SR - ORD-03-14 - REGULATINGOF �$
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AGENDA ITEM
June 10, 2014
TO: Honorable Mayor and
Members of the City Council
THRU: John W. Sibley
City Manager
FROM: Wayne Winthers
City Attorney
ReviewedNerified By:
City Manager
Finance Director
To Be Presented By:
Cons Calendar _
City Mgr Rpts
Council Reports X
Legal Affairs
Boards /Cmtes _
Public Hrgs
Admin Reports
Plan/Environ
i. SUBJECT
Adopt Ordinance No. 03 -14 amending OMC Chapter 9.10 regulating registered sex offender
restrictions.
2. SUMMARY
Recent court cases of People v. Noyen and People v. Godinez have held that State law preempts
many local ordinances regulating the daily life of sex offenders. In order to come into
compliance with these recent cases, Ordinance No. 03 -14 amends the City's registered sex
offender restrictions by deleting only those provisions, which based upon the recent court
decisions appear to be preempted by State law. Those provisions not preempted would
remain intact.
3. RECOMMENDED ACTION
Approve First Reading of Ordinance No. 03 -14.
4. FISCAL IMPACT
None.
5. STRATEGIC PLAN GOAL(S)
Provide for a safe community.
ITEM 7 , ,2 - 1 6/10/14
6. GENERAL PLAN IMPLEMENTATION
Not Applicable.
7. DISCUSSION and BACKGROUND
Recently, two Court of Appeal decisions struck down local laws regulating sex offender's entry
into city and county parks. In People v. N en the Court of Appeal upheld the trial court
decision dismissing a misdemeanor complaint filed against Nguyen for entering a City of Irvine
park without the prior written permission of the Chief of Police. In People v. Godinez the court
ruling was the same, dismissing the complaint against Godinez for entering a County park
facility without the written permission of the sheriff. While only the N_�uyen decision was
published (the California Supreme Court denied review), the court's holding in both cases were
virtually identical and based on the finding that local regulations were preempted by State law.
In finding the laws preempted, the Court of Appeal identified 11 State statutes regulating a sex
offender's daily life activities. The court pointed to these statutes as evidence that the State
intended to "fully occupy the field" of regulating sex offenders. As such, the court held that
local laws restricting activities of sex offenders which require written permission from the
sheriff or chief of police prior to entering parks or other recreational areas are preempted by the
State, and are therefore invalid. More importantly, based on the analysis used by the courts in
its finding of preemption, the decisions strongly indicate that cities may not place restrictions on
a sex offender's daily life activities unless State law expressly allows it. The courts cited the
more stringent residency restrictions authorized under Penal Code section 3003.5(c).
In addition to these cases, the City has received correspondence from the California Reform Sex
Offender Laws ( "CRSOL "), an organization which advocates for the rights of those convicted or
accused of sex crimes. The purpose of the letter was to inform the City about the
aforementioned decisions and notify the City that, in CROSL's opinion, its ordinance
prohibiting sex offenders from loitering at or near child safety zones is preempted by State law.
The letter threatens litigation in Federal court should the City fail to repeal its current sex
offender ordinance. Numerous cities and counties throughout the State have received a similar
letter.
Our office has carefully reviewed the court decisions as they pertain to the City's sex offender
ordinance. We do not believe the entire ordinance must be repealed, as suggested by the
CRSOL. However, based on the court decisions, it is our recommendation that those
restrictions pertaining to the daily life activities of registered sex offenders be deleted from the
ordinance. As such, Ordinance No. 03 -14 amends the City's sex offender restrictions by
deleting those provisions that, based upon the recent court decisions, appear to be
preempted by State law.
ITEM 2 6/10/14
It should be noted that the remaining provisions of the ordinance regarding hotel and
motel residency regulations remain intact. Our office will continue to track and monitor
legal developments and report any legislation or court decisions that affect local control
in this area to the City Council.
8. ATTACHMENTS
Ordinance No. 03 -14.
Redline Chapter 9.10.
ITEM 3 6/10/14
ORDINANCE NO. 03-14
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE AMENDING CHAPTER 9.10 OF
THE ORANGE MUNICIPAL CODE REGARDING
REGISTERED SEX OFFENDERS.
WHEREAS, on September 9, 2008, the City Council of the City of Orange adopted
Ordinance 16 -08, adding Chapter 9.10 Registered Sex Offender Restrictions, to the Orange
Municipal Code; and
WHEREAS, Section 9.10.030 prohibits a sex offender from loitering in a child safety
zone, defined as the area within 500 feet of child care centers, schools, parks, libraries, bus
stops, pools, and places that provide classes or activities for children; and
WHEREAS, on February 23, 2010, City Council of the City of Orange adopted
Ordinance 03 -10, adding Section 9.10.045, Halloween, Restrictions on Conduct, to Chapter
9.10 of the Orange Municipal Code; and
WHEREAS, Section 9.10.045 prohibits a sex offender from participating in Halloween
related activities, including but not limited to, decorating his or her house, or passing out candy
on Halloween; and
WHEREAS, on January 10, 2014, the Fourth Appellate District of the California Court
of Appeals held in People v. Nguyen, that local laws which attempt to regulate the daily lives of
sex offenders are preempted by State laws, and are therefore invalid; and
WHEREAS, Section 9.10.030 and 9.10.045 of the Orange Municipal Code are likely
preempted by State law; and
WHEREAS, Section 9.10.030 of Chapter 9.10 relates to the residency of registered sex
offenders at hotels and motels, and Section 3003.5(c) of the California Penal Code provides
that cities may enact local ordinances restricting the residency of registered sex offenders
beyond the restrictions contained in that statute.
NOW THEREFORE, the City Council of the City of Orange does ordain as follows:
SECTION I:
Chapter 9.10 of the Orange Municipal Code shall hereby be amended as follows: