Q:I can't believe I am raising this issue, but ... fully realizing the frustrations of homeowners who have neighbors' dogs relieving themselves on their property and the dog owners not picking it up, can a HOA board mandate that ALL dog owners buy a "DNA kit" so that the poop can be scientifically traced back to the "offending" dog?
What about dogs that are fenced in and never walked on the common property?
Our new HOA president brought this up at our last board meeting.
– G.R., via email
A:I guess we could say: no scat, Sherlock. It may sound like something out of a modern-day George Orwell novel, but the technology exists and is being used by some community associations to track down errant canine desecraters of common ground.
"Doggie DNA" has the ability to transform boards into crime-solving poop police. Imagine — "CSI: Del Boca Vista, Unit II," or maybe a special series of Maury entitled "You Are the Pooper!"
Some kidding aside, owners who do not show proper poop-disposal etiquette create nuisances. People who certainly would not litter their neighbor's yard with garbage sometimes do not pick up after their pets, especially when no one is looking. And if no one is actually looking, it can be difficult to track down the offending owner.
I know this is a major point of contention in associations because I have been writing "curb your dog" letters for many years. When I first started practicing law, I tried really hard to find dignified and lawyerly ways to describe the subject of my letters. I gave up and resigned myself to being the Wicked Witch of the West. "I'll get you and your little dog, too."
Here's how I understand the DNA testing process: Companies sell DNA kits. The cost of such a kit is typically between $30 and $50. Using the kit, an animal's mouth is swabbed, and then the sample is sent to a lab. There, the sample is entered into a genetic database. Verboten poop can then be collected and a sample sent to the lab. (Gross) The lab then tests the sample against the database, and — voila! — the Poop Police have busted an errant pet owner.
Having the technology to do this is one thing. How to actually utilize that technology is another matter. Do the governing documents or rules authorize the association to charge owners for this?
Who is going to be in charge of the unpleasant task of dealing with the collection and testing process? Can an owner defend the seemingly irrefutable DNA evidence by admitting that although he or she owns the dog in question, that the evidence was planted or the sample "contaminated?"
"Yes, that may match the DNA of Heyzeus, my Chihuahua, but he never leaves his yard, and he certainly did not poop on the pool deck. My Heyzeus has been set up."
So, I am not a cheerleader for going this route. If someone regularly flaunts the rules of the association as well as of common decency, they are going to get caught red-handed eventually, and the association has other, less-extreme methods for dealing with chronic rule violators, and, by that, I do not mean setting up 24-hour surveillance on the residents. I do understand, though, that as with red-light cameras, this technology does serve the purpose as a deterrent. Big brother actually is watching.
If your association does want to pursue DNA testing as a remedy, the board needs to make sure it has the proper authority to do it and to either incur or charge the owners for it.
What's next? DNA testing owners to find out who has been peeing in the pool? Yet another sanitary hazard, eh?
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
