(A) Appeal; denial or revocation of variaces. A person to whom a notice of exclusion is issued, whose request for a variance or an amendment to a variance is denied or whose variance is revoked, shall have right to appeal as follows.
(1) Appeals shall be made to appeals official. Copies of documents in the city’s control which are intended to be used at the hearing shall be made available on request, to the appellant.
(2) An appeal of a 90-day notice of exclusion must be filed, in writing, within five calendar days following delivery of the notice of exclusion.
(3) An appeal of a one-year, conviction-based exclusion must be filed, in writing, within five calendars days following the date of conviction.
(4) An appeal of:
(a) A denial of a request for a variance;
(b) A denial of a request for an amendment to a variance; or
(c) A revocation of a variance must be filed, in writing, within five calendar days following the action regarding the variance.
(5) Within five business days after receipt of the appeal or such longer period of time as agreed to by the appellant, the appeals officer shall hold a quasi-judicial hearing on an appeal and shall render a decision on the appeal at the conclusion of the hearing. The decision of the appeals official shall be based solely on the criteria set forth in this section.
(6) A 90-day exclusion shall not take effect during the time that an appeal of the 90-day exclusion is pending. If no appeal is taken, the initial 90-day exclusion shall take effect at 12:01 a.m. on the sixth calendar day following the issuance of the notice of exclusion.
(7) A one-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 appeals official issues a contrary decision.
(8) At the hearing on an appeal of a 90-day exclusion, the city shall have the burden to show, by a preponderance of the evidence, that the apellant committed any of the offenses enumerated in § 130.23(A) and that the conduct supporting the exclusion occurred within a prostitution-exclusion zone.
(9) At the hearing on the appeal of a one-year, conviction-based 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 § 130.23(A) and that the conduct supporting the exclusion occurred within a prostitution-exclusion zone.
(10) At the hearing on an appeal of a denial of a request for a variance provided in this section, the city shall have the burden to show, by a preponderance of the evidence, that the denial was in accordance with this section.
(11) At the hearing on an appeal of a denial of a request for an amendment to a variance provided in this section, the city shall have the burden to show preponderance of the evidence that the denial was in accordance with this section.
(12) At the hearing on an appeal of a revocation of a variance provided in this section, the city shall have the burden to show a preponderance of the evidence that any of the conditions enumerated in this section supporting revocation existed at the time of revocation.
(13) At the hearing on an appeal of a 90-day exclusion, the following shall be prima facie evidence was based on probable cause to believe that the appellant committed any of the offenses enumerated in this section.
(a) A determination by a judicial official having jurisdiction over the offense that forms that basis for the exclusion that probable cause existed to arrest the person to whom the initial 90-day notice of exclusion was issued for violation of any of the offenses enumerated in § 130.23(A); or
(b) Criminal process charging the person to whom a 90-day notice of exclusion was issued or violation of any of the offenses enumerated in § 130.23(A).
(14) At the hearing on an appeal of a one-year, conviction-based exclusion, a judgment of conviction for any of the offenses that formed a basis for the exclusion, as enumerated, that the described conduct occurred.
(B) Review of decision of appeals official. The decision of the appeals official is subject to review in the County Superior Court by proceedings in the nature of certiorari. Any petition for writ of certiorari for review shall be filed with the Clerk of Superior Court of the County within 30 days after the appellant has received notice of the decision of the appeals official. Unless good cause exists to contest a petition for writ of certiorari, the city shall stipulate to certiorari no later than five business days after the petitioner requests such a stipulation. The city shall transmit the record to the court no later than five business days after receiving the order allowing certiorari. Notwithstanding the provisions of any local rule reviewing court that allows for a longer time period, the city shall file its briefs within 15 days after it is served with the petitioner’s brief. If the petitioner serves his or her brief by mail, the city shall add three days to this time limit in accordance with G.S. § 1A-1, Rule 5. If local rule is subsequently amended to provide for a shorter time period for the filing of any brief, then the shorter time period shall control. The State Rules of Appellant Procedure shall govern an appeal by an appellant from the County Superior Court.
(C) Variances.
(1) Granted; denied; amended. Variances shall be granted, denied, amended, or revoked in accordance with the following provisions.
(a) All the variances shall be in writing, for a specific time period and only to accommodate a specific purpose, all of which shall be stated on the variance. The purpose of the variance to allow only travel to and from locations within a prostitution-exclusion zone according to the terms of the variance. The variance must be carried on the person while in a prostitute-exclusion zone in order to be effective and must be presented to a city police or other law enforcement officer with jurisdiction upon request.
(b) An excluded person shall make a request for a variance during regular business hours at the City Police Department.
(2) General variance. The Chief of Police or designee may, for just cause shown, grant an excluded person a variance from an exclusion at any time during and exclusion period. Except as described in § 130.24(B)(2), an appropriate variance shall be granted 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 division (C)(2) allows travel within the prostitution- exclusion zone only in accordance with the terms specified in the variance.
(3) Residential variance. The Chief of Police or designee shall grant a residential variance to an excluded person. A residential variance allows travel within the prostitution-exclusion zone in accordance with the terms of the variance.
(4) Essential needs variance. The Chief of Police or designee shall grant a essential needs variance to an excluded person. An essential needs variance allows travel within the prostitution-exclusion zone in accordance with the terms of the variance:
(a) To access a public or private place within the prostitution-exclusion zone that provides an essential need; and
(b) When the essential need sought by the excluded person cannot be reasonably accessed by the excluded person without entering the prostitution-exclusion zone.
(5) Employment variance. The Chief of Police or designee shall grant an employment variance to an excluded person. An employment variance allows an excluded person to travel to, from, or for work within the prostitution-exclusion zone in accordance with the terms of the variance if the excluded person:
(a) Is owner, principal, agent, or employee of a place of lawful employment located in the prostitution-exclusion zone; and
(b) Is required to perform employment-related services in the prostitution- exclusion zone.
(6) Social services variance. The Chief of Police or designee shall grant a social services variance to an excluded person. A social services variance allows travel within the prostitution-exclusion zone in accordance with the terms of the variance if the excluded person:
(a) Is in need of social services in the prostitution-exclusion zone;
(b) The social services are sought for reasons relating to the health or well-being of the excluded person; and
(c) The social services agency has written rules and regulations prohibiting the unlawful use and sale of controlled substances by their clients.
(7) Educational variances.
(a) The Chief of Police or designee shall grant an educational variance to an excluded person. An educational variance allows travel within the prostitution-exclusion zone in accordance with the terms of variance:
1. To enroll as a student at an educational facility located within the prostitution-exclusion zone; or
2. To attend school at an educational variance to an excluded person to allow travel within the prostitution-exclusion zone.
(b) The Chief of Police or designee may grant an educational variance to an excluded person to allow travel within the prostitution-exclusion zone in accordance with the terms of the variance if the excluded person will be enrolled at an educational facility within the prostitution-exclusion zone if the variance is granted.
(D) Revocation or amendment of variances. Variances may be revoked or amended in accordance with the following provisions.
(1) Conditions. A variance may be revoked or amended for the following reasons:
(a) The excluded person provided false information in order to obtain the variance;
(b) There is probable cause to believe the person has committed any of the offenses enumerated in § 130.23(A) in the prostitution-exclusion zone, subsequent to the issuance of the variance;
(c) If the circumstances giving rise to the issuance of the variance no longer supports continuation of the variance or a term thereof; or
(d) If the person had new circumstances that would support amending the variance.
(2) Residential variance exception. A residential variance may be revoked only:
(a) If the applicant provided false residential information in order to obtain the variance; or
(b) If the circumstances giving rise to the issuance of variance no longer is to support the continuation of the variance.
(E) Compliance. It shall be unlawful for any person to violate any term of any variance issued pursuant to this section. It shall be unlawful for any person to fail to carry a variance on his or her person or to present a variance to a City Police officer or other law enforcement officer with jurisdiction upon request while that person is in a prostitution-exclusion zone.
(Ord. passed - -2006)
Statutory reference:
Related provisions, see G.S. § 1A-1