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HOW DOES A LAW PARTNER FROM OUR CITY ATTORNEY’S OFFICE PRESENTING AN AGENDA ITEM TO REPEAL FULLERTON MUNICIPAL CODE SECTION 7.150 AND SWORN TO DEFEND THE LAWS OF AND WITHIN THE STATE OF CALIFORNIA, MISREPRESENT THE KEY PART OF A LAW BEFORE THE FULLERTON CITY COUNCIL? By Barry Levinson

Barry Levinson

One of the most important duties of any local government is to keep its’ people safe.  Yet the action by our city council on February 7th, in my opinion, goes against that simple principal.  Back in September 2010 the FPD led by Captain Kevin Hamilton delivered a presentation and endorsement of Ordinance No. 3149, which was entered into the Fullerton Municipal Code as Section 7.150.

Kevin Hamilton

Now the presentation to repeal Ordinance No. 3149 and Municipal Code Section 7.150 was given by James Touchstone, a partner and Litigation Department Manager in the law firm of Jones and Mayer representing our outside City Attorney Dick Jones.

The City Council asked very few questions of Mr. Touchstone and did not seem to care that I pointed out that the presentation had misrepresentations in it.

The council did not appear to want to take the time to make sure they had the facts straight on a somewhat complicated issue as it relates to the already issued court cases here in the State of California.  They did not even get to this agenda item until almost 10 PM.  Certainly, it was too late for the two television stations that had interviewed me in hopes of making the 11:00 PM news deadline.

In my public comments, I made the point that our law specified having residency restrictions against only child sex offenders, not all sex offenders, which was the language of the laws being negatively affected by the California Courts.  The residency restriction of only child sex offenders has not yet been adjudicated in any California court.

Mr. Touchstone took exception with my comments.  He stated as follows:

“With respect, I must disagree with Mr. Levinson and his comments.  Specifically, I am looking at the language before you right now of our municipal code and it states that any sex offender is prohibited from residing within 2,000 feet of any school, park or day care center.”  What Touchstone failed to tell the City Council members was the definition of sex offender provided in the ordinance at 7.150.020H is as follows:

Sex offender means any person required by law to register with government entity as a sex offender for an offense against or involving a child or children, including, but not limited to, the California Sex Offender Registration Act, Penal Code section 290, et seq.”

Regardless of whether you believe Mr. Touchstone’s egregious error was by accident or intentional, it is imperative that the city attorney and the city council jointly correct the record as soon as possible.

Fitzgerald acting like Pontious Pilate washing her dirty hands of responsibility-deferring to a State legislature that for years, has turned its back on the children, including her darling hack Young Kim.

Further misleading the citizens of Fullerton, the City of Fullerton management and the FPD seem to have coordinated an effort to get out this incorrect message concerning the repeal of this Fullerton Ordinance at Section 7.150 of the Fullerton Municipal Code.  I along with all other parents within the Fullerton School District received a very misleading message from them by recorded phone text message as well as by email as follows: *

“Fullerton School District is aware of the repeal by the Fullerton City Council of municipal codes regarding sex offender residency and other similar restrictions. The District Superintendent (Dr. Robert Pletka) has been in discussion with and will continue to work with the Fullerton Interim City Manager on the implication of this change in City Code. Meanwhile, please be aware that state law remains in place, which include residency restrictions prohibiting sex offenders from living within 2,000 feet of any public or private school, or park where children regular gather. There is no change in the enforcement of these laws.”

FSD’s Pletka seated to the right of FSD Trutsee Thompson

As a Laguna Road parent, I explained to our schools’ PTA the following:  that the above message was very misleading; and the assurance given that state law “remains in place, which includes residency restrictions” is not an accurate and complete description of reality in Fullerton after the actions just taken by our City Council 5 to 0 vote to repeal and remove our Child Sex Offender Ordinance No. 3149.

The state law, which they are referring to, Proposition 83 known as Jessica’s Law, passed with over 70% of the people of California voting for it in November of 2006. However, it was the lack of penalties attached to this state law, which caused my wife Susan and myself to spearhead the Fullerton Ordinance.** Except for certain parolees and those on probation (both temporary situations), no convicted child sex offender could be arrested and charged for violating the above residency restriction under Proposition 83. I learned this fact from none other than the Fullerton Police Department back in February 2010. Now seven years later the FPD have issued their own official written statement on the City of Fullerton website dated February 9, 2017, with a similar assurance to the Fullerton public to not worry because we are covered by this very flawed state law. This public written statement directly from the FPD is very disturbing and troubling. Did the department that informed me of the huge deficiency in the law back in 2010 suddenly have amnesia?

Here is the article written under the FPD section of its website, entitled “Behind the Badge” by Lou Ponsi as follows:

Lou Ponsi

“The Fullerton City Council this week repealed a section of the city’s municipal code section pertaining to residency restrictions for sex offenders. Pending litigation has found the municipal code to be unconstitutional.” (I was not aware that Mr. Lou Ponsi writing this article for the FPD, has the power to speak for the California Judiciary when the specifics of the Fullerton Ordinance to limit the law to only Child Sex Offenders has not yet been specifically addressed or adjudicated in the courts. Needless to say I have to point out the outrageousness of Mr. Ponsi’s assertion here representing the FPD.)  He continues: “The Fullerton Police Department wants resident’s to know that a state law that establishes residency restriction and prohibits sex offenders from residing within 2,000 feet of any public or private school, or park where children regularly gather, remains firmly in place.”

Firmly in place with no authority to uphold the law due to a total lack of penalties for violating the residency restrictions for any convicted child sex offenders who are no longer on parole or probation, which are the majority of child sex offenders living in the city.

Do you believe these words representing the official position of the Fullerton Police Department were an innocent error or the deliberate attempt to mislead and fool the public? It is my belief that this was an intentional act by our FPD to state that the residency restrictions covered in Ord. 3149 is still covered completely by Jessica’s Law.

Just when you think our City Government and our FPD can’t possibly do something to lower their reputations, they do something like this…. Namely take away a safeguard for our children with a unanimous 5 to 0 vote and then the FPD justify it with statements above that on its face do not hold up to any scrutiny.

This was a well thought out law. When people ask how many have been arrested based on this law, I believe they are asking the wrong question. The right question to ask is how many pedophiles decided not to reside in Fullerton based on the more stringent laws on the books in our city. Statistics provided back in 2014 showed that Fullerton had one of the lowest percentages of sex offenders living in our city compared to surrounding cities.

I WANT TO ASK EVERYONE TO COME TO THE NEXT FULLERTON CITY COUNCIL MEETING, NEXT TUESDAY, FEB. 21 AT 6:30 PM TO SPEAK OUT AGAINST THE REPEAL OF ORDINANCE 3149 AT THE SECOND READING OF THE MOTION TO REPEAL IT! TELL OUR PHONY COUNCIL MEMBERS THAT THEY SHOULD HAVE MORE CONCERN FOR OUR INNOCENT CHILDREN THAN FOR CONVICTED CHILD PEDOPHILES!

* Please note that I assume this message was sent to all parents of school children throughout the entire FSD, not just Laguna Road School as it was directly from the Fullerton School District.

** I tried unsuccessfully in 2010 and then in 2014 to get our California legislators to back a simple fix of Jessica’s Law by adding penalties to the law. I could not get one of them to help me.  Please believe me that I called numerous state representatives including my local representative in 2014, Sharon Quirk Silva and Bob Huff and got the same disappointing non-response from them.

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