Section 9.05.290 Exclusion from parks.

9.05.290 Exclusion from parks.

(1) This section shall be enforced so as to emphasize voluntary compliance with laws and park rules, and so that inadvertent minor violations that otherwise would fall under subsection (3)(a) of this section can be corrected without resort to an exclusion notice.

(2) Exclusion. In addition to any other penalty authorized under this chapter, any employee authorized by the director or any law enforcement officer may exclude, by delivering an exclusion notice in person or by certified mail to the individual, from a park(s), any person who, while in any park:

(a) Violates any provisions within this chapter;

(b) Violates any park rule that has been adopted by the parks and recreation advisory commission and is posted at the park; or

The individual need not be charged, tried, or convicted of any crime or infraction in order for an exclusion notice to be issued or effective. The exclusion may be based upon observation by the director or the director’s designee, or upon the sort of civilian reports that would ordinarily be relied upon by police officers in the determination of probable cause.

(3) Length of Exclusion. An exclusion issued under the provisions of this section:

(a) Shall be no greater than seven (7) days if the individual has not been excluded from any park within one (1) year prior to the violation.

(b) Shall be no greater than thirty (30) days if the individual has been excluded from any park only one (1) time within one (1) year prior to the violation.

(c) Shall be no greater than one (1) year if the individual has been excluded from any park more than one (1) time within one (1) year prior to the violation.

(4) Exclusion Notice. The exclusion notice shall be in writing and shall contain the date of issuance. The exclusion notice shall specify the length and places of exclusion. The exclusion notice shall be signed by the issuing individual. The exclusion notice shall be delivered to the excluded individual in person or sent by certified mail to the excluded individual’s last known address. Warning of the consequences for failure to comply shall be prominently displayed on the notice.

(5) The director, after an appeal, may rescind or shorten an exclusion notice of seven (7) days. The hearing examiner, after a hearing, may rescind or shorten an exclusion notice of more than seven (7) days.

(6) Appeal.

(a) An individual receiving an exclusion notice of seven (7) days may petition the director to have the exclusion notice rescinded or the period of exclusion shortened. The petition for an appeal must be delivered to the director or postmarked no later than twenty-four (24) hours after the issuance date of the exclusion notice. The petition must be in writing, must state the reasons that justify rescission or shortening of the exclusion period, and must be accompanied by a copy of the exclusion notice on which the appeal is sought. The decision shall occur within one (1) day after the director receives the petition.

(b) If the violation is proved, the exclusion notice shall be upheld; but upon good cause shown, the director may shorten the duration of the exclusion. If the violation is not proved by a preponderance of the evidence, the director shall rescind the exclusion. If the director rescinds the exclusion, the exclusion shall not be considered a prior exclusion for purposes of this chapter.

(c) An excluded individual seeking judicial review of the director’s decision must file an application for a writ of review with the Clark County superior court within fourteen (14) days of the date of the director’s decision.

(7) Hearing.

(a) An individual receiving an exclusion notice longer than seven (7) days may petition the hearing examiner to have the exclusion notice rescinded or the period of exclusion shortened. The petition for a hearing must be delivered to the hearing examiner or postmarked no later than seven (7) days after the issuance date of the exclusion notice. The petition must be in writing, must state the reasons that justify rescission or shortening of the exclusion period, and must be accompanied by a copy of the exclusion notice on which the hearing is sought. The hearing should occur within seven (7) days after the hearing examiner receives the petition. The hearing examiner shall take reasonable steps to notify the petitioner of the date, time, and place of the hearing.

(b) The hearing examiner may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses. The hearing examiner shall not issue a subpoena for the attendance of a witness at the request of the petitioner unless the request is accompanied by the fee required by RCW 5.56.010 for a witness in district court. The petitioner shall be responsible for serving any subpoena issued at the petitioner’s request.

(c) At the hearing, the violation must be proved by a preponderance of the evidence in order to uphold the exclusion notice. If the exclusion notice was issued because of the alleged violation of any criminal law, the petitioner need not be charged, tried, or convicted for the exclusion notice to be upheld. The exclusion notice establishes a prima facie case that the excluded individual committed the violation as described. The hearing examiner shall consider a sworn report or a declaration under penalty of perjury as authorized by RCW 9A.72.085, written by the individual who issued the exclusion notice, without further evidentiary foundation. The certifications authorized in Rule 6.13 of the Criminal Rules for Courts of Limited Jurisdiction shall be considered without further evidentiary foundation. The hearing examiner may consider information that would not be admissible under the evidence rules in a court of law but which the hearing examiner considers relevant and trustworthy.

(d) If the violation is proved, the exclusion notice shall be upheld; but upon good cause shown, the hearing examiner may shorten the duration of the exclusion. If the violation is not proved by a preponderance of the evidence, the hearing examiner shall rescind the exclusion. If the hearing examiner rescinds an exclusion, the exclusion shall not be considered a prior exclusion for purposes of this chapter.

(e) The decision of the hearing examiner is final. An excluded individual seeking judicial review of the hearing examiner’s decision must file an application for a writ of review in the Clark County superior court within fourteen (14) days of the date of the hearing examiner’s decision.

(8) The exclusion shall remain in effect during the pendency of any administrative or judicial proceeding.

(9) No determination of facts made under this section by the director or the hearing examiner shall have any collateral estoppel effect on a subsequent criminal prosecution or civil proceeding and shall not preclude litigation of those same facts in a subsequent criminal prosecution or civil proceeding. (Sec. 3 of Ord. 2012-09-02)