Presumed Guilty 

Berkeley busybody sics city on neighbors with off-leash dogs; county residents drip with annoyance over illicit summer ice-cream peddlers.

South Berkeley dog owners beware: Neighborhood busybody Marie Bowman wants you and your pooch on a short leash. In recent months Bowman, a dog-fearing block captain, has initiated at least three "citizen's arrests" against neighbors for letting their dogs run loose. But the truly odd news here is that the city ultimately fined Bowman's neighbors $100 based on nothing more than her word that the dog-owning couple had broken Berkeley's leash law. It was a classic case of guilty until proven innocent.

It all started earlier this year, shortly after Kathleen Hanley and her husband Lonnie White moved next door to Bowman and her hubby, Bob Baum. One day, Baum greeted the couple while they were going for a walk with their lab mix, Zora, who was off-leash. Baum told them about Bowman's fear of dogs after having been attacked within the past year by another neighbor's chow. Baum says the young couple agreed to keep Zora on a leash during her walks. Hanley and White say they agreed only to be careful and from that point on made sure to avoid going by Bowman's house with Zora off-leash. They say they don't like to use a leash because Zora feels as if she's being punished. Besides, they didn't think their mutt posed any threat, since she had been to obedience school and responded to voice commands. "Our dog is incredibly well behaved," Hanley says.

Not long after their chat with Baum, an animal-control officer dropped by and handed Hanley and White a $100 citation based on a complaint by a citizen, whom they quickly discovered to be their next-door-neighbor, who also is a member of the city's Housing Advisory Commission. The officer reportedly explained that even though he didn't witness the alleged Saturday-morning infraction, he was obligated to issue the citation.

Jeanne Spurgeon, who lives on the same block, had a similar experience. One day an animal-control officer showed up at her door with a citation based on Bowman's allegation that Spurgeon's terrier-mix, Sheba, had gotten out of its yard and chased her cat. While Spurgeon acknowledges that Sheba attacked a neighbor's cat while still a pup four years ago, she says her dog has since mellowed. And she insists Sheba couldn't have gotten out of the yard on the day in question: "We watch her like a hawk." In a letter to the city, Spurgeon wrote, "I feel very vulnerable to a neighbor who seems to feel neighborhood problems require adjudication by the law instead of a quiet conversation with the parties involved."

Both dog-owning neighbors appealed their Bowman-initiated citations to a Berkeley hearing officer, a quasijudicial bureaucrat employed by the city. Spurgeon says the officer, Ann Miley, dismissed her citation, citing an "unresolved disparity" in the accounts of what happened. (Bowman has since initiated another dog-at-large citation against Spurgeon, with a hearing scheduled for this week.)

Hanley and White weren't so lucky, even though their case also boiled down to a he-said-she-said affair. Bowman testified that she'd filed the citizen's arrest because the couple didn't heed her hubby's warning about keeping Zora on a leash. "There was no real respect for the fact that we had asked them nicely to care about the neighborhood and that there was a safety issue," she said, adding that when Hanley and White take Zora on walks, the dog often lags behind and they are oblivious to its actions. Hanley and White countered that city law allows an "obedience-trained dog" like Zora to walk off-leash as long as it is "under effective charge and control within six feet of his master."

The case hinged on whether Zora was always within six feet of her owners on the morning in question. At least that was the hearing officer's concern. Initially, Bowman had voiced objections solely to the dog being off-leash in any manner. But after that issue came up during the hearing, Bowman wrote a letter saying that Hanley and White's dog is frequently not within six feet of them during their walks. Later, Miley opined in her written decision that the dog owners "have not met the burden of proof of demonstrating that their dog was never more than six feet away from them on the morning walk." Guilty until proven innocent, they were.

The stunned dog owners wondered why they, and not Bowman, bore the burden of proof. So they appealed the city's ruling to the Alameda County Superior Court. They know it seems like a lot of effort for a $100 fine. Hanley explains her persistence: "We have an unblemished record and resent the idea that it would be ruined."

Assistant City Attorney Zach Cowan defended the ruling and the citation process in general, which he didn't deny has a guilty-till-proven-innocent vibe. But since these aren't criminal proceedings, Cowan says that's okay. He says the city's municipal code states that citations are treated as prima facie evidence that a law was broken. Here's the problem with that argument, Feeders: It normally applies to citations issued by trained professionals such as cops and dogcatchers, not a nagging neighbor like Marie Bowman. Not only is she not a trained pro, she's hardly a neutral party. Suppose traffic cops showed up at your door with tickets because your neighborhood rival filed a citizen's arrest claiming you made an illegal left turn two weeks ago?

Jill Posener, a member of Berkeley's Citizens' Humane Commission, says she's disturbed by the prospect of people abusing the system. "The idea that you are empowering citizens to criminalize dog owners should make you ask, 'Where do we live?' Is our city attorney John Ashcroft?"

Screaming About Ice Cream

It's the dog days of summertime, and that means Alameda County food inspectors have been getting more phone calls about that seasonal urban menace, rogue ice-cream-truck operators. According to Ronald Browder, head of the county's food inspection program, his inspectors have received reports of twelve to fifteen illegally operated trucks around the county from residents who either consider them a nuisance -- ever had to listen to "Pop Goes the Weasel" twenty times in a row? -- or object to the trucks selling sweets near schools. Browder's team knew the trucks were illegal because when investigators ran the license-plate numbers reported by annoyed residents, they found the plates weren't even valid. Browder says the underground popsicle-peddlers have been painting over the numbers and otherwise altering their plates. "We don't know who they are or where they come from," he says. So do the Bad Humor men pose any threat to public health other than bad teeth? Could it be that some of the confectioners are also dope slingers? "We haven't verified anything like that," he assured Feeder.



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