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HomeMy WebLinkAbout11A - ORDINANCE - REGISTERED SEX OFFENDERSTLJ 5/29/12 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 10, ARTICLE XII OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO PROXIMITY OF REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. On May 15, 2006, the City Council of the City of Santa Ana (the "City Council") adopted Ordinance No. NS-2712, adding Article XII, sections 10-700 to 10-703 to the Santa Ana Municipal Code, thereby regulating the proximity of registered sex offenders to children's facilities. B. The City Council continues to place a high priority on maintaining public safety and finds that registered sex offenders pose a clear threat to children residing in or visiting the City. C. Article XI, Section 7 of the California Constitution authorizes the City to enact and enforce ordinances that regulate conditions that may be public nuisances or health hazards, or that promote social, economic or aesthetic considerations. D. Sex offenders have high recidivism rates that exceed those exhibited by other convicted criminals. The City Council must therefore take all necessary action to protect children and potential victims from these dangerous predators. E. The City Council is concerned about the high rate of recidivism among sex offenders and their dangerousness as a class. The City Council takes legislative notice of the November 2003 report issued by the U.S. Department of Justice, Bureau of Justice Statistics entitled, "Recidivism of Sex Offenders Released from Prison in 1994." A fifteen (15) state study of prisoners released in 1994 showed that when compared to non-sex offenders released from state prison, released sex offenders were four times more likely to Ordinance No. NS-XXX Page 1 of 9 11 A-1 be rearrested for a new sex crime. This report is attached hereto and incorporated herein by this reference as though fully set forth. A copy of this report has been made available for City Council and public review at the City Clerk's office as a public record since posting of the agenda noticing consideration of this ordinance, and will remain as such. F. The City Council agrees with the U.S. Department of Justice statements in its brief to the Supreme Court that convicted sexual offenders are much more likely to repeat the offense of conviction than any other type of felon," and "clinical rehabilitative programs can enable sexual offenders to manage their criminal sexual impulses and thereby reduce the risk of sexual recidivism, [but a] vital component of those programs is for participants to come to terms with their sexual misconduct." G. The City Council finds that since sex offender recidivism rates are empirical data but sex offender rehabilitation depends upon an individual sex offender's personal efforts and acceptance of responsibility, factors that cannot be predicted, the danger presented by sex offenders is an unacceptable risk to the health, safety and welfare of the community that requires the City's regulatory intervention. H. On April 24th, 2012, the Santa Ana Public Safety Committee recommended the City Council adopt a revised ordinance, adding and amending certain provisions of the current ordinance, based on significant public safety considerations presented to and discussed by the Committee. The findings of and discussion by the Santa Ana Public Safety Committee, the Request for Council Action for this ordinance dated May 15th, 2012, and any attachments thereto, shall by this reference be incorporated herein, and together with the findings set forth in Section 1 of Santa Ana Ordinance No. NS-2712, in this ordinance, and any amendments or supplements or oral testimony before the City Council, shall constitute necessary findings for this ordinance. J. In enacting this ordinance, the City Council does not intend to punish sex offenders for their prior illegal conduct. Rather, the purpose of this chapter is to create a regulatory and non-punitive scheme to protect children and the public health, safety and welfare for the City's residents and visitors. K. It is not the intent of this ordinance to allow conduct otherwise prohibited by state law, or to contradict state law. Ordinance No. NS-XXX Page 2 of 9 11 A-2 L. Nothing in this ordinance shall be deemed to modify or in any way limit restrictions placed upon a sex offender by terms and conditions of parole or probation. M. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Chapter 10, Article XII of the Santa Ana Municipal Code is hereby amended in its entirety to read as follows: Article XII. - PROXIMITY RESTRICTIONS FOR REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES Sec. 10-700. - Purpose. Sec. 10-701. - Definitions. Sec. 10-702. - Prohibitions. Sec. 10-703. - Notice. Sec. 10-704. - Penalties for violation. Sec. 10-705. - Other prosecution authorized. Sec. 10-706. - Severability. Section 10-700. - Purpose. Sex offenders pose a clear threat to the children residing in, or visiting our community. Because convicted sex offenders are more likely than any other type offender to reoffend for another sexual assault, the city council desires to impose safety precautions in furtherance of the goal of protecting our children. The purpose of this regulation is to reduce the potential risk of harm to children of our community by impacting the ability for sex offenders to be in contact with unsuspecting children in locations that are primarily designed for use by, or are primarily used by children, namely, the grounds of a school, a center or facility that provides day care or children's services, and a park. The city desires to add location restrictions to such offenders where the state law is silent. Section 10-701. - Definitions. The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Ordinance No. NS-XXX Page 3 of 9 11 A-3 Child or Children means any person under the age of eighteen (18) years of age. Children's facility means any school, day care center, or park (excluding Sasscer Park), as defined in this section, the Discovery Science Center located at 2500 N. Main Street, the Bowers Kidseum located at the corner of 18th Street and Main Street, the McFadden Learning Center located at 2627 W. McFadden, the Newhope Branch Library located at 122 N. Newhope Street, the Main Library located at 26 Civic Center Plaza, KidWorks located at 1902 W. Chestnut, the Boys and Girls Club of Santa Ana located at 950 West Highland, the YMCA located at 2100 West Alton, and the Orange County Children's Therapeutic Art Center, located at 2215 N. Broadway #1. Day care center means any child day care facility other than a family day care home, and includes infant centers, preschools, extended-day care facilities and school-age child care centers, as defined in § 1596.76 of the California Health and Safety Code and licensed pursuant to the provisions of the California Child Day Care Facilities Act (Health & Safety Code §§ 1596.70 et seq.). Park means any public park or recreation or playground area or building or facility thereon within the city, owned and maintained by the city as a public park or recreation or playground area. School as used in this article shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the state Education Code and maintained pursuant to standards set by the state board of education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university. Sex Offender means: 1. Any person who has been required to register with a governmental entity as a sex offender when the underlying offense was a crime involving a child and/or children, including but not limited to, crimes involving child pornography; or 2. Any person who has been required to register with a governmental entity as a sex offender pursuant to California Penal Code sections 290, et seq., including but not limited to persons required to register when the underlying offense was a violation of: any section listed in Penal Code Chapter 7.5, Penal Code sections 207 (kidnapping), 220 (forcible and/or in concert or assault with the intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration), 261 (rape), 264 (rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), Ordinance No. NS-XXX Page 4 of 9 11 A-4 288.2 (sending harmful material to a minor with sexual intent), 288.3 (contacting a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual penetration, possession of child pornography), 288.5 (continuous sexual abuse of a child), 289 (forcible sexual penetration), 314 (indecent exposure), and 647.6 (child annoyance). Section 10-702. - Prohibitions. 1. A sex offender is prohibited from being on or within three hundred (300) feet of a children's facility: (a) While there for the apparent purpose of observing a child or children, or (b) If the sex offender returns at any time after having been notified to leave by the owner or any authorized official of such children's facility. Three hundred (300) feet shall be measured from the property lines of the parcel so zoned or used of each children's facility without regard to intervening structures. 2. A sex offender is prohibited from entering into or upon, or being present in or upon, any children's facility. Each entry into any such area, regardless of the time period between entries, shall constitute a separate offense under this ordinance. 3. A violation of this section is a misdemeanor. Sec. 10-703. - Notice. Registered sex offenders, prior to the date this article becomes effective, residing in the city shall be mailed a copy of the ordinance from which this article derives, first class mail, to their residence with the city police department. Thereafter, sex offenders who register with the city shall be provided a copy of the ordinance from which this article derives at the time of registration. Ordinance No. NS-XXX Page 5 of 9 11 A-5 Section 10-704. - Penalties for violation. Punishment for a violation of this section shall be as follows: (1) Upon a first conviction, by imprisonment in a county jail for a period of not more than six months, or by a fine not exceeding five hundred dollars ($500), or by both imprisonment and a fine. (2) Upon a second conviction, by imprisonment in a county jail for a period of not less than ten (10) days and not more than six months, or by both imprisonment and a fine not exceeding five hundred dollars ($500). Upon a second conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ten (10) days. (3) Upon a third or subsequent conviction, by imprisonment in a county jail for a period of not less than ninety (90) days and not more than six months, or by both imprisonment and a fine not exceeding five hundred dollars ($500). Upon a third or subsequent conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ninety (90) days. Section 10-705. - Other prosecution authorized. Nothing in this ordinance shall preclude or prohibit prosecution under any other provision of law, which includes but is not limited to prosecution of parole and/or probation violations. Section 10-706. - Severability. If any section, subsection, paragraph, 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 portion shall be deemed severable and such holding shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana 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 be declared invalid or unconstitutional, and declares that the invalid portions should be severed and the balance of the ordinance be enforced. 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 Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that Ordinance No. NS-XXX Page 6 of 9 11 A-6 any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 2012 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Teresa L. Judd Assistant City Attorney AYES: NOES: Councilmembers Councilmembers ABSTAIN: Councilmembers NOT PRESENT Ordinance No. NS-XXX Page 7 of 9 Councilmembers 11 A-7 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 8 of 9 11 A-8 "Recidivism of Sex Offenders Released from Prison in 1994" U.S. Department of Justice, Bureau of Justice Statistics Published November 2003 Ordinance No. NS-XXX Page 9 of 9 11 A-9 11A-10