WSR 03-09-030

OFFICE OF THE GOVERNOR


[ Filed April 7, 2003, 11:57 a.m. ]

April 3, 2003

Ms. Lisa Hayes

The Cold and Hungry Coalition

329 Railroad Avenue, Suite 203

Shelton, Washington 98585


Dear Ms. Hayes:


I have reviewed your petition of emergency WAC 236-12-480, which provides:


Camping on the state capitol grounds is prohibited. Camping means erecting a tent or shelter, or arranging bedding, or parking a vehicle, for purposes of overnight habitation.


Pursuant to RCW 34.05.350(3), my review is limited to whether the following conditions, enumerated in RCW 34.05.350(1) were met:


a) That immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; or


b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule, the agency may dispense with those requirements and adopt, amend, or repeal the rule on an emergency basis.


Given that (b) has not been cited by the Department of General Administration as a basis for adoption of emergency WAC 236-12-480, I have focused my review on whether the conditions in (a) have been met.


I have decided to repeal the emergency rule. I find that there was not sufficient cause to adopt the rule on an emergency basis to preserve public health, safety, or general welfare.


However, I want to assure you that the purpose of this rule was to maintain the security of state owned public spaces and to protect the safety of all individuals who make use of those spaces. I appreciate your concern on behalf of the homeless individuals who may be adversely impacted by this emergency rule. This rule was in no way intended to criminalize homelessness or to make the lives of the homeless more difficult. The homeless who make use of the state capitol grounds are, in fact, among those individuals whose safety the rule is intended to protect.


I support the decision by Director Rob Fukai to initiate a rule-making process to consider the permanent adoption of a rule prohibiting camping. I believe it is important to have a full discussion of this public policy question. Through the public hearing processes provided in the Administrative Procedures Act, 34.05 RCW, a determination will be made regarding whether or not a permanent rule is necessary, and if so, how it should be crafted.


I hope that you and your colleagues will actively participate in the public hearing process that will be underway shortly.


Sincerely,


Gary Locke

Governor

cc: Rob Fukai, Director, Department of General Administration

Chief Ronal Serpas, Washington State Patrol

Dennis Cooper, Code Reviser

Martin Casey, Legislative and Business Relations

Director, Department of General Administration

April 3, 2003

Lawrence A. Hildes

PO Box 5405

Bellingham, Washington 98227


Paul Richmond

6057 N.W. 3rd Avenue

Seattle, Washington 98107


Subject: Repeal Emergency Rule-Making Order to WAC 236-12-480.


Dear Mr. Hildes and Mr. Richmond:


I have reviewed your petition of emergency WAC 236-12-480, which provides:


Camping on the state capitol grounds is prohibited. Camping means erecting a tent or shelter, or arranging bedding, or parking a vehicle, for purposes of overnight habitation.


Pursuant to RCW 34.05.350(3), my review is limited to whether the following conditions, enumerated in RCW 34.05.350(1) were met:


a) That immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; or


b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule, the agency may dispense with those requirements and adopt, amend, or repeal the rule on an emergency basis.


Given that (b) has not been cited by the Department of General Administration as a basis for adoption of emergency WAC 236-12-480, I have focused my review on whether the conditions in (a) have been met.


I have decided to repeal the emergency rule. I find that there was not sufficient cause to adopt the rule on an emergency basis to preserve public health, safety, or general welfare.


However, I believe that General Administration's concern that large numbers of individuals might appear and place tents or other shelters in close proximity to state buildings is legitimate. The was in Iraq and the resulting large number of demonstrations in this country and around the world make this concern more than an "imagined, implausible scenario." Such a situation could be difficult to monitor and ensure safety on the state capitol grounds.


Tents and other shelters, as well as bedding, by their very nature allow the concealment of both individuals and weapons. Never the less, the Department has demonstrated through its negotiation with the leadership of Camp Rachel that arrangements to alleviate the Department's and Washington State Patrol's concerns can be accomplished without the emergency rule.


The public health concerns are also legitimate. Again, Camp Rachel has been very cooperative in addressing the need for portable toilet facilities. The Department of General Administration has also been able to work with other major events to ensure appropriate public health protections, and I would expect that to continue.


You raised the concern that the rule infringes on the First Amendment. Despite the prohibition of overnight habitation in WAC 236-12-480, I do not conclude that this rises to a violation of the First Amendment. This is a content-neutral rule that does not unreasonably infringe upon rights of free expression, which are commonplace at our State's capitol grounds and are a hallmark of our democracy.


I support the decision by Director Fukai to initiate a rule-making process to consider the permanent adoption of a rule prohibiting camping. I believe it is important to have a full discussion of this public policy question. Through the public hearing processes provided in the Administrative Procedures Act, 34.05 RCW, a determination will be made regarding whether or not a permanent rule is necessary, and if so, how it should be crafted. My decision that there is not a sufficient emergency in this instance is a testimony to the ability of the Department manage the current situation through negotiation, not an opinion regarding the eventual need for a rule.


Sincerely,


Gary Locke

Governor

cc: Rob Fukai, Director, Department of General Administration

Chief Ronal Serpas, Washington State Patrol

Dennis Cooper, Code Reviser

Martin Casey, Legislative and Business Relations

Director, Department of General Administration

Legislature Code Reviser 

Register

Washington State Code Reviser's Office