Creating or Maintaining a Public Nuisance (Penal Code 372 & 373a PC)

Penal Code 372 PC is the California law that prohibits a person from creating or maintaining a public nuisance. A conviction is a misdemeanor punishable by up to 6 months in county jail.

Califonia Civil Code 3480 defines a public nuisance as an activity that “affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

PC 372 states that “every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.”

Examples

• leaving a pet dog out all night and its constant barking obstructs the neighborhood’s public right to sleep.
• owning a rundown home that attracts trash, bugs, and rodents into the community.
• throwing nightly parties in a development that results in continual garbage and graffiti.
• a real property owner letting dried leaves accumulate in a yard, creating a fire hazard and violating public safety codes

Defenses

A defendant can raise a legal defense to beat a charge under this statute. Common defenses include:

• one-time event,
• few people affected, and/or
• no notice.

Penalties

A violation of this statute is a misdemeanor. This is opposed to a felony or an infraction.

The offense is punishable by:

• imprisonment in county jail for up to six months, and/or
• a maximum fine of $1,000.

A judge may award misdemeanor (or summary) probation in lieu of jail time in a public nuisance case.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is considered a “public nuisance” in California?
  • 1.1. Penal Code 373a PC
• 2. Are there legal defenses to Penal Code 372 PC?
  • 2.1. One-time event
  • 2.2. Few people affected
  • 2.3. No notice
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Disturbing the peace – PC 415
  • 7.2. Unlawful assembly – PC 408
  • 7.3. Illegal dumping – PC 374.3

1. What is considered a “public nuisance” in California?

A prosecutor must prove the following to convict a person of creating a public nuisance:

1. the defendant maintained or effectuated any public nuisance, or
2. the accused willfully failed to perform any legal duty to remove a public nuisance.¹

The California legal definition of public nuisance is anything that:

1. injures someone’s health, offends someone, or prevents the free use of property, and
2. interferes with a community’s enjoyment of life or property.²

Note that a community may include:

• an actual community,
• a neighborhood, or
• a large number of people.

Also, note that a nuisance has to be a continual event. A one-time offensive activity is not enough.

Example: ABC Paint Co. is a paint manufacturer. It knowingly makes a lead-based paint for the inside of homes. The manufacturer knows the paint is a danger to the general public health, but it promotes the paint’s sale anyway.

Here, ABC is guilty of creating a public nuisance. The lead-based paint is a nuisance because:

• it can injure a person’s health, and
• ABC’s promotion of the paint has the potential of affecting a large number of people.

Further, since the company manufactured the paint, it created the nuisance.

The above example is based on a real California court case.³

In addition to PC 372, Penal Code 373a addresses public nuisances as well.

1.1. Penal Code 373a

Penal Code 373a PC is the California statute that makes it a crime for a person to:

1. maintain, permit, or allow a public nuisance to exist on a property he owns or leases, and
2. do so after he receives written notice that the nuisance has to be fixed.⁴

The above notice is given by a health officer or city attorney.⁵

Example: Debbie owns a home that she rents out. Her tenants throw regular parties that spill out into the street. The parties result in alcohol bottles, beer cans, and other trash to be left in the neighborhood streets. A health officer writes Debbie and says she must fix the situation. Debbie fails to act.

Here, Debbie is guilty under PC 373a. Her tenants’ regular parties created a public nuisance. She received notice to remedy the problem, but she failed to do so. Her inaction is an offense under this statute.

2. Are there legal defenses to Penal Code 372 PC?

A defendant can challenge an accusation under these statutes with a good legal defense.

Three common defenses to charges of an alleged public nuisance are:

1. one-time event,
2. few people affected, and/or
3. no notice.

2.1. One-time event

Recall that an activity or object must happen on a regular basis for it to be a public nuisance. This means it is a defense for an accused to say that the unwelcome nuisance:

• happened only once, and
• never took place on a regular or repeated basis.

2.2. Few people affected

Also, recall that something must affect:

• a community, or
• a large number of people

for it to be a nuisance.

Therefore, it is always a defense for an accused to show that:

• while the defendant’s conduct may have been offensive,
• they only bothered a couple of people and not an entire neighborhood.

2.3. No notice

This is a defense to a charge under PC 373a. A person is only guilty under this statute if:

• he failed to remedy a public nuisance,
• after receiving notice.

This means it is a defense for a defendant to say he never received this requisite notice.

3. What are the penalties?

A violation of Penal Code 372 is a misdemeanor under state law.

The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.⁶

4. Are there immigration consequences?

A conviction under these statutes will not result in any harmful immigration consequences.

A non-citizen defendant can sometimes get deported after committing a crime.

This happens, for example, if he commits either:

• an aggravated felony, or
• a crime involving moral turpitude.

A crime under these statutes, though, is not a deportable offense.

5. Can a person get a conviction expunged?

A person can get an expungement if convicted under these laws.

A judge will award an expungement provided that the defendant:

• completes his jail term, or
• completes probation (whichever one is imposed).

6. Does a conviction affect gun rights?

A conviction involving a public nuisance will not impact a defendant’s gun rights.

Some California crimes, like felonies, can take away a person’s right to:

• own a gun, or
• possess a gun.

Recall, though, that crimes under these statutes are misdemeanors. This means convictions will take away no gun rights.

7. Are there related offenses?

There are three crimes related to creating or maintaining a public nuisance. These are:

1. disturbing the peace – PC 415,
2. unlawful assembly – PC 408, and
3. illegal dumping – PC 374.3.

7.1. Disturbing the peace – PC 415

Penal Code 415 PC is the California statute that defines the crime of “disturbing the peace.”

A person commits this offense when he:

• disturbs someone with loud music,
• fights someone, or
• uses offensive words in public.

7.2. Unlawful assembly – PC 408

California Penal Code 408 PC defines the crime of “unlawful assembly.” The offense is committed if two or more people assemble together to:

• do something illegal, or
• do something legal, but in a violent manner.

7.3. Illegal dumping – PC 374.3

Penal Code 374.3 PC is the California statute that makes it a crime for a person to dispose of:

• garbage,
• waste, or
• other similar matter

on public property or private property.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We serve clients in Los Angeles, the city of San Diego, and throughout the state of California. Our practice area includes torts and personal injury as well.

Also see our article on how to bring a private nuisance claim in California. Topics include the elements of the common law cause of action, abatement, causation, injunctive relief, and civil procedure in a superior court civil action.

For information on similar crimes in Nevada, please see our article on “NRS 202.470 – Public Nuisance Laws in Nevada.”

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