HomeMy WebLinkAbout2022 Ordinance No. 0021
BY AUTHORITY
ORDINANCE NO. 02 COUNCIL BILL NO. 01
SERIES OF 2022 INTRODUCED BY COUNCIL
MEMBER WARD
AN ORDINANCE AMENDING TITLE 7, CHAPTER 6, ARTICLE F,
SECTION 7-6F-2 AND TITLE 11, CHAPTER 4, SECTION 11-4-3 OF
ENGLEWOOD MUNICIPAL CODE REGARDING TRESPASS,
EJECTION, AND EXCLUSION FROM CITY PROPERTY, TO ENSURE
COMPLIANCE WITH APPLICABLE LAW.
WHEREAS, to provide for a safe environment and to ensure compliance with rules and
regulations governing behavior, conduct, or activities, Ejections and Exclusions from City
Property are authorized by Englewood Municipal Code (“EMC”); and
WHEREAS, EMC Section 11-4-3 applies to violations of rules and regulations regarding
City property; and
WHEREAS, EMC Section 11-4-3 currently authorizes removal of a person from City
property under certain circumstances; and
WHEREAS, EMC Section 7-6F-2 applies to the criminal conduct of unlawfully
trespassing onto another’s property; and
WHEREAS, violation of EMC Section 11-4-3 can form the basis for a trespass
prosecution under EMC Section 7-6F-2; and
WHEREAS, in order to ensure due process rights, protect the safety and welfare of
Englewood citizens and employees while on City property, and provide a basis for a lawful
prosecution under EMC Section 11-4-3, the City desires to amend these EMC sections to provide
clear and legally-compliant procedures to lawfully remove persons from City property, yet still
provide them with an avenue to challenge the removal.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. Amendment of Englewood Municipal Code
Title 7, Chapter 6, Article F, Section 7-6F-2 of Englewood Municipal Code is hereby amended to
read as follows (new provisions in italics, deleted provisions struck through):
7-6F-2: - Trespass.
A. A person commits the crime of trespass if such person:
1. Unlawfully enters or remains in or upon the premises of another which are
enclosed in a manner designed to exclude intruders or are fenced; or
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2. Knowingly and unlawfully enters or remains in or upon the common areas
of a hotel, motel, condominium, or apartment building; or
3. Knowingly and unlawfully enters or remains in a motor vehicle of another;
or
4. It shall be unlawful for any person to enter or remain upon the lands or
property of another Unlawfully enters or remains in or upon premises of
another, including common areas, knowing the consent to enter or remain
is absent, denied or withdrawn by the owner, occupant, or person having
lawful control possession thereof., or any agent of such owner or
possessor; provided, that this Section shall not apply to any reasonable
entry seeking information or emergency shelter.
B. It shall be unlawful for any person to enter or remain upon the lands, property or
vehicle parking areas owned, operated or controlled by any other person, business or
merchant when the activity thereat is closed, not operating, nor serving the public and
consent to enter or remain upon such lands, property or vehicle parking areas has been
denied or withdrawn by a person having authority to do so.
B. “Premises” means real property, buildings and other improvements thereon, City
Property as defined by Englewood Municipal Code (EMC) Section 11-4-3(B)(2), and the
stream banks and beds of any non-navigable fresh water streams flowing through such real
property.
C. The following shall constitute prima facie evidence that consent to enter or remain
is absent, has been denied or withdrawn:
1. Notice posted in the window of the businesses', merchant's or person's building
or otherwise upon the property is prima facie evidence that consent to enter
or remain is absent and has been denied or withdrawn; or
2. When a person fails or refuses to remove himself or herself from said premises
when requested to leave by the owner, occupant, or person having lawful
control thereof; or
3. Issuance of an Ejection or Exclusion under EMC Section 11-4-3.
Section 2. Amendment of Englewood Municipal Code
The title of Chapter 4 of Title 11, Englewood Municipal Code is hereby amended to read as
follows (new provisions in italics, deleted provisions struck through):
Chapter 4 – Parks and City-Owned Property
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Section 3. Amendment of Englewood Municipal Code
Title 11, Chapter 4, Section 11-4-3 of Englewood Municipal Code is hereby amended to read as
follows (new provisions in italics, deleted provisions struck through):
11-4-3: - Violation of Rules and Regulations, Ejection and Exclusion from City Property.
A. It shall be unlawful for any person to commit a Rule Violation, violate any provision of an
Ejection or Exclusion, or fail or refuse to obey any other lawful order or rules, and regulations,
of an Authorized Official the City Manager, or designee or the instructions of any sign posted
by him on City Property, unless otherwise directed by a police officer.
B. Should any person fail to observe and obey any such rules or regulations of the City,
the City Manager, or designee, may immediately remove any such person and may ban such
person from the use of any park and its facilities for such period of time as may be necessary to
secure compliance with such rules, regulations and posted signs.
C. Any person removed or banned from use of the park or recreation facilities may, within five
(5) days from the date of the City Manager's or designee's action, appeal the City Manager's or
designee's actions to the City Council by filing with the City Clerk an appeal in writing, setting
forth the basis of such appeal. The City Council shall, at the next regularly scheduled Council
meeting, or as soon as is reasonably possible thereafter, sustain or overrule the City Manager's
or designee's actions, which decision shall be final.
The following definitions apply to this Section:
1. Authorized Official: The City Manager or their designee(s); any staff supervisor, staff
manager, or department director for the City, or their designee(s); and any
Englewood Police Officer or Park Ranger.
2. City Property: any location in any outdoor or indoor area and/or structure (or any
portion thereof) owned, controlled, or otherwise operated by the City of Englewood,
including City-owned or operated parks, open spaces, recreation facilities, real
property, and libraries.
3. Ejection: an order directing a person to immediately leave City Property where the
Rule Violation occurred and not to return thereto for 24 hours.
4. Exclusion: an order prohibiting a person from entering or remaining on City
Property where the Rule Violation occurred for a specified period of time.
5. Rule: federal, state, or local law; or any ordinance, resolution, rule, regulation,
signage, code of conduct, or standard of behavior issued by City Council, the City
Manager, or authorized designees, applicable to City Property and the users thereof.
6. Rule Violation: behavior, conduct, or activity that occurs within or is related to the
use of City Property and that violates a Rule.
C. An Authorized Official may issue an Ejection and/or Exclusion to any person if it is more
likely than not that the person committed a Rule Violation based upon credible evidence,
including but not limited to, a witness observation. Pursuant to administrative guidelines issued
by the City Manager or their designee(s), the Authorized Official shall utilize discretion in
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determining whether to issue an Ejection and/or Exclusion, as required to provide for a safe
environment and to ensure compliance with a Rule.
D. Oral Warning.
1. An Authorized Official shall attempt to issue an oral warning providing a
reasonable opportunity to cease a Rule Violation prior to issuance of an Ejection
and/or Exclusion, unless the Rule Violation is:
a. A felony or misdemeanor offense under federal, Colorado or municipal law;
or
b. Dangerous or threatening behavior, such that a reasonable person could
believe they are in imminent danger of physical harm even absent actual
resulting bodily injury.
2. Failure to receive and/or understand an oral warning is not a basis to challenge
an Ejection or Exclusion.
E. Issuance of Ejection. An Ejection may be verbal or in writing, and is effective
immediately for 24 consecutive hours at the location where the Rule Violation was committed.
F. Issuance of Exclusion. An Exclusion must be in writing, and is effective four (4) days
after issuance, unless notice of appeal is timely filed. The Exclusion shall be signed by an
Authorized Official, valid even if service is refused, and include:
1. The date of issuance;
2. The term, not exceeding ninety (90) days, to secure compliance with the
applicable Rule(s), except if the person received a prior Exclusion from any City
Property for any reason:
a. Within three (3) years, then the term shall be up to one hundred twenty
(120) days; or
b. On two (2) or more occasions within three (3) years, then the term shall
be up to one hundred eighty (180) days.
c. For purposes of determining whether a prior Exclusion was received, if
the person is issued an Exclusion while a previous Exclusion is stayed
pending appeal, the stayed Exclusion shall be counted as a prior
Exclusion unless the appealed Exclusion is reversed.
3. The location of the Exclusion (where the Rule Violation occurred, except the
person may enter as necessary to conduct legitimate City business);
4. Identification of the specific Rule violated;
5. A brief statement of credible evidence of the Rule Violation;
6. Notification of the right and process to appeal the Exclusion; and
7. The consequences for failure to comply with the Exclusion.
G. Appeal from Exclusion. Any person issued an Exclusion may file a written notice of
appeal with the City Clerk within four (4) days from the date of issuance, unless an extension is
granted for good cause by the City Manager prior to the filing deadline. The Exclusion shall be
stayed until resolution of the appeal.
1. The notice of appeal shall be invalid if not timely filed or fails to contain a valid
method for appellant’s receipt of the notice of hearing and Hearing Officer’s final
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decision (such as a valid mailing address, email address, and/or that appellant will
obtain the documents in person at the City Clerk’s Office).
2. If notice of appeal is valid, the City Manager shall designate a Hearing Officer within
three (3) days to preside over a hearing on appeal.
a. The Hearing Officer shall schedule a hearing on the notice of appeal within
ten (10) days thereafter.
b. No later than three (3) days after scheduling, notice of the hearing shall be
available for pick-up at the City Clerk’s Office and sent to the appellant, if an
address was provided on the notice of appeal.
c. The appellant shall be deemed to have received the notice of hearing as of the
date of mailing or availability at the City Clerk’s Office, regardless of
whether the notice was actually received.
3. Continuances. The Hearing Officer may continue the hearing for good cause, for up
to ten (10) days from the date of the hearing, upon request of either the appellant or
the City.
a. Requests for a continuance may be made in writing and delivered to the City
Clerk prior to the scheduled hearing date, or verbally at the beginning of the
hearing.
b. The Hearing Officer has sole discretion to grant or deny a request for
continuance.
4. Hearing Procedure. The Hearing Officer may conduct an informal hearing and shall
not be bound by judicial rules of evidence or procedure, except that all testimony
shall be under oath or solemn statement administered by the Hearing Officer.
a. Both parties may present evidence, call witnesses, and cross-examine
witnesses called by the other party.
b. The Hearing Officer shall have authority to determine admissibility of
evidence and testimony based on credibility, relevance, and probative value
regarding the issues involved.
c. The City has the burden of proof to show, by a preponderance of the evidence,
that the person issued the Exclusion committed the Rule Violation, and that
the issuance, duration, and conditions of the Exclusion are lawful.
d. The hearing shall be recorded, and transcripts may be made at the expense of
the requestor.
e. Should the appellant fail to appear for the hearing, either in person or
through legal counsel, the Exclusion shall be affirmed based on failure to
prosecute the appeal.
f. Within three (3) days after conclusion of the hearing, the Hearing Officer
shall issue a written decision affirming, modifying, or reversing the Exclusion,
and the grounds supporting this decision.
i. The Hearing Officer shall affirm the Exclusion if the preponderance of
evidence shows the appellant more likely than not committed the Rule
Violation, and that the Exclusion complies with applicable law.
ii. If the Hearing Officer modifies the Exclusion, the decision shall
specify any changes or conditions to the Exclusion.
iii. The City Clerk shall promptly send copies of the Hearing Officer’s
written decision to the appellant and to the City Manager, and make a
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copy available for pick-up in person at the City Clerk’s Office by the
appellant.
iv. The Hearing Officer’s written decision shall be effective upon sending
a copy to the appellant at the address within the notice of appeal (if
any) and making a copy available for in-person. If affirmed, the full
length of Exclusion shall be effective on this date.
v. If multiple Exclusions issued to a single person are simultaneously
stayed pending appeal, the effective periods of those which are
affirmed (or partially affirmed) shall run consecutively, not
concurrently.
5. The Hearing Officer’s written decision shall be considered a final, binding decision,
which shall be subject to judicial review and appeal.
a. The Hearing Officer’s written decision, and any resulting Exclusion, shall not
be automatically stayed by filing a judicial appeal.
6. All evidence presented at the hearing shall be preserved for the longer of: lapse of
any applicable appeal period or resolution of a judicial appeal.
H. Modification of Exclusion. If no appeal is pending, and facts or circumstances change
such that the person issued an Exclusion is unlikely to violate a Rule or pose a safety threat on
City Property, the person may file a written request to modify the Exclusion with the City Clerk.
1. The written request to modify must specify good reason for the modification to
establish a Rule Violation during the Exclusion period is unlikely, and identify the
modification desired.
2. The City Manager or designee shall consider the seriousness of the Rule Violation,
prior Rule Violations, the nature and scope of disruption to City operations due to the
Rule Violations, the person’s need to access the place of exclusion, likelihood of
additional Rule Violations during the Exclusion period, safety concerns to affected
employees and the public should the Exclusion be modified, and any other criteria the
City Manager or designee determines to be relevant to the request for modification.
3. The City Manager or designee has the sole discretion to grant or deny a request for
modification of an Exclusion, in whole or in part. Nothing herein requires granting a
request for modification.
4. Within seven (7) days of filing the request for modification, the City Manager or
designee shall issue a written decision on the request. The City Clerk shall mail the
written decision to the requestor at the address on the request (if any), and make the
decision available for in-person pickup at the City Clerk’s Office.
I. In addition to the penalties provided above and under other applicable law, and unless
otherwise directed by a police officer, failure or refusal to obey the provisions of a Rule,
Exclusion, Ejection, or Hearing Officer written decision shall subject that person to the
penalties provided in Englewood Municipal Code Section 1-4-1.
J. Nothing in this Section shall be construed to authorize Ejection or Exclusion of a person
lawfully exercising their rights protected by the Colorado or United States Constitutions, unless
that person commits an act that is not protected.
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Section 4. General Provisions Applicable to this Ordinance
The following general provisions and findings are applicable to the interpretation and application
of this Ordinance:
A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application
thereof to any person or circumstances shall for any reason be adjudged by a court of competent
jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this
Ordinance or its application to other persons or circumstances.
B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or
conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such
inconsistency or conflict.
C. Effect of repeal or modification. The repeal or modification of any provision of the Code
of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change
in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have
been incurred under such provision, and each provision shall be treated and held as still remaining
in force for the purposes of sustaining any and all proper actions, suits, proceedings, and
prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose
of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in
such actions, suits, proceedings, or prosecutions.
D. Safety Clauses. The City Council hereby finds, determines, and declares that this
Ordinance is promulgated under the general police power of the City of Englewood, that it is
promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and welfare.
The City Council further determines that the Ordinance bears a rational relation to the proper
legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right
to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47.
Introduced, read in full, and passed on first reading on the 4th day of January, 2022.
Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 6th day
of January, 2022.
Published as a Bill for an Ordinance on the City’s official website beginning on the 5th
day of January, 2022 for thirty (30) days.
Read by Title and passed on final reading on the 18th day of January, 2022.
Published by Title in the City’s official newspaper as Ordinance No. 02, Series of 2022,
on the 20th day of January, 2022.
Published by title on the City’s official website beginning on the 19th day of January,
2022 for thirty (30) days.
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This Ordinance shall take effect thirty (30) days after publication following final passage.
Othoniel Sierra, Mayor
ATTEST:
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the
above and foregoing is a true copy of the Ordinance passed on final reading and published by
Title as Ordinance No. 02, Series of 2022.
Stephanie Carlile
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