published 1913 A.I. Root
WHEN BEES ARE OR ARE NOT A NUISANCE
Strictly speaking, a trade or occupation, a business or industry lawful in itself, and which becomes a nuisance because of its location, or the manner in which it is conducted, or the character of the animals or things is not a nuisance PER SE, though it may be a PRIMA-FACIE nuisance.
Whether bees are a nuisance or not depends on the evidence submitted to the court, and in a broad way it may be stated that bees are a nuisance when the plaintiff can claim damages for injury either for himself or his business.
WHERE BEES MAY BE KEPT
This has been very clearly decided by the courts. In case of Olmsted vs. Rich, before the Supreme Court of New York, the evidence showed that the plaintiff and defendant were neighbors, the latter keeping a large number of hives of bees in a lot immediately adjoining the plaintiff’s dwelling, and at certain seasons they were a source of great annoyance to him and his family, and also that they could be removed without material difficulty to a place on the defendant’s premises where they would not disturb the neighbors. The action was in the nature of an injunction to prevent defendants from maintaining their apiary at the place above named. The court held that the case was a proper one for a permanent injunction. In such action the issue was not as to defendant’s motive in keeping bees, nor whether he had any knowledge of any vicious propensities of the bees, but simply whether the condition of things as then and previously existing constituted a nuisance. The court held affirmatively, and the bees were ordered removed in order to abate the nuisance.
NOTE: In helping beekeepers in other states it is pointed out that the key to note here is that – ‘the bees could be removed without material difficulty to a place on the defendant’s premises where they would not disturb the neighbors.’ Consequently, we have suggested beekeepers relocate their bees to neutral sites on their property, out of sight where possible, behind non-see through fences, at least 6 ft high and with water supplied, within a few feet . This normally alleviates the problem, i.e. out-of-sight, therefore, out-of-mind. It also has let the courts know that the beekeeper is doing all he can to not make an incidence happen. This has resulted in favorable calls for beekeepers.
WHEN NOT A NUISANCE
The most celebrated case of this kind on record is that of Clark vs. City of Arkadelphia. Arkansas (52 Ark. 23). The evidence in this case showed that Clark, who had kept bees in that city for a number of years, was not in political harmony with those in power, and the latter sought to punish him and get rid of his presence by prohibiting the keeping of bees within the corporate limits of the city. Clark was ordered to move his bees, but refused to do so, and his arrest and conviction by the city court under the ordinance followed. He appealed to the Circuit Court, the latter dismissing the prosecution, and the State appealed to the Supreme Court wherein it is held that, “Although bees may become a nuisance in a city, an ordinance which makes the owning, keeping, or raising of them within the city limits a nuisance, whether it is in fact so or not, is too broad and is not valid.”
BEES MAY BE KEPT IN CITIES
In April, 1901, the council of the city of Rochester, N.Y., passed an ordinance prohibiting the keeping of bees within the city limits. W. R. Taunton, who refused to remove his apiary, was arrested and brought before a police court. The judge set aside the ordinance and the defendant was discharged. The latter was defended by the counsel of the National Beekeepers’ Association.
In the Butchers’ Union Co. vs. Cresent City Co. (111 U.S. 746), Justice Fields says: “The common business and callings of life, the ordinary trades and pursuits, which are innocent in themselves, and have been followed in all communities from time immemorial, must therefore, be free in this country to all alike on equal terms. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege which they claim as their birthright.” In the same case Judge Gradley says: ” I hold that the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of the United states, of which he can not be deprived without invading this right to liberty within the meaning of the constitution.” It may be well to state in this connection that the National Beekeepers’ Association frequently undertakes to defend its members in a court of law where the circumstances warrant the assistance of this influential body.
CONCERNING SEARCH WARRANTS
In the April 1987 issue of the American Bee Journal, page 245-246, a federal appeals court has overturned an Ohio law that lets state inspectors examine beekeepers’ hives without search warrants.
In a 2-1 decision, a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled that the Ohio Department of Agriculture’s beehive inspection program is unconstitutional.
State agriculture officials argued that they need warrantless searches to maintain the element of surprise in inspections that single out diseased hives that could infect and destroy other bee populations.
State law allows the inspections without prior notice, without a warrant and outside the presence of the owners. The inspectors may burn hives and bee populations that are determined by laboratory tests to be diseased. Beekeepers are allowed five days to appeal such findings by the state before the hives are burned.
The appeals court’s ruling sends the case back to U.S. District Court for further consideration. For its ruling, the appeals court consolidated two separate cases filed by beekeepers William and Caroline Allinder, of Gibsonburg, and Elmer and Marilyn Steiner, of Van Buren. They maintain beehives in Sandusky, Seneca, Wood, Putnam and Hardin counties.
The beekeepers contended that the warrantless searches violated the fourth amendment protection against unreasonable searches.
A majority of the three-judge panel rules that the warrantless searches allow the inspectors too much discretion. The majority noted that because of the degree of technical knowledge needed to make inspections, inspectors are often competitors of those they inspect and may sometimes have the responsibility to inspect their own apiaries.
The program is administered by the state apiarist, four deputy apiarists and part-time county inspectors funded by the counties.
There are no published rules and regulations for the inspection program, according to the appeals court. The inspectors are provided a training manual which outlines the program’s goals and guidelines.
The Ohio Department of Agriculture had no comment on the ruling. A spokeswoman said the department was unaware of the decision.
MAINTAINING BEES AS A NUISANCE & KEEPING BEES WITHOUT A PERMIT
Chicopee Health Department vs. Henry Parzychowski, and Chicopee Health Department vs. Joseph Mozdzanoski. FINDING, RULING AND ORDER FOR JUDGEMENT: These two cases are similar in that each defendant is alleged to be maintaining a nuisance on premises controlled by him by the keeping of bees thereon without a permit in violation of General Laws Chapter 111, Section 122.
The defendant Mozdzanoski lives at 85 Nichols Road, Chicopee, Massachusetts and maintains hives for bees at those premises. He was ordered to remove the beehives within seven days by an order dated May 22, 1986. The order was based on a regulation adopted at a meeting of the Board of Health held May 14, 1986 (Com. Ex. #2) and published in the Chicopee Herald May 22, 1986.
The defendant has continued to maintain the hives on his property.
The defendant Parzychowski lives at 63 Chester Street, Chicopee, Massachusetts and maintains hives for bees at those premises. He was ordered to remove the beehives within seven days by an order dated June 10, 1986, based on the same regulation adopted May 14, 1986.
General Laws Chapter 111, Section 31 authorizes Boards of Health to adopt “reasonable health regulations.”
General Laws Chapter 111, Section 122 authorizes the Board of Health to “make regulations for the public health and safety” relative “to nuisances, sources of filth and causes of sickness – - which may be injurious to the public health.”
Considering the validity of the ordinance, paragraph 3 is an attempt to exercise the power granted to the Board of Aldermen respecting the regulation and control of agriculture through zoning ordinances – General Laws Chapter 40A, Section 3.
The procedural safeguards required in adopting and amending zoning ordinances are not to be by-passed through public health regulations without compelling pubic necessity. As to paragraph #3 of the health regulation respecting bee keeping, I conclude in this form and with the background of the adoption of this regulation exceeds the power of the Board of Health to regulate an agricultural use in so broad a manner.
Paragraph #1 requires a permit.
I conclude there had been no determination by the Board of Health of the City of Chiopee that beekeeping is a pubic nuisance in the areas mentioned or a public nuisance per se in any area in the City. The requirement that all beekeepers must apply and obtain a permit is again overly broad.
I am unable to find any public nuisance in either case.
Paragraph #2 of the ordinance designates certain areas wherein beekeeping is forbidden, under any circumstances. Generally speaking beekeeping has been considered a useful and productive aspect of agriculture generally in the two articles mainly dealing with the subject. These appear in 39 A.L.R. 352 and in 88 A.L.R. 3rd 992.
Paragraph #3 proceeds on the assumption that beekeeping is a public nuisance in the areas designated. Nothing in the record of the proceeding of the Board of Health substantiates that assumption. I conclude paragraph #3 is overly broad and again an exercise of power better left with the Board of Aldermen under the zoning enabling act.
In each case I find the defendant not guilty. So entered. December 29, 1986, Edward C. Peck Jr., Presiding Justice.