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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. West v. Municipality of Anchorage (12/21/2007) sp-6213

West v. Municipality of Anchorage (12/21/2007) sp-6213, 174 P3d 224

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12164
Appellant, )
) Superior Court No.
v. ) 3AN-04-08213 CI
Appellee. ) No. 6213 - December 21, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Robert  C.  Erwin,  Robert   C.
          Erwin, LLC, Anchorage, for Appellant.  Joshua
          M.  Freeman, Assistant Municipal Attorney and
          James    N.   Reeves,   Municipal   Attorney,
          Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.
          EASTAUGH, Justice, dissenting in part.

          A  dog  bit  or  pawed a seven-week-old  baby,  causing
several  scratches along the babys face and forehead.   After  an
investigation,  an  Anchorage animal control enforcement  officer
concluded  that  the dog should be classified as  a  level  three
animal,  defined  by  the  city code as  one  that,  while  under
restraint,  inflicts  an aggressive bite or causes  any  physical
injury  to  any human.  An administrative hearing officer  upheld
this  classification, as did the superior court.  The dogs  owner
appeals.  Because the hearing officer applied the correct  burden
of  proof and properly interpreted the evidence, and because  the
decision is supported by substantial evidence, we affirm.
     A.   Facts
          On  April 14, 2003, Kandi Trescott was visiting Knights
Auto  Radio store in Anchorage and speaking with Jeffrey  Knight,
the  stores  owner and operator, while Trescotts  seven-week  old
baby,  Ethan, lay in a carrier by her feet.  The baby was covered
by  a  blanket when Ronald West entered the store with his  black
and  white malamute dog, Gummie, on a long leash.  Upon  entering
the store, Gummie approached the baby.  What happened next is  in
dispute,  though undeniably it resulted in several  scratches  to
the babys face.
          According  to Trescott, Gummie inserted his head  under
the  blanket  and  grasped the babys head in his  mouth.   Knight
testified that he did not have a clear view of the baby  and  did
not  observe what Gummie did before walking away with  the  babys
blanket  in  his  teeth.  West, who was further  from  the  baby,
testified  that Gummie never bit the baby but merely  pushed  his
paw under the blanket and rubbed his paw on the babys face enough
to cause the scratches.
          There   was  conflicting  testimony  as  to  the  babys
reaction.   Trescott  stated that the baby  cried  and  continued
crying for several minutes until she quieted him down by carrying
him  around the store.  Wests affidavit, filed two days after the
incident,  indicates  that he heard  the  baby  cry.   An  animal
control  report also indicates that Knight initially told  animal
control  that the baby had cried.  However, at the administrative
hearing  West  (and  Knight)  denied  that  the  baby  cried  and
testified that the baby was merely in shock.
          After   receiving   Gummies  rabies  tag   information,
Trescott,  joined by the babys father, took the baby to  see  Dr.
Martin  Beals.  Bealss report described the marks  on  the  babys
head  as  [s]everal superficial red whelp-like scratch  marks  on
[the]  right  cheek and one longer one on the [left]  cheek.   He
also  reported very superficial scrapes on the forehead with mild
redness  and  wrote,  [n]o puncture wounds or  deep  bruising  or
tenderness noted.
     B.   Proceedings
          Trescott  called animal control to report the  incident
on  April  14, 2003, the day the incident happened,  and  gave  a
written  statement  to  Animal Control  Officer  Richard  Gamble.
Later that day Animal Control Enforcement Supervisor Richard Novy
spoke  with  West by telephone and informed him of the  need  for
Gummie  to be quarantined.  Gummie was quarantined for  ten  days
beginning  April 15.  Novy continued to investigate the  incident
and  on  April  21  classified Gummie as a  level  three  animal.
Anchorage  Municipal  Code  (AMC) 17.40.020(A)(3)  states:  Level
three   behavior  is  established  if  an  animal,  while   under
restraint,  inflicts  an aggressive bite or causes  any  physical
injury  to  any  human.   This classification  has  a  number  of
consequences, including an increase in the yearly licensing  fee,
requirements that warning signs be posted on the owners property,
and  requirements that the dog be securely enclosed at all  times
or,  when off the owners property, on a leash six feet or shorter
and muzzled.1, 2
          West  appealed  to  an administrative hearing  officer.
After  multiple continuances, a final hearing was held  on  April
27,  2004.  On May 25, 2004,  the Administrative Hearing Officer,
Timothy  Middleton, issued a ruling finding that Gummie warranted
level  three  classification.  Middleton  specified  that  animal
control  bore the burden to prove the basis of the classification
by  a preponderance of the evidence, a burden which he found that
it had met.
          West  appealed  to the superior court, which  dismissed
the case for failure to prosecute when West did not timely file a
brief  and  did not move the court to accept a late-filed  brief.
The  superior  court,  apparently  without  the  benefit  of  any
briefing   from  West,  also  found  that  substantial   evidence
supported the hearing officers decision.
          Where  the  superior court is acting as an intermediate
court  of  appeals,  we  directly review  the  agency  decision.3
Questions   of  fact  are  reviewed  for  substantial  evidence.4
Questions  of  law involving agency expertise are reviewed  using
the reasonable basis test5 because where an agency interprets its
own  regulation  . . . a deferential standard of review  properly
recognizes that the agency is best able to discern its intent  in
promulgating the regulation at issue.6  We apply our  independent
judgment to issues of law not involving agency expertise.7
          Whether the trial court used the appropriate burden  of
persuasion presents a question of law to which this court applies
its  independent judgment, adopting the rule of law that is  most
persuasive in view of precedent, reason and policy. 8
          Finally,  we  review  the superior courts  decision  to
dismiss for failure to prosecute for abuse of discretion.9
          We  conclude that the superior court did not abuse  its
discretion  in its procedural handling of this case, but  decline
to  rest  affirmance on Wests failure to prosecute.  Because  the
hearing officers decision is correct on the law and supported  by
substantial evidence, we affirm.
     A.    The  Hearing Officer Applied the Correct  Standard  of
          West  argues  that decisions under the  animal  control
ordinance  of  the Municipality of Anchorage should  utilize  the
beyond  a  reasonable  doubt standard of  proof  instead  of  the
preponderance of the evidence test that the hearing officer  used
in this case.  West asserts that beyond a reasonable doubt is the
proper standard because of the remedial or criminal nature of the
actions  under  the animal control ordinance,  and  the  remedial
penalties that resulted from the level three classification.10  In
so  doing  he  mistakenly conflates the meaning of  remedial  and
criminal ordinances.
          West   cites  State v. Von Thiele,11 a Washington  case
which  determined  that where a statute is remedial  rather  than
criminal  in  nature, the states burden of proof is preponderance
          of the evidence.  In that case, Von Thiele was charged with
illegal  hunting  and  was  forced to  pay  restitution.12   West
misreads  the  courts discussion on this matter as distinguishing
criminal  or remedial statutes on the one hand and civil  on  the
other.   In  fact, the court was distinguishing between  criminal
and  remedial statutes, holding that the remedial nature  of  the
restitution  requirement in question made  it  civil  in  nature:
[T]he   plain   and  unambiguous  language  of  [the  restitution
provision]  unequivocally demonstrates a  legislative  intent  to
provide a civil penalty system in the form of restitution for the
redress  of  wildlife  values lost because  of  illegal  hunting.
Accordingly, [the restitution provision] is inherently  remedial,
rather  than  criminal, in nature.13  Thus, Von  Thiele  actually
counters Wests point and undermines his theory that the existence
of  penalties  renders the animal control ordinance  criminal  in
          Furthermore,  as the municipality notes in  its  brief,
Alaska  case  law similarly distinguishes between sanctions  that
are  remedial and criminal in nature.  In Johansen v. State14  we
distinguished   between   the  procedural   safeguards   afforded
defendants  in civil contempt and criminal contempt  proceedings,
holding  that  civil  contempt needed to  be  proved  only  by  a
preponderance of the evidence.15
          No  Alaska  case law supports Wests position  that  the
classification hearing was criminal in nature, or that it  should
result  in  a beyond a reasonable doubt standard of proof.   West
cites  Sinclair  v.  Okata,16 where the  federal  district  court
characterized  an  Anchorage  ordinance  on  animal  control   as
unequivocally  aimed at preventing attacks and bites  by  dogs.17
However, Sinclair said nothing about the statutes criminal nature
or  the  burden  of proof required for proving an  injury  in  an
administrative  hearing.  Indeed, the dog owner in  Sinclair  was
held negligent per se for injuries caused by his dog when it  was
not under voice control.18
          Finally,  the  context of the ordinances confirms  that
the  animal control regulations are not criminal in nature.   The
entire  structure for providing an animal control hearing  on  an
animal    classification   in   AMC   17.05.100   utilizes    the
administrative adjudication procedures of AMC 03.60.   The  civil
nature of the ordinance is further clarified by the fact that the
former  provision  on crimes and penalties in AMC  17.40  now  is
contained in the criminal provisions of the AMC,19 separating  it
from  the  rest  of  animal  control regulations.   The  criminal
provision  of  the  animal behavior regulation provides  that  an
owner  is subject to criminal penalty if she or he violates  with
criminal negligence the requirements of the animal classification
pertaining  to  animals classified at level  three  or  higher.20
Thus,  while  Gummies initial classification is an administrative
matter  conducted under standard administrative  procedures,  any
alleged criminal violation of the terms of the classification  by
West  would  result in a separate trial in which  West  would  be
afforded full criminal defendant protections.
          Because  the  hearing  classifying  Gummie  was  not  a
criminal  proceeding  but  instead  an  administrative  one,  the
          hearing officer properly used the preponderance of the evidence
     B.   The   Hearing  Officer  Properly  Interpreted  the
          West   argues  that  the  hearing  officer   improperly
interpreted  the ordinance guiding classification of level  three
animals.  The relevant provision states: Level three behavior  is
established  if  an  animal, while under restraint,  inflicts  an
aggressive  bite  or causes any physical injury to  any  human.21
West  argues  that the clause causes any physical injury  to  any
human   should  be  interpreted  as  requiring  that  the  animal
aggressively caused any physical injury.
          West  relies  on  the  statutory construction  rule  of
ejusdem generis, which has been explained as follows:
          [W]hen  a  general word or phrase  follows  a
          list of specifics, the general word or phrase
          will be interpreted to include only items  of
          the  same type as those listed.  For example,
          in  the  phrase horses, cattle, sheep,  pigs,
          goats,  or any other farm animal, the general
          language  or  any other farm animal   despite
          its  seeming breadth  would probably be  held
          to  include only four-legged, hoofed  mammals
          typically  found  on farms,  and  thus  would
          exclude chickens.[22]
However,  as  the  municipality  notes,  the  language   of   AMC
17.40.020(A)(3)  does not contain a list of  specifics  preceding
the  phrase or causes any physical injury . . . .   Instead, only
the  specific  act of an aggressive bite precedes or  causes  any
physical injury to any human.  We agree that this lack of a  list
means that ejusdem generis does not apply.
          Additionally, the plain meaning of the sentence is  not
ambiguous,  and thus no statutory aids need apply.  In  Crump  v.
State23 we clarified the role of ejusdem generis when we declined
to apply the canon to a kidnapping statute:
               Ejusdem  generis is not a rule  of  law,
          but  rather  an aid to the interpretation  of
          statutes  that  are ambiguous or  that  leave
          unclear the legislative intent.  Here ejusdem
          generis   is  not  appropriate  because   the
          statute is not ambiguous.[24]
Similarly,   there   is  nothing  about  the   wording   of   AMC
17.40.020(A)(3)  that  makes it ambiguous. The  terms  aggressive
bite  and  physical injury are both defined in  the  ordinance.25
Finally, it is grammatically incorrect to conclude that the  word
aggressive modifies any part of the phrase or causes any physical
injury to any human.
          Reading  level  three classification as  including  any
physical  injury  to  any human also fits  logically  within  the
context  of the classifications.  The less-sanctioned  level  two
behavior  is  established if an animal bites or  causes  physical
injury to any domestic animal, or if an unrestrained animal kills
any unrestrained domestic animal.26  Thus, at level two, no injury
to  any  human  is contemplated.  Similarly, level four  behavior
          occurs when an unrestrained animal inflicts the same harm
described in level three.27  Level five behavior is established if
[a]n  animal,  regardless  of whether it  is  restrained,  causes
serious physical injury or the death of any human . . .  .28   As
would  be expected, levels four and five contemplate more serious
behavior  than  occurred here, and level  two  contemplates  less
serious behavior.
          West  argues  that the hearing officers  interpretation
could  result in an animals classification for injuries  that  it
causes  inadvertently.  But the ordinance mitigates this risk  by
providing  a  list  of  nine exceptions to the  classifications29
including  injury resulting from the animal acting out  of  pain,
protecting its young, playing with the family that owns it, and a
general  exception  for  when  [t]he  decision  not  to  classify
reasonably  serves  and  promotes  justice,  fairness,  and   the
purposes  and  intent  of this title, the  protection  of  public
health, safety and welfare, and the humane care and treatment  of
animals.30   Given the plain meaning of AMC 17.40.020(A)(3),  its
context,  and the exceptions to the classifications, the  hearing
officer  properly  interpreted the  ordinance  to  apply  to  any
physical injury to a human.
     C.   The   Hearing   Officers  Decision  Was  Supported   by
          Substantial Evidence.
          In order to uphold the administrative decision, we must
determine whether the hearing officers decision was supported  by
substantial evidence.  As noted above, level three classification
required  a  determination that an animal under restraint  caused
any  physical injury to any human.31  The municipal code  defines
physical  injury as an impairment of physical condition  or  pain
that is accompanied by scrapes, cuts, punctures or other evidence
of similar injuries.32
          It  is uncontested that (1) Gummie was restrained33 and
(2)  Gummies actions resulted in several scratches to  the  babys
face, though they were not deep.34  All parties agree that Gummie
did  not  display  aggressive characteristics such  as  snarling,
baring  teeth,  growling, [or] snapping.  Thus,  Gummie  did  not
inflict an aggressive bite,35 but inflicted physical injury if the
scrapes were accompanied by pain.
          The witnesses disagreed about the babys reaction, which
is  important  for satisfying the pain element  of  the  physical
injury  definition.  Trescott testified that her baby was crying,
while  Knight and West testified that he did not cry out and  was
merely  in  shock.  The hearing officer found Trescotts testimony
on  the  babys  reaction to be more credible because  she  had  a
better view.  On appeal, West contends that this is false because
Knight  was  standing  next to the baby.   However,  Knights  own
testimony  indicated  that he believed Trescott  had  the  better
          I  think [Trescott] may have seen more  [than
          me].   She  was  pretty concerned  about  the
          baby.   Where  the  baby was and  everything.
          She  was constantly looking down at the  baby
          while she was talking to me . . . .
          Additionally,  testimony that the baby remained  silent
          is contradicted by other parts of the record.  In Wests affidavit
to Anchorage Animal Control, made two days after the incident,  I
was  unaware there was even a baby present until the baby  cried.
Similarly,  the  animal  control report of  a  conversation  with
Knight the day after the incident states that [Knight] said  West
came  thru the door with his dog and then when he (Knight)  heard
the  infant start crying he looked over in the direction  of  the
infant, and saw the dog with the blanket in its mouth.
          Finally,  the  hearing officers  decision  involves   a
credibility determination that we leave to the trier  of  fact.36
West cites several cases from foreign jurisdictions to argue that
the  hearing officer should be required to articulate more of his
reasoning.   In  this  case,  the  hearing  officer  did  clearly
articulate  his reasoning  Trescott was in the best  position  to
view  the  baby and thus was more credible on the  issue  of  the
babys injuries and reaction.  Moreover, we have stated in workers
compensation cases that credibility determinations do not require
substantial findings of fact on the record:
          Credibility   decisions   regarding   witness
          testimony,  however, are uniquely within  the
          province of the Board and it is not our  task
          on  review  to reweigh them.  There  is  less
          need,  then, for extensive findings  of  fact
          regarding witness credibility. Our task  when
          reviewing  a  Board decision is to  ascertain
          whether   it   was  based  upon   substantial
          evidence,  evidence which a  reasonable  mind
          might   accept  as  adequate  to  support   a
The   hearing  officers  conclusion  that  the  mother  was  more
observant  of  her  baby  at the time of the  incident  and  more
accurately   remembered  her  babys  reaction  is  supported   by
substantial  evidence.   Trescott testified,  My  memory  is  not
faulty.  That memory is never going to go out of my mind.  I will
probably remember that when my son is 30 years old, how  lucky  I
was  that  that dog did not decide to bite down and crush  Ethans
skull.  Certainly a reasonable mind could have been persuaded  by
that testimony.
          The   hearing  officer  concluded  that  Gummie,  while
restrained,  caused  a physical injury (the uncontested  scrapes)
which  resulted  in  pain (as evidenced  by  the  crying).   Both
elements  of  this  determination were supported  by  substantial
evidence and are thus affirmed.
          We  AFFIRM Gummies classification  because the decision
of  the  hearing  officer was correct on the issues  of  law  and
supported by substantial evidence.
EASTAUGH, Justice, dissenting in part.
          To illustrate my disagreement with what the court seems
to say about the municipalitys animal control ordinance, consider
two  leashed dogs, both walking with their masters on a municipal
sidewalk.   The first, without provocation, suddenly  administers
an  aggressive  bite  to a pedestrian.  The second  clumsily  and
without  aggression bumps into a pedestrian and knocks him  down,
causing  a  painful break in the skin.  No doubt the municipality
has  a legitimate interest in the safety of both pedestrians, and
can regulate the behavior of both animals.
          It should be obvious that there are legally significant
distinctions between the conduct, behavior, and mental states  of
the   two  animals.   Likewise,  there  are  legally  significant
distinctions between the probability and magnitude of  risk  each
animal  poses  and  between the consequences to their  respective
victims.   But  the subsection of the ordinance  pertinent  here,
Anchorage  Municipal Code (AMC) 17.40.020(A)(3),  draws  no  such
distinctions.   It treats the aggressive biter the  same  as  the
clumsy oaf.  It does so because subsection .020(A) classifies the
aggressive  biter  the  same as an animal  that  causes  physical
injury  to any human, and because AMC 17.05.010 defines  physical
injury to include scrapes, cuts, and similar injuries.1
          It  is  equally undiscriminating in requiring the  same
protective measures for each animal.  Both the biter and the  oaf
must  now  wear  muzzles  when  they  are  not  on  their  owners
property,2 even though the oaf did not use his teeth or mouth (or
even his paws).
          I  agree with most aspects of todays opinion but  write
separately  to address two significant problems inherent  in  AMC
17.40.020(A)(3).  Both raise questions about  the rationality  of
the   ordinances  behavioral  classifications  and  the  required
remedial  measures.  And both problems make arbitrary enforcement
likely, if not inevitable.
          West  tersely  but adequately raises the classification
issue  by  arguing that it makes no sense to classify  Gummie  as
level  three for having scratched the baby with his paws, without
aggressively  biting the infant.  West also argues that  physical
injury  can  flow from very minor to major without aggression  or
intent  by  the  animal.  He contends that  [t]he  classification
would be proper if the injury was aggressively caused which would
clearly rule out incidental or accidental contact resulting  from
the  dog  stepping on, pushing, playing [with] or even licking  a
child.    Because   the  hearing  officer   found   that   Gummie
administered the marks with his mouth, and that there was thus  a
bite,  Wests  assertion  that  the  scratches  were  pawmarks  is
unavailing  absent  clear error.  West  does  not  challenge  the
rationality of muzzling Gummie, even though he argues that Gummie
must  have used his paws, rather than his mouth.  The essence  of
Wests  classification argument nonetheless remains viable because
the   ordinance  treats  the  aggressive  dog  the  same  as  the
unaggressive  dog.   It  treats the soft-mouthed  retriever  that
accidently scratches someone with its teeth the same as  the  dog
that aggressively bites its victim.3
          West    also   contends   that   aggressive   in    AMC
          17.40.020(A)(3) modifies both bite and any physical injury.4  The
court  rejects  that contention.5  Because Wests  reading  is  so
obviously contrary to the plain words of the ordinance,  I  agree
with the courts reading of the ordinance.
          But  West  also  argues that the  reading  the  hearing
officer  and  superior court gave the subsection,  and  thus  the
reading  this  court adopts today, makes no sense.   Because  the
subsections text mandates the reading this court gives  it  here,
Wests  argument  necessarily  raises  the  question  whether  the
ordinance  as  written makes sense.  The court does not  squarely
hold  that  it does, but its opinion implies that the  subsection
rationally  treats an animal that administers an aggressive  bite
the  same  as  an animal that causes any physical injury  to  any
human.6    Thus,  it  asserts  that  reading  the   level   three
classification  to  include any physical injury  to  humans  fits
logically within the context of the classification.7
          I  disagree  with  this assertion.  If  future  readers
would  regard  this assertion as mere dictum, and  would  not  be
deterred  from  challenging the substance  of  the  ordinance  on
grounds  of irrationality, no further discussion would be needed.
But  there  is a danger the courts words might be read by  future
courts, and by the municipality itself, as an endorsement of  the
subsections  validity.  Moreover, there is a  danger  the  courts
words today would be read to apply even to animals whose behavior
is  unambiguously passive and innocent.  And indeed, the  seeming
precision  of the subsections words, in context of the  seemingly
comprehensive  ordinance,  might give  the  appearance  that  the
animal control law was carefully crafted.
          The  court  asserts that the classification  exceptions
prevent  the  ordinance from being improperly applied.8   But  no
specific  exception applies to the clumsy oaf  that  accidentally
trips  the  pedestrian  and  causes  physical  injury.   And  the
ordinances  general  exception,  AMC  17.40.020(B)(9),  does  not
adequately  mitigate the risk of misclassification.  The  general
exception  gives the animal control officer authority to  refrain
from  classifying  an  animal even  if  it  engaged  in  behavior
specified  in  subsection .020(A) if the officer determines  that
[t]he  decision  not to classify reasonably serves  and  promotes
justice, fairness, and the purposes and intent of this title, the
protection  of public health, safety and welfare, and the  humane
care and treatment of animals.9  Because this exception fails  to
articulate  a meaningful standard that could be used to  evaluate
whether  a misclassification has occurred, I do not see how  this
exception mitigates the risk of misclassification.
          This  standardless  exception also necessarily  invites
arbitrary  enforcement.   Perhaps  the  municipality   would   be
reluctant  to  require  the  clumsy or  exuberant  animal  to  be
muzzled, and would even be reluctant to classify it the  same  as
the  aggressive  biter.  But the general  exception  contains  no
principled  basis for avoiding classifications  that  either  are
required  by  the  plain  words  of  subsection  .020(A)  or  are
consistent with the eight other exceptions in subsection .020(B),
some of which contain limitations on the exceptions.
          The  other  classification levels are  equally  flawed.
          For example, level four deals with unrestrained animals.  There
is  no  exception for the exuberant, unleashed dog that  trips  a
hiker, causing a minor laceration; the ordinance mandates a level
four  classification for this animal, just  as  it  does  for  an
unleashed dog that aggressively bites.10          It is  facially
arbitrary and irrational to treat the aggressive animal the  same
as  the  nonaggressive animal, and to treat inadvertently  caused
injuries  the  same as those caused by aggression.   I  therefore
dissent  from  the courts opinion to the extent  it  states  that
subsection  .020(A)s classification scheme makes  sense  or  that
classifying  as level three an animal that unaggressively  causes
any  physical  injury fits logically within the  context  of  the
     1    See AMC 17.40.040, .090.

     2      An   animal  classified  as  level  three  will   not
necessarily  be  subject  to all of these  restrictions  for  the
remainder  of  its  life.  A level three  classification  may  be
removed,  reduced,  or  modified  upon  satisfaction  of  several
requirements  including the passage of two years without  further
incident,  completion by dog and owner of an  obedience  training
course,    and    the   payment   of   fees.    AMC    17.40.085.
Reclassification  can result in the lifting of  all  restrictions
except  the  requirement  that the  animal  remain  in  a  secure
enclosure when on the owners property.  AMC 17.40.085(B).

     3     Thoeni  v. Consumer Elec. Servs., 151 P.3d 1249,  1253
(Alaska 2007).

     4    Id.

     5     State v. Pub. Safety Employees Assn, 93 P.3d 409,  413
(Alaska 2004).

     6    Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
161 (Alaska 1982).

     7    See Thoeni, 151 P.3d at 1253.

     8     Fernandes  v.  Portwine, 56 P.3d 1,  4  (Alaska  2002)
(quoting  Spenard  Action  Comm. v.  Lot  3,  Block  1  Evergreen
Subdivision, 902 P.2d 766, 774 (Alaska 1995)).

     9    See G‚czy v. State, Dept of Natural Res., 924 P.2d 103,
104 (Alaska 1996).

     10     West also cites the due process clause of the  Alaska
Constitution to support this point.  West offers no  support  for
the  assertion  that the due process clause  entitles  him  to  a
specific  standard  of proof in an animal  control  case  and  we
therefore  deem  the argument to be waived.   Hikita  v.  Nichiro
Gyogyo  Kaisha,  Ltd.,  12  P.3d 1169, 1180  n.39  (Alaska  2000)
(concluding  issue  waived where party  offered  no  support  for

     11    736 P.2d 297, 300 (Wash. App. 1987).

     12    Id.

     13    Id. at 301.

     14    491 P.2d 759 (Alaska 1971).

     15     Id. at 766-67.  The burden to show non-compliance  is
borne  by  the plaintiff.  However, once non-compliance has  been
proven  by a preponderance of the evidence, the burden shifts  to
the  defendant to prove, by a preponderance of the  evidence,  an
inability to comply with the order.

     16    874 F. Supp. 1051 (D. Alaska 1994).

     17    Id. at 1063.

     18    Id. at 1064.

     19    This provision can now be found at AMC 08.55.060.

     20    Id.

     21    AMC 17.40.020(A)(3) (emphasis added).

     22    Blacks Law Dictionary 556 (8th ed. 2004).

     23    625 P.2d 857 (Alaska 1981).

     24    Id. at 859 (citations omitted).

     25     AMC  17.05.010. The definition of physical injury  is
discussed at greater length below.  See infra Part IV.C.

     26    AMC 17.40.020(A)(2).

     27     Level  four  behavior is established if  any  of  the
following occur:
          a.   An unrestrained animal inflicts an aggressive bite
               or causes physical injury to any human; or
          b.   An  unrestrained  animal kills a  domestic  animal
               that is restrained; or
          c.   An animal, regardless of whether it is restrained,
               for  the  second time injures or kills a  domestic
AMC 17.40.020(A)(4).

     28    AMC 17.40.020(A)(5)(a) (emphasis added).

     29    AMC 17.40.020(B).

     30      AMC   17.40.020(B)(9).  West  did  not  appeal   the
discretionary  determination  not  to  except  Gummie  from   the
classification on this basis.

     31    AMC 17.40.020(A)(3).

     32    AMC 17.05.010.

     33     The  fact  that Gummie was on a leash was  apparently
uncontested at the hearing and is not on appeal now.

     34     In  Wests brief he focuses on the alleged  manner  in
which  Gummie  caused  the scratches.  Because  the  level  three
classification  did not depend on whether or not the  injury  was
caused by Gummies paw or his teeth, it is irrelevant whether this
specific  element  of  the  officers decision  was  supported  by
substantial evidence.

     35     See  AMC  17.05.010.   If  Gummie  had  inflicted  an
aggressive bite, the municipality would not have had to prove any
physical injury.

     36    See Fyffe v. Wright, 93 P.3d 444, 450-51 (Alaska 2004).

     37     Whaley v. Alaska Workers Comp. Bd., 648 P.2d 955, 958
(Alaska 1982).

1     The  applicable  definition does  not  distinguish  between
broken-skin injuries caused by paw, mouth, or exuberant behavior.
It defines physical injury as an impairment of physical condition
or  pain that is accompanied by scrapes, cuts, punctures or other
evidence of similar injuries.  AMC 17.05.010.

     2    AMC 17.40.040.

     3     The  hearing officer found that Gummie administered  a
bite that was not aggressive.

4    AMC 17.40.020(A)(3) provides:

          A.     Classifications.    Subject   to   the
          authority of the chief animal control officer
          under  subsection B below, an animal  may  be
          classified  based  on one  of  the  following
               . . . .
               3.   Level three behavior is established
               if  an  animal,  while under  restraint,
               inflicts  an aggressive bite  or  causes
               any physical injury to any human.
     5    Slip Op. at 9.

     6    Slip Op. at 9-10.

     7    Slip Op. at 10.

     8     Slip  Op.  at 10-11.  The court states that  the  nine
exceptions  includ[e] injury resulting from  the  animal  .  .  .
playing with the family that owns it.  Slip Op. at 10.  There  is
no playing exception as such, and the exception for the owner and
the  owners family expressly excludes a minor who is not involved
in    training    or    competing   with   the    animal.     AMC
17.40.020(B)(8)(b).  Consequently, the family dog  that,  without
aggression, harms a family minor during play is not excepted.

     9    AMC 17.40.020(B)(9).

     10   AMC 17.40.020(A)(4)(a); AMC 17.40.020(B).

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