Ordinance No. 1148/88
ORDINANCE NO. 1148
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, AMENDING PORTIONS OF CHAPTER 17 -74
OF THE CYPRESS MUNICIPAL CODE
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, as codified at California Penal Code section 3003.5
( "Section 3003.5 "), prohibits any person who is required to register as a sex offender per
California Penal Code section 290 et seq. (hereinafter referred to as a "registered sex
offender ") from residing within two thousand (2,000) feet of any public or private school, or
any park where children regularly gather (Cal. Penal Code § 3003.5(b)); and
WHEREAS, California Penal Code § 3003.5(a), enacted in 1998 prior to Proposition
83, further prohibits a sex offender who is on parole from residing in a "single- family
dwelling" with another sex offender during his /her parole period, unless the multiple sex
offenders are legally related by blood, marriage, or adoption. For purposes of this state
statute, "single- family dwelling" does not include a residential facility such as a group home
that serves six (6) or fewer persons; and
WHEREAS, Section 3003.5 also includes a provision which expressly authorizes
further local regulation of sex offender residency: Section 3003.5(c), which states that
"[n]othing in this section shall prohibit municipal jurisdictions from enacting local ordinances
that further restrict the residency of any person for whom registration is required pursuant to
Section 290 "; and
WHEREAS, the state legislature has enacted numerous regulations on the activities
of registered sex offenders, including but not limited to California Penal Code section 653b,
which prohibits registered sex offenders from loitering "about any school or public place at
or near which children attend or normally congregate (Cal. Penal Code § 653b(a)); and
WHEREAS, on March 12, 2012, the City of Cypress ( "City ") acted proactively to
further the protections provided by state law by adopting Ordinance No. 1132, approving,
among other things, regulations on the residency and presence of registered sex offenders
in the City, detailed herein; and
WHEREAS, Ordinance No. 1192 was subsequently codified as Cypress Municipal
Code ( "CMC ") Chapter 17 -74, entitled "Registered Sex Offender Restrictions" (the
"Ordinance "); and
WHEREAS, on January 14, 2014, the City's City Council adopted Ordinance No.
1142, amending the Ordinance to include legislation findings and resolve clarify minor
procedural and definitional issues; and
WHEREAS, the Ordinance provides that registered sex offenders may not reside
within "two thousand feet (2000') of any school, park or child care center" (CMC § 17-
74.4(a)), the "Residency Restrictions "); and
WHEREAS, the Ordinance also provides that a registered sex offender may not be
"within five hundred feet (500') of any school, child care center or park," subject to certain
limited exceptions (CMC § 17- 74.5(a) -(b)), and further prohibits "loitering" by registered sex
offenders, as that term is defined in CMC § 17 -74.3 (CMC § 17- 74.5(c)) (collectively, the
"Presence Restrictions "); and
WHEREAS, on January 10, 2014, the Fourth Appellate District of the California
Court of Appeal issued a published opinion relating to regulations like the City's Presence
Restrictions in the matter of People v. Nguyen (2014) 222 Cal. App. 4th 1168 ( "Nguyen ")
which: (1) determined that the State of California had "created a standardized, statewide
system" to regulate sex offenders and to "protect[] victims and potential victims from future
harm" and (2) held that a local ordinance which exceeded the state law standards and
made it a misdemeanor for registered sex offenders to enter a city park was "preempted" by
California law; and
01004.0001/253837.1
189
WHEREAS, on March 2, 2015, the California Supreme Court issued two decisions
relating to state and local regulation of sex offender residency: (1) In re Taylor, Supreme
Court Case No. S206143 ( "Taylor') and (2) People v. Steven Lloyd Mosley, Supreme Court
Case No. S187965 ( "Mosley'); and
WHEREAS, read together, these Supreme Court cases generally indicate that state
law residency restrictions (e.g. Section 3003.5) are not per se unconstitutional, but may now
be open to case -by -case challenges like that in Taylor, where the defendants successfully
argued that blanket application of Section 3003.5(b), "as applied" to them in San Diego
County, violated the Constitution by depriving those registered sex offenders of certain
fundamental rights; and
WHEREAS, notably, in Mosley, the high Court acknowledged that Section
3003.5(b)'s residency restrictions are "rationally related to the legitimate regulatory and
nonpunitive government purpose" of "protecting children in and around schools and parks ";
and
WHEREAS, the Taylor Court specifically determined that blanket enforcement of
Section 3003.5(b)'s residency restrictions was unconstitutional "as applied" in densely
populated, urban San Diego County because it created the following unconstitutional
deprivations for sex offenders:
(1) it limited access to housing, increasing the incidence of homelessness and
transiency, particularly because San Diego County is a "populous urban community
where dense development render[ed] large areas off - limits for residential purposes,
and available affordable compliant housing [wa]s scarce ";
(2) it deprived sex offenders of access to necessary services such as medical care,
psychological treatment, and drug and alcohol counseling at residential treatment
facilities;
(3) it caused a dramatic increase in homeless and transient sex offenders, making it
more difficult for parole officers and law enforcement to monitor and control
registered sex offenders; and
WHEREAS, in light of the above - detailed court decisions and certain settlement
agreements relating to its Ordinance, the City has not enforced the Presence Restrictions or
Residency Restrictions of the Ordinance until such time as they could be amended to
comply with recent judicial guidance regarding the limits on local regulation of sex
offenders; and
WHEREAS, staff and the City Attorney's office has conducted a thorough analysis
relating to the effects of the Ordinance on registered sex offenders in the City of Cypress in
order to determine whether the City shares common characteristics with the County of San
Diego, such that the above - detailed constitutional deprivations were occurring in the City,
and to form an opinion regarding what amendments to the Ordinance are appropriate in
light of the Taylor and Mosley decisions, if any; and
WHEREAS, unlike San Diego County, the City of Cypress is not a "densely
populated, urban community," — it is a medium - density, primarily suburban community
located in Orange. According to the 2013 census estimate by the United States Census
Bureau, the City of Cypress has a population of approximately 49,087 citizens who reside
within the approximately 6.6 square miles. Of these approximately 49,087 citizens, the
Megan's Law website provides that only 20 (or .005 %) of them are required to register as
sex offenders; and
WHEREAS, staff has specifically analyzed the issue of whether the City's Ordinance
unconstitutionally limits access to housing for registered sex offenders. Pursuant to this
analysis, City staff has determined that registered sex offenders can lawfully reside, in
compliance with the City Ordinance, in approximately 0.53 square miles, or 342 square
acres, within the City's jurisdictional boundaries, which areas include a variety of
apartments, condominiums, as well as single family homes; and
WHEREAS, pursuant to this analysis, staff and the City Attorney's office have
concluded that a 1,000 foot residential exclusion zone would not "limited [sex offender]
access to housing ";
01004.0001/253837.1
190
WHEREAS, pursuant to an amended 1,000 foot residential exclusion zone, the
permitted areas of sex offender residency in the City include the following general areas:
• Approximately 156.4 square acres or (0.244 square miles) of residential
property available in the northwest section of the City;
• approximately 31.5 square acres or (0.049 square miles) of residential
property available in the northeast section of the City;
• approximately 22.9 square acres or (0.036 square miles) of residential
property available in the southwest section of the City; and
• approximately 131.6 square acres or (0.206 square miles) of residential
property available in the southeast section of the City; and
WHEREAS, staff has also conducted an evaluation of whether the City's Ordinance
prevents placement of sex offenders in drug treatment or other residential medical facilities.
Pursuant to this evaluation, staff is not aware of any registered or permitted drug treatment
or residential medical facilities in the City that would be impacted by the Ordinance's
residency restrictions; and
WHEREAS, in light of these recent court decisions and the above - detailed analysis
conducted by the City Attorney's office, staff and law enforcement, the City's City Council
hereby finds and determines that the City's Ordinance should be amended as set forth
hereinafter; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Cypress Municipal Code Chapter 17 -74, section 17 -74.3, "Definitions"
is hereby amended to read as follows (deleted text, if any, is show in strikethrough; new
text, if any, is shown in bold & italics):
"For purposes of sections 17 -74.1 through 17- 74.10, the following definitions
shall apply:
Adult shall mean a person eighteen (18) years and older.
Child or children shall mean any person(s) under the age of eighteen (18)
years.
Child care center shall mean any state of California, Department of Social
Services licensed facility that provides non - medical care on a less than
twenty -four (24) hour basis to children in need of personal services,
supervision or assistance essential for sustaining the activities of daily living
or for the protection of the individual, including, but not limited to, infant
center, preschool, extended -day care facility, or school -age child care center
but not including a family day care home located in a residential exclusion
zone.
Dwelling shall mean a single - family dwelling or a multi - family dwelling. For
purposes of this chapter, "dwelling" shall not include any state - licensed facility
which serves six (6) or fewer persons and is exempted under California Penal
Code section 3003.5.
Hotel shall mean 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.
Loiter shall mean to commit any act as defined in California Penal Code
section 653b(d) in or about a school or park.
Multi - family dwelling shall mean a residential structure designed for the
permanent residency of two (2) or more individuals, groups of individuals, or
families living independently. This definition shall include a duplex, apartment
complex, mobilehome park, and a condominium complex, but shall not
include a hotel.
01004.0001/253837.1
Owner's authorized agent shall mean any natural person, firm, association,
joint venture, joint stock company, partnership, organization, club, company,
limited liability company, corporation, business trust, manager, lessee,
servant, officer, or employee, authorized to act for the property owner.
Park shall mean any indoor or outdoor areas owned, leased, controlled,
maintained, or managed by a public entity, which are open to the public,
where children regularly gather, and which provide recreational, cultural,
and /or community service activities including, but not limited to, playgrounds,
playfields, athletic courts and any open space intended for recreational use.
Permanent resident shall mean 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 (30) consecutive days.
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.
Registerable offense shall mean a public offense which, upon conviction,
requires the person who committed the offense to register as a sex offender
pursuant to Penal Code section 290.
Registered sex offender shall mean any person who has committed a
"registerable offense" and is required by law to register with a governmental
entity as a sex offender.
Reside shall mean a temporary or permanent dwelling place, which one
keeps and to which one intends to return, as opposed to a place where one
rests or shelters during a trip or visit. Depending upon the circumstances, one
may have a single place of residence or more than one place of residence.
Residential exclusion zone shall mean any area located within onetwe
thousand (12,000) feet from the nearest property line of the subject property
to the nearest property line of a child care center, public or private school
(grades K through 12) or park.
Responsible party shall mean a property owner and /or a property owner's
authorized agent.
School shall mean the buildings and grounds of any public or private school
used for the education of children in kindergarten or in grades 1 through 12,
inclusive.
Single- family dwelling shall mean one (1) permanent residential dwelling
located on a single lot.
Temporary resident shall mean 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 (30) consecutive days or less.
191
Section 2. Cypress Municipal Code Chapter 17 -74, section 17 -74.4, "Residency
Restrictions," sub - sections 17 -74.5 (a)(1) & (3), are hereby amended as follows (deleted
text, if any, is show in ctrikethrough; new text, if any, is show in bold & italics):
"(a) Residency restrictions — Generally.
(1) Any registered sex offender is prohibited from residing within onetwo
thousand (12,000) feet of any school, park, or child care center.
(3) Any person who is convicted of a registerable offense against a child
subsequent to the effective date of the ordinance codified in these sections is
prohibited from residing within onetwe thousand (12,000) feet of any school,
park or day care center, irrespective of whether the residence was
01004.0001/253837.1
established prior to the effective date of the ordinance codified in these
sections.
(4) Notwithstanding the foregoing restrictions, a registered sex
offender may reside within one thousand (1,000) feet of any school, park
or child care center where it is demonstrated that such residency is
necessary to provide access to court ordered or medically prescribed
residential medical care, psychological treatment or therapy, or drug
and alcohol counseling facilities, or where the sex offender is
exercising First Amendment rights protected by the United States
Constitution, such as the free exercise of religion at a place of worship,
or freedom of speech or the right of assembly in a location recognized
as a traditional public forum ."
Section 3. Cypress Municipal Code Chapter 17 -74, section 17 -74.5, "Proximity
Restrictions," is hereby repealed, in its entirety.
Section 4. Cypress Municipal Code Chapter 17 -74, section 17 -74.6, "Measure of
Distance," is hereby amended as follows (deleted text, if any, is show in stri gh; new
text, if any, is show in bold & italics):
"The - _ - _ _ ! ! _ _ _ . - _ - _ • - : one thousand (12,000)
foot residential exclusionbuffer zone shall be measured in a straight line, in
all directions, without regard to intervening structures, from any property line
of any school, child care center or park."
Section 5. 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 Cypress 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 6. This Ordinance shall be in full force and effect thirty (30) days after its
adoption following second reading.
Section 7. The City Clerk shall certify to the passage and adoption of this
Ordinance by the City Council of the City of Cypress and shall cause a summary of this
ordinance to be published in accordance with Government Code § 36933.
FIRST READING at a regular meeting of the City Council of said City held on the 22 "d
day of June, 2015, and finally adopted and order posted at a regular meeting held on the 27th
day of July, 2015.
ATTEST:
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA
COUNTY OF ORANGE
SS
MAYOR O E CITY OF CYPRESS
I, DENISE BASHAM, City Clerk of the City of Cypress, DO HEREBY CERTIFY that the
foregoing Ordinance was duly adopted at a regular meeting of said City Council held on the
27th day of July, 2015, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Berry, Morales, Peat, Yarc and Johnson
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
CITY CLERK OF THE CITY OF CYPRESS
01004.0001/253837.1
192