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SR - ORD-03-14 - REGULATING (2)A� wu a u!. •P Ty AGENDA ITEM August 12, 2014 TO: Honorable Mayor and Members of the City Council THRU: John W. Sibley City Manager FROM: Wayne W. Winthers, / P/ City Attorney ReviewedNeri ed By: City Manager Finance Dire or To Be Presen d B . Wayne Winthers 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. Nguyen 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 Section 9.10.030, which based upon the recent court decisions appears to be preempted by State law. Those provisions not preempted would remain intact. Additionally, the Orange Police department will be directed to suspend enforcement of Section 9.10.040 regarding Hotel /Motel restrictions until the California Supreme Court rules on the constitutionality of such restrictions in a case entitled In Re Taylor. 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 1 8/12/14 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. Nguyen 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 Nguyen 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 entering parks or other recreational areas are preempted by the State, and are therefore invalid. In addition to these cases, the City has been served with a lawsuit, Lindsay v. City of Orange, et al. United States District Court Case No. 14 -CV -00932 challenging our ordinance prohibiting sex offenders from loitering at or near child safety zones as preempted by State law. Numerous cities and counties throughout the State have amended or revised similar ordinances. 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 alleged in the lawsuit however, it is our recommendation that Section 9.10.030 pertaining to entering parks be deleted. It should be noted that the hotel and motel residency regulations will remain intact however, the Orange Police department will be directed to suspend enforcement of Section 9.10.040 until the California Supreme Court rules on the constitutionality of such restrictions in a case entitled In Re Taylor. The Halloween restrictions in Section 9.10.045 also remain. 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. Chapter 9.10 Redline ITEM 2 8/12/14 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, which was later amended by Ordinance 10 -13; 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 restrict the movements of sex offenders, such as entering into parks, are preempted by State laws, and are therefore invalid; and WHEREAS, Section 9.10.030 of the Orange Municipal Code is likely preempted by State law. 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 and shall read as follows: "Chapter 9.10 REGISTERED SEX OFFENDER RESTRICTIONS Sections: 9.10.010 Purpose of Chapter. 9.10.020 Definitions. 9.10.030 Reserved. 9.10.040 Hotel and Motel Regulations. 9.10.045 Halloween Restrictions on Conduct. 9.10.050 Penalty.