HomeMy WebLinkAboutItem DAGENDA STAFF REPORT
DATE: March 13, 2017
TO: Honorable Mayor and City Council
FROM: Jill R. Ingram, City Manager
SUBJECT: ORDINANCE TO REPEAL CHAPTER 7.65 OF THE CODE OF
THE CITY OF SEAL BEACH RELATING TO SEX OFFENDER
RESIDENCY RESTRICTIONS
SUMMARY OF REQUEST:
That the City Council introduce, read by title only and waive further reading of
Ordinance No. 1665, an Ordinance of the City Council of the City of Seal Beach
Repealing Chapter 7.65 of Title 7 of the Code of the City of Seal Beach
Regarding Sex Offender Residency Restrictions.
BACKGROUND AND ANALYSIS:
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," with the intent of better protecting
Californians, and, in particular, the State's children from sex offenders.
Proposition 83 includes a provision which expressly authorizes further local
regulation of sex offender residency. Penal Code Section 3003.5(c) states that
municipal jurisdictions are not prohibited from enacting local ordinances that
further restrict the residency of any person for whom registration is required
pursuant to Penal Code Section 290.
Following the adoption of Jessica's Law, the City of Seal Beach, like many other
cities in California, adopted new residency and location restrictions applicable to
registered sex offenders. Some of those restrictions were repealed in response
to court rulings in other cities in 2014. Chapter 7.65 of the Municipal Code
currently prohibits any registered sex offender from establishing a residence
within 2000 feet of a public or private school, park, child care center or public
library, or within a dwelling already occupied by another registered sex offender,
unless those individuals are related by blood or marriage. Although California
Penal Code Section 3003.5 imposes restrictions at the state level and authorizes
local governments to further restrict the residency of a sex offender, this
authorization has been severely restricted by recent case law. Like many other
cities in Southern California (at least 18, currently) Seal Beach has been served
with a lawsuit challenging the City's remaining restrictions on sex offenders.
Agenda Item D
Page 2
The California Supreme Court's decision in In Re Taylor (2015) 60 CalAth 1019,
created a significant question regarding the enforcement of any residency
restrictions on sex offenders. The Court held that enforcement of state residency
restrictions by the California Department of Corrections and Rehabilitation
(CDCR) against sex offender parolees in San Diego County was unconstitutional.
Those restrictions, "as applied and enforced in that county ... cannot survive
rational basis scrutiny because it has hampered efforts to monitor, supervise, and
rehabilitate such parolees in the interest of public safety, and as such, bears no
rational relationship to advancing the state's legitimate goal of protecting children
from sexual predators."
The Supreme Court observed the following facts with respect to registered sex
offenders in San Diego County:
- Registered sex offender parolees are unlikely candidates to rent single
family homes; they are most likely to be housed in apartments or low -
cost residential hotels;
- By virtue of the residency restrictions alone, registered sex offender
parolees are effectively barred from access to approximately 97
percent of the existing rental property that would otherwise be
available to them;
- The remaining 3 percent of multifamily rental housing outside the
exclusion areas is not necessarily available to registered sex offender
parolees for a variety of reasons, including low vacancy rate, high
rents, and the unwillingness of some landlords to rent to such persons;
- Rigid application of the residency restrictions results in large groups of
registered sex offender parolees having to sleep in alleys and
riverbeds, a circumstance that did not exist prior to Jessica's law;
- The residency restrictions place burdens on registered sex offender
parolees that are disruptive in a way that hinders their treatment,
jeopardizes their health and undercuts their ability to find and maintain
employment, significantly undermining any effort at rehabilitation.
The Supreme Court cited the 2010 CDCR report that found Jessica's Law
(Penal Code § 3003.5) increased the rate of homelessness among registered
sex offenders on parole, which makes it more difficult to monitor and supervise
the sex offenders and puts the public at risk. The Court noted the report found:
"'homeless sex offenders put the public at risk. These offenders are unstable and
more difficult to supervise for a myriad of reasons.' ... Ultimately, the report
recommended that 'residence restrictions as set forth in Penal Code section
3003.5(b) should be repealed in favor of targeted residence restrictions. "' The
Court also stated: "CDCR has conceded in its briefs before this court that 'the
evidence ... demonstrated that the dramatic increase in homelessness has a
profound impact on public safety,' and that 'there is no dispute that the residency
restrictions have significant and serious consequences that were not foreseen
when it was enacted. "'
We are aware of no other widely- accepted academic or policy research that
contradicts the CDCR's position on the effectiveness of residency restrictions.
Page 3
Other groups have provided evidence consistent with these findings. This lack of
contrary data makes it difficult to refute the argument that local restrictions are
similarly ineffective and, perhaps, counter - productive.
Most recently, in People v. Lynch (2016) 2 Cal.App.5th 524, an appeals court
held that the residency restrictions in Penal Code section 3003.5 apply only to
parolees for the period of their parole term. (Id. at p. 528.) Given the court's
rationale, the ruling most likely means that any further restrictions which a local
government may impose also would apply only to parolees for the period of their
parole term. Therefore, Penal Code section 3003.5 would not provide express
authority for cities to impose residency restrictions on sex offenders who are no
longer on parole. A logical next step for a court would be to rule that local
restrictions could apply only to parolees for the length of their parole terms.
Given the weight of the evidence regarding the effectiveness of these types of
restrictions, and the court decisions striking them down at the State level, we
recommend that the City Council repeal Seal Beach's remaining sex offender
residency restrictions in Chapter 7.65 of the Code.
FINANCIAL IMPACT:
There is no direct fiscal impact from the adoption of this Ordinance. There may
be some costs arising from the settlement of the lawsuit, which will be submitted
separately for City Council consideration.
RECOMMENDATION:
Staff and the City Attorney recommend that the City Council introduce, read by
title only and waive further reading of Ordinance No. 1665, an Ordinance of the
City Council of the City of Seal Beach Repealing Chapter 7.65 of Title 7 of the
Code of the City of Seal Beach Regarding Sex Offender Residency Restrictions.
SUBMITTED
Craig A. Steele
City Attorney
Attachments:
A. Ordinance No. 1665
NOTED AND APPROVED:
HIM
Ingram
•
City Manager
"Attachment A"
ORDINANCE NO. 1665
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH REPEALING CHAPTER 7.65 OF TITLE 7 OF THE CODE OF
THE CITY OF SEAL BEACH REGARDING SEX OFFENDER
RESIDENCY RESTRICTIONS
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES ORDAIN AS
FOLLOWS:
Section 1. Findings and Intent.
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," with the intent of better protecting Californians, and, in
particular, the State's children from sex offenders.
B. Proposition 83 also includes a provision which expressly authorizes further
local regulation of sex offender residency. Penal Code Section 3003.5(c) states that
municipal jurisdictions are not prohibited from enacting local ordinances that further
restrict the residency of any person for whom registration is required pursuant to
Section 290.
C. Following the adoption of Jessica's Law, the City of Seal Beach, like many
other cities in California, adopted new residency and location restrictions applicable to
registered sex offenders. Some of those restrictions were repealed in response to court
rulings in other cities in 2014. Chapter 7.65 of the Municipal Code currently prohibits
any registered sex offender from establishing a residence within 2000 feet of a public or
private school, park, child care center or public library, or within 2000 feet of any other
residence already occupied by another registered sex offender. .
D. Studies and reports released after the passage of Jessica's Law suggest
that blanket enforcement of residency restrictions has not improved public safety. The
California Department of Corrections and Rehabilitation (CDCR) reports the evidence
suggests that residency restrictions have the unintended consequences of increasing
homelessness among registered sex offenders, thereby actually threatening public
safety. Convicted sex offenders who are homeless are reportedly not only more difficult
to supervise than those who have established residences; they are also more likely to
re- offend. Additionally, two court decisions, one from the California Supreme Court (In
re Taylor (2015) 60 Cal.4th 1019) and one from the Court of Appeal (People v. Lynch
(2016) 2 Cal.App.5th 524) have called into question the constitutionality of certain
residency restrictions similar to Chapter 7.65 but enforced by the State. This creates
significant doubt about the remaining authority of cities under Penal Code section
3003.5.
E. The Sex Offender Supervision and GPS Monitoring Task Force is a multi -
agency Task Force created to assist CDCR to develop a comprehensive approach to
sex offender supervision. In October 2010, the Task Force released a report based on a
review of reports generated by the Office of Inspector General, the California Sex
Offender Management Board, best practices throughout the nation, effective use of
GPS, as well as relevant CDCR sex offender supervision policies and practices. The
Task Force found that blanket residence restrictions have "not improved public safety
and have compromised the effective monitoring and supervision of sex offender
parolees." Specifically, the Task Force stated:
'There is no evidence that residence restrictions for sex offenders make
the community any safer. Since the passage of Proposition 83, residence
restrictions have expanded significantly with an unintended consequence.
Transient sex offender parolees have increased by approximately 24
times. Presently, more than 1/3 of all sex offenders on parole have
become transient. Before the passage of Proposition 83, residence
restrictions were already in place. Penal Code Section 3003(8) prohibited
high risk sex offenders with child victims from residing within 1.2 mile from
schools. Additionally, Parole Agents used discretion to prevent parolees
from residing in any housing location that would increase their risk of re-
offense. Repealing the blanket residence restrictions imposed by
Proposition 83 will provide adequate housing options for sex offenders
while continuing to provide public safety."
F. After careful consideration of the growing evidence from experts in
the field, including those experts within California state government, suggesting
that policies that further restrict sex offender residency could threaten public
safety in our community, as well as the recent court decisions that bring into
question the City's authority to enforce blanket residency restrictions, the City
Council has decided to repeal its Sex Offender Residency Restrictions and rely
on enforcement of other State laws to protect the public.
Section 2. Chapter 7.65 of the Code of the City of Seal Beach is hereby
repealed.
Section 3. The Ordinance shall take effect thirty (30) days after adoption. The
City Clerk is directed to cause this ordinance to be published and /or posted as required
by law.
[ORDINANCE CONTINUES]
2017.
PASSED, APPROVED AND ADOPTED this day of
M1 =6W
Robin L. Roberts, MMC
City Clerk
APPROVED AS,TO FORM:
Craig A. Steele
City Attorney
Sandra Massa -Lavitt
Mayor