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 |
          |          |                                 |Date:      |         |
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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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