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Liberty Humane Society, Inc. v. Jacobs

June 24, 2008

LIBERTY HUMANE SOCIETY, INC., PLAINTIFF-APPELLANT,
v.
FRED L. JACOBS, COMMISSIONER, N.J. DEPARTMENT OF HEALTH AND SENIOR SERVICES, IN HIS OFFICIAL CAPACITY, N.J. DEPARTMENT OF HEALTH AND SENIOR SERVICES, FAYE SORHAGE, DIRECTOR, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, IN HER OFFICIAL CAPACITY, COLIN CAMPBELL, ASSISTANT DIRECTOR, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, IN HIS OFFICIAL CAPACITY, JANET DEGRAF, DIRECTOR, OFFICE OF COMMUNICABLE DISEASE, IN HER OFFICIAL CAPACITY, JOSEPH AIELLO, OFFICE OF ANIMAL WELFARE, IN HIS OFFICIAL CAPACITY, OFFICE OF ANIMAL WELFARE, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, OFFICE OF COMMUNICABLE DISEASE, DIVISION OF EPIDEMIOLOGY, ENVIRONMENTAL AND OCCUPATIONAL HEALTH, AND RUTH CHARBONNEAU, DIRECTOR OF LEGAL AND REGULATORY AFFAIRS FOR THE DEPARTMENT OF HEALTH AND SENIOR SERVICES, IN HER OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-2270-06, and from the Final Agency Decision filed September 22, 2006, by the Director, Office of Legal and Regulatory Affairs, Department of Health and Senior Services.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2007

Before Judges Collester and C.S. Fisher.

Liberty Humane Society (LHS), a non-profit corporation, was organized to protect the welfare of domestic companion animals, and manages and operates the municipal animal control facility for the City of Jersey City (the City). See N.J.S.A. 40:48-5.1. As such, LHS fulfills the City's statutory obligation to provide shelter for stray animals pursuant to N.J.S.A. 4:19-15.16 as well as other obligations pursuant to N.J.A.C. 8:23A-1 to 1.13. As of February 2006, the City Animal Control Office is under the supervision of the New Jersey Office of Infectious and Zoonotic Disease, which in turn is overseen by the New Jersey Division of Epidemiology, Environmental and Occupational Health, Office of Communicable Disease. At all relevant times in this matter, the Department of Health and Senior Services (the Department) was the supervising authority.

On August 29, 2006, LHS filed an order to show cause and complaint in lieu of prerogative writs seeking to compel the Department to revoke the certification of Chief Certified Animal Control Officer Joseph Frank as well as Animal Control Officer Emanuel Machado. The Law Division motion judge denied the order to show cause and dismissed the complaint for lack of jurisdiction pursuant to R. 2:2-3(a)(2) and R. 2:2-4. On September 20, 2006, the Department of Health issued a denial letter in response to LHS's request for revocation of Frank's certification. LHS appeals from both the September 14, 2006 order dismissing the complaint and the Department's September 22, 2006 decision.

LHS's complaint was based on the following factual allegations of actions by Frank and Machado with respect to a dog owned by Vivian Lopez. On December 20, 2005, Jackie Rivera, the owner of a house at 23 Winfield Avenue in the City, called the animal control office and reported that Lopez's dog was running loose in her basement, making it impossible for her to do her laundry or read the utility meters. Rivera rented a closed-off area of the basement to Lopez, who lived there with her two children and her pit bull named Spanky. The apartment had a separate entrance door. Rivera requested that the animal control officer remove the dog. Frank ordered Machado and two other officers, Alex Perez and John Ross, to enter the house when Lopez was at work, remove the dog, take it to the LHS shelter, and report it as a stray. Under N.J.S.A. 4:19-15.16, a stray dog that is not claimed or adopted within seven days of arrival at the shelter must be euthanized.

Two days later, on December 22, 2005, Machado, Perez, and Ross went to 23 Winfield Street to carry out the assignment given by Frank. When Perez and Ross saw that the basement area was an apartment and the dog was confined inside, they refused to enter and take the dog. They told Frank it was illegal for them to enter a private dwelling. However, Machado carried out Frank's orders. He went into the apartment, seized the dog, and took it to the LHS shelter where he signed an animal intake form indicating the dog was a stray. Furthermore, Machado left no written notice for Lopez advising that her dog had been seized by the Animal Control Office or giving information that the dog was taken to the LHS shelter where he could be reclaimed. Later that day, Lopez was told by a person who knew Perez that the dog has been taken to LHS and she reclaimed her pet. Machado issued three citations to Lopez: having a dog off leash in a common area; creating a public health nuisance; and failing to obtain a dog license. On May 19, 2006, the citations were dismissed by the Fort Lee Municipal Court judge.

The statutory section governing the taking into custody or impoundment of stray dogs, provides as follows:

Any person appointed for the purpose by the governing body of the municipality shall take into custody and impound or cause to be taken into custody and impounded, and thereafter destroyed or offered for adoption as provided in this section:

(a) Any dog off the premises of the owner or of the person keeping or harboring said dog which said official or his agent or agents have reason to believe is a stray dog;

(b) Any dog off premises of the owner or of the person keeping or harboring said dog without a current registration tag on his collar;

(c) Any female dog in season off the premises of the owner or of the person keeping ...


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