPS truck on her leash at Walmart, "Dakota" suddenly started barking aggressively
at Deputy Miller who was nearby. Van Alstine testified in response that he observed no such
behavior by"Dakota"toward Deputy Miller. Such conduct is not mentioned in the written
reports submitted by Deputy Miller or Officer Tolliver's regarding the incident.
Findings, Conclusions and Decision 2010-0202 Page 4
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29. SCRAPS Director Nancy Hill testified, on cross-examination, that based on the general
description of the bite incident in the written reports submitted by Sergeant Manning and Deputy
Bailey, and her limited personal knowledge of the behavior of"Dakota" prior to the bite incident,
she could not conclude that Sergeant Manning provoked an aggressive response from "Dakota"
by standing near the temporary pen and extending his hand toward "Dakota".
30. Director Hill contended that the failure of"Dakota" to voice a warning before biting
Sergeant Manning, and the severity of the bite, is not normal dog behavior, even for a mother dog
with puppies; and establishes that the bite was not"provoked".
31. It is unclear from the record what Sergeant Manning was intending when he stood close to
the temporary pen, and extended his left arm within one (1) foot of"Dakota", before being bit.
32. Chapter 7.30 of the Spokane Valley Municipal Code (SVMC) incorporates by reference
Chapter 5.04 of the Spokane County Code (SCC); except, in pertinent part, SCC 5.04.033
relating to potentially dangerous dog; and except to change the references to "Spokane County"
in Chapter 5.04 of the SCC to "Spokane Valley". See SVMC 7.30.010.
33. SVMC 7.30.040.E provides that the owner or keeper of the dog in a potentially dangerous
dog appeal may require, by at least two (2) days written notice, the officer"compiling the record"
to be present at the appeal hearing. SCRAPS contended at the hearing that since Officer Emylee
Tolliver wrote the report for the current appeal, the officer"compiling the record" was present.
34. The Hearing Examiner ruled at the public hearing that the "officer compiling the record"
means the officer who prepared the specific report relied on by SCRAPS in making its
determination, including the individual reports submitted by Sergeant Manning and Deputy
Miller for the bite incident. However, the Examiner questioned whether the 2-day notice
requirement was met regarding Sergeant Manning and Deputy Todd, because Van Alstine did not
notify SCRAPS of the request for the presence of such officers at the hearing.
II. CONCLUSIONS OF LAW
1. The definition of a"potentially dangerous dog" under Section 5.04.020(6) of the Spokane
County Code, as adopted by reference in SVMC 7.30.010, means "...any dog that when
unprovoked(a) inflicts bites on a human or animal either on public or private property (b) chases
or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion,
or apparent attitude of attack, or (c) any dog with a known propensity, tendency, or disposition to
attack unprovoked, to cause injury or otherwise threaten the safety of humans or animals." 1
2. David Van Alstine is the owner and keeper of"Dakota".
3. On April 8, 2010, "Dakota",the above-referenced dog, inflicted a bite on Sergeant Donald
Manning, a human being; on private property located in the City of Spokane Valley, Washington.
Findings, Conclusions and Decision 2010-0202 Page 5
4. Sergeant Manning's extension of his left hand within one (1) foot of"Dakota" in the garage
did "provoke"a protective response by"Dakota"; considering the dog was caring for several 3-
lveek old puppies, her owner and keeper had left the garage, Sergeant Manning and Officer
IBailey were standing near the dog and puppies, and the dog had not met either officer before.
however,the response by"Dakota" was excessive; considering there was no apparent warning
growl, and the severity of the bite. Under these facts, the bite was "unprovoked", and "Dakota"
should be determined to be a"potentially dangerous dog" under SVMC Chapter 7.30.
5. The reported aggressive barking of"Dakota" at Deputy Miller at the Walmart store after the
bite incident is not sufficient conduct to establish "Dakota" as a"potentially dangerous dog".
6. The notice requirements for the appeal hearing were met.
7 Section 5.04.032(a)(3) of the SCC requires that the notice or determination notifying the
dog owner of a"dangerous dog"determination must contain a"...copy of the records relied
upon or his/her designee, which forms the basis for said dog to be a dangerous dog; these
records may be supplemented with additional material as it becomes available...". This gives
meaning to the term"record" in the phrase "officer compiling the record" in SCC 5.04.032(a)(5)
and SVMC 7.30.040.E; even though SVMC Chapter 7.30 does not require the notice or
declaration for a"dangerous dog" determination or"potentially dangerous" determination to
specify the records relied on by SCRAPS .
8. The term"officer compiling the record"in SCC 7.30.040.E should be interpreted to mean
the law enforcement officer who compiled the specific record that SCRAPS relied on in
declaring the dog to be "potentially dangerous". Since SCRAPS was relying on the reports
prepared by both Sergeant Manning and Deputy Miller, in making its "potentially dangerous"
dog determination regarding"Dakota", David Van Alstine had the right to request both officers
to appear at the appeal hearing subject to "...at least two days'written notice..." as stated in
SVMC 7.30.040.E.
9. SVMC 7.30.040.E does not specify to whom the dog owner or keeper must make the
written request to obtain the presence of the officers; i.e. the individual officers, SCRAPS or the
Hearing Examiner. SCC 5.04.032(6)(b)(1) authorizes the Hearing Examiner to subpoena
witnesses for"dangerous dog"and "potentially dangerous" dog determinations under the SCC,
but SVMC Chapter 7.30 does not grant such authority to the Hearing Examiner.
10. Considering the ambiguity in SVMC 7.30.040 regarding to whom the dog owner or keeper
must direct their request to obtain the appearance of the "officer compiling the report" at the
appeal hearing, the importance of having the direct testimony of Sergeant Manning (in particular)
to determine the issue of"provocation" in the current matter, and the fact that "Dakota" is being
kept outside Spokane County(thereby lessening the risk of another incident in the area), it is
appropriate to defer imposition of the "potentially dangerous dog"determination for a period of
one (1)year from the date of the bite incident; and if no conduct involving "Dakota" occurs
during such time period that would fit the definition of"potentially dangerous dog" or
"dangerous dog" adopted under SVMC 7.30, to dismiss the determination.
Findings, Conclusions and Decision 2010-0202 Page 6
11. Considering the keeping of"Dakota" outside the area; and that the bite incident occurred
during a temporary situation when the dog was caring for seven (7) young puppies, no conditions
should be imposed on the keeping of the dog under SVMC Chapter 730 associated with the
"potentially dangerous dog"determination.
III. DECISION
Based on the above Findings of Fact and Conclusions of Law, the determination of
SCRAPS declaring"Dakota"to be a"potentially dangerous dog" is hereby upheld, without any
special conditions on the keeping of the dog; provided, that if"Dakota"engages in no further
conduct on or before April 8, 2011 in the City of Spokane Valley or Spokane County that would
meet the definition of"potentially dangerous"dog or"dangerous dog"as adopted in SVMC 7.30,
such declaration shall be dismissed by the Hearing Examiner at the request of David Van Alstine
or SCRAPS.
Dated this 19th day of July, 2010
HEARING XAMINER PRO TEM
Mich.el C. Dempsey
WSBA#8235
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NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Section 7.30.040 of the Spokane Valley Municipal Code, this decision may be
appealed to Spokane County Superior Court pursuant to RCW Chapter 7.16, within twenty (20)
days of the date this decision was received.
This decision was mailed by regular mail to David Van Alstine and SCRAPS on July 19,
2010.
The complete record in this matter, including this decision, is on file during the a pp eal period
with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026 West
Broadway Avenue, Spokane, Washington 99260-0245, (509) 477-7490. The file may be
inspected during normal working hours, listed as Monday-Friday of each week except holidays,
between the hours of 8:30 a.m. and 5:00 p.m.
Findings, Conclusions and Decision 2010-0202 Page 7