Dep t of Health & Mental Hygiene v. Stanley OATH Index No. 636/15 (Jan. 8, 2015)

Transcription

1 Dep t of Health & Mental Hygiene v. Stanley OATH Index No. 636/15 (Jan. 8, 2015) Evidence established that Disel was a dangerous dog under the New York City Health Code, after two unprovoked attacks in which the dog used bite and hold, in one instance causing severe injury to a shelter employee who required emergency surgery. Based upon credible expert testimony, ALJ recommended humane euthanasia as the only available option. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF HEALTH AND MENTAL HYGIENE Petitioner -against- KASSEAM STANLEY AKA KASEAM STANLEY Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This proceeding was referred by the Department of Health and Mental Hygiene pursuant to section of the New York City Health Code (the Health Code ), title 24, Rules of the City of New York ( RCNY ) (Lexis 2014), against respondent owner of Disel, a male 17- month-old mixed breed. The Department alleges that Disel is a dangerous dog within the meaning of section of the Health Code and poses a risk to public safety due to two attacks in which Disel bit people and refused to release his bite, resulting in serious injuries. Petitioner seeks a recommendation that the dog be removed from respondent s ownership and surrendered for the purpose of humane euthanasia, pursuant to section (g)(1). A hearing on the charges was originally scheduled for September 19, respondent s request, the hearing was adjourned and a conference scheduled and held on September 23, which both parties attended. Trial was then scheduled for October 17, 2014, on which date respondent sought a second adjournment, which was granted over the Department s On

2 - 2 - objection (Tr. 80). Trial was scheduled for November 14, 2014, a date agreed to by the parties, and marked final. In granting his adjournment request, I instructed respondent that a final designation meant that no further adjournments would be granted and trial would proceed on that date. Upon respondent s failure to appear on November 14, proper proof of service of the charges and the notice of hearing were submitted (ALJ Ex. 1). The proof established the jurisdictional prerequisites for finding respondent in default under section 1-23 of the OATH s Rules of Practice, and the hearing proceeded in the form of an inquest with the Department submitting proof of the allegations in the petition by witnesses and certified records of the Department. In addition, respondent s own request for the prior adjournment was proof of his knowledge of the final hearing date. At the close of the hearing, the record was held open to November 17, 2014, on petitioner s request to submit certified medical records recently produced by Brookdale University Hospital and Medical Center ( Brookdale Hospital ) for the treatment of one of the individuals bitten by Disel. Those documents were timely submitted. On the morning of November 17, 2014, respondent appeared at OATH claiming to have mistakenly believed the hearing was scheduled for November 17 rather than November 14. He submitted a handwritten note apologizing for the mix up and stating that he is committed to fight to the end for Disel because the dog is a member of the family (ALJ Ex. 2). In a conference call, respondent made an application to present evidence despite his default. The tribunal reopened the record and a continued hearing was scheduled for November 20, 2014, at 10:00 a.m. (Tr. 80). Respondent appeared, unrepresented by counsel, and testified on his behalf and on behalf of Disel. ANALYSIS Under the Health Code, a dangerous dog is one that menaces, threatens, attacks or bites a person or persons, or which kills or inflicts physical injury upon any persons, when such persons are peacefully conducting themselves in any place where they may lawfully be, and any dog owned or harbored for the purpose of dog fighting. Health Code A Department record of a dog bite or other injury made by a police officer is prima facie evidence that a dog is dangerous. Id.

3 - 3 - In the case of Disel, petitioner submitted Department-generated bite reports reporting incidents occurring on July 31 and August 4, 2014 (Pet. Ex. 4 at 1 & 4). The Department also submitted a Dangerous Animal/Bite Report submitted by police on July 31, 2014 (Pet. Ex. 4 at 3). The dog was variously identified in these reports as a Pitbull and as a Cane Corso mix. At the time of the incident, Disel was licensed and spayed, and had current vaccinations and a microchip (Pet. Ex. 4 at 6). In New York City, a dog must be vaccinated and licensed by the age of four months (Tr. 41). Olga Fernandez, an associate public health sanitarian, was assigned by the Department to investigate. She commenced her investigation upon receipt of the July 31 bite report by contacting the victim, Ms. Humphrey. Animal Care and Control sent a letter to Disel s owner, Mr. Stanley, on August 1, 2014 (Pet. Ex. 4 at 13). By August 11, they had not heard from him. Ms. Fernandez first spoke with Mr. Stanley on August 12 when he called to inquire about reclaiming the dog. Ms. Fernandez had been unable to reach Mr. Stanley prior to his call with the phone number provided (Tr. 40). Mr. Stanley identified his dog as a Bull Mastiff named Disel (Pet. Ex. 4 at 6). With respect to the July 31 incident, Mr. Stanley told her that, according to a surveillance camera in his possession, a drunken man got out of a car near his home, unchained Disel, and took him for a walk (Tr. 35; Pet. Ex. 4 at 6a). Mr. Stanley was surprised that Disel would let this man walk off with him because Disel doesn t like males human or animal (Pet. Ex. 4 at 6a). He said Disel was on an extended leash and he just snapped and went after the girl who was sitting on the steps outside the store (Tr. 36). When the police came to the house to inquire, Mr. Stanley surrendered the dog to them and he was taken to Animal Care and Control. At the time of his call, Mr. Stanley was unaware of the second bite incident that occurred at the shelter and Ms. Fernandez informed him of it (Tr. 37). Following the call, the Department notified Mr. Stanley in writing, in two letters, about the bite injuries inflicted by Disel, and the Department s investigation of the incidents and evaluation to determine whether the dog is dangerous and whether he could be returned to Mr. Stanley without presenting a danger to the community (Tr. 37; Pet. Ex. 4 at 7-8). The final letter further advised that Mr. Stanley would have the opportunity at a hearing at OATH to prove the dog is not dangerous and should be returned to him.

4 - 4 - First bite incident, July 31 On or about July 31, 2014, the Department generated a Bite Report indicating that Disel bit a 20-year-old woman outside of a store on East New York Avenue (Pet. Ex. 4 at 1; Tr. 31). The victim, Ms. Humphrey, did not appear at the trial. In an interview, she told Ms. Fernandez that she was standing in front of a store when a man walking the dog approached from behind and the dog suddenly bit her foot, knocking her to the ground, and locked onto her foot (Pet. Ex. 4 at 2). Several people were needed to remove the dog from her foot. Police and EMS were called to the scene and the victim was transported to Brookdale Hospital (Tr. 41). EMS noted puncture marks on her right foot and minor bleeding (Pet. Ex. 7). At Brookdale, the foot was x-rayed. There was no fracture or dislocation to the foot. Hospital records indicate she had deep wounds to foot which were cleaned and stitched, and she was given antibiotics and a tetanus shot (Pet. Ex. 7). Ms. Humphrey was discharged after several hours. ESU took custody of the dog and transported him to Animal Care and Control ( AC&C ) for the required 10-day observation period to determine whether the dog had rabies (Pet. Ex. 4 at 7). See Health Code (c) ( Any dog that is brought to a shelter after causing an injury to a person or that is involved in any incident that creates a possible exposure to rabies shall be held by the shelter for ten days, over which time such dog shall be observed by a veterinarian to determine whether it has developed signs and symptoms of rabies. ). Before the 10-day observation period had ended, Disel bit an employee of AC&C. Second bite incident, August 4 An enrichment coordinator employed by AC&C was playing ball with Disel on August 4 when the dog attacked her. Her supervisor, Jennifer Abrams, described the attack in a written account sent to the senior manager of the shelter after Abrams watched surveillance video of the incident (Pet. Ex. 4 at 13). Abrams wrote that Ms. McDonald, the victim, was exercising Disel off-leash in the pen at 3:15 p.m. After about 10 minutes of Disel walking and jogging around the area, sniffing and checking in with [McDonald], and playing fetch together with tennis balls, McDonald threw the tennis ball across the pen for Disel and then crossed the pen; as she approached Disel he turned and jogged toward her. Then, unprovoked, he lunged with tense body toward [McDonald] and began biting at her right pants leg (Pet. Ex. 4 at 13). He bit her

5 - 5 - ankle a number of times, pulled her to the ground, bit her thigh a number of times, and then returned to bite her ankle. Abrams wrote: Due to the severity and intensity of this attack, and the extreme effort it took to end, as well as the lack of clear provocation or trigger, I feel strongly that this is not a safe dog to place back into the public (Pet. Ex. 4 at 13). The tribunal observed that the surveillance video, entered in evidence as Petitioner s Exhibit 6, was of modest quality and some distance away from the attack. However, what could be seen was consistent with Ms. Abrams description, as well as Ms. McDonald s testimony, which she delivered at the hearing in person. Ms. McDonald, who walked with a limp caused by her injuries, testified that Disel initially seemed fine, very relaxed, even loose and very friendly (Tr. 49). She took him out of his kennel to let him play. She threw tennis balls as they played and he did not seem aroused or aggressive. As she walked past him after they had finished playing ball, he sniffed her ankle and then bit it. She tried to pull her ankle away and he bit again and refused to let go (Tr. 50). He continued to bite her ankle and started dragging her across the back yard as she screamed for help. When a porter came and sprayed the dog with a hose, the dog bit down harder (Tr. 50). The porter got a broom and began hitting Disel. Though whining, Disel kept biting down harder and readjust[ed] his bite and dragged her (Tr. 50). Eventually more employees came. She felt herself fading in and out of consciousness (Tr. 50). At some point, the dog let go of her ankle and bit her two or three times on her thigh, all deep bites the whole length of his canines, although he did not tear at her thigh the way he did her ankle (Tr. 50). Eventually he went back to the ankle and continued tearing flesh off for several more minutes until a veterinary staff member gave him a sedative, which is the point at which he finally released (Tr. 50). As for her injuries, Ms. McDonald said she received eight to 10 puncture wounds requiring stitches on her thigh, all the length of his tooth (Tr. 51). Her ankle, where a lot of flesh [was] missing, had so many bites that it was difficult to count them. The ankle received 30 stitches; chips were missing from her shin and ankle bones; and she had bone fractures (Tr. 52). She has permanent nerve damage in part of her right foot. She had emergency surgery that day to remove infected flesh and drill out bone and to stitch everything back together. She

6 - 6 - currently takes physical therapy to rehabilitate the muscles and tendons that were torn. She remains out of work due to these injuries (Tr. 52). She still has pain in her legs for which she takes medication. She initially used crutches to ambulate, then a cane, and currently walks with a limp and uses a cane for distances (Tr. 53). The surgical report from August 4, 2014, confirms Ms. McDonald s testimony about the extent of her injuries (Pet. Ex. 5). The report indicates she suffered open fractures to her tibia and fibula due to punctuate wounds which numbered approximately 40 over her thigh and lower leg; there were obvious bite marks and a large flap of skin that was missing from her lower right leg which required the development of a rotational flap to cover the tendons. The wounds were debrided under anesthesia. The photograph of the gaping wound in her ankle is shocking. I watched the video which showed Ms. McDonald exercising and interacting with the dog, throwing tennis balls for him to retrieve (Pet. Ex. 6). The attack occurred quite unexpectedly at 15:22:35 hours, only 15 to 20 seconds after McDonald had thrown a ball and Disel had returned to her after fetching it. There is no sign of provocation or arousal. The first co-worker to arrive on scene responded within 30 seconds, grabbing a water hose and spraying the dog. He then grabbed a stick and began to hit him. As his efforts to subdue the dog fail, several more men enter the pen and surround the dog, some wielding sticks, and begin to hit the dog in an attempt to subdue it. As the attack continues for several minutes, the dog is seen dragging Ms. McDonald by her ankle for much of that time. After being administered a sedative -- and only then -- the dog released his hold on Ms. McDonald s ankle. Without the sedative, there is no indication that Disel would have ceased the attack and released. In light of its prima facie case that Disel is a dangerous dog, the Department asked Dr. Peter Borchelt to conduct a preliminary assessment of the dog to determine the feasibility of retraining him (Tr ). Dr. Borchelt found that re-training would not be effective and recommended humane euthanasia (Pet. Ex. 4 at 10, 11).

7 - 7 - The Department s expert in animal behavior Dr. Peter Borchelt received a Ph.D. from Michigan State University in animal behavior in 1973; he is board certified in animal behavior and self-employed as an applied animal behaviorist (Tr. 11). He was qualified at the hearing as an expert in the field (Tr ). Dr. Borchelt testified that he observed Disel at AC&C on September 9 and October 4, 2014 (Tr. 21). He was asked to perform an evaluation of the dog but he chose not to take the dog out of the kennel, having been advised that he had attacked a person and refused to release his bite ( bite and hold ) despite being hit several times by rescuers (Tr. 21). At that level of aggression, he said, he considered the dog too dangerous to take out of the kennel for assessment. On his second visit, he approached the kennel where the dog was lying near to its door, and the dog gave him a low growl and hostile stare that is unmistakable. Under the circumstances, he did not take the dog out for assessment. According to Dr. Borchelt, dogs who bite can be re-trained (Tr. 23). Bites are a matter of degree: some bites are nips while some are hard bites. Many dogs can be rehabilitated, particularly where the circumstances leading to the bites are known. Dr. Borchelt rendered his opinion that humane euthanasia was the only available option for Disel because he had in both incidents used the bite and hold, which is rare and constitutes an extreme degree of aggressive behavior that could easily lead to a fatality (Tr. 22, 26). Dogs with multiple instances of biting, particularly bite and hold, are difficult to rehabilitate because few experts are willing to put themselves at the personal risk necessary to work with them outside of a cage (Tr. 23). His opinion that Disel should be humanely euthanized was based upon the considerations that (1) Disel is a large dog; (2) in both incidents Disel engaged in bite and hold which is a component of predatory behavior (Pet. Ex. 4 at 10; Tr. 25); and (3) the dog would not release his bite even while being hit several times by many others to get him to release. When attacking Ms. McDonald, he did not release until sedated. In Dr. Borchelt s opinion, these three attributes rendered the chances of re-training Disel practically nil. He stated that the decision not to offer rehabilitation as an option for a dog such as Disel is for safety, medical, and legal reasons (Tr. 24). Since he could not imagine how Disel could be safely rehabilitated, he could not recommend returning the dog to his owner. He has advised clients that attempting to rehabilitate a dog with Disel s history could lead to criminal liability, because of the danger of re-occurrence

8 - 8 - (Tr. 24). A much smaller dog with a history of biting, he explained, could more safely be rehabilitated; but Disel is a large dog with a bite force in the range of 30,000 pounds per square inch, which translates into 1,000 pounds of pressure that can break bones and cause massive tissue damage (Tr. 27). Respondent s case in defense of Disel Mr. Stanley loves his dog and does not want him euthanized. He asked that the dog not be put down, even if not returned to him (Tr. 94). He testified that Disel is a family dog ; he is like a member of the family (Tr ). Mr. Stanley has three children, ages 13 and 14, who miss the dog and want him back. He also stated that he does not currently live with his children (Tr. 97). Mr. Stanley himself is made anxious by the uncertainty of not knowing whether the dog is still alive (although he has been told that the Department is required to complete the hearing process before taking any action). 1 He objected to his inability even to visit the dog after the second biting incident (Tr. 86). He testified that he has moved his home four times because of this case (Tr. 92). 2 He indicated that his moves were triggered by an attempt to find more secure or larger housing for the dog (Tr ). He said that, after the first bite incident, he put up a higher fence as recommended by the Department, got a stronger leash and a muzzle; he said he was told that he could have the dog back if he provided extra security for the dog. Now, having spent money to do so, he complained that the Department wanted the dog euthanized (Tr ). I was not altogether convinced that anyone affiliated with the Department or with AC&C had made promises to Mr. Stanley, as opposed to offering suggestions in response to his early phone 1 A dog that has caused a severe injury to any person... shall continue to be held in a shelter until and unless the Commissioner has received a report and recommendation of an OATH administrative law judge finding that the dog is not a dangerous dog. Health Code (f)(3). 2 Mr. Stanley initially said he kept moving because the Department was not sending him notices, the logic of which I did not follow (Tr. 92). He objected that he received the first day s trial exhibits on the day of his trial appearance, even though the Department presented proof that they were overnighted to his home address two days earlier and left in a mailbox (ALJ Ex. 3). This was required only because Mr. Stanley did not appear on the scheduled trial date. The Department indicated the exhibits were mailed to the two addresses on file (Tr ). In an admission that seemed to explain his failure to receive the exhibits, he stated that he had moved several times since the dog was taken, but he seemed unwilling to accept any responsibility for his failure to notify the Department of his new addresses (Tr ). The exhibits also were ed to Mr. Stanley who stated that he was unable to open the attachments (Tr ). I could find no fault with the Department s efforts to provide him with the trial exhibits.

9 - 9 - inquiries. I also was not convinced that any fence had been installed in such a short period of time, particularly given his contradictory testimony that he had moved several times. Mr. Stanley s testimony was disorganized in places and difficult to follow. In the end, Mr. Stanley offered testimony extremely unhelpful to his plea to save Disel by what seemed to be a frank admission that he had a role in training the dog to be aggressive. While acknowledging that he was aware of the injuries the dog had inflicted in the two recent attacks, he stated that a dog is going to be a dog (Tr. 94). In an attempt to explain the second incident (though not the first), he indicated a belief that Disel had bug[ged] out because he was separated from the family just like a newborn baby, if you separate that thing from his family, what do you going to think is going to happen? (Tr. 95). When asked whether he believed his dog attacked after being provoked by the victims, respondent said, I believe my dog is provoked by anybody he don t know, because that s how I trained my dog. If you don t know him, keep him away. (Tr. 96). He continued, stating, I trained my dog. And I trained my dog to go low. If anybody ever, if anybody ever come, not to hit a dog high. To hit them on they [sic] leg. To grab they [sic] ankle. If it must, break it, but don t kill them. That s how I train my dog. (Tr. 97). By his description, respondent seemed to indicate that he had trained the dog to protect him against someone who might accost him on the street. Indeed, the description ( to go low ) eerily described Disel s mauling of Ms. McDonald s ankle as well as the attack of the first victim who was bitten on the foot. The record established that Disel is a dangerous dog within the meaning set forth in the Health Code and is a risk to public safety. FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the petition and notice of hearing. 2. The Department established that Disel is a dangerous dog, within the meaning of section of the Health Code and is a risk to public safety. RECOMMENDATION

10 The Department seeks permanent removal of the dog from respondent s ownership and control and humane euthanasia of the dog on the grounds that, in separate attacks only days apart, Disel inflicted multiple severe bites and used the bite and hold, refusing to release his victims despite rescuers attempts to loose his grip, and caused very severe injuries to one of the victims. The Department asserts that returning the dog to the community creates too great a risk to the public including the danger that Disel could cause death by latching onto the leg or throat, particularly of a child (Tr. 46). At the time of the incident, Disel was only 17-months-old, a relatively young age, and a dog s disposition is expected to deteriorate as he ages (Tr. 45). Under the Health Code, the Commissioner may order any action deemed necessary to control a dangerous dog and prevent injuries to persons. Those options include, but are not limited to, ordering the dangerous dog be surrendered for the purpose of humane euthanasia. 24 RCNY (g) (options also include permanently removing the dog from the City; muzzling him when in public; evaluation by an animal behaviorist to determine whether the animal may be re-trained; spaying or neutering if not previously altered; microchipping the dog to enable identification; or confinement in a place where there are sufficient barriers between the dog and passersby). I found that a preponderance of the evidence established that human euthanasia is the only appropriate remedy here. I credited the expert opinion of Dr. Borchelt that Disel is too dangerous to re-train. I found compelling the several factors cited by Dr. Borchelt in his assessment: the dog s repeated use of bite and hold which is a kind of predatory behavior that is extremely dangerous to the community, Disel s refusal to release hold in spite of sustained attempts by several men to subdue him and the need for a sedative to finally get him to release, the fact that the attacks were unprovoked, and the size and strength of the dog. Re-training would be a necessary component to any attempt to reintroduce Disel to society. However, the unique circumstances of this case make that impossible. The dangers demonstrated here prove that even professional attempts to re-train Disel are not an option, because he cannot safely be approached outside of a cage. Dep t of Health v. Stallone, OATH Index No. 1486/97 at 7-8 (July 16, 1997) (humane destruction recommended where dog bit eight people and his placement in a shelter outside of New York City was not an option because, while in custody, the dog had mauled another dog so severely that he had to be put to sleep).

11 It must also be noted that respondent, who admitted training the dog in aggression, failed to demonstrate sufficient trustworthiness to take responsibility for the dog s rehabilitation. Dep t of Health v. Yosupov, OATH Index No. 1551/98 at (July 23, 1998) (termination of ownership interest in dog recommended where respondent failed to comply with Commissioner s orders and could not be trusted to maintain security of fence or ensure dogs did not escape). I therefore recommend removal of the dog from respondent s ownership and control and humane euthanasia. January 8, 2015 SUBMITTED TO: MARY TRAVIS BASSETT, M.D., MPH Commissioner APPEARANCES: NICHOLAS ELCOCK, ESQ. Attorney for Petitioner KASEAM STANLEY Respondent Tynia D. Richard Administrative Law Judge