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Proposed Elk Grove Sex Offenders' Ordinance to be Heard Next Week

Below is the text of the proposed ordinance to be heard at next week's Elk Grove City Council meeting.

PREPARED BY: Susan Cochran, City Attorney; Robert Lehner, Chief of Police

RECOMMENDED ACTION

Staff recommends the City Council of the City of Elk Grove introduce and waive the full reading, by substitution of title only, an Ordinance of the City Council of the City of Elk Grove amending chapter 9.20 of the Elk Grove Municipal Code, “Sex Offenders’ Proximity to Children’s Facilities.”

BACKGROUND INFORMATION
Continued below...

In California the law requires sex offenders to register pursuant to Section 290 of the California Penal Code. “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.”1 Section 290 was originally enacted in 1947, and has been amended since then. An approximately 100 page treatise on the law entitled “Sex Offender Registration in California” by Deputy Attorney General Janet E. Neeley (2009) makes clear that interpretation and implementation of Section 290 is complicated.

Megan’s Law (AB1562) was originally enacted in 1996 by the State

Legislature and is generally used to refer to all California laws relating to public notification involving sex offenders. It provides authority for notification at various levels, including a Megan’s Notice published by the Elk Grove Police Department pursuant to Penal Code Section 290.45.

In November, 2006, California voters approved Proposition 83, entitled “The Sexual Predator Punishment and Control Act: Jessica’s Law.” Proposition 83 added new provisions to Penal Code Section 3003.5 to make it unlawful for registered sex offender parolees to reside or loiter within 2000 feet from any school (whether public or private) or from any park where children gather on a regular basis. The stated premise for the proposition was that sexual offenders showed a high likelihood to commit the same crime again and that their victims were disproportionately children under the age of 18.

In addition to the statewide prohibitions, Proposition 83 also included an authorization for enactment of local jurisdictions to adopt stricter residency restrictions. Penal Code Section 3003.5(c) specifically states, “Nothing in this section should prohibit municipal jurisdictions from enacting local ordinances that further restrict the residency of any person for whom registration is required pursuant to Section 290.”

The California Supreme Court recently upheld Proposition 218 against a challenge that it imposed additional punishment for those already convicted of crimes; the Supreme Court left open the question of whether sex offender registrants would be able to challenge Proposition 83 or local residency restrictions on other bases, such as infringement of the right to travel.2

Many local jurisdictions have considered or adopted residency restriction ordinances for Section 290 registrants. Recently, the City Council has heard from several local residents regarding a group home in Elk Grove that has heightened awareness of Penal Code section 290 registrants living in the City. The City Council has been approached to act on both the local and statewide level to provide additional protections to residents.

To that end, staff has prepared the attached ordinance. The purpose of this ordinance is to add to the City’s existing Chapter 9.20, entitled “Sex Offenders’ Proximity to Children’s Facilities”. The current ordinance was the result of meetings between the District Attorney, the County, and the Cities in Sacramento County to prepare an ordinance the District Attorney would enforce. A redlined version of the new text of the ordinance compared with the proposed language is attached to highlight the additions.

The proposed ordinance expands on the current restriction is to include residency restrictions for any required 290 registrants. The ordinance also adds more types of facilities where children are known to congregate. These changes are modeled after provisions in ordinances adopted by San Diego, National City, Delano, Piedmont and others. The San Diego ordinance, in particular, was provided by Elk Grove community groups as a desirable example.

Section 1: Amendment.

Chapter 9.20 “Sex Offenders’ Proximity to Children’s Facilities” is hereby amended to
read as follows:

Chapter 9.20

SEX OFFENDERS’ PROXIMITY TO CHILDREN’S FACILITIES

Sections:

9.20.010 Purpose.

9.20.020 Definitions.

9.20.030 Presence Prohibitions.

9.20.040 Residency Restrictions.

9.20.050 Prohibition against returning to a site.

9.20.060 Exemptions.

9.20.070 Notification of sex offenders

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9.20.080 Violation.

9.20.010 Purpose.

On November 7, 2006, the voters of the State of California overwhelmingly approved

Proposition 83 “The Sexual Predator Punishment and Control Act: Jessica’s Law,” so as to better protect Californians, and the children of this State in particular, from sex offenders. Proposition 83 enacted new subsection (b) of Penal Code 3003.5 which made it unlawful for any registered sex offender to reside within 2000 feet of any public or private school, or any park where children regularly gather. In addition, proposition 83 specifies in subsection ( c ) of Penal Code Section 3003.5 that municipal jurisdictions may enact local ordinances that further restrict the residency of set offenders. The City Council of the City of Elk Grove has determined that the factors set forth in Section 2 of Proposition 83, including the high recidivism rate of sex offenders and the frequency with which they prey on victims under the age of 18, make it incumbent upon the City of Elk Grove to enact additional restrictions as to control behavior by sex offenders to decrease the potential for their victimization of children and to protect its residents.

9.20.020 Definitions.

“Amusement center” means any establishment open to the public that provides entertainment directed at children, or whose play equipment is primarily used by children, including, but not limited to facilities providing activities such as gymnastics, laser tag, art classes, and cheerleading, so long as the primary users of the establishment are children. It does not include restaurants, movie theaters or shopping malls. It does not include businesses whose primary business is to sell toys or games or other similar products primarily used by children. “Children” means those persons who are under the age of eighteen (18) years of age. “Day care center” means any licensed child day care facility including infant centers, preschools, extended day care facilities, and school age childcare centers. It does not include a family day care home as defined in Section 1596.78 of the California Health and Safety Code, unless prior notice has been given to the sex offender. “Loitering” means to delay, to linger or to idle about without a lawful purpose for being present which is in excess of 5 minutes. “Playground” means any outdoor premises or grounds owned or operated by the City or other governmental entity that contains any play or athletic equipment used or intended to be used by children, including but not limited to, teen centers, youth sports facilities, skate parks, and public swimming pools.

“Park” shall have the same meaning as set forth in California Penal Code section 3003.5(b).



“Reside” or “Residence” shall have the same meaning as set forth in California Penal

Code section 3003.5(b).

“School” means the buildings and grounds of any public or private school used for purposes of the education of children in kindergarten or any of the grades one (1) to twelve (12), inclusive.

“School” shall not include a residence where parents or guardians provide home schooling.

“Sex offender” means a person who has been required to register with a governmental entity as a sex offender pursuant to Section 290 of the California Penal Code.

“Youth sports facilities” means any indoor or outdoor premises or grounds used or intended to be used for youth sports, including but not limited to soccer fields, ballparks, karate, dance, gymnastic and cheerleading schools.

9.20.030 Presence Prohibitions.

A. A sex offender is prohibited from being present or loitering within three hundred (300'

0") feet of the following locations when children are present:

1. Schools;

2. Day care centers;

3. Playgrounds;

4. Parks;

5. Amusement centers; or

6. Youth sports facilities.

B. For purposes of this section, distances shall be measured from the edge of the parcel where

the identified use is located.

9.20.040 Residency Restrictions.

A. It is unlawful for any registered sex offender to reside within 2000 feet of any of the

following places:

1. School;

2. Child Day Care Facility;

3. Playground;

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4. Parks;

5. Amusement centers; or

6. Youth sports facilities.

B. For purposes of this section, distances shall be measured from the edge of the parcel where

the identified use is located.

9.20.050 Prohibition against returning to a site.

It is unlawful for any Sex Offender to return to any location within three hundred (300) feet of any school, child day care center, playground, park, amusement center or youth sports facility at any time after having been notified to leave such location by the owner or any authorized officiallor agent of such children’s facility or day care center.

9.20.060 Exemptions.

A. This Chapter shall not apply to any registered sex offender who is currently on probation or parole for an offense for which registration is required, and whose conditions of probation or parole would otherwise violate that subsection.

B. A registered sex offender may be on or within 300 feet of a school if that sex offender is a parent or guardian of a child attending that school, or is a student at the school or has prior written permission for the entry from the chief administration office of that school. This exemption does not apply to the residence restriction, only to the presence restriction. This exemption is intended to be co-extensive with Penal Code section 626.8, and is not intended to authorize any conduct prohibited by Penal Code section 626.8.

C. Any registered sex offender who resides within 300 feet of any of the places listed in this Chapter on the effective date of this ordinance is not required to move. However the sex offender must proceed directly to and from her or her residence, and not loiter or remain within the 300 foot zone.

D. Any registered sex offender who resides outside 2000 feet of any of the places listed in this Chapter on the effective date of this ordinance shall not be required to move if one of the entities listed in this Chapter moves within 2000 feet of the sex offender’s residence after the effective date of this ordinance.

9.20.070 Notification of sex offenders.

The Elk Grove Police Department is directed to send a copy of Chapter 9.20 to each sex offender who on the effective date of Chapter 9.20 is residing within the City of Elk Grove.

9.20.080 Violation.

Any person violating this chapter is guilty of a misdemeanor which shall be enforced pursuant to the provisions of EGMC Chapter 1.04.



Section 2: No Mandatory Duty of Care.

This ordinance is not intended to and shall not be construed or given effect in a manner hat imposes upon the City or any officer or employee thereof a mandatory duty of care towards persons and property within or without the City, so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 3: Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.

This City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the ordinance be enforced.

Section 4: Effective Date and Publication This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within 15 days after its passage, a summary of the ordinance may be published at least five days prior to and fifteen (15) days after adoption by the City Council and a certified copy shall be posted in the office of the City Clerk, pursuant to GC 36933(c)(1).

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