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HomeMy WebLinkAbout4349 OrdinanceORDINANCE NO.q3ql AN ORDINANCE of the City of Pasco, Washington, Creating Chapter 9.50 "Notice of Trespass for Public Property" WHEREAS, the City recognizes that members of the public have legitimate interests and rights regarding the use and enjoyment of City -owned property, as well as certain rights protected by the United States Constitution and the Washington State Constitution and laws, including, but not limited to, the right to petition the government, the right to assembly, and the right to access sources of information; and WHEREAS, the City of Pasco finds that there is a need for the City to adopt a legally sound process for excluding from City property any individual whose behavior is dangerous, unsafe, illegal, unreasonably disruptive to others or in any way endangers the public health, safety, and welfare; and WHEREAS, the City desires to provide a specific method for the issuance of notices of civil trespass to such individuals, including placing limitations on civil trespass notices and providing procedures for such individuals to promptly appeal the issuance of civil trespass notices; and WHEREAS, this Ordinance is enacted as an exercise of the City's authority to protect and preserve the public health, safety and welfare, while recognizing the rights of individuals to engage in legitimate activities that may occur on City -owned property; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. That a new Chapter 9.50 entitled "Notice of Trespass for Public Property" of the Pasco Municipal Code shall be and hereby is created and shall read as follows: Chapter 9.50 NOTICE OF TRESPASS FOR PUBLIC PROPERTY Sections: 9.50.010 Purpose. 9.50.020 Authorization to issue notice of civil trespass — City employees. 9.50.030 Authorization to issue notice of civil trespass — Law enforcement. 9.50.040 Right-of-way defined. 9.50.050 Limitations on trespass duration. 9.50.060 Service of notice — Content. 9.50.070 Violations — Penalty. 9.50.080 Protected First Amendment activity. Ordinance Creating 9.50 — Notice of Civil Trespass for Public Property - 1 9.50.090 City property closed to the public. 9.50.100 Appeal of notice of civil trespass. 9.50.110 Additional enforcement procedures. 9.50.120 Severability. 9.50.010 PURPOSE. The purpose of this chapter is to adopt a legally sound process for excluding from City property any individual whose behavior is dangerous, illegal, unsafe, or unreasonably disruptive to other users while recognizing the rights of individuals to engage in legitimate activities that may occur on City -owned property. This chapter is enacted as an exercise of the City's authority to protect and preserve the public health, safety and welfare. 9.50.020 AUTHORIZATION TO ISSUE NOTICE OF CIVIL TRESPASS — CITY EMPLOYEES. The City employees or officials, or their designees, having control over a City facility, building, or outdoor area, including municipal parks, are authorized to issue a notice of civil trespass to any individual who violates any City ordinance, rule or regulation, or Washington State law or lawful directive of a City employee or official, when such violation was committed while on or within a City facility, building, or outdoor area, including municipal parks (but excluding rights-of-way). Notice of civil trespass shall prohibit the violator from entering in or upon or accessing any portion of the specific property where the violation occurred during the term of the notice. 9.50.030 AUTHORIZATION TO ISSUE NOTICE OF CIVIL TRESPASS — LAW ENFORCEMENT. A law enforcement officer is authorized to issue a notice of civil trespass to any individual who violates any City ordinance, rule or regulation, or Washington State law or lawful directive of a City employee or official, when such violation was committed while on or within a City facility, building, or outdoor area, including municipal parks (but excluding rights- of-way). Notice of civil trespass shall prohibit the violator from entering in or upon or accessing any portion of the specific property where the violation occurred during the term of the notice. 9.50.040 RIGHT-OF-WAY DEFINED. For the purpose of this chapter, right-of- way shall include those sidewalks which are closest to a paved street; provided, that the street - side edge of the sidewalk is within 20 feet of the curb -line closest to the property. 9.50.050 LIMITATIONS ON TRESPASS DURATION. Notices of civil trespass shall be issued as follows: A) For the first violation under Section 9.50.030 or 9.50.040, the individual may be issued a notice of civil trespass for a period not to exceed six (6) months. Any failure to comply with said notice during this six (6) month term shall be penalized pursuant to Section 9.50.070. B) For a second or subsequent violation within twenty-four (24) months of the first notice of civil trespass, the individual may be issued a notice of civil trespass for a period not to exceed twenty-four (24) months. Any failure to comply with said notice during this twenty-four (24) month term shall be penalized pursuant to Section 9.50.070. Ordinance Creating 9.50 — Notice of Civil Trespass for Public Property - 2 9.50.060 SERVICE OF NOTICE — CONTENT. A copy of the civil trespass notice shall be provided by certified mail or hand delivery to the individual and to the City employee or official having control over the City park, facility, building or outdoor area. The written trespass notice shall advise of the right to appeal and the procedure for filing the appeal. 9.50.070 VIOLATIONS — PENALTY. Any person found on or within any City facility, building, or outdoor area, including municipal parks, in violation of a notice of civil trespass may be arrested for trespassing pursuant to PMC 9.54.020, except as otherwise provided in this chapter. 9.50.080 PROTECTED FIRST AMENDMENT ACTIVITY. The City employee or official having control over a City facility, building, or outdoor area, including municipal parks, may authorize an individual who has received a notice of civil trespass to enter the property or premises to exercise his or her First Amendment rights if there is no other reasonable alternative location to exercise such rights or to conduct necessary municipal business. Such authorization must be in writing, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied. 9.50.090 CITY PROPERTY CLOSED TO THE PUBLIC. This chapter shall not be construed to limit the authority of any City employee or official to issue a notice of civil trespass to any person for any lawful reason for any City property, including rights-of-way, when closed to general vehicular or pedestrian use. This chapter shall not be construed to limit the enforcement of Pasco Municipal Code 9.48.045 or 9.54.040. 9.50.100 APPEAL OF NOTICE OF CIVIL TRESPASS. A person to whom notice of civil trespass is issued under this chapter shall have the right to appeal as follows: A) An appeal of the notice of civil trespass must be filed, in writing, within ten (10) calendar days of the issuance of the warning, and shall include the appellant's name, address and phone number, if any. No fee shall be charged for filing the appeal. B) The appeal shall be filed with the City Clerk's office. C) Appeals shall be heard by the Pasco Hearing Examiner. D) Upon receipt of the appeal by the City Clerk, a hearing on the matter shall be scheduled with the Pasco Hearing Examiner in accordance with PMC 2.19. Notice of the hearing shall be provided to the appellant by U.S. first-class mail to the address listed in the written appeal. If no address is provided, notice shall be sufficient when left at the front desk of the Pasco police department no less than ten (10) calendar days prior to the scheduled hearing. E) Copies of documents in the City's control which are intended to be used at the hearing, and which directly relate to the issuance of the notice of civil trespass to the appellant, shall be made available upon request to the appellant at no cost. Ordinance Creating 9.50 — Notice of Civil Trespass for Public Property - 3 F) The appellant and the City shall have the right to attend with or without an attorney, the right to testify, to call witnesses, to cross-examine witnesses and to present evidence. All appeal hearings shall be recorded. The appellant shall have the right to bring a court reporter at his or her own expense, and/or to commission a transcription of the recording of the hearing at his or her own expense. G) The Hearing Examiner shall consider the testimony, reports or other documentary evidence, and any other evidence presented at the hearing. Formal rules of evidence shall not apply, but fundamental due process shall govern the proceedings. H) The City shall bear the burden of proof by a preponderance of the evidence that the notice of civil trespass was properly issued pursuant to the criteria of this section. I) If the appellant fails to attend a scheduled hearing, the Hearing Examiner shall dismiss the appeal and affirm the notice of civil trespass issued by the City. J) At the conclusion of the hearing, the Hearing Examiner shall consider all the evidence and render a decision. Within ten (10) business days of the hearing, the Hearing Examiner shall reduce the decision to writing, a copy of which shall be mailed certified and U.S. first-class mail to the appellant at the address provided. If no address is provided, a copy of the decision shall be posted at the front desk of the Pasco Police Department. K) The decision of the Hearing Examiner shall be final and the appellant shall be deemed to have exhausted all administrative remedies. An appeal of the Hearing Examiner's decision must be filed with Franklin County Superior Court no later than 5:00 p.m. on the fourteenth (14) day following the date the written decision is provided to the appellant either by mail or by posting as described herein. L) The notice of civil trespass shall remain in effect during the appeal and review process, including any judicial review. 9.50.110 ADDITIONAL ENFORCEMENT PROCEDURES. The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Pasco Municipal Code except as precluded by law. 9.50.120 CONSTRUCTION OF CHAPTER. Nothing in this chapter shall be construed to prohibit or penalize any activity consisting of the lawful exercise of freedom of speech, freedom of press and the right to peaceably assemble and petition the government for a redress of grievances, provided, that such activity neither does nor threatens imminently to materially disturb or interfere with or obstruct any lawful task, function, process or procedure of the owner, operator, or other person controlling the premises, or any lawful task, function, process or procedure of any official, employee or invitee of the owner, operator or controller of the premises; provided further, that such activity is not conducted in violation of a prohibition or limitation lawfully imposed by the owner, operator or controller of the premises upon entry or use of the premises. Ordinance Creating 9.50 — Notice of Civil Trespass for Public Property - 4 9.50.130 SEVERABILITY. If any one or more sections, subsections or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity to the remaining portions of this chapter and the same shall remain in full force and effect. Section 2. This Ordinance shall take full force and effect five (5) days after its approval, passage, and publication as required by law. PASSED by the City Council of the City of Pasco, Washington, and approved as provided by law this day of 12017. Matt Watkins, Mayor ATTEST: GY1 tI Sandy Ke t orthy, Interim City lerk Ordinance Creating 9.50 — Notice of Civil Trespass for Public Property - 5 APPROVED AS TO FORM: a . Kerr, City Attomey