I keep a close eye on the doings of our local government here in Vancouver, Washington, and out City Council Critters in particular. Wednesday the new agenda for the upcoming Monday night City Council meeting was published an there is one item on it that caught my eye and triggered disbelief and outrage the further I read. Among the many changes that are being made, an entire new enforcement mechanism is being created along with making the local Parks Director a defacto "Park Czar" and giving that person the same authorities as local Police have when it comes to the Park.
I have a lot of problems with this whole document, but only a couple of issues to present for discussion out of a mult-page document. Most of the changes are in fact relatively minor in nature, but the City is sneaking in a couple of real doozies here and I am looking for advice on how to proceed.
The entire City of Vancouver Staff Report No. 148-11 I am referencing here can be found at the following link. Proposed changes are underlined.http://www.cityofvancouver.us/upload/images/Gov/Council2011/2_SR148-11.pdfSection 15.04.040 Removal or Destruction of park property.
(Newly added text reads:) Provided, however, that maintenance activities in any park may be authorized with the prior written consent of the director.
Section 15.04.130 Tobacco products,
(New Section in its' entirety) No person shall smoke or use any form of tobacco in any park.Section 15. 04.050 Dogs
(New added text reads:) B. The director may prohibit dogs, except dog guides or service animals, as defined by Ch. 70.84 RCW, from entering or being present in areas that are designated and posted as such.Section 15.04.170 Exclusion from parks
A. In addition to any other penalty authorized under this chapter any employee authorized by the director or any other law enforcement officer may exclude, by delivering an exclusion notice in person or by first class mail to the offender
, from a park, any person who, while in the park:
1. Violates any provisions within this chapter.
2. Violates any park rule adopted by the director, or
3. Violates any provision of the Vancouver Municipal Code, or any provision of the Revised Code of Washington.
The offender need not be charged, tried or convicted of any crime or infraction in order for an exclusion notice to be issued or effective. The exclusion may be based upon observation by the director, or upon the sort of civilian reports that would ordinarily be relied upon by police officers in the determination of probable cause.
B. Lengths of exclusion (First time 1 week exclusion, 2nd time in a year, 30 days exclusion, 3rd time in a year 1 year exclusion)
C. Exclusion Notice. The exclusion notice shall be in writing and shall contain the date of issuance. The exclusion notice shall specify the length and places of exclusion. The exclusion notice shall be signed by the issuing individual. The exclusion notice shall be delivered to the excluded individual in person or sent by certified mail to the excluded individual's last known address.
Warning of the consequences for failure to comply shall be prominently displayed on the notice.
D. Only the Hearing Officer after a hearing may rescind or shorten an exclusion notice.
E. Hearings (the whole section is just wrong, but section 3 is particularly bad)
3. At the hearing, the violation must be proved by a preponderance of the evidence in order to uphold the exclusion notice. If the exclusion notice was issued because of the alleged violation of any criminal law, the offender need not be charged, tried, or convicted for the exclusion notice to be upheld. The exclusion notice establishes a prima facie case that the offender committed the violation as described. The Hearing Officer shall consider a sworn report or a declaration under penalty of perjury as authorized by RCW 9A.72.085, written by the individual who issued the exclusion notice, without further evidentiary foundation. The certifications in Rule 6.13 of the Criminal Rules for Courts of Limited Jurisdiction shall be considered without further evidentiary foundation. The Hearing Officer may consider information that would not be admissible under the evidence rules in a court of law which the Hearing Officer considers relevant and trustworthy.
H. This section shall be enforced so as to emphasize voluntary compliance with laws and park rules, and so that inadvertent minor violations that would fall under subsection B1 of this section can be corrected without resort to an exclusion notice.**SCHNIPP**
Enough of that. I do not want to overwhelm anyone, but I think you can see that this document has some very big constitutional problems, and in fact is a solution going looking for a problem. Let's try and look at this under some other lens besides the "Occupy" movement, because we have had no such problems like that, and this has nothing to do with it.
The most obvious question is how will they enforce a no-smoking ban? The answer is by criminalizing that behavior with a system of anonymous and draconian exclusions that can simply be mailed to your last known address. Any burden of proof is on you, and the exclusion goes into effect immediately and is active even if you appeal it.
What is particularly troublesome are the provisions that forbid "maintenance" of any kind in the parks without prior written consent of the Director. I have direct experience with that "maintenance" because the City quit doing any in our parks over a year ago to save money. When the civilians started kicking in on their own to collect leaves, mow grass and prune overgrown shrubs, this Ordinance is the reaction. The City claims that running a lawnmower or a leaf blower, or any other "power tools" in a City park is a liability so great that it has to be stopped. (In reality I believe the City cannot be seen to sanction any work that they cannot or will not pay their Union employees to perform, but that is a separate rant...)
Not only will the City of Vancouver not do park maintenance, they are going to try and legally prevent anyone else from doing it too, by making leaf collection or lawn mowing a violation serious enough to require exclusion from the parks, and for that activity to be considered a misdemeanor unless the Lord Director grants their permission.
This is all being done very casually and under the guise of minor administrative changes. On reality this is the most draconian document I have seen come out of our City in a while. The last time they tried to do something like this, Vancouver City Council announced they were going to try and ban pit bulls in the parks. Hundreds of Pitty owners around the City rose up with their dogs and raised hell about it, and Council backed down. Council also wanted to try and ban handguns in the City parks until someone pointed out that open carry is completely legal in Washington and their ban was unconstitutional in more ways than one, so they dropped it too.
Now we get this!
Suddenly we need some high paid appointed Parks Director, who does not answer to the voters in any way, to have police powers (it is in the ordinance language) and hand out these draconian exclusions like candy at Halloween. What's more, once you set foot in one of the City's Parks, the City seems to think you abrogate all of your Constitutional rights.
I'm at a real loss on how to go about trying to correct this. I've already fired off e-mails to the usual suspects but they rarely like hearing from the little people here and anyone who complains about what they do is labeled with any number of nastily creative names, such as "Hounds of Whinerville". Well this Hound is ready for something, but whining ain't it. I'm open to advice and suggestions, and already the first thing on my list is "Lawsuit" followed closely by "Attorney"...
I'm madder than hell about this, and my wife asked asked me three times if I took my BP meds today...looking for some decent ideas about how to go about shutting this thing down before its too late.