Dan Churney Sep. 12, 2015, 9:19am

A dog owner has claimed the Chicago Animal Care and Control Commission overreacted when it classified her pet a dangerous creature for mauling a smaller dog, but a state appellate panel has sided with the city commission.

On Jan. 22, 2014, Nikki Zollar filed a petition for administrative review of the commission’s designation of her pet as a “dangerous animal.” Almost 11 months later, Cook County Associate Judge Joseph F. Sconza upheld the commission’s designation, prompting Zollar to take the matter to appellate court.

The case began Sept. 13, 2013, when city officials said Zollar’s 100-pound male bullmastiff, Eli, escaped from a dogsitter, raced down an alley and attacked Jib, a 39-pound female Portuguese water dog who was walking on a leash with her owner. A water dog is bred to retrieve fowl for hunters from water.

Eli allegedly clamped his jaw around Jib’s hind flank, released his hold, bit again on Jib’s mid-section and then her neck. Jib suffered several wounds, but they were not severe and Jib survived.

The Animal Care and Control Commission investigated and, after a hearing, declared Eli a dangerous animal as defined by city ordinance. The code defines a dangerous animal as any animal that “bites, inflicts injury on, kills or otherwise attacks a human being or domestic animal without provocation.”

As a result, Zollar was ordered to post a sign at her home warning passers-by of the presence of a dangerous animal, to muzzle Eli when she took him anywhere, to implant a microchip on Eli, have him sterilized and maintain liability insurance on the dog. If Jib’s injuries had been worse, or Jib had died, an order could have been issued to have Eli euthanized.

In reviewing the administrative hearing, appellate justices looked at the arguments advanced at that proceeding.

Zollar contended her dog is usually mild-mannered and had never before been aggressive. Rather, Zollar contended Eli was provoked by Jib, Jib’s owner or Eli’s dogsitter. In Zollar’s scenario, Eli intended to play with Jib, but Jib did not play in return. She alleged Jib’s owner then further provoked Eli by hitting and kicking him as a way to chase him away. As another possible provocation, Zollar speculated the dogsitter incited Eli by hitting Eli to force him away from Jib.

Appellate justices were unmoved, saying provocation, as defined in the ordinance, did not occur, because one dog cannot provoke another dog – only a human can do so. Human provocation takes place when a human commits, or tries to commit, a crime, such as trespass against a dog’s owner or by “tormenting, abusing, or assaulting” a dog.

Justices said none of these circumstances applied, as they said the blows to Eli were made in defending Jib. 

Justices noted they could “say without hesitation” Eli was dangerous within the meaning of the ordinance.

Zollar had also argued the administrative hearing was flawed on procedural grounds. In Zollar’s view, the hearing officer wrongly burdened her with proving Eli was provoked, but justices found otherwise, saying the prosecution “established in its case-in-chief” the attack was not provoked.

Zollar also maintained the hearing officer should not have admitted into evidence a report by a city animal control inspector. Justices disagreed, saying it is “well-settled that the rules of evidence are relaxed in administrative hearings.” Going beyond this, justices pointed out Jib’s owner and the dogsitter both testified and were subjected to cross-examination, which eliminated any possible prejudice caused by the report.

As a final shot, Zollar said the animal ordinance was unconstitutional, because it was vague in that it did not acknowledge a dog can be provoked by another dog. Justices were not persuaded, saying the ordinance was clear only a human can provoke an animal. Reading between the lines, justices surmised Zollar’s “real complaint” is the Chicago City Council, in crafting the ordinance, did not allow that animals can provoke each other. Nonetheless, this decision by the council did not render the ordinance vague.

In the end, the appellate court confirmed the animal control commission’s order.

The appellate decision, an unpublished order delivered Sept. 2 under Supreme Court Rule 23, was authored by Justice Mary Anne Mason, with justices Terrence J. Lavin and Michael B. Hyman concurring. AMR Law Group, of Chicago, represented Zollar.

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Organizations in this Story

City of Chicago
121 N LaSalle St
Chicago, IL 60602

Illinois First District Appellate Court
160 N Lasalle St
Chicago, IL 60601

AMR Law Group LLC
111 W Washington St Suite 1760
Chicago, IL 60602

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