Duc Nguyen, owner of Duc’s Place in New Haven, wanted to discourage dog walkers from letting their dogs pee on the pot outside of his storefront. He posted a sarcastic sign that read “Attn: dog owners. This is a pay-per-pee flower pot. (Pay inside or leave your address and we’ll kindly return the favor.)” The city responded with a not-so-sarcastic charge of two public nuisances and a $250 fine.
Is Prohibiting a Dog From Peeing Actually a Public Nuisance?
A public nuisance is generally an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Presumably there is no law against dogs peeing anywhere they want. Sometimes it seems crazy that a cat can poop anywhere it wants, but let’s not digress. So if a dog owner has the right to have their dog pee anywhere, then asking one not to pee on their business is an unlawful interference.
But Isn’t the Smell of Dog Pee a Nuisance Too?
Let’s be honest. Dog pee stinks, especially when it is baking in the hot summer sun. It is quite possible the odor wafts into Duc’s Place and makes his Bahn Mi seem not so yum-my. Some customers might say that the dog pee odor is a private nuisance to the customers that enjoy eating inside the restaurant. After all, if Irwindale, California was able to claim that a nearby Sriracha plant was a public nuisance for the odor that it put out, maybe dog pee odor is too?
The difference between public and private nuisance is two-fold, The first is, pretty much only the government can sue for public nuisance. The act must interfere with the general public. The smell of dog pee in a restaurant probably doesn’t interfere with the entire general public. Also, for a private nuisance suit to hold, the harm of the nuisance must outweigh the social benefit.. As long as dog is considered man’s best friend, being able to have him pee wherever he wants is probably of high social benefit.
If you own a business and feel like the local government is being unduly hard on your business, contact a local business attorney, who can listen to your situation, and offer appropriate legal guidance.