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California

Fullerton Parks Ordinance preempts State Law

On April 11 a panel of 3 Superior Court Judges found the Fullerton municipal ordinance prohibiting 290 registrants from entering and being near public parks to be preempting state law and thus unlawful. This decision is not published, so it only effects the Fullerton ordinance in this very case. It is is similar to the ruling regarding the County of Orange ordinance from last November. 

The Court of Appeal’s published opinion regarding the County Ordinance is expected late spring / early summer.

Fullerton Parks Ordinance – Appellate Court Decision (April 2013)

COURT DETERMINES ORANGE COUNTY SEX OFFENDER ORDINANCE UNLAWFUL (Nov 2012)

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  1. USA

    I think this article should really set the tone. Lets all be real. There is currently a proposed Sex Offender Tier System introduced, multiple cities have overturned their park laws and this is certainly due to the hard work and dedication of a group of hard working individuals. Hats off to you Janice

  2. J

    State law currently allows municipalities to establish residence restrictions to protect the safety of its residents. I can’t remember what the number of the statute is, but until that is removed completely, we can expect these scenarios to repeat themselves over and over and make lives of registrants miserable or unbearable. That is just one example of what a piece of “work” this entire body of law represents. I’ll do some digging in the meantime, but if anyone knows the exact statute, that would be helpful.

    It seems that whenever anything positive and constructive comes our way, some clause in the law is built in to negate any progress made. The simple but elusive starting point is to only have these clauses apply non-retroactively – each and every one.

    Then registrants would be at least afforded the protection of the constitution. What a concept.

    • LegalBeagle

      You are most likely referring to PC 3003.5(c). This section deals with residence restrictions and expressly allows municipalities to make their own rules – for residence only.

      Presence restrictions in public areas are addressed in PC 3053.8 (for those on parole, offense against minor under 14). The recent municipal ordinances restricting presence in parks go beyond what the law explicitly states – preempt it – and as such, are not in accordance with the state constitution. That is the basis for the recent rulings on the subject.

      http://law.onecle.com/california/penal/3003.5.html
      http://law.onecle.com/california/penal/3053.8.html

      SB 386, a bill currently in the California Senate, would authorize cities and counties to do the same to presence as residence restrictions.

      http://totalcapitol.com/?bill_id=201320140SB386

      • J

        These residency restrictions apparently apply to any registrant regardless of parole or probation status. This leaves a tremendous amount of exposure for all registrants though our focus has been mostly on presence restrictions and seemingly limited to probationary periods.

        There is a new bill also being proposed in another knee-jerk response to an incident last year in which the registrant was subsequently punished in accordance with existing law. The review should be made by DOJ / CDCR and keep this at the state level and at least attempt a measure of consistency. Chances are any PD will not expose themselves and this process represents essentially a conflict of interest (IMHO).

        http://leginfo.ca.gov/pub/13-14/bill/sen/sb_0301-0350/sb_326_bill_20130401_amended_sen_v98.html

        Every time a patch is added in response to public panic, yet another Rube Goldberg contraption gets added. The law needs to be rewritten in its entirety with new statistics as the preamble to help mitigate the panic and fear mongering that was established in current law. The state needs to step up and reduce the size of the publicly viewable registry so it can concentrate on making the process workable, effective and constitutional.

        • Joe

          @J – this bill should be of great interest to all with children in school.

          http://www.mercurynews.com/politics-government/ci_23051104/san-jose-bill-inspired-by-st-frances-cabrini

        • J

          That is more reason to have the state web site post relative information such as probation status etc.

          As is stands now, anyone with a conviction sometime after 1944 could be harassed and harangued to satisfy essentially the ignorance, fear and hate of anyone. I guess nowhere in the body politic has anyone talked about family values unless it is a the exclusion of the family of a registrant…

        • mike

          Once again, I don’t understand the need for new policy. This knucklehead probationer is going to serve time anyways for breaking the terms of his probation. This senator needs to address his constituents with an explanation that this man is being dealt with. Instead he’s using this isolated situation to pad his ‘tough on crime’ resume. Just quit it.
          I’m on parole and there is no chance in hell you would find me at an event that apparently was catering to children. Church, School, B-day party…etc. If anything is questionable then you shouldn’t be doing it while on probation or parole.

  3. none

    what aboout this ?
    http://www.nbclosangeles.com/news/local/OC-Supervisors-Approve-Banning-Sex-Offenders-From-Parks-Beaches-119290584.html?fb_comment_id=fbc_10150164129533147_26195203_10151564098673147#f1fc02a8b04b85e

    An ordinance that bans registered sex offenders from some Orange County parks and beaches and imposes a $500 fine on violators was approved by county Supervisors Friday.

  4. Kenyon

    States differ considerably in how and to what extent they preempt the regulation of firearms and ammunition.  Specific questions about whether a particular type of local regulation may be preempted in any given state involve complex inquiry and analysis of existing case law.  The Law Center is available to consult with officials and advocates on specific questions relating to their jurisdiction.

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