5.40.035 Appeal and Variance.
A. The person to whom an exclusion notice is issued shall have the right to an appeal from the issuance of the notice. The exclusion notice will notify the person of the right to appeal and process for appeal.
1. An appeal of the exclusion must be filed, in writing, within five calendar days of the issuance of the notice. The appeal must be filed with the Municipal Court. If the fifth day is a day on which the Municipal Court is not open, the appeal may be filed on the first day the Municipal Court is open for business, and the exclusion shall not take effect until the close of business on that day. A hearing on the appeal shall be held before the Judge of the Municipal Court within 20 calendar days of the appeal. The exclusion shall be stayed during the pendency of the appeal.
2. The City shall have the burden to show by a preponderance of evidence that the exclusion was based upon the conduct proscribed by BC 5.40.015. Copies of documents in its control and which are intended to be used by the City at the hearing shall be made available to the appellant at least two days prior to the hearing.
3. A determination by a court having jurisdiction of the matter that the officer who issued the exclusion notice at the time had probable cause to arrest the person to whom the exclusion notice was issued for the conduct described in BC 5.40.015 shall be prima facie evidence that the exclusion was based on conduct prohibited by those statutes.
B. Variances from the exclusion may be granted at any time during the exclusion period by the Chief of Police, or by the Municipal Court.
C. The Chief of Police or the Municipal Court shall grant a variance to any person who can establish that he or she is a resident of the exclusion zone, is employed within the exclusion zone, or will use the waiver to visit the residence of a family member, to consult with an attorney, to attend religious services or otherwise exercise a constitutional right. A variance may also be granted when, in the discretion of the Chief of Police or the Municipal Court, the exclusion order is no longer necessary to preserve public safety. The denial of a variance may be appealed within five days to the Municipal Court using the same procedures as for an appeal of the imposition of the exclusion.
D. All variances 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.
E. The person shall keep the variance on his or her person at all times the person is within the exclusion area. [Ord. NS-2245, 2015; Ord. NS-2142, 2010]