BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M.Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 267 |Hearing | 4/15/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Leyva |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |4/6/15 |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Weinberger | |: | | ----------------------------------------------------------------- REGISTERED SEX OFFENDERS AND LOCAL ORDINANCES Allows cities and counties to enact and enforce ordinances restricting registered sex offenders from residing or being present near locations where children regularly gather. Background and Existing Law The Sex Offender Registration Act requires people who have been convicted of specified sex crimes to register with local law enforcement authorities and to update their registrations pursuant to specified requirements. There are more than 110,000 registered sex offenders in the California Department of Justice's statewide database. On November 7, 2006, California voters enacted Proposition 83 - commonly referred to as "Jessica's Law." Proposition 83 enacted numerous statutory provisions increasing penalties for sex crimes, requiring GPS tracking for individuals convicted of felony sex crimes, expanding the definition of a sexually violent predator, and limiting where registered sex offenders may live. Specifically, Proposition 83: Prohibits any person who is required to register pursuant to the Sex Offender Registration Act from residing within 2000 feet of any public or private school, or park where children regularly gather. SB 267 (Leyva) 4/6/15 Page 2 of ? Allows municipal jurisdictions to enact local ordinances that further restrict the residency of registered sex offenders. Pursuant to Proposition 83, some California local governments have adopted more restrictive local ordinances that restrict registered sex offenders from residing within distances greater than 2,000 feet from schools or parks. In addition to restricting where sex offenders can live, some local governments have adopted ordinances that establish "child safety zones" to restrict registered sex offenders from being present at parks, libraries, swimming pools, arcades, and other similar locations where children regularly gather. Article XI, section 7 of the California Constitution allows counties and cities 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." 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. Although the Nguyen opinion found that state law implicitly preempts local ordinances regulating registered sex offenders from being present in specified locations, a concurring opinion noted that the Legislature can choose to amend state law to explicitly permit those local ordinances. Proposed Law Senate Bill 267 declares that a city, county, or city and county is not preempted by state law from enacting and enforcing an ordinance that restricts a person required to register pursuant to the Sex Offender Registration Act for an offense committed against a minor from residing or being present at schools, SB 267 (Leyva) 4/6/15 Page 3 of ? parks, day care centers or other locations where children regularly gather within the city, county, or city and county's jurisdiction. SB 267 allows a city, county, or city and county to adopt ordinances, rules, or regulations that are more restrictive than state law relating to a person's ability to reside or be present at schools, parks, day care centers or other locations where children regularly gather within the city, county, or city and county's jurisdiction when the person is required to register pursuant to the Sex Offender Registration Act. State Revenue Impact No estimate. Comments 1. Purpose of the bill . The recent court opinion in People v. Nguyen raises doubts about the validity of local ordinances in dozens of cities and several counties that impose location restrictions on where registered sex offenders may be physically present within the community. Several local governments that enacted these ordinances have been the target of lawsuits challenging the ordinances. As a result, many local governments have felt obliged to repeal some or all of their ordinances restricting sex offenders' presence in locations where children gather. Promoting public safety through the adoption of local ordinances and regulations that reflect local conditions and priorities is one of the fundamental purposes of local governments' police powers. SB 267 restores local officials' ability to exercise police powers to protect their communities by restricting some registered sex offenders' access to locations that are frequented by children. 2. Statewide uniformity vs. local control . Legislators continually struggle with how to balance state and local control. State laws that preempt local control promote uniformity. Local controls allow local officials to adapt policies to fit their communities' circumstances. Statewide statutes are important when individuals' rights are at stake --- like voter qualifications or access to the justice system. SB 267 (Leyva) 4/6/15 Page 4 of ? Local controls are important when individual rights aren't at risk and when there is general agreement that local elected officials should respect community differences. Some interest groups favor statewide laws because it can be complicated to comply with disparate rules adopted in 58 counties and 478 cities. Other groups prefer local regulations because they can advance their policies or economic goals one community at a time. SB 267 forces legislators to think about how they balance state control and local regulation for registered sex offenders. Should a registered sex offender's access to certain public accommodations like swimming pools or movie theaters be subject to different levels of restriction in different communities? Does a person convicted of a particular sex crime pose different risks to public safety depending upon the community in which they are present? 3. Why include residency ordinances ? SB 267 grants authority for local ordinances that restrict locations in which a registered sex offender can reside or be present. However, Penal Code 5003.5, as amended by Jessica's Law, already allows local restrictions on where sex offenders live to surpass restrictions imposed by state law. The court opinion in the Nguyen case did not call into question local ordinances regulating where sex offenders can live. To the contrary, the court's opinion specifically cited the fact that Jessica's law allows local residency restrictions to be more stringent than state law to support its conclusion that state law has generally occupied the field of regulating registered sex offenders' behavior, with only specified exceptions. SB 267's provisions should apply specifically to ordinances that regulate locations where registered sex offenders may be physically present within a community, which are the ordinances that the Nguyen decision called into question. Because SB 267's references to ordinances restricting where a registered sex offender can reside appear to be duplicative of existing law, the Committee may wish to consider amending SB 267 to delete references to ordinances that regulate registered sex offenders' residences. Support and Opposition (4/9/15) Support : California Fraternal Order of Police; Crime Victims SB 267 (Leyva) 4/6/15 Page 5 of ? United; Long Beach Police Officers Association; Los Angeles County Professional Police Officers Association; Sacramento County Deputy Sheriff's Association; San Bernardino County; Santa Ana Police Officers Association. Opposition : Unknown. -- END --