This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-196

 

Channa Pittman,

Relator,

 

vs.

 

City of St. Paul,

Office of License, Inspections

and Environmental Protection,

Respondent.

 

Filed September 23, 2003

Affirmed
Klaphake, Judge

 

City of St. Paul

 

Channa Pittman, 817 Marshall Avenue, St. Paul, MN  55104 (relator pro se)

 

Manuel Cervantes, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            After pro se relator Channa Pittman’s dog allegedly chased and bit a nine-year-old boy, respondent City of Saint Paul, Office of License, Inspections and Environmental Protection, declared the dog potentially dangerous and placed restrictions on it.  Relator appealed the decision and a hearing was held before a hearing officer, who upheld the decision and found the dog potentially dangerous.

            Relator challenges the decision by writ of certiorari, arguing that (1) the decision is unreasonable and oppressive because the evidence fails to show that her dog is dangerous; and (2) the decision is unsupported by the evidence because the city ordinance, St. Paul, Minn. Legislative Code § 200.11(a)(1), (2) (2002), applies to unprovoked bites, and there is evidence that the child provoked the dog.  Because the decision that the dog is potentially dangerous is reasonably supported by evidence in the record, we affirm.

D E C I S I O N

            On a writ of certiorari, our review is limited to an inspection of the record before the agency and

necessarily confined to questions affecting the jurisdiction of the [agency], the regularity of its proceedings, and, as to [the] merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

 

Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (quotations omitted); see also Hannan v. City of Minneapolis, 623 N.W.2d 281, 284 (Minn. App. 2001) (applying this standard of review to certiorari appeal by dog owner challenging city’s order for destruction of dog under dangerous dog ordinance).  This court cannot retry facts or make credibility determinations.  Senior, 547 N.W.2d at 416.  We must uphold the agency’s decision if it has “furnished any legal and substantial basis for the action taken.”  Id. (quotation omitted).

            Relator’s dog was declared potentially dangerous under the following subsections of the city code:

Potentially dangerous animals.  A potentially dangerous animal is an animal which has:

 

(1)       When unprovoked, bitten a human or domestic animal on public or private property; or

 

(2)       When unprovoked, chased or approached a person upon the streets, sidewalks, or any public or private property, other than the dog owner’s property, in an apparent attitude of attack[.]

 

St. Paul, Minn., Legislative Code § 200.11(a) (2002).[1]  The hearing officer ordered that the dog be fitted with a microchip and that certain restrictions be placed on the dog, including that he be “muzzled and restrained by a chain or leash not more than 6 (six) feet long, and under the control of a person eighteen years of age or older at all times when it is outdoors and not inside a proper enclosure.”  See Legislative Code § 200.11(b) (allowing these restrictions).

            Relator argues that the hearing officer’s decision is unreasonable and oppressive because the testimony indicated that the neighborhood children often played with her dog and did not view him as a danger.  She further notes that even the nine-year-old boy’s mother testified that she did not think the dog was dangerous or that he was chasing her son.  Relator complains about the restrictions placed on her dog, insisting that to “microchip and effectively disallow all outdoor contact” between the dog and her six children is oppressive and unreasonable.

            At the hearing, relator testified that her dog does not bite.  Relator admitted, however, that she did not observe the incident at issue here because she was inside getting ready for bed.  Relator’s daughter, who was an eyewitness, testified that she was taking the dog out of his kennel when he got away from her.  She further testified that she chased the dog alongside the house and saw the boy start running in front of the dog.  Relator’s daughter claimed that she was able to grab the dog before he reached the boy, who had tripped and fallen on the sidewalk.

            The hearing officer also heard the testimony of the boy and his mother.  The boy testified that as he was walking alongside relator’s house and heard footsteps behind him.  When he turned around, he saw the dog running toward him, so he started running.  After the boy reached the sidewalk and began to run toward his home, he tripped and fell.  The boy testified that at that point, the dog bit him on the ankle.  The boy’s mother testified that she took her son to the hospital after noticing two small puncture wounds on his ankle.  She reported the incident to the city police department after relator denied that her dog had bitten the boy.

            Based on the evidence and testimony presented at the hearing, the officer determined that after relator’s daughter had let the dog out of its kennel, he escaped, ran around the house, and chased the nine-year-old boy.  The officer further determined that when the boy tripped and fell, the dog bit him.  These findings are reasonably supported by the record and testimony at the hearing.  These findings further support the ultimate conclusion that the dog is potentially dangerous under the city code because the dog has, when unprovoked, either “bitten a human on public or private property” or “chased or approached a person upon the streets, sidewalks, or any public or private property . . . in an apparent attitude of attack.”  Legislative Code § 200.11(a)(1), (2). 

            Relator further argues that the boy provoked the dog, based on her testimony that the boy was poking sticks into the dog’s kennel earlier in the evening.  The issue of whether a dog has been provoked is one for the jury or trier of fact; in this case, the hearing officer.  Bailey v. Morris, 323 N.W.2d 785, 787 (Minn. 1982) (stating that provocation under dog bite statute, Minn. Stat. § 347.22, is issue of fact properly submitted to jury).  The hearing officer here could reasonably determine that the boy did not provoke the dog, particularly when there was no direct link in time between the boy’s alleged provocation and the later chase and bite.

            Finally, even if the dog did not bite the boy, the hearing officer could still find the dog is potentially dangerous because he was chasing a person in an “apparent attitude of attack.”  Relator admitted that she had recently purchased a kennel for the dog because he had a habit of chasing running children.  And the boy testified that he started running when he turned around and saw the dog running towards him; his testimony supports an inference that he may have believed that the 40-to-60-pound dog was chasing or attacking him.  Thus, the hearing officer could also find that the dog fit the second definition of a potentially dangerous dog.

            We therefore affirm the restrictions placed on relator’s dog and the finding that the dog is potentially dangerous.

            Affirmed.

 



[1] Minn. Stat. § 347.50, subd. 3(1) (2002) defines a potentially dangerous dog as including a dog that “when unprovoked, inflicts bites on a human.”  (Emphasis added.)  Relator argues that because the evidence only supports a finding of a single bite, her dog fails to meet this definition.  But relator’s dog was declared potentially dangerous under the city code, which is slightly different from this state statute and which requires a showing that the dog has “bitten a human.”  Legislative Code § 200.11(a)(1).