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