Although you may not enjoy your neighbor’s clarinet practice, it might not rise to the level of an actual legal nuisance. Under California law, it is illegal to create or maintain any public nuisance. Anyone who willfully omits to perform a legal duty relating to the removal of a public nuisance is also guilty of violating the law. Penal Code Section 372 governs nuisance law in California and dictates its legal ramifications.
The California Civil Code defines nuisance as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” See CC § 3480. A community may include an actual community of people, a neighborhood, or a large group of individuals.
“Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance.”
As delineated within the provision itself, a public nuisance covers almost all behavior that offends a large enough group of people. It is also important to note that a nuisance must be a continual event—it is not adequate to simply effectuate a one-time transgression.
A public nuisance is considered a substantial and unreasonable offense against, or interference with, the exercise of rights common to the public. See County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292 (2006). A public nuisance is substantial if it creates significant and unreasonable harm. Under California law, public nuisance regulates an act or omission which interferes with the interests of the community at large or the comfort and well-being of the general public. When contemplating whether an activity rises to the level of a public nuisance, it is necessary to determine if an entire neighborhood, a considerable number of people and/or a whole community is affected. See CC § 3479.
The violation for creating, maintaining or omitting to stop a public nuisance is a misdemeanor. Under the Penal Code,
“[e]very person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.”
If charged as a misdemeanor, a defendant could face up to six months in the county jail. And a misdemeanor conviction is punishable by a fine of up to $1,000. A judge could award a probation sentence—in lieu of a jail term—depending on the circumstances. Probation is a period of supervision instead of serving time in prison. Often, the court will require some conditions to be met, such as participation in a work release program or community service.
In certain circumstances an accused may have the opportunity to rectify the alleged nuisance. Penal Code Section 373a allows for reasonable notice in written form from a health officer, district attorney, city attorney, or city prosecutor to remove, discontinue, or abate the public nuisance. However, each day a nuisance is allowed to exist after written notice has been served is considered a separate and distinct criminal offense.
In order to meet the criteria to convict someone of effectuating a public nuisance under Penal Code Section 372, a prosecutor must prove:
In order to meet the criteria to convict someone of effectuating a public nuisance under Penal Code Section 373a, a prosecutor must prove:
The most common defenses to Penal Code Section 372 include that the activity was a one-time event and/or that a minimal amount of people were affected. A nuisance must take place on a consistent basis to create a legal disturbance. This means the prosecution cannot bring a charge for something that only took place once or that has not recurred on a regular or repetitive basis. Moreover, a large group or community of people must be burdened by the nuisance. The defendant is not culpable of a Section 372 violation if only a handful or a few people are offended by the conduct.
Lastly, under Penal Code Section 373a, a person is only guilty if he/she failed to remedy a public nuisance after receiving notice. Therefore, it is a valid defense for a defendant to prove to the court that he/she never received the requisite notice.
Creating or maintaining a public nuisance is a serious offense that can expose those convicted to a variety of criminal sanctions and penalties. It is of the utmost importance that if you or someone you know has been charged with such a violation, you speak with a knowledgeable and experienced criminal defense attorney as soon as possible.
If you have been charged with a Penal Code Section 372 violation or a Penal Code Section 373a violation, it is important that you meet with a Los Angeles criminal defense attorney immediately to obtain the lowest sentence and/or fine possible.
If you or someone you know has been accused of a crime, it is critical that you meet with an experienced criminal defense attorney as soon as possible.
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