DA’s Sex Offender Ban Continues to Be Repealed by Cities

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Westminster city officials this week became the latest Orange County city to repeal a ban on sex offenders in city parks, following a recent appeals court ruling striking down a similar county law.

Wednesday night, council members voted 3-1, with councilmember Sergio Contreras voting no and Andy Quach absent, to repeal the ordinance requiring convicted sex offenders to get written permission from police before setting foot in a city park. Violation was a misdemeanor.

More than a dozen other Orange County cities, including Irvine, Santa Ana, Tustin and Orange also have repealed their ordinances, which they adopted at the urging of District Attorney Tony Rackauckas. In April, 2011, the DA spearheaded a ban on sex offenders in beaches and parks throughout the county.

The original Westminster ordinance was part of a wave of 14 other Orange County cities adopting bans after heavy lobbying by Rackauckas, who went on a campaign to city council meetings across the county urging cities to model their ordinances on a county law he got adopted by the Board of Supervisors in April 2011.

But in December 2012, an Orange County Superior Court judge threw out the county-wide ban, saying it pre-empted state law with a confusing patchwork of local restrictions, a decision that was upheld by a state appeals court this January.

In April this year, the State Supreme Court declined to hear the DA’s appeal of the lower court decision, prompting several OC cities to revisit and repeal the ordinance after just two years.

Lake Forest officials didn’t wait for the higher court to act. Right after the county Superior Court ruling in December, 2012, the city repealed its ordinance, which had been in effect less than a year.

Rackauckas attended the city council meeting and there was a heated discussion between the DA and Lake Forest’s then-Mayor Kathryn McCullough:

McCullough asked the district attorney if, given his push to adopt the ban, his office or the county would reimburse cities for any financial losses they might incur as a result of law suits challenging its legality.

“We have supported you on a couple of ordinances. And at this time I’m not willing to put our city’s future and dollars in an ordinance I cannot assure my citizens that their money will be returned to them. Our citizens already know, our citizens know this is a safe city,” McCullough said. “Who’s going to indemnify my city?”

Rackauckas’ reply was that cities shouldn’t submit to threats from sex offenders and he accused McCullough of grandstanding.

“Mayor, you know very well … that the district attorney does not indemnify cities in carrying out the law,” Rackauckas said. “That is merely a grandstand question.”

This week, Westminster city council members said they regretted repealing the law but would do so to avoid exposing the city to litigation.

The state appeals court decision in January that upheld the Orange County court decision to throw out the law prompted cities and the county Sheriff to stop enforcing the ban or repeal it altogether.

Westminster also is currently being sued by San Luis Obispo County resident Frank Lindsay, who is suing cities and counties across the state for enacting such bans.

“I’m [voting] only because it is saving the city from lawsuits. I still believe it should be in place, but I have to go with the law,” said Councilwoman Margie L. Rice.

Contreras, the only no vote, said that as a father of two young children he wasn’t comfortable with the repeal.

“I’m not fully comfortable with the appellate court ruling. I think that we’re putting criminals’ rights above our children,” he said. “We rushed into it, and now we’re rushing out of it. I’m just not fully convinced we should repeal it yet.”

A state statute known as Jessica’s Law allows local governments to enact ordinances that restrict the residency of registered sex offenders, but it doesn’t permit them to “restrict where a registered sex offender may temporarily be present,” Lindsay’s suit argues.

He further argues that sex offenders visiting the city may not be aware of the law, noting a lack of signs at city parks, and could unknowingly enter the boundaries of a public park or beach.

“The Ordinance is an arbitrary and politically motivated act imposed by a local government in response to a popular bias against Registrants who constitute a social outcast minority and lends itself to discriminatory enforcement as well as the suppression of the constitutional rights of [offenders] and any individuals who reside with or travel with them,” the suit reads.

Lindsay, who was convicted in 1979 of lewd and lascivious acts with a child under 14, has sued dozens of cities with the help of attorney Janice Bellucci, president of the California chapter of Reform Sex Offender Laws.

Bellucci has warned more than 70 cities statewide they could be sued and be ordered to pay for legal fees if they don’t repeal their ordinances.

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