The city council Tuesday reluctantly repealed a section in the Municipal Code referring to sex offenders and regulating their proximity to children’s facilities.
The matter was brought before the council by City Attorney Julia Lew because of recent lawsuits in other cities with the same type of ordinance and because the city has been receiving letters and suggestions of legal action.
In 2006, the city council enacted an ordinance establishing regulations relating to sex offenders’ proximity to children’s facilities. At that time, while the state law prohibited sex offenders from living within 2,000 feet of a park or school and required written permission for them to enter a school, it did not ban them from visiting parks or other children’s facilities unless they were on parole for crimes against children under the age of 14. As a way to supplement the restrictions and allow for more control, the city enacted the ordinance.
However, Article XI, Section 7 of the California Constitution and Government Code Section 37100 provide that local ordinance must not conflict with the Constitution and State and Federal laws. It is considered a conflict when the state law “occupies the field” and there is no room for local legislation. At the time the ordinance was enacted by the city, there had not been any judicial determination made that held state law regulating sex offenders occupied the field, which would then preempt additional local restrictions.
At the beginning of the year, a Court of Appeal ruled unanimously in People v. Godinez, that California’s “statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts [Orange] county’s efforts to restrict sex offenders from visiting county parks.” The court also ruled against the City of Irvine’s ordinance.
In January, the City of Porteville started receiving letters from California Reform Sex Offenders Laws (CA RSOL) asking for the immediate repeal of the city’s sex offender ordinance. The letters stated an intent to challenge Porterville and other cities’ ordinances in court if not appealed.
“I think we are truly in legal jeopardy if we don’t repeal this,” said Lew. “The court found it was unconstitutional and preempted.”
According to Lew and collaborated by Chief of Police Chuck McMillan, the police department has not issued any citations for this particular violation for more than a year. Typically, an officer will respond to a call of a suspicious person at a playground or school or other child facility and follow up to see if the person is registered as a sex offender.
Lew said even by repealing the ordinance, the police will still have the power to enforce laws relating to sex offenders. She told the council repealing the ordinance would not change much or take away much of enforcement ability, but not repealing the ordinance would more than likely lead to long legal battles costing a lot of money without much optimism of winning.
The council reluctantly approved repealing the ordinance with a 3-1 vote, Mayor Cam Hamilton voting against. ..Source.. by KELLI BALLARD
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