Chapter 9.46
RIGHT-OF-WAY USE RULES INCLUDING STREETS AND SIDEWALKS

Sections:

9.46.010    Purpose.

9.46.020    Definitions.

9.46.030    Rules of conduct.

9.46.040    Administrative regulations.

9.46.050    Variance.

9.46.060    Interpretation.

9.46.070    Enforcement – Violations.

9.46.010 Purpose.

A. The city council determines it appropriate to set reasonable time, place and manner restrictions, which are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication, and which are content and viewpoint neutral, for use of streets, sidewalks, alleyways and other public places in order to accommodate and balance a variety of public interests, including protected speech and expression.

B. The city council recognizes the value of expressive activities including speech and music to a vibrant and diverse outdoor life, particularly for the downtown area. These rules are not intended to prohibit such expressive activities and in no way seek to regulate content of expression or the viewpoint of the speaker or presenter. Rather, the rules are intended to allow free speech and expressive activities subject to reasonable time, place and manner restrictions, so that a variety of public interests including free speech activities are accommodated.

C. In addition to accommodating expressive activity, these rules and regulations are designed and intended to accommodate these important public interests: (1) maintaining the use of sidewalks for reasonably unimpeded, safe and efficient travel and transportation, and incidental authorized uses (for example, sidewalk vending, and sidewalk cafes), and other public purposes (events, parade, etc.), and maintaining streets for pedestrian and vehicular traffic; (2) maintaining the use of sidewalks and streets for safe, efficient and reasonably unimpeded travel and transportation by persons who are infirm, elderly or disabled and to accommodate transportation assistance devices such as wheelchairs, walkers, and crutches; (3) protecting the city’s investment in infrastructure designed to promote tourism; (4) respecting the rights of owners and occupants of adjoining properties to light, air, access and view; (5) assisting cleaning and maintenance of the right-of-way; (6) providing for safe and prompt access to utilities and related equipment located in or under rights-of-way; (7) preserving the safety and aesthetic appearance of public places as inviting areas for pedestrians; and (8) providing an opportunity for a diversity of activities, views, or opinions. Limits, including the limits in this chapter, assist in ensuring that public space is freely available to all, including others who may wish to exercise free speech rights. These limits are especially important in the civic district given its unique public aspect in the city.

D. Over the years, the city has engaged in planning efforts and capital projects. Recent projects include investment in the downtown streetscape and Taylor Street improvements which are in part designed to make the area safe and inviting for pedestrians, encourage downtown business activity and encourage tourism. Setting reasonable time, place and manner restrictions on protected speech and expression helps protect this investment in infrastructure and preserve the use of sidewalks for reasonably unimpeded, safe and efficient pedestrian traffic, including for tourists, while at the same time accommodating protected speech.

E. Over the last couple of years, a number of citizens have complained that certain free speech use of the sidewalks in the downtown area is so extensive and intrusive that it interferes with access to Pope Marine Park or has the effect of obstructing substantial portions of the sidewalk. One person in particular displays large and intrusive whiteboards with various messages. These displays run for at least 80 to 100 feet on the sidewalk and substantially interfere with free, open and safe travel by pedestrians and others with disabilities and those using strollers or other accessories. The complaints (with one or two exceptions) do not object to the content of these messages. The complaints have been both written and verbal. Last fall, out of concern that this type of use could create a safety issue if it occurred during the Wooden Boat Festival and the Arts and Crafts Fair, the council adopted temporary regulations prohibiting placing any obstruction on the sidewalk (free speech, vending cart or otherwise) in the “event zone” (area in the immediate vicinity of the festivals).

F. Without reasonable limits, such activities effectively and unreasonably take over substantial portions of sidewalks and substantially interfere with pedestrian use. Such activities can create safety issues for the public, particularly during major tourist events such as the Wooden Boat Festival and the Arts and Crafts Fair which can draw tens of thousands of people to a small area of the city at any one time.

G. Having rules in place serves the important function of providing clear standards for what activities can take place and under what conditions so that users may know in advance of any activity that is allowed.

H. These rules provide the opportunity to anyone to obtain an administrative interpretation of these rules if a user is unclear of the standards and requirements and wishes to obtain an interpretation in advance of engaging in any conduct.

I. These rules also provide an opportunity to seek a variance from the application of the rules if the user believes their application causes unnecessary hardship or interference with a person’s ability to communicate protected speech.

J. These rules build on and supplement – but do not replace – other rules and regulations that allow specified activity in public areas. For example, certain commercial activities on sidewalks, such as sidewalk cafes and vending machines, are subject to the requirements of a street use permit (Chapter 12.10 PTMC). Special events occurring within public rights-of-way are subject to the requirements of a special event permit (Chapter 17.60 PTMC). Assemblies occurring within public rights-of-way are subject to the requirements of assembly regulations (Chapter 9.24 PTMC). Sales on streets and sidewalks are subject to Chapter 5.32 PTMC. Activities in public or private areas are also subject to the city’s noise ordinance (Chapter 9.09 PTMC). Activities in public or private areas can constitute public nuisances under the city’s nuisance code (Chapters 9.08 and 9.10 PTMC). Activities can be subject to traffic and criminal codes, for example, RCW 9A.84.030(1)(c), which makes intentional obstruction of vehicular or pedestrian traffic without lawful authority a misdemeanor.

K. These rules are also necessary to ensure that persons with disabilities have safe and unimpeded access to public streets and sidewalks and to comply with state and federal disabilities laws. As proposed by the Architectural and Transportation Barriers Compliance Board (“Access Board”), a continuous clear width of pedestrian access routes (exclusive of the width of the curb) must be four feet minimum to accommodate persons with disabilities. (Proposed “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way,” published in the Federal Register on July 26, 2011, 36 CFR Part 1190, Docket No. ATBCB 2011-04.)

L. These rules define the legislative balance of placing reasonable limits on protected speech but allowing ample opportunity for persons to engage in protected speech.

M. These rules are designed to protect the public health, safety, welfare and economic prosperity of the city of Port Townsend.

N. Nothing contained in this chapter is intended to be, or shall be, construed to create a duty to enforce this chapter or to form the basis for liability on the part of the city of Port Townsend or its officers, employees, or agents, for any injury or damage resulting from the failure of any person to comply with this chapter. No provision of this chapter is intended to impose any duty upon the city or any of its officers or employees, which would subject them to damage in a civil action. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.020 Definitions.

A. “Busking” means to play music or otherwise perform for voluntary donations on a public space (for example, right-of-way, sidewalk, or park).

B. “Protected speech” means verbal or written communications intended to convey a noncommercial political, religious, philosophical or other similar message to the public, and includes distributing literature, seeking petition signatures, picketing, demonstrating, carrying or displaying signs, billboards, posters and similar messaging, artistic performance, or other activities recognized by the courts as entitled to protection under federal or Washington constitutions.

C. “Public space” means any part of the city of Port Townsend that is not privately owned and that is controlled, managed or operated by the city and available for use by the public, such as (but without limitation) streets, sidewalks, alleyways, rights-of-way, parks, city buildings or properties.

D. “Use” means the exercise of dominion or control over or occupation of all or part of a public space. It includes construction, storing, erecting, placing upon, maintaining, or operating any inanimate thing or object in, upon, over, or under any public space. “Use” includes the placement of a table, equipment, placard, display or other similar object. “Use” does not include the placement of an inanimate object in such a location and for such a limited duration of time that, under the circumstances, no reasonable persons could conclude that the public’s right to use or enjoy the public space, in whole or in part, had been or potentially could have been interfered with. For example, a person temporarily setting a purse or other item on the sidewalk is not “using” the sidewalk as defined in this section. “Use” includes busking if the busker places objects on the public space (for example, guitar case) and leaves it there in a manner that meets the definition of “use” above.

“Use” does not include a person who, without placing things on the sidewalk, is leafleting, signature gathering, busking, or carrying stick-mounted signs. The person is still subject to the general rules of conduct in PTMC 9.46.030(A), but the person is not limited by the area limitations in PTMC 9.46.030(B). (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.030 Rules of conduct.

The following rules of conduct apply to any person using (as “use” is defined in PTMC 9.46.020(D)) the public rights-of-way and public spaces including streets and sidewalks for protected speech activity, and permission is allowed subject to these rules. They apply to any person, including those engaged in any of the following activities: leafleting and signature gathering, busking, carrying stick-mounted signs, and using tables, signs, posters, billboard or similar messaging, or other structures for free speech activity.

A. General Rules. This section applies to all persons who engage in protected speech activity on the public rights-of-way and public spaces including streets and sidewalks.

1. No person shall treat any person in an aggressive, menacing, threatening or abusive manner that would place a reasonable person in fear for their property or personal safety.

2. Leafleting and signature gathering, busking, carrying stick-mounted signs, using tables, signs or other structures for free speech activity, and similar free speech activities shall be done in a manner that does not substantially or unduly block the free and unimpeded use of the sidewalk or streets for pedestrian or vehicular traffic, including those with disabilities, or access to building entrances, or that poses a safety hazard.

3. A person wishing to carry signs must ensure that the sign meets the following requirements:

a. No sign may be larger than four square feet, and not be wider than 30 inches.

b. A sign may be attached to a stake which is no more than eight feet in length.

c. Signs may only be constructed of lightweight materials such as cloth, paper, cardboard or plastic (but not including metal).

4. No person shall make use of a loudspeaker or megaphone or other electronic sound-amplification device, or lighting device, without prior approval.

5. The person engaged in the activity is responsible for any injuries and/or damages to persons or property from the activity. The city shall have no liability for the activity.

B. Area Limitations. This section applies to all persons using (as “use” is defined in PTMC 9.46.020(D)) the public rights-of-way and public spaces, including streets and sidewalks, for protected speech activity. As defined in PTMC 9.46.020(D)), “use” includes the placing of objects on the sidewalk in connection with protected speech activity. “Use” does not include, and these area limitations do not apply to, persons who, without placing things on the sidewalk, are leafleting, signature gathering, busking, or carrying stick-mounted signs. Such activity is not restricted as to location (except by the general rules in subsection A of this section).

1. A person wishing to occupy or use (as “use” is defined in PTMC 9.46.020(D)) the sidewalk or other right-of-way for protected speech activity (including busking) must comply with all of the following:

a. Allow a continuous clear width of pedestrian access routes (exclusive of the width of the curb) of five feet minimum to accommodate pedestrian travel and in particular persons with disabilities. To the extent possible, the five-foot “clear space” shall be located in the middle area of the sidewalk, so as to avoid having pedestrians having to weave through structures.

b. At any intersection, not occupy or use any area on the sidewalk or other public area within the following defined area:

i. For any intersection with two marked crosswalks (or other clear markings showing the area for pedestrians to cross), the area that is within an extension of the two lines of perpendicular sidewalks that represent the outer side of the crosswalks (or other clear markings showing the area for pedestrians to cross). The outer side is the one furthest from the intersection.

ii. For an intersection with only one marked crosswalk, then the area that is within (A) an extension of a line that represents the outer side of the crosswalk, and (B) the perpendicular right-of-way line. The outer side is the one furthest from the intersection.

iii. For an intersection with no marked crosswalks, the area that is within an extension of the perpendicular right-of-way lines.

Provided, if there is a bench located within this defined area, nothing prevents a person from using the bench and area within three feet in front of the bench for protected speech activity so long as the rules in subsection (B)(1)(f) of this section are met.

The following illustration provides examples:

c. Within the following described areas of the civic district, the following rules apply (these rules overlap):

i. Pope Marine Park – stairs: No use shall occur (no obstructions should be placed) in the area within 10 feet of the top of the stairs or on the stairs.

ii. Pope Marine Park – Madison side of park and corner of Madison and Water Streets (and delineated by the stairs to the park and the concrete wall extending along the back side of the sidewalk on Madison Street and in a circular manner around the corner to where it ends close to Pope Marine Building): No use should occur (no obstructions should be placed) within 10 feet of the stairs or this edge.

iii. Pope Marine Building, City Dock, Wave Viewing Gallery: No use shall occur (no obstructions should be placed) on these structures or within 10 feet of their entrance(s).

iv. No use shall interfere with or block a fire lane.

d. Not occupy or use any area of the sidewalk within 30 inches of a parking area. The 30 inches provides an area to allow persons to enter or exit a vehicle.

e. Not occupy or use any area that physically obstructs or impedes the free passage of a person seeking to enter or depart from a park or public space or private building.

f. Not occupy or use any area that physically obstructs or that interferes with use of a public amenity (for example, a public bench). Placing structures in a manner that constitutes “use” under PTMC 9.46.020 within five feet of the sides or back of a public bench and within 20 feet of the front of a public bench is prohibited, provided, nothing prevents a person carrying a sign from sitting on a bench, and nothing prevents a person who is busking from sitting on a bench, including placing something to collect donations directly in front of the person. Such use shall not have the effect of taking over a bench so others cannot enjoy it. This rule takes precedence over any prohibition on uses at intersections.

g. Maximum sign area is eight square feet per sign face; maximum width of a sign or structure is 30 inches; maximum height of any sign is four feet.

h. Structures may not be placed any closer than 12 inches from any tree grate or other planting.

i. Not occupy or use an area within 10 feet of any public art, except within 20 feet of the Salish Sea Circle (corner of Madison and Water Streets). Examples of public art include the Salish Sea Circle (corner of Madison and Water Streets) and Haller Fountain (Taylor and Washington Streets).

j. Not occupy or use a space larger than four feet wide by six feet long, and no structure may exceed five feet in height. The area is a contiguous area. A person may not use, for example, a portion of the allowed area in one spot and use the balance of the allotted area in another spot outside the four-foot by six-foot area, and move back and forth between the spots.

The area limitation is “per person,” meaning, for example, that two individuals playing music together (and placing structures like guitar cases on the sidewalk) may each occupy an area of four feet by six feet. In other words, a group of musicians is not prevented by the four-foot-by-six-foot area limitation from playing together as a group.

k. To the extent the foregoing rules in subsections (B)(1)(a) through (j) of this section may conflict in specific circumstances, the more restrictive rule shall apply.

2. If any structure or material is located on the sidewalk (for example, table, self-standing sign, placards, displays, boxes, supplies), it must be located in conjunction with related protected speech activities, and is only allowed so long as the structure or material is attended (and not left unattended). For purposes of this section, “attended” means the person who places the structure or material remains next to the structure(s) or material(s); provided, nothing prevents the person from leaving the area for up to five minutes every 60 minutes. “Next to” means being no further than 10 feet from any structure or material.

3. Except as provided in this chapter, no one shall attach, lean or place any sign or structure on or against any city property or other government agency’s property, or private property, without the written permission of the owner of the property. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.040 Administrative regulations.

A. The chief of police may adopt administrative regulations that are consistent with and that further or implement the terms and requirements set forth in these rules or the ordinance to which the rules are related. This authority is in recognition that not all situations that constitute substantial and unreasonable interference with pedestrian or vehicular traffic or that constitute a safety hazard can be anticipated or covered by an ordinance or set of rules, and there may be situations where the chief of police needs to act administratively before the city council can act.

Before adopting an administrative regulation, the administrative regulations shall be reviewed with the mayor (or in the mayor’s absence, the deputy mayor), city manager and city attorney.

B. Administrative regulations shall be posted on the city’s website, and kept on file with the chief of police and the city clerk, and shall be available on request by a member of the public for inspection or copying. On adoption, the administrative regulations shall be immediately forwarded to the city council. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.050 Variance.

A. Any person may apply in writing to the chief of police for a variance from the requirements of this chapter and these rules, or any administrative regulations, or event or temporary use permit conditions. The person making the request shall include his or her name, address, and other contact information, provide information reasonably related to the request showing a basis for variance or departure from the requirements and, if the variance relates to free speech or expressive activity, why the speech or expressive activities that are restricted by this chapter or otherwise are not reasonable or sufficient to enable the person to communicate the person’s message. The chief of police may attach conditions to any variance that are consistent with the purposes of this chapter and these rules. The chief of police (or designee) shall provide a written response to the request for variance as soon as possible, and no later than one business day following the request.

B. Any applicant for a variance may appeal the decision of the chief of police by filing a written request to the city manager within five business days of the date of the police chief’s written decision. The city manager shall issue a decision within five business days of the request. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.060 Interpretation.

A. Any person may apply in writing to the chief of police for an interpretation of the requirements of these rules or the ordinance to which the rules are related, including, to interpret the scope, intent or meaning of any provision of the ordinance or rules, or any administrative regulations, or event or temporary use permit conditions. The chief (or designee) shall provide a written response to the request for interpretation as soon as possible, and no later than one business day.

B. Any applicant for an interpretation of the requirements of these rules or the ordinance to which the rules are related may appeal the decision of the chief of police by filing a written request to the city manager within five business days of the date of the police chief’s written decision. The city manager shall issue a decision within five business days of the request. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).

9.46.070 Enforcement – Violations.

A. All persons must comply with written or oral instructions issued by the chief of police or a police officer to enforce these rules or the ordinance to which the rules are related, or any administrative regulations, or event or temporary use permit conditions adopted pursuant to this chapter.

B. Before enforcing this chapter or these rules, or any administrative regulations, or event or temporary use permit conditions, police officer(s) shall give a verbal warning informing the violator of this chapter and these rules, including any administrative regulations adopted by the chief of police (or designee), and an opportunity to cease the activity. If the violator continues the activity after this warning, the police may proceed with enforcement.

C. Violation of this chapter or these rules, or an administrative regulation issued by the chief of police (or designee), or the terms of any variance, or the terms of any event or temporary use permit conditions, shall constitute a civil infraction, and the chief of police or city police officer may issue a notice of civil infraction pursuant to Chapter 7.80 RCW. Civil infractions are not crimes. The provisions of Chapter 7.80 RCW, including any amendments thereto, are adopted by reference in this chapter and rules as if set forth in full. “Enforcement officer” as set forth in Chapter 7.80 RCW is the chief of police (or designee) or police officer of the police department.

The civil infraction penalty is $100.00 per violation.

D. A person who has been issued a notice of civil infraction for a violation of this chapter or these rules, or an administrative regulation issued by the chief of police, or the terms of any variance, and who willfully and knowingly continues or engages in additional conduct prohibited by this chapter or these rules, or an administrative regulation issued by the chief of police, or the terms of any variance after having been issued a notice of civil infraction for a violation of this chapter or these rules, or an administrative regulation issued by the chief of police, or the terms of any variance, or fails to comply with a directive to cease the activity, is guilty of a misdemeanor, and may be cited and/or arrested in connection with the offense.

E. Unattended structures, materials or obstructions may be picked up and removed without notice by the city. Except in an emergency, the police shall make a reasonable effort to notify the person responsible for the unattended structures, materials or obstructions of attendance requirements (including breaks as provided above) and to advise the person that unattended structures, materials or obstructions are not permitted and are subject to removal. “Reasonable notice” may be leaving a written notice on the structures, materials or obstructions of the requirements of city code. Attended structures, materials or obstructions may be picked up and removed after notice by the city to the violator of the violation and the violator, after being given an opportunity to cease the activity, fails to do so. Items picked up shall be freely available to return to the owner; provided, that the owner is responsible for and shall pay all costs of city removal before being allowed to retrieve the items. The cost of removal shall include, but it is not limited to, city employee (officer) time, at the employee’s (or officer’s) hourly salary plus benefits, transportation costs, storage fees and costs, interest and attorneys’ fees and costs; provided, for a first offense, the total cost shall not exceed $100.00. The city shall not be liable for any loss or damage to structures, materials or obstructions picked up, removed and stored by the city pursuant to these rules and this chapter. (Ord. 3107 § 1 (Exh. A), 2014; Ord. 3091 § 1 (Exh. A), 2014).