Chapter 9.45
TRESPASS WARNINGS FOR PUBLIC SAFETY
Sections:
9.45.010 Purpose, authority, and applicability.
9.45.020 Covered behavior and activity – Definitions.
9.45.030 Pre-issuance notice – Authority to issue trespass warnings – Service.
9.45.040 Duration of exclusion – Location of exclusion.
9.45.050 Content of trespass warning.
9.45.010 Purpose, authority, and applicability.
A. This chapter adopts a legally sound policy and process for excluding from city property individuals whose behavior is dangerous, unsafe, illegal, or unreasonably disruptive to other users. It provides a specific method for the issuance of trespass warnings, including placing limitations on trespass warnings and providing procedures for prompt appeals to protect individuals’ rights to engage in legitimate activities in accordance with the U.S. and Washington State Constitutions.
B. This chapter is enacted as an exercise of the city’s authority to protect and preserve the public health, safety, and welfare, and to further the city of Sequim’s policy of providing a safe workplace for its employees.
C. This policy applies to all property owned or leased by the city in whole or in part except for public streets and sidewalks. Enforcement action will only be taken for conduct violating rules adopted for the location in which the conduct occurs, except that officers of the city police department may take enforcement action based on violations of other city codes, state statutes, and government rules or regulations.
D. This chapter will be enforced to emphasize voluntary compliance with laws and city (or other governmental entity) property rules and so that inadvertent minor violations can be corrected without resort to a trespass warning.
E. The city manager is authorized to adopt rules and procedures consistent with this chapter. (Ord. 2022-016 § 1 (Exh. A))
9.45.020 Covered behavior and activity – Definitions.
A. The trespass warning available under this chapter is intended to cover non-constitutionally protected behavior and activity that is dangerous, unsafe, illegal, or unreasonably disruptive to other users of the city property or to city employees.
B. Behavior that is “dangerous” or “unsafe” is behavior that creates an imminent and unreasonable risk of injury or harm to either persons or property of another or the actor.
C. Behavior that is “illegal” is behavior that is prohibited by the laws of the United States, Washington State, Clallam County, or the city of Sequim and that includes without limitation any of the following types of behavior:
1. Threatening another person by communicating either directly or indirectly to another person the intent to cause bodily injury in the future to the person threatened or to any other person; or
2. Selling or using alcohol or drugs; or
3. Threatening or harassing behavior (e.g., fighting or threatening to fight, brandishing a weapon, stalking, verbally threatening to harm others or their property); or
4. Assaulting staff or other patrons;
5. Harassing or intimidating city staff; or
6. Sexual misconduct or harassment (e.g., indecent exposure, offensive touching, sexual acts).
D. Behavior that is “unreasonably disruptive to other users” is behavior that is not constitutionally protected or protected under the Americans with Disabilities Act (ADA) and that, in consideration of the nature, scope, use, and purpose of the city property in question, unreasonably interferes with others’ use and enjoyment of that property. Examples of behavior that may unreasonably interfere with others’ use and enjoyment of city property include without limitation any of the following:
1. Use of unreasonably hostile or aggressive language or gestures; or
2. Unreasonably loud vocal expression or unreasonably boisterous physical behavior; or
3. Using electronic or other communication devices in a manner that is unreasonably disruptive to others; or
4. Unreasonably interfering with the free passage of staff or patrons in or on public property; or
5. Behavior that is unreasonably inconsistent with the normal use for which the publicly owned property was designed and intended to be used.
E. Any constitutionally protected action or speech, or any activity that is protected under the ADA, is excluded from the prohibited behavior and activities listed in this section. Under no circumstances may this chapter be used as a method for excluding any particular group or person engaged in otherwise lawful behavior, including without limitation homeless individuals, juveniles, or religious solicitors.
F. “City property” means any part of a building, park, trail, or open space that is owned, leased, or controlled in whole or in part by the city of Sequim.
G. An individual who is excluded from city property pursuant to a trespass warning issued in accordance with this chapter is considered to be “trespassed.”
H. “Pre-issuance notice” is the verbal or written notification to the individual that their behavior, if continued, will make them subject to a civil trespass warning. (Ord. 2022-016 § 1 (Exh. A))
9.45.030 Pre-issuance notice – Authority to issue trespass warnings – Service.
A. To further the city’s intent to encourage voluntary compliance, a pre-issuance notice should be provided to an individual to inform them that their behavior, if continued, may result in issuance of a trespass warning. This notice can be verbal or written, and provided by any city employee. If a pre-issuance notice is given, it should be referenced in any future trespass warning by way of a brief description of the circumstances including date, time, and location. The lack of a pre-issuance notice does not preclude issuance of a trespass warning. However, it may be taken under consideration in the city manager’s decision on review (see SMC 9.45.060).
B. Only sworn officers of the Sequim police department are authorized to issue a formal trespass warning, and must do so only if they have probable cause to believe the individual has violated this chapter.
C. The trespass warning may be based upon any evidence sufficient for a typical determination of probable cause, including without limitation direct observation by the police officer, statements from other city employees, or reports from complainants or witnesses.
D. The individual need not be charged with or convicted of any crime or infraction for the trespass warning to be issued or for it to be effective.
E. Service of a trespass warning may be accomplished by the officer personally delivering the warning to the individual, or by the officer causing the warning to be mailed to the individual’s last known address by first class mail. A written proof of service describing the method of service must be completed and kept on file with the trespass warning. (Ord. 2022-016 § 1 (Exh. A))
9.45.040 Duration of exclusion – Location of exclusion.
Exclusion duration and location(s) will be determined as follows:
A. If the individual has not been excluded from city property by a trespass warning issued within the 12 months preceding the violation, then the warning may exclude the individual for a period not exceeding seven calendar days from the date of the warning.
B. If the individual has been the subject of one prior trespass warning issued within the 12 months preceding the current violation, then the warning may exclude the individual for a period of eight to 90 calendar days from the date of the current warning.
C. If the individual has been the subject of two or more prior trespass warnings issued within the 12 months preceding the current violation, then the warning may exclude the individual for a period of more than 90 calendar days but not more than one year from the date of the current warning.
D. If a published rule or regulation applicable to the property from which the individual is trespassed establishes a different period of time for exclusion, the time period under such rule or regulation will apply.
E. Location. A trespass warning for a certain place or places must not prohibit access to another place or places that are unrelated to or not a part of the place where the conduct that is the subject of the trespass warning occurred. (Ord. 2022-016 § 1 (Exh. A))
9.45.050 Content of trespass warning.
The trespass warning must be in writing, and contain all of the following elements:
A. The date of issuance and the date and time the exclusion takes effect;
B. A description of the behavior that is the basis for the trespass warning;
C. A description of any pre-issuance notice that was given;
D. The specific location(s) the individual will be excluded from;
E. The duration of the exclusion, including dates and times;
F. The consequences for failure to comply with the trespass warning;
G. The process for requesting review of the trespass warning; and
H. The signature of the issuing police officer and an “approved as to form” signature of the city attorney. (Ord. 2022-016 § 1 (Exh. A))
9.45.060 Review procedure.
A. For good cause, and upon receipt of a timely submitted written request for review from the trespassed individual, the city manager or designee may review the trespass warning and elect to rescind, shorten, or modify it.
1. The written request for review must be delivered to the city clerk no later than seven business days after the trespass warning was served upon the individual, and as soon as possible after issuance if the trespassed individual intends to challenge the initial exclusion while it is in effect;
2. The request for review must include a copy of the trespass warning and the individual’s written testimony and argument for why the exclusion should not apply;
3. If the trespass warning excluded the individual for seven or fewer days, the review must occur within one business day of the city’s receipt of the request. If the trespass warning excluded the individual for more than seven days, the review must occur within two business days of the city’s receipt of the request;
4. The decision upon review must be communicated to the trespassed individual no later than two business days following the review. The communication may be verbal initially, but must be followed up with a written decision no more than five business days after the date the review occurred;
5. Both the verbal and the written communication of the decision must include the information that the individual has the right to seek judicial review of the decision, and that the deadline for seeking judicial review will begin to run from the date the individual was served the written decision.
B. For purposes of this section, “good cause” to rescind, shorten, or modify a trespass warning will be found where:
1. The individual demonstrates by a preponderance of the evidence that their conduct was intended to be expressive conduct protected by the First Amendment; or
2. The individual was not given pre-issuance notice that the conduct in question was subject to a trespass warning; or
3. The trespass warning was based solely upon the statement of a third party, was not observed personally by the issuing officer or any city employee or captured by any city audiovisual recordings, would not ordinarily be relied upon by police officers in the determination of probable cause, and the individual claims they did not commit the action for which they were trespassed; or
4. In the judgment of the city manager or designee the circumstances warrant a modification or rescission of the trespass warning. The city manager or designee will rescind the trespass warning if, considering all the circumstances, they find that reasonable minds could differ on whether the conduct in question was unreasonably disruptive to others on the same public property at that time.
C. The city manager/designee must utilize a preponderance of the evidence test in making their decision upon review. They can consider a sworn report or declaration from the officer who issued the trespass warning or upon whose observation the trespass warning was based, without further evidentiary foundation, as prima facie evidence that the individual committed the violation as described. The city manager or designee may consider information that would not be admissible under the evidence rules in a court of law but that the city manager or designee considers relevant and trustworthy. If the warning was issued because of the alleged violation of any criminal law, the individual need not be charged, tried, or convicted for that alleged violation for the warning to be upheld.
D. If the city manager or designee rescinds a trespass warning for good cause or because the violation was not proven, that warning will not be considered a prior trespass warning under SMC 9.45.040.
E. The decision upon review of the city manager or designee will be the city’s final decision. The trespassed individual may seek judicial review of the city’s final decision by filing a complaint in the appropriate court within the time period allowed by the relevant laws and rules.
F. The trespass warning will remain in effect during the pendency of the review procedure described in this section and during any resultant judicial proceeding, unless otherwise ordered by a court.
G. No determination of facts made by the city manager or designee will have any collateral estoppel effect on a subsequent criminal prosecution or civil proceeding and will not preclude litigation of those same facts in a subsequent criminal prosecution or civil proceeding. (Ord. 2022-016 § 1 (Exh. A))
9.45.070 Violation – Penalty.
Any person who is found on city property in violation of a trespass warning issued in accordance with this chapter may be arrested for criminal trespass, except as otherwise provided in this section. The penalty upon conviction will be in accordance with the penalty for trespass offenses under state law. (Ord. 2022-016 § 1 (Exh. A))
9.45.080 Exception.
The chief of police or designee may, upon request of a trespassed individual, authorize the individual to enter city property to exercise their First Amendment rights or to conduct government business if there is no other reasonable alternative location to exercise such rights or conduct such business. Such authorization must be in writing and issued no later than 48 hours after receipt of the individual’s request. The authorization must specify the duration of the individual’s permission to enter the premises and any other conditions placed on the visit. The conditions may include that a law enforcement officer be present during the individual’s contact with city staff or officials. (Ord. 2022-016 § 1 (Exh. A))