BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M.Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |SB 267 |Hearing | 4/15/15 |
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|Author: |Leyva |Tax Levy: |No |
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|Version: |4/6/15 |Fiscal: |No |
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|Consultant|Weinberger |
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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.
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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,
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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.
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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
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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.
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