In addition to other measures provided for violation of TMC Chapters 28, 29, and 30, or the laws of the State of Oregon, the District may exclude an individual from all or any part of the District Transit System for a violation of any provision of TMC Chapters 28, 29 or 30, or a violation of any criminal law of the State of Oregon while on the District Transit System, for a period of time not to exceed six months.
A person excluded under TMC Section 28.18 may not during the period of exclusion, enter or remain upon any part of the District Transit System from which said person is excluded. An excluded person who enters or remains upon any part of the District Transit System from which the person has been excluded may be charged with the crime of Interfering with Public Transportation (ORS 166.116) or the crime of Criminal Trespass in the Second Degree (ORS 164.245).
A notice of exclusion may be issued by any peace officer, Inspector, District Road Supervisor, District Rail Controller/Supervisor, or other person authorized by the General Manager (hereinafter referred to under this Section 28.18 as “exclusion officer”) based upon probable cause that an individual has engaged in conduct in violation of TMC Chapters 28, 29 or 30, in violation of any law of the State of Oregon, or in violation of the criminal law of a municipality in which the conduct occurred.
The General Manager shall promulgate administrative rules establishing the types of violations on which an exclusion may be based and the duration of exclusion for each type of violation. The General Manager is further authorized to appoint a Hearings Officer(s), establish hearing procedures, and establish any other administrative requirements necessary to effectively implement the provisions of TMC Section 28.18. The General Manager is further authorized to review, investigate, invalidate or rescind any exclusion, at any stage during, or after, the processing of an exclusion, when the General Manager determines, in the General Manager’s sole discretion, that justice so requires. Nothing in this Chapter shall be interpreted as an abrogation or restriction of this discretion of the General Manager.
An individual shall be provided notice concerning the rights to which the individual is entitled upon receipt of a Notice of Exclusion from an exclusion officer. Such notice shall include: (1) A statement of the source of rule or law violated by reference to the title of the violation or crime, by reference to the citation of the violation or crime, or both;
(2) An explanation of the District’s internal review procedure, a description of the hearing process, and an explanation of the evidentiary burdens; and
(3) A statement of the duration of the exclusion, or alternatively, a statement of the mechanism by which the duration of the exclusion may be determined in accordance with administrative rules promulgated by the General Manager.
Every person who receives a Notice of Exclusion shall be entitled to an administrative review by a District Exclusion Administrator within seven (7) business days from the date in which the Notice of Exclusion was issued. The purpose of the administrative review shall be to determine whether a Notice of Exclusion conforms to the administrative rules promulgated by the General Manager. If an Exclusion Administrator determines, after conducting an administrative review, that the Notice of Exclusion does not conform to District administrative rules, the Exclusion Administrator shall notify the individual that the Notice of Exclusion is invalid and withdrawn. If the administrative review confirms that a Notice of Exclusion was issued in conformity with District administrative rules, it shall be deemed valid, and the exclusion shall take effect on the eleventh (11th) business day following the date in which the Notice of Exclusion was issued, unless the individual requests a hearing. If a hearing is conducted, the Hearings Officer shall determine the date in which the exclusion takes effect. A hearing shall be conducted no later than ten (10) business days following the date of the individual’s request for a hearing unless the Hearings Officer determines, in his or her sole discretion, that a later date is warranted or necessary.
All exclusions shall be subject to a stay pending administrative review and opportunity for a hearing. A stay on an exclusion shall remain in effect through the tenth (10th) business day following the issuance of the Notice of Exclusion or, if a hearing has been requested, until the date on which the Hearing Officer’s final order is effective following a hearing.
An individual who receives a valid Notice of Exclusion shall be entitled to a hearing. The purpose of the hearing shall be to:
(1) Review and determine whether the evidentiary basis for issuance of the Notice of Exclusion was sufficient as a matter of law; and
(2) Determine whether the length and scope of an exclusion is commensurate with the nature of the violation; and
(3) Render a finding on whether it is more probable than not that the individual engaged in conduct justifying an exclusion; and
(4) Consider any mitigating and aggravating factors that the Hearings Officer determines relevant to the scope and length of an exclusion in his or her sole discretion; and
(5) Issue a final exclusion order to sustain, modify, or set aside a Notice of Exclusion.
Effect of a Failure to Schedule or Attend a Hearing. If a Notice of Exclusion is deemed valid by the Exclusion Administrator, and an excluded person fails to schedule a hearing or appear at a scheduled hearing, the exclusion shall automatically take effect on the eleventh (11th) business day following the issuance of the Notice of Exclusion, in accordance with the terms of the Notice of Exclusion.
In conducting a hearing and reaching a decision, the Hearings Officer may rely upon any evidence that a reasonable person would rely upon in making an important decision or conducting personal business. Hearsay is admissible, except where its admission would offend due process. The Hearings Officer shall have the authority to compel testimony or evidence deemed necessary, in the Hearings Officer’s sole discretion, to a fair decision. The mechanisms available for compelling testimony or evidence shall be established through administrative rules promulgated by the General Manager.
Notwithstanding any other provision of TMC Section 28.18, the General Manager, or his or her designee, upon a review of sufficient evidence, and the Hearings Officer, upon review of the Notice of Exclusion or the evidence presented at the hearing, must modify or set aside an exclusion under the circumstances provided for below:
(1) An individual with a disability shall not be issued a complete exclusion from the District Transit System unless the person engaged in violent, seriously disruptive or criminal conduct, or in conduct posing a serious threat to the safety of others or to the operation of the transit system. Absent such a finding, if a Hearings Officer determines that a violation was more probable than not, the Hearings Officer shall order a qualified exclusion to permit an individual with a disability to use the District Transit System for trips of necessity, including travel to and from medical and legal appointments, school or training classes, places of employment, obtaining food, clothing and necessary household items, or for accessing any critical services.
(2) A transit dependent person shall not be issued a complete exclusion for the District Transit System unless the person engaged in violent, seriously disruptive, or criminal conduct, or in conduct posing a serious threat to the safety of others or to the operation of the transit system. Absent such a finding, if a Hearings Officer determines that a violation was more probable than not, the Hearings Officer shall order a qualified exclusion to permit a transit dependent individual to use the District Transit System for trips of necessity, including travel to and from medical and legal appointments, school or training classes, places of employment, obtaining food, clothing and necessary household items, or for accessing any critical services. Any person asserting the right to a qualified exclusion on the basis of transit dependence shall have the burden of establishing transit dependence by a preponderance of the evidence.
(3) A person issued a Notice of Exclusion for conduct determined to be expressive conduct protected by the First Amendment to the U.S. Constitution and Article I, Sections 3 and 8 of the Oregon Constitution, shall not be excluded on the basis of such conduct. If the Hearings Officer finds that a violation was more probable than not, but also finds that the conduct involved expressive conduct or the expression of a religious opinion, the Notice of Exclusion shall be set aside, unless the Hearings Officer also finds that the effect of the conduct endangered public safety, disrupted service, or interfered with transit operations. For the purposes of this paragraph, the parameters of the free expression and religious protections afforded under this Section 28.18 shall be coextensive with constitutional guarantees.
L. Effect of Failure to Provide an Address. When a person receiving a Notice of Exclusion is not able, or refuses, to provide a mailing address at the time of issuance, the Notice of Exclusion shall set forth the procedure for picking up any letters, notices or orders produced by the Exclusion Administrator or Hearings Officer, in accordance with administrative rules promulgated by the General Manager. M. Within five (5) business days following the conclusion of a hearing, the Hearings Officer shall issue a final Order setting forth all findings and a decision on the exclusion, unless issuance of a final order within five (5) business days is not practicable. A final order shall be deemed issued on the date of mailing to all parties at the addresses provided by the parties, through regular U.S. Mail, and effective three (3) business days from the date of issuance. N. At any time during the pendency of a hearing, during the course of an administrative review, or following the exhaustion of administrative review, an excluded person may petition in writing to the General Manager, or designee, for a temporary waiver of the exclusion or modification of the terms of an exclusion, based upon a showing of need or changed circumstances. The General Manager, or designee, has the sole discretion to grant or deny the petition. (28.18 added by Ordinance No. 170, Section 2; amended by Ordinance No. 205, section 1; Ordinance No. 214, Section 1; Ordinance No. 230, section 1; Ordinance No. 266; Ordinance No. 275; Ordinance No. 278; Ordinance No. 284 and Ordinance No. 291)