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Legal Authority of Government to Abate Public Health Nuisances

posted on Thu, Jun 23 2016 9:12 am by The Network

A public health official from Arizona recently contacted the Network to ask what legal authority Arizona state (or local) government has to abate public health nuisances, specifically related to potential breeding sites for disease-carrying mosquitoes.

A public nuisance may be generally defined as “an unreasonable interference with a right common to the general public.” Public nuisances can negatively impact community health when the use of property presents clear and obvious health risks for others. However, so long as government follows statutory or regulatory procedures, it may abate (or eliminate) public health nuisances to protect the public’s health.

Arizona state law authorizes abatement of nuisances dangerous to public health, including “[a]ny condition or place in populous areas that constitutes a breeding place for flies, rodents, mosquitoes and other insects that are capable of carrying and transmitting disease-causing organisms to any person or persons (emphasis added).” State health authorities can order the removal or destruction of a public health nuisance in two primary ways.

  1. The Arizona Department of Health Services (ADHS) may serve a “cease and desist” order on any person reasonably believed to be maintaining a public nuisance. Upon receipt, an individual or property owner may stop causing or maintaining the nuisance or request a hearing within 15 days. If a hearing is requested, ADHS should determine as soon as practicable whether the order is “reasonable and just,” and if so, authorize abatement. 
  2. Under another statutory route, state or local health agents can expeditiously issue an order to the owner or occupant to remove a known nuisance within 24 hours at the owner’s or occupant’s expense. If the owner does not comply within 24 hours, government health agents can enter private property to abate the nuisance directly and impose a civil penalty on the owner or occupant to pay for costs of removal. 

If an owner or occupant denies entrance onto private property to abate a nuisance, any county board of health member or health department officer may issue a complaint to a justice of the peace. The justice can issue a warrant permitting the county sheriff or other peace officer to accompany health officials to the property to abate the nuisance. The owner or occupant of the property must pay all relevant expenses.

In addition to state-based abatement powers, Maricopa County Environmental Health officers can follow the same or similar procedures under local laws. Maricopa County’s Environmental Health Code does not specifically lay out conditions to be declared “public health nuisances,” but does require individuals to take all necessary and proper steps to eliminate mosquito breeding sites, including unnecessary accumulations of water.  

Finally, specific abatement powers and processes may be altered pursuant to formal declarations of emergency or public health emergency by Arizona’s Governor. These declarations may allow enhanced use of these powers pursuant to temporary waivers of some existing legal requirements for the duration of the emergency.

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