HomeMy WebLinkAboutOrd 2542 - Trespass Warnings on City Property (TMC Chapter 8.23)AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, ADOPTING A NEW CHAPTER OF
THE TUKWILA MUNICIPAL CODE RELATED TO TRESPASS
WARNINGS ON CITY PROPERTY, TO BE CODIFIED AS
TUKWILA MUNICIPAL CODE CHAPTER 8.23; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City recognizes that members of the public have legitimate
interests and rights regarding the use and enjoyment of City owned or operated
property, as well as certain rights protected by the United States Constitution and the
Washington State Constitution and laws, including, but not limited to, the right to petition
the government, the right to assembly, and the right to access sources of information-,
and
WHEREAS, there is a demonstrated need for the City to adopt a legally sound
process for being able to exclude from City property individuals whose behavior is
dangerous, unsafe, illegal, or unreasonably disruptive to other users; and
WHEREAS, the City desires to provide a specific method for the issuance of
trespass warnings to such individuals, including placing limitations on trespass warnings
and providing procedures for such individuals to promptly appeal the issuance of
trespass warnings-, and
WHEREAS, this ordinance is enacted as an exercise of the City's authority to
protect and preserve the public health, safety and welfare, while recognizing the rights
of individuals to engage in legitimate activities that may occur on City property-,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Chapter 8.23 of the Tukwila Municipal Code Established. A chapter
of the Tukwila Municipal Code entitled "Trespass Warnings on City Property," to be
codified as Tukwila Municipal Code (TMC) Chapter 8.23, is hereby established to read
as follows:
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CHAPTER 8.23
TRESPASS WARNINGS ON CITY PROPERTY
Sections:
8.23.010 Purpose, Authority, and Applicability
8.23.020 Definitions
8.23.030 Trespass Warnings on City Property
Section 2. Regulations Established. TIVIC Section 8.23.010, "Purpose, Authority,
and Applicability," is hereby established to read as follows:
8.23.010 Purpose, Authority, and Applicability
A. The purpose of this chapter is to adopt a legally sound process for being able to
exclude from City owned or operated property individuals whose behavior is dangerous,
unsafe, illegal, or unreasonably disruptive to other users. It is further the purpose of this
chapter to provide for a specific method to allow for the issuance of trespass warnings
to such individuals, including placing limitations on trespass warnings and providing
procedures for such individuals to promptly appeal the issuance of trespass warnings in
order to protect their right to engage in legitimate activities protected by the state and
federal constitutions.
B. This chapter is enacted as an exercise of the City's authority to protect and
preserve the public health, safety and welfare.
C. This chapter shall apply to all City property in the City of Tukwila, which for the
purposes of this chapter shall include, but not be limited to: City buildings and other
facilities, outdoor areas, parks, unimproved property, open spaces, property that is
under lease to or otherwise operated and/or controlled by the City, and property that
City owns in common with another property owner. This chapter shall not apply to
public streets and sidewalks. Enforcement action shall only be taken for conduct
violating rules adopted by the City for the location in which the conduct occurs, including
any location covered by rules of conduct incorporated into any relevant City rule.
Provided, that officers of the Tukwila Police Department may take enforcement action
consistent with TIVIC Section 8.23.030A, based on violations of other City codes, state
statutes, and government rules or regulations.
Section 3. Regulations Established. TIVIC Section 8.23.020, "Definitions," is
hereby established to read as follows:
8.23.020 Definitions
A. Behavior that is "dangerous" is behavior that creates an imminent and
unreasonable risk of injury or harm to either persons or property of another or the actor.
B. Behavior that is "illegal" is behavior that is prohibited by the laws of the United
States, Washington State, King County, or the City of Tukwila and that includes, but is
not limited to, any of the following types of behavior:
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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; or
5. Sexual misconduct or harassment (e.g., indecent exposure, offensive
touching, sexual acts).
C. Behavior that is "unreasonably disruptive to other users" is behavior that is not
constitutionally protected and that, in consideration of the nature, scope, use and
purpose of the property in question, unreasonably interferes with others' use and
enjoyment of said property. Examples of behavior that may unreasonably interfere with
others' use and enjoyment of City property include, but are not limited to, 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
City property; or
5. Behavior that is unreasonably inconsistent with the use for which the City
property was designed and intended to be used (e.g., bathing, shaving, or washing
clothes in a public bathroom or skateboarding in a public parking area or plaza).
D. Any constitutionally protected action or speech is excluded from the prohibited
behavior listed in this section.
Section 4. Regulations Established. TIVIC Section 8.23.030, "Trespass
Warnings on City Property," is hereby established to read as follows:
8.23.030 Trespass Warnings on City Property
A. Officers of the Tukwila Police Department shall be empowered to issue a
trespass warning to any individual who the officer has probable cause to believe has
violated any City ordinance, state statute, or government rule or regulation relating to or
prohibiting conduct that is dangerous, illegal, or unreasonably disruptive to other users
of City property, as defined in TIVIC Section 8.23.020, while such individual is on or
within any City property, as more specifically set forth in TIVIC Section 8.23.010.C.
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B. Trespass warnings may be delivered in person to the offender or by first class
mail to the offender at the offender's last known address.
C. The offender need not be charged, tried, or convicted of any crime or infraction
in order for the trespass warning to be issued or be effective. The warning may be
based upon observation by a police officer or a City or other government employee or
may be based upon a civilian report that would ordinarily be relied upon by police
officers in the determination of probable cause.
D. If the offender:
1. Has not been excluded from City property by a trespass warning issued
within one year prior to the violation, then the warning may exclude the offender for a
period not exceeding 7 days from the date of the warning.
2. Has been the subject of only one prior trespass warning issued within one
year prior to the current violation, then the warning may exclude the offender for a
period of more than 7 days but not more than 90 days from the date of the current
warning.
3. Has been the subject of two or more prior trespass warnings issued within
one year prior to the current violation, then the warning may exclude the offender for a
period of more than 90 days but not more than one year from the date of the current
warning.
4. Has been excluded from City property by a trespass warning, and a
published rule or regulation applicable to such property establishes a different period of
time for an offender to be excluded, the time period under such rule or regulation shall
apply notwithstanding the provisions of TIVIC Section 8.23.030.D., subsections 1, 2 or 3.
E. The trespass warning shall be in writing, shall contain the date of issuance,
shall describe the behavior that is the basis for the trespass warning, shall specify the
length and place(s) of exclusion, shall be signed by the issuing police officer, and shall
state the consequences for failure to comply. A trespass warning for a place or places
shall not prohibit access to another place or places that is unrelated to or not a part of
the place where the conduct that is the subject of the trespass warning occurred.
F. Administrative Appeal.
1. A person receiving a trespass warning for an expulsion of 7 days, or
longer, may file an appeal to have the trespass warning rescinded or the duration of the
expulsion shortened.
2. The appeal must be in writing, provide the appellant's current address, and
shall be accompanied by a copy of the trespass warning that is being appealed.
3. The written notice of appeal must be sent to the City Administrator and
postmarked no later than 7 calendar days after the issuance of the trespass warning.
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4. The trespass warning shall remain in effect during the pendency of any
administrative or judicial proceeding.
G. Hearing on Appeal.
1. The City Administrator or his or her designee (hereinafter "Hearing Official")
shall:
a. Notify the appellant of the hearing date, time, and location;
b. Conduct a hearing within 30 calendar days of receipt of the notice of
appeal; and
c. Issue a ruling upholding, rescinding, or shortening the duration of the
expulsion set forth in the trespass warning no later than 5 business days after the
hearing.
2. The Hearing Official may consider a sworn report or a declaration under
penalty of perjury as authorized by RCW 9A.72.085, written by the officer who issued
the trespass warning or by the person upon whose observation the trespass warning
was based, without further evidentiary foundation, as prima facie evidence that the
offender committed the violation as described. This evidence creates a rebuttable
presumption that the violation occurred and the burden thereafter rests with the
appellant to overcome the presumption. Such sworn reports or declarations may be
considered either in addition to or in lieu of the live testimony of the officer who issued
the trespass warning or by the person upon whose observation the trespass warning
was based.
3. The Hearing Official shall consider the trespass warning and may consider
any written or oral sworn testimony of the appellant or witnesses, as well as pictorial or
demonstrative evidence offered by the appellant that the Hearing Official considers
relevant and trustworthy. The Hearing Official may consider information that would not
be admissible under the evidence rules in a court of law.
4. The Hearing Official may issue subpoenas for the attendance of witnesses
and the production of documents, and shall administer individual oaths to witnesses.
The Hearing Official shall not issue a subpoena for the attendance of a witness at the
request of the appellant unless the request is accompanied by the fee required by RCW
5.56.010 for a witness in district court. The appellant shall be responsible for serving
any subpoena issued at the appellant's request.
5. If, after the hearing, the Hearing Official is persuaded on a "more probable
than not" basis that the violation did occur, the trespass warning shall be upheld. For
good cause, or upon a satisfactory showing by appellant that he or she understands his
or her violation and will not repeat the violation, the Hearing Official may shorten the
duration of the expulsion set forth in the trespass warning. If, however, the violation is
not proved on a "more probable than not" basis, then the Hearing Official shall rescind
the expulsion. If the Hearing Official rescinds a trespass warning, the trespass warning
shall not be considered a prior expulsion for purposes of this this chapter. For purposes
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of this section, "good cause" to rescind, shorten or modify a trespass warning shall be
found where:
a. The alleged offender demonstrates to the satisfaction of the Hearing
Official or his/her designee that his or her conduct was intended to be expressive
conduct protected by the First Amendment; or
b. The offender was not given prior warning that the conduct in question
was subject to a trespass warning; or
c. The trespass warning was based solely upon the statement of a third
party, was not observed personally by the issuing officer or a city or other government
employee, would not ordinarily be relied upon by police officers in the determination of
probable cause, and the alleged offender claims that he or she did not commit the
action for which he or she was warned; or
d. In the judgment of the Hearing Official, the circumstances warrant a
modification or rescission of the trespass warning. The Hearing Official shall rescind the
trespass warning if, considering all the circumstances, he or she finds that reasonable
minds could differ on the question of whether the conduct in question was unreasonably
disruptive to others on the same City property at that time.
6. The decision of the Hearing Official is final.
7. No determination of facts made by the Hearing Official under this section
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.
8. In no event will the Hearing Official be a person who is subordinate to the
person who issued the trespass warning.
H. If the Hearing Official rescinds an exclusion, for good cause or because the
violation was not proved, the exclusion shall not be considered a prior trespass warning
for purposes of TIVIC Section 8.23.030.D.
I. The trespass warning shall remain in effect during the pendency of any
administrative or judicial proceeding.
J. No determination of facts made by the Hearing Official 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.
K. This section shall be enforced so as to emphasize voluntary compliance with
laws and City property rules and so that inadvertent minor violations that would fall
under TIVIC Section 8.23.030 can be corrected without resort to a trespass warning.
L. Any person, who is found on city or other publicly owned property in violation of
a trespass warning issued in accordance with this chapter for a period longer than 7
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days and who accordingly has had the right to a hearing regarding the trespass warning
may be arrested for trespassing and is guilty of a misdemeanor, which shall be
punishable by a fine of up to $1,000 and/or imprisonment for a term not to exceed 90
days.
M. The Chief of Police or his/her designee may upon request authorize an
individual who has received a trespass warning in accordance with this chapter to enter
City property to exercise his or her 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 specify the duration
of the authorization and any conditions thereof.
N. The decision of the Hearing Official will be the City's final decision.
Section 5. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section/subsection numbering.
Section 6. Severability. If any section, subsection, paragraph, sentence, clause
or phrase of this ordinance or its application to any person or situation should be held to
be invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 7. Effective Date. This ordinance or a summary thereof shall be published
in the official newspaper of the City, and shall take effect and be in full force five days
after passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of 2017.
ATTEST /AUTHENTICATED:
Christy O'FlatiWirty, MM6, City Cie
APPROVED AS TO FORM BY:
�..�,�... � � -vim
Rachel B. Turpin, City Attorney
Filed with the City Clerk: I ) - I,-) - I'
Passed by the City Council:
Published:
Effective Date: -,),!a _J
Ordinance Number: S 14 )
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City of Tukwila Public Notice of Ordinance Adoption for Ordinances 2542 -2543.
On July 17, 2017 the City Council of the City of Tukwila, Washington, adopted the
following ordinance, the main points of which are summarized by title as follows:
Ordinance 2542: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, ADOPTING A NEW CHAPTER OF THE TUKWILA
MUNICIPAL CODE RELATED TO TRESPASS WARNINGS ON CITY PROPERTY, TO
BE CODIFIED AS TUKWILA MUNICIPAL CODE CHAPTER 8.23; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
Ordinance 2543: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, ADOPTING A 6 -MONTH MORATORIUM WITHIN
THE TUKWILA INTERNATIONAL BOULEVARD STUDY AREA IN THE CITY OF
TUKWILA ON THE DEVELOPMENT OF CERTAIN USES SUCH AS HOTELS,
MOTELS, EXTENDED -STAY FACILITIES, OR AUTO - ORIENTED USES;
SETTING A DATE FOR A PUBLIC HEARING ON THE MORATORIUM;
PROVIDING FOR SEVERABILITY; DECLARING AN EMERGENCY AND
ESTABLISHING AN EFFECTIVE DATE.
The full text of this ordinance will be provided upon request.
Christy O'Flaherty, MMC, City Clerk
Published Seattle Times: July 20, 2017