Penalties for public urination watered down by state law down public urination penalty
From our weekly issue dated March 11, 2009
Approximately 60 persons packed the Cave Junction City Hall council chamber for its Monday night, March 9 meeting and heard Josephine County District Attorney Wally Hicks state what local officials long have suspected: The city is powerless to stop public drinking and the behaviors that accompany it.
Public urination often is mentioned as one of the biggest problems associated with the public drinking. But Hicks told the audience that the Oregon Criminal Code contains no laws against it.
“There isn’t anything that directly addresses that,” he said. The statute that most closely addresses the issue regards public indecency, which presents another problem.
“The issue there is that it doesn’t address this particular problem,” Hicks said, adding that intent must be proven in order to prosecute the crime of public indecency. However, Hicks said that offensive littering, a class “C” misdemeanor, may be used as a tool by law enforcement.
“That’s something, at least, to allow the deputy to stop and at least initiate a contact,” he said.
A portion of the state’s Criminal Code on disorderly conduct that most applies to the situation in Cave Junction won’t work, either, Hicks said.
“The courts have been pretty clear,” Hicks said. “We’re pretty limited.”
Councilor Margaret Miller agreed. “It looks like our hands are tied in the legal sense,” she said.
During a question-and-answer session that followed Hicks’ remarks, Kerby resident John Bowler mentioned legislative efforts to try and fix the problem. Rep. Ron Maurer (R-Grants Pass) and Rep. Dennis Richardson (R-Central Point) have introduced House Bill 2522 to repeal ORS 430.325. That ordinance prohibits local municipalities from enacting ordinances against public intoxication, public drinking, drunk and disorderly conduct, vagrancy or being under the influence of controlled substances.
HB 2522 has been referred to the House Judiciary Committee.
“I don’t see any way that will ever get through,” Bowler said.
Resident Roger Thomas asked what citizens can do about the situation.
Josephine County Sheriff’s Office (JCSO) Deputy George Gasperson, the city’s contract officer, said that if residents photograph someone urinating or defecating in public, he can use it to cite them. Hicks added that the picture can be the basis for prosecution.
Gasperson said that people can give a trespass letter from their business to him. JCSO builds those into its system, and if such a letter is on file, Gasperson said, he can cite violators after a warning.
Advertisement:
Also on the agenda was a continued discussion regarding a Local Improvement District (LID) for Redwood Hwy. on the north side of the city. Grants Pass-based attorney Dan Hughes wrote a letter on the subject to City Recorder Jim Polk and City Attorney Patrick Kelly on March 5.
“Our legal counsel is not convinced of the rebuttal,” Polk said. He added that Kelly recommended that the city not proceed with establishing the LID.
Hughes addressed the council Monday night to present his position. The city had presented him and the other developers with two questions. The first was whether or not LIDs can be formed for projects that are already finished.
“There is nowhere in the LID ordinance that provides that the LID must be initiated prior to the work being completed,” Hughes wrote in his March 5 letter. “It is clear that the drafters of the ordinance did not contemplate this being a restriction on the LID.”
Hughes added in that letter that only Advanced Financing Districts must be in place prior to construction. He also cited cases from Florida and New York involving retroactive LIDs. He said that the New York case involved an LID that was formed more than three years after the project was finished, which ultimately was upheld by the courts.
The second question answered by Hughes involved whether or not there can be an LID on a state highway. Hughes stated that the Oregon Dept. of Transportation OK’d the improvements, and that the fact is reflected in the minutes of meetings held in the council chamber with Polk and former Mayor Tony Paulson.
The project did benefit the city, Hughes said, and the developers put up the money with the understanding that they would be paid back for it.
Hughes said that to act otherwise would be a “misrepresentation to the developers.” He added, “The city has the responsibility to do the right thing under these circumstances.”
Mayor Don Moore said that the city is in an “uncomfortable situation” regarding the LID. He asked that the matter be continued to the council’s April 13 meeting so that Kelly could review Hughes’ March 5 letter. Hughes said that he had no objection to the continuance.
Advertisement:
