IN THE YEAR TWO THOUSAND TWENTY-FOUR
ORDINANCE 8.9
AN ORDINANCE IN RELATION TO BURLINGTON CODE OF ORDINANCES- SECTIONS 21-45 — 21-49 TRESPASS
Sponsor: Ordinance Committee
Public Hearing Dates:
First reading: 12/18/23
Referred to: Ordinance Committee
Rules suspended and placed in all stages of passage:
Second reading: 11/18/24
Action: adopted as amended by OC
Date: 11/18/24
Signed by Mayor: 11/19/24
Published: 11/27/24
Effective: 12/18/24
It is hereby Ordained by the City Council of the City of Burlington as follows:
That Chapter 21, Offenses and Miscellaneous Provisions, Article I, In General, of the Code of Ordinances of the City of Burlington be and hereby is amended to read as follows:
ARTICLE I. In General
Secs. 21-1 – 21-44 As written.
Sec. 21-45 Unlawful trespass.
It shall be unlawful for a person who, without legal authority or the consent of the person in lawful possession, enters or remains on any land or in any place as to which notice against trespass is given by:
(a) Actual communication by the person in lawful possession or histheir agent or by a law enforcement officer, community service officer, community support liaison, urban park ranger, parks patrol, the city’s contracted private security, or any other city official authorized to enforce the city’s ordinances, acting on behalf of such person or his their agent pursuant to protocols and/or directives established by the police department; or
(b) Signs or placards so designed and situated as to give reasonable notice.
A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:
Waiver Penalty:
First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).
Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).
Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).
Each time that the violation occurs will constitute a separate violation of this section. Any law enforcement officer, community service officer, community support liaison, urban park rangers, parks patrol, or any other city official authorized to enforce the city’s ordinances, can enforce this section.
Sec. 21-45A Notice of trespass on city property.
(a) Purpose. The purpose of this section is to enable a city official in charge of city property to issue a notice of trespass and enforce that notice against an individual whose behavior is dangerous, illegal, or unreasonably disruptive, while recognizing the rights of individuals to engage in constitutionally protected activities on public or city-owned property.
(b) City official/officers authorized to issue notice of trespass. The city council hereby expressly delegates its authority to issue a notice of trespass to any city official who is in charge, at the time of issuance, of the city property for which the notice of trespass is issued and to any sworn officer, community service officer, or community support liaison of the Burlington police department or the City’s urban park rangers, parks patrol, contracted private security, or any other city official authorized to enforce the city’s ordinances, in the exercise of their official duties (hereinafter “official/officer”).
(c) Issuance of notice of trespass – Initial conference. If an individual violates any city ordinance, rule or regulation, or State law, or within a public building fails to follow the lawful directive of a city official/ or police officer authorized under subsection (b) of this section, that official/officer may issue a notice of trespass for a violation which was committed while on or within a city facility, building, or outdoor area, including a municipal park, for the specific property where the violation occurred, excluding a right-of-way. Prior to issuance of the notice of trespass, the issuing official/officer must ensure that the person to whom a notice of trespass will be issued has been informed of the basis for the notice of trespass and has been given an opportunity and reasonable amount of time to change or address the underlying conduct – that is, a verbal warning must have been issued. No verbal warning is required if the reason for the trespass is an accusation of serious harmful conduct such as arson, assault, harassment or a threat of such conduct. Notices of trespass may be issued at the Fletcher Free Library as provided in Section 21-43.
(d) Service of notice – Content. In most cases, the notice of trespass must be hand-delivered to the person to whom it is issued by an authorized city official/ or a law enforcement officer; however, if the circumstances do not permit safe delivery of the notice in person, in the discretion of the authorized city official/ or law enforcement officer, it may be mailed to the individual’s legal address. The written notice of trespass shall detail the basis for which the notice of trespass was issued, the length of time for which the notice of trespass remains in effect, and the consequences for violating the terms of the notice of trespass; it shall also advise the recipient of the right to contest the notice of trespass and the location at which to file the appeal.
(e) Length of notice of trespass.
(1) Generally. For minor, first-time violations, such as having an open container of alcohol, the notice may be issued for up to one (1) day. For moderate violations, such as other nonviolent disorderly conduct, or for a second offense within thirty (30) days, the notice may be issued for up to thirty (30) days. For more serious violations or a third offense within sixty (60) days, the notice may be issued for up to one hundred eighty (180) days. Generally, it is expected that the length of time should reflect the severity or repetitiveness of the underlying conduct. Only for more serious offenses such as conduct that involves violence, harassment, or threats of physical harm to an individual may a notice be issued for over one hundred eighty (180) days, and in any event, a notice of trespass may not be issued for more than one (1) year.
(2) Fletcher Free Library. Due to the nature and character of the Fletcher Free Library, the following durations apply to violations made under the library ordinance. For a violation of Section 21-43(a)(1), a notice of trespass may be issued for up to one hundred eighty (180) days. For a violation of Section 2143(a)(2), a notice of trespass may be issued for a period up to sixty (60) days. For a violation of Section 21-43(a)(3), a notice of trespass may be issued for a period of one (1) day.
(f) Appeal.
(1) Process. The recipient of a notice of trespass may appeal the notice of trespass by filing an appeal, in writing, within seven (7) calendar days of the issuance of the notice. The written appeal shall include the appellant’s name, address, phone number, and indicate whether a hearing is requested. No fee shall be charged for filing the appeal. The appeal shall be filed at the location designated in the notice of trespass. Except for in exigent circumstances, any such appeal shall stay the operation of the notice of trespass beyond the day the appeal is filed, pending a hearing and/or written decision.
(2) Exigent circumstances. For purposes of this chapter, “exigent circumstances” means any situation in which the issuing city official/ or officer determines that a person presents an immediate and substantial threat or danger to the health, safety, or welfare of another person. In such circumstances, an appeal shall not stay the operation of the notice of trespass.
(3) Designated hearing panels. All appeals made under this chapter shall be heard by the public safety committee of the city council, which will make an annual report to the city council on the number of appeals.
(4) Procedure. When an appeal is filed, the designated hearing panel shall meet within ten (10) business days to consider the appeal. If no hearing is requested, the designated hearing panel may consider any written submissions as part of its decision. If a hearing is requested, the appellant must be provided at least three (3) business days’ written notice of the date, time, and location of the hearing. The designated hearing panel shall allow oral and/or written testimony and evidence from the appellant and the issuing city official/ or officer. In reviewing the notice of trespass, the panel will utilize the preponderance of the evidence standard with the burden of proof on the charging official/officer or their representative. The designated hearing panel shall issue a written decision within ten (10) business days of the hearing. The designated hearing panel may extend the time period for hearing if the operation of the notice of trespass is stayed or if the appellant consents.
(5) Waiver requests. An individual who has received a notice of trespass may request a waiver from the issuing official/officer (or in the absence of that official/officer from another city official/officer authorized to issue the notice) in order to access the property for which the notice of trespass was issued for purpose of work, residence, access to government services, or the exercise of constitutionally protected activities. If that waiver is denied, an appeal may be made to the designated hearing panel. In addition, in the context of any appeal of a notice of trespass, the designated hearing panel shall also consider any waiver request from the individual appealing.
(g) Enforcement. Once a notice of trespass has been issued, unless the notice has been stayed by receipt of an appeal or the notice has been overturned by a decision on appeal, a violation of the notice may be enforced pursuant to Section 21-45 (a civil violation) or 13 V.S.A. § 3705 (a criminal violation). Unless the notice of trespass was issued for conduct involving violence, harassment, or threats of physical harm to an individual, enforcement pursuant to 13 V.S.A. § 3705 may only commence with issuance of a citation and a request to leave the premises; however, arrest is permissible for refusal to leave the premises within a reasonable period after issuance of the citation.
Sec. 21-46 Disorderly conduct.
It shall be unlawful for a person who, with the intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:
(a) Engages in fighting or in violent, tumultuous or threatening behavior; or
(b) Makes unreasonable noise; or
(c) In a public place uses abusive or obscene language; or
(d) Without lawful authority, disturbs any lawful assembly or meeting or persons; or
(e) Obstructs vehicular or pedestrian traffic.
A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official/officer, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:
Waiver Penalty:
First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).
Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).
Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).
Each time that the violation occurs will constitute a separate violation of this section. Any city official/law enforcement officer can enforce this section.
Sec. 21-47 Unlawful mischief.
It shall be unlawful for a person who, having no right to do so or any reasonable ground to believe that he has such a right, intentionally does damage to property of any value not exceeding two hundred fifty dollars ($250.00).
A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official/officer, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:
Waiver Penalty:
First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).
Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).
Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).
Each time that the violation occurs will constitute a separate violation of this section. Any city official/law enforcement officer can enforce this section.
Sec. 21-48 City Hall Park.
(a) Prohibited activities. Not withstanding other rules and regulations, the following activities are prohibited at City Hall Park and may be ticketed under this section.
(1) Disorderly conduct as defined by Section 21-46; . Any person who, with the intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:
a. Engages in fighting or in violent, tumultuous or threatening behavior; or
b. Makes unreasonable noise; or
c. In a public place uses abusive or obscene language; or
d. Without lawful authority, disturbs any lawful assembly or meeting or persons; or
e. Obstructs vehicular or pedestrian traffic.
(2) Unlawful mischief as defined by Section 21-47; . Any person who, having no right to do so or any reasonable ground to believe that he has such a right, intentionally does damage to property, private or public.
(3) Graffiti and defacement of property as defined by Section 21-29;
(4) Possession of open or opened intoxicating liquor as defined in 23 V.S.A. § 1200(4), except as permitted pursuant to a valid liquor license and/or an outdoor consumption permit for properly organized and supervised activities or events held within the limits of City Hall Park.;
(45) Possession of a regulated drug as defined in 18 V.S.A. § 4201(29);.
(6) Public urination and/or defecation as defined by Section 21-24.
(b) Enforcement.
(1) First offense. Any violation of any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of a minimum fine of two hundred dollars ($200.00) to a maximum fine of five hundred dollars ($500.00). The waiver penalty for purposes of the municipal complaint (civil ticket) shall be two hundred dollars ($200.00). The recipient of a municipal complaint for violation of this section (first offense) shall not be permitted within the City Hall Park for the balance of the day on which the alleged offense occurred.
(2) Second offense. Any violation of any provision of subsection (a) above by an individual who has previously violated any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of a minimum fine of three hundred dollars ($300.00) to maximum fine of five hundred dollars ($500.00). In addition, the recipient of a municipal complaint for violation of this section (second offense) may be issued an order of no trespass prohibiting the recipient from entering the City Hall Park for a period of up to 90 days commencing immediately upon said issuance. The waiver penalty for purposes of the municipal complaint (civil ticket) second offense shall be three hundred dollars ($300.00); payment of which shall also be deemed acceptance of the no trespass order. Both the fine and the no trespass order may, at the discretion of the prosecuting official/officer, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the community justice program.
(3) Third and subsequent offense. Any violation of any provision of subsection (a) above by an individual who has on two (2) or more occasions violated any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of from four hundred dollars ($400.00) to five hundred dollars ($500.00). In addition, the recipient of a municipal complaint for violation of this section (third and subsequent offense) may be issued an order of no trespass prohibiting the recipient from entering the City Hall Park for a period of up to one (1) year commencing immediately upon said issuance. The waiver penalty for purposes of the municipal complaint (civil ticket) third or subsequent offense shall be four hundred dollars ($400.00); payment of which shall also be deemed acceptance of the no trespass order. Both the fine and the no trespass order may, at the discretion of the prosecuting official/officer, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the community justice program.
Sec. 21-49 Church Street Marketplace District trespass authority.
(a) Purpose. The Burlington city council finds and declares that the following substantial government interests will be advanced by the ability to issue a no trespass order created by this section, based on conditions the police department and the Church Street Marketplace District commission have identified and confront in the Church Street Marketplace District on a regular basis:
(1) The abatement or removal of nuisances determined to be against the public health, safety or welfare of citizens;
(2) The protection of citizens from physical threats or injury and from damage to property;
(3) The prevention of harassment and intimidation of any member of the public;
(4) The prevention of violent crime;
(5) The orderly control and safety of pedestrian, car and cart traffic on Church Street; and
(6) The provision and maintenance of a safe, attractive environment in areas designed to attract tourist revenue.
(b) Findings. The substantial government interests identified in subsection (a) of this section are undermined by unlawful and inappropriate behavior in the Church Street Marketplace District. Such behaviors include, but are not limited to, disorderly conduct, unlawful mischief, the possession and consumption of intoxicating liquor, and the possession and use of regulated drugs.
Specifically:
(1) Unlawful behavior within the Church Street Marketplace District diminishes this public asset and deprives citizens and visitors of its full use and enjoyment;
(2) In addition to more serious criminal acts that threaten personal injury and property damage, a wide range of illegal disorderly behaviors can and often do transform the Church Street Marketplace District into an unwelcoming, unattractive and ultimately unsafe public space requiring increased expenditures for public safety and maintenance;
(3) Laws intended to preserve and protect public spaces like the Church Street Marketplace District for the benefit of all people are effective only if those present on the space obey the law. The current criminal and civil penalties for violating these types of laws are frequently inadequate to deter the illegal behavior, to prevent its recurrence, or to provide for the removal of offenders from the public space;
(4) Compliance with behavior laws within the Church Street Marketplace District will be enhanced by the immediate administrative sanction of removing offenders from the Church Street Marketplace District in addition to issuing tickets to them. For repeat offenders and for more serious offenses, exclusion for extended periods will further provide a necessary additional remedy to protect the public;
(5) The failure to comply with these and other laws creates a public nuisance.
(c) Prohibited activities. Notwithstanding other laws, ordinances, rules and regulations, the following activities are prohibited within the Church Street Marketplace District and may result in a no trespass order authorized under this section.
(1) Disorderly conduct as defined by Section 21-46;
(2) Unlawful mischief as defined by Section 21-47;
(3) Graffiti and defacement of property as defined by Section 21-29;
(4) Possession of open or opened intoxicating liquor as defined by 23 V.S.A. § 1200(4), except as permitted pursuant to a valid liquor license and/or an outdoor consumption permit for properly organized and supervised activities or events held within the limits of the Church Street Marketplace District;
(45) Possession of a regulated drug as defined in 18 V.S.A. § 4201(29);.
(6) Offense of retail theft as defined by 13 V.S.A. §2575 from a business in the Church Street Marketplace District;.
(7) Public urination and/or defecation as defined by Section 21-24.
(d) Enforcement.
(1) First offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a first offense may also be issued an order of no trespass, and will not be permitted within the Church Street Marketplace District for the balance of the day on which the alleged offense occurred.
(2) Second offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a second offense may also be issued an order of no trespass prohibiting the recipient from entering the Church Street Marketplace District for a period of up to ninety (90) days, commencing immediately upon said issuance.
(3) Third and subsequent offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a third or subsequent offense may also be issued an order of no trespass prohibiting the recipient from entering the Church Street Marketplace District for a period of up to one (1) year commencing immediately upon said issuance.
(4) Hearing procedure and staying of order of no trespass.
a. Recipients of an order of no trespass issued pursuant to subsections (d)(2) and (3) of this section may appeal said order to a hearing panel designated by the Church Street Marketplace commission pursuant to the procedure detailed below. Any such appeal shall stay the order of no trespass pending the hearing and written decision of the hearing panel.
b. Any individual subject to the trespass provisions of subsection (d)(1), (2), or (3) of this section may request in writing that a hearing panel of the Church Street Marketplace commission hold a public hearing for the purpose of challenging the issuance of the order of no trespass and/or to request a waiver to access the Church Street Marketplace District for purpose of work, residence, access to government services, the exercise of constitutionally protected activities, and/or for any other good reason as determined by a hearing panel.
c. Recipients shall have thirty (30) days from the date of issuance of an order of no trespass to request a hearing. Requests shall be sent to the executive director of the marketplace commission at 2 Church Street, Suite 2A, Burlington, VT 05401-4457.
d. If a hearing is requested, the hearing shall be scheduled within ten (10) calendar days of receipt of the request, and a written notice of the hearing shall be sent to the recipient at least seven (7) calendar days prior to the hearing.
e. The hearing panel shall consist of three (3) people designated by the Church Street Marketplace commission or its designee, and be comprised of one (1) representative from the business community, one (1) representative from the social services community, and one (1) representative from the general public.
f. The hearing panel shall allow for oral and/or written testimony and evidence from the recipient of the order of no trespass, the issuing city official/police officer, and any other witnesses requesting to be heard.
g. The hearing panel shall issue a written decision within ten (10) calendar days of the hearing.
* Material stricken out deleted.
** Material underlined added.
KS/Ordinances 2024/BCO 21-45 – 21-49, Trespass
November 15, 2024