Putting The Bite On Barking Dogs



Right up front, you need to know that I am a dog junkie, and that my three dogs came from the Payson Humane Society.

In fact, when I interviewed a PHS manager a while back, I could completely relate when she said, "It's true that dogs are man's best friend. There's a reason why God put dogs on this earth."

It's important to know these things because today's topic is the town's brand new barking dog ordinance, and I propose to have a little irreverent fun with it.

Here's the setup:

The town's old barking dog ordinance apparently didn't give the animal control officer and his police buddies the authority they needed to stop this terrible nuisance from occurring. After all, it required that a dog's barking "substantially interfere with the rights of citizens," it required the barking to be "continued and continuous and incessant," and it suggested that the hours between 10 p.m. and 6 a.m. were the most onerous.

It also mandated that a dog found "running at large" must be a repeat offender, and it only mentioned chasing motor vehicles, not "bicycles or other vehicles" as the proposed revision does.

Oh yeah, and it exempted all for-profit dog businesses such as groomers, kennels and vet clinics from the ordinance -- but not your Payson Humane Society, which is often charged with taking in, you guessed it, dogs in violation of the barking dog ordinance.

When the first revisions were proposed late last year, town attorney Sam Streichman tried to include the shelter in the list of exemptions, a noble gesture considering it came from a lawyer. But a couple town counselors weren't buying it.

Sam went back and revised his revision and, lo and behold, the shelter was liable, and so were all the formerly protected for-profit dog businesses. Sam also dropped a lot of the specifics from the ordinance, so that the owner of just about any dog that dared utter a sound could be cited if a) a neighbor was looking for an excuse to turn him in, or b) an officer was looking for an excuse to issue a citation.

For example, instead of having to interfere with the rights of citizens, under the proposed revision a barking dog only has to "disturb the peace and quiet of any person."

And instead of barking that is "continued and continuous and incessant," a dog's barking only has to be "repeated."

Let's pause for a closer look at that one. While I'm sure a lawyer could tell us the difference between "continued" and "continuous," you could sure fool this English major.

But if dropping this language is a blow for clarity, the insertion of "repeated" puts things right back out of focus. As shelter legal advisor Carol Stubbs points out, it would be real easy for a cop to interpret repeated barking as two barks if he or she were so inclined.

Yet another example: Instead of "repeatedly running at large," your dog is in violation for simply running at large -- even if he accidentally slips the confines of your yard one time only.

When I asked Stubbs, whose husband Larry is a retired cop and current president of the humane society, about the wisdom of making an ordinance less specific so the cops, at their discretion, can cite nearly anybody and everybody, here's what she said:

"Cops are always doing what they're told. You put cops in a position where they don't know what they should be enforcing, and they're going to be yelled at by everyone."

So it seems to me the town council should have just walked away from this one and let sleeping dogs lie. But since they didn't I think I have found a loophole in the new ordinance.

In the introductory verbiage leading up to the actual ordinance, Streichman writes that the offensive noises include -- but, of course, are "not limited to" -- "howling, yelping and barking." In the ordinance itself, "howling" and "barking" are still specified, but "yelping" has been replaced by "whining."

According to my dictionary, a yelp is a short, sharp bark -- which is certainly not your everyday bark, nor is it a howl or a whine. I therefore suggest that when accosted by a police officer because your dog made a noise, you insist that it was merely yelping, an act that by its exclusion from the actual ordinance after being previously mentioned is allowed -- under the legal principle of nolo repeaterium.

And if the council and its legal beagles (did I say that?) want something to keep them busy, I suggest they write an effective all-terrain vehicle noise ordinance. Now there's a real public nuisance.

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