Any act which is an offense against public decency is a public nuisance[i]. Similarly, any object or business that injures public health and safety is a nuisance. Public exhibitions which are offensive to senses such as sight, sound, or smell, or which tend to corrupt public morals or disturb good order and welfare of society can be challenged in the court as a public nuisance[ii]. Under this heading falls all puppet shows, legerdemain, obscene pictures, and exhibitions which have a natural tendency to pander to vicious tastes[iii].
Exhibition of obscene magazines and films by a bookstore is a public nuisance. Therefore an action can be maintained against a bookstore under a general public nuisance statute. However, in case where obscenity is not included in the definition of public nuisance by the state legislature an action against the owner of an adult bookstore will not be taken by a court upon presumption.
Using any building or part of a building for the purposes of fornication, lewdness, masturbation, assignation or prostitution by an adult bookstore would constitute a public nuisance[iv]. However, there must be competent evidence in the record to show that such premises in question were being used for the purpose of engaging in illegal sexual conduct or that such bookstore contained motion picture booths for viewing sexually explicit films[v].
In some jurisdictions, determination of obscenity is a prerequisite in an action against an adult bookstore for public nuisance. Further, in cases where the asserted nuisance caused by the sale or exhibition of obscene literature, or other material is protected by the First Amendment, a judicial determination of obscenity is required as a pre-condition for declaration of nuisance[vi].
A business not operated in a fair and reasonable way with regard to the rights of adjoining property owners is a nuisance. For example, a bakery which is operated during hours usually devoted to sleep in a place intended for residential purposes is a nuisance to the residents of neighborhood[vii]. Hence, any business that results in an injury to property or the health and enjoyment of persons living in the neighborhood will be deemed a nuisance[viii].
In addition to particular businesses or places of business or manufacturing, operation of any object or equipment that makes excessive noise or which forces air charged with impurities into a building occupied by another or others by means of fans or blowers is a nuisance. For example, the use of a fan on agricultural land will be a nuisance to adjacent owners of land if such use interferes with the daily activities of other persons.
Likewise, activities such as dumping of garbage, refuse, or filth of a character that causes injury and discomfort to adjacent residents and the public is a nuisance per se. The violation of a statute prohibiting garbage dumping within a certain distance of a highway amounts to a public nuisance. Activities such as burning of garbage, trash, or other waste materials will comprise a nuisance if it produces unpleasant or noxious fumes, odors, or smells that unreasonably interfere with the local residents’ enjoyment of their property[ix].
Other activities that constitute a nuisance include:
- the storage of junked automobiles and scrap[x]; or
- singing out loud or shouting especially during nighttime[xi]; or
- practicing of musical instruments to project noise into another’s home or premises; or
- improper and unreasonable use of a loudspeaker or public address system; or
- telephone calls of highly offensive or intolerable level; or
- blowing of whistles, bells, carillons, and electronic tones that materially affects the health and comfort of ordinary people.
[i] State ex rel. Tollefson v. Mitchell, 25 Wn.2d 476 (Wash. 1946).
[ii] State ex rel. Attorney Gen. v. Canty, 207 Mo. 439 (Mo. 1907).
[iii] Chicago v. Festival Theatre Corp., 91 Ill. 2d 295 (Ill. 1982)).
[iv] Commonwealth ex rel. Preate v. Danny’s New Adam & Eve Bookstore, 155 Pa. Commw. 281 (Pa. Commw. Ct. 1993).
[v] State ex rel. Wayne County Prosecuting Attorney v. Levenburg, 406 Mich. 455 (Mich. 1979).
[vi] State ex rel. Eckstein v. Midwest Pride IV, 128 Ohio App. 3d 1 (Ohio Ct. App., Fayette County 1998).
[vii] Riffey v. Rush, 51 N.D. 188 (N.D. 1924).
[viii] Martin v. Williams, 141 W. Va. 595 (W. Va. 1956).
[ix] 61C Am Jur 2d Pollution Control § 1982.
[x] Scott v. Commonwealth, 134 Pa. Commw. 519 (Pa. Commw. Ct. 1990).
[xi] Krueger v. Mitchell, 106 Wis. 2d 450 (Wis. Ct. App. 1982).