BARKING: How much is too much?
Council mulls city’s animal disturbance law
Yuma officials continued the conversation on barking dogs, this time with much of the discussion centered on what is too much barking.
Emily Hart, the city’s assistant city prosecutor and police legal advisor, earlier this month briefed the Yuma City Council on the current “Animals Disturbing the Peace” ordinance, as well as proposed changes and possible modifications to the law.
Currently the ordinance makes it “unlawful for any person to keep or harbor within the city any animal which excessively barks, howls, or makes other noise by day or night and disturbs the peace and quiet of any person or family.”
The violation is a Class 2 misdemeanor with a penalty of up to five days in jail and up to a $750 fine, or a combination of both.
In a previous discussion, the council had asked that “excessively” be defined and that the statute be drafted as a civil offense. Animal Control also asked that birds be included in the ordinance due to a lot of complaints about noisy birds, in particular parrots. The ordinance does not currently include birds.
The most recent conversation included discussion of a “repeat offender” graduating penalty. In other words, the more a person is convicted of the same offense, the worse the punishment is.
The council also considered “ownership” issues caused by the ordinance language of “keep or harbor.” People often say “it’s not my dog, it belongs to someone else,” and the true owner might not be present. In this case, should the person taking care of the animal be fined?
The council also addressed animals maintained by a legal entity, for example, guard dogs on a commercial property.
PROPOSED CHANGES
Hart proposed defining “excessively” as “persistent barking, howling, or other noise for 30 minutes or more at one time.”
To come up with a definition, Hart informally polled people to see how long they would tolerate barking. She also looked up how other jurisdictions define it. In Coconino County, it’s 15 minutes if continuous, 30 minutes if intermittent. In Mesa, it’s 15 minutes whether continuous or intermittent.
Scottsdale requires complaints from at least two people. Gilbert requires complaints from at least two people. Tempe requires complaints from two people, from separate households, with independent knowledge.
Surprise requires the disturbance be “verified through independent means such as enforcement agent observation, other neighbor complaints, audio recordings, video recordings, logbook, or other evidence.”
Hart also proposed changing the ordinance to: “It shall be unlawful for any person or legal entity to permit any animal within the person’s or legal entity’s care, custody or control to excessively bark, howl, or make other noises by day or night that disturbs the peace and quiet of any person or family.” Animal is defined as any mammal, bird, or fowl.
The proposed changes make whoever has custody or control of an animal responsible for it.
PROPOSED PENALTIES
For the proposed penalty, Hart offered three potential options: civil, criminal and a hybrid of both.
For civil, the proposed penalty would be a fine of $50. If in the 12 months preceding a violation conviction, the person or legal entity has one previous conviction of this ordinance, the fine would be $100. If in the 12 months preceding a violation conviction, the person or legal entity has two or more previous convictions, the fine would be $200.
For criminal, a violation would be a Class 2 misdemeanor with the same fines as the proposed civil violation.
For hybrid, the first and second conviction would be designated as civil and result in a fine of $50 for the first violation and $100 for the second violation within 12 months.
Three or more convictions within 12 months would be considered a Class 2 misdemeanor with a $200 fine and jail time up to five days.
Hart noted that the council could adjust the penalties. She said she leaned toward leaving it as a criminal violation and explained that a civil designation might open it up to lawsuits. If a person successfully defends themselves, the city might be responsible for paying attorney’s fees.
HOW MUCH IS TOO MUCH?
A song lasts about three minutes, according to Councilor Gary Knight. If he had to listen to barking during the time it takes to listen to three songs, “it would drive me crazy.” He would tolerate continuous barking for up to 15 minutes, which he considers “way too long,” he said, adding that he liked the idea of requiring complaints from two people.
Councilor Chris Morris pointed out that the proposal doesn’t specify “continuously or intermittently.” Hart replied that she used the word “persistent” because it allows for stopping and starting. Ultimately, it would be up to a judge to define “persistent.”
Morris asked whether Hart planned to add time periods, such as violations committed only at night. Hart noted that currently it’s considered disturbing the peace whether it’s day or night.
He noted that sometimes barking is not the fault of a dog, which sometimes are not trained or bark as a coping mechanism. He said he didn’t want to see a civil or criminal citation if there’s no real negligence or wrongdoing on the part of the dog owner. Hart said that warnings could be added to the ordinance, which gives owners an opportunity to do something before being cited.
Councilor Ema Lea Shoop pointed out that in her neighborhood dogs barking at night often means there’s someone there who shouldn’t be. Hart noted that if a dog barks for 30 minutes, at that point the owner should call the police, who will investigate the reason for the barking.
Councilor Mike Shelton also noted that sometimes a dog barks because something is wrong: the owner is away, it’s hungry or in an abusive situation. “I would hope that in the course of this, the way the owner is treating the pet is kept in mind, because there may be something else going on,” Shelton said.
“Absolutely. Dog owners can always present that information,” Hart replied.
Councilor Leslie McClendon said she agreed with the idea of giving warnings as the city does in other situations, such as false alarms. She also likes requiring additional verification such as video.
A dog’s instinct is to bark and she would hate to take that away when a dog is trying to alert its owner about a situation. “I want them to warn when something is going on,” she said. “To be so stringent to me, I can’t accept that.”
Mayor Doug Nicholls said he liked requiring the corroboration of two people but that having it be “criminal” might be “a bit stiff” and “too overbearing.” He would rather it be civil. He noted some professions require clean records and a criminal violation might cost someone their job.
Nicholls also pointed out that there is no provision for provocation. Perhaps, he said, the neighbor cat is sitting on the wall and terrorizing the dog and there’s no one home to shoo the cat away.
The mayor acknowledged that it might be hard to perfect the language to include all possible situations. For example, Nicholls said, what if someone goes on vacation and leaves the dog with a sitter. Will the dog-sitter be fined?
Hart said she would research those potential situations.