ATTENTION PET OWNERS: Revision to Bayou Vista, TX Ordinance (Chap 2, ARTICLE 02.07.00, Section B. 1.)

The suggested ordinance revision is to include a duration of 15 minutes or greater, so that the burden of proof is on the complainant and not the defendant, while, still protecting the rights of individuals to reasonable peace and comfort. Letter to council at bottom

The way the current ordinance is written there is no way to defend oneself against a disgruntled neighbor, or official, who file erroneous noise complaints. It is impossible to prove that an accuser was NOT “unreasonably disturbed”, or how one might define “ordinary sensibilities” as the ordinance states is forbidden.  

City ordinances must be legal and constitutional. This ordinance violates the “vagueness clause” of the Constitution. However, there is a simple fix.

The Vagueness Doctrine:

Definition

1) In criminal law, a declaration that a law is invalid because it is not sufficiently clear.  Laws are usually found void for vagueness if, after setting some requirement or punishment, the law does not specify what is required or what conduct is punishable.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

3) In property law, a declaration that a deed or other instrument purporting to affect property rights is invalid because it lacks a sufficiently clear description of the property.

Illustrative caselaw

•         Skilling v. United States, 130 S.Ct. 2896 (2010).
•         Johnson v. United States
•         The Florida Supreme Court, in Franklin v. State
•         Papachristou v. Jacksonville and Kolender v. Lawson
•         Hoffman Estates v. The Flipside, Hoffman Estates, Inc.
•         City of Akron v. Akron Center for Reproductive Health

Roots and purpose

In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the vagueness doctrine extend into the two due process clauses, in the Fifth and Fourteenth Amendments to the United States Constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process.

The following pronouncement of the void for vagueness doctrine was made by Justice Sutherland in Connally v. General Construction Co., 269 U.S. 385, 391 (1926):

The terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

The void for vagueness doctrine is a constitutional rule. This rule requires that criminal laws are so written that they explicitly and definitely state what conduct is punishable. The void for vagueness doctrine thus serves two purposes. First: All persons receive a fair notice of what is punishable and what is not. Second: The vagueness doctrine helps prevent arbitrary enforcement of the laws and arbitrary prosecutions.[1]

Suggested revision:

Chapter 2, Article 02.07.00, Section B.1, of the Code of Ordinances, City of Bayou Vista, Texas, is hereby amended to read as follows: 

“Any animal that barks, whines, howls, crows, or makes any noise of such character, intensity and continued duration of greater than 15 minutes, which unreasonably disturbs or interferes with the peace, comfort, and repose of neighboring persons of ordinary sensibilities, is hereby declared to be a nuisance and is hereafter prohibited.” 

Summary

There are many pet owners in Bayou Vista, and we have the right to be able to fully comprehend the ordinances in place concerning us. Ultimately, we want to be in compliance with all city ordinances, regardless of our neighbor’s sensibilities. However, neither do we wish to be forced to comply with an extreme interpretation of these rules, based on one troublesome information source.

Letter to Council: 

We, Concerned Citizens of Bayou Vista, attest that the language contained in the Bayou Vista Code of Ordinances Chap 2, ARTICLE 02.07.00, Section B. 1, is unconstitutionally vague, and as such may foster arbitrary and discriminatory enforcement and/or reporting of ordinance violations.  Upon review, it is evident that no person of ordinary intelligence and cognitive ability is able to discern the actions/non-actions necessary to avoid cause for violation. The language contained in said ordinance offers no description of a definite restriction; therefore, any report of a violation of this ordinance is inherently indefensible. Subsequently, justification for a citation becomes resultant of the will of the complainant, and not of the limitations of the law. As such, such a statute should thereby be deemed void. However, in lieu of a court decree we respectfully request the addition of resolving language in order to rectify the deficiency.