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Creating or Maintaining a Public Nuisance in Los Angeles
Under the California Penal Code, a person may be charged with a crime if he or she:
• Creates or maintains a public nuisance,
• Willfully fails to perform any legal duty to remove a public nuisance, or
• Maintains, permits or allows a public nuisance to exist on property under his or her ownership or control.
Despite the seemingly clear language of the law, understanding what exactly a public nuisance is and how you may be charged with a criminal violation is anything but straight forward.
Public Nuisance Defined
A public nuisance may be defined as an interference with the common right of the general public or an indefinite number of persons. It is therefore an unreasonable interference with the health, safety, peace, or comfort of the community. A key element here is that the interference must impact the general public or an indefinite number of persons. Consequently, say you play music inordinately loudly, but only one of your neighbors can hear and is bothered by that activity. That does not constitute a public nuisance because of the lack of the requisite number of persons affected.
Distinction between Private Nuisance and Public Nuisance
A private nuisance is a civil wrong and not a criminal matter. It involves a disturbance in rights to land and land use, as opposed to a public nuisance, a criminal violation, which concerns interference with the rights of the community at large.
Creating vs. Maintaining a Public Nuisance
A salient issue in a charge of maintaining a public nuisance is that of notice. This is particularly true when violation is alleged against an owner of property who is not the occupier, such as a landlord. Under those circumstances, the prosecutor must prove that the defendant landlord actually received written notice from a public officer indicating that the public nuisance was to be removed or discontinued. As an example, if you rent a house to a young couple who regularly throw loud, boisterous parties about which several neighbors have complained directly to you, this is not sufficient notice under California law; you received no written, official notice.
Conviction for a public nuisance is punishable as a misdemeanor with possible jail time of up to six months, a fine of up to $1000 or both. Importantly, if you were properly notified of the public nuisance, and you failed to take any steps to correct the condition, you face a separate charge of public nuisance for each and every day the condition continues until corrected or removed.
Each case is unique and must be evaluated on its own particular circumstances, but common defenses to a public nuisance charge include:
• The condition was not a public nuisance in that it did not impact the community in general
• The condition was more of a one time or short term condition and was not allowed to continue or was not maintained over an extended period of time
• You, as the defendant, did not have the ability to abate the condition