Submitted: January 3, 2014.
Multnomah County Circuit Court Z1972123. Harold J. Blank, Judge.
Erick J. Haynie and Perkins Coie LLP filed the brief for appellant.
Harry Auerbach filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[264 Or.App. 313] EGAN, J.
After a hearing to determine whether defendant should be excluded from Portland city parks, a City of Portland Hearings Officer' determined that the city had not met its burden to prove that defendant had possessed alcohol in a city park, as had been alleged as the basis for the proposed exclusion. The city subsequently prosecuted defendant in Multnomah County Circuit Court for violating a city ordinance that prohibits possessing alcohol in city parks. At the close of evidence in that trial, defendant asserted the doctrine of issue preclusion as a bar to finding that he had possessed alcohol in the park; his reasoning was that the city hearings officer had already determined that, as a factual matter, defendant had not possessed alcohol in the park. The issue presented to us is whether the trial court erred by not applying the doctrine of issue preclusion. We conclude that it did not, and affirm.
Portland Police Officer Sanders saw defendant sitting on a bench in Waterfront Park. There was an open can of beer nearby. Defendant was holding a coffee cup. When Sanders eventually made defendant pour out the cup's contents, Sanders observed a liquid that he thought was beer, based on its color and its foaming upon hitting the ground. He issued defendant an Oregon Uniform Citation and Complaint for violating Portland City Ordinance 20.12.040, which provides, among other things, " No person shall sell, possess or consume any alcoholic beverage in any park, except under a concession contract or lease [or with a permit]." The complaint directed defendant to appear in Multnomah County Circuit Court. Sanders also issued defendant a " Notice of Exclusion or Warning from City of Portland Park." That notice relied on defendant's violation of ordinance 20.12.040 as the basis for the exclusion.
Defendant challenged that exclusion before a City of Portland hearing officer. Sanders did not appear at the exclusion hearing. He later testified that the reason he had not done so was because defendant had successfully requested a postponement of a previously scheduled hearing date and Sanders had not been informed of the change in date. Although a complete record of that hearing does not appear [264 Or.App. 314] before us, an exhibit list attached to the order indicated that the hearings officer received and considered multiple pieces of evidence from the " Complaint Signer's Office," including the notice of exclusion, a " [Portland Police Bureau] Special Report," a " [Portland Police Bureau] Custody Report," and the " Oregon Uniform Citation and Complaint." According to the resulting order, defendant stated at the hearing that he was drinking coffee during his encounter with Sanders and had not possessed beer in the park. Noting that " Parks  has the burden of persuasion in this case," the hearings officer's order stated that, " without further explanation from Parks, the Hearings Officer cannot conclude that Parks has met its burden with respect to the Notice of Exclusion." The order accordingly ruled that the notice of exclusion was invalid.
The complaint against defendant, however, remained, and he was brought to trial upon it in the Multnomah County Circuit Court. See generally ORS 3.132 (providing that circuit courts have jurisdiction over alleged city ordinance violations); ORS 153.005 - 153.121 (providing rules for the trial and appeal of certain ordinance violations). The infraction was treated as a violation; no prosecutor was present, Sanders was the only witness, and defendant was represented by counsel. At
the outset of the trial, the court asked if there would be opening argument; defendant's counsel declined, but stated, " we'll have some legal argument at the conclusion." Sanders then testified about his encounter with defendant. Defendant's lawyer cross-examined Sanders. At the conclusion of that examination defense counsel introduced the hearings officer's order from the park-exclusion proceeding, and argued that the doctrine of issue preclusion should apply to prevent the state from proving the violation. The court rejected that argument, stating:
" I don't believe that collateral estoppel or issue preclusion applies in an infraction case like this. For one thing, we've got different parties involved. This [the park exclusion matter] is strictly between the Parks Bureau, which is an [264 Or.App. 315] agency of the City of Portland, and the Portland ...