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CC 2014-06-10_08.h. Adopt Ordinance Repealing AGMC 9.29MEMORANDUM TO: CITY COUNCIL FROM: TIMOTHY J. CARMEL, CITY ATTORNEY DAVID HIRSCH, ASSISTANT CITY ATTORNEY SUBJECT: CONSIDERATION OF ADOPTION OF ORDINANCE REPEALING CHAPTER 9.29 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS DATE: JUNE 10, 2014 RECOMMENDATION: It is recommended that the City Council adopt an ordinance repealing Chapter 9.29 of the Arroyo Grande Municipal Code relating to Proximity Restrictions to Children's Facilities for Registered Sex Offenders. IMPACT TO FINANCIAL AND PERSONNEL RESOURCES: There is minimal financial impact related to adoption of the proposed ordinance. The Legislative and Information Services Department budget includes funds for publication of the ordinance summary pursuant to State law. BACKGROUND On May 27, 2014, the City Council introduced, without modification, an ordinance repealing Chapter 9.29 of the Arroyo Grande Municipal Code relating to proximity restrictions to children's facilities for registered sex offenders. Ordinance No. 624, adopted in June 2010, created certain restrictions on registered sex offenders from being within 300 feet of a "children's facility", which under the ordinance includes schools, day care centers and parks. ANALYSIS OF ISSUES: In January, 2014, the Fourth District of the California Court of Appeal decided the case of People v. Nguyen, (CaL App. 4th Dist. Jan. 10, 2014). In Nguyen, the Court of Appeal held that an ordinance in the City of Irvine that prohibited registered sex offenders from entering city parks without written permission from the Chief of Police was invalid because it was preempted by State law. The Court of Appeal, in an almost identical but unpublished case, People v. Godinez, 2014 Cal. App. Unpub. LEXIS 159 (January 10, 2014), Appellate Court Case No. G047657, also held a similar ordinance enacted by the County of Orange to be Item 8.h. - Page 1 CITY COUNCIL CONSIDERATION OF ADOPTION OF ORDINANCE REPEALING CHAPTER 9.29 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS JUNE 10, 2014 PAGE2 preempted by State law. In both cases, the Court of Appeal held that the State Legislature's enactment of a comprehensive statutory scheme regulating the daily lives of sex offenders, including places they are allowed to go, indicates the Legislature's intent to occupy the entire field of sex offender regulation to the exclusion of additional local restrictions. As a result, the court held the local laws were preempted and invalid. After the Court of Appeal's rulings, the Orange County District Attorney filed petitions in the California Supreme Court seeking review of both cases. On April 23, 2014, the Supreme Court declined to review the cases. Accordingly, the Supreme Court's action leaves intact the rulings that the California Legislature had established a "complete system" for regulating a sex offender's daily life. Therefore, local regulations in this area are prohibited. The Council requested additional information regarding the State's proximity and related restrictions for registered sex offenders. In determining that local regulation of a sex offender's daily life is preempted by State law, the Godinez Court set forth a comprehensive list of restrictions the State imposes on a sex offender's daily life as follows: "The restrictions the Penal Code imposes on a sex offender's daily life include (1) a lifetime duty to register with local law enforcement for each city or county in which the offender resides and to update that registration annually or upon any relevant change(§§ 290-290.024); (2) a state-maintained Web site that discloses information about the offender to the public(§§ 290.4, 290.45, 290.46); (3) a sex offender's duty to submit to monitoring with a global positioning device while on parole and potentially for the remainder of the offender's life if the underlying sex offense was one of several identified felonies(§§ 3000.07, 3004, subd. (b)); (4) a prohibition against the offender "enter[ing] 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(§ 3053.8, subd. (a)); (5) a prohibition against the offender residing with another sex offender while on parole and within 2,000 feet of a school or park for the rest of the offender's life (§ 3003.5); (6) a prohibition against the offender entering any school without "lawful business" and written permission from the school (§ 626.81 ); (7) enhanced penalties for the offender remaining at or returning to "any school or public place at or near which children attend or normally congregate" after a school or law enforcement official has asked the offender to leave (§ 653b, italics added); (8) a prohibition against the offender entering a day care or residential facility for elders or dependent adults without registering with the facility if the victim of the underlying sex offense was an elder or dependent adult(§ 653c); (9) Item 8.h. - Page 2 CITY COUNCIL CONSIDERATION OF ADOPTION OF ORDINANCE REPEALING CHAPTER 9.29 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS JUNE 10, 2014 PAGE 3 a duty to disclose the offender's status as a sex offender when applying for or accepting a job or volunteer position involving direct and unaccompanied contact with minor children (§ 290.95, subds. (a) & (b)); (10) a prohibition against the offender working or volunteering with children if the victim of the underlying sex offense was under 16 years of age (§ 290.95, subd. (c)); and (11) a prohibition against the offender receiving publicly funded prescription drugs or other therapies to treat erectile dysfunction (§ 290.02)." In light of the Supreme Court's decision to let the Appellate Court decisions stand, it is recommended that the Council adopt the attached ordinance repealing Chapter 9.29 of the Arroyo Grande Municipal Code. ALTERNATIVES: The following alternatives are provided for the Council's consideration: 1. Adopt an ordinance repealing Chapter 9.29 of the Arroyo Grande Municipal Code; 2. Modify and re-introduce the Ordinance; or 3. Provide direction to staff. ADVANTAGES: The repeal of Chapter 9.29 will avoid having to defend an ordinance that is preempted by State law, and therefore will avoid incurring unnecessary legal expenses. DISADVANTAGES: No disadvantages with the recommended action are identified. ENVIRONMENTAL REVIEW: No environmental review is required for this item. PUBLIC NOTIFICATION AND COMMENTS: The Agenda was posted in front of City Hall on Thursday, June 5, 2014 and the Agenda and staff report were posted on the City's website on Friday, June 6, 2014. No public comments were received. Item 8.h. - Page 3 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE REPEALING CHAPTER 9.29 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS WHEREAS, On June 8, 2010, the City Council of the City of Arroyo Grande adopted Ordinance No. 624, adding Chapter 9.29 to Title 9 of the Arroyo Grande Municipal Code, entitled "Proximity Restrictions to Children's Facilities for Registered Sex Offenders", which created certain restrictions on registered sex offenders from being within 300 feet of a "children's facility", which under the ordinance includes schools, day care centers and parks; and WHEREAS, on January 10, 2014, the Fourth Appellate District of the California Court of Appeal, in the published opinion People v. Nguyen, 222 Cal. App. 4th 1168 (2014), and in a similar unpublished opinion, People v. Godinez, 2014 Cal. App. Unpub. LEXIS 159 (January 10, 2014), held that a local ordinance making it a misdemeanor for registered sex offenders to enter a park where children regularly gather without permission from law enforcement is preempted by state law; and WHEREAS, after the Court of Appeals rulings in Nguyen and Godinez the Orange County District Attorney filed petitions in the California Supreme Court seeking review of both cases, and on April 23, 2014 the Supreme Court declined to review the cases, leaving intact the rulings that the California Legislature had established a "complete system" for regulating a sex offender's daily life and preempting local regulations such as contained in Chapter 9.29 of the Arroyo Grande Municipal Code; and WHEREAS, since the Supreme Court's decision not to review the Nguyen and Godinez cases the City has been threatened with litigation if it does not repeal Chapter 9.29, arid based upon the foregoing the City Council has determined that it is appropriate to repeal Chapter 9.29. NOW, THEREFORE BE IT ORDAINED by the City Council of the City of Arroyo Grande as follows: SECTION 1. Chapter 9.29 of the Arroyo Grande Municipal Code is hereby repealed. SECTION 2. If any section, subsection, subdivision, paragraph, sentence, or clause of this Ordinance or any part thereof is for any reason held to be unlawful, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, or clause thereof, irrespective of the fact that any one or Item 8.h. - Page 4 ORDINANCE NO. PAGE2 more section, subsection, subdivision, paragraph, sentence, or clause be declared unconstitutional. SECTION 3. A summary of this Ordinance shall be published in a newspaper published and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted in the office of the City Clerk. Within fifteen (15) days after adoption of the Ordinance, the summary with the names of those City Council Members voting for and against the Ordinance shall be published again, and the City Clerk shall post a certified copy of the full text of such adopted Ordinance. SECTION 4. This Ordinance shall take effect thirty (30) days after its adoption. On motion by Council Member ___ , seconded by Council Member ___ , and by the following roll call vote to wit: AYES: NOES: ABSENT: the foregoing Ordinance was adopted this 1oth day of June, 2014. Item 8.h. - Page 5 ORDINANCE NO. PAGE3 TONYFERRARA,MAYOR ATTEST: KELLY WETMORE, CITY CLERK APPROVED AS TO CONTENT: STEVEN ADAMS, CITY MANAGER APPROVED AS TO FORM: TIMOTHY J. CARMEL, CITY ATTORNEY Item 8.h. - Page 6