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HomeMy WebLinkAbout721ORDINANCE NO. 721 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA REPEALING AND REPLACING IRWINDALE MUNICIPAL CODE CHAPTER 8.32 (SEX OFFENDER RESIDENCY AND LOITERING RESTRICTIONS) OF TITLE 8 (HEALTH AND SAFETY) REGARDING REGISTERED SEX OFFENDERS WHEREAS, on November 7, 2006, the voters of the State of California overwhelmingly approved Proposition 83, the "Sexual Predator Punishment and Control Act," commonly known as "Jessica's Law," so as to better protect Californians, and, in particular, to protect the State's children from sex offenders; and WHEREAS, Proposition 83, codified as California Penal Code section 3003.5, prohibits any person who is required to register as a sex offender per California Penal Code sections 290 et seq. from residing within 2,000 feet of a public or private school or any park where children regularly gather (Cal. Penal Code § 3003.5(b)), and permits local regulation of sex offender residency (Cal. Penal Code § 3003.5(c)); and WHEREAS, in reliance on the authority set forth in California Penal Code subsection 3003.5(c) and its police power, the City Council of the City of Irwindale, like many other cities in the state of California, adopted Ordinance No. 635, adding Chapter 8.32 to the Irwindale Municipal Code ("IMC"), entitled "Sex Offender Residency and Loitering Restrictions," (the "Ordinance"); and WHEREAS, the Ordinance prohibits a sex offender from: (i) residing as a permanent or temporary resident in any residential exclusion zone, where "residential exclusion zone" is defined as all properties located within five hundred feet of a child care center, public or private school, or park; (ii) residing as a permanent or temporary resident on a property within five hundred feet of another property on which a separate registered sex offender is a permanent or temporary resident, unless those sex offenders are related by blood, marriage, or adoption; (iii) residing as a temporary or permanent resident in a single-family dwelling, or same dwelling unit of a multi -family dwelling, if such dwelling is already occupied by another sex offender, unless those persons are legally related by blood, marriage, or adoption; (iv) residing in a unit in a multi -family dwelling (e.g. duplex, apartment house, condominium complex, etc.) as a permanent resident if there is another unit in that multi -family dwelling already rented or otherwise occupied by a registered sex offender as a permanent resident, unless those persons are legally related by blood, marriage, or adoption; (v) renting or otherwise occupying as a temporary or permanent resident the same guest room in a hotel with another registered sex offender, unless those persons are legally related by blood, marriage, or adoption; or (vi) renting or otherwise occupying a guest room in a hotel as a permanent resident if there is another guest room in that hotel that is already rented or otherwise occupied by a registered sex offender as a permanent resident, unless those persons are legally related by blood, marriage, or adoption. These restrictions may be referred to collectively as the "Residency Restrictions"; and Ordinance No. 721 Page 1 WHEREAS, the Ordinance provides that its restrictions apply to "registered sex offenders," which term is defined as "any person who is required to register under section 290 of the California Penal Code, regardless of whether that person is on parole or probation'; and WHEREAS, on March 2, 2015, the California Supreme Court issued its decision in the case of In re Taylor, (2015) 60 Cal. 4th 1019, which addressed the validity of the 2,000 foot residency restriction for sex offender parolees under Section 3003.5(b) of the Penal Code; and WHEREAS, the In re Taylor Court ruled that the blanket enforcement of the residency restrictions in Penal Code section 3003.5 against sex offender parolees in San Diego County was unconstitutional. The Court found blanket enforcement of the residency restrictions had "greatly increased homelessness" among registered sex offenders on parole in the county and "hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety." (Id. at 1023, 1040.) Additionally, the Court found the residency restrictions, as applied and enforced in San Diego County, "hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators." (Id. at 1042.); and WHEREAS, most recently, on August 4, 2016, the Court of Appeal decided People v. Lynch (2016) 2 Cal. App. 5th 524, narrowly interpreting Penal Code section 3003.5 as applying only to parolees. People v. Lynch (2016) 2 Cal. App. 5th 524, 528 ["The placement of Jessica's law residency restrictions immediately after the previously enacted subdivision (a), which was applicable only to parolees, indicates the intent of the Proposition 83's drafters to align and limit the "any person" reference in subdivision (b) to the class of persons identified in subdivision (a) — parolees."].) The City's Ordinance currently applies to 'any person who is required to register under Section 290 of the California Penal Code, regardless of whether or not that person is on parole or probation." ; WHEREAS, in light of the Taylor and Lynch decisions, the City of Irwindale has conducted a comprehensive review of its Ordinance and ultimately determined to repeal the Residency Restrictions and replace them with the provisions herein. NOW, THEREFORE, the City Council of the City of Irwindale, does ordain as follows: Section 1. The forgoing recitals are true and correct and incorporated herein by this reference. Ordinance No. 721 Page 2 Section 2. Chapter 8.32 (Sex Offender Residency and Loitering Restrictions) of Title 8 (Health and Safety) of the Irwindale Municipal Code is hereby repealed and replaced in its entirety with the following: "8.32.010 — Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. A. "Hotel" means a commercial establishment that rents guest rooms or suites to the public on a nightly, weekly, or monthly basis and shall include a motel and an inn that operates in such capacity. B. "Multi -family dwelling" means a residential structure designed for the permanent residency of two or more individuals, groups of individuals, or families living independently. This definition shall include a duplex, apartment house, and a condominium complex, but shall not include a hotel. C. "Owner's authorized agent" means any person, firm, association, joint venture, joint stock company, partnership, organization, club, company, limited liability company, corporation, business trust, manager, lessee, agent, servant, officer, or employee authorized to act for the property owner. D. "Permanent resident" means any person who, on a given date, has obtained a legal right to occupy or reside in, or has already, as of that date, occupied or resided in, a single-family or multi -family dwelling or a hotel, for more than thirty consecutive days. E. "Property owner" shall include the owner of record of real property, as recorded in the office of the county registrar-recorder/county clerk, as well as any partial owner, joint owner, tenant, tenant-in-common, or joint tenant, of such real property. F. "Responsible party" means a property owner and/or a property owner's authorized agent. G. "Sex offender parolee" means any person who is on parole for the conviction of a crime on or after the effective date of this ordinance, for which registration is required pursuant to Section 290 of the California Penal Code. H. "Single-family dwelling" one permanent residential dwelling located on a single lot. For the purposes of this chapter, a single-family dwelling shall include any state -licensed residential facility which serves six or fewer persons. I. "Temporary resident" means any person who, on a given date, has obtained a legal right to occupy or reside in, or has already, as of that date, occupied or resided in, a single-family or multi -family dwelling or a hotel, for a period of thirty consecutive days or fewer. 8.32.020 Sex offender parolee violation — Single-family and multi-familV dwellings. A sex offender parolee shall be prohibited from renting or otherwise occupying a single-family dwelling or a unit in a multi -family dwelling with another sex offender parolee, regardless of the permanent or temporary residential status of either sex offender parolee, unless those persons are legally related by blood, marriage, or adoption. Ordinance No. 721 Page 3 8.32.030 Sex offender parolee violation – Hotels A sex offender parolee shall be prohibited from renting or otherwise occupying the same guest room in a hotel with another sex offender parolee, regardless of the permanent or temporary residential status of either sex offender parolee, unless those persons are legally related by blood, marriage, or adoption. 8.32.040 Responsible party violation – Dwellings. A responsible party shall be prohibited from knowingly allowing a single- family dwelling or a unit in a multi -family dwelling to be rented or otherwise occupied by more than one sex offender parolee, regardless of the permanent or temporary residential status of either sex offender parolee during any given period of tenancy, unless those persons are legally related by blood, marriage, or adoption. 8.32.050 Responsible party violation—Hotels. A responsible party shall be prohibited from knowingly allowing a guest room in a hotel to be rented or otherwise occupied by more than one sex offender parolee, regardless of the permanent or temporary residential status of either sex offender parolee, unless those persons are legally related by blood, marriage, or adoption. 8.32.060 Applicability. This chapter shall apply to all sex offender parolees who establish a new residence, and to all responsible parties who allow occupancy by a sex offender parolee, within the City of Irwindale after the effective date of this ordinance. 8.32.070 Penalties. Any single-family dwelling, multi -family dwelling, or hotel operated or maintained in a manner inconsistent with the occupancy requirements of this section or of the restrictions in Penal Code Section 3003.5 is declared to be unlawful and declared to be a public nuisance that is injurious to the public health, safety, and welfare. 8.32.080 Nuisances – Recovery of abatement expenses A. In any civil action or proceeding, administrative proceeding, or special proceeding, including, but not limited to, those brought to abate a public nuisance, the prevailing party will be entitled to recovery of all costs, attorneys fees, and expenses, provided that attorneys fees will only be available in those actions or proceedings in which the city has provided notice at the commencement of such action or proceeding that it intends to seek and recover its own attorneys fees. In no action or proceeding will an award of attorneys fees exceed the amount of reasonable attorneys fees incurred by the city in the action or proceeding. B. Moneys due the city pursuant to this section may be recovered in an appropriate civil action. Alternatively, such liability may be enforced by special assessment proceedings against the parcel of land upon which the Ordinance No. 721 Page 4 nuisance existed, which proceedings must be conducted in a manner substantially similar to the proceedings prescribed by Section 8.08.110 of this code relating to assessment for abatement of property nuisances. 8.32.090 Eviction requirements. If, in order to comply with this chapter, a responsible party is required to terminate a sex offender parolee's tenancy or other occupancy, the responsible party shall comply with all applicable state law procedures and requirements governing the eviction of tenants of real property. If, in accordance with these procedures and requirements, a court determines that such termination is improper, the responsible party shall not be in violation of this section by allowing the sex offender parolee to remain as a tenant or other occupant. 8.32.100 Penalty/enforcement. Notwithstanding any other penalty provided by this code or otherwise by law, any person who violates this chapter shall be guilty of a misdemeanor and shall be subject to the penalties as set forth in Chapter 1.12 of this code. Neither the arrest, prosecution, conviction, imprisonment, nor payment of any fine for a violation of this chapter shall diminish the authority of the city to institute administrative or civil actions seeking enforcement of any or all of the provisions of this chapter. Section 3. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Irwindale hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions thereof may be declared invalid or unconstitutional. Section 4. This ordinance shall be in full force and effect thirty (30) days after its second reading and adoption. Section 5. This ordinance shall not apply to sex offenders who have established residence in violation of the Residency Restrictions of Title 8, Chapter 8.32 of the Irwindale Municipal Code prior to the effective date of this ordinance. Any sex offender parolee who changes residence after the effective date of this ordinance must move to a residence whose location is in compliance with the Residency Restrictions. Section 6. The City Clerk shall certify to the passage and adoption of this ordinance by the City Council of the city of Irwindale and shall cause a summary of this ordinance to be published in accordance with Government Code § 36933. Ordinance No. 721 Page 5 PASSED, APPROVED and ADOPTED at a regular meeting of the City Council on this 28th day of February, 2018. Albert F. Ambriz, Mayor Pro T AT ST: fi1 6Lurat. Nieto, MMC Chief Deputy City Clerk Ordinance No. 721 Page 6 STATE OF CALIFORNIA } COUNTY OF LOS ANGELES } ss. CITY OF IRWINDALE } I, Laura M. Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Ordinance No. 721 was introduced for first reading at regular meeting held February 14, 2018 and duly adopted by the City Council of the City of Irwindale, at a regular meeting held on the 28th day of February 2018, by the following vote: AYES: Councilmembers NOES: Councilmembers ABSENT: Councilmembers: ABSTAIN: Councilmembers: Ambriz, Burrola, Ortiz None Garcia, Mayor Breceda None 40a raurk M. Nieto, MMC tbAf Deputy City Clerk AFFIDAVIT OF POSTING I, Laura M. Nieto, Chief Deputy City Clerk, certify that I caused a copy of Ordinance No. 721 adopted by the City Council of the City of Irwindale at its regular meeting held February 28, 2018, to be posted at the City Hall, Library, and Post Office on March 1, 2018. ' ` • Dated: _ jCef . Nieto, MMC puty City Clerk 3111f W Ordinance No. 721 Page 7