In addition to other remedies provided for violation of this Code, or of any of the laws of the State of
, any Park Officer may exclude any person who violates any applicable provision of law in any Park from that Park in accordance with the provisions of this Section. Non-supervisory Park employees, other than Park Rangers, and employees of Golf Course concessionaires shall issue exclusions only at the direction of or with the approval of a supervisor or of the manager of the Park in which the exclusion is to be issued. Nothing in this Section shall be construed to authorize the exclusion of any person lawfully exercising free speech rights or other rights protected by the state or federal constitutions. However, a person engaged in such protected activity who commits acts that are not protected, but that violate applicable provisions of law, shall be subject to exclusion as provided by this Section.
B. For purposes of this Section, "applicable provision of law" includes any applicable provision of this Code, of any City ordinance, or of any rule or regulation promulgated by the Commissioner or the Council under this Title, any applicable criminal or traffic law of the State of Oregon, any law regarding controlled substances or alcoholic beverages, any applicable County ordinance or regulation, and any ordinance or regulation adopted by the Tri-County Metropolitan Transportation District of Oregon (Tri-Met) governing any Tri-Met facility in that Park. For purposes of this Section, "applicable" means relating to the person's conduct in the Park.
C. An exclusion issued under the provisions of this Section shall be for thirty (30) days. If the person to be excluded has been excluded from any Park at any time within two years before the date of the present exclusion, the exclusion shall be for ninety (90) days. If the person to be excluded has been excluded from one or more Parks on two or more occasions within two years before the date of the present exclusion, the exclusion shall be for 180 days.
D. Before issuing an exclusion under this Section, a Park Officer shall first give the person a warning and a reasonable opportunity to desist from the violation. An exclusion shall not be issued if the person promptly complies with the direction and desists from the violation. Notwithstanding the provisions of this Subsection, no warning shall be required if the person is to be excluded for engaging in conduct that:
1. Is classified as a felony or as a misdemeanor under the following Chapters of the Oregon Revised Statutes, or is an attempt, solicitation or conspiracy to commit any such felony or misdemeanor defined in ORS:
a. Chapter 162 - Offenses Against the State and Public Justice;
b. Chapter 163 - Offenses Against Persons;
c. Chapter 164 - Offenses Against Property, except for ORS 164.805, Offensive Littering;
d. Chapter 165 - Offenses Involving Fraud or Deception;
e. Chapter 166 - Offenses Against Public Order; Firearms and Other Weapons; Racketeering;
f. Chapter 167 - Offenses Against Public Health, Decency andAnimals;
g. Chapter 475 - Controlled Substances; Illegal Drug Cleanup; Paraphernalia; Precursors; or
2. Otherwise involves a controlled substance or alcoholic beverage; or
3. Has resulted in injury to any person or damage to any property; or
4. Constitutes a violation of any of the following provisions of this Code:
a. Section 14A.40.030 - Indecent Exposure;
b. Section 14A.40.040 - Loitering to Solicit Prostitution;
c. Section 14A.40.050 - Unlawful Prostitution Procurement Activities;
Section 14A.60.010 - Possession of a Loaded Firearm in a Public Place
e. Section 14A.60.020 - Discharge of a Firearm;
f. Section 14A.60.030 - Tear Gas and Stun Guns;
g. Section 14A.60.040 - Explosives and Bottle Bombs;
h. Section 20.12.030 – Unlawful Urination or Defecation, except if the conduct involves only urination on a permeable surface (such as grass, dirt, mulch or other plant materials) in a Park;
i. Section 20.12.040 - Unlawful Acts Involving Alcohol, Controlled Substances or Prescription Drugs;
j. Section 20.12.050 – Possession of Weapons;
k. Section 20.12.170 C - Use of Skateboards; or
5. Is conduct for which the person previously has been warned or excluded for committing in any Park.
E. Written notice shall be given to any person excluded from any Park under this Section. The notice shall specify the date, length and place of the exclusion, shall identify the provision of law the person has violated and shall contain a brief description of the offending conduct. The notice shall inform the excluded person of the right to appeal, including the time limit and the place of delivering the appeal. It shall be signed by the issuing party. Warnings of consequences for failure to comply shall be prominently displayed on the notice.
F. A person receiving such notice of exclusion may appeal to the Code Hearings Officer in accordance with the provisions of Title 22 of this Code. The Code Hearings Officer shall uphold the exclusion if, upon the Code Hearings Officer's de novo review, the preponderance of evidence admissible under the provisions of Title 22 of this Code convinces the Code Hearings Officer that, more likely than not, the person in fact committed the violation, and if the exclusion is otherwise in accordance with law.
G. At any time within the period of exclusion, a person receiving such notice of exclusion may apply in writing to the Commissioner for a waiver of some or all of the effects of the exclusion for good reason. If the Commissioner grants a waiver under this Subsection, the Commissioner shall promptly notify the Portland Police Bureau's Records Division and the Parks Director of such action. In exercising discretion under this Subsection, the Commissioner shall consider the seriousness of the violation for which the person has been excluded, the particular need of the person to be in the Park during some or all of the period of exclusion, such as for work or to attend or participate in a particular event (without regard to the content of any speech associated with that event), and any other criterion the Commissioner determines to be relevant to the determination of whether or not to grant a waiver. Notwithstanding the granting of a waiver under this Subsection, the exclusion will be included for purposes of calculating the appropriate length of exclusions under 20.12.265 C. The decision of the Commissioner to grant or deny, in whole or in part, a waiver under this Subsection is committed to the sole discretion of the Commissioner, and is not subject to appeal or review.
H. If an appeal of the exclusion is timely filed under Section 20.12.265 F., the effectiveness of the exclusion shall be stayed, pending the outcome of the appeal. If the exclusion is affirmed, the remaining period of exclusion shall be effective immediately upon the issuance of the Hearings Officer's decision, unless the Hearings Officer specifies a later effective date.
I. If a person is issued a subsequent exclusion while a previous exclusion is stayed pending appeal (or pending judicial review, should a court stay the exclusion), the stayed exclusion shall be counted in determining the appropriate length of the subsequent exclusion under 20.12.265 C. If the predicate exclusion is set aside, the term of the subsequent exclusion shall be reduced, as if the predicate exclusion had not been issued. If multiple exclusions issued to a single person for a single Park are simultaneously stayed pending appeal, the effective periods of those which are affirmed shall run consecutively.
J. No person shall enter or remain in any park at any time during which there is in effect a notice of exclusion issued under this Section excluding that person from that park.