CR 2012-034 Trespss Ordinance AmendmentApril 9, 2012
I�a Council Report 2012-034
Trespass Ordinance Amendment
Proposed Action
Staff recommends adoption of the following motion: Move to approve the amendment
of the Trespass Ordinance 2005.57, Subd. 3, to reflect a one year demand, rather than
the current language of 90 days.
Overview
Staff recently recognized a discrepancy between our current trespass ordinance and
the state statute for trespass. Our city ordinance demands a period of ninety (90) days
that a person may not reenter the lawful possessor's land once they have received a
written demand to depart. The state statute on trespassing has a time period of one (1)
year. Staff recommends that our city ordinance on trespassing reflect the same time
period of one (1) year such as in the state statute language.
Primary Issues to Consider
Why should the City amend the current language of the trespassing ordinance?
Should the language in the City Ordinance reflect the same time period as stated
in the state statute for trespassing?
Supporting Information
• State Statute 609.605
• Memorandum from Jason Hutchison
Michael J. eynolds
Chief of Police
609.605 TRESPASS.
Subdivision l.Misdemeanor.
(a) The following terms have the meanings given them for purposes of this
section.
(1) "Premises" means real property and any appurtenant building or structure.
(2) "Dwelling" means the building or part of a building used by an individual
as a place of residence on either a full-time or a part-time basis. A dwelling may be
part of a multidwelling or multipurpose building, or a manufactured home as
defined in section 168.002, subdivision 16.
(3) "Construction site" means the site of the construction, alteration, painting,
or repair of a building or structure.
(4) "Owner or lawful possessor," as used in paragraph (b), clause (9), means
the person on whose behalf a building or dwelling is being constructed, altered,
painted, or repaired and the general contractor or subcontractor engaged in that
work.
(5) "Posted," as used:
(i) in paragraph (b), clause (4), means the placement of a sign at least 8-1/2
inches by 11 inches in a conspicuous place on the exterior of the building, or in a
conspicuous place within the property on which the building is located. The sign
must carry a general notice warning against trespass;
(ii) in paragraph (b), clause (9), means the placement of a sign at least 8-1/2
inches by 11 inches in a conspicuous place on the exterior of the building that is
under construction, alteration, or repair, or in a conspicuous place within the area
being protected. If the area being protected is less than three acres, one additional
sign must be conspicuously placed within that area. If the area being protected is
three acres but less than ten acres, two additional signs must be conspicuously
placed within that area. For each additional full ten acres of area being protected
beyond the first ten acres of area, two additional signs must be conspicuously
placed within the area being protected. The sign must carry a general notice
warning against trespass; and
(iii) in paragraph (b), clause (10), means the placement of signs that:
(A) carry a general notice warning against trespass;
(B) display letters at least two inches high;
(C) state that Minnesota law prohibits trespassing on the property; and
(D) are posted in a conspicuous place and at intervals of 500 feet or less.
(6) "Business licensee," as used in paragraph (b), clause (9), includes a
representative of a building trades labor or management organization.
(7) "Building" has the meaning given in section 609.581, subdivision 2.
(b) A person is guilty of a misdemeanor if the person intentionally:
(1) permits domestic animals or fowls under the actor's control to go on the
land of another within a city;
(2) interferes unlawfully with a monument, sign, or pointer erected or marked
to designate a point of a boundary, line or a political subdivision, or of a tract of
land;
(3) trespasses on the premises of another and, without claim of right, refuses to
depart from the premises on demand of the lawful possessor;
(4) occupies or enters the dwelling or locked or posted building of another,
without claim of right or consent of the owner or the consent of one who has the
right to give consent, except in an emergency situation;
(5) enters the premises of another with intent to take or injure any fruit, fruit
trees, or vegetables growing on the premises, without the permission of the owner
or occupant;
(6) enters or is found on the premises of a public or private cemetery without
authorization during hours the cemetery is posted as closed to the public;
(7) returns to the property of another with the intent to abuse, disturb, or cause
distress in or threaten another, after being told to leave the property and not to
return, if the actor is without claim of right to the property or consent of one with
authority to consent;
(8) returns to the property of another within one year after being told to leave
the property and not to return, if the actor is without claim of right to the property
or consent of one with authority to consent;
(9) enters the locked or posted construction site of another without the consent
of the owner or lawful possessor, unless the person is a business licensee;
(10) enters the locked or posted aggregate mining site of another without the
consent of the owner or lawful possessor, unless the person is a business licensee;
or
(11) crosses into or enters any public or private area lawfully cordoned off by
or at the direction of a peace officer engaged in the performance of official duties.
As used in this clause: (i) an area may be "cordoned off' through the use of tape,
barriers, or other means conspicuously placed and identifying the area as being
restricted by apeace officer and identifying the responsible authority; and (ii)
"peace officer" has the meaning given in section 626.84, subdivision 1. It is an
affirmative defense to a charge under this clause that a peace officer permitted
entry into the restricted area.
Subd. 2.Gross misdemeanor.
Whoever trespasses upon the grounds of a facility providing emergency shelter
services for battered women, as defined under section 611 A.31, subdivision 3, or of
a facility providing transitional housing for battered women and their children,
without claim of right or consent of one who has right to give consent, and refuses
to depart from the grounds of the facility on demand of one who has right to give
consent, is guilty of a gross misdemeanor.
Subd. 3.
[Repealed, 1993 c 326 art 2 s 34]
Subd. 4.Trespasses on school property.
(a) It is a misdemeanor for a person to enter or be found in a public or
nonpublic elementary, middle, or secondary school building unless the person:
(1) is an enrolled student in, a parent or guardian of an enrolled student in, or
an employee of the school or school district;
(2) has permission or an invitation from a school official to be in the building;
(3) is attending a school event, class, or meeting to which the person, the
public, or a student's family is invited; or
(4) has reported the person's presence in the school building in the manner
required for visitors to the school.
(b) It is a misdemeanor for a person to be on the roof of a public or nonpublic
elementary, middle, or secondary school building unless the person has permission
from a school official to be on the roof of the building.
(c) It is a gross misdemeanor for a group of three or more persons to enter or
be found in a public or nonpublic elementary, middle, or secondary school building
unless one of the persons:
(1) is an enrolled student in, a parent or guardian of an enrolled student in, or
an employee of the school or school district;
(2) has permission or an invitation from a school official to be in the building;
(3) is attending a school event, class, or meeting to which the person, the
public, or a student's family is invited; or
(4) has reported the person's presence in the school building in the manner
required for visitors to the school.
(d) It is a misdemeanor for a person to enter or be found on school property
within one year after being told by the school principal or the principal's designee
to leave the property and not to return, unless the principal or the principal's
designee has given the person permission to return to the property. As used in this
paragraph, "school property" has the meaning given in section 152.01, subdivision
14a, clauses (1) and (3).
(e) A school principal or a school employee designated by the school principal
to maintain order on school property, who has reasonable cause to believe that a
person is violating this subdivision may detain the person in a reasonable manner
for a reasonable period of time pending the arrival of a peace officer. A school
principal or designated school employee is not civilly or criminally liable for any
action authorized under this paragraph if the person's action is based on reasonable
cause.
(f) A peace officer may arrest a person without a warrant if the officer has
probable cause to believe the person violated this subdivision within the preceding
four hours. The arrest may be made even though the violation did not occur in the
peace officer's presence.
Subd. 5.Certain trespass on agricultural land.
(a) A person is guilty of a gross misdemeanor if the person enters the posted
premises of another on which cattle, bison, sheep, goats, swine, horses, poultry,
farmed cervidae, farmed ratitae, aquaculture stock, or other species of domestic
animals for commercial production are kept, without the consent of the owner or
lawful occupant of the land.
(b) "Domestic animal," for purposes of this section, has the meaning given in
section 609.599.
(c) "Posted," as used in paragraph (a), means the placement of a sign at least
11 inches square in a conspicuous place at each roadway entry to the premises. The
sign must provide notice of a biosecurity area and wording such as: "Biosecurity
measures are in force. No entrance beyond this point without authorization." The
sign may also contain a telephone number or a location for obtaining such
authorization.
(d) The provisions of this subdivision do not apply to employees or agents of
the state or county when serving in a regulatory capacity and conducting an
inspection on posted premises where domestic animals are kept.
STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S. STEINER*
WYNN CURTISS
JASON T. HUTCHISON
*Real Property Law Specialist, certified
by the Minnesota State Bar Association
MEMORANDUM
Date: 27 March 2012
To: Chief Mike Reynolds
Captain Brent Johnson
Detective Ray Laudenbach
Police Services Liaison Anne Buck
From: Jason T. Hutchison
Assistant City Attorney
Re: Multi -business trespass
Recommended ordinance change
Office: (952) 938-7635
Fax: (952)938-7670
Direct: (952) 253-0070
jhutchisonu steinercurtiss.com
Confidential:
Attorney — Client Privilege
The Police Department has made extensive use of both the state trespass statute (609.605) and our
own city ordinance (2005.57) to effectively diminish local crime — particularly in and around the
downtown "bar" district.
In 2005, the legislature amended the state statute (609.605), increasing the time a person can be
ordered to leave from 30 days to one yea . No corresponding change was made in our local
ordinance — which still limits the amount of time a person can be asked to leave to 90 days.
Before we begin our multi -business trespass program, I believe it is important to bring the Ordinance
and the statute into conformity by increasing the "stay away" time from 90 days to one year.
Our local ordinance is important for two reasons:
1. Unlike the state statute, our ordinance specificallx allows the police to act as agents of the lawful
possessor. The local ordinance — and not the state statute — establishes the legal basis for the
"trespass notices" issued by officers. By making this authority explicit, rather than implicit, we
remove a potential defense available to trespassers.
Our ordinance puts the burden on the trespasser to stay away for the required time period, unless he
or she obtains written permission to return. The state statute, however, does not require written
authority to return. Under the state statute, a trespasser may return if they have "consent of one with
authority to consent' — written or otherwise. The "written permission" element makes prosecution of
these matters more straight -forward and saves on the amount of resources to be directed at these
matters. Without it, prosecution is hampered by claims that "so-and-so told me I could come back."
This is a plausible defense under the state statute, but not under our ordinance — unless they have it
in writing.
/Hopkins.crim/Multi-business trespass.Trespass memo.doc
For these reasons, I recommend that you ask the City Council to amend our Trespass ordinance,
2005.57, as follows:
2005.57. Trespass. Subdivision 1. General rule. Whoever intentionally
does either of the following is guilty of a misdemeanor:
a) enters upon the land of another and, without claim of right, refuses to depart
therefrom on demand of the lawfully possessor or his agent; or
b) enters upon the land of another, without claim of right of consent of the lawful
possessor, during such hours as entry is prohibited by conspicuously posted signs.
Subd. 2. Demand. A demand to depart may be made orally or in
writing or by posting at reasonable intervals signs which prohibit trespass on the
affected land. Any city police officer may be appointed an agent of the lawful
possessor of land for the purpose of making a demand to depart therefrom.
Subd. 3. No person who has received a written demand to depart
pursuant to Subdivision 2 of this Section shall reenter the lawful possessor's land
without the written permission of the lawful possessor, or the agent providing said
demand, for a period of up to one (1) year from the date of the
written demand, as provided therein. (Amended: Ordinance 97-803)
Please don't hesitate to contact me with any questions or concerns.
JTH
/Hopkins.crim/Multi-business trespass.Trespass memo.doc
2005.57. Trespass. Subdivision 1. General rule. Whoever intentionally does either of the
following is guilty of a misdemeanor:
a) enters upon the land of another and, without claim of right, refuses to depart therefrom on
demand of the lawfully possessor or his agent; or
b) enters upon the land of another, without claim of right of consent of the lawful possessor,
during such hours as entry is prohibited by conspicuously posted signs.
Subd. 2. Demand. A demand to depart may be made orally or in writing or by posting at
reasonable intervals signs which prohibit trespass on the affected land. Any city police officer may be
appointed an agent of the lawful possessor of land for the purpose of making a demand to depart
therefrom.
Subd. 3. No person who has received a written demand to depart pursuant to Subdivision
2 of this Section shall reenter the lawful possessor's land without the written permission of the lawful
possessor, or the agent providing said demand, for a period of up to .,s.,oty (90) day -s one (1) year from the
date of the written demand, as provided therein. (Amended: Ordinance 97-803)
CITY OF HOPKINS
COUNTY OF HENNEPIN
ORDINANCE NO. 2012-1047
AN ORDINANCE AMENDING
SECTION 2005.57 OF THE HOPKINS CITY CODE
THE COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS:
Section 1. That Section 2005.57 be amended as follows:
2005.57. Trespass. Subdivision 1. General rule. Whoever intentionally does either of the
following is guilty of a misdemeanor:
a) enters upon the land of another and, without claim of right, refuses to depart therefrom on
demand of the lawfully possessor or his agent; or
b) enters upon the land of another, without claim of right of consent of the lawful possessor,
during such hours as entry is prohibited by conspicuously posted signs.
Subd. 2. Demand. A demand to depart may be made orally or in writing or by
posting at reasonable intervals signs which prohibit trespass on the affected land. Any city
police officer may be appointed an agent of the lawful possessor of land for the purpose of
making a demand to depart therefrom.
Subd. 3. No person who has received a written demand to depart pursuant to
Subdivision 2 of this Section shall reenter the lawful possessor's land without the written
permission of the lawful possessor, or the agent providing said demand, for a period of up to
one 1 year from the date of the written demand, as provided therein.
Section 2. The effective date of this ordinance shall be the date of publication.
First Reading:
April 17, 2012
Second Reading:
May 1, 2012
Date of Publication:
May 10, 2012
Date Ordinance Takes Effect:
May 10, 2012
Gene Maxwell, Mayor
ATTEST:
Kristine Luedke, City Clerk