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of Appeal, in an almost identical but unpublished case, People v. Godinez, 2014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