The Barking Dog Blues: Ordinance Standards for Dogs

At some point, we have all probably had to listen to a neighbor’s dog barking its head off. And speaking as someone who has lived next to overzealous barkers, I know it can be really annoying. Barking dogs can be a livability issue for people subject to frequent barking. Sometimes the issue comes to the city council to pass an ordinance that will put a stop to the racket and make life peaceful once again. But it isn’t always that easy.

Cities have explicit authority to regulate the keeping of animals at Minn. Stat. § 412. 221, Subd 21 and such ordinances are fairly common. I see many ordinances that say something like this:

No person owning, operating, having charge of or occupying any building or premises shall keep or allow to be kept any animal which shall by any noise disturb the peace and quiet of any persons in the vicinity thereof.

While it seems like this will do the trick, there are some problems with this language. A barking dog ordinance must give guidance to the pet owners, neighbors, and enforcement officers as to what would be considered allowable or prohibited barking, whining, or other noisy conduct. People have different thresholds of how much barking would “disturb the peace and quiet.” For some, barking all day might not be a disturbance, but for others, a single bark would be. So, this sort of language is very open to interpretation, which leads to arbitrary or inconsistent enforcement, which can ultimately lead to a legal challenge.

In fact, the language quoted above was the subject of a challenge in City of Edina v Dreher, 454 N.W.2d 621 (Minn. Ct. App 1990). The court concluded that the language was unconstitutionally vague and deprived the challenger of his due process rights. The court was concerned that the ordinance, as written, did not provide an objective standard that would allow the owner or enforcement officers to determine if the barking violated the ordinance. The lack of objective standards could potentially lead to arbitrary enforcement.

Ordinances on barking dogs should include objective criteria to determining how much barking is too much. One way to do this is to designate barking, howling, etc. for more than a pre-determined number of minutes as a violation of the ordinance. The Minnesota Basic Code states:

Habitual barking. It shall be unlawful for any person to keep or harbor a dog which habitually barks or cries. Habitual barking shall be defined as barking for repeated intervals of at least five minutes with less than one minute of interruption. The barking must also be audible off of the owner's or caretaker's premises.

With this sort of objective standard, it is easier for everyone to determine if the barking violates the ordinance.

Conclusion:

Cities may adopt ordinances regulating dog barking and howling as a nuisance. It is best to include objective standards in this type of ordinance to help ensure that enforcement is not arbitrary. Additional discussion concerning vague ordinances can be found in our previous entry at: http://lmccodification.blogspot.com/2010/05/recent-case-law-developments-vague.html.

About Guest Author Alexis Stangl:

Alexis is a research staff attorney at the League and one of her areas of interest is in animal control and regulation issues. If you have questions, please contact Alexis at 651-281-1227 or astangl@lmc.org. Also, keep a lookout for the League’s new animal regulation memo that will be introduced this winter!  

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