Chapter 8.85 CODE OF CONDUCT AND TRESPASS FROM COUNTY FACILITIES

The purpose of this chapter is to establish rules of conduct for county facilities that prohibit dangerous or unsafe behavior, illegal behavior, and behavior that is unreasonably disruptive to the use of county facilities by others.

It is further the purpose of this chapter to provide county staff and law enforcement officers with additional, legally sound tools for the enforcement of such rules, as an alternative to arrest and prosecution.

Enforcement may include issuing trespass warnings to persons who refuse to comply. It is the goal of this chapter to encourage education and voluntary compliance, to place limitations on the circumstances in which trespass warnings are issued, to create exceptions to issued trespass warnings, and to provide an appeals procedure for after the issuance of trespass warnings.

This chapter is enacted as an exercise of the county's authority to protect and preserve the public health, safety and welfare.

This chapter shall apply to facilities owned or controlled by the county.

(6)

Enforcement shall only be taken for conduct violating rules adopted pursuant to this chapter, or pursuant to violations of other statutes, ordinances, or regulations.

(7)

This chapter shall be enforced in a manner that emphasizes voluntary compliance with laws and county facility rules so that inadvertent minor violations of this chapter can be corrected without resort to a trespass warning. In addition, whenever possible and appropriate, law enforcement officers and county staff are encouraged to assist persons who violate the code of conduct by directing them to available community resources that may help to address any underlying cause of the violation, such as drug or alcohol dependency or mental health crises.

(8)

The county administrator is authorized to adopt rules and procedures consistent with this chapter.

(9)

Any constitutionally protected action or speech is excluded from the prohibited behavior regulated in this chapter.

(10)

This chapter shall not be used to remove people in attendance at open public meetings of the board of county commissioners, or people in attendance at public meetings of any other county board that is subject to the Open Public Meetings Act, Chapter 42.30 RCW.

(11)

Persons who are trespassed from a county facility, but wish to attend any open public meeting that is subject to the Open Public Meetings Act (Chapter 42.30 RCW), and that is held within a county facility, may do so pursuant to JCC § 8.85.050(1).

(12)

Dangerous or unsafe behavior, illegal behavior, and unreasonably disruptive behavior, as defined in JCC § 8.85.020, are prohibited within all county facilities.

(Ord. 2-19 § 1 (App. 1))

§ 8.85.020 Definitions.

"County"

means Jefferson County, Washington.

"County administrator"

means the person appointed county administrator by the county board of commissioners or the county administrator's designee.

"County facility"

means all or any part of a building, park, trail, or open space that is owned or controlled by the county, and includes but is not limited to the courthouse.

"Courthouse"

means the Jefferson County Courthouse and outdoor areas located at 1820 Jefferson Street, Port Townsend, Washington.

"Dangerous or unsafe behavior"

means behavior that creates an imminent and unreasonable risk of injury or harm to either persons or property of another or the person.

(6)

"Department director"

means the person or designee primarily responsible for a county facility from which an excluded person has been excluded pursuant to a trespass warning.

(7)

"Deputy"

means a Jefferson County deputy sheriff.

(8)

"Excluded person"

means a person excluded from a county facility pursuant to this chapter.

(9)

"Illegal behavior"

means behavior that is prohibited by the laws of the United States, Washington State, or applicable county or municipal codes.

(10)

"Law enforcement officer"

means law enforcement officer as defined in RCW 9.41.010(13), and specially commissioned Washington peace officer as defined in RCW 10.93.020(5), and qualified law enforcement officer as defined in 18 U.S.C. Section 928B(c), as they now exist or are hereafter amended.

(11)

"Open Public Meetings Act"

means Chapter 42.30 RCW.

(12)

"Or"

means or, in addition to and/or.

(13)

"Person" means an individual human being and does not have the meaning of "person" as that term is defined in RCW 1.16.080, as it now exists or hereafter is amended.

(14)

"Preponderance of evidence"

means that, when considering a proposition, based on all evidence, the proposition is more probably true than not.

(15)

"RCW"

means the Revised Code of Washington, as it now exists or may be amended in the future.

(16)

"Sheriff"

means the county sheriff or designee.

(17)

"Sheriff's civil office"

means the civil office of the sheriff, located on the third floor of the courthouse.

(18)

"Trespass warning"

means a trespass warning issued pursuant to JCC § 8.85.030.

(19)

"Unreasonably disruptive behavior"

is behavior that is not constitutionally protected and that, in consideration of the nature, scope, use and purpose of the publicly owned property in question, unreasonably interferes with others' use and enjoyment of publicly owned property. Examples of unreasonably disruptive behavior include, but are not limited to, any of the following:

Use of unreasonably hostile or aggressive language or gestures, unreasonably loud vocal expression or other unreasonably loud noise (such as music), or unreasonably boisterous physical behavior that disrupts or interferes with normal county operations;

Using electronic or other communication devices in a manner that is unreasonably disruptive to others;

Actual or simulated sexual intercourse or sexual conduct, or public nudity (except that a mother's breastfeeding of her baby does not under any circumstance constitute prohibited behavior);

§ 8.85.030 Authority to issue trespass warnings – Service.

Consuming, possessing, selling, or distributing alcoholic beverages, nonprescribed controlled substances, or illegal drugs;

(e)

Attempting to enter any staff-only area of a county facility, or entering a closed facility after hours, without permission;

(f)

Unreasonably interfering with the free passage of staff or patrons in or on public property; or

(g)

Behavior that is unreasonably inconsistent with the normal use for which the publicly owned property was designed and intended to be used (e.g., bathing, shaving, or washing clothes in a public bathroom or skating/skateboarding in a public parking area or plaza).

(Ord. 2-19 § 1 (App. 1))

Any law enforcement officer is authorized to issue a trespass warning to any person, excluding the person from any county facility (or facilities), when the law enforcement officer has probable cause to believe that:

The person has violated any statute, ordinance, regulation, or rule of conduct relating to or prohibiting dangerous or unsafe behavior, illegal behavior, or unreasonably disruptive behavior; and

Such conduct occurs or did occur while the person is at a county facility, or that such conduct is directed by the person toward a county facility.

JCC § 8.85.040 provides criteria for the length of the exclusion resulting from a trespass warning.

Trespass warnings may be delivered in person to the person, or by first class mail to the person at the person's last known address.

The person need not be charged, tried, or convicted of any crime or infraction for the trespass warning to be issued or be effective.

The trespass warning may be based upon observation by a law enforcement officer, a security officer employed by the county, or any other person that can be relied upon by law enforcement officers in the determination of probable cause.

(Ord. 2-19 § 1 (App. 1))

§ 8.85.040 Duration of exclusion.

When the trespass warning is issued due to illegal conduct that presents a danger to persons or property, or is issued due to dangerous or unsafe conduct, or is issued as a result of a violation of an existing trespass warning, then the warning may exclude the person for a period of up to one year.

When a trespass warning is issued due to any conduct other than that identified in subsection (1) of this section, then the duration of exclusion shall be as follows:

For the first trespass warning within a period of one year, a period not exceeding seven days.

For the second trespass warning within a period of one year, a period of more than seven days, but not more than 90 days.

For the third trespass warning within a period of one year, and for all subsequent trespass warnings, a period of more than 90 days, but not more than one year.

If a person has been excluded from a county facility pursuant to this chapter, and any law, court order, or regulation applicable to such property establishes a different period of time for the person to be excluded, the time period under such rule or regulation shall apply notwithstanding the provisions of this section.

(Ord. 2-19 § 1 (App. 1))

§ 8.85.050 Exceptions to exclusion.

Exceptions That Do Not Require Prior Approval.

Persons who are prohibited from a facility by a trespass warning may still go to that facility, without prior approval, for the following reasons:

To respond to a summons for jury service;

To attend court when subject to a summons, subpoena, or similar requirement to appear before a court; or

To attend any open public meeting that is subject to the Open Public Meetings Act (Chapter 42.56 RCW), and that is being held within a county facility.

An excluded person exercising an exception that does not require prior approval may not engage in any other business while at the facility without prior approval, and must depart immediately from the county facility upon the conclusion of their business or upon the conclusion of their participation in the open public meeting.

Exceptions Requiring Prior Approval.

Subject to the procedure outlined below, an excluded person may visit the county facility, only with prior approval, for the following purposes:

To utilize a public service provided by an office within the county facility, where the service is not available elsewhere in the county; or

To seek review of a trespass warning pursuant to the procedure in JCC § 8.85.070.

Upon request for such an exception, the department director for the facility from which the person was excluded may authorize an exception for the excluded person, allowing the person to enter the facility.

The department director shall issue a written decision on a request for entry onto public property by the recipient of a trespass warning during a period of exclusion no later than 48 hours after receipt of the request.

If the exception is authorized, the decision must specify the duration of the authorization, must specify any conditions thereof, and must explain the process outlined in subsection (2)(c) of this section.

If the exception is denied, the decision must contain an explanation for the denial, and refer the person to the appeal process in JCC § 8.85.070.

Once such authorization is received, but before entering the county facility, an excluded person must provide notice as follows:

For county facilities other than the courthouse, the excluded person must first notify the department director or designee for the facility from which the person was trespassed. Such notice must be made telephonically, at least two hours prior to the intended visit. This is to allow time for the department director or designee responsible for the facility to arrange for law enforcement or security personnel to be present during the visit.

For the courthouse, on entering the courthouse the excluded person must proceed immediately to the security station and contact the personnel on duty at the security station, who shall contact a deputy on duty.

Law enforcement or security personnel may, in their discretion, verify the validity of the excluded person's reason for business at the county facility, or escort that person during their time at the county facility.

§ 8.85.060 Content of trespass warning.

An excluded person may not engage in any non-business-related interactions at the county facility from which they are excluded, and must depart immediately from the county facility upon the conclusion of their business.

(Ord. 2-19 § 1 (App. 1))

The trespass warning shall:

Be in writing;

Contain the date of issuance;

Describe the behavior that is the basis for the trespass warning;

Identify any county facility or portion thereof to which the exclusion applies;

(e)

Specify the length of the exclusion;

(f)

Be signed by the issuing law enforcement officer;

(g)

State the consequences for failure to comply; and

(h)

Explain the exceptions to the exclusion, the procedure for utilizing those exceptions as described JCC § 8.85.050, and the appeal process as described in JCC § 8.85.070.

(Ord. 2-19 § 1 (App. 1))

§ 8.85.070 Appeal procedure.

For good cause, the county administrator may rescind, shorten or modify a trespass warning issued by a law enforcement officer as follows:

A written request for review must be delivered to the clerk of the board of county commissioners no later than seven business days after the trespass warning that is being contested, or after the denial of an exception under JCC § 8.85.050. Upon receipt of such request, the county administrator shall review the trespass warning in a manner that meets the following requirements:

During the review, the behavior resulting in the trespass warning must be proved by a preponderance of the evidence to uphold the trespass warning.

The county administrator shall consider a sworn report or declaration from the law enforcement 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 behavior occurred as described.

The county administrator may consider information that would not be admissible under the evidence rules in a court of law, but that the county administrator considers relevant and trustworthy.

(iv)

The county administrator may consider whether the excluded person was afforded reasonable warnings that their conduct might lead to a trespass warning, and reasonable opportunities to correct their conduct, and weigh these factors against the egregiousness of the conduct itself;

If the warning was issued because of the alleged violation of any criminal law, the person need not be charged, tried, or convicted for the warning to be upheld;

The review shall result in a written decision;

During the review, the county administrator shall determine how a written decision will be served on the person;

(e)

The written decision shall be sent or otherwise made available no later than two business days following the review;

(f)

At the end of every written decision, the county administrator must inform the person requesting review that they have the right to seek judicial review of the written decision and that the time frame for seeking judicial review runs from the date of service of the written decision.

For purposes of this section, "good cause" to rescind, shorten, or modify the trespass warning shall be found where the person receiving the trespass warning demonstrates by a preponderance of evidence that:

The conduct that led to the trespass warning was intended to be expressive conduct protected by the First Amendment;

The person was not given a warning prior to issuance of the trespass warning that the conduct in question was subject to a trespass warning;

The trespass warning was based solely upon the statement of a person who did not observe personally the conduct, would not ordinarily be relied upon by law enforcement officers in the determination of probable cause, and the person claims that he or she did not commit the action for which he or she was warned; or

In the judgment of the county administrator, the circumstances warrant a modification or rescission of the trespass warning or decision.

The county administrator shall rescind the trespass warning if, considering all the circumstances, the county administrator finds reasonable minds could differ on the question of whether the conduct in question was unreasonably disruptive to others on the same public property at that time.

If the county administrator rescinds an exclusion, for good cause or because the behavior was not proved, the exclusion shall not be considered a prior trespass warning for purposes of this section.

§ 8.85.090 Education and de-escalation.

The decision of the county administrator will be the county's final decision.

(6)

A person seeking judicial review of the county's final decision must file an application for a writ of review in the county district court within 15 days of receipt of the county's final decision.

(7)

The trespass warning shall remain in effect during the pendency of any review by the county administrator or the county district court.

(8)

No determination of facts made by the county administrator 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.

(Ord. 2-19 § 1 (App. 1))

§ 8.85.080 Violation – Penalty.

Any person who is found on a county facility in violation of a trespass warning issued in accordance with this chapter, except as otherwise provided in this chapter, may be arrested for trespassing, pursuant to RCW 9A.52.070, 9A.52.080, and any other applicable statutes. The penalty under this chapter is cumulative of any other penalties that may apply under state or local law.

(Ord. 2-19 § 1 (App. 1))

In the application of this chapter's provisions, county staff and law enforcement shall prioritize education, de-escalation, and voluntary compliance whenever reasonably possible. This may include explaining the rules, providing warnings of potential consequences for rule violations, and giving people who violate rules an opportunity to correct their behavior.

Whenever reasonably possible, the issuance of a trespass warning to a person should be used after other techniques and de-escalation attempts have proved ineffective.