(A) The person to whom an exclusion notice is issued shall have a right to an appeal from the issuance of the notice.
(1) An appeal of the exclusion must be filed, in writing, within five calendar days of the notice's issuance. A hearing on the appeal shall be had as provided herein.
(2) The exclusion shall not take effect during the pendency of the appeal. If no appeal is taken, the exclusion shall take effect on the sixth calendar day after the notice's issuance.
(3) The city shall have the burden to show by a preponderance of evidence that the exclusion is based on conduct which constitutes any of the crimes enumerated in § 11-1-2-6 herein. 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.
(4) The decision resulting from the hearing may be appealed to the state district court.
(B) (1) A determination by a court having jurisdiction of the matter that the officer who issued the exclusion notice, at that time had probable cause to arrest the person to whom the exclusion notice was issued for violation of one or more crimes enumerated in § 11-1-2-6 herein, shall be prima facie evidence that the exclusion was based on conduct proscribed by those statutes.
(2) Variances from an exclusion may be granted at any time during the exclusion period by either the Mayor or Mayor's designate or by a social service agency which provides services within the drug free zone for which the variance is granted, only for reasons relating to the health or welfare, or well-being of the person excluded. The Mayor shall grant a variance to any person who can establish that he or she:
(a) Was a bona fide resident of the drug free zone prior to receipt of the exclusion notice; or
(b) Was a bona fide owner, principal or employee of a place of employment located in one of the designated drug free zones.
(c) Must conduct official business with the city, county, state or federal governments, including the metropolitan, state and federal courts, in a drug free zone.
(d) Desires to attend a house of worship located in one of the designated drug free zones.
(3) The variance will allow access only to the designated drug free zone specified in the variance.
(4) Only those social service agencies which have written rules and regulations prohibiting the use or sale of controlled substances by their clients and which have entered into a written agreement with the city concerning the applicability and enforceability of those rules are eligible to grant variances.
(5) 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. The person shall keep the variance on his or her person at all times the person is within the specific drug free zone for which the variance was granted. In the event a person having a variance is found to be outside the scope of the variance's terms, that person is thereupon subject to immediate arrest for criminal trespass pursuant to § 12-2-3 of this code of ordinances.
(6) In the event a person holding a variance is arrested for conduct prohibited by state or federal law involving controlled substances, the variance shall immediately become void and that person shall be ineligible for any new variances for a period of one year from the date of the arrest.
(Ord. 3-1996)