Monday, April 13, 2009

Nuisance Laws and Individual Responsibility

The City of Houston has recently begun using nuisance laws to crack down on certain businesses. The city has used such laws to close a topless bar and a "hot sheet" motel. Mayor White has promised more of the same.

While nuisance laws are appropriate--if clearly and objectively defined--the city's use of these laws to close businesses is very troubling and an inappropriate use of government force.

Derived from common law, the premise underlying nuisance laws is that a property owner has a right to the peaceful use of his property. He has a right to expect his neighbors to refrain from actions that prevent that use, such as playing loud music late at night, or emitting disgusting fumes, or attracting excessive traffic. An individual who engages in such actions violates the property rights of his neighbors.

It is important to realize that such actions do not inherently violate anyone's rights, but within specific contexts they do. It is not necessarily an act of force to play loud music; it is if you do so at 2 A.M. and prevent your neighbors from sleeping. It is only when such actions have a negative impact on others that they become a nuisance.

Equally important, the concept of "coming to the nuisance" must also be recognized. If for example, I own a hog farm, you cannot complain about the odor if you later build a home next door. My prior use gives me the right to continue to use my property as I have. In this case, you "came to the nuisance"--that is, the "nuisance" existed and you took actions that subjected you to it. In such situations, the guiding principle is "first come, first served".

When an action rises to the level of a nuisance it becomes a civil matter between the offended and the offender. As with breach of contract, or slander, or any other civil matter, it is the responsibility of the victim to protect his rights in civil court.

But this is not what is happening in Houston. It is not the property owners whose rights have allegedly been violated that are suing. It is the city that is doing so. The motivation behind these efforts is very transparent. The city has declared war on sexually-oriented businesses and it is using nuisance laws to shut them down.

Matthew Festa, a South Texas College of Law property land use professor, told the Chronicle:

What’s troubling about using nuisance law this way is that it gives the impression that the government is trying to achieve its broader policy objectives, such as reduction of crime or environmental protection, by using this sort of legal action in place of regulation. If you want to reduce emissions, or regulate the disposal of industrial waste, you pass a law instead of going after individual property owners.

Mr. Festa is correct--the city is using nuisance laws to pursue its agenda. But more troubling are Mr. Festa's words. He is advocating wholesale restrictions on individuals in the form of regulations, rather than simply going after particular offenders. He is advocating that the city violate the rights of all property owners because of the actions of a few. If a topless club, or any other business, is truly a nuisance then that business should be targeted, not the entire industry. And those who rights are being violated, not the city, should be pressing the issue.

The city's proper function is to protect individual rights from violations by criminals. Those who engage in acts of nuisance are not criminals, just as breach of contract is not a criminal act. Prosecuting civil matters on behalf of citizens is a dangerous expansion of city powers.

In principle, the city is assuming responsibility for activities that should properly be left in the hands of individuals. This is nothing new--it has been occurring for decades. Government has usurped individual responsibility for retirement (Social Security), for health care (Medicare, Medicaid, CHIPS, and more), for informed financial decision making (SEC, FDIC, and more), and indeed, in virtually every area of life.

And this is precisely the purpose of the city's actions. City officials--including Mayor White, Annise Parker, and Peter Brown--have made it abundantly clear that individuals are too incompetent to make decisions regarding their own lives. They want to tell us the types of homes we can occupy and where (White's green building codes, Parker's preservation ordinances, and Brown's planning). They want to tell us how to operate our businesses (the war on sexually-oriented businesses, sign ordinances, and anti-smoking ordinances). They want to tell us how we can travel the city (light rail for example).

The city's enforcement of nuisance laws is simply another step in its steady march to assume more control over our lives. And no matter how disturbing a strip club may be, it pales in comparison to this growing threat to our freedom. The city should immediately end its enforcement of nuisance laws and focus on its proper function--protecting us from criminals.

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