Tuesday, January 22, 2019

Council To Consider Seizure of Pet and Owner Jail Time For "Excessive Noise"

The town council voted to table this item for future consideration.
The property is your pet
Tomorrow night, there is one item on the regular agenda. It is a resolution to amend section 18-8-2 and to add add section 18-8-3  to section 18-8 of the Oro Valley town code. That section discusses "excessive noise" on the part of pets.

Pina and Rodman are sponsoring the amendment
"At the request of Councilmembers PiƱa and Rodman, the Legal Services Department undertook a review of the Town's Animal Control Code, specifically, relating to the article addressing excessive noise caused by animals and birds. A 2017/18 case involving excessively barking dogs highlighted Oro Valley's lack of code provisions that would have allowed for more stringent action to protect the rights of area neighbors in the peaceful enjoyment of their property."(Source)

According to Oro Valley Constituent Services Coordinator, Jessica Hynd: "The 17/18 case that is referred to in the agenda item, is V17071165. A guilty verdict was found. The case involves multiple neighbors who submitted numerous noise complaints against a neighbor who had multiple dogs that excessively barked during all hours of the day and night."

Three strikes and they take the pet
The proposed amendment allows a peace officer or town enforcement agent to remove a pet from premises after a third determination by the police officer or town enforcement agent that the pet is causing "excessive noise." The disturbance has to be such that, in the judgment of the peace officer or town enforcement agent, the disturbance "...interferes with the comfortable enjoyment of life or property by a neighbor or the community."(source exhibit A)

Third strike could mean jail time for the pet owner
An individual cited a third time will not only have their pet seized. They will also be charged with a class one misdemeanor. In Arizona, a class 1 misdemeanor is a serious offense: "A class 1 misdemeanor is the most serious misdemeanor offense and is punishable by up to 6 months in jail, 3 years of probation (5 years maximum probation for DUI offenses) and a $2,500 fine plus surcharges. Some of the most common class 1 misdemeanor offenses include DUI, driving on a suspended license, assault, disorderly conduct, criminal damage, shoplifting and theft." (Source)

In addition, if the pet is seized and if the owner gives up on the pet or does not get it back after appealing to the court system, the pet will have no home, it will wind up in a shelter and likely it will be killed if it is not adopted.

LOVE: This ordinance as proposed is far too vague, far too overreaching, and far too punitive to be adopted in its present form.
It is "overkill." Here's why:
  1. The ordinance does not require "cause".  In other words, there should be a filed, documented resident complaint that the peace officer or town enforcement agent is investigating. The cause, in this case, should be a documented complaint from a resident residing within a reasonable distance (100 feet) from the noise.
  2. The disturbance being made should be from outside the home or kennel. A dog barking inside or a bird in a cage making noise inside one's home should not be considered. The current code does not exclude this. Essentially, you are subject to the consequences of this code section if you have a dog who barks in your home and that noise can be heard outside.
  3. The code should define "excessive noise" and require that it be measured. Do not leave it to judgment.  "Judgment" is far too low a standard. A measurable standard for the violation should be set in the ordinance. For example: A noise is deemed to be excessive when it has been measured to occur on a continuing basis for 20 minutes at a decibel level exceeding 60db+, as measured within 100 feet of the closest property line.
  4. The excessive noise should be occurring without observable cause. For example, it is quite normal for a dog to bark at coyotes who are howling, even in the distance. This should not be an offense.
  5. Time of day matters. Noise at night really does disrupt the peace. Noise during the day generally does not, as people are away. Limit the time when the ordinance is effective in the same manner the town code restricts construction noise or noise from a business establishments, such as Noble Hops (which can blare live music on the patio until 9:30pm).
  6. The peace officer or town enforcement agent should be required to obtain and present a court order for pet removal.  This requires a court to deem that property seizure is legally valid in this case. The proposed ordinance has it backwards. The officer seizes the pet. The owner goes to court to show why the owner should get the pet back. In other words, there is a presumption of guilt. There should be a presumption of innocence.
  7. The third offense is far too harsh. At best, it should remain a civil offense as it is now. There is no reasonable basis for assuming that a barking dog causes the kind of potential damage a DUI driver can cause or that it is a crime as serious as stealing from Target.
LOVE's recommendation
Send this ordinance back for reworking. Use a rifle, and not an "elephant gun" in its redesign. Apply some contemporary thinking, like requiring pet training after the first offense. 

Better yet, rewrite the ordinance. Create something that protects the "property rights" of the owner as well as recognizing the affected residents right to the "quiet enjoyment" of their property.