Public Nuisance Ordinance
BRIEF SUMMARY OF PUBLIC NUISANCE ORDINANCE:
Our local ordinance has one chapter providing for the regulation and/or prohibition of public, as well as private nuisance, including the provisions providing for penalty therefore - Public Nuisance Ordinance introduction. It basically provide for the “abatement of conditions which are offensive or annoying to the senses, detrimental to property values and community appearance, an obstruction to or interference with the comfortable enjoyment of adjacent property of premises, or hazardous or injurious to the health, safety, or welfare of the general public in such ways to constitute a public nuisance, and to provide standards to safeguard life, health and public welfare in keeping with the character of the City by allowing for the maintenance of property or premises for each of the purposes:
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1. To safeguard the health, safety and welfare of the people by maintaining property of premises in good and appropriate condition;
2. To promote a sound and attractive community appearance; and,
3. To enhance the economic value of the community, and each area in it, through the regulation of the maintenance of property of premises.
A perusal of the above provision of our ordinance would show that such an ordinance is more focused on the regulation on the use of property and property rights rather than a means for the regulation of one’s conduct or activity. The public nuisance is more of a property statute, restricting such individual’s rights over the use of the property insofar as the use and disposal thereof affects the safety, health and welfare. This does not mean, however, that the ordinance does not cover those acts which may be, in their nature and effect, injurious to the health, safety, and welfare of other. It can necessarily be implied from the letter of the said ordinance, couched in very general terms, that the same is not only limited to the use and disposal of one’s property, but reaches to regulate one’s conduct and activity so as not to harm or pose injury to others.
The said section of the ordinance has for its purpose the regulation for responsible use of property, as well as the regulation of one’s conduct or activity. Hence, it does not only cover those existing as nuisance which poses immediate and actual danger to the community, but progressively, it also contemplates those which could be nuisance. Those acts or omissions which, though not yet performed, but has the potential of becoming a nuisance is well covered by the regulation provided in the ordinance.
The ordinance provides for judicial and extrajudicial remedy depending on the nature and extent the damage and injury which the nuisance can bring to the community. The extrajudicial remedy is that of abatement, which the local government can do upon observance of the proper formality as prescribed by the said ordinance. The extrajudicial abatement may only be done by the Enforcement Officer as may be designated in writing by the City manager to enforce property and or premises maintenance, zoning and other City Code violations, as authorized by the Penal Code (Section 22A-2, paragraph (e). This extrajudicial abatement will automatically cause, upon the sound discretion of such enforcement officer, the removal or termination of such nuisance by reason of the imminent and actual threat or danger, or sometimes already existing adversaries that was brought by the nuisance to the community. The judicial remedy of the community is in case where a private individual is specially injured, or when the act or omission, will tend to cause, injury to the community, in which case, any person injured or is likely to be injured may file an action in court for the civil and penal sanctions as provided by the ordinance.
WHETHER THE ORDINANCE IS CONSTITUTIONAL
The said ordinance may be attacked on constitutional grounds if we apply the same to the case presented for evaluation. The person in swimming trunks to whom the public nuisance ordinance was imposed may claim that he is being deprived of his freedom of expression. Freedom of expression simply includes the freedom through speech and non-speech to exchange and relay ideas. The person’s acts in dancing with his swimming trunks surely exhibit some message that the said person would like to relay to the public, and he would like the public to know. Whatever it means to him, and whether it is desirable to the public or not, it is surely covered by the constitutional guarantee as enshrined in the First Amendment.
The ordinance may be attacked on due process grounds as the said act of automatic abatement of the activity or property is tantamount to deprivation of liberty or property which the state cannot invade or deprive without the strict observance of the due process of law. Hence, the state cannot just restrict one on his exercise of his rights if it is not prohibited by a substantive law, and if the person, natural or juridical is not given his opportunity to be heard. While there are more reasons to abate a nuisance extra judicially as the same lies within the police power of the state which is powerful and almost unlimited, the said power should not be exercised capriciously, arbitrarily, and discriminate, in blatant disregard of the right to due process which is afforded every person, as well as the right against discrimination which necessarily follows thereto. Despite absence of hearing, the abatement will still stand as a lawful exercise of police power, considering that the existence of a nuisance demands an immediate action and remedy, else, the damage caused will be great and irreparable. At the earliest instance, especially when the injury is not yet caused, the state must employ such reasonable means to prevent any untoward eventuality that would adversely affect the health, safety and welfare of persons.
The ordinance despite those possible objections may be sustained as constitutional as the same proceeds from the police power of the state, subject to such limitation as provided by the existing laws and the constitution. However, to prevent the possibility of abuses on the rights of persons and property, the ordinance must contemplate a nuisance that is so serious in character in posing hindrance to the enjoyment of one’s life, safety and property. An ordinance must have some reasonable and substantial ground to declare and act or a thing as a nuisance. Hence it may not be sufficient to declare a nuisance based on some aesthetic grounds, but there must be an imminent and immediate threat to one’s life, liberty, health and safety. The said ordinance should not be inconsistent in the use of property and the exercise of one’s rights, but should only operate when such use of property, or performance of an activity, imminently and actually invades the rights, as well as the life and safety of others. In other words, the government must come in to restrict a person from the enjoyment of the use of property and performance of an activity when there is posed a clear and present danger which the state has the right to abate, pursuant to its police power, for the sake of public welfare, health and safety. The interest of the greater number, after all, should run paramount.
Another constitutional defense that may be interposed is that abatement of nuisance is of the nature of a cruel and inhuman punishment as cited by the Supreme Court in numerous cases. The state basically has the primary duty to protect its citizens from any threat of deprivation of life, liberty and property. Pertinent to such duty is the duty to protect the citizens from any nuisance which would hinder and deprive the citizens of the exercise of their rights and privileges to which they are entitled. Abatement of nuisance comes as a natural right to everyone is entitled to take necessary and immediate means whenever the threat to their life and safety, but such has been assumed by the state as its primary duty to be afforded its citizens.
WHETHER THE PUBLIC NUISANCE ORDINANCE HINDERS THE LIBERTY OF THE INNOCENT PERSONS.
The public nuisance ordinance is more concerned of the effects which the act of a person may bring to the community. Whether the person is innocent or malicious in the conduct of an act is quite immaterial. Where the threat to the life and safety is imminent, the state immediately come into the scene and need not inquire whether the person doing the act is innocent or not.
Moreover, the public nuisance ordinance, has for its view the protection of the innocent persons against the malicious invasion of others to their life, safety and welfare. The mere existence of a nuisance could somehow presuppose the existence of an unlawful act arising from an unlawful intent. The ordinance does not provide for any blanket authority for those persons who have the malicious intent of putting everyone in the community at risk or at danger of their lives and liberty. The ordinance has for its view, not only the termination or abatement of nuisances already existing, but also the prohibition and prevention of any possible nuisance that may arise from those with the malicious minds. The public nuisance ordinance only provides, especially for the innocent ones, the guarantee that the eyes of the law, and police power of the state, is there to protect and defend them against any unlawful act of invasion to their rights to life, liberty and property.
GROUND FOR THE PROSECUTION OF THE DEFENDANT
It is clear from the facts that the defendant was committing a violation of the Public Nuisance Ordinance. His acts should not be countenanced as his act is a pure and blatant nuisance. Defendants were indeed restricting the rights of the public to the use of the public street which he does not exclusively own. A street is public property, and nobody can just claim that he has the exclusive right for its use to the exclusion of all others. When the acts of the defendant tends to obstructs or interfere the right of the public to use the public, not to mention the possible damage and injury it will bring to the passing public, the more reason there is to stop him from actually committing his unlawful act. Defendant has no lawful permission to proceed from his and he must be stopped in furthering in his unlawful acts. Moreover, his acts certainly posed danger to the safety of the passers, as it did result as in the case of Gloria Trek, giving the authorities sufficient ground to stop him from what he is doing. For the resulting injury caused to the innocent by-passer, the defendant must be held liable for being his efficient cause of such injury, for was not supposed to take place, had he not insinuated the scandalous and injurious acts which truly disturbed the entire public who used the street.
The defendant could not claim for his liberty of movement and of expression. As the famous saying goes “so use your property (and exercise your rights) so as not to injure other”. The liberty of one ends when it commences to affect adversely the rights of other having any legal and rightful color accompanying it. He is merely not on his right mind when he performed his acts irresponsibly and dangerously. The law should come in to protect those innocent ones in order to serve the very purpose of the ordinance as stated in its provision mentioned in the first paragraph hereof. The damage he has caused, and suffered by his victim must be repaired by no other than himself as said injury could not have occurred if not because of his scandalous loitering in the middle of the street. He is creating damage from an unlawful, hence, a right of action certainly exists against himself.
CHANGES IN THE LETTERS OF ORDINANCE TO MAKE IT STRONGER AND LESSEN CONSTITUTIONAL CHALLENGES.
There may be no need for any changes in the letter of the law as to conform to any possible constitutional and practical challenges that may be raised against it. The express wordings of the ordinance are clear and sufficient. The wordings thereof are sufficiently and efficiently set forth defining the true limits and scope of governmental authority to provide for security and protection in the health safety and welfare of the people, without prejudice to the limitation set forth in the laws and constitution. Moreover, the letters thereof should be interpreted in harmony with constitution as ordinances and statutes are presumed constitutional unless declared otherwise. By reading the said ordinance, it must be interpreted consistently with the provisions of the constitutions and any interpretation as would make it unconstitutional, for so long as there is still some modes to save it from being unconstitutional, should be resorted to.
Moreover, it is a basic rule that the law should be read as would make it applicable. The sate cannot be presumed to be enacting laws and ordinances which are inutile and has no good effect to the public. The letter of the ordinance is sufficient, when read with practical consideration, as to make the same effective. Whenever any part of its provision is proven to be useless, it will not negate the validity and applicability of the entire law, as the latter was enacted being a product of the general will and expression of the people for their very own protection and interests.
The violation on the constitution, not so much with the letters of the ordinance, lies however, on the implementation and enforcement thereof. The subject ordinance relies upon the good and just hands of the enforcing officers. The law itself should not be rendered invalid simply because the persons enforcing and implementing goes beyond the scope of the law, to the extent of enforcing what the law does not anymore warrants. Enforcement officers must be vigilant and cautious in the implementation and enforcement so as the true meaning of the law is the one that truly is reflected, and sets the order, convenience and safety in the community.
American Jurisprudence (2nd ed.).(1971).(Vol. 58). Rochester, New York: Jurisprudence Publishers Incorporated.
Carney, David (1995) Nuisance. DBA Tech Law Journal. Retrieved on July 15, 2007 from http://www.techlawjournal.com/glossary/legal/nuisance.htm
Merriam-Webster’s collegiate dictionary (10th ed.).(1993). Springfield, MA: Merriam-Webster.
Spencer, J. R. (1989). “Public Nuisance” – A Critical Examination”. Cambridge Law Journal 55.
The City of Sta. Clara, California (2006). The Code of the City of Santa Clara, California (Ordinance No. 1663). California: Government Printing Office.