CC 2014-05-27_11.a. Repeal AGMC Chapter 9.29MEMORANDUM
TO: CITY COUNCIL
FROM: TIM CARMEL, CITY ATTORNEY
DAVID HIRSCH, ASSISTANT CITY ATTORNEY
SUBJECT: CONSIDERATION OF REPEAL OF CHAPTER 9.29 OF THE
ARROYO GRANDE MUNICIPAL CODE RELATING TO
PROXIMITY RESTRICTIONS TO CHILDREN'S FACILITIES FOR
REGISTERED SEX OFFENDERS
DATE: MAY 27, 2014
RECOMMENDATION:
It is recommended that the City Council introduce 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 pursuant to State law.
BACKGROUND
On June 8, 2010, the City Council adopted Ordinance No. 624 adding Chapter
9.29 to Title 9 of the Arroyo Grande Municipal Code, which is entitled "Proximity
Restrictions to Children's Facilities for Registered Sex Offenders". This
ordinance 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.
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of Appeal, in an almost identical but unpublished case, People v. Godinez, 2014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
preempted by State law. In both cases, the Court of Appeal held that the State
Item 11.a. - Page 1
CITY COUNCIL
CONSIDERATION OF REPEAL OF CHAPTER 9.29 OF THE ARROYO
GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO
CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS
MAY 27, 2014
PAGE2
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.
ANALYSIS OF ISSUES:
Since the Court of Appeals decisions in Nguyen and Godinez, the City has
received several letters from an organization called California Reform Sex
Offender Laws threatening that a lawsuit will be filed if the City does not repeal
Chapter 9.29. Because Chapter 9.29 creates additional restrictions on sex
offenders being in proximity to a "children's facility" than is otherwise provided in
State law, based on the Court of Appeals rulings in Nguyen and Godinez,
Chapter 9.29 is preempted by State law.
Lawsuits have been filed against a number of cities and one county who declined
to repeal their ordinances, while waiting to see if the California Supreme Court
would accept the Nguyen and Godinez cases for review. Now that the Supreme
Court has declined to review those cases, the City has little choice other than
repealing Chapter 9.29 or it will get embroiled in a lawsuit and incur considerable
legal expenses.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
1. Introduce an ordinance repealing Chapter 9.29 of the Arroyo Grande
Municipal Code;
2. Do not 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 save incurring unnecessary legal
expenses.
Item 11.a. - Page 2
CITY COUNCIL
CONSIDERATION OF REPEAL OF CHAPTER 9.29 OF THE ARROYO
GRANDE MUNICIPAL CODE RELATING TO PROXIMITY RESTRICTIONS TO
CHILDREN'S FACILITIES FOR REGISTERED SEX OFFENDERS
MAY 27,2014
PAGE3
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, May 22, 2014 and the
Agenda and staff report were posted on the City's website on Friday, May 23,
2014. No public comments were received.
Item 11.a. - 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,
and 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 11.a. - 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 __ day of ___ , 2014.
Item 11.a. - 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 11.a. - Page 6