438 P.3d 403
Or. Ct. App.2019Background
- Two consolidated appeals challenge Multnomah County Notices of Infraction issued under MCC § 13.305(B)(10) and (11) after dogs were "at large" and engaged in Level 2 or Level 4 behaviors (one dog injured and killed other dogs; another chased and bit a child).
- Hearings officer found the dogs engaged in prohibited conduct and that owners had "permitted" the behavior; imposed fines and suspended ownership.
- Owners petitioned for writs of review under ORS 34.040; trial court affirmed the hearings officer and dismissed the petitions.
- Relevant code: MCC § 13.305(B) makes it unlawful to "permit" a dog to engage in certain behaviors; MCC § 13.002 defines "permit" to include human conduct (intentional, deliberate, careless, inadvertent, or negligent).
- MCC § 13.305(D) allows classification and non-fine restrictions where no human "permit" is established.
- The dispositive factual findings: enclosures/fence were insecure or "layed down," prior escapes were reported, paw prints on a car used as a "stoop," and owners admitted dogs were at large or out of their custody at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCC § 13.305(B)(10)/(11) imposes strict liability or requires human conduct ("permit") | Jimenez/Carlson: code requires proof of human conduct permitting the dog; no evidence of owner conduct here so NOIs must be dismissed | County: § 13.305(A) "owner ultimately responsible" makes affirmative proof unnecessary; not strict liability but owner responsibility suffices | Court: "Permit" requires human conduct (per MCC § 13.002); plaintiffs still presented evidence permitting an inference of such conduct, so convictions affirmed |
| Whether evidence supported inference that owners "permitted" dogs to be at large | Owners: no direct evidence they knew or acted to allow escape before incidents | County: circumstantial evidence (insecure enclosure, downed fence, prior escapes, paw prints) supports inference of inadvertent/negligent permission | Court: circumstantial facts suffice to infer human conduct; hearings officer's findings upheld |
Key Cases Cited
- City of Eugene v. Comcast of Oregon II, Inc., 359 Or. 528 (2016) (rules for construing municipal ordinances mirror statutory construction)
- Polacek & Polacek, 349 Or. 278 (2010) (text and context are primary indicators of legislative intent)
- Dept. of Rev. v. Faris, 345 Or. 97 (2008) (use dictionary definitions when statutory terms are undefined)