SR - ORD-03-14 - REGULATING (2)A� wu a u!. •P
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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
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City Mgr Rpts
Council Reports X
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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.