Chapter 9.12
EXCLUSION FROM CITY PROPERTY FOR VIOLATORS OF LAW
Sections:
9.12.010 Exclusion from city property.
9.12.010 Exclusion from city property.
A. Exclusion. In addition to other remedies provided for violation of this code, a person in charge of the city property may exclude any person who violates an applicable provision of the law on a city property from the city property 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 Oregon or federal Constitution.
B. However, a person engaged in such constitutionally or otherwise lawfully protected activity who commits acts that are otherwise not protected shall be subject to exclusion. [Ord. 2015-04 § A, 2015].
9.12.020 Definitions.
The following terms as used in this section shall mean:
“Applicable provisions of law” includes any city ordinance, rule or regulation promulgated by the parks and recreation department, offense or traffic offense of the state of Oregon, and any law regarding controlled substances or alcoholic beverages. A person in violation of EPMC 9.04.220, Prohibited camping, shall not be subject to the provisions of this chapter.
“City property” means any property owned or managed by the city, including but not limited to parks, greenways, buildings, parking lots, bridges or other land or physical structures.
“Person in charge of city property” means the city administrator or designee, the city of Eagle Point police chief, public works director, or peace officer. [Ord. 2015-04 § B, 2015].
9.12.030 Length of exclusion.
Exclusions under this chapter shall be administered as follows:
A. If the person to be excluded has not previously been excluded from the city property, the exclusion shall be for 30 days.
B. If the person to be excluded has been excluded at any time from the city property within two years before the date of the present exclusion, the exclusion shall be for 90 days.
C. If the person to be excluded has been excluded from the city property on two or more occasions within two years before the date of the present exclusion, the exclusion shall be for 180 days and up to a year for repeat offenders.
D. A person shall only be excluded from the city property for which the person receives a notice of exclusion.
E. If the person to be excluded has previously been excluded from the different city property, the previous exclusion shall not be counted in determining the length of exclusion. [Ord. 2015-04 § C, 2015].
9.12.040 Exclusion warning.
Before issuing an exclusion under this chapter, a person in charge of the city property shall first give the person a warning and reasonable opportunity to desist from the violation. An exclusion shall not be issued if the person promptly complies and desists from the violation. 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 offenses under the following chapters of the Oregon Revised Statutes (ORS), or is an attempt, solicitation or conspiracy to commit any such offense as 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 the code:
1. EPMC 9.04.020 – Assault;
2. EPMC 9.04.030 – Menacing;
3. EPMC 9.04.040 – Recklessly endangering a person;
4. EPMC 9.04.050 – Disorderly conduct;
5. EPMC 9.04.060 – Public urination;
6. EPMC 9.04.070 – Harassment;
7. EPMC 9.04.080 – Carrying concealed weapon;
8. EPMC 9.04.090 – Unlawful possession of firearm;
9. EPMC 9.04.100 – Discharge of weapons;
10. EPMC 9.04.230 – Defacing streets or sidewalks;
11. EPMC 9.04.250 – Mischief;
12. EPMC 9.04.290, 9.04.300, 9.04.310, 9.04.320, 9.04.330 – Theft ordinances;
13. EPMC 9.04.340 – Inhaling toxic vapors;
14. EPMC 9.04.350 – Drinking in public;
15. EPMC 9.04.360 – Possession of controlled substance;
16. EPMC 9.04.265 – Eagle Point Covered Bridge #202 – Prohibited activities; or
E. Is conduct for which the person previously has been warned or excluded for committing on city property. [Ord. 2015-04 § D, 2015].
9.12.050 Notice of exclusion.
Written notice shall be given to any person excluded from a city property under this chapter. The notice shall specify the date, length and specific place of the exclusion, shall identify the provision of law the person has violated and shall contain a description of the offending conduct. The notice shall inform the excluded person of the right to an appeal, including the time limit and place of delivery. The notice shall be signed by the person in charge of the city property. Warnings of consequences for failure to comply shall be prominently displayed on the notice. A person that disobeys a notice of exclusion may be cited and/or arrested for the crime of trespass-premises under the code. [Ord. 2015-04 § E, 2015].
9.12.060 Penalty.
Violation of this exclusion ordinance is the crime of trespass-premises (ORS 164.245, Criminal trespass, a class B misdemeanor). The offense is criminal trespass, second degree and is associated with a fine if convicted. [Ord. 2015-04 § F, 2015].
9.12.070 Appeal.
A person receiving a notice of exclusion shall have the right to a hearing to have the exclusion rescinded or the period of exclusion reduced. All of the following apply to an appeal from the notice of exclusion:
A. The hearing request must be filed in writing to the municipal court within 21 days after the receipt of the notice of exclusion.
B. The hearing shall be conducted by the municipal court judge within 21 days of the receipt of a proper request filed pursuant to this section, excluding Saturdays, Sundays and holidays. The hearing may be rescheduled for good cause shown, but shall be scheduled no later than 15 additional business days from the rescheduled request.
C. If an appeal is timely filed, the period of 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 issuance of the municipal court’s decision. If the person is issued a subsequent notice of exclusion from the city property while a previous notice of exclusion is stayed pending appeal, 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.
D. The city shall have the burden of proving by preponderance of the evidence the validity of the exclusion.
E. If the municipal court finds by the preponderance of the evidence that each element necessary to issue the notice of exclusion has been proven, and the exclusion is otherwise in accordance with law, the municipal court shall uphold the exclusion. However, if the municipal court finds that the city has not met its burden of proof, or that the exclusion is otherwise unlawful, then the municipal court shall enter an order rescinding the exclusion. In the event that the municipal court finds that the city has met its burden of proof, but that the length of the exclusion is unreasonable under the circumstances, the municipal court may issue an order shortening the length of exclusion. The decision of the municipal court is final. [Ord. 2015-04 § G, 2015].