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Home My WebLink About110617_ra02JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: Philip C. Hunsucker, Jefferson County Chief Civil Deputy Prosecuting Attorney DATE: November 6, 2017 RE: Request for Board of County Commissioners to Approve and Sign Settlement Agreement with Galen Brake to Resolve Dangerous Dog Case. STATEMENT OF ISSUE: Arising from an incident involving Michael and Sharon McGouran (collectively "the McGourans") at the Port Ludlow Marina on July 9, 2017, the County declared Galen Brake's ("Mr. Brake") dog Djin dangerous under the Jefferson County Code ("JCC") section 6.07.020(10), in JCSO Case No. 17-7613 ("Dangerous Dog Declaration"). The County also cited Brake with a civil infraction under Jefferson Cy. Dist. Ct. No. IN33204JC ("Infraction Case"). The dog at issue, Djin, a 1.5 year old, spayed female pit bull terrier type dog, resides at 105 Finis Trl., Nordland, WA 98358 with Mr. Brake and his parents, Robin and Dan Fitch (collectively "the Fitches"). Brake timely challenged both the Dangerous Dog Declaration and the Infraction Case. Mr. Brake has made restitution to the McGourans for all currently known injuries caused by Djin to the McGouran's dog resulting from the incident. A settlement was reached by negotiation between Mr. Brake and the County, which must be approved by the BoCC to be effective. The Sheriff s Office and the Prosecuting Attorney's Office ("PAO") recommend that the BoCC approve the settlement. ANALYSIS: Mr. Brake has challenged the constitutionality of the County's Dangerous Dog ordinance. The PAO disagrees with this claim of unconstitutionality. Despite this claim of unconstitutionality, Mr. Brake has agreed to settle this matter with Djin being declared a potentially dangerous dog under JCC section 6.07.020(24). Furthermore, consistent with JCC section 6.07.480(3), Mr. Brake: • Constructed a structure to contain Djin; • Posted a warning on the property; and, • Agrees to keep Djin on a leash whenever Djin is outside of the structure. In addition, Mr. Brake has agreed to pay the County $234 in settlement. Finally, Mr. Brake agrees to tender any additional claims for restitution from the McGourans to his insurance company. FISCAL IMPACT: The fiscal impact of the settlement is to receive payment of $234 and avoid the additional costs and risks of litigation. RECOMMENDATION: Discuss the settlement with the Chief Civil Deputy Prosecuting Attorney and the County Administrator in executive session. After the executive session, in open session approve the settlement and authorize the Chair of the BoCC to sign the settlement agreement on behalf of Jefferson County. REVIEWED BY: P ' ' `Morley, Co my dministrator 2 LtIX117 Date SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement") is entered into by the COUNTY OF JEFFERSON ("County") represented by its attorney of record, Philip C. Hunsucker, and GALEN BRAKE (`Brake"), represented by his attorney of record Adam P. Karp, collectively known as the "Parties." The Parties agree as follows: BACKGROUND INFORMATION Arising from an incident involving Michael and Sharon McGouran (collectively "the McGourans") at the Port Ludlow Marina on July 9, 2017, the County declared Brake's dog Djin dangerous under County code under JCSO Case No. 17-7613 ("Dangerous Dog Declaration," or "DDD"). The County also cited Brake with a civil infraction under Jefferson Cy. Dist. Ct. No. IN33204JC ("Infraction Case"). The dog at issue, Djin, a 1.5 year old, spayed female pit bull terrier type dog, resides at 105 Finis Trl., Nordland, WA 98358 with Brake and his parents, Robin Fitch and Dan Brake. Brake timely challenged both the DDD and Infraction Case. A potentially applicable liability insurance policy exists for any bodily injury or property damage caused by Djin resulting from of the incident described above. The insurance policy was issued to Robin Fitch and Dan Brake, but Brake is an additional insured on the policy. Brake has made restitution to the McGourans for all currently known injuries caused by Djin to the McGourans' dog resulting from the incident. It is the intent of the Parties to this Agreement to compromise and resolve these above described matters. TERMS OF SETTLEMENT For and in consideration of the mutual covenants contained herein, County and Brake agree as follows: 1. THIS AGREEMENT ONLY OPERATES TO THE BENEFIT OF THE PARTIES It is the specific intent of the Parties, and the Parties agree, that this Agreement shall not confer third -party beneficiary status on any non-party. 2. THE COUNTY AGREES: A. To VOID AB INITIO any and all DDDs issued by the County as to Djin; B. To allow Brake and his parents to keep Djin as a POTENTIALLY DANGEROUS DOG, as defined by County code, declaring her same under JCC 6.07.020(24)(a) related to bites to an animal only, and imposing only those restrictions set forth in Jefferson County — Galen Brake Settlement Agreement Page 1 of 6 JCC 6.07.480(3)(a), (b), (c), and (f), which state: i. Erection of new or additional fencing to keep the dog within the confines of the owner's or keeper's property; ii. Construction of a run consistent with the size of the dog within which the dog must be kept; iii. Keeping the dog on a leash adequate to control the dog or securely fastened to a secure object when left unattended; and, iv. Install at the premises a clearly visible warning sign that there is a dangerous dog on the property. C. These are the only restrictions imposed on Djin. Further, they only apply within unincorporated Jefferson County, provided Brake maintains and modifies said enclosure, if needed, and keeps Djin confined behind that enclosure or within the dwelling when unleashed. D. The dwelling and outdoor fenced enclosure at Fitch -Brake property are deemed satisfactory and meet the requirements of JCC 6.07.480(3)(a) and (b). E. The existing signage at the Fitch -Brake property is deemed satisfactory and meets the requirement of JCC 6.07.480(1)(f). 3. BRAKE AGREES: A. To not contest a designation of Djin as potentially dangerous under JCC 6.07.020(24)(a) related to Djin biting an animal while off -leash at the Port Ludlow Marina on or about July 9, 2017, and to comply with the potentially dangerous dog restrictions, as set forth in Para. 2, so long as Djin resides within unincorporated Jefferson County. Brake shall register Djin as a potentially dangerous dog at the Jefferson County Humane Society, located at 112 Critter Lane, Port Townsend, WA 98368 (httl2s://www.hsicwa.or€,,/) within seven (7) calendar days of the effective date subject only to the restrictions set forth in Para. 2; B. To pay $234 to the County within ten (10) calendar days of effective date of this Agreement; C. To tender to his or his parents' insurance carrier any demand delivered to him by the McGourans, or each of them, within seven (7) calendar days of receipt, provided said demand is made on or before December 31, 2017. Nothing in this section requires Brake or Robin Fitch or Dan Brake to pay the demand but, rather, to tender it to an insurance carrier, which will examine coverage and liability issues in its sole discretion. Nothing in this section constitutes an admission of liability by Brake, Robin Fitch, or Dan Brake. Jefferson County — Galen Brake Settlement Agreement Page 2 of 6 5. SEVERABILITY The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. 6. AGREEMENT BINDING Upon approval of this Agreement by the Jefferson County Board of Commissioners, this Agreement shall be binding on the Parties, their agents, assigns, insurers, and successors in interest. 7. GOVERNING LAW This Agreement shall be governed by, and construed in accordance with the laws of the State of Washington. 8. ENTIRE AGREEMENT This Agreement constitutes the entire agreement of the Parties. 9. EXECUTION OF AGREEMENT IN COUNTERPARTS AND TRANSMISSION BY FAX OR EMAIL This Agreement may be executed in counterparts and shall be binding when signed by all parties to this Agreement. Further, this Agreement shall be binding on the parties signing the same whose signatures are transmitted by telephone facsimile or scanned electronic signature. 10. EFFECTIVE DATE This Agreement is effective on the date it is signed by all parties and after it is approved by the County Board of Commissioners. (SIGNATURES FOLLOW ON NEXT PAGE) Jefferson County — Galen Brake Settlement Agreement Page 3 of 6 THE PARTIES CERTIFY THAT THEY HAVE READ AND UNDERSTAND THE TERMS OF THE ABOVE AGREEMENT AND ENTER THIS AGREEMENT KNOWINGLY AND VOLUNTARILY. Galen Brake ("Brake") Kathleen Kier, Chair Jefferson County Board of Commissioners Approved as to Form: Philip C. Hunsucker WSBA# 49897 Chief Civil Deputy Prosecuting Attorney For Jefferson County Jefferson County — Galen Brake Settlement Agreement Page 4 of 6 Location: j," �"� Date: Location: Date: Location: Date: Al A / 7