5.256 Civil Exclusion.
(1) Civil Exclusion Zones. Civil exclusion zones are designated to protect the public from those whose illegal conduct poses a threat to the public health, safety, and welfare. In accordance with the provisions of this section, the Chief of Police or designee may exclude any person who is cited to appear, arrested, or otherwise taken into custody for any offense listed in subsection (2) of this section within a civil exclusion zone. 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 Oregon or federal constitution. However, a person engaged in such protected activity who commits acts that are not protected shall be subject to exclusion as provided by this section. Civil exclusion zones include the following places:
(a) City Property. Any property owned or managed by the City, including but not limited to parks, greenways, buildings, parking lots, or other land or physical structures. A person shall only be excluded from the city property that the person receives a notice of exclusion for.
(b) The Downtown District. Comprises the area bound by Bear Creek, the north right-of-way of Sixth Street, the west right-of-way of Oakdale Avenue, the north right-of-way of West Main Street, the west right-of-way of Laurel Street, the south right-of-way of West Eighth Street, the west right-of-way of Oakdale Avenue, and the south right-of-way of West Tenth Street (as shown on Map A).
(2) Offenses; Penalty. A person is subject to civil exclusion for a period of 90 days from entering or remaining within a civil exclusion zone if that person has been cited to appear, arrested or otherwise taken into custody within a civil exclusion zone for any of the following offenses:
(a) alcoholic liquor violations as provided in the Oregon Liquor Control Act, or Medford code sections 5.310, 5.350, 5.360, or 5.361;
(b) any sexual offense, as provided by ORS 163.355 through 163.465;
(c) arson or related offenses as provided in ORS 164.315 through 164.335 or reckless burning as provided in Section 5.272;
(d) assault as provided in ORS 163.160, ORS 163.165, ORS 163.175, ORS 163.185, or Medford code section 5.105;
(e) criminal mischief as provided in ORS 164.345 through 164.365 or Medford code section 5.270;
(f) disorderly conduct as provided in ORS 166.025 or Medford code section 5.120;
(g) discharge of weapons as provided in Medford code section 5.160
(h) failure to control dangerous dog as provided in Medford code section 5.603.
(i) graffiti offenses as provided in ORS 164.381 through ORS 164.386 or Medford code section 5.519;
(j) harassment as provided in ORS 166.065 or Medford code section 5.130;
(k) intimidation as provided in ORS 166.155 through 166.165;
(l) marijuana-related offenses as provided in the Control and Regulation of Marijuana Act, the Oregon Medical Marijuana Act, or Medford code sections 5.652, 5.653, 5.705, 5.710, or 5.715;
(m) menacing as provided in ORS 163.190 or Medford code section 5.110;
(n) possession, manufacture, or delivery of a controlled substance or related offenses as provided in ORS 167.203, ORS 475.005 through 475.285, and ORS 475.752 through 475.980;
(o) prostitution or related offenses as provided in ORS 167.007 through ORS 167.017;
(p) public urination as provided in Medford code section 5.125, except if the conduct involves only urination on a permeable surface in a park or greenway;
(q) recklessly endangering another person as provided in ORS 163.195 or Medford code section 5.115;
(r) strangulation as provided in ORS 163.187;
(s) theft as provided in ORS 164.015 through 164.140 or Medford code sections 5.291 through 5.298.
(3) Violation.
(a) If a person excluded from a civil exclusion zone is found within the boundary of the civil exclusion zone during the exclusion period, that person may be arrested for Trespass-Premises as provided in Medford code section 5.250. A person is not considered to be within a civil exclusion zone if the person is within an exclusion zone and the person is:
(i) passing through the exclusion area;
(ii) in the act of obtaining social, medical, or like services;
(iii) in the act of seeking employment or performing work directly related to lawful employment;
(iv) attending a public meeting;
(v) attending a court hearing, meeting with an attorney or criminal justice personnel, or engaged in any activity ordered by a court;
(vi) in the act of filing an appeal to an exclusion notice issued under this section;
(vii) attending religious services or otherwise exercising a constitutional right.
(b) A person shall not be issued an exclusion notice for prohibited camping or for otherwise sleeping within an exclusion zone.
(4) Exclusion Notice. The Chief of Police is designated as the person in charge of civil exclusion zones for the purpose of issuing exclusion notices in accordance with this ordinance, and may authorize employees of the police department to issue exclusion notices. Written notice shall be given to any person excluded from a civil exclusion zone. The notice shall specify the area from which the person is excluded, the length of exclusion, the offense(s) the person is accused of violating, and a description of the offending conduct. Warnings of consequences for failure to comply shall be prominently displayed on the notice. The notice shall inform the excluded person of the right to appeal to the municipal court, and shall include information on the time limit to file an appeal and place to deliver the appeal. Unless otherwise provided in the exclusion notice, the term of exclusion shall take effect upon issuance.
(5) Appeal. A person receiving an exclusion notice shall have the right to a hearing to have the exclusion rescinded, the period of exclusion reduced, or to request a variance.
(a) The hearing request must be filed in writing to the Municipal Court Clerk at Medford City Hall within ten (10) days after receipt of the notice of exclusion. The hearing shall be conducted by the municipal court judge within ten (10) days of receipt of a request filed pursuant to this section; excluding Saturdays, Sundays, and holidays.
(b) The hearing may be rescheduled for good cause shown, but shall be scheduled no later than five (5) additional business days from the rescheduled request. If an appeal is timely filed, the period of 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 issuance of the municipal court’s decision.
(c) The City shall have the burden of proving by a preponderance of the evidence the validity of the exclusion. If the municipal court finds by a preponderance of the evidence that the exclusion was based upon the conduct proscribed by subsection (2), and if the exclusion is otherwise in accordance with law, the municipal court shall uphold the exclusion. However, if the municipal court finds that the City has not met its burden of proof, or that the exclusion is otherwise unlawful, then the municipal court shall enter an order rescinding the exclusion. In the event that the municipal court finds that the City has met its burden of proof, but that the length or scope of the exclusion is unreasonable under the circumstances, the municipal court may issue an order shortening the length of exclusion or allowing for a variance. The decision of the municipal court is final.
(6) Variance.
(a) The Court may in its discretion grant a variance to an excluded person at any time during the period of exclusion if the person:
(i) presents a plausible need to engage in any non-criminal activity that is not associated with the behavior supporting the person's exclusion;
(ii) establishes that he or she resides within an exclusion zone;
(iii) presents a plausible need to obtain goods and services not otherwise available outside the exclusion zone to satisfy the person’s essential needs.
(b) The variance shall be in writing, for a specific period of time and only to accommodate a specific purpose, all of which shall be stated on the variance. The excluded person shall keep the variance document on his or her person at all times the person is within the exclusion area.