Chapter 12.18
EXCLUSIONS AND CRIMINAL TRESPASS – PUBLIC PLACES
Sections:
12.18.010 Purpose.
12.18.020 Authority.
12.18.030 Definitions.
12.18.040 Exclusion period.
12.18.050 Warning – Conduct subject to exclusion.
12.18.060 Notice.
12.18.070 Appeal.
12.18.080 Application for waiver.
12.18.090 Violation – Criminal trespass.
12.18.010 Purpose.
The purpose of this chapter is to protect law-abiding citizens in their use of public parks and city parking lots, and to authorize the city to exclude persons violating applicable laws from specific public places where such conduct is violent or disruptive of activities, events, or the normal conduct of business. (Ord. 2008-22 § 1)
12.18.020 Authority.
In addition to other remedies provided for violation of this code, or of any of the laws of the state of Oregon, a code enforcement officer or peace officer may exclude any person who violates any applicable provision of law in any place subject to this chapter in accordance with the provisions of this section. Nothing in this section shall be construed to authorize the exclusion of any person lawfully exercising free speech rights or other rights protected by the state or federal constitutions. However, a person engaged in such protected activity who commits acts that are not protected, but that violate applicable provisions of law, shall be subject to exclusion as provided by this section. (Ord. 2008-22 § 1)
12.18.030 Definitions.
For purposes of this section, the following definitions apply:
A. “Applicable provision of law” includes any applicable provision of this code, of any city ordinance applying to use of public places, any applicable criminal or traffic law of the state of Oregon, any law regarding controlled substances or alcoholic beverages, and any applicable Lincoln County ordinance or regulation. For purposes of this section, “applicable” means relating to the person’s conduct in the public place.
B. “Public place” includes any city park, and any city parking lot, within Lincoln City. (Ord. 2008-22 § 1)
12.18.040 Exclusion period.
A. An exclusion issued under the provisions of this section shall be for 30 days. If the person to be excluded has been excluded from any public place at any time within two years before the date of the present exclusion, the exclusion shall be for 90 days. If the person to be excluded has been excluded from one or more public places on two or more occasions within two years before the date of the present exclusion, the exclusion shall be for 180 days.
B. If a person is issued a subsequent exclusion while a previous exclusion is stayed pending appeal (or pending judicial review, should a court stay the exclusion), the stayed exclusion shall be counted in determining the appropriate length of the subsequent exclusion. If the previous exclusion is set aside, the term of the subsequent exclusion shall be reduced, as if the previous exclusion had not been issued. If multiple exclusions issued to a single person for one public place are simultaneously stayed pending appeal, the effective periods of those which are affirmed shall run consecutively. (Ord. 2008-22 § 1)
12.18.050 Warning – Conduct subject to exclusion.
Before issuing an exclusion under this section, the officer shall first give the person a warning and a reasonable opportunity to desist from the violation of law. An exclusion shall not be issued if the person promptly complies with the direction and desists from the violation of law.
Notwithstanding the provisions of this section, no warning shall be required if the person is to be excluded for engaging in conduct that:
A. Is classified as a felony or as a misdemeanor under the following chapters of the Oregon Revised Statutes, or is an attempt, solicitation or conspiracy to commit any such felony or misdemeanor defined in the ORS:
1. ORS Chapter 162, Offenses Against the State and Public Justice;
2. ORS Chapter 163, Offenses Against Persons;
3. ORS Chapter 164, Offenses Against Property, except for ORS 164.805, Offensive Littering;
4. ORS Chapter 165, Offenses Involving Fraud or Deception;
5. ORS Chapter 166, Offenses Against Public Order; Firearms and Other Weapons; Racketeering;
6. ORS Chapter 167, Offenses Against Public Health, Decency and Animals;
7. ORS Chapter 475, Controlled Substances; Illegal Drug Cleanup; Paraphernalia; Precursors; or
B. Otherwise involves a controlled substance or alcoholic beverage; or
C. Has resulted in injury to any person or damage to any property; or
D. Constitutes a violation of any of the following provisions of this code:
1. Chapter 6.08 LCMC, Dogs;
2. LCMC 6.04.020, Dangerous animals;
3. LCMC 9.08.010, Loitering;
4. LCMC 9.08.020, Discharge of weapons;
5. LCMC 9.08.050, Overnight camping on public property;
6. LCMC 9.08.030, Urination or defecation in public places, except if the conduct involves only urination on a permeable surface (such as grass, dirt, mulch or other plant materials) in a park; or
E. Is conduct for which the person previously has been warned or excluded for committing in a public place. (Ord. 2008-22 § 1)
12.18.060 Notice.
Written notice shall be given to any person excluded from any public place. The notice shall identify the provision of law the person has violated, and shall contain a brief description of the offending conduct, the places of exclusion, and the start date and end date of the exclusion period. The notice shall be signed by the officer and shall prominently display a warning of the consequences for failure to comply. The notice shall inform the excluded person of the right to appeal, including the time limit and the place of delivering the appeal. (Ord. 2008-22 § 1)
12.18.070 Appeal.
A. A person receiving such notice of exclusion may appeal the notice to the city manager. An appeal shall be filed by providing a written request for hearing within five days of the date of the exclusion notice, unless the time is extended by the city manager for good cause shown.
B. The request for an appeal hearing must be in writing, contain a copy or description of the notice of exclusion, and a statement of the basis on which the decision to exclude is invalid, unauthorized, or otherwise improper.
C. Within 10 days of receiving a request for an appeal hearing, the city manager shall schedule a hearing on the appeal. Notice of the hearing time and date shall be given to the person requesting the hearing and to the person issuing the exclusion notice. The hearing shall be held within 21 days of the request for an appeal hearing.
D. At the hearing, the city manager may determine the matter without hearing upon the record. The appeal shall be conducted in accordance with applicable hearing procedures adopted by resolution. The city manager shall affirm the exclusion if the preponderance of evidence demonstrates that more likely than not the person in fact committed the violation, and provided the exclusion is otherwise in accordance with law. The city manager may also reverse or modify the exclusion notice appealed from.
E. If an appeal of the exclusion is timely filed under this section, the effectiveness of the exclusion shall be stayed, pending the outcome of the appeal. If the exclusion is affirmed, the remaining period of exclusion shall be effective immediately upon the issuance of the city manager’s decision, unless the city manager specifies a later effective date.
F. The determination of the city manager is a quasi-judicial decision and is not appealable to the city council. Appeals from any determination by the city manager under this section shall be by writ of review to the circuit court of Lincoln County, Oregon, as provided in ORS 34.010 through 34.100. (Ord. 2008-22 § 1)
12.18.080 Application for waiver.
At any time within the period of exclusion, a person receiving such notice of exclusion may apply in writing to the city manager for a waiver of some or all of the effects of the exclusion for good reason. If the city manager grants a waiver under this section, the city manager shall promptly notify the Lincoln City police chief and the parks director, as applicable, of such action. In exercising discretion under this section, the city manager shall consider the seriousness of the violation for which the person has been excluded, the particular need of the person to be in the public place during some or all of the period of exclusion, such as for work or to attend or participate in a particular event (without regard to the content of any speech associated with that event), and any other criterion the city manager determines to be relevant to the determination of whether or not to grant a waiver. Notwithstanding the granting of a waiver under this section, the period of waiver will be included for purposes of calculating the appropriate length of exclusion under LCMC 12.18.040. The decision of the city manager to grant or deny, in whole or in part, a waiver under this section is committed to the sole discretion of the city manager and is not subject to appeal or review. (Ord. 2008-22 § 1)
12.18.090 Violation – Criminal trespass.
No person shall enter or remain in any public place at any time during which there is in effect a notice of exclusion issued under this chapter excluding that person from that place. A person who knowingly violates a notice of exclusion from public places under this chapter commits the crime of criminal trespass. (Ord. 2008-22 § 1)