5.8 SR 07-12-1999Elk River
Police Department
Memorandum
To: Mayor and City Council
From: Assistant Chief Beahen
Date: June 29, 1999
Subject: Trespass Ordinance
Item 5.8.
The police department is requesting that the council consider adopting a new ordinance
covering the issue of trespassing at our designated Crime Free Multi -housing premises,
which are located in the City of Elk River.
Background: The City of Elk River uses a program called "Crime Free Multi -
housing" to help insure that our apartment complexes and rental property stays as safe
as possible. This program involves the property owners in a cooperative effort with the
police department and has proven to be a very successful venture. Almost all apartment
buildings in the city are active members of our Crime Free Coalition. It should be noted
that Crime Free Multi -housing is a statewide program and it is used in most major cities
within the State of Minnesota.
Trespass: One of the basic principals of the program, is the empowerment of the
caretaker or property owner to both identify and eliminate problems on the premises
which can lead to increased calls for police service, increases in reported crime, and
general unrest on the premises. The property officials have been trained by our
department in the use of "Trespass notices" to assist them in removing unwanted
parties from the grounds, and preventing them from returning. This has proven to be
invaluable in reducing actual criminal acts on or near the rental units.
Legal concerns: The St. Cloud Area Legal Aid offices issued a warning to the police
department, advising us that they felt the use of these notices was improper, and most
likely — unconstitutional. Departments who use the notices on a more frequent basis
were contacted and asked about their policy, law and any legal challenges associated
with the notices during their use.
Bloomington uses the notices at the Mall of America on unruly or criminal subjects, has
been challenged in court on the notices, and has been able to show that the trespass
notice is legal and constitutional. Minneapolis, Coon Rapids and Anoka were other cities
who have Crime Free Multi -housing, and they too report no problems or issues with the
notices. These cities however have specific ordinances regarding the trespass offense
and subsequent issuance of the trespass notice.
The Legal Aid attorney was concerned that the notice would be used in areas where it
would infringe on the civil rights of the tenant. The example given was when a tenant
was behind on rent, and instead of using the unlawful detainer or eviction process, the
landlord used the trespass notice as a means to quickly remove the tenant from the
13065 Orono Parkway • P.O. Box 723 • Elk River, MN 55330 9 (612) 441-2324 • Fax (612) 441-8937
premises. This use has not been condoned by our police department and actually would
be a violation of the tenant's civil rights.
Remedy: The concerns and correspondence from Legal Aid were directed to our
City Attorney for review and advice. He was also given a copy of the current Coon
Rapid's ordinance for review with a request for a draft of a similar ordinance to be used
in the City of Elk River.
We have now received the attorney's legal opinion and the proposed ordinance. The
ruling given by the attorney's office is that the proposed ordinance meets the
requirements under Minnesota case law, although there are no cases yet which have
challenged a specific ordinance under any due process claims. They recommend a draft
ordinance and also stated that we must maintain strict guidelines in enforcing trespass
notices to insure that they are not used in the overbroad manner which brings concerns
to the legal services staff.
Recommendation: The police department believes that the trespass notice is
the backbone of the Crime Free program. We feel that in order to prevent possible legal
challenges to the program, that Elk River should follow the lead of the other involved
communities, and adopt a trespass ordinance which specifically covers rental property
and the use of a trespass notice.
Submitted by:
Je �A Beahen
Assistant Chief
6-29-99
Attachments:
Letter from Gregory Munson, Doherty, Rumble & Butler
Proposed Ordinance
Proposed Trespass Notice
DOHERTY
RUMBLE
& BUTLER
N''if i>10A AI \l')(I ATIOA
Vttornevs n I a"
June 21, 1999
Mr. Tom Zerwas
Police Chief
City of Elk River
P.O. Box 490
Elk River, MN 55330--0490
Re: Elk River Trespass Notice Ordinance
Dear Tom:
3500 Fifth Street Towers
1 v) South Fifth Street
Minneapolis, \linnesotn 55{02425
Telephone (612) 677-4500
FAX (612) 67-4800
\avwdrblmc.com
Writer s direct dial numb<r
(612)677-4533
Munsog@drblaw.com
You have asked that Doherty, Rumble & Butler review a letter submitted by the St. Cloud Area Legal
Services Association regarding the proposed trespass ordinance for the City of Elk River. We have
undertaken an analysis of that letter and have concluded the following:
The principal concern set forth in the Legal Services letter is that use of the notices may violate the
due process rights of alleged trespassers. The letter sets forth no legal support for that assertion, but
rather, makes general conclusory statements. A review of Minnesota case law on this issue reveals
that no court has addressed whether a trespass notice ordinance similar to the one proposed in Elk
River violates the due process rights of an alleged trespasser. On the other hand, several cases have
examined situations in which trespass notices have been issued. In one case the use of a trespass
notice was overturned as unconstitutional, but in that case, an alleged trespasser was issued a trespass
notice for one building which was a part of a larger overall complex of buildings. On a later date, the
police attempted to enforce the trespass ordinance against the individual but at a different building
with a different address which was also in the same complex. The court simply struck the application
of the trespass notice in that specific circumstance by noting that technically, the defendant had only
been issued a notice with respect to one address within the complex. Other cases have also examined
situations in which trespass notices were issued. In none of those cases have the Minnesota courts
expressed concern over the due process implications of the trespass notice.
The Legal Services letter undoubtedly raises a potential concern with the use of the trespass
ordinance by pointing out that state action is relied upon to enforce the trespass notice subsequent
to its issuance by a private landlord or tenant. No court has expressly ruled upon that issue. There
is a possibility that an individual could challenge the constitutionality of this ordinance, and that a
court could find a violation of due process. Enforcement of the ordinance would subsequently be
rendered impossible. If the City desires to incorporate a tool such as this, we believe the attached
MunsoG 592827.1
St Vaal - AAIB-Ij 0,e • Domer • iYaJun�hm. L).L.
Mr. Tom Zerwas
June 21, 1999
Page 2
draft ordinance is the best mechanism. In addition, it will be important that the City maintain strict
guidelines in enforcing trespass notices so that they are not enforced in an overbroad manner as was
the case in the facts described above.
Very truly yours, 1
W
Gregory W. Munson
GWM/eka
Mumoc 592827.1
4��
ORDINANCE 99 -
AN ORDINANCE OF THE CITY OF ELK RIVER
AN ORDINANCE AMENDING CHAPTER 400.00 OF THE CITY CODE
OF ORDINANCES TO INCLUDE SECTION 403.00 ENTITLED
TRESPASSING ON PRIVATE PROPERTY
The City Council of the City of Elk River does hereby ordain as follows:
Section 1. That Section 403.00 entitled "Trespassing on Private
Property" be added under Chapter 400.00 of the Elk River City Code of
Ordinances as follows:
403 - TRESPASSING ON PRIVATE PROPERTY
403.00 - PURPOSE
To enable private owners of real property, situated within the
City and to which the public has some implicit right of access,
to exclude persons from that property where the person has
committed a crime on the premises or violated the properly posted
rules of conduct for the property.
403.02 - DEFINITIONS
The following words and terms when used in this Section shall
have the following meanings, unless the context clearly indicates
otherwise:
COMMON AREAS: All areas of the property which are maintained for
the common use of its tenants or the general public incidental to
the conduct of the normal and legitimate activities upon the
premises, including, but not limited to, parking lots and ramps,
private roadways, reception areas, rotundas, waiting areas,
hallways, restroom facilities, elevators, escalators, and
staircases.
COVERED PREMISES: Any improved real property, or portion
thereof, to which the public has an implicit right of access
including, but not limited to, places of worship, shopping malls,
retail sales facilities, hotels, motels, nursing homes,
restaurants, multiple -family residential buildings, residential
apartment complexes, hospitals, medical and dental offices,
clubs, lodges, office buildings, banks and financial
institutions, transit stations, athletic and recreational
facilities, personal service establishments, theaters, and
daycare facilities.
PROPERTY MANAGER: Any owner of a covered premises or the agent
thereof who is authorized to exercise control over the property,
including common areas. The term "property manager" includes any
tenant who is an owner of the property or agent of the owner and
authorized to exercise control over the property, including some
common areas.
TENANT: Any authorized occupant of a covered premises, or the
agent thereof.
TRESPASS NOTICE: A written notice which contains minimally the
following information:
1. A verbatim copy of Section 403.06, infra;
2. The name, date of birth, and address of the person to whom
the notice is issued, to the extent this information is available
and is provided by that person, and the name of the person's
custodial parent or guardian when that person is a juvenile;
3. A description of the specific conduct which serves as a
basis for the issuance of the notice;
4. A description of the specific property to which the trespass
notice applies;
S. The period during which the trespass notice is in effect,
including the date of its expiration;
6. The name, title, and telephone number of a person with
authority to modify, amend, or rescind the trespass notice prior
to its normal expiration;
7. The method by which the trespass notice was served upon the
person to whom it was issued.
- WHEN TRESPASS NOTICE MAY ISSUE
A property manager or tenant may issue a trespass notice as
provided under this ordinance only under the following
circumstances:
1. Where there is probable cause to believe that the person has
committed an act prohibited by state statute or city ordinance
while on the covered premises, whether in or on a common area or
areas or in a tenant's space; or
2. Where there is probable cause to believe that the person has
violated the rules of conduct for the property which have been
conspicuously posted at all public entrances to the property or
have been provided to the person in writing by the property
manager or tenant.
403.06 - PROHIBITED CONDUCT
1. No person shall trespass in or upon any private property
and, without claim of right, refuse to depart therefrom on demand
of the property manager or tenant.
2. No person who has been served with a trespass notice in
conformity with this ordinance shall enter the premises described
therein during its effective period without the written
permission of the party issuing the notice or the authorized
agent thereof as specifically named in the notice. Violation of
the terms of the notice will result in criminal prosecution with
potential incarceration of up to 90 days in jail and a potential
fine of up to $700.00.
3. No person shall enter any area of private property in
violation of conspicuously posted signs prohibiting or
restricting access thereto, including but not limited to the
following signs, "No Trespassing", "Authorized Personnel Only",
"Private", "Employees Only", and "Emergency Exit Only".
403.08 - ADDITIONAL PROVISIONS
1. Where a trespass notice is issued by a tenant who is not the
property manager, the notice is effective only as to that portion
of the premises over which the tenant is entitled to exercise
control.
2. No trespass notice shall be effective for more than one year
from the date of its original issuance.
3. All trespass notices issued pursuant to this section must be
properly served upon the person named therein as follows:
A. personal service documented by either a receipt signed
by the person to whom it was issued or an affidavit of the
issuer;
B. where the person named in the trespass notice is
arrested by a police officer for an act prohibited by state
statute or city ordinance, the arresting officer may
personally serve the notice on behalf of the property
manager or tenant and so document that fact in the officer's
official police report detailing the incident.
403.10 - PENALTY
A violation of Section 403.06 shall be punishable as a
misdemeanor.
Section 2. That this ordinance shall take effect and be in full force
from and after the date of its publication.
Passed and adopted this 12th day of July, 1999 by the City Council of the
City of Elk River.
Stephanie A. Minzing, Mayor
ATTEST:
Sandra A. Peine, City Clerk
TO:
Name _
Address
TRESPASS NOTICE
AUTHORIZED BY ELK RIVER CITY CODE CHAPTER
Date of Birth:
(Printed name of parent/guardian if person is under 18)
Specific conduct that forms basis for notice (include time, place, and circumstances):
Date of conduct:
You are prohibited from entering the following premises, including all grounds, outbuildings, parking areas,
drives, and sidewalks thereto (premises address):
❑ (d if applies) This notice includes areas under control of tenants. THE TENANTS OF THE PREMISES
ARE PRECLUDED FROM INVITING ONTO THE PREMISES ANY PERSON TO WHOM A TRESPASS
NOTICE HAS BEEN ISSUED.
This notice is in effect
and expires 12:01 a.m. on
Date (must be within 30 days of date of conduct) Date (up to one year from effective date)
Person to contact with respect to modifying, amending, or rescinding this notice:
Name _
Address
Title
Telephone number:
(If not served by police officer:) I verify that I personally handed a copy of this notice to the above person on the above date
(specify if different 1. (Print Name)
(At least one of the following must be completed:) Notary Information:
❑ Subscribed to and sworn before me this
day of
or
❑ I acknowledge receipt of this notice
or
❑ Served by Police Officer
19
(Signature is voluntary; pawnt/guardian should also sign if person is under 18)
Badge no. Icr
(May be served by police only under authority of property manager or tenant.)
ELK RIVER CITY CODE CHAPTER PROVIDES:
(1) No person shall trespass in or upon any private property and, without claim of right, refuse to depart
therefrom on demand of the property manager or tenant.
(2) No person who has been served with a trespass notice in conformity with this ordinance shall enter
the premises described therein during its effective period without the written permission of the issuing property
manager or tenant or the authorized agent thereof named in the notice. Violation of the terms of the notice will result
in criminal prosecution with potential incarceration of up to 90 days in jail and a potential fine of up to $700.00.
(3) No person shall enter any area of private property in violation of conspicuously posted signs
prohibiting or restricting access thereto, including but not limited to the following signs, "No Trespassing",
"Authorized Personnel Only", "Private", "Employees Only", "Emergency Exit Only".
Violations. Any person violating any of the provisions of this Chapter is guilty of a misdemeanor.
Original (Police) Served Copy Manager/Tenant Copy
581230.2
ADDENDUM TO LEASE
Regarding Persons Trespassed from the Property
Resident agrees not to invite or allow anyone into their apartment home, or onto the common
property, who has been issued a Trespass Notice by the property manager of this property.
I UNDERSTAND THAT TO DO SO WILL BE CONSIDERED A MATERIAL
VIOLATION OF THE LEASE AND GOOD CAUSE FOR TERMINATION OF
TENANCY.
This addendum is agreed to pursuant to Elk River City Ordinance
Management
Resident
Resident
Resident
Date
Date
Date
Date
Resident(s) acknowledge receipt of this addendum by signature of this document.
. •:
581230.2