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HomeMy WebLinkAbout2993 Exclusions from Park Property ORDINANCE NO. d,q q ~ AN ORDINANCE RELATING TO EXCLUSIONS FROM PARK PROPERTY AND AMENDING AMC 10.68.350 Annotated to show deletions and additions to the code sections being modified. Deletions are bold ,. ~ U .L and additions are bold underlined. WHEREAS, Article 2. Section 1 of the Ashland City Charter provides: Powers of the Citv The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession. WHEREAS, the above referenced grant of power has been interpreted as affording all legislative powers home rule constitutional provisions reserved to Oregon Cities. Citv of Beaverton v. International Ass'n of Firefiohters, Local 1660. Beaverton Shop 20 Or. App. 293; 531 P 2d 730, 734 (1975); and WHEREAS, it is necessary to clarify and update park exclusion procedures to clarify appeals and address the exercise of First Amendment rights pursuant to Yeakle v. Citv of Portland, 322 F. Supp. 2d 1119 (2004). THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Section 10.38.350 [Violation - Penalty] is hereby amended to read as follows: 10.68.350 Violation Penalty Penalties A. Violation. Any person who violates any of the provisions of this chapter is guilty of a violation an infraction and shall be subject to the penalties set forth in Section 1.08.020. B. The park commission may also exclude any person who violates any provision of this chapter, or any such rule or regulation, from any city park, for a period of not more than ten (1Q) days. B. Exclusion. In addition to other remedies provided for violation of this Code. or of any of the laws of the State of Oreaon. any peace officer. or park official or city code compliance officer may exclude any person who violates any applicable provision of law in a city park from any or all citv parks for a period of 30 days for any violation or for a Page 1 of3 period not to exceed 120 days for criminal offenses. If the person to be excluded from any park has been excluded from a city park on two or more occasions within two vears before the date of the present exclusion for criminal offenses. the exclusion shall be for a period not to exceed 180 days. NothinQ in this Section shall be construed to authorize the exclusion of any person lawfully exercisinQ free speech riQhts or other riQhts protected by the state or federal constitutions. However. a person enQaQed in such protected activity who commits acts that are not protected. but that violate applicable provisions of law, shall be subiect to exclusion as provided by this Section. (1) For purposes of this section, "applicable provision of law" includes any applicable provision of this chapter. or of any city ordinance. includinQ state or city criminal laws and vehicle codes. or any rule. reQulation, order or permit issued by the Parks Commission. Parks Director or the city council on recommendation of the parks commission, or any other applicable federal or state law or reQulation. (2) Criminal Trespass. Section 10.68.350B is in addition to and not in lieu of any other ordinance or law. No person shall enter or remain in anv park at anv time durinQ which a notice of exclusion is effective under this section. EnterinQ a park in violation of an exclusion order constitutes criminal trespass in the second deQree. which is a class C misdemeanor. C. The ordinance codified in this chapter shall take effect ami be in full force upon the expiration of ten (10) days after its adoption by the Council and appro':al by the mayor. C. Exclusion Process. (1) Written notice shall be Qiven to any person excluded from any citv parkes). Such notice shall specify the dates and places of exclusion. It shall be siQned bv the issuinQ partv; warninQ of consequences for failure to comply shall be prominentlv displayed on the notice. (2) A person receivinQ such notice mav appeal in accordance with AMC 2.30 to have the written notice rescinded or the period shortened. The appeal notice shall specify the relief souQht and the reason for said relief. (3) The HearinQ Officer shall uphold the exclusion if. upon de novo review. the preponderance of the evidence convinces the HearinQ Officer that. more likely than not. the person in fact committed the crime or violation. and that the exclusion is Page 2 aD otherwise in accordance with law. If an appeal of the exclusion is timely filed under AMC 2.30. the effectiveness of the exclusion shall be stayed. pendinQ the outcome of the appeal. If the exclusion is affirmed. the exclusion shall be effective immediately upon issuance of the written decision and the shall commence and run for the specified number of days thereafter. SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 3. SavinQs. Notwithstanding this amendment/repeal, the City ordinances in existence at the time any criminal or civil enforcement actions were commenced, shall remain valid and in full force and effect for purposes of all cases filed or commenced during the times said ordinance(s) or portions thereof were operative. This section simply clarifies the existing situation that nothing in this Ordinance affects the validity of prosecutions commenced and continued under the laws in effect at the time the matters were originally filed. SECTION 4. Codification. Provisions of this Ordinance shall be incorporated in the City Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-Iettered, provided however that any Whereas clauses and boilerplate provisions (i.e. Sections 2-4) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by tit. Ie only in ~ Article X, Section 2(C) of the City Charter on the /;J, day of. , 2009, and duly ASSED and ADOPTED this ? day of' , 2009. /I{~ Barbara M. Christensen, City Recorder SIGNED and APPROVED this L day of t!)~~ 2009. $~ Page 3 of3