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HomeMy WebLinkAboutO-2010-3296 Tabled/prohibiting the lease of property to sex offendersE mem` Wlypq REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: 11-8-10 Requested By: Kenith Adrox Department: Pelice Report: Resolution: Ordinance: X Exhibits: Ordinance Amendine Ord. No. 2006-2901-B Budeet Source of Funds: Account Number: Amount Budgeted: Amount Requested: Budgeted Item: YES NO SUMMARY & RECOMMENDATION Staff is recommending changes to Chapter 42, "Miscellaneous Offenses", of the Code of Ordinances of the City of La Porte, Article V "Regulation of Sex Offender Residency"; Ordinance Number 2006-2901-13. The changes include: 1. adding three definitions, specifically "minor", "person", and "child safety zone", to Section 42-103; 2. revising Section 42-104(b), in order to simplify the way distance is measured when determining prohibited residency areas; 3. adding section 42-105, "Property Owners Prohibited from Renting Real Property to Sex Offenders", making it unlawful for property owners to let or rent to a person who is required to register as a sex offender 4. including two additional Affirmative Defense(s) provision under Section 42-106; 5. revising Section 42-107; allowing for penalties, related to the violations of sex offender residency prohibitions, to be assessed daily. 6. adding Section 42-108 "No Duties Assumed". Action Required by Council: Approve recommended changes to existing Ordinance No. 2006-2901-13; Chapter 42, Article V, "Regulation of Sex Offender Residency" of the Code of Ordinances of the City of La Porte. Ron Bottoms, City fl 3 /v Date X/0- j4eo - iWW ORDINANCE NO. 3 2 AN ORDINANCE AMENDING CHAPTER 42 "MISCELLANEOUS OFFENSES" OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE BY AMENDING ARTICLE V "REGULATION OF SEX OFFENDER RESIDENCY", BY ADDING CERTAIN DEFINITIONS; MAKING IT UNLAWFUL FOR CERTAIN SEX OFFENDERS TO RESIDE WITHIN 1000 FEET OF PREMISES WHERE CHILDREN GATHER; PROVIDING FINDINGS OF FACT AND OTHER MATTERS RELATED THERETO; PROVIDING AFFIRMATIVE DEFENSES; PROVIDING FOR A PENALTY; PROVIDING A SEVERABILITY CLAUSE; CONTAINING AN OPEN MEETINGS CLAUSE; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE DATE HEREOF; WHEREAS, the City of La Porte, Texas (herein, the "City"), being a home -rule city having authority to utilize police power regulation for the health, safety and general welfare of the citizens of the City; and, WHEREAS, the City Council is deeply concerned about the numerous and recent occurrences in our state and elsewhere, whereby sex offenders convicted of sexual offenses involving children, who have been released from custody and repeat the unlawful acts for which they had been originally convicted; and, WHEREAS, the City Council finds from the evidence the recidivism rate for released sex offenders alarmingly high, especially for those who commit their crimes against children; and, WHEREAS, the City is becoming an increasingly attractive place for families with young children; and, WHEREAS, the City Council finds that establishing a policy to restrict the property available for residence of sex offenders will provide better protection for children gathering in the City; and WHEREAS, Article 42.12(13B) of the Texas Code of Criminal Procedure, provides a 1,000 foot safety zone for children, as a condition of probation for those convicted of certain sexual offenses; and WHEREAS, the laws of the State of Texas, including those found in Chapter 51 of the Texas Local Government Code, and the City Charter provide the City authority to adopt ordinances for the good government, peace, order, and welfare of the municipality; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS: Section 1. The foregoing recitals are hereby found to be true and correct and are hereby adopted by the City Council and made a part hereof for all purposes as findings of fact. Section 2. That the Code of Ordinances, City of La Porte, Texas, Chapter 42 `Miscellaneous Offenses", Article V. "Regulation of Sex Offender Residency" is hereby amended and shall read as follows: "Article V, REGULATION OF SEX OFFENDER RESIDENCY Sec. 42-102. Finding and Intent. The City Council finds that repeat sex offenders, sex offenders that use physical violence and who are convicted of preying on children are sexual predators who present an extreme threat to the health, safety, and welfare of children. Sex offenders are likely to use physical violence, to repeat an offense, have many more victims than are ever reported, are prosecuted for only a fraction of their actual sexual offenses, and children not only lack the ability to protect themselves but additional measures should be taken to keep known sex offenders from having access to children in areas where children generally feel safe. It is the intent of this ordinance to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the City by creating areas around locations where children regularly congregate in concentrated numbers wherein certain registered sex offenders and sexual predators are prohibited from establishing temporary or permanent residency. Section 42-103. Definitions. The following words, terms, and phrases; when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning; Child Safety Zone is a premise where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility. A "playground", "premises", "school", "video arcade facility", and "youth center" have the meanings assigned by Section 481.134 of the Texas Health and Safety Code and as defined by Article 42.12 Section 13D(a)(2)(d) of the Texas Code of Criminal Procedure. Minor is an individual younger than 17 years of age as defined by Section 15.031 of the Texas Penal Code. Permanent residence is a place where a person abides, lodges, or resides for fourteen (14) or more consecutive days. Person is an individual, firm, corporation, or other business entity as defined by Chapter 1.07(a)(38) of the Texas Penal Code. Temporary Residence is: a) a place where a person abides, lodges, or resides for fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent address; or b) a place where a person routinely abides, resides, or lodges for a period of 4 or more consecutive days in any month and which is not the person's permanent residence. Sec. 42-104. Sex Offender Residency Prohibition. (a) If a person is required to register on the Department of Public Safety's Sex Offender Database because of a violation involving a victim who was less than seventeen (17) years of age, it is unlawful for that person to establish a permanent residence or temporary residence within 1000 feet of any premise where children commonly gather, including a playground, school, video arcade facility, public or private youth center, or public swimming pool, as those terms are defined in Section 481.134 of the Texas Health and Safety Code, or a child care facility, as that term is defined in Section 42.002 of the Texas Human Resources Code. It shall be prima facie evidence that this article applies to such a person if the person's record appears on the Database and the Database indicates that the victim was less than seventeen (17) years of age. (b) For the purpose of determining the minimum distance of separation, the requirement shall be measured by following a straight line from the outer property line of the permanent or temporary residence to the nearest property line of the premises where children commonly gather, as described herein, or in the case of multiple residences on one property, measuring from the outer property line of the multi -residence premises following a straight line to the nearest property line of the premises where children commonly gather, as described herein. A map generally depicting the prohibited areas is attached to this ordinance for representation purposes. The City shall review the map at least annually for changes, and it will be available at the La Porte Police Department. (c) Nothing in this ordinance shall be interpreted to modify or reduce the State's child safety zone ban. (d) Neither allegation nor evidence of a culpable mental state is required for the proof of an offense defined in this Article. Sec. 42-105. Property Owners Prohibited from Renting Real Property to Sex Offenders It is unlawful to let or rent any place, structure or part thereof, with the knowledge that it will be used as a permanent residence by any person prohibited from establishing such permanent residence pursuant to the terms of this article, if such place, structure or part thereof, is located within one thousand (1,000) feet as defined in section 42-104, of any premises where children commonly gather, including a playground, school, day care facility, video arcade facility, public or private youth center, neighborhood, or public swimming pool, as those terms are defined in Section 481.134 of the Health and Safety Code of the State of Texas. Prior to renting any premises, all persons renting property in the City of La Porte for permanent residence are required to first check the resident through the Texas Department of Public Safety Registered Sex Offender website at https://records.txdps.state.tx.us/DPS WEB/Sor/index.aspx?PageInd ex=Caveats&SubmitType=Name) or contact the La Porte Police Department to obtain necessary information to assure compliance with this article. Sec. 42-106. Affirmative Defenses. It is an affirmative defense to prosecution under this article that any of the following conditions apply: 1) The person established the permanent or temporary residence has complied with all the sex offender registration laws of the State of Texas, prior to the date of the adoption of this ordinance. 2) The person established the permanent residence prior to conviction of an offense requiring sex offender registration as defined in Chapter 62 of the Texas Code of Criminal Procedure. 3) The person was a minor when he/she committed the offense and was not convicted as an adult. 4) The person is a minor. 5) The premises where children commonly gather, as specified herein, within 1000 feet of the person's permanent or temporary residence was opened after the person established the permanent or temporary residence was opened after the person established the permanent or temporary residence and complied with all sex offender registration laws of the State of Texas. 6) The person proves that the information on the Database is incorrect and that, if corrected, this chapter would not apply to the person. 7) The person is under an order of a court of competent jurisdiction in the State of Texas or of the Texas Department of Criminal Justice Parole Board instructing the person to reside at a location within 1000 feet of any premises where children commonly gather. 8) In the case of persons renting property, the property owner conducted a criminal history check with the Texas Department of Public Safety and reviewed the Department of Public Safety's sexual predator registration database and that at the time the property owner conducted the criminal history check and reviewed the sexual predator database, the sexual offender's criminal history did not include a record of a sexual offense and the offender's name did not appear in the database. Sec. 42-107. Penalty for violation of this Article. Any person who violates any provision or requirement hereof and is convicted in the municipal court of this city of violating any provision, restriction, requirement, or prohibition of this chapter shall be guilty of a misdemeanor and subject to a fine, in a sum of not more than five hundred dollars ($500.00) for each violation, as listed in Appendix B of this Code. A separate offense shall be deemed committed on each day on which a violation occurs. Sec. 42-108. No Duty Assumed. In undertaking the enforcement of this Ordinance, the City of La Porte is assuming an undertaking only to promote the general health, safety and welfare of its citizens. The City of La Porte is not assuming any duty or obligation, nor is it imposing any duty and/or obligation on its officers and/or employees, nor is it liable in money damages or otherwise to any person who claims that the City of La Porte and/or one of its officers and/or employees breached any such obligation and the breach proximately caused injury." Section 3. The City of La Porte hereby encourages each individual, company, real estate agent, broker, vendor or dealer selling a home or other dwelling, or individual or entity renting or leasing an apartment, home, or other dwelling, when the property that is the subject of the sale or lease is located within the corporate limits of the City of La Porte, to notify a perspective purchaser or renter of this ordinance by providing a written copy of this ordinance or Information Sheet available from the La Porte Police Department to the purchaser or renter. Section 4. The City of La Porte hereby encourages each operator of each child care facility, as that term is defined in Texas Human Resources Code, Section 42.002, to immediately notify the City of La Porte at such time as the child care facility should lose, surrender, or otherwise no longer retain a license from the Texas Department of Family and Protective Services to operate within the City of La Porte. Notice shall be provided to the Office of the City Secretary of the city of La Porte at 604 West Fairmont Parkway, La Porte, Texas 77571, by written letter transmitted through regular mail. Section 5. Open Meetings. The City Council officially finds, determines, recites, and declares that sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 6. Severability. Should any section or part of this ordinance be held unconstitutional, illegal, or invalid, or the application to any person or circumstance for any reasons thereof ineffective or inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or part shall in no way affect, impair or invalidate the remaining portions thereof; but as to such remaining portion or portions, the same shall be and remain in full force and effect and to this end the provisions of this ordinance are declared to be severable. Section 7. Effective Date. This Ordinance shall be effective fourteen (14) days after its passage and approval. The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof to be published in the official newspaper of the City of La Porte at least once within ten (10 ) days after the passage of this ordinance, in accordance with the provisions of Chapter 52, Texas Local Government Code, and the City of La Porte Charter. PASSED AND APPROVED on the first reading on the day of 2010. ATTEST: Martha A. Gillett City Secretary APPROVED: Clark T. Askins Assistant City Attorney Louis R. Rigby Mayor ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 42 "MISCELLANEOUS OFFENSES" OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE BY AMENDING ARTICLE V "REGULATION OF SEX OFFENDER RESIDENCY", BY ADDING CERTAIN DEFINITIONS; MAKING IT UNLAWFUL FOR CERTAIN SEX OFFENDERS TO RESIDE WITHIN 1000 FEET OF PREMISES WHERE CHILDREN GATHER; PROVIDING FINDINGS OF FACT AND OTHER MATTERS RELATED THERETO; PROVIDING AFFIRMATIVE DEFENSES; PROVIDING FOR A PENALTY; PROVIDING A SEVERABILITY CLAUSE; CONTAINING AN OPEN MEETINGS CLAUSE; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE DATE HEREOF; WHEREAS, the City of La Porte, Texas (herein, the "City"), being a home -rule city having authority to utilize police power regulation for the health, safety and general welfare of the citizens of the City; and, WHEREAS, the City Council is deeply concerned about the numerous and recent occurrences in our state and elsewhere, whereby sex offenders convicted of sexual offenses involving children, who have been released from custody and repeat the unlawful acts for which they had been originally convicted; and, WHEREAS, the City Council finds from the evidence the recidivism rate for released sex offenders alarmingly high, especially for those who commit their crimes against children; and, WHEREAS, the City is becoming an increasingly attractive place for families with young children; and, WHEREAS, the City Council finds that establishing a policy to restrict the property available for residence of sex offenders will provide better protection for children gathering in the City; and WHEREAS, Article 42.12(13B) of the Texas Code of Criminal Procedure, provides a 1,000 foot safety zone for children, as a condition of probation for those convicted of certain sexual offenses; and WHEREAS, the laws of the State of Texas, including those found in Chapter 51 of the Texas Local Government Code, and the City Charter provide the City authority to adopt ordinances for the good government, peace, order, and welfare of the municipality; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS: Section 1. The foregoing recitals are hereby found to be true and correct and are hereby adopted by the City Council and made a part hereof for all purposes as findings of fact. Section 2. 'That the Code of Ordinances, City of La Porte, Texas, Chapter 42 "Miscellaneous Offenses", Article V. "Regulation of Sex Offender Residency" is hereby amended and shall read as follows: "Article V, REGULATION OF SEX OFFENDER RESIDENCY Sec. 42-102. Finding and Intent. The City Council finds that repeat sex offenders, sex offenders that use physical violence and who are convicted of preying on children are sexual predators who present an extreme threat to the health, safety, and welfare of children. Sex offenders are likely to use physical violence, to repeat an offense, have many more victims than are ever reported, are prosecuted for only a fraction of their actual sexual offenses, and children not only lack the ability to protect themselves but additional measures should be taken to keep known sex offenders from having access to children in areas where children generally feel safe. It is the intent of this ordinance to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the City by creating areas around locations where children regularly congregate in concentrated numbers wherein certain registered sex offenders and sexual predators are prohibited from establishing temporary or permanent residency. Section 42-103. Definitions. The following words, terms, and phrases; when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning; Child Safety Zone is a premise where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility. A "playground", "premises", "school", "video arcade facility", and "youth center" have the meanings assigned by Section 481.134 of the Texas Health and Safety Code and as defined by Article 42.12 Section 13D(a)(2)(d) of the Texas Code of Criminal Procedure. Minor is an individual younger than 17 years of age as defined by Section 15.031 of the Texas Penal Code. Permanent residence is a place where a person abides, lodges, or resides for fourteen (14) or more consecutive days. Person is an individual, firm, corporation, or other business entity as defined by Chapter 1.07(a)(38) of the Texas Penal Code. Temporary .Residence is: a) a place where a person abides, lodges, or resides for fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent address; or b) a place where a person routinely abides, resides, or lodges for a period of 4 or more consecutive days in any month and which is not the person's permanent residence. Sec. 42-104. Sex Offender Residency Prohibition. ; Penalty � Emeept-�s— (a) If a person is required to register on the Department of Public Safety's Sex Offender Database because of a violation involving a victim who was less than seventeen (17) years of age, it is unlawful for that person to establish a permanent residence or temporary residence within 1000 feet of any premise where children commonly gather, including a playground, school, video arcade facility, public or private youth center, or public swimming pool, as those terms are defined in Section 481.134 of the Texas Health and Safety Code, or a child care facility, as that term is defined in Section 42.002 of the Texas Human Resources Code. It shall be prima facie evidence that this article applies to such a person if the person's record appears on the Database and the Database indicates that the victim was less than seventeen (17) years of age. (b) For the purpose of determining the minimum distance of separation, the requirement shall be measured by following a straight line from the outer property line of the permanent or temporary residence to the nearest property line of the premises where children commonly gather, as described herein, or in the case of multiple residences on one property, measuring from the nearest wall of the building or st,-uet re ,,,.eup e er the parkng/elriveway, whlehever is eleser outer property line of the multi -residence premises following a straight line to the nearest property line of the premises where children commonly gather, as described herein. A map generally depicting the prohibited areas is attached to this ordinance for representation purposes. The City shall review the map at least annually for changes, and it will be available at the La Porte Police Department. (c) Nothing in this ordinance shall be interpreted to modify or reduce the State's child safety zone ban. (d) Neither allegation nor evidence of a culpable mental state is required for the proof of an offense defined in this Article. Sec. 42-105. Property Owners Prohibited from Renting Real Property to Sex Offenders. It is unlawful to let or rent any place, structure or part thereof, with the knowledge that it will be used as a permanent residence by any person prohibited from establishing such permanent residence pursuant to the terms of this article, if such place, structure or part thereof, is located within one thousand (1,000) feet as defined in section 42-104, of any premises where children commonly gather, including a playground, school, day care facility, video arcade facility, public or private youth center, neighborhood, or public swimming pool, as those terms are defined in Section 481.134 of the Health and Safety Code of the State of Texas. Prior to renting any premises, all persons renting property in the City of La Porte for permanent residence are required to first check the resident through the Texas Department of Public Safety Registered Sex Offender website at https://records.txdps.state.tx.us/DPS WEB/Sor/index.aspx?PageInd ex=Caveats&SubmitType=Name) or contact the La Porte Police Department to obtain necessary information to assure compliance with this article. Sec. 42-10-56. Affirmative Defenses. It is an affirmative defense to prosecution under this article that any of the following conditions apply: 1) The person established the permanent or temporary residence has complied with all the sex offender registration laws of the State of Texas, prior to the date of the adoption of this ordinance. 2) The person established the permanent residence prior to conviction of an offense requiring sex offender registration as defined in Chapter 62 of the Texas Code of Criminal Procedure. 3) The person was a minor when he/she committed the offense and was not convicted as an adult. 4) The person is a minor. 5) The premises where children commonly gather, as specified herein, within 1000 feet of the person's permanent or temporary residence was opened after the person established the permanent or temporary residence was opened after the person established the permanent or temporary residence and complied with all sex offender registration laws of the State of Texas. 6) The person proves that the information on the Database is incorrect and that, if corrected, this chapter would not apply to the person. 7) The person is under an order of a court of competent jurisdiction in the State of Texas or of the Texas Department of Criminal Justice Parole Board instructing the person to reside at a location within 1000 feet of any premises where children commonly gather. 8) In the case of persons renting property, the property owner conducted a criminal history check with the Texas Department of Public Safety and reviewed the Department of Public Safety's sexual predator registration database and that at the time the property owner conducted the criminal history check and reviewed the sexual predator database, the sexual offender's criminal history did not include a record of a sexual offense and the offender's name did not appear in the database. Sec. 42-10-67. Penalty for violation of this Article. Any person who violates any provision or requirement hereof and is convicted in the municipal court of this city of violating any provision, restriction, requirement, or prohibition of this chapter shall be guilty of a misdemeanor and subject to a fine, in a sum of not more than five hundred dollars ($500.00) for each violation, as listed in Appendix B of this Code. A separate offense shall be deemed committed on each day on which a violation occurs. -- - - Any person who violates any provision or requirement hereof and is convicted in the municipal court of this city of violating any provision, restriction, requirement, or prohibition of this chapter shall be guilty of a misdemeanor and subject to a fine, in a sum of not more than five hundred dollars ($500.00) for each violation, as listed in Appendix B of this Code. A separate offense shall be deemed committed on each day on which a violation occurs. Sec. 42.108. No Duty Assumed In undertaking the enforcement of this Ordinance, the City of La Porte is assuming an undertaking only to promote the general health, safety and welfare of its citizens. The City of La Porte is not assuming any duty or obligation, nor is it imposing any duty and/or obligation on its officers and/or employees, nor is it liable in money damages or otherwise to any person who claims that the City of La Porte and/or one of its officers and/or employees breached any such obligation and the breach proximately caused injury." Section 3. The City of La Porte hereby encourages each individual, company, real estate agent, broker, vendor or dealer selling a home or other dwelling, or individual or entity renting or leasing an apartment, home, or other dwelling, when the property that is the subject of the sale or lease is located within the corporate limits of the City of La Porte, to notify a perspective purchaser or renter of this ordinance by providing a written copy of this ordinance or Information Sheet available from the La Porte Police Department to the purchaser or renter. Section 4. The City of La Porte hereby encourages each operator of each child care facility, as that term is defined in Texas Human Resources Code, Section 42.002, to immediately notify the City of La Porte at such time as the child care facility should lose, surrender, or otherwise no longer retain a license from the Texas Department of Family and Protective Services to operate within the City of La Porte. Notice shall be provided to the Office of the City Secretary of the city of La Porte at 604 West Fairmont Parkway, La Porte, Texas 77571, by written letter transmitted through regular mail. Section 5. Open Meetings. The City Council officially finds, determines, recites, and declares that sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 6. Severability. Should any section or part of this ordinance be held unconstitutional, illegal, or invalid, or the application to any person or circumstance for any reasons thereof ineffective or inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or part shall in no way affect, impair or invalidate the remaining portions thereof; but as to such remaining portion or portions, the same shall be and remain in full force and effect and to this end the provisions of this ordinance are declared to be severable. Section 7. Effective Date. This Ordinance shall be effective fourteen (14) days after its passage and approval. The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof to be published in the official newspaper of the City of La Porte at least twiee once within ten (10) days after the passage of this ordinance, in accordance with the provisions of Chapter 52, Texas Local Government Code, and the City of La Porte Charter. PASSED AND APPROVED on the first reading on the day of 2010. By: ATTEST: Martha A. Gillett City Secretary APPROVED: Clark T. Askins Assistant City Attorney Louis R. Rigby Mayor