Agenda - 04-08-2014 - 2 - Laserfiche WebLink

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14 Attachment B(3) TFEEPASS& WOOUSAN/MALS Background Acomplex and challenging issue arising in the Gommissioners' discussion is the way in which"trespass' should be defined and understood in the context of the Unified Ordinance. A primary reason for this is that how trespass is defined has consequences for whether a dog will be declared as a vicious animal when it bites someone who has come on its owner's property without invitation or permission. Currently,the county's ordinance has a basic notion of trespass, namely, a person entering onto property without invitation or permission from a property owner. If a person is trespassing in this sense and si he is bitten by a dog,the dog may not be regarded as a vicious dog(Sec.4-37). By contrast,the Unified Ordinance proposed a more complex notion, recognizing that many different people enter onto other people's property without permission for many different reasons. Specifically, it used"willful trespass" in place of the essentially binary(or black and white)notion of trespassfound in the existing ordinance as a basisfor making exceptionsto declaring a dog dangerous. ' At the October 4,2013, Board meeting,therewas a thorough discussion of trespass in relation to the flux of daily life in in our own and other communities. Some parts of the discussion were concerned with how people's own dogs would be affected if they behaved protectively on their property. Other parts of the discussion underscored the wide variety of diverse but entirely lawful reasons a person enters onto the property of another without permission or explicit invitation. The discussion suggested that ideally the notion of trespass used in the proposed ordinance should be deepened in order to allow consistent and meaningful distinction between justifiable and unjustifiable bites to uninvited persons that occurred on the private property of a dog owner. The full range of such incidents was further suggested in the discussion"my dog scenarios" developed by the ASAB after the Commissioner's October 4,2013 meeting to serve as an aid to further analysis of trespass and ultimately its definition in the Unified Ordinance. It was in this context that Professor Aimee Wall and her associate, Christopher Tyner, responded to our request for assistance by providing a detailed analysis of the notion of trespass and developing a flow diagram for decision-making.2 They met with staff and ASAB representatives to discusstheir analysisof trespass(among other issues)and its implications for the Unified Ordinance. SAbsequently,they revised their written analysis.The final version of their analysis and their decision-making diagram are among the attachments for this agenda item. Among other things,their revised analysis addresses the legal issue of whether children can and should be held to the same standards of conduct as adults with regard to trespass. This was another issue that emerged at the Board's October meeting with Commissioners expressing varied opinions. In doing so, it constructed the ordinance on the basis of the precedent provided by and in a manner parallel to North Carolina's dangerous dog law(674.1),which usesthe notion"willful trespass" aswell. 2 The diagram was not intended to become part of the ordinance but rather to serve as instrument staff would use in analyzing the"totality of circumstances" in particular cases.