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Thread: The Judgement; Re Tango 6/4/10

  1. #1

    Exclamation The Judgement; Re Tango 6/4/10

    SUPREME COURT OF QUEENSLAND
    CITATION: Kylie Louise Chivers v Gold Coast City Council [2010] QSC
    98
    PARTIES: KYLIE LOUISE CHIVERS
    (applicant)
    v
    GOLD COAST CITY COUNCIL
    (respondent)
    FILE NO/S: BS6396/07
    DIVISION: Trial Division
    PROCEEDING: Application
    DELIVERED ON: 6 April 2010
    DELIVERED AT: Supreme Court, Brisbane
    HEARING DATE: 29 March 2010
    JUDGE: Martin J
    ORDER: APPLICATION DISMISSED
    CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW –
    APPLICATION FOR DECLARATION – where respondent
    decided that the applicant was keeping an American Pit Bull
    Terrier and therefore contravened the relevant local law –
    whether applicant was owner of the dog – whether applicant
    had standing to seek judicial review
    ADMINISTRATIVE LAW – JUDICIAL REVIEW –
    APPLICATION FOR DECLARATION – where respondent
    decided that the applicant was keeping an American Pit Bull
    Terrier and therefore contravened the relevant local law –
    whether an American Pit Bull Terrier is the same breed as an
    American Staffordshire Terrier
    Acts Interpretation Act 1954 (Qld)
    Animal Management (Cats and Dogs) Act 2008 (Qld)
    Customs Act 1901 (Cth)
    Customs (Prohibited Imports) Regulations 1956 (Cth)
    Judicial Review Act 1991 (Qld)
    Local Government Act 1993 (Qld)
    Local Law No. 12 (Keeping and Control of Animals) 1998
    (Gold Coast City Council)
    Statutory Instruments Act 1992 (Qld)
    Subordinate Local Law No. 12 (Keeping and Control of
    2
    Animals) 2007 (Gold Coast City Council)
    Parker v Annan [1993] SCCR 185
    R v Knightsbridge Crown Court; ex p. Dunne [1994] 1 WLR
    296
    COUNSEL: S P Fynes-Clinton for the applicant
    R J Bain QC and R Quirk for the respondent
    SOLICITORS: Counsel directly briefed for the applicant
    King and Co for the respondent
    [1] This application concerns the fate of a dog called “Tango”. In 2004 the Gold Coast
    City Council decided that Tango was an American Pit Bull Terrier and ordered that
    he be destroyed. The applicant appealed that order. She and the Council reached a
    compromise – he was not destroyed; but he had to leave the Gold Coast. The
    applicant says that she has satisfied a particular term of the compromise and that
    means that Tango should be able to come back to the Gold Coast. Whether he can is
    the matter for decision..
    Application for review
    [2] The applicant brings her application under Pt 5 of the Judicial Review Act 1991.
    She seeks:-
    (a) a declaration that the keeping by the applicant of her dog “Tango” at her
    home … , in the local government area of the City of Gold Coast, does not
    contravene s 10 of the respondent’s Local Law No. 12 (Keeping and
    Control of Animals); and
    (b) an injunction restraining the respondent from seizing or otherwise
    interfering with the dog “Tango” for so long as it is otherwise kept in
    accordance with the respondent’s Local Law No. 12 (Keeping and Control
    of Animals).
    [3] The grounds upon which the application is brought include:-
    (a) that Tango is of the breed American Staffordshire Terrier (“AmStaff”).
    (b) that the evidence upon which the respondent Council purported to rely in
    support of its assertion that Tango was an American Pit Bull Terrier
    (“APBT”) was of no value because the assessment process used by the
    respondent was incapable of identifying whether a dog was wholly or partly
    of the breed APBT.
    [4] The major issues are:
    (a) who is the current owner of Tango,
    (b) whether Tango is an APBT, and
    © whether the APBT is a breed apart from the AmStaff.
    3
    [5] In April 2004 Tango was seized by the respondent Council and was made the
    subject of a destruction order. That action was taken on the basis that he was an
    APBT and, so, came within the provisions of the then relevant local law dealing
    with the keeping of a prohibited animal.
    [6] The applicant, who was then the owner of Tango, appealed against the destruction
    order. In August 2004 that appeal was settled and a consent order was made by the
    Magistrates Court in the following terms:-
    “1. The appeal be dismissed.
    2. Within 21 days the dog “Tango” be released by the
    respondent to the appellant at a location outside the GCCC
    jurisdictional area, the costs of transportation to be met by
    the appellant.
    3. The dog is never to be returned to the GCCC jurisdictional
    area unless the appellant is able to satisfy the respondent that
    the dog is a purebred American Staffordshire terrier.
    4. Prior to the dog’s release to the appellant, the dog is to be
    micro-chipped by the respondent at the appellant’s expense.
    5. There be no order as to costs.”
    [7] There was no jurisdiction to make orders 2, 3 and 4 but, for the purposes of this
    application that is of no moment. Those orders represent, at least, the agreement
    reached between the appellant and the respondent.
    [8] This application was filed in July 2007. Since then there have been substantial
    changes to the legislation relating to the issue of “restricted dogs”. As the applicant
    seeks declarations as to current entitlement it is necessary to examine the current
    legislation and other statutory regimes that apply.
    Relevant legislation
    [9] The Animal Management (Cats and Dogs) Act 2008 (“AMCDA”) commenced on 1
    July 2009. One of the purposes of the AMCDA is “to provide for the effective
    management of regulated dogs”.1
    [10] The AMCDA does not prevent a local law from imposing (further) requirements in
    relation to cats or dogs generally.2 A local authority may make a local law
    prohibiting anyone in its local government area, other than an exempted person,
    from possessing a dog of a particular breed.3 “Breed” includes crossbreed of a
    breed, and “local law” includes a subordinate local law.4
    1 AMCDA, s. 3(b).
    2 AMCDA, s. 6(1).
    3 AMCDA, s. 6(2).
    4 AMCDA, s. 6(5).
    4
    [11] To the extent that the AMCDA and a local law are inconsistent, the local law is
    invalid to the extent of any inconsistency.5 The AMCDA does not limit a civil right
    or remedy that exists apart from the Act, whether at common law or otherwise.6
    AMCDA, Chapter 4, Regulated dogs
    [12] A regulated dog is a “restricted dog”.7 A restricted dog is, relevantly, “a dog of a
    breed prohibited from importation into Australia under the Customs Act 1901
    (Cwlth).”8
    [13] The Customs (Prohibited Imports) Regulations 1956 (Cwlth), r. 3 provides:
    “3 Goods the importation of which is prohibited absolutely
    (1) The importation of goods specified in Schedule 1 is
    prohibited absolutely.”
    [14] Schedule 1 to the Customs (Prohibited Imports) Regulations 1956 relevantly
    provides:
    “Schedule 1 Goods the importation of which is prohibited absolutely
    (regulation 3)
    Item Description of goods
    2 Advertising matter relating to any goods covered by this Schedule
    26 Dogs of the following breeds:
    (a) dogo Argentino;
    (b) fila Brasileiro;
    © Japanese tosa;
    (d) American pit bull terrier or pit bull terrier;”
    [15] The AMCDA provides:
    “71 Permit required for restricted dog
    A person must not, unless the person has a reasonable excuse, own,
    or be a responsible person for, a restricted dog unless the relevant
    local government has issued a restricted dog permit to someone to
    keep the dog.
    Maximum penalty – 75 penalty units.”
    [16] Chapter 4, part 3 of the AMCDA deals with restricted dog permits.
    Section 10 of Gold Coast City Council Local Law No. 12 (Keeping and Control of
    Animals)
    5 AMCDA, s. 6(3).
    6 AMCDA, s. 7(1).
    7 AMCDA, s. 60©.
    8 AMCDA, s. 63(1).
    5
    [17] Section 10 of Gold Coast City Council Local Law No. 12 (Keeping and Control of
    Animals)(“Local Law 12”) provides:
    “10(1) A local law policy may prohibit absolutely:-
    (a) the keeping of an animal;
    (b) the keeping of particular species, breed, age or sex of an
    animal;
    © the keeping of an animal in an identified part of the Area; and
    (d) the keeping of more than a specified number of an animal.
    (2) A person must not keep an animal contrary to a prohibition
    mentioned in subsection (1).
    Maximum Penalty: 50 Penalty Units”
    [18] The Gold Coast City Council Subordinate Local Law No. 12 (Keeping and Control
    of Animals) 2007 (“Subordinate Local Law No. 12”) relevantly provides:
    “24 Prohibition on keeping of restricted dogs – Local Law, s10(1)
    (1) A person must not keep a restricted dog in the local
    government area of the local government.”
    [19] There are a number of exceptions to the prohibition in s. 24(1) of Subordinate Local
    Law No. 12. None of those is asserted in the Application to be applicable.
    [20] Section 3 and Schedule 1 to Subordinate Local Law No. 12 provide for the
    definition of particular words used in Subordinate Local Law No. 12. Schedule 1
    provides:
    “restricted dog has the meaning given in section 1193E of the Act.
    Section 1193E of the Act provides that a restricted dog is a dog –
    (a) of a breed as follows –
    (i) dogo Argentino;
    (ii) fila Brasileiro;
    (iii) Japanese tosa; or
    (b) of the type commonly known as ‘American pit bull terrier’ or ‘pit
    bull terrier’; or ‘pit bull terrier’; or
    © of a breed or type prescribed under a regulation; or
    (d) that is a crossbreed, or the offspring of, a dog of a breed or type
    mentioned in paragraph (a), (b) or ©, whether or not the dog
    appears to be a dog of that type or breed.
    Also, a dog is a restricted dog if it is the subject of a restricted dog
    declaration.”
    [21] That section was omitted from the Local Government Act 1993 on 1 July 2009, as
    was the whole of chapter 17A. From that time, the definition of “restricted dog” in
    the AMCDA has applied.9
    9 Acts Interpretation Act 1954, s. 14H; Statutory Instruments Act 1992, ss. 7, 14, schedule 1.
    6
    [22] It follows, then, that an American pit bull terrier, or a pit bull terrier or a cross-breed
    of one or other of them is a restricted dog the keeping of which is prohibited.
    Ownership
    [23] The respondent raised the standing of the applicant to bring the application and
    argued that she was not, at the time of making the application, nor at the hearing,
    the owner of Tango and that, therefore, she had no relevant interest upon which to
    make her application.
    [24] This submission was based upon the evidence contained in a series of documents
    which made up Exhibit 8. The first was a facsimile transmitted by the applicant to
    an officer of the respondent on 10 September 2004 following the “consent order”
    referred to above. The body of the document reads:-
    “To Geoff Irwin
    Tango is now owned by Brian Jones. He has taken over the
    ownership of the microchip and registered Tango in NSW. He will
    be contacting you to arrange to collect Tango. I have attached copies
    of the registration and microchip change of ownership.
    Kylie Chivers”
    [25] Attached to the facsimile was a document entitled “Declaration Change of
    Ownership”. It appears to be a document relating to a micro-chip registry
    conducted by a private concern. The document is signed in the appropriate places
    by both the applicant and Brian Jones, the applicant’s step-father. The document
    refers to the applicant as the previous owner and Mr Jones as the new owner. It is
    dated 9 September 2004.
    [26] The applicant was cross-examined and re-examined on this documentation. The
    gist of her evidence was that she regarded Tango as her dog or her family’s dog.
    There was no evidence that anything had changed since her statement to the Council
    made in the facsimile of 10 September 2004.
    [27] In re-examination the applicant was asked the following by Mr Fynes-Clinton:
    “Having regard to what you were asked and what you have seen
    about the involvement of Mr Jones, would you please explain to the
    court the nature of your current interest in the dog Tango as at today,
    29 March 2004? --- He is my dog. That’s why I am here, so I can
    bring him home.”
    [28] Tango has been living in New South Wales since 21 September 2004 when he was
    collected by Mr Jones from Council officers. Ms Chivers gave evidence that she
    has, since that time, paid kennel fees of approximately $17,000.00.
    [29] In the absence of any evidence to demonstrate there has been a change in the
    position since that notified by the applicant in September 2004, I find that the
    applicant was not, at the time of making the application nor at the time of its
    hearing, the owner of Tango.
    7
    [30] Should I be wrong in that conclusion I will consider the other matters raised in the
    application.
    What breed is Tango?
    [31] It is reasonable to infer from the agreement which underlay the “consent order” that,
    at that time, both the applicant and the respondent were of the view that an
    American Pit Bull Terrier was not the same breed as an American Staffordshire
    Terrier.
    [32] That view appears to have been maintained by the Council (at least to the
    knowledge of the applicant) until the hearing of this application when, in reliance
    upon the expert evidence called by the applicant, it submitted that an ABPT is the
    same breed as an AmStaff.
    [33] The history of the dog is, in brief, that the applicant purchased Tango from her
    brother. The applicant says that Tango’s sire (“Zeus”) and dam (“Jessie”) were
    AmStaffs. Tango has never been registered but a full sister from her litter – “Miss
    Maudi” – is registered as an AmStaff.
    [34] A senior scientist at Genetic Technologies Corporation Pty Ltd undertook genetic
    parentage testing of samples taken from Tango, Zeus and Jessie and formed the
    view that Jessie and Zeus “qualify” with a reasonable level of scientific certainty as
    the parents of Tango.
    [35] I am satisfied that Tango is the son of Jessie and Zeus, that each of those dogs was
    an AmStaff and that, in the ordinary course of events, Tango would be regarded as
    an AmStaff. That, though, is not the end of the matter.
    [36] Other expert evidence was called by the applicant from a Mrs Brashears and a Miss
    Harvey. This was evidence which, as it turned out, was relied upon more by the
    Council than the applicant.
    [37] Mrs Brashears’s evidence (which consisted of an affidavit and a transcript of
    evidence given by her in another case) was admitted pursuant to s 92 of the
    Evidence Act 1977. Since making the affidavit and giving that evidence, Mrs
    Brashears has passed away. There was no objection to the receipt of her evidence.
    She was an experienced owner and breeder of AmStaffs and APBTs in the United
    States of America. She was registered as a breeder with both the American Kennel
    Club (“AKC”) and the United Kennel Club (“UKC”). Her evidence was that a dog
    which is a purebred APBT is exactly the same dog in terms of genetic history and
    make up as a dog which is a purebred AmStaff. She explained the reasons for the
    difference in names in the following way:
    “4. Based on information which can be obtained from the AKC
    and UKC web sites, all of which is consistent with general
    industry knowledge and understanding among Amstaff
    breeders, and certainly with my own knowledge and
    understanding:-
    (a) the common origin of the two breeds arose out of
    crossbreeding between the English Bulldog and one
    8
    or more breeds of English Terrier, in England, in the
    early to mid-19th-century;
    (b) these dogs began to make their way to the United
    States in the later part of the 19th-centry, in which
    country they become known as Pit Dog, Pit Bull
    Terrier and, later, American Bull Terrier;
    © the United Kennel Club in the United States first
    recognised and registered the breed under the name
    American Pit Bull Terrier in 1898;
    (d) in 1936, the same dogs began to be accepted for
    registration by the American Kennel Club under the
    name Staffordshire Terrier;
    (e) my understanding of the reason for this name change
    is that:-
    (i) while most of the ABPTs were used as farm
    dogs, or fighting dogs, there was a group that
    wanted to show their dogs in conformation,
    which UKC did not offer – there was no UKC
    breed standard at the time;
    (ii) these persons tried to get AKC to accept them
    for registration so they could show, and they
    wrote the original APBT/Amstaff breed
    standard for show purposes and proved pure
    breeding, but AKC would not allow the name
    due to the association with pit fighting;
    (iii) for similar reasons, the AKC would not let
    these persons use the name American Bull
    Terrier either (one of the considerations) as
    the white (Hinks) Bull terrier breeders did not
    want them confused with their breed;
    (iv) finally, the AKC agreed to accept the breed
    for registration and showing under the name
    Staffordshire Terrier, which the original
    Amstaff owners accepted.
    (f) in 1972, the AKC changed the name to American
    Staffordshire Terrier, to avoid confusion with the
    then newly accepted breed of Staffordshire Bull
    Terrier.”
    [38] Mrs Brashears then went on in her statement to give examples from her own
    experience of a dog which she owned – “Presley” – which, in the AKC, won prizes
    as an AmStaff and, in the UKC, won prizes as an APBT. Her evidence concluded
    with the opinion that:
    “Although different breeders of the respective breeds may select
    different features for attempted emphasis for show judging purposes
    through selective breeding, the two breeds are in all material respects
    genetically and physically identical.”
    [39] Evidence was also adduced by way of affidavit from Jane Harvey who has been
    involved in dog exhibiting and breeding in Australia for over 58 years. She also
    referred to the names used by the AKC and other kennel clubs and said:
    9
    “I am aware that, for some periods, the AKC has permitted dogs
    which are registered with the UKC as American Pit Bull Terriers to
    also be registered with the AKC as pedigreed AmStaffs. The two
    ‘breeds’ come from a common original breeding line, and are in that
    sense the same dog.”
    [40] None of the relevant laws or instruments, or the Commonwealth or State
    interpretation Acts, provide a meaning for the term “breed”.10 The Macquarie
    Concise Dictionary defines “breed” relevantly as:11
    “Breed
    6. Genetics a relatively ****geneous group of animals within a
    species, developed and maintained by human intervention.
    7. Lineage; strain.”
    [41] The Oxford English Dictionary provides the following as a relevant definition of
    “breed”:
    “Race, lineage, stock, family; strain; a line of descendants from a
    particular parentage, and distinguished by particular hereditary
    qualities.”
    [42] The determination of whether a dog is of a particular breed can be quite difficult.
    There is, on the evidence before me, no satisfactory scientific method such as DNA
    analysis which provides a reliable answer. The word “breed” itself has to be applied
    carefully. To determine whether a dog is of a particular breed is, of course, a
    question of fact.
    [43] A breed of dog is not the same as a type of dog. In other jurisdictions the difficulty
    of identification has been acknowledged. In Parker v Annan12 Lord Hope LJG said:
    “There is an absence of any precise criteria by which a pit bull
    terrier may be identified positively as a breed and by this means
    distinguished from all other dogs. One must of course be careful
    not to extend the application of the section to dogs other than those
    which are described in it. A dog must be of the type known as the
    pit bull terrier if the section is to apply to it. But the phrase used by
    the statute enables a broad and practical approach to be taken, in a
    field in which it has been recognised that the pit bull terrier cannot,
    in this country at least, be precisely defined by breed or pedigree.”
    [44] That passage was adopted by Glidewell LJ in R v Knightsbridge Crown Court; ex p.
    Dunne13 who said:
    10 cf. AMCDA, s. 6(5): “breed” includes a crossbreed of a breed.
    11 Macquarie Concise Dictionary, Fifth Ed., 2009.
    12 [1993] SCCR 185 at 190-191.
    13 [1994] 1 WLR 296.
    10
    “…the word ‘type’ is not synonymous with the word ‘breed’. The
    definition of a breed is normally that of some recognised body such
    as the Kennel Club in the United Kingdom.”14
    [45] In this case there is unchallenged evidence as to the identity of the APBT and the
    AmStaff. The conclusion that I draw from that evidence is that the name “American
    Staffordshire Terrier” is a name which was adopted in the United States of America
    for purposes of promotion or other similar reasons and that that name was applied to
    American Pit Bull Terriers. All the evidence points to the same dog being given
    different names, that is, American Pit Bull Terrier or American Staffordshire
    Terrier, so that a dog recognised as being of one of those “breeds” is the same as a
    dog identified as being of the other “breed”. That practice appears to have been
    adopted in Australia. It follows then that the views held by the Council when it
    entered into the “consent order” were unfounded and that there is no difference
    between an APBT and AmStaff. Therefore, as I am satisfied that the applicant has
    demonstrated that Tango is an AmStaff it follows that Tango is also an ABPT and is
    thus subject to the restrictions under the local laws referred above.
    Conclusion
    [46] The applicant is not the owner of the dog the subject of this application. The dog
    “Tango” is an American Pit Bull Terrier and is, thus, subject to the Council’s
    Subordinate Local Law No. 12 (Keeping and Control of Animals) 2007.
    [47] The application is dismissed. I will hear the parties as to costs.
    14 At 303.
    If you find yourself going through hell; Don't stay. Just keep on going.
    Beau.

  2. #2
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    so according to the law - amstaff and pit bull are one and the same

  3. #3
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    Does that mean that even if the dog has papers stating that it is an amstaff, the dog is still subject to the pit bull restrictions?

  4. #4
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    It seems so - as it seems to say here that amstaff is just a "name" for a pit bull

  5. #5

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    Ok correct me if I read that wrong but surely they just said Tango can't return to QLD.

    Is that such a big deal?

    It's just their word against the councils,but what if he really is a Pitt and they did break the law?

    I will always be on the fence about cases like this because a lot of the time people cry "poor people" when it was their choice to buy the dog. No it's not fair on the dog, the dog has no say where it lives or even that it was born but people should have more common sense not to own breeds that could potentially be PTS.

  6. #6
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    I think the more significant thing is the comment about amstaff/pit by the judge

  7. #7

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    Yeah highlighted is the part that would have AST owners and breeders, and clubs and associations quaking in their socks. It was allways foretold though. But then it's allways a wait and see with these things, next step would be state government involvement to make a clarification on the definition of a pitbull.


    [45] In this case there is unchallenged evidence as to the identity of the APBT and the AmStaff.

    The conclusion that I draw from that evidence is that the name “American
    Staffordshire Terrier” is a name which was adopted in the United States of America for purposes of promotion or other similar reasons and that that name was applied to American Pit Bull Terriers.

    All the evidence points to the same dog being given different names, that is, American Pit Bull Terrier or American Staffordshire Terrier, so that a dog recognised as being of one of those “breeds” is the same as a dog identified as being of the other “breed”. That practice appears to have been adopted in Australia.

    It follows then that the views held by the Council when it entered into the “consent order” were unfounded and that there is no difference
    between an APBT and AmStaff. Therefore, as I am satisfied that the applicant has demonstrated that Tango is an AmStaff it follows that Tango is also an ABPT and is thus subject to the restrictions under the local laws referred above.

    Conclusion
    [46] The applicant is not the owner of the dog the subject of this application. The dog “Tango” is an American Pit Bull Terrier and is, thus, subject to the Council’s
    Subordinate Local Law No. 12 (Keeping and Control of Animals) 2007
    If you find yourself going through hell; Don't stay. Just keep on going.
    Beau.

  8. #8
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    I'm not sure if the council has banned Pitbulls or just restricted them.

    It does seem like the judge on hearing the evidence of one woman who has died now, has decided that an Amstaff and a Pitbull are the same.

    However I can't see how the same reasoning couldn't be used to argue that all dogs are the same breed having descended from the same creature/species ie a wolf.

    So all dogs are pitbulls by the judge's reasoning.

    But if you had read "the beak of the finch" about finches on an island of the galapagos who have massive deaths and then regenerations depending on how the seasons favour various food sources and therefor beak sizes, that these birds change between several different species or breeds in the space of a couple of years of good or bad seasons.

    The line between breed or species is very very blurry at the edges. I've seen this with vast reclassifications across fish and botanical species.

    So it would be possible to selectively breed from Pitbulls and come up with a new breed with a more reliably docile temperment. And the judge seems unaware of this. As do some genetic scientists whose stuff I've seen posted on the net about pitbulls vs amstaff.

    I hope it gets challenged otherwise every dog will eventually be "restricted". They'll just keep backing up the ancestral lines.

  9. #9

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    .....
    Restricted dogs ruling prompts clarification plea

    By Tom Forbes

    Posted April 7, 2010 08:15:00

    A Gold Coast city councillor says the Queensland Government must clarify dog laws after the Supreme Court's finding that the american staffordshire terrier is the same breed as the restricted american pit bull terrier.
    The finding has been prompted by a long-running dispute over a dog on Queensland's Gold Coast.
    Cr Bob La Castra says the ruling means owners of american staffordshire terriers may have to get permits for their pets.
    He says the council cannot enforce dog laws until the State Government clarifies the situation.
    "I think they will probably be waiting to see what the State Government's determination is before they make that decision," he said.
    "But the state needs to move on it and move on it fast because there will be a lot of people who are very concerned about where to from here.
    If you find yourself going through hell; Don't stay. Just keep on going.
    Beau.

  10. #10

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    Oh crap!!!

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