14B.20.060 Appeal, Review and Variances.

City Code Section
  1. A.  A ninety (90) day exclusion shall take effect at 12:01 a.m. on the 22nd calendar day following issuance of the notice of exclusion if the person issued the notice of exclusion has not filed an appeal as provided in this Chapter and a Code Hearing Officer has reviewed a police report documenting the exclusion notice and has found that the report presents credible evidence that supports probable cause to believe the person:
    1. 1.  committed any of the offenses enumerated in Subsection A of Section 14B.20.030 within a drug-free zone.
    2. 2.  received the notice required by 14B.20.050 A.
  2. B.  If a person issued a notice of exclusion files an appeal as provided in this Chapter, imposition of a ninety (90) day exclusion shall be stayed pending a final, enforceable decision upholding the exclusion.  
  3. C.  APPEAL.   A person to whom notice of exclusion is issued shall have a right to appeal as follows: 
    1. 1.  Appeals shall be made to the Code Hearings Officer of the City of Portland.  Any hearings regarding such appeals shall be conducted in accordance with Chapter 22.10 of this Code.   
    2. 2.  Copies of documents in the City’s control which are intended to be used at the hearing shall be made available, upon request, to the appellant.
    3. 3.  An appeal of a ninety (90) day notice of exclusion must be filed, in writing, by 5:00 p.m. of the fifteenth calendar day following issuance of the notice of exclusion.
    4. 4.  An appeal of a one (1) year conviction-based exclusion must be filed, in writing, by 5:00 p.m. of the fifth business day following the date of conviction.
    5. 5.  An appeal of:
      1. a.  a denial of a request for a variance; or
      2. b.  a denial of a request for an amendment to a variance; or
      3. c.  a revocation or amendment of a variance must be filed, in writing, by 5:00 p.m. of the fifth business day following the action regarding the variance.
    6. 6.  A ninety (90) day exclusion shall not take effect during the time that an appeal of the ninety (90) day exclusion is pending. 
    7. 7.  A one (1) year conviction-based exclusion shall take effect at 12:01 a.m. on the calendar day following the date of conviction and, notwithstanding an appeal of the exclusion, shall remain in effect unless the Code Hearings Officer issues a contrary decision.
    8. 8.  At the hearing on an appeal of a ninety (90) day exclusion, the City shall have the burden to show by a preponderance of the evidence that the appellant committed any of the offenses enumerated in Subsection A. of Section 14B.20.030, and that the conduct supporting the exclusion occurred within a drug-free zone.
    9. 9.  At the hearing on an appeal of a one (1) year conviction-based exclusion, the City shall have the burden to show by a preponderance of the evidence that the appellant was convicted of any of the offenses enumerated in Subsection A. of Section 14B.20.030, and that the conduct supporting the conviction occurred within a drug-free zone.
    10. 10.  At the hearing on an appeal of a denial of a request for a variance as provided in 14B.20.060 C.5.a., the City shall have the burden to show by a preponderance of the evidence that the denial was in accordance with this Section.
    11. 11.  At the hearing on an appeal of a denial of a request for an amendment to a variance as provided in 14B.20.060 C.5.b., the City shall have the burden to show by a preponderance of the evidence that the denial was in accordance with this Section.
    12. 12.  At the hearing on an appeal of a revocation or amendment of a variance as provided in 14B.20.060 C.5.c., the City shall have the burden to show by a preponderance of the evidence that any of the conditions enumerated in this Section supporting revocation or amendment existed at the time of revocation or amendment.
    13. 13.  At the hearing on an appeal of a ninety (90) day exclusion, the following shall be prima facie evidence that the exclusion was based on probable cause to believe that the appellant committed any of the offenses enumerated in Section 14B.20.030 A.:
      1. a.  A determination by a court having jurisdiction over the offense that forms the basis for the exclusion, that probable cause existed to arrest the person to whom the initial ninety (90) day notice of exclusion was issued for violation of any of the offenses enumerated in Section 14B.20.030 A.; or
      2. b.  An accusatory instrument charging the person to whom a ninety (90) day notice of exclusion was issued, for violation of any of the offenses enumerated in Section 14B.20.030 A.
    14. 14.  At the hearing on an appeal of a one (1) year conviction-based exclusion, a judgment of conviction for any of the offenses that formed the basis for the exclusion, as enumerated in Section 14B.20.030 A., shall be conclusive evidence that the described conduct occurred, but, absent a finding of fact by the court of conviction, is not conclusive evidence that the conduct occurred in a drug-free zone.
  4. D.  VARIANCES.  Variances modify an exclusion, and shall be granted, denied, amended or revoked in accordance with the following provisions:
    1. 1.  All variances shall be in writing and shall state the purpose for which they are granted and the period of time during which they are effective.  A variance that does not describe its period of effectiveness is effective for the duration of the exclusion.  A variance allows relief from an exclusion only for travel to and from specified locations, activities or events, and presence at specified locations, activities and events within a drug-free zone.
    2. 2.  All Police Bureau Precincts shall receive and process requests for Drug-Free or Prostitution Free Zone variances during regular business hours if they are otherwise open to the public.  This capability will be maintained at the main precinct station or at a sub-station.
    3. 3.  Variance.  The Chief of Police and/or designees may, for any reason, grant an excluded person a variance from an exclusion at any time during an exclusion period.  Except as described in 14B.20.050 B., the Chief of Police and/or designees shall grant an appropriate variance to an excluded person who presents a plausible need to engage in any non-criminal activity that is not associated with the behavior supporting the person's exclusion.  A variance granted under this Subsection allows travel within the drug-free zone only in accordance with the terms specified in the variance.  The Chief of Police or designees will ask a person requesting a variance to provide and update an address through which the person can be reached for the duration of the variance in the event the City determines there is a need to amend or revoke the variance.
  5. E.  REVOCATION OR AMENDMENT OF VARIANCES. A variance may be revoked or amended for the following reasons and in the following manner:
    1. 1.  The excluded person provided false information in order to obtain the variance;
    2. 2.  There is probable cause to believe the person has committed any of the offenses enumerated in Section 14B.20.030 A. in the drug-free zone subsequent to the issuance of the variance;
    3. 3.  The circumstances giving rise to the issuance of the variance no longer support a continuation of the variance or a term thereof;
    4. 4.  If the person presents new circumstances that would support amending the variance; or
    5. 5.  A revocation or amendment of a variance becomes effective at 5:00 p.m. of the fifth business day following mailing of notice of the action to the excluded person at the address provided pursuant to 14B.20.060 B.1. unless the excluded person appeals the determination by following the procedures in 14B.20.060 A.5.c.

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