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HomeMy WebLinkAbout14 REPEAL OF SEX OFFENDER LOITERING RESTRICTIONS• Agenda Item 14 AGENDA REPORT Reviewed: r City Manager Finance Director . NIA MEETING DATE: JUNE 3, 2014 TO: HONORABLE MAYOR AND COUNCIL MEMBERS VIA: CHARLES CELANO, CHIEF OF POLICE FROM: DAVID E. KENDIG, CITY ATTORNEY SUBJECT: REPEAL OF SEX OFFENDER LOITERING RESTRICTIONS SUMMARY: The attached ordinance amends Section 5952 and repeals Sections 5953 and 5961 of Chapter 12 of the Tustin City Code, which prohibit registered sex offenders from loitering in any Child Safety Zone. The California Court of Appeal recently issued two decisions holding that State law preempted similar prohibitions in the City of Irvine and the County of Orange. However, the Tustin Police Department may still enforce the Tustin City Code residency restrictions and various state regulations imposed on registered sex offenders enacted to protect children. RECOMMENDATION: That the City Council introduce and conduct first reading of Ordinance No. 1444 by title only, and waive further reading. FISCAL IMPACT: None. BACKGROUND AND DISCUSSION: On March 1, 2011, the City Council adopted Ordinance No. 1395, which added Chapter 12 (Sex Offender Residency and Loitering Restrictions) to Article 5 of the Tustin City Code. In addition to establishing residency restrictions according to Jessica's Law (Proposition 83, 2006), Ordinance No. 1395 also prohibited sex offenders registered pursuant to Section 290 of the California Penal Code from loitering in certain designated Child Safety Zones, including day care centers, schools, parks, and other establishments catering to children. 1003126.1 Sex Offender Residency and Loitering Restrictions Ordinance June 3, 2014 Page 2 On January 10, 2014, the Fourth Appellate District of the California Court of Appeal issued two decisions, People v. Nguyen, (222 Cal.App.41h 1168), and People v. Godinez (2014 WL 99188)(unpublished), striking down local ordinances prohibiting registered sex offenders from entering parks without the permission of law enforcement. These cases found that the State's comprehensive system of sex offender regulations is so extensive that it leaves no room for additional local regulation without the State specifically granting local jurisdictions authority to adopt additional regulations. On April 23, 2014, the California Supreme Court declined to review the two above - referenced Court of Appeal decisions. The California Supreme Court's decision not to review the two Court of Appeal decisions concerning local registered sex offender regulations effectively renders such ordinances unenforceable. The Tustin Police Department may, however, continue to enforce State law limitations intended to protect children including: Penal Code Section 3053.8(a), which prohibits registered sex offenders from entering any park where children regularly gather without the express permission of his or her parole agent if the victim of the underlying sex offense was under 14 years of age; Penal Code Section 626.81, which prohibits registered sex offenders from entering any school without "lawful business" and written permission from the school; and Penal Code Section 290.95(c), which prohibits registered sex offenders from working or volunteering with children if the victim of the underlying sex offense was under 16 years of age. Further, as expressly authorized by State Law (Penal Code § 3003.5(c)), the Tustin Police Department may continue to enforce the registered sex offender residency restrictions set forth in Chapter 12 of the Tustin City Code. ATTACHMENT: Proposed Ordinance No. 1444 1003126.1 ORDINANCE NO. 1444 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN AMENDING CITY CODE SECTION 5952 AND REPEALING SECTIONS 5953 AND 5961 RELATING TO SEX OFFENDER LOITERING RESTRICTIONS. The City Council of the City of Tustin, California, hereby ordains as follows: SECTION I: Section 5952 — "Definitions" of the Tustin City Code is hereby amended to read as follows (deletions shown in st:1, ugh text): 5952 — DEFINITIONS As used in this chapter, the following terms shall have meanings as set forth below. "Child" or 'children" shall mean any person(s) under the age of eighteen (18) years of age. "Day care center" shall mean any facility licensed by the State of California, Department of Social Services that provides nonmedical care, on a less than twenty- four -hour basis, to children in need of personal services, supervision or assistance that is essential for sustaining the daily living activities, or protecting any such child. "Day care center" does not include any "family day 1003110.1 MIN .. Mr "Day care center" shall mean any facility licensed by the State of California, Department of Social Services that provides nonmedical care, on a less than twenty- four -hour basis, to children in need of personal services, supervision or assistance that is essential for sustaining the daily living activities, or protecting any such child. "Day care center" does not include any "family day 1003110.1 MIN "Day care center" shall mean any facility licensed by the State of California, Department of Social Services that provides nonmedical care, on a less than twenty- four -hour basis, to children in need of personal services, supervision or assistance that is essential for sustaining the daily living activities, or protecting any such child. "Day care center" does not include any "family day 1003110.1 care home" as that term is defined in California Health and Safety Code Section 1596.78. "Defined veRue" shall mean the I nf' of n E). Unity event that GFeatec nhild safety zene r this nhapter "Dwelling" shall mean a single - family dwelling or a multi - family dwelling. For purposes of this chapter, dwelling shall not include any state - licensed residential facility which serves six (6) or fewer persons and is exempted under California Penal Code section 3003.5. "Hotel" shall mean a commercial establishment that rents guest rooms or suites to the public on a nightly, weekly, or monthly basis, and shall include a motel, a bed and breakfast and an inn that operates in such capacity. "L ,f se " as used in the definition of loiter shall mean a reason of City evaluatien of any purpeFtedly lawful PUFPose, shall inGlude this GhapteF. T " 't " hall n to delay, linger or 'die fore per g ied in s of five (5) minutes, in OF about a Ghild safety ZORe without a lavAul puFpese. LoiteFing shall net inGlude patronage ef a GE)mmeFG*al establishmeRt that does not qualify as a _ vnec h'Irl safety zone ept insefar as it takes plane d n a Gomm.In'ty event "Multifamily dwelling" shall mean a residential structure designed for the permanent residency of two or more individuals, groups of individuals, or families living independently. This definition shall include a duplex, apartment complex, mobile home park, and a condominium complex, but shall not include a hotel. "Owner's authorized agent" shall mean any natural person, firm, association, joint venture, joint stock company, partnership, organization, club, company, limited liability company, corporation, business trust, manager, lessee, servant, officer, or employee, authorized to act for the property owner. "Park" shall include any indoor or outdoor area owned, leased, controlled, maintained, or managed by a public entity, or open to the public, where children regularly gather, and which provides recreational, cultural, and /or community service activities including, but not limited to, playgrounds, playfields, and athletic courts. ..Permanent resident" shall mean any person who, on a given date, has obtained a legal right to occupy or reside in, or has already, as of that date, occupied or resided in, a single - family or multifamily dwelling or a hotel, for more than thirty (30) consecutive days. "Property owner" shall include the owner of record of real property, as recorded in the office of the county registrar- recorder /county clerk, as well as any 1003110.1 partial owner, joint owner, tenant, tenant -in- common, or joint tenant, of such real property. "Residential exclusion zone" shall mean any area located within two thousand (2,000) feet from the nearest property line of the subject property to the nearest property line of a day care center, public or private school, or park. A h'Irl safety _en_, but the two (2) types of zones aFe addressed s namtely by this h.. ter NO residential evnLm'n zone OF erPen thereof shall he sreaterd or exist with respeGt W the defined aFea of a GE)FnMunity event solely by virtue of the within the Ghild safety zone GGResponding to said Gernmunity event. Distance from a residential exclusion zone shall be measured in a straight line, without regard to intervening structures, from the outer boundaries of the properties on which the residential exclusion zone is situated. "Responsible party" shall mean a property owner and /or a property owner's authorized agent. "Public or private school" shall mean any place of learning including the following: institutions of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education; nursery schools, kindergartens, Sunday schools, elementary schools, middle or junior high schools, and senior high schools. "Sex offender" shall mean any person who must register in accord with California's "Sex Offender Registration Act," codified at California Penal Code section 290 et seq., as a result of a conviction, whether upon trial or by plea of guilty or nolo contendere, regardless of whether or not that person is on parole or probation. "Single- family dwelling" shall mean one (1) permanent residential dwelling located on a single lot. "Temporary resident" shall mean any person who, on a given date, has obtained a legal right to occupy or reside in, or has already, as of that date, occupied or resided in, a single - family or multifamily dwelling or a hotel, for a period of thirty (30) consecutive days or less. "Youth GeRteF" shall sl rde but et h limited .d to the /'lift.. G G� CTT;,;teQ Miller laemm n•ty (`enter the Columbus Tustin Antivity !`enter, and the Tustin Family and Youth GenteF. SECTION II: Section 5953 — "Sex Offender Loitering Prohibition, Child Safety Zone; Notice Re Community Events" of the Tustin City Code is hereby repealed. 1003110.1 SECTION III: Section 5961 — "Applicability of Loitering Prohibition" of the Tustin City Code is hereby repealed. SECTION IV: This Ordinance shall become effective on the 315` day after its adoption on second reading. SECTION V: If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED this day of 2014. ELWYN A. MURRAY MAYOR ATTEST: JEFFREY C. PARKER CITY CLERK r�. _4 W DAVID KENDIG CITY ATTORNEY ORDINANCE CERTIFICATION 1003110.1 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) ORDINANCE NO. 1444 Jeffrey C. Parker, City Clerk of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance was passed and adopted at a regular meeting of the City Council held on the day of , 2014, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: JEFFREY C PARKER CITY CLERK 1003110.1