Neighbor Ricky Westfall, 8, had gone to visit his friend Rage, 8, the son of Jay and Dawn Sweatt at their 5-acre property. When Ricky walked in the house, one of the family’s two dogs, Bacchus, a 2 and a half-year-old brown Labrador, attacked and bit Ricky on the right side of the face just below the eye and on the lip, leaving what Ricky’s doctor would later describe as “deep wounds extending down to bone into the intraoral area.” He required 44 stitches.
On July 20, Katie DiPippo, the Flagler Animal Services, issued a notice that would declare Bacchus a dangerous dog. That would put severe limitations on the dog, such as a muzzle when in the presence of people, the requirement that the dog be confined, his status posted and even tattooed on its thigh or, alternately, the implantation of an identifying electronic chip.
The Sweatts disputed the determination and requested a hearing. Last week, the hearing officer—Charles Cino—recommended after hearing testimony over two days that the dog not be deemed dangerous. The matter isn’t over by any means: the Flagler County Commission hears the case and Cino’s recommendation before it, makes a decision on whether to uphold or reverse the determination on Sept. 9. Even then, the case may be appealed to count court and beyond.
Both families have retained lawyers as they have pursued the matter, with Ricky’s mother, Geri Westfall, looking for the dog to be declared dangerous (she had asked animal control officials why Bacchus had not been destroyed yet, but later told a News-Journal reporter that she did not want it euthanized) and the Sweatts looking to stop that determination.
It’s been roughly a decade or more since the last time the commission was asked to determine the fate of a dog in similar circumstances. The case is a rare window into the at-times complicated laws and procedures regulating domestic animal behavior. It illustrates a degree of subjectivity that plays into determinations about a dog’s behavior while underscoring reasoning usually applied to human beings, but in this case applied to a dog as well: the castle doctrine is not only for humans. Indeed, in Cino’s analysis—Cino is an attorney and traffic magistrate—the reason Bacchus should not be declared dangerous is because the dog was protecting its home against Ricky, who was not “lawfully” on the Sweatt’s property, according to Cino’s finding.
According to Cino’s summary of events, Ricky would visit his friend Rage but only after Ricky’s mother would call the Sweatt’s house first to make sure he could visit. Bacchus was not the only dog there. There’s also Cajun, an 8-year-old Rottweiler. “Both dogs get excited and rambunctious when the doorbell rings so the Sweatts were in the habit of putting them in the back porch before answering the door,” Deborah Birmingham, a canine behavior consultant and trainer wrote in an assessment report on the dog requested by the Shelton Veterinary Clinic in Bunnell ahead of the hearing before Cino.
That July 5, Ricky biked over to see Rage without his mother calling ahead. He knocked and repeatedly rang the doorbell. The household had been asleep at the time. Jay Sweatt finally opened the door and told him to go home since Rage was asleep. Sweatt testified that he told Rickey the family would call to say when it was okay for Rickey to visit. But Rickey returned half an hour later without a phone call.
Finding the front door unlocked, Ricky after ringing repeatedly “walked into the front entrance of the home where he encountered” Bacchus, Cino wrote, noting the conflicting testimony: Ricky said Rage opened the door. Rage said Ricky opened the door. And Rage’s 12-year-old sister Sage said she couldn’t see who had opened the door, but could see that no one had been in the entryway when the door was opened—and that her brother Rage was on the second floor at the time, so he couldn’t have opened the door. Jay Sweatt said he too was on the second floor.
“The family, who were dressing in other areas of the house,” Birmingham wrote in her report, “heard barking, then a scream, and then crying. Rage described Ricky as reaching out and bending over to greet Bacchus as he came in, although he also states he did not see the bite occur.”
What happened next is undisputed. Bacchus bit Ricky. But he was “acting as a sentry, defending the home against an intruder,” Cino wrote, citing Birmingham’s analysis as well. The dog bit Ricky once and retreated to his crate, while Ricky ran outside.
DiPippo testified that she made her decision to have the dog declared dangerous based entirely on photographs of Ricky and a verbal report from a colleague, without additional affidavits or consideration of legal exemptions to the declaration.
Florida law is clear: “A dog shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member. No dog may be declared dangerous if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault.”
Cino concluded that since Ricky “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 [Ricky] 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.”
Bacchus has not had a necessarily calm life. “As a pup of 6 to 9 months,” Birmingham also reported, “Bacchus is reported as showing signs of separation anxiety when the owners were absent such as drooling and gnawing of the dry wall around an exit door. In April of this year he is reported as reflexively biting at Sage when she jumped on him to hug him and awoke him from a deep sleep. The skin of her lip was slightly cut. The Sweatts also reported occasionally hearing an ambiguous short rumble or growl-like sound from him while being petted and on other random occasions. I observed this phenomenon twice during my first visit and on other occasions.”
Birmingham also reported seeing the dog playful and in control of itself while with Rage, but usually disobeying commands, without consequences. “I could see that there was a communication problem,” Birmingham wrote. “The dog sometimes did not understand what was expected of him because of it.
The family taught Bacchus obedience themselves. They admit that they have not been consistent with their training nor followed through on commands given but not obeyed.”
She concluded about the dog: “In my opinion, the communication problems between his people and Bacchus are a primary cause of his anxiety, together with a probable genetic component. Both the adults have an authoritarian, somewhat harsh and confrontational tone of voice when giving commands and there is a tendency to repeat a command rapidly.” Birmingham termed the bite “the result of a tragic and unfortunate series of events,” with the dog quickly biting the nearest part of the body that Ricky presented, as Ricky bent over to the dog, before Bacchus could recognize him. She is recommending obedience training, socialization and other behavior modification—which the Sweatts, she said, are committing to “with my help”: Birmingham, in other words, had gained a client.
Birmingham doesn’t mention an incident from a year ago that’s been made part of the case file going before the commission.
On July 20, 2014, Russell Schaeffer, a 64-year-old resident of the same neighborhood, was bicycling in the area with his wife when Bacchus ran out aggressively toward the couple, his hair standing upright. Russell took out a gun and fired a warning shot at the dog, “but not to hit it,” according to an incident report. Jay Sweatt was standing a distance away. He acknowledged that the dog may have seemed threatening to Schaeffer, but had been concerned about the gun being fired in such proximity to him. The two men “have no problem with each other,” the incident report relates, and deputies reported no crime.
When the biting matter goes before the commission on Sept. 9, it will be handled as a quasi-judicial hearing: each side will get five minutes, with Vincent Lyon, the Chiumento Selis Dwyer attorney, representing the Sweatts, and representatives of animal control representing the other side. But the public will also have a chance to address the commission. The county commission adopted that procedure by ordinance in 1999.
There’s more at stake than a declaration: most dogs declared dangerous, Lyon said, are generally and eventually “put down,” and if not, the dangerous-dog declaration attaches to the dog for the rest of its life, down to requirements—similar to those that attach to sex offenders—that the dog be registered with local authorities every time its family moves.
(Flagler Live - Sept 3, 2015)
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