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DATE:
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FROM
STAFF REPORT
September 2, 2014
Mayor and Members of the City Council
Robert Guthrie, Chief of Police
By: Jennifer Brutus, Management Analyst
Police Department
SUBJECT: ORDINANCE NO. 2318 AMENDING CHAPTER 9.4 OF ARTICLE IV OF
THE ARCADIA MUNICIPAL CODE RELATING TO THE SEX OFFENDER
REGULATIONS
Recommendation: Introduce
SUMMARY
It is recommended that the City Council authorize and introduce Ordinance No. 2318
amending the City's sex offender regulations in the Arcadia Municipal Code under Chapter
9.4 of Article IV.
BACKGROUND
Sex offender advocate groups have been attempting to curb restrictive laws passed in
California communities that affect the daily lives of registered sex offenders on the basis
that the laws violate the California and U.S. Constitutions. Several recent rulings have
been favorable to this argument. The City Attorney conducted a review of the issue and
has recommended that the City revise its current sex offender regulations to avoid future
lawsuits against the City.
The City of Arcadia's sex offender regulations are listed in the Arcadia Municipal Code
under Chapter 9.4 of Article IV. Parts of these regulations are said to violate state and
federal constitutional rights of citizens required to register under the California Sex
Offender Registration Act (Penal Code 290) because they prohibit where law- abiding
citizens may lawfully reside and /or physically be present. Some of the restrictions were
determined to be preempted by existing state law in court challenges, thus they are invalid.
DISCUSSION
The request for modification of Arcadia's sex offender ordinance is based, in part, upon
two recent decisions in which the California Court of Appeal determined that similar sex
offender ordinances adopted by Orange County and the City of Irvine were preempted by
State law and, therefore, could not be enforced. Those cases are People v. Hugo
Ordinance No. 2318 relating to Sex Offender Regulations
September 2, 2014
Page 2 of 4
Godinez, G047657, and People v. Nguyen, G048228. In both cases, the California Court
of Appeal held that the California Legislature has enacted a comprehensive statutory
scheme regulating the daily lives of sex offenders; therefore, local legislation on the
subject is prohibited unless expressly permitted by the State statute.
Based largely on the findings in these two cases, the ordinances in several cities and one
county were successfully challenged in Federal court during 2012 and 2013. They include
the cities of Lancaster, Sierra Madre, and Cypress and the County of El Dorado. Arcadia's
current regulations have some similar regulations that were found to be invalid.
As a result, the City's regulations must be revised to prevent future legal challenges. The
current law in Arcadia has two main components: the Residential Exclusion Zone, which
restricts where a sex offender many reside, and the Child Safety Zone, which restricts
where a sex offender may travel or loiter. Both of these are potentially affected by the
rulings.
Residential Exclusion Zone
The current City regulations impose broad residency restrictions by generally prohibiting
sex offenders from residing within 2,000 feet of a sensitive location (park, school,
amusement arcade, etc.) or in a home already occupied by another sex offender, with
some exceptions. Under State law and the recent court decisions, cities may still regulate
by location provided that: (1) the restriction must not banish sex offenders from the
community altogether; and (2) the restriction must provide consideration for individual
circumstances.
The current regulations satisfy the first test but fail the second. A defensible regulation
would need to create a nexus between the type of crime committed and the restriction.
The City's stated purpose for Chapter 9.4 is to "protect children from registered sex
offenders by limiting the sex offenders' access to locations where children gather." The
City's residency restrictions should distinguish between sex offenders whose offense was
against a child or an adult to avoid anticipated legal challenges.
Therefore, it is recommended that the City amend its definition of a sex offender to include
only those individuals who have committed offenses against children. The description
should coincide with the Penal Code's choice of language for referring to a sex offender:
"Every person who is required to register pursuant to Section 290, based upon the
commission of an offense against a minor." Defining sex offender in this way could help
the City avoid legal challenge for an overbroad regulation that does not distinguish
between sex offenders who have committed an offense against a child versus an adult.
Ordinance No. 2318 relating to Sex Offender Regulations
September 2, 2014
Page 3 of 4
Child Safety Zone
The City currently prohibits sex offenders from traveling or loitering within 300 feet of
certain land uses that attract children or where children gather. According to the Nguyen
ruling, this sort of restriction is absolutely prohibited in that the restrictions regulate a
sex offender's daily life in a way that conflicts with the California Legislature's complete
preemption of the field for regulating sex offenders' daily lives.
The City may still enforce State law restrictions that limit the whereabouts of sex
offenders without risk of regulating in a preempted field. For example, State law
includes the following prohibitions or restrictions on sex offenders:
• A prohibition against the offender "enter[ing] any park where children regularly
gather without express permission of his or her parole agent" if a victim of the
underlying sex offense was under 14 years of age. [Penal Code, § 3053.8(a)]
• A prohibition against the offender entering any school without "lawful business"
and written permission from the school. [Penal Code, § 626.81(a)]
• Enhanced penalties for offenders who remain at or return 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. [Penal Code, § 653(b)]
• A prohibition against the offender entering or remaining at 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.
[Penal Code, § 653(c)]
Revised Ordinance
Based on the issues identified above, the sex offender regulations in the Municipal
Code under Chapter 9.4 of Article IV should be amended. The proposed ordinance
would do the following:
• Revise the definition of a sex offender to include only those individuals who have
committed offenses against children. The revised description of a sex offender will
state, "Any person for whom registration is required pursuant to Section 290 of the
California Penal Code, based upon the commission of an offense against a child,
regardless of whether that person is on parole or probation."
• Delete restrictions on where a sex offender may travel or loiter and remove
regulations involving the Child Safety Zone in Municipal Code Section 4940.3.
Ordinance No. 2318 relating to Sex Offender Regulations
September 2, 2014
Page 4 of 4
Delete all definitions in Section 4940.1 that appear only to help define the Child
Safety Zone, including "Amusement Center" and "Loiter ".
• Add recitals referencing existing State Penal Code provisions regulating sex
offenders as noted above.
ENVIORONMENTAL ANALYSIS
The California Environmental Quality Act (CEQA) requires analysis of agency approvals of
discretionary "projects." A "project," under CEQA, is defined as "the whole of an action,
which has a potential for resulting in either a direct physical change in the environment, or
a reasonably foreseeable indirect physical change in the environment." Section 15061
(b)(3) of Title 14 of the California Code of Regulations (the CEQA Guidelines) describes
the General Rule that CEQA only applies to projects which "have the potential for causing
a significant effect on the environment; where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the environment, the
activity is not subject to CEQA."
The approval of these amendments does not approve any development project.
Therefore, these changes are not subject to CEQA under the General Rule and no further
environmental review is necessary.
FISCAL IMPACT
There is no direct fiscal impact to the City as a result of adopting the proposed ordinance.
However, if the City does not make revisions to its sex offender regulations, the City would
be susceptible to costly legal challenges in the future.
RECOMMENDATION
It is recommended that the City Council find that the adoption of this Ordinance is exempt
from the provisions of the California Environmental Quality Act; and introduce Ordinance
No. 2318 amending Chapter 9.4 of Article IV of the Arcadia Municipal Code relating to sex
offender regulations.
Approved.
Dominic Lazza
City Manager
Attachment: Ordinance No. 2318
ORDINANCE NO. 2318
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, AMENDING SECTIONS OF CHAPTER 9.4 OF ARTICLE
IV OF THE ARCADIA MUNICIPAL CODE RELATED TO SEX
OFFENDER REGULATIONS
WHEREAS, municipal code provisions in other local jurisdictions similar to the
sex offender regulations listed in Chapter 9.4 of Article IV of the Arcadia Municipal Code
increasingly have been subject to legal challenge because they prohibit where citizens
required to register as sex offenders under the California Sex Offender Registration Act
(Penal Code section 290 of seq.) may lawfully reside and/or physically be present, with
some of the local restrictions having been determined to be preempted by existing state
law; and
WHEREAS, sex offender advocate groups have been attempting to curb
restrictive laws passed in California communities that affect the daily lives of registered
sex offenders on the basis that the laws violate the California and U.S. Constitutions;
and
WHEREAS, several recent court rulings have been favorable to this argument,
which prompted the City Attorney to conduct a review of the City's sex offender
regulations in February of 2014 and make recommendations regarding this Ordinance
to revise the City's current sex offender regulations to avoid future lawsuits against the
City; and
WHEREAS, this Ordinance modifying Arcadia's sex offender regulations in
Chapter 9.4 is based, in part, upon two recent decisions in which the California Court of
Appeal determined that similar sex offender ordinances adopted by Orange County and
the City of Irvine were preempted by State law and, therefore, could not be
enforced(People v. Hugo Godinez, G047657, and People v. Nguyen, G048228)
WHEREAS, the current law in Arcadia has two main components: the Residential
Exclusion Zone, which restricts where a sex offender many reside, and the Child Safety
Zone, which restricts where a sex offender may travel or loiter; and
WHEREAS, relating to the Residential Exclusion Zone, the current City
regulations impose broad residency restrictions by generally prohibiting sex offenders
from residing within 2,000 feet of a sensitive location (park, school, amusement arcade,
etc.) or in a home already occupied by another sex offender, with some exceptions.
Under State law and the recent court decisions, cities may still regulate by location
provided that: (1) the restriction must not banish sex offenders from the community
altogether, and (2) the restriction must provide consideration for individual
circumstances. The current regulations satisfy the first test but revisions to the
regulations are required to ensure compliance the second test in order to create a
nexus between the type of crime committed and the restrictions; and
WHEREAS, the City may still enforce State law restrictions that limit the
whereabouts of sex offenders without risk of regulating in a preempted field:
• A prohibition against the offender "enter[ing] any park where children regularly
gather without express permission of his or her parole agent" if a victim of the
underlying sex offense was under 14 years of age. [Penal Code, § 3053.8(a)]
• A prohibition against the offender entering any school without "lawful business"
and written permission from the school. [Penal Code, § 626.81(a)]
• Enhanced penalties for offenders who remain at or return to "any school or public
place at or near which children attend or normally congregate" after a school or
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law enforcement official has asked the offender to leave. [Penal Code, § 653(b)]
• A prohibition against the offender entering or remaining at 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.
[Penal Code, § 653(c)]; and
WHEREAS, this Ordinance is required for the immediate preservation of the
public peace, health and safety, and to avoid future legal challenges related to sex
offender regulations.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. Sections 4940, 4940.1 and 4940.2 of Chapter 9.4 of Article IV of
the Arcadia Municipal Code are hereby amended in their entirety to read as follows:
"4940. PURPOSE.
This Chapter is hereby adopted and established to protect children from
registered sex offenders by limiting sex offender access to locations where
children regularly gather and shall be known as the Sex Offender Residency
Restrictions. It is the intent of this Chapter to reduce the risk of harm to children
by impacting the ability of sex offenders to be in contact with them. It is not the
intent of this ordinance to allow conduct otherwise prohibited by federal or state
law, or to contradict federal or State law.
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4940.1. DEFINITIONS.
For purposes of this Chapter only, and unless the context clearly requires
a different meaning, the words, terms and phrases set forth in this Section are
defined as follows:
A. "Child" or "Children" shall mean any person(s) under the age of
eighteen (18) years of age.
B. "Child Care Center" shall mean any State of California, Department of
Social Services licensed facility that provides non - medical care to
children in need of personal services, supervision, or assistance
essential for sustaining the activities of daily living or for the protection
of the individual on less than a twenty four (24) hour basis, including
but not limited to a family day care home, infant center, preschool,
extended -day care facility, or school -age child care center.
C. "Duplex" shall mean a residential land use for a building containing two
dwelling units.
D. "Hotel /Motel" shall mean a commercial land use for the rental of six (6)
or more guest rooms or suites for primarily temporary residency for a
period of not more than thirty (30) consecutive days.
E. "Inn" shall mean a commercial land use for the rental of five (5) or
fewer guest rooms or suites primarily for temporary residency for a
period of not more than thirty (30) consecutive days.
F. "Multi- family Dwelling" shall mean a building designed for permanent
residency for three (3) or more families living independently of each
other. This includes apartment houses and condominiums, but does
not include hotels, motels, or inns.
G. "Owner's Authorized Agent" shall mean any natural person, firm,
association, joint venture, joint stock company, partnership,
organization, club, company, corporation, business trust or the
manager, lessee, agent, servant, officer or employee authorized to act
for the owner of a property.
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H. "Park" shall include any areas publicly owned, leased. controlled,
maintained or managed by a city or county which are open to public
use for recreational, cultural and community service activities, and
include, but are not limited to, beaches, playgrounds, playfields,
athletic courts, and dog park recreation areas.
I. "Permanent Resident" shall mean any person who, as of a given date,
obtained the right to occupy a dwelling including but not limited to a
Duplex. Multi - family Dwelling, Single Family Dwelling. Hotel. Motel or
Inn for more than thirty (30) consecutive days.
J. "Property Owner" as applied to buildings and land shall mean the
owner of record of any parcel of real property as designated on the
county assessor's tax roll, or a holder of a subsequently recorded deed
to the property, and shall include any part owner, joint owner, tenant,
tenant in common, or joint tenant of the whole or a part of such building
or land.
K. "Residential Exclusion Zone" shall include those areas located within
two thousand (2,000) feet of the closest property line of a child care
center, public or private school grades K through 12, park, public
library, swimming or wading pool, commercial establishment that
provides any area in or adjacent to such establishment as a children's
playground, or any location that facilitates classes or group activities
for children on the property, or school bus stops, in which a sex
offender is prohibited from temporarily or permanently residing.
L. "Responsible Party" shall mean the Property Owner and/or the
Owner's Authorized Agent.
M. "Sex Offender" means any person for whom registration is required
pursuant to Section 290 of the California Penal Code, based upon the
commission of an offense against a child (minor), regardless of
whether that person is on parole or probation.
N. "Single Family Dwelling" means one (1) permanent residential dwelling
located on a single lot with yard areas that separate that dwelling from
other dwellings.
O. "Temporary Resident" means any person who, for a period of thirty
(30) days or less, obtained the right to occupy a dwelling including but
not limited to a Hotel, Motel or Inn.
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4940.2. MEASURE OF DISTANCE.
The Residential Exclusion Zone is measured in a straight line, in linear
feet, in all directions, without regard for intervening structures, from the closest
property line of the subject properties listed in the definition for Residential
Exclusion Zone.
SECTION 2. Section 4940.3 of Chapter 9.4 of Article IV of the Arcadia
Municipal is hereby deleted in its entirety and the following sections are hereby
renumbered.
4940.3. VIOLATION OF RESIDENTIAL EXCLUSION ZONE.
No Sex Offender shall be a Permanent or Temporary Resident within a
Residential Exclusion Zone.
4940.4. SEX OFFENDER VIOLATION — SINGLE FAMILY
DWELLINGS.
No Sex Offender shall be a Permanent or Temporary Resident in a Single
Family Dwelling already occupied by a Sex Offender, unless those persons are
legally related by blood, marriage or adoption.
4940.5. SEX OFFENDER VIOLATION — MULTI - FAMILY
DWELLINGS.
No Sex Offender shall be a Permanent or Temporary Resident of a Multi-
family Dwelling already occupied by a Sex Offender, unless those persons are
legally related by blood, marriage or adoption.
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4940.6. SEX OFFENDER VIOLATION — DUPLEX DWELLINGS.
No Sex Offender shall be a Permanent or Temporary Resident in a Duplex
Dwelling already occupied by a Sex Offender, unless those persons are legally
related by blood, marriage or adoption.
4940.7. SEX OFFENDER VIOLATION — HOTELIMOTELIINN
ROOMS.
No Sex Offender shall be a Permanent or Temporary Resident in a guest
room of a Hotel, Motel, or Inn already occupied by a Sex Offender, unless those
persons are legally related by blood, marriage or adoption.
4940.8. SEX OFFENDER VIOLATION — HOTEL/MOTEL/INN
PERMANENT RESIDENT.
No Sex Offender shall be a Permanent Resident in any guest room of a
Hotel, Motel, or Inn wherein a separate and distinct guest room is already
occupied by a Sex Offender as a Permanent Resident.
4940.9. RESPONSIBLE PARTY VIOLATION — SINGLE FAMILY
DWELLINGS.
No Responsible Party shall knowingly rent a Single Family Dwelling to
more than one (1) Sex Offender during any given period of tenancy, unless those
persons are legally related by blood marriage or adoption.
4940.10. RESPONSIBLE PARTY VIOLATION — SINGLE FAMILY
DWELLING TEMPORARY USE.
No Responsible Party shall knowingly rent a Single Family Dwelling to a
Sex Offender as a Temporary Resident.
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4940.11. RESPONSIBLE PARTY VIOLATION — MULTI - FAMILY
DWELLINGS.
No Responsible Party shall knowingly rent a unit within a Multi- family
Dwelling to more than one (1) Sex Offender during any given period of tenancy,
unless those persons are legally related by blood, marriage or adoption.
4940.12. RESPONSIBLE PARTY VIOLATION -- MULTI - FAMILY
DWELLINGS MULTIPLE UNITS.
No Responsible Party shall knowingly rent more than one (1) unit within a
Multi - family Dwelling to a Sex Offender during any given period of tenancy.
4940.13. RESPONSIBLE PARTY VIOLATION- MULTI - FAMILY
DWELLINGS TEMPORARY USE.
No Responsible Party shall knowingly rent any unit in a Multi- family
Dwelling to a Sex Offender as a Temporary Resident,
4940.14. RESPONSIBLE PARTY VIOLATION — DUPLEX
DWELLINGS.
No Responsible Party shall knowingly rent a unit within a Duplex Dwelling
to more than one (1) Sex Offender during any given period of tenancy, unless
those persons are legally related by blood, marriage or adoption.
n.
4940.15. RESPONSIBLE PARTY VIOLATION — DUPLEX
DWELLINGS MULTIPLE UNITS.
No Responsible Party shall knowingly rent more than one (1) unit within a
Duplex Dwelling to a Sex Offender during any given period of tenancy.
4940.16. RESPONSIBLE PARTY VIOLATION - DUPLEX
DWELLINGS TEMPORARY USE.
No Responsible Party shall knowingly rent any unit in a Duplex Dwelling to
a Sex Offender as a Temporary Resident.
4940.17. RESPONSIBLE PARTY VIOLATION —
HOTELIMOTELIINN.
No Responsible Party shall knowingly rent a guest room in a Hotel, Motel,
or Inn to more than one (1) Sex Offender, unless those persons are legally
related by blood, marriage or adoption.
4940.18. RESPONSIBLE PARTY VIOLATION —
HOTELIMOTELIINN PERMANENT RESIDENT.
No Responsible Party shall knowingly rent more than one (1) guest room
in a Hotel, Motel or Inn to a Sex Offender as a Permanent Resident.
4940.19. MISDEMEANOR.
Failure to comply with the above sections and any condition related
thereto shall constitute a misdemeanor violation of this Code.
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4940.20. CRIMINAL PENALTIES DO NOT SATISFY
ADMINISTRATIVE OR CIVIL ACTIONS.
Neither the arrest, prosecution, conviction, imprisonment, or payment of
any fine for the violation of Chapter 9.4 shall satisfy or diminish the authority of
the City to institute administrative or civil actions seeking enforcement of any or
all of the provisions of this Chapter.
4940.21. CIVIL ACTIONS.
Any person required to comply with any or all of the provisions of Chapter
9.4 shall be liable in any action brought by the City to enforce such provision and
to pay such reasonable costs of enforcement, including any and all attorney's
fees incurred by the City in furtherance of said enforcement.
SECTION 3. The Arcadia Police Department is directed to send copies of this
Ordinance to any Sex Offender who, on the effective date of this Ordinance, is
registered as living within the City of Arcadia.
SECTION 4, The City of Arcadia, Office of the Arcadia City Attorney, is directed
to send copies of this Ordinance to those Property Owners identified by the Arcadia
Police Department who, on the effective date of this Ordinance, own Single Family
Dwellings, Multi- family Dwellings, Duplex Dwellings, and/or commercial Hotels, Motels,
and/or Inns occupied by more than one Sex Offender.
SECTION 5. If any section, subsection, subdivision paragraph, sentence, clause
or phrase of this chapter or any part thereof is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portion of
this chapter or any part thereof. The City Council hereby declares that it would have
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passed each section, subsection, subdivision, paragraph, sentence, clause or phrase
thereof, irrespective of the fact that any one or more section, subsection, subdivision,
paragraph, sentence, clause or phrases be declared unconstitutional.
SECTION 6. The City Clerk shall certify to the adoption of this Ordinance and
shall cause a copy of the same to be published in the official newspaper of the City of
Arcadia within fifteen (15) days after its adoption. This Ordinance shall take effect on
the thirty -first (31st) day after its adoption.
Passed, approved and adopted this day of , 2014.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Stephen P. Deitsch
City Attorney
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Mayor of City of Arcadia