§ 4-18.5. Hearings.

(a)

Hearing officer. There is hereby created for the purposes of this chapter the position of hearing officer. Said hearing officer shall be a member in good standing of the Florida Bar.

(b)

Notice of hearing. Upon receipt of a timely, written request for hearing, the director shall schedule a hearing to be held as soon as possible and shall provide the owner of the dog initially classified as vicious pursuant to section 4-18, or the owner of a dog confiscated pursuant to sections 4-18(h) or (i), with no less than five (5) calendar days written notice of the time, date, and place of the hearing, which shall be held not more than twenty-one (21) calendar days from the date the police department receives the owner's request. The notice of hearing shall be sent to the owner by certified mail return receipt requested.

(c)

Hearing procedures.

(1)

Each party shall have the following rights:

a.

To be represented by counsel;

b.

To call and examine witnesses;

c.

To introduce exhibits;

d.

To examine opposing witnesses on any relevant matter, even though the matter was not covered under direct examination;

e.

To impeach any witness regardless of which party first called the witness to testify.

(2)

All hearings shall be conducted, insofar as is practicable, in accordance with the Florida Rules of Civil Procedure and the Florida Evidence Code. However, the general nature of the hearing shall be conducted in an informal manner.

(3)

Any interested party or person may make application and upon good cause shown, may be allowed within the discretion of the hearing officer to intervene and appear in a proceeding pending before the hearing officer.

(d)

Subpoenas.

(1)

The hearing officer has the power to issue subpoenas to compel the attendance of witnesses at a hearing upon the written request of any party or upon the officer's own motion.

(2)

A subpoena may be served by any person authorized by law to serve process. Service shall be made as provided by law.

(3)

Any person subject to a subpoena may, before compliance and on timely petition, request the hearing officer having jurisdiction of the dispute to invalidate the subpoena.

(4)

A party may seek enforcement of a subpoena issued under the authority of this chapter by filing a petition for enforcement in the county court. Failure to comply with an order of the court shall result in a finding of contempt of court. However, no person shall be in contempt while a subpoena is being challenged under subsection (d)(3).

(5)

If a party willfully fails to testify when duly subpoenaed, the hearing officer may:

a.

Order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

b.

Render a judgment by default against the disobedient party.

(6)

Witness fees shall be paid as provided by law.

(e)

Evidence.

(1)

In any hearing before the hearing officer, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

(2)

Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

(3)

A party shall be permitted to conduct cross-examination when testimony is taken or documents are made a part of the record.

(4)

The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions.

(5)

The hearing officer shall ensure that a full record of the hearing is preserved, which record shall be public and open to inspection and transcription by any person.

(f)

Written determinations of the hearing officer.

(1)

After due public hearing, the hearing officer shall issue a determination based upon the preponderance of the evidence. The police department shall bear the burden of establishing the viciousness of the dog; and the owner shall bear the burden of establishing any legal defense to the classification of viciousness.

(2)

All determinations of the hearing officer shall be in writing, signed and dated by the hearing officer, shall contain findings of fact and conclusions of law, and shall be served upon the owner by registered mail, certified hand delivery, or service in conformance with Chapter 48, Florida Statutes. If the hearing officer upholds the initial classification of viciousness, the owner shall comply with the provisions of subsection 4-18(f) within fourteen (14) calendar days of the hearing officer's determination; or in the event of any appeal of said determination to a court of competent jurisdiction, within fourteen (14) calendar days of a decision adverse to the owner. Any owner may file a written request for a hearing in the county court to appeal the determination of the hearing officer within ten (10) business days of receipt of the determination.

(g)

Payment of hearing officer. The cost of the hearing officer shall be paid by the losing party. If more than one item is in dispute, and if there are mixed results, a party shall only be responsible for the cost of the hearing officer's time that was applied to the losing item or items, which percentage of time shall be determined by the hearing officer.

(Ord. No. 2001-116, § 4, 8-21-01)