{ "id": 11916359, "name": "CASWELL COUNTY, Plaintiff-Appellee v. JAMES and RAMONA HANKS, Defendant-Appellants", "name_abbreviation": "Caswell County v. Hanks", "decision_date": "1995-10-17", "docket_number": "No. COA94-802", "first_page": "489", "last_page": "493", "citations": [ { "type": "official", "cite": "120 N.C. App. 489" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 67-4.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" }, { "page": "(a)(2)" } ], "opinion_index": -1 }, { "cite": "241 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571585, 8571687, 8571661, 8571615, 8571551 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0184-02", "/nc/294/0184-05", "/nc/294/0184-04", "/nc/294/0184-03", "/nc/294/0184-01" ] }, { "cite": "238 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549713 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0457-01" ] }, { "cite": "403 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027325 ], "weight": 2, "year": 1971, "pin_cites": [ { "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/403/0528-01" ] }, { "cite": "169 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "275 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559163 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0517-01" ] }, { "cite": "377 U.S. 288", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168780 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "307" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/us/377/0420-01" ] }, { "cite": "245 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563314 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0399-01" ] }, { "cite": "153 S.W.2d 681", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10223971, 2314955 ], "year": 1941, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/sw2d/153/0681-01", "/tex/137/0279-01" ] }, { "cite": "112 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "135 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "649", "parenthetical": "quoting In Re Farlin, 112 N.E.2d 736 (Ill. App. 1953)" } ], "opinion_index": 0 }, { "cite": "261 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575039 ], "year": 1964, "pin_cites": [ { "page": "622", "parenthetical": "quoting In Re Farlin, 112 N.E.2d 736 (Ill. App. 1953)" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0616-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 67-4.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "pin_cites": [ { "page": "(c)", "parenthetical": "emphasis added" }, { "page": "(c)" }, { "page": "(c)" }, { "parenthetical": "a" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 537, "char_count": 9855, "ocr_confidence": 0.741, "pagerank": { "raw": 1.268916911142529e-07, "percentile": 0.6142502902678882 }, "sha256": "6dd524f62135d5c950e2318aac44069fd80c16c57291ef31f9415043fdcb64a8", "simhash": "1:4d6bb0605c8f9b72", "word_count": 1648 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN, Mark D., concur." ], "parties": [ "CASWELL COUNTY, Plaintiff-Appellee v. JAMES and RAMONA HANKS, Defendant-Appellants" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendants contend that the trial court erred by conducting only a de novo review of the existing record rather than a de novo hearing. We agree.\nN.C. Gen. Stat. \u00a7 67-4.1 provides the following procedures for determining whether a dog is potentially dangerous:\nThe county or municipal authority responsible for animal control shall designate a person or a Board to be responsible for determining when a dog is a \u201cpotentially dangerous dog\u201d and shall designate a separate Board to hear any appeal. The person or Board making the determination that a dog is a \u201cpotentially dangerous dog\u201d must notify the owner in writing, giving the reasons for the determination, before the dog may be considered potentially dangerous under this Article. The owner may appeal the determination by filing written objections with the appellate Board within three days. The appellate Board shall schedule a hearing within 10 days of the filing of the objections. Any appeal from the final decision of such appellate Board shall be taken to the superior court by filing notice of appeal and a petition for review within 10 days of the final decision of the appellate Board. Appeals from rulings of the appellate Board shall be heard in the superior court division. The appeal shall be heard de novo before a superior court judge sitting in the county in which the appellate Board whose ruling is being appealed is located.\nN.C. Gen. Stat. \u00a7 67-4.1(c) (1994) (emphasis added). In inquiring as to how to handle this de novo appeal, the trial judge indicated that \u201cit look[ed] to [him] to be analogous to a de novo appeal from the District Court to the Superior Court in a criminal case,\u201d i.e., a completely new hearing on the matter. The judge, however, treated the appeal as one for de novo review of the existing record only, stating that the statute \u201c[d]oes not say that the case has to be heard de novo before a Superior Court Judge.\u201d\nThe language of the statute in this case is mandatory, providing that the appeal to superior court \u201cshall be heard de novo[.]\u201d N.C. Gen. Stat. \u00a7 67-4.1(c). \u201c \u2018The word \u201cde novo\u201d means fresh or anew; for a second time; and a de novo trial in appellate court is a trial had as if no action whatever had been instituted in the court below.\u2019 \u201d In Re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964) (quoting In Re Farlin, 112 N.E.2d 736 (Ill. App. 1953)). A court empowered to hear a case de novo is vested with \u201c \u2018full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.\u2019 \u201d Id. (quoting Lone Star Gas Co. v. State, 153 S.W.2d 681, 692 (Tex. 1941)). The plain language of N.C. Gen. Stat. \u00a7 67-4.1(c) therefore requires that the superior court must hear the case on its merits from beginning to end as if no hearing had been held by the Board and without any presumption in favor of the Board\u2019s decision. See id.\nRather than hearing the matter de novo, as prescribed in the statute, the trial court instead relied upon the evidence in the record compiled from the hearing before the Board without making independent findings of fact. This evidence included a partially inaudible audio taped recording of the Board hearing, affidavits, and a videotape that was not given to the Board at the original hearing, but was apparently reviewed by the Board upon defendants\u2019 request for reconsideration. We hold that the court erred by failing to hear the matter pursuant to the statute and the principles set forth in this opinion.\nDefendants\u2019 second assignment of error is that the definition of \u201cpotentially dangerous dog\u201d as set forth in N.C. Gen. Stat. \u00a7 67-4.1 (a) (2)c. is unconstitutionally vague and overbroad. We disagree.\nFirst, the overbreadth doctrine is not applicable because it was designed only to strike down statutes attempting to regulate activity that the State is constitutionally forbidden to regulate. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978). The definition at issue in this case states that a potentially dangerous dog is one which has \u201c[Approached a person when not on the owner\u2019s property in a vicious or terrorizing manner in an apparent attitude of attack.\u201d N.C. Gen. Stat. \u00a7 67-4.1(a)(2)c. (1994). Defendants do not suggest that the State is constitutionally forbidden from regulating such activity. This simply is not an area where the State seeks to regulate activities \u201cwhich sweep unnecessarily broadly and thereby invade the area of protected freedoms.\u201d NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1964).\nFurthermore, we find no merit in defendants\u2019 argument that the statute is unconstitutionally vague. Our Supreme Court has enunciated the principles of the vagueness doctrine as follows:\n\u201cA statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.\u201d Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met.\nIn Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969), aff\u2019d by McKeiver v. Pennsylvania, 403 U.S. 528, 29 L.Ed.2d 647 (1971) (citations omitted). Furthermore, the statute must be examined in light of the circumstances in each case, and defendants have the burden of showing either that the statute provides inadequate warning as to the conduct it governs or is incapable of uniform judicial administration. State v. Covington, 34 N.C. App. 457, 238 S.E.2d 794 (1977), disc. review denied, 294 N.C. 184, 241 S.E.2d 519 (1978). After carefully examining the language of N.C. Gen. Stat. \u00a7 67-4.1(a)(2)c. in light of the facts of the instant case, we conclude that defendants have not met their burden, and the statute provides sufficient notice for defendants and others to determine what conduct is proscribed. See In Re Burrus, 275 N.C. 517, 169 S.E.2d 879.\nDefendants\u2019 final assignment of error concerns the trial court\u2019s failure to remedy the refusal of the Board to permit certain evidence at the Board\u2019s hearing. In light of our decision to remand this case to the superior court for a de novo hearing, it is unnecessary to address defendants\u2019 argument.\nIn sum, we hold that the trial court erred by failing to conduct a de novo hearing pursuant to N.C. Gen. Stat. \u00a7 67-4.1(c), and therefore remand to the Superior Court of Caswell County with instructions to conduct a de novo hearing to determine whether defendants\u2019 dog is potentially dangerous as defined in the statute. Furthermore, the court is not confined to the evidence which was presented to the Board, but may hear any additional evidence.\nRemanded.\nJudges JOHNSON and MARTIN, Mark D., concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "No brief for plaintiff appellee.", "Marianna R. Burt and Aida Fayar Doss for defendant appellants." ], "corrections": "", "head_matter": "CASWELL COUNTY, Plaintiff-Appellee v. JAMES and RAMONA HANKS, Defendant-Appellants\nNo. COA94-802\n(Filed 17 October 1995)\n1. Animals, Livestock, or Poultry \u00a7 9 (NCI4th)\u2014 potentially dangerous dog \u2014 de novo hearing required in superior court\nIn an action to declare a dog as potentially dangerous pursuant to N.C.G.S. \u00a7 67-4.1, the trial court erred by conducting only a de novo review of the existing record rather than a de novo hearing.\nAm Jur 2d, Animals \u00a7\u00a7 96-99, 107-112.\n2. Animals, Livestock, or Poultry \u00a7 9 (NCI4th)\u2014 potentially dangerous dog \u2014 statute not unconstitutionally vague and overbroad\nThe definition of \u201cpotentially dangerous dog\u201d in N.C.G.S. \u00a7 67-4.1(a)(2)c as a dog which has \u201capproached a person when not on the owner\u2019s property in a vicious or terrorizing manner in an apparent attitude of attack\u201d is not unconstitutionally vague and overbroad, since the statute does not attempt to regulate activity that the State is constitutionally forbidden to regulate, and the statute provides sufficient notice for defendants and others to determine what conduct is proscribed.\nAm Jur 2d, Animals \u00a7\u00a7 96-99, 107-112.\nAppeal by defendants from order entered 25 February 1994 by Judge Anthony M. Brannon in Caswell County Superior Court. Heard in the Court of Appeals 28 August 1995.\nOn 24 November 1992, the health director of the Caswell County Health Department sent a notice to defendants that their dog, Ginger, a boxer, had been defined as \u201cvicious\u201d under Public Health Law Section 130A-200. The notice was based on three animal bite reports filed on behalf of three neighborhood children whom had either been scratched or pinched by Ginger on 15 July 1992, 16 July 1992, and 20 July 1992.\nDefendants appealed the health director\u2019s determination to the Caswell County Animal Control Appellate Board (hereinafter \u201cthe Board\u201d), which heard the appeal on 18 May 1993. The Board, consisting of the chairperson for the Caswell County Public Health Department and two members of the Board of Health, declared Ginger a \u201cpotentially dangerous dog\u201d as defined in Chapter 67, Article 1A of the North Carolina General Statutes.\nPursuant to N.C. Gen. Stat. \u00a7 67-4.1(c), defendants appealed the Board\u2019s ruling to the Superior Court of Caswell County, stating as grounds for review the constitutionality of the statutes\u2019 definition of \u201cpotentially dangerous dog\u201d and the denial of an opportunity to present certain evidence. Based on \u201can appeal de novo as provided in Chapter 67, Article 1A,\u201d the trial court made findings of fact and concluded that the statutory definition was constitutional and that the actions of defendants\u2019 dog arose to the level of a \u201clegally apparent attitude of attack\u201d under N.C. Gen. Stat. \u00a7 67-4.1(a)(2)c. Defendants appeal.\nNo brief for plaintiff appellee.\nMarianna R. Burt and Aida Fayar Doss for defendant appellants." }, "file_name": "0489-01", "first_page_order": 523, "last_page_order": 527 }