HomeMy WebLinkAbout41 - NB-7 - Repeal of Costa Mesa Municipal Code Ch. - 2/18/2014CITY COUNCIL AGENDA REPORT
MEETING DATE: FEBRUARY 18, 2014 ITEM NUMBER: NB -7
SUBJECT: REPEAL OF COSTA MESA MUNICIPAL CODE CHAPTER XIII SEX OFFENDER PARK
EXCLUSION ORDINANCE
DATE: FEBRUARY 18, 2014
FROM: POLICE DEPARTMENT
PRESENTATION BY: ELENA Q. GERLI, DEPUTY CITY ATTORNEY
FOR FURTHER INFORMATION CONTACT: LT. MARK MANLEY (714) 754-5043
ELENA Q. GERLI (714) 446-1400
RECOMMENDATION:
Introduce ordinance for first reading by title only and waive further reading
BACKGROUND:
In 2011, the City of Irvine enacted Ordinance 11-05 that prohibited registered sex
offenders from entering city parks without written permission from the chief of police. On
May 1, 2012, the City Council of the City of Costa Mesa adopted Ordinance No. 12-3,
adding Chapter XIII (Sex Offenders Prohibited From Entering Parks and Sports Facilities)
of Title 11 (Offenses — Miscellaneous), which prohibits all registered sex offenders,
pursuant to Section 290 of the California Penal Code, from entering City parks and City
sports facilities, as defined.
Recently, the Fourth District of the California Court of Appeal decided the case of People
v. Nguyen, 2014 Cal. App. LEXIS 18 (Cal. App. 4th Dist. Jan. 10, 2014). In Nguyen, the
Court of Appeal held that the Irvine Ordinance is invalid because it is preempted by state
law. The Court of Appeal, in an almost identical but unpublished case, People v. Godinez,
2014 Cal. App. Unpub. LEXIS 159 (January 10, 2014), Appellate Court Case No.
G047657, also held a similar ordinance enacted by the County of Orange to be
preempted by state law. The Orange County District Attorney is likely to seek review by
the California Supreme Court of the Nguyen and Godinez decisions.
A lawsuit filed by John Doe against the City of Costa Mesa, challenging the validity of
Ordinance No. 12-3 is pending in federal court. The case has been on hold awaiting a
final ruling on under state law.
The City has not enforced Ordinance 12-3 since the Superior Court's Appellate
Department ruling in the Godinez case.
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ANALYSIS:
In People v. Nquyen, the Court of Appeal held that the Legislature's enactment of a
comprehensive statutory scheme regulating the daily lives of sex offenders, including
places they are allowed to go, indicates the Legislature's intent to occupy the entire field
of sex offender regulation to the exclusion of additional local restrictions. Because
Ordinance 12-3 prohibits sex offenders from entering parks in a more restrictive manner
than Irvine's recently invalidated ordinance, Ordinance 12-3 is likely also preempted by
state law.
ALTERNATIVES CONSIDERED:
The City could continue not to enforce Ordinance No. 12-3 and take no further action
until it becomes clear whether or not the California Supreme Court will review the
Nquyen decision.
FISCAL REVIEW:
There is no anticipated fiscal impact.
LEGAL REVIEW:
The City Attorney's office has drafted and approved the attached ordinance repealing
Chapter XI 11.
CONCLUSION:
The Police Department recommends that the City Council approve the attached
ordinance repealing Chapter XIII of Title 11 of the Costa Mesa Municipal Code.
THOMAS R. HATCH
Chief Executive Officer
THOMAS P. DUARTE
City Attorney (legal review only)
ATTACHMENT: Ordinance No. 14 -
TOM GAZSI
Chief of Police
MARK MANLEY
Lieutenant
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DISTRIBUTION: Chief Executive Officer
Assistant Chief Executive Officer
City Council