BILL ANALYSIS Ó
AB 201
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Maienschein, Chair
AB
201 (Brough) - As Amended April 21, 2015
SUBJECT: Registered sex offenders: local ordinances.
SUMMARY: Allows cities and counties to adopt ordinances, rules
or regulations that are more restrictive than state law
regarding the ability of people who are required to register as
sex offenders to reside or be present at certain locations
within the city or county. Specifically, this bill:
1)Provides that a local agency is not preempted by state law
from enacting and enforcing an ordinance that restricts a
person required to register as a sex offender, pursuant to
existing law, from residing or being present at certain
locations within the local agency's jurisdiction.
2)Allows a local agency to adopt ordinances, rules, or
regulations that are more restrictive than state law relating
to the ability of a person required to register as a sex
offender to reside or be present at certain locations within
the local agency's jurisdiction.
3)Defines, for the purposes of this bill, "local agency" to mean
a city, county, or city and county.
EXISTING LAW:
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1)Requires, pursuant to the Sex Offender Registration Act (Act),
persons convicted of specified sex offenses to register with
local authorities for the rest of their lives while residing,
located, attending school, or working in California.
2)Imposes residency restrictions for paroled sex offenders who
must register, pursuant to the Act, including a prohibition
against residing within 2,000 feet of any public or private
school, or park where children regularly gather (Proposition
83, or Jessica's Law).
3)Provides that nothing in the above provisions prohibits
municipal jurisdictions from enacting local ordinances that
further restrict the residency of sex offenders who are
required to register.
FISCAL EFFECT: None
COMMENTS:
1)Bill Summary. This bill allows cities and counties to adopt
ordinances, rules or regulations that are more restrictive
than state law relating to the ability of people who are
required to register as sex offenders to reside or be present
at certain locations within the city or county. The bill also
specifies that a local agency is not preempted by state law
from doing so. This bill is sponsored by Orange County
District Attorney Tony Rackauckas.
2)Author's Statement. According to the author, "The purpose of
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AB 201 is to authorize local governments to enact ordinances
relating to convicted sex offenders. Cities and counties are
within their rights to pass laws that benefit their
communities. Local governments have the best ability to serve
their unique populations and geographical needs. Recently
this authority was invalidated when an Orange County court
ruled that state law excluded local municipalities from making
laws relating to sex offenders. In resolution, the
disposition
of the case stated, 'If the Legislature wishes to do so, it can
amend Section 290.03 to permit local ordinances.'
"Prior to this ruling many cities and counties had taken
action by enacting ordinances that would protect their
residents. These cities and counties are now faced with the
harrowing choice of repealing local ordinances, compromising
the safety of their communities, or face the excessive cost of
litigation. AB 201 restores a jurisdiction issue that has
left local governments unable to protect their communities in
an appropriate way. AB 201 will restore authority to local
agencies and authorize the ability to implement their own
ordinances to protect their friends and neighbors from
becoming victims of convicted sexual predators."
3)Background. The Act requires people who have been convicted
of specified sex crimes to register with local law enforcement
authorities for the rest of their lives and to update their
registrations, pursuant to specified requirements.
Proposition 83, or Jessica's Law, approved by voters in 2006,
amended the Act with numerous provisions further governing sex
offenders, including restrictions on where sex offenders can
live. Specifically, Proposition 83:
a) Prohibited any person who is required to register,
pursuant to the Act, from residing within 2,000 feet of any
public or private school, or park where children regularly
gather; and,
b) Allowed municipal jurisdictions to enact local
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ordinances that further restrict the residency of
registered sex offenders.
Pursuant to these provisions, many local governments adopted
more restrictive local ordinances that restricted registered
sex offenders from residing within distances greater than
2,000 feet from schools or parks.
4)Impact of Residency Restrictions. The Office of the Inspector
General (OIG) in October
of 2014 conducted a review and assessment of sex offenders on
parole and the impact of residency restrictions on this
population. The OIG Report concluded, "The residency
restrictions imposed by Jessica's Law, which prohibit parole
sex offenders from living within 2,000 feet of a school or
park where children congregate, contribute to homelessness
among parole sex offenders. According to the California Sex
Offender Management Board, there were only 88 sex offenders on
parole registered as transient when Proposition 83 was passed
in November 2006. As of June 2014, there were 1,556 sex
offender parolees identified as transient by the California
Department of Corrections and Rehabilitation (CDCR). While
this represents 3.38 percent of all parolees, the incidence of
homelessness is 19.95 percent (approximately one in five)
among the subset of parolees who are sex offenders."
"Transient sex offenders are more 'labor intensive' than are
parolees who have a permanent residence. The OIG interviewed
parole administrators in 12 parole districts, who said that
because transient sex offenders are moving frequently,
monitoring their movement is time consuming. Transient sex
offenders must register with law enforcement monthly (as
opposed to yearly for those with permanent residences), thus
requiring more frequent registration compliance tracking by
parole agents. Adding further to the workload associated with
monitoring transients, agents are required to conduct weekly
face-to-face contacts with them."
"While Jessica's Law leaves open the door for local
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governments to impose their own restrictions on paroled sex
offenders, parolees are finding relief from residency
restrictions in the courts."
5)Supreme Court Ruling on Residency Restrictions. In March of
this year, the Supreme Court unanimously ruled that the
provisions in state law prohibiting sex offenders from living
within 2,000 feet of schools or parks, as applied in San Diego
County, are unconstitutional and bear "no rational
relationship to advancing the state's legitimate goal
of protecting children from sexual predators" (In Re Taylor
[2015] 60 Cal. 4th 1019). The Supreme Court said sex
offenders can still be banned from living near parks and
schools, but such a determination must be made on a
case-by-case basis.
As a result, several cities and counties have repealed - or
are in the process of repealing - local ordinances with
blanket residency bans. In addition, CDCR, on the advice of
the Attorney General, issued new regulations requiring parole
agents to individually determine residency restrictions for
each of the 6,000 offenders they monitor.
6)State Preemption/Fully Occupying the Field. Article XI,
Section 7 of the California Constitution allows cities and
counties to make and enforce within their limits all local,
police, sanitary and other ordinances and regulations not in
conflict with general laws. However, courts have found that
if otherwise valid local legislation conflicts with state law,
it is preempted by such law and is void. A conflict exists if
the local legislation "duplicates, contradicts or enters an
area fully occupied by general law, either expressly or by
legislative implication."
7)Presence Restrictions. Existing state law is silent regarding
where registered sex offenders are allowed to be present.
Numerous local jurisdictions enacted a variety of ordinances
establishing "child safety zones" to restrict registered sex
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offenders from being present at parks, libraries, swimming
pools, arcades, piers, and other similar locations where
children regularly gather. Many of these ordinances were the
subject of litigation, and local governments across the state
repealed some or all of their ordinances as a result.
In addition, last year, an appellate court opinion in People
v. Nguyen (222 Cal. App. 4th 1168, 2014) found that state
law's comprehensive scheme regulating the daily life of sex
offenders fully occupies the field, therefore preempting a
City of Irvine ordinance restricting sex offenders from
visiting city parks and recreational facilities. The Supreme
Court declined a petition to review this decision.
8)Policy Considerations. Given the recent court rulings in this
arena, the Committee may wish to consider whether the
provisions of this bill will have the perverse effect of the
author's stated intent, by placing yet more language in
statute that could give local governments the impression they
will be protected from litigation when the courts have already
found that residency restrictions of 2,000 feet are
unconstitutional and that presence restrictions are preempted
by state law. The League of California Cities, which
submitted a letter of "Support in Concept" for this bill,
notes, "We must acknowledge that this measure will require
significant amendment, in part in light of In re: Taylor, the
recent California Supreme Court decision striking down as
unconstitutional the blanket application of 2,000-foot
residency restrictions against sex offenders paroled into San
Diego County."
9)Related Legislation. AB 262 (Lackey) places additional
residency restrictions on Sexually Violent Predators
conditionally released for community outpatient treatment. AB
262 failed passage in the Assembly Public Safety Committee on
a 2-5 vote on April 21, 2015.
SB 267 (Leyva), pending in the Senate Public Safety Committee,
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provides that a local agency is not preempted by state law
from enacting and enforcing an ordinance that restricts a
person required to register as a sex offender for an offense
committed against a minor from being present at schools,
parks, day care centers, or other locations where children
regularly gather within the local agency's jurisdiction. SB
267 also allows a local agency to adopt ordinances, rules, or
regulations that are more restrictive than state law relating
to a person's ability to be present at schools, parks, day
care centers, or other locations where children regularly
gather within the local agency's jurisdiction when the person
is required to register as a sex offender for an offense
committed against a minor.
10)Previous Legislation. AB 655 (Quirk-Silva) of 2014 provided
that the Legislature does not preempt local agencies from
enacting ordinances that restrict where persons required to
register as sex offenders may go within a municipality. AB
655 was held in the Senate Rules Committee.
SB 1128 (Alquist, et al.), Chapter 337, Statutes of 2006,
enacted the Sex Offender Punishment, Control, and Containment
Act of 2006, which made numerous changes to the body of law
relating to sex offenders and made specified legislative
findings and declarations concerning sex offenders.
11)Arguments in Support. The Association of California Cities -
Orange County, in support, states, "Empowering local agencies
and authorities to best serve their populations is good public
policy, and will be the result of this bill. When it comes to
monitoring sex offenders, no one better knows a particular
jurisdiction's vulnerabilities and issue areas better than the
local authorities that serve that community. Thus, it is
imperative that the State does not obstruct local
municipalities from taking actions that affect sex offenders
in their districts in efforts to protect their children, young
adults and community members.
The State cannot produce a 'one-size-fits-all' approach to sex
offender ordinances; seventy cities and five counties have
attempted to enact ordinances within their jurisdictions, this
bill clarifies that the State does not intend to obstruct
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local municipalities from taking actions that affect sex
offenders in their regions. Focusing on the return of power
to local governments and allowing them to pass their own
ordinances is crucial in providing public safety as a core
function of government."
12)Arguments in Opposition. The Alameda County Board of
Supervisors, in opposition, states, "Sex offender registration
is an area that the state, not local agencies, has
traditionally regulated. Legislative declarations and
findings expressly create a 'standardized, statewide system'
and a 'comprehensive system of risk assessment, supervision,
and monitoring' of registered sex offenders.
"Allowing local municipalities to create their own ordinances
restricting the 75,000 registered sex offenders in California
from being present in certain locations in their jurisdiction
would create an inconsistent patchwork of off-limits areas
throughout the state that would be difficult to navigate and
comprehend. Moreover, there is no evidence that granting such
far reaching power to local municipalities would decrease the
number of sex offenders or otherwise enhance public safety."
13)Double-Referral. This bill is double-referred to the Public
Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Orange County District Attorney Tony Rackauckas [SPONSOR]
Association of California Cities - Orange County
California Fraternal Order of Police
California Police Chiefs Association
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City of Aliso Viejo
City of Carson
City of Irvine
City of Laguna Niguel
Crime Victims United of California
League of California Cities (In Concept)
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Orange County Board of Supervisors
Orange County Sheriff-Coroner Sandra Hutchens
Sacramento County Deputy Sheriff's Association
Santa Ana Police Officers Association
Opposition
Alameda County Board of Supervisors
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American Civil Liberties Union of California
California Reform Sex Offender Laws
Citizens for Criminal Justice Reform
Housing California
Legal Services for Prisoners with Children
Individual letters (9)
Analysis Prepared
by: Angela Mapp/L. GOV./(916) 319-3958