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5 - Title change to the Boulder Revised Code definition section from "voice control" to "voice and sight control" CITY OF BOULDER OPEN SPACE BOARD OF TRUSTEES AGENDA ITEM MEETING DATE: December 9, 2009 AGENDA TITLE: Title change in the Boulder Revised Code definition section from "voice control" to "voice and sight control." PRESENTERS: Open Space and Mountain Parks Department Michael D. Patton, Director Eric Stone, Resource Systems Division Manager Jean Koszalka, Lead Ranger EXECUTIVE SUMMARY: This memo presents a recommended change to the definitions section to include voice and sight control in the Boulder Revised Code (B.R.C.) to clarify that a dog must be within sight of dog guardians and keepers to be under voice and sight control. In the B.R.C., 6-1-16 requires all dogs to be kept on leash unless they are outside the city limits and under voice and sight control. The definitions section for B.R.C. Chapter 6-2 only includes a "voice control" definition. This definition does not adequately include the intent of the code that dogs must not only be under voice control but also need to be within sight of the guardian or keeper. The clarification of the definition of voice and sight control was recommended by the Boulder Municipal Courts to assist in the prosecution of voice and sight control violations. A review of the current definition in consultation with the City Attorney's Office resulted in the recommendation to change a few key words in the definition to better reflect the actual intent of the code. Staff recommends the Board pass a motion recommending that City Council consider and adopt an ordinance amending the definition of voice control to include the requirement that a dog must also be within sight of the guardian or keeper. Key Issue Identification: The key issue is that the new wording in the definition section would include both voice and stg& control, and this better reflects the actual law. STAFF RECOMMENDATION: Staff recommends that the Open Space Board of Trustees supports and requests that council adopt an ordinance that will amend the title in the definitions section to clarify that voice control includes the requirement that dogs must also be within sight of the guardian or keeper. COMMUNITY SUSTAINABILITY ASSESSMENTS AND IMPACTS: • Environmental: Open Space and Mountain Parks (OSMP) is a significant community-supported program that is recognized worldwide as a leader in AGENDA ITEM 9 5 PAGE 1 preservation of open space lands contributing to the environmental sustainability goal of the City Council. The department's land acquisition, land and resource management and visitor service programs help preserve and protect the Open Space values of the surrounding publicly-owned lands. • Economic: Open Space and Mountain Parks contributes to the economic vitality goal of the city as it provides the context for the diverse and vibrant economic system that sustains services for residents. The land system and the quality of life it represents attract visitors and help businesses to recruit and retain quality employees. • Social: Because Open Space and Mountain Parks lands, facilities and programs are equally accessible to all members of the community they help to support the city's community sustainability goal because all residents "who live in Boulder can feel a part of and thrive in" this aspect of their community. OTHER IMPACTS: There are no significant fiscal or staff time impacts. PUBLIC FEEDBACK: This item is being heard at this board meeting advertised in the Daily Camera on December 6, 2009. ANALYSIS: The existing definition for the voice control in the B.R.C. 6-1-2 "Definitions" section does not incorporate sight control which makes the definition inconsistent with the voice and sight control requirement in B.R.C. 6-1-16 (Attachment A). The term "voice and sight control" began in the 1960s when a need was recognized for better control of dogs on Open Space and Mountain Parks lands outside the city limits where dogs were not required to be leashed. In 1996, the B.R.C. was revised to clarify conditions indicating a dog was not under voice and sight control. Since the inclusion of voice and sight control in the B.R.C., it has been enforced and explained to the public as requiring both the ability for a dog to respond to voice commands and be within view of the guardian or keeper. In 2006 with the introduction of the tag program, the voice control definition was changed and the wording changed slightly. The new definition was found to be insufficient. Staff is recommending an amended definition to include both voice and , , ht control, which better reflects the actual law as it is intended and has been applied. (Attachment B). This clarification will make the definition unambiguous for rangers as they explain the law in the field and for attorneys and municipal judges during prosecution. Leaving the definition without the inclusion of the "sight" requirement will continue to be something of an inconsistency in the code and reduce clarity for enforcement and prosecution. The existing voice control definition states: Voice control means control of the behavior of a dog which is not leashed or otherwise physically restrained by its guardian or keeper sufficient that the dog does not, without regard to circumstance or distractions AGENDA ITEM 9 5 PAGE 2 In the last paragraph it states: voice control does not exist unless the guardian or keeper exercises this command authority at all times to keep the dog within the requirements of this definition. The proposed changes to the definition are as follows: Voice and S eht Control means sufficient control of the behavior of a dog which is not leashed or otherwise physically restrained, but is at all tunes within the sight of its guardian or keeper, regardless of terrain, such that the dog does not, without regard to circumstance or distractions... Voice and Sight Control does not exist unless the guardian exercises this command authority at all times to keep the dog within the requirements of this definition." Submitted by: Michael D. Patton, Director Eric Stone, Resource Systems Division Manager Jean Koszalka, Lead Ranger ATTACHMENTS: A. Boulder Revised Code 6-1-16 and 6-1-2. B. Proposed changes for the Voice and Sight control definition. AGENDA ITEM 9 5 PAGE 3 Attachment A 6-1-16 Dogs Running at Large Prohibited. t" (a) No person owning or keeping any dog shall fail to keep the dog on the premises of the guardian or keeper unless the dog is: (1) On a leash held by a person, or (2) Within a vehicle or similarly physically confined and without access to passers-by. (b) The maximum penalty for a first or second conviction within two years, based on date of violation, is a fine of $500.00. For a third and each subsequent conviction within two years based upon the date of the first violation, the general penalty provisions of section 5-2-4, "General Penalties," B.R.C. 1981, shall apply. The maximum penalty for a first conviction occurring on land owned by the city and constituting park land or open space land is a fine of $50.00. For a second conviction within two years, based upon the date of violation, the maximum penalty shall be a fine of $100.00. For a third and each subsequent conviction, the maximum penalty shall be a fine of not less than $200.00. (c) It is an affirmative defense6 to a charge of violation of this section that the dog was: (1)(A) Outside of the corporate limits of the city; or (B) Inside the city limits within any of the following areas on land owned by the city and constituting park land or open space land: (i) The areas annexed by Ordinance Nos_ 4166, 4167, 4177, 4178, 4179, 4180, 4181, 4182, 4183, 4184 and 45771; (ii) The following portions of open space land lying along the North Foothills Trail, as that trail is shown on the city's most recent official trails map, which runs north from Lee Hill Road from approximately one mile west of Broadway and turns east to cross U.S. 36: the entire width between the trail fences from Lee Hill Road north and west along the eastern and northern boundary of the area annexed by Ordinance Nos. 4143 and 4163, and, at the end of the trail fencing, the area starting one hundred feet west of the trail and extending east across it to the eastern boundary fence of the land annexed by Ordinance Nos. 4143, 4147, 4163 and 4164, also including the area within one hundred feet northerly of the trail as it goes east toward its juncture with U.S. 36; (iii) The part of Heuston Park constituting roughly the eastern one-third of the park and lying west of the base of the slope north and west of the path along the north side of the ditch, as defined by signs and markers erected by the city manager delineating it as a voice (as defined in Section 6-1-2 "Definitions," B.R.C. 1981) and sight control area; (iv) A parcel of land containing one hundred twenty acres, more or less, in Section 12, T1S R71W of the 6th P.M., as described in the deed recorded February 28, 1973, at reception number 055946, Boulder County records. Said parcel is commonly known as "NCAR Park" and lies north of Bear Creek, east of the North-South centerline of said Section 12, and west of the western boundary of the National Center for Atmospheric Research property; and a portion of the parcel commonly known as "Batchelder" described as: the E 112 of the NE 1/4 of Section 1, T1S R71W of the 6th P.M. lying outside the boundary of Chautauqua Park. Said parcel is described in the deed recorded May 5, 1898, at Book 206, Page 24, Boulder County records along with a portion of the parcel commonly known as "Austin-Russell" described as the eastern portion of the W 1/2 of the NE 1/4 of Section 1, T1S R71W of the 6th P.M., described in the deed recorded April 21, 1903, at Book 270, Page 40, Boulder County records, located within the city limits of Boulder, Colorado; and a parcel of land located in the SE 1/4 of the NW 1/4 of Section 25, T1S R71W of the 6th P.M., as described in the deed recorded October 11, 1995, at reception number 01554297, Boulder County records. Said parcel is commonly known as "Seventh Day Adventist" along with a parcel of land located in the SE 1/4 of the NW 1/4 of Section 25, T1 S R71 W of the 6th P.M., as described in the deed recorded March 9, 2001, at reception number 2126152, Boulder County records. Said parcel is commonly known as "Community Hospital" along with a portion of a parcel commonly known as "Boulder Memorial Hospital" described as that part of the N 112 of the NW 1/4 of the SW 1/4 of Section 25, T1S R71W of the 6th P.M., located N of County Road 52 (Sunshine Road) and including Lot 15, Block 11, Mount Sanitas Heights subdivision, as recorded in the Boulder County records; and Outlot D, Shanahan Ridge Six, a part of the NW 1/4 of Section 17, T1S R70W of the 6th P.M., as shown on plat recorded July 13, 1977, as Plan File P-6-F-1-21, at reception number 232114, film 969, Boulder County records; and a parcel of land located in the SE 1/4 of the NE 1/4 of the NW 1/4 of Section 36, T1N R71W of the 6th P.M., as described in the deed recorded September 13, 1990, at reception number 01063953, Boulder County records. Said parcel is commonly known as "St. Germain" along with a portion of a parcel commonly known as "Moore, Ann & Donald" described as: the northern portion of a parcel in the NE 1/4 of Section 36, T1N R71W of the 6th P.M., described in the deed recorded April 17, 1987, at reception number 00842349, Boulder County records, located within the city limits of Boulder, Colorado. Said parcel is referred to as "Parcel 8" along with a portion of a parcel commonly known as "Moore, Ann & Donald" described as: the eastern portion of a parcel located in the NE 1/4 of Section 36, T1 N R71 W of the 6th P.M., described in the deed recorded April 8, 1986, at reception number 00751339, Boulder County records, located within the city limits of Boulder, Colorado. Said parcel is referred to as "Parcel 7" along with a portion of a parcel commonly known as "Overlook" described as, the eastern portion of Tracts 437 and 438 as shown on the Boulder County Assessor parcel map for Section 36, T1N R71W of the 6th P.M., located within the city limits of Boulder, Colorado; or (v) A portion of a parcel of land commonly known as the "NCAR Mesa Site" described as: Parcel 1: the West 650' of the North 260' of the E 1/2 of the NE 1/4 of Section 12, T1S R71W of the 6th P.M., and Parcel 2: the North 260' of the W 1/2 of the NE 1/4 of Section 12, T1S R71W of the 6th P.M. less that portion described in the deed recorded February 28, 1973, at reception number 55946, Boulder County records. Said Parcels 1 and 2 contain a section of the Skunk Canyon Trail, north of Skunk Creek, and (2) In an area which had not been posted by the city manager to require a leash; and (3) Accompanied by a guardian or keeper, provided that the dog is'. (A) Within voice and sight control of such person; and (B) Visibly wearing a Voice and Sight Control Evidence Tag that has been lawfully obtained pursuant to chapter 6-13, "Voice and Sight Control Evidence Tags," B.R.C. 1981; and (4) The accompanying guardian or keeper had a leash in such person's immediate possession in a condition to be attached to the dog without undue delay. (5) This affirmative defense is not applicable if the accompanying guardian or keeper has more than two dogs simultaneously unleashed or unrestrained. (Ordinance Nos. 4862 (1984); 4879 (1985); 5497 (1992); 5858 (1997); 5890 (1997); 5926 (1997); 5988 (1998); 7443 (2006); 7669 (2009)) 6-1-2 Definitions. t" The following words and phrases used in this chapter have the following meanings unless the context clearly indicates otherwise: "Guardian" means owner. "Keeper" means a person who has custodial or supervisory authority or control over an animal. "Landowner" means the owner or manager of land, or any other person who has control over the management of the land. "Leash" means a chain, rope, cord, or strap with a clip or snap for rapid attachment to a choke chain, collar, or harness, all the parts of which are of sufficient strength to hold at least four times the weight of the dog and are suitable for walking the dog and controlling it. "Leg-hold trap" means a spring-powered device or trap that captures or holds an animal by exerting a lateral force with fix-mounted steel or other metal jaws on the leg, toe, paw, or any other part of the animal's body. "Lethal control" means methods of wildlife control that rely for their effectiveness upon the killing of individual animals or upon the extermination of groups of animals. "Mall" has the meaning prescribed by section 5-1-1, "Definitions," B.R.C. 1981. "Owner" means each person who owns an animal. If an animal has more than one owner, all such persons are jointly and severally liable for the acts or omissions of an animal owner under this chapter, even if the animal was in possession and control of a keeper at the time of an offense. "Peace officer" has the meaning prescribed by section 5-1-1, "Definitions," B.R.C. 1981. "Prairie dog burrow" means any burrow actually occupied by one or more prairie dogs and any burrow of which any en-trance is surrounded by a mound. "Premises" of the guardian or keeper of an animal means only that property over which the guardian or keeper has full possession and control, and from which the guardian or keeper has the authority to exclude, and does exclude, the public. (a) Private property which is fenced or otherwise enclosed so that dogs within it cannot escape, and which is set aside by the owner of the property for use as a dog exercise or play area, and through which persons who are authorized to use the property are not required to pass in order to get to their destination, shall be deemed the premises of any guardian or keeper who has the express permission of the owner of such area to use it with the dog for such purposes. (b) Places which are not "premises of the guardian or keeper of an animal" within the meaning of this definition include, without limitation, the following: (1) All public property; or (2) On private property: (A) Any common sidewalk or walkway, any common unenclosed yard, or any other common unenclosed exterior space; (B) Any common parking facility (whether or not spaces are reserved); or (C) Any common interior room, hallway, stair, or passageway. (D) For the purposes of this definition, "common" means any part of a residential condominium, townhouse development, apartment building, shopping center, business condominium, office building, business center, or industrial park which residents, owners, tenants, employees, customers, or visitors of more than one unit or space may use. "Protected birds" includes any bird protected by the Migratory Bird Treaty Act, 16 U.S.C. sections 703-712. Protected birds do not include members of bird species listed in a United States treaty, law or Executive Order as an invasive species. "Service animal" means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to sounds, pulling a wheelchair, or fetching dropped items. "Unnecessary suffering" means suffering resulting from reckless or negligent practices causing avoidable lacerations, suffocation, broken bones, amputations or the infliction of pain on animals that could have been avoided by the use of reasonable, practical, and humane practices. "Voice control" means control of the behavior of a dog which is not leashed or otherwise physically restrained by its guardian or keeper sufficient that the dog does not, without regard to circumstances or distractions: (a) Charge, chase, or otherwise display aggression toward any person or behave toward any person in a manner that a reasonable person would find harassing or disturbing; (b) Charge, chase or otherwise display aggression toward any dog; (c) Chase, harass, or disturb wildlife or livestock; or (d) Fail to come to and stay with the guardian or keeper immediately upon command by such person; and voice control does not exist unless the guardian or keeper exercises this command authority at all times to keep the dog within the requirements of this definition. "Wild birds" means birds that are living in a state of nature and that are not tame or domesticated. (Ordinance Nos. 5377 (1991); 5393 (1991); 5858 (1997); 7133 (2001); 7321 (2005)) Attachment B Proposed changes for the Voice and Sight Control definition Voice and sight control means sufficient control of the behavior of a dog which is not leashed or otherwise physically restrained, but is at al/ times within sight of its guardian or keeper, regardless of the terrain, such that the dog does not, without regard to circumstances or distractions: a) Charge, chase or otherwise display aggression toward any person or behave toward any person in a manner that a reasonable person would find harassing or disturbing; b) Charge chase or otherwise display aggression towards any dog; c) Chase, harass or disturb wildlife or livestock; or d) Fail to come to and stay with the guardian or keeper immediately upon command by such person. Voice and sight control does not exist unless the guardian or keeper exercises this command authority at all times to keep the dog within the requirements of this definition. Existing Voice Control definition Voice control means control of the behavior of a dog which is not leashed or otherwise physically restrained, by its guardian or keeper sufficient that the dog does not, without regard to circumstances or distractions: a) Charge, chase or otherwise display aggression toward any person or behave toward any person in a manner that a reasonable person would find harassing or disturbing; b) Charge chase or otherwise display aggression towards any dog; c) Chase, harass or disturb wildlife or livestock; or d) Fail to come to and stay with the guardian or keeper immediately upon command by such person; and voice control does not exist unless the guardian or keeper exercises this command authority at all times to keep the dog within the requirements of this definition.