This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1658

 

Ashley D. Rossman,

Relator,

 

vs.

 

City of St. Paul Office of License,

Inspections and Environmental Protection,

Respondent.

 

Filed November 14, 2006

Affirmed

Kalitowski, Judge

 

City of St. Paul Office of  License,

Inspections and Environmental Protection

License #3136

 

Ashley D. Rossman, 410 Second Street North, #128, Minneapolis, MN 55401 (pro se relator)

 

John Choi, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall/Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Ashley Rossman challenges by writ of certiorari the determination by the St. Paul Office of License, Inspections and Environmental Protection (LIEP) that her dog, Brandy Wine, is a potentially dangerous animal.  Relator argues that (1) there is insufficient evidence that Brandy Wine bit her neighbor without provocation; and (2) the LIEP hearing was unfair because the hearing officer demonstrated personal bias against large dogs.  We affirm.

D E C I S I O N

            The LIEP determined that Brandy Wine is a potentially dangerous animal based on an incident when Brandy Wine broke free from a leash at an apartment complex where relator resided and charged toward another resident and a smaller dog, Duncan.  Although evidence was presented that Brandy Wine bit Duncan during the incident, it was determined Brandy Wine was a potentially dangerous animal based on the finding that Brandy Wine bit or nipped Duncan’s owner. 

            On an appeal by a writ of certiorari from an agency’s decision, an appellate court’s review is limited to considering whether “(a) the agency had jurisdiction; (b) the proceedings were fair and regular; and (c) the [agency’s] decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.”  Hannan v. City of Minneapolis, 623 N.W.2d 281, 284 (Minn. App. 2001) (quotations omitted).  We will uphold the agency’s decision so long as the agency “furnished any legal and substantial basis for the action taken.”  Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (quotation omitted).  Our “authority to interfere in the management of municipal affairs is, and should be, limited and sparingly invoked.”  White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 175 (Minn. 1982). As an appellate court, we will not retry the facts or make credibility determinations.  Senior, 547 N.W.2d at 416. 

I.

            A potentially dangerous animal is one which has, “[w]hen unprovoked, bitten a human or a domestic animal on public or private property.”  St. Paul, Minn., Legislative Code § 200.11(a).

            Relator argues that there is insufficient evidence that Brandy Wine bit the other apartment resident.  Because the record contains substantial evidence, including the testimony of three witnesses to the bite or the puncture produced by the bite, we disagree. The resident bitten by Brandy Wine testified that she had been bitten during the incident.  The apartment manager on duty during the incident testified that she saw the puncture mark created by Brandy Wine’s bite.  And finally, a St. Paul Police Officer noted in an Animal Incident Report that he saw a “small puncture wound, which appeared to come from [one] tooth” on the resident’s right finger.    

            We conclude that the evidence is sufficient to provide the LIEP hearing officer with a substantial basis to find that Brandy Wine bit the apartment resident, causing the injury to her finger.

            Relator also argues that Brandy Wine was provoked by the apartment resident’s much smaller dog, Duncan.  Relator testified that Duncan bared its teeth as Brandy Wine was running toward it, thus provoking Brandy Wine.  During the hearing, relator’s father, a veterinarian, testified that a dog showing its teeth to another dog is provocation.

            The St. Paul Legislative Code defines “unprovoked” as “the condition in which the animal is not purposely excited, stimulated, agitated or disturbed.”  Id. at § 200.01. Provocation is a factual determination.  Bailey v. Morris, 323 N.W.2d 785, 787 (Minn. 1982).  Here, the record contains substantial evidence that Brandy Wine was not provoked. Relator’s own testimony establishes that Duncan bared its teeth only after Brandy Wine charged toward Duncan and its owner.  And relator does not argue that Brandy Wine was provoked in any way prior to running towards the apartment resident and Duncan.  From these facts, we cannot say the hearing officer erred in not finding that the smaller dog purposefully excited, stimulated, agitated, or disturbed Brandy Wine. 

            Moreover, the hearing officer was in the best position to weigh the evidence of provocation.  Thus, we conclude that the record provides a substantial basis and sufficient evidence to support the finding that Brandy Wine is a potentially dangerous animal.

II.

            Relator also argues that the hearing was unfair because the hearing officer showed personal bias against large dogs.  “Parties to an administrative proceeding are entitled to a decision by an unbiased decisionmaker.”  But “[t]here is a presumption of administrative regularity, and the party claiming otherwise has the burden of proving a decision was reached improperly.”  Buchwald v. Univ. of Minn., 573 N.W.2d 723, 727 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).

            Relator’s argument is based on the hearing officer’s comment regarding a prior experience of having his dog attacked by a larger dog.  In response to testimony that if a large dog shakes a small dog by the neck it would result in puncture wounds and the breaking of the small dog’s neck, the hearing officer stated:

Well, I know that can happen, but [it] depends, I would think, on how violent it is. I have a dog myself that was attacked by a larger dog and its neck was shaken, and there was a puncture wound, and it got infected and all like that . . . . But her neck wasn’t broken . . . .

 

The hearing officer’s comment based on his personal experience was inappropriate.  But the hearing officer’s determination that Brandy Wine is a potentially dangerous animal was not based on its attack of Duncan, but the bite to Duncan’s owner.  And without further evidence of bias, we cannot conclude that the hearing officer’s comment overcomes the presumption of administrative regularity.

            The record supports the findings of the hearing officer.  Based on this record, we conclude that sufficient evidence provides a legal and substantial basis for LIEP to declare Brandy Wine a potentially dangerous animal.

            Affirmed.