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Palm Coast Wednesday, Sep. 9, 2015 5 years ago

County Commission votes to have Labrador retriever that bit 8-year-old boy declared dangerous

The commission found that the boy wasn't trespassing when he entered a friend's home, where the family dog bit him.
by: Jonathan Simmons News Editor

The 2-year-old chocolate Labrador retriever that mangled the face of an 8-year-old boy July 5 should be declared a dangerous dog, the Flagler County Commission voted 4-1 at a Wednesday, Sept. 9 hearing.

The commission’s vote contravened the recommendation of a county hearing officer.

The case hinged on a point of law: Dogs protecting their home may not be designated as dangerous, even if they injure an intruder in the process — a canine version of the castle doctrine. In this case, the situation in which the dog, Bacchus, bit the boy was unclear: The boy, Rickey Westfall, said his friend let him into the home before Bacchus bit him, but the dog’s family said Rickey had walked into the house on his own, uninvited.

But several commissioners — George Hanns, Nate McLaughlin and Barbara Revels — said that a dog that knew a child, as the dog in this case did, should have known not to attack him.

Revels doesn’t have a dog, but of one of her friend’s dogs, she said, “the dog will recognize me; that dog will know me after many, many months.”

McLaughlin agreed that the dog should have recognized the little boy. “I think that historically, that this young man had been an invited guest into he home,” he said. “Even dogs that will bark at just about anybody, once they know you, you’re an invited guest.”

McLaughlin said that in his opinion, a trespass — which would have legally excused the dog’s behavior — “did not occur, because this young man was invited into the house, thus giving, to my opinion, implied consent.”

But Commissioner Frank Meeker disagreed: “When you talk about life experience with animals of this size, I’ve had a bunch of it,” he said. In one instance, Meeker said, his Labrador “put a guy right on top of the car” when the man showed up at the house unannounced. That man was later arrested for unrelated crimes, Meeker said, and it seemed like the Lab had a “sixth sense.”

“Dogs are territorial and they will defend their territory,” Meeker said. He noted that there had been no problems between Bacchus and Rickey when there were other family members present.

An instance when Bacchus, in his yard, ran aggressively at a man passing by on a bike — a former law enforcement officer who fired a warning shot — was explainable as normal chasing behavior, Meeker said, and a case in which Bacchus had nipped a young girl in the Sweatt family — an occasion brought up at the Sept. 9 hearing by the Westfalls’ attorney, Dennis Bayer — wasn’t necessarily evidence of aggression if the little girl had jumped on the dog as he slept and startled him, as the family had maintained, Meeker said.

And, he said, the only testimony of what happened at the door to the home that day came from three young children. Meeker cast the sole vote against declaring the dog dangerous.

At the hearing, attorney Vincent Lyon, representing the Sweatts, said the dog had been doing its job by defending the home against an intruder.

“Imagine that morning, July 5, Sunday morning, the Sweatt family is relaxing after a night of fireworks,” he said. “There’s someone on the porch, the door opens, a burglar comes in, the dog lunges, bites … Everyone would consider that dog to be a hero. The Sweatts sincerely wish that that was what happened that day. But unfortunately, it wasn’t a burglar.”

A hearing officer wrote in a report that Rickey rode his bike over to the Sweatts’ home the morning of  July 5 to see his friend Rage, without first calling ahead, as was the families’ custom.

When he got there, he “repeatedly rang the door and knocked,” and Jay Sweatt — his friend's father — answered, told Rickey that Rage was asleep, and told him to go home. Sweatt told Rickey he’d call when it was OK to come over, according to the statement.

Sometime later, though, Rickey returned without a phone call, and Bacchus bit him once on the right side of his face — causing lacerations that required 44 stitches — then retreated to his crate as the boy ran outside.

But, the report notes, “There was conflicting testimony about who opened the door.”

Rickey said his friend Rage opened the door. But Rage’s sister said she couldn’t see who was at the door, but that there was no one in the entryway and she could see her brother Rage in another room. Jay Sweatt said he was on the home’s second floor and didn’t open the door for Rickey.

An animal control officer investigating the case, Animal Services Supervisor Katie DiPippo, found sufficient cause based on Rickey’s injuries to classify Bacchus as dangerous — a designation that would mean the Sweatts would have to confine Bacchus to an enclosure posted with warning signs, leash and muzzle him when he’s outside, identify him with a permanent microchip or tattoo and keep certificates showing that he’s up-to-date on his vaccinations.

DiPippo issued her notice of sufficient cause to declare Bacchus a dangerous dog on July 20. But DiPippo did not consider any exemptions. That’s not her role, but a hearing officer’s.

July 27, the Sweatt family requested a hearing disputing the "dangerous dog" designation, and the case went before hearing officer Charles J. Cino on Aug. 11.

Cino found that Rickey suffered “disfiguring lacerations” and that the county met the grounds for declaring Bacchus dangerous. Under Florida law. But Rickey, he wrote in his report, “entered the home without the knowledge of either Jay or Dawn Sweatt, the homeowners, and was told by Jay Sweatt not to come over until called, and did not have authority or license to enter the home; therefore his presence was unlawful. Since (Rickey) was not legally on the property, the County cannot declare Bacchus a dangerous animal, since the dog may have been protecting the family from intruders.”

The commission's vote overrode Cino's recommendation. The Sweatts can appeal the dangerous dog designation in court.

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