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HomeMy WebLinkAbout14 INTRODUCE AN ORDINANCE TO REPEAL CHAPTER 12 OF ARTICLE 5 OF THE CITY CODE (REGARDING SEX OFFENDERS) TO CONFORM WITH RECENT COURT DECISIONSAgenda Item 14 Reviewed: Ae REPORT City Manager AGENDA Finance Director �A MEETING DATE: AUGUST 16, 2016 TO: HONORABLE MAYOR AND COUNCIL MEMBERS VIA: JEFFREY C. PARKER, CITY MANAGER CHARLES CELANO, CHIEF OF POLICE FROM: DAVID E. KENDIG, CITY ATTORNEY SUBJECT: INTRODUCE AN ORDINANCE TO REPEAL CHAPTER 12 OF ARTICLE 5 OF THE CITY CODE (REGARDING SEX OFFENDERS) TO CONFORM WITH RECENT COURT DECISIONS. SUMMARY: On March 1, 2011, the City Council adopted Ordinance No. 1395 adding Chapter 12 to Article 5 of the Tustin City Code (Sex Offender Residency and Loitering Restrictions) which added restrictions on sex offenders establishing residency in specified areas and imposed loitering restrictions in certain areas. In 2014, in response to two court cases that struck down local restrictions on sex offender loitering restriction, the City Council repealed the loitering restrictions in the City Code but left in place the residency restrictions. Since then, the California Supreme Court issued another decision that places the validity of the residency restrictions in Ordinance 1395 into question. RECOMMENDATION: That the City Council introduce and conduct first reading by title only of Ordinance No. 1470 attached hereto as Attachment C and entitled "An Ordinance Of The City Council Of The City Of Tustin Repealing Chapter 12 Of Article 5 Of The Tustin City Code Regarding Sex Offender Residency And Loitering Restrictions." FISCAL IMPACT: None. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 2 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. On January 10, 2014, the Fourth Appellate District of the California Court of Appeal issued two decisions, People v. Nciuyen, (222 Cal.App.4th 1168), and People v. Godinez (2014 WL 99188) (unpublished), striking down local ordinances prohibiting registered sex offenders from entering parks without the permission of law enforcement.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. Because of the holdings in those cases, on June 17, 2014, the City Council adopted Ordinance 1444 repealing the portions of the ordinance relating to sex offender loitering restrictions, but leaving in place the existing restrictions on sex offenders' residency. The restrictions in the Tustin City Code that remained in the City Code after Ordinance 1444 are set forth in Tustin City Code sections 5950 — 5960 (see Attachment A). Those provisions prohibited registered sex offenders from becoming a permanent or temporary resident within a Residential Exclusion Zone, which is defined as an area within 2,000 feet of day care center, public or private school, or a park. (A map depicting the Residential Exclusions Zone was most recently updated in 2015 and is attached as Attachment B.) The City Code also prohibited renting or occupying a single-family dwelling, a unit in a multi -family dwelling, or the same guest room in a hotel with another sex offender unless the two are legally related to one another. The restriction also applied to separate guest rooms in a hotel if there is already a sex offender occupying another guest room in the hotel, unless the two are legally related. However, in 2015, the California Supreme Court in In Re Taylor, 60 Cal. 4th 1019 held that blanket enforcement of residency restrictions on registered sex offenders under a San Diego County ordinance hampered efforts to supervise and rehabilitate sex offenders in the interests of public safety, that such enforcement was arbitrary and oppressive, that such enforcement violated due process under the Fourteenth Amendment of the U.S. Constitution, that as such enforcement caused many registered sex offenders on parole in that jurisdiction to be homeless, and that such blanket restrictions bear no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 3 The California Supreme Court's decision in that case calls into question the validity and enforceability of the City's residency restrictions. It is recommended that the City's registered offender residency restrictions be repealed by adopting Ordinance 1470, attached as Attachment C. It is worth noting that a number of other public agencies in California have also repealed or been ordered by courts to cease enforcing their locational or residency restrictions on registered sex offenders, including but not limited to: the cities of Anaheim, Arcadia, Bell Gardens, Costa Mesa, Grover Beach, Fullerton, Huntington Beach, Irvine, Lake Forest, Long Beach, Mission Viejo, Murrieta, Pomona, Redlands, Santa Ana, and the Counties of Orange, Riverside, and San Diego. Continuing State Law Protections. Notwithstanding the repeal of local ordinances, however, it should be noted that law enforcement personnel including the Tustin Police Department still have the authority to enforce State law limitations on registered sex offenders intended to protect children including but not limited to: 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 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. ATTACHMENTS: A. City Code Sections 5950 — 5960 B. Residential Exclusion Zone Map C. Proposed Ordinance No. 1470 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 4 ATTACHMENT A CHAPTER 12 - SEX OFFENDER RESIDENCY AND LOITERING RESTRICTIONS • 5950 — PURPOSE The purpose of this chapter is to address the following City Council findings and determinations: A. On November 7, 2006, the voters of the State of California overwhelmingly approved Proposition 83, the Sexual Predator Punishment and Control Act, commonly known as "Jessica's Law", to protect Californians, and in particular, to protect the State's children from sex offenders. B. Proposition 83, as codified at subsection (b) of California Penal Code section 3003.5, prohibits any person who is required to register as a sex offender per California Penal Code section 290 et seq. (a "sex offender") from residing within two thousand (2,000) feet of any public or private school, or any park where children regularly gather. C. Proposition 83, as codified at subsection (c) of California Penal Code section 3003.5, authorizes local governments to enact ordinances that further restrict the residency of sex offenders. D. Subsection (a) of California Penal Code section 3003.5, enacted in 1998 prior to Proposition 83, prohibits a sex offender who is on parole from residing in a "single-family dwelling" with another sex offender during his/her parole period, unless the multiple sex offenders are legally related by blood, marriage, or adoption. For purposes of this state statute, "single-family dwelling" does not include a residential facility such as a group home that serves six (6) or fewer persons. E. Tustin is an attractive place for families and children because of the City's largely residential character. F. There are many places in the City where children frequently gather such as schools, commercial establishments focused upon providing goods or services to children, parks, libraries, day care centers, youth activity centers and other locations that host classes and/or group activities for children. G. The City is concerned with the prospect of multiple sex offenders residing together in violation of California Penal Code section 3003.5. H. By enacting this Article 5, Chapter 12, Tustin intends to: (i) reduce the potential dangers associated with sex offenders living near families with children, and/or in places where children frequently gather, (ii) regulate the number of sex offenders permitted to reside together in dwellings and/or hotels, (iii) protect children who use and enjoy child -oriented locations throughout the City from the dangers presented by any sex offender who might choose to reside and/or loiter near such locations, (iv) establish regulations for property owners who rent residential facilities to sex offenders. I. Article XI, Section 7 of the California Constitution authorizes the City to enact and enforce ordinances that regulate conditions that may be public nuisances or health hazards, or that promote social, economic or aesthetic considerations. J. California Government Code section 38773.5 authorizes cities to pass ordinances that provide for the recovery of attorneys' fees in any action, administrative proceeding or special proceeding to abate a nuisance. K. Sex offenders have high recidivism rates that exceed those exhibited by other convicted criminals. The City must therefore take all necessary action to protect children and potential victims from these dangerous predators. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 5 L. The City is concerned about the high rate of recidivism among sex offenders and their dangerousness as a class. The City Council takes legislative notice of the November 2003 report issued by the U.S. Department of Justice, Bureau of Justice Statistics entitled, "Recidivism of Sex Offenders Released From Prison in 1994," published in 2003. A fifteen (15) state study of prisoners released in 1994 showed that when compared to non -sex offenders released from state prison, released sex offenders were four times (4x) more likely to be rearrested for a new sex crime. A copy of this report has been available for City Council and public review at the City Clerk's Office as a public record since the date when the agenda including this ordinance's consideration was posted, and will remain as such. M. The City Council agrees with the U.S. Department of Justice statements in its brief to the Supreme Court that convicted sexual offenders are much more likely to repeat the offense of conviction than any other type of felon," and (ii) "clinical rehabilitative programs can enable sexual offenders to manage their criminal sexual impulses and thereby reduce the risk of sexual recidivism, [but a] vital component of those programs is for participants to come to terms with their sexual misconduct." N. The City Council finds that since sex offender recidivism rates are empirical data, but sex offender rehabilitation depends upon an individual sex offenders personal efforts and acceptance of responsibility, factors that cannot be predicted, the danger presented by sex offenders is an unacceptable risk to the health, safety and welfare of the community that requires the City's regulatory intervention. O. In enacting this chapter, the City does not intend to punish sex offenders for their prior illegal conduct. Rather, the purpose of this chapter is to create a regulatory and nonpunitive scheme to protect children and the public health, safety and welfare for the City's residents and visitors. P. Nothing in this chapter shall be deemed to modify or in any way limit restrictions placed upon a sex offender by terms and conditions of parole or probation. (Ord. No. 1395, Sec. 1, 3-1-11) 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 care home" as that term is defined in California Health and Safety Code Section 1596.78. "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. "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 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 6 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 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. 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 ollowinginstitutions 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. (Ord. No. 1395, Sec. 1, 3-1-11; Ord. No. 1444, Sec. I, 6-17-14) 5953 – REPEALED Editor's note— Sec. II of Ord. No. 1444, adopted June 17, 2014, repealed Sec. 5953 which pertained to sex offender loitering prohibition, child safety zone; notice re community events, and derived from Sec. 1 of Ord. No. 1395, adopted March 1, 2011. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 7 5954 - SEX OFFENDER RESIDENCE PROHIBITION, RESIDENTIAL EXCLUSION ZONE A. Except as provided by this chapter, a sex offender is prohibited from becoming a permanent or temporary resident in any residential exclusion zone. The exceptions to this section are stated in Section 5960. B. The City Clerk shall maintain as a public record a map that graphically identifies each residential exclusion zone in the City. The residential exclusion zone map shall be prepared and annually updated by the Director of Community Development and the Police Chief, and shall be administratively approved on or before March 1 of each year by the City Manager or his/her designee. Additional updates to the residential exclusion zone map shall be within the discretion of the City Manager, or his/her designee, as warranted by City approvals of new, modified and terminated land uses. A true and correct copy of each residential exclusion zone map shall be posted on the City's website, http://www.tustinca.org. (Ord. No. 1395, Sec. 1, 3-1-11) 5955 - SEX OFFENDER RESIDENCE PROHIBITION, SINGLE-FAMILY AND MULTIFAMILY DWELLINGS A. Same Dwelling. Except as provided by this chapter, a sex offender shall be prohibited from renting or otherwise occupying a single-family dwelling or a unit in a multifamily dwelling with another sex offender, regardless of the permanent or temporary residential status of either sex offender, unless those persons are legally related by blood, marriage, or adoption. B. Multiple Dwellings. Except as provided by this chapter, a sex offender shall be prohibited from renting or otherwise occupying a unit in a multifamily dwelling as a permanent resident if there is another unit in that multifamily dwelling that is already rented or otherwise occupied by a sex offender as a permanent resident, unless those persons are legally related by blood, marriage, or adoption. C. Temporary Residency. Except as provided by this chapter, a sex offender shall be prohibited from renting or otherwise occupying any single-family dwelling or any unit in a multifamily dwelling as a temporary resident. D. The exceptions to this section are stated in Section 5960. (Ord. No. 1395, Sec. 1, 3-1-11) 5956 - SEX OFFENDER OCCUPANCY PROHIBITION, HOTELS A. Same Hotel Room. Except as provided by this chapter, a sex offender shall be prohibited from renting or otherwise occupying the same guest room in a hotel with another sex offender, regardless of the residential status of any particular sex offender, unless those persons are legally related by blood, marriage, or adoption. B. Separate Hotel Rooms. Except as provided by this chapter, a sex offender shall be prohibited from renting or otherwise occupying a guest room in a hotel if there is another guest room in that same hotel that is already rented or otherwise occupied by a sex offender, regardless of the residential status of any particular sex offender, unless those persons are legally related by blood, marriage, or adoption. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 8 C. The exceptions to this section are stated in Section 5960. (Ord. No. 1395, Sec. 1, 3-1-11) 5957 - EVICTION REQUIREMENTS If, in order to abate a nuisance identified in Section 5958, a responsible party is required to terminate a sex offender's tenancy or other occupancy, the responsible party shall comply with all applicable state law procedures and requirements governing the eviction of tenants of real property. If, in accord with these procedures and requirements, a court determines that such termination is improper, the responsible party shall not be in violation of this Chapter 12by allowing the sex offender to remain as a tenant or other occupant. (Ord. No. 1395, Sec. 1, 3-1-11) 5958 - VIOLATION CONSTITUTES NUISANCE Any single-family dwelling, multi -family dwelling or hotel operated or maintained in a manner inconsistent with the occupancy requirements of this chapter or the restrictions of California Penal Code section 3003.5 is declared to be unlawful and is defined as and declared to be a public nuisance, injurious to the public health, safety and welfare and subject to abatement and recovery of abatement costs and expenses in accord with Article 5, Chapter 5 of the Tustin City Code. (Ord. No. 1395, Sec. 1, 3-1-11) 5959 - CRIMINAL PENALTY, OTHER REMEDIES, ENFORCEMENT A. Notwithstanding any other penalty provided by the Tustin City Code or otherwise by law, any person who violates this chapter shall, in accord with an exercise of discretion by the City Attorney, be guilty of a misdemeanor or an infraction. Any person who violates any provision of this chapter shall be guilty of a separate offense for each and every day during any portion of which any such person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly. B. The City's remedies with respect to violations of this chapter, including the criminal penalty specified herein, are cumulative. Nothing in this chapter shall limit the authority of the City Council to direct that the City Attorney commence a civil enforcement proceeding, e.g., seek a restraining order, preliminary or permanent injunction. Furthermore, nothing in this chapter shall limit the authority of the Director of Community Development, Police Chief, City Manager, or any enforcement officer, as that term is defined in Tustin City Code Section 5501, from initiating administrative enforcement action, or a related administrative proceeding to abate a public nuisance as identified Section 5958. Any civil or administrative proceeding so commenced or initiated may be an alternative to, or in addition to, a criminal proceeding initiated per this Section 5959. C. The Chief of Police shall establish and maintain administrative rules and procedures.stating the City's enforcement protocol with respect to this chapter. (Ord. No. 1395, Sec. 1, 3-1-11) 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 9 5960 - APPLICABILITY OF RESIDENCY RESTRICTIONS The provisions of this chapter that restrict residency shall not apply to: A. A sex offender's otherwise lawful tenancy or other occupancy of a dwelling that commenced prior to the effective date of this chapter, or a renewal thereof; or B. A sex offender's otherwise lawful tenancy or other occupancy of that commenced prior to the initial operation of a day care center, public or private school, or park, that would otherwise create a residential exclusion zone prohibiting said tenancy or occupancy; or C. A sex offender's otherwise lawful tenancy or other occupancy of a dwelling located on property within a child safety zone that is not located in a residential exclusion zone. (Ord. No. 1395, Sec. 1, 3-1-11) 5961– REPEALED Editor's note— Sec. II of Ord. No. 1444, adopted June 17, 2014, repealed Sec. 5961 which pertained to applicability of loitering prohibition, and derived from Sec. 1 of Ord. No. 1395, adopted March 1, 2011. 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 10 ATTACHMENT B 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 11 ATTACHMENT C ORDINANCE NO. 1470 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN REPEALING CHAPTER 12 OF ARTICLE 5 OF THE TUSTIN CITY CODE REGARDING SEX OFFENDER RESIDENCY AND LOITERING RESTRICTIONS. The City Council of the City of Tustin, California, hereby ordains as follows: SECTION I: Chapter 12 of Article 5 of the Tustin City Code is repealed in its entirety. SECTION III: This Ordinance shall become effective on the 31St day after its adoption on second reading. SECTION IV: 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 , 2016. JOHN NIELSEN MAYOR ATTEST: ERICA RABE CITY CLERK APPROVED AS TO FORM: DAVID KENDIG CITY ATTORNEY 1184341.1 Sex Offender Residency Ordinance August 16, 2016 Page 12 ORDINANCE CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) ORDINANCE NO. Erica Rabe, 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 , 2016, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: ERICA RABE CITY CLERK 1184341.1