This opinion will be unpublished and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

A05-2534

 

Rose Pelzel,
Relator,

vs.

St. Paul Office of License, Inspections

and Environmental Protection,
Respondent.

 

Filed September 12, 2006

Affirmed

Parker, Judge*

 

City of St. Paul Office of License, Inspections and Environmental Protection

License No. LT32585

 

 

Marshall H. Tanick, Shawn L. Pearson, Mansfield, Tanick & Cohen, P.A., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN  55402-4511 (for 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 Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

Relator Rose Pelzel is the owner of a Labrador retriever named Rory that was labeled a potentially dangerous animal under Saint Paul, Minn., Legislative Code § 200.11(a)(1), after he bit two children while running at large.[1]  Shortly after that attack, Rory bit Rosalia Portillo, again while he was running at large.  The respondent City of Saint Paul Office of License, Inspection and Environmental Protection determined that Rory was a dangerous animal[2] under Saint Paul, Minn., Legislative Code § 200.11(a)(1).  Pelzel brought this appeal by writ of certiorari, contending that (a) the evidence fails to support the dangerous dog designation under Saint Paul, Minn., Legislative Code § 200.12; and (b) the determination that the dog was running at large was erroneous.  We affirm.

D E C I S I O N

 

On an appeal by a writ of certiorari from an agency’s decision, our 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) (quoting Beck v. Council of St. Paul, 235 Minn. 56, 58, 50 N.W.2d 81, 82 (1951)).  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).

We do not conduct, as Pelzel asserts, a de novo review of the decision by the Office of License, Inspection and Environmental Protection (LIEP) because this was not a matter of statutory interpretation.  Rather, LIEP made a quasi-judicial determination by applying the Saint Paul Legislative Code to the facts in this case.  “Constitutional principles of separate governmental powers require that the judiciary refrain from a de novo review of administrative decisions.”  Dokmo v. Indep. Sch. Dist. No. 11, Anoka-Hennepin, 459 N.W.2d 671, 674 (Minn. 1990).  Certiorari appeals protect constitutional guarantees and principles of separation of powers while recognizing the limited judicial review of administrative decisions.  Id.  “If the findings are insufficient, the case can be either remanded for additional findings or reversed for lacking substantial evidence supporting the decision.”  Id. at 675.  But we do not “retry the facts or make credibility determinations.”  Senior, 547 N.W.2d at 416.

            Pelzel contends that the record is insufficient to support a determination that Rory is a dangerous animal.  Although Pelzel characterizes the record as consisting solely of her hearing testimony, the LIEP hearing officer considered and weighed evidence from other sources to make her determination that Rory is a dangerous animal.  The Saint Paul Legislative Code allows the hearing officer to consider “[t]he records of the office of license, inspections and environmental protection, including those of animal control, and any police reports relating to an attack or bite.”  Saint Paul, Minn., Legislative Code § 200.12(c)(1)c.  These records are “admissible for consideration by the hearing officer without further foundation.”  Id.  The conduct of such proceedings has been found to comport with due process requirements.  Hannan, 623 N.W.2d at 286; Am. Dog Owners Ass’n v. City of Minneapolis, 453 N.W.2d 69, 72 (Minn. App. 1990). 

             Here, the record before the LIEP hearing officer consisted of documents related to Rory’s previous attack, the correspondence related to Rory’s determination as a potentially dangerous animal, the police report of the attack on Portillo, and Animal Control’s record of the investigation of the attack on Portillo.  This record supports the LIEP hearing officer’s findings that Rory is a dangerous animal and that Rory was running at large when she bit Portillo.

In the police report of the animal incident, Portillo describes being bitten on her calf by a “large dark dog.”  An investigation by animal control resulted in Portillo positively identifying Rory as the dog that bit her and the boulevard near Pelzel’s residence as the location of the attack.  The report by animal control also states that Pelzel was aware of the attack on Portillo. 

Pelzel’s testimony at the hearing was consistent with LIEP’s determination that Rory was running at large at the time of the incident and that he attacked Portillo.  Pelzel admitted that, at the time of the attack, the dog was running at large in her front yard, as her front yard is not fenced in and Rory was not restrained by chain or leash.  Pelzel’s testimony supports the conclusion that there was some contact or interaction between Rory and Portillo.  Pelzel stated that Portillo “ran into the dog as the dog was running to me” and that she had to call Rory away from Portillo.

            Pelzel testified that Portillo was on the sidewalk during the incident and that Rory never left her yard.  When the hearing officer asked how it was possible for Portillo and Rory to interact under this scenario, Pelzel stated, “I just know that my dog never left the yard.  I mean his head may have, you know, reached over; but his feet were always on my . . . Which is technically —.  You may say: Oh, it doesn’t matter; but he didn’t, you know —. I mean he was obeying me, coming to me . . . .” 

During her interaction with Pelzel, Portillo told Pelzel that the dog had bitten her, although Pelzel stated she did not see a bite.  Pelzel testified, “I knew they were close, but I don’t know because he was, you know, barking at her . . . .”  Moreover, Pelzel appeared to acknowledge the attack when she stated:

I feel like I have to do everything in order to ensure that he’s not at risk for, you know, incidents like this because I think that, you know, even though it happened, she bears a great responsibility in the incident as well.  It’s like stepping into a tiger cage wearing a steak. . . .  People get scared as well as animals and animals are animals.  They don’t think rationally.  They just react. 

The LIEP hearing officer was in the best position to determine Pelzel’s credibility and to weigh the entire record, including documentary evidence, in making its determination that Rory was a dangerous animal.  Because the record supports the finding that Rory was a dangerous animal, there is a legal and substantial basis for the agency’s determination.  Accordingly, the agency does not appear to have erred by this conclusion. 

Pelzel also contends that there was insufficient evidence to support LIEP’s finding that Rory was running at large at the time of the attack on Portillo.  However, the record, including Pelzel’s own testimony, establishes that Pelzel’s front yard is not fenced in and that Rory was not effectively restrained by chain or leash at the time of the incident.  Thus, pursuant to Saint Paul, Minn., Legislative Code § 200.01, LIEP’s determination that Rory was running at large was proper.

            Affirmed.