HomeMy WebLinkAboutCC memo 8-22-16 REQUEST FOR COUNCIL ACTION
DATE: August 22, 2016
ITEM NO: 19
Department Approval: Administrator Reviewed: Agenda Section:
Name Jeremy Barnhart, JML Planning
Soren Mattick
Title Community Development Director, City Attorney
Item Description: Sex Offender issue
Application Summary
Information presented for information and Council direction only.
Issue
The Council has recently questioned the regulation of released sex offenders into the city of Orono. Minnesota Law defines “predatory offenders” to include individuals convicted of
murder, kidnapping, criminal sexual conduct, indecent exposure, abuse of a vulnerable adult, false imprisonment, prostitution offenses, and sex crimes involving a minor. Predatory
Offenders include both offenders whose victims were children and offenders whose victims were adults. Before a predatory offenders’ release, a Corrections committee applies a risk level:
A predatory offender whose risk assessment score indicates a low risk of re-offense is a Level I
An offender whose risk assessment score indicates a moderate risk of re-offense is a Level II
An offender whose risk assessment score indicates a high risk of re-offense is a Level III
The Council has questioned whether it would be appropriate and enforceable to regulate the dwelling locations of these offenders. There is some concern that these released sex offenders
may reoffend, impacting the public’s health, safety and general welfare.
Some communities have enacted ordinances that restrict the dwelling locations of level 3 offenders to a specific minimum distance from schools, parks, and day care centers. The intent
with these regulations is to keep sex offenders away from areas where children congregate. Big Lake has an ordinance (Exhibit A) which applies to all Level III predatory offenders,
regardless of victim age or type of predatory offense. Lindstrom has an ordinance (Exhibit B) which applies to Level III predatory offenders who have been convicted of certain sex
offenses, regardless of victim age. The state of Iowa passed a statute (Exhibit C) which applies to all offenders who committed a sex offense in which the victim was a child.
Those in support of residency restrictions argue that sexual interest in children and access to victims increase the likelihood of recidivism. One study (Exhibit E) of Arkansas sex
offenders found that a larger portion of offenders with child victims chose to reside in close proximity to schools, day care centers, or parks.
Opponents of sex offender residency restrictions argue that research shows that sex offenders are unlikely to reoffend close to their homes and that residency restrictions create a false
sense of security within a community. A 2008 study of recidivism by Minnesota sex offenders (Exhibit D) found no
(1) only 35% of sex offender recidivists victimized strangers (as opposed to victimizing relatives or people they met through wives, coworkers, friends, or acquaintances), and most of
those victims were adults, (2) when sex offender recidivists did victimize juvenile strangers, they usually did so more than a mile away from their own residence, and (3) of the few
offenders who victimize juvenile strangers within close proximity of their own residences, none did so near a park, school, or playground. Additionally, as a result of Iowa’s sex offender
residency statute, the number of offenders who failed to register/could not be located more than doubled. See http://www.nytimes.com/2006/03/15/us/iowas-residency-rules-drive-sex-offenders-undergrou
nd.html.
The constitutionality of a law limiting the residency of convicted sex offenders has been a topic of debate in state and federal courts. In 2015, California’s Supreme Court and a Federal
District Court in Michigan both struck down such legislation. However, in 2005 the United States Court of Appeals for the 8th Circuit upheld the Iowa statute referenced above. The
question for any court would be whether a law is rationally related to a legitimate government purpose. When a law bans residency near parks, schools, and playgrounds, there is a stronger
legal argument to support it if it is limited to offenders with child victims.
The Council has been provided a number of news articles further describing this issue, most recently for the July 25th workshop.
Action Requested:
Provide Staff direction.
List of Exhibits:
Exhibit A. Big Lake Ordinance
Exhibit B. Lindstrom Ordinance
Exhibit C. Iowa Statute
Exhibit D. Duwe, Donnay, and Tweksbury Report
Exhibit E Walker and Golden Report
Exhibit F. Draft Ordinance
Exhibit G. Tonka Bay news article
EXHIBIT A
Big Lake City Code
Section 596 – Sexual Predator Residency Restrictions
596.01 Findings and Intent.
Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety.
Sexual offenders are extremely likely to use physical violence and to repeat their offenses. Most sexual offenders commit many offenses, have many more victims than are ever reported,
and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.
It is the intent of this chapter to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of its citizens by establishing areas around locations
where children regularly congregate in concentrated numbers, wherein certain sexual predators are prohibited from establishing temporary or permanent residence.
596.02 Definitions. The following words and terms when used in the Section shall have the following meanings, unless the context clearly indicates otherwise:
“Day Care Center” – A facility licensed by the State of Minnesota in which care, supervision and training for individuals under the age of 18 is provided for part of a 24-hour period.
“Designated Offender” – Any person who has been categorized as a Level III predatory offender under Minnesota Statutes Section 244.052, a successor statute, or a similar statute from
another state.
“Park or Playground” – Any land, including improvements, operated by the city for the use by the general public as a recreational area.
“Permanent Residence” – A place where a person abides, lodges or resides for 14 or more consecutive days.
“School” – Any public or non-public educational institution that offers educational instruction to individuals under the age of 18.
“Temporary Residence” – A place, other than a person’s permanent residence, where a person abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar
year or four or more consecutive or non-consecutive days during any month.
596.03 Residency Prohibition; Penalties; Exception.
Subd. 1 Residency Prohibition.
It is unlawful for any designated offender to establish a permanent residence or temporary residence within 2,000 feet of any school, day care center, park or playground.
For purposes of determining the minimum distance separation, the requirement shall be measured by following a straight line from the outer property line of the permanent residence or
temporary residence of the
designated offender to the nearest outer property line of a school, day care center, park or playground.
Subd. 2 Penalties. A person who violates this section shall be punished by a fine not exceeding $1,000, or by confinement for a term not exceeding 90 days, or by both such fine and confinement.
Each day a person maintains a residence in violation of this chapter constitutes a separate violation.
Subd. 3 Exceptions.
A designated offender residing within a prohibited area as described in Subdivision 1 does not commit a violation of this section if any of the following apply:
The designated offender established the permanent residence or temporary residence and reported and registered the residence pursuant to M.S. § 243.166, § 243.167, or successor statute,
prior to the effective date of this section.
The designated offender was a minor when he or she committed the offense and was not convicted as an adult.
The designated offender is a minor.
The school, day care center, park or playground within 2,000 feet of the designated offender’s permanent residence or temporary residence was designated or opened after the designated
offender established the permanent residence or temporary residence and reported and registered the residence pursuant to M.S. § 243.166 or § 243.167, or successor statute.
EXHIBIT B
Lindstrom City Code
Chapter 96: Sexual Offenders and Sexual Predators
§ 96.01 FINDINGS AND INTENT.
(A) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public
safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses. Most sexual offenders commit many offenses, have many more victims than are ever
reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.
(B) It is the intent of this chapter to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of its citizens by creating a civil,
non-punitive regulatory scheme, establishing areas around locations where children regularly congregate in concentrated numbers, wherein certain sexual offenders and sexual predators
are prohibited from establishing temporary or permanent residence.
§ 96.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CHILDREN. Persons age 16 and younger.
DAY CARE CENTER. A facility licensed by the State of Minnesota in which care, supervision and training for children is provided for part of a 24-hour period.
DESIGNATED OFFENDER. Any person who has been convicted of a designated sexual offense, regardless of whether adjudication has been withheld, in which the victim of the offense was
less than
16 years of age, or has been categorized as a Level III sex offender under M.S. § 244.052 or successor statute.
DESIGNATED SEXUAL OFFENSE. A conviction, adjudication of delinquency, commitment under M.S. Chapter 253B, or admission of guilt under oath without adjudication involving any of the
following offenses: M.S. §§ 609.342; 609.343; 609.344; 609.345; 609.352; 609.365; 617.23; 617.246; 617.247; 617.293; successor statutes; or a similar offense from another state.
PARK or PLAYGROUND. Any land, including improvements, operated by the city for the use by the general public as a recreational area.
PERMANENT RESIDENCE. A place where the person abides, lodges or resides for 14 or more consecutive days.
SCHOOL. Any public, private or parochial educational institution that offers educational instruction to individuals under the age of 18.
TEMPORARY RESIDENCE. A place where the person abides, lodges or resides for a period of 14 or more days in the aggregate during any calendar year, and which is not the person's permanent
address or a place where the person routinely abides, lodges or resides for a period of four or more consecutive or on consecutive days in any month, and which is not the person's permanent
residence.
(Ord. 11-11-01, passed 11-17-11)
§ 96.03 SEXUAL OFFENDER AND SEXUAL PREDATOR RESIDENCE PROHIBITION; PENALTIES; EXCEPTIONS.
(A) Prohibited location of residence. It is unlawful for any designated offender to establish a permanent residence or temporary residence within 2,000 feet of any school, licensed
day care center, place of worship that provides regular educational programs, park or playground.
(B) Prohibited activity. It is unlawful for any designated offender to participate in a holiday event involving children under 16 years of age, such as distributing candy or other
items to children on Halloween, wearing a Santa Claus costume on or preceding Christmas, or wearing an Easter Bunny costume on or preceding Easter. Holiday events in which the offender
is the parent or guardian of the children involved, and no non-familial children are present, are exempt from this division.
(C) Measurement of distance. For purposes of determining the minimum distance separation, the requirement shall be measured by following a straight line from the outer property
line of the permanent residence or temporary residence to nearest outer property line of a school, day care center, park, playground, place of worship, or other place where children
regularly congregate. The City Clerk shall maintain an official map showing prohibited locations as defined by this chapter. The Clerk shall update the map at least annually to reflect
any changes in the location of prohibited zones.
(D) Penalties. A person who violates this section shall be punished by a fine not exceeding $1,000, or by confinement for a term not exceeding 90 days, or by both such fine and
confinement. Each day a person maintains a residence in violation of this chapter constitutes a separate violation.
(E) Exceptions. A designated offender residing within a prohibited area as described in § 96.03(A) does not commit a violation of this section if any of the following apply:
(1) The person established the permanent residence or temporary residence and reported and registered the residence pursuant to M.S. § 243.166, § 243.167, or successor statute,
prior to November 17, 2011.
(2) The person was a minor when he or she committed the offense and was not convicted as an adult.
(3) The person is a minor.
(4) The school, place of worship, park or day care center within 2,000 feet of the person’s permanent residence was designated or opened after the person established the permanent
residence or temporary residence and reported and registered the residence pursuant to M.S. § 243.166 or § 243.167.
(5) The residence is also the primary residence of the person's parents, grandparents, siblings, spouse or children.
(6) The residence is a property owned by the Minnesota Department of Corrections.
(7) The person's conviction for the designated offense was reversed on appeal.
(8) Nothing in this provision shall require any person to sell or otherwise dispose of any real property acquired or owned prior to the conviction restricting residency under
this chapter.
(Ord. 11-11-01, passed 11-17-11)
§ 96.04 PROPERTY OWNERS PROHIBITED FROM RENTING REAL PROPERTY TO CERTAIN SEXUAL OFFENDERS AND SEXUAL PREDATORS; PENALTIES.
(A) It is unlawful to let or rent any place, structure, or part thereof, trailer or other conveyance, with the knowledge that it will be used as a permanent residence or temporary
residence by any person prohibited from establishing such permanent residence or temporary residence pursuant to this chapter, if such place, structure, or part thereof, trailer or
other conveyance, is located within a prohibited location zone described in § 96.03(A).
(B) A property owner's failure to comply with provisions of this section shall constitute a violation of this section, and shall subject the property owner to the code enforcement
provisions and procedures as provided in § 93.20 of this code.
(C) If a property owner discovers or is informed that a tenant is a designated offender after signing a lease or otherwise agreeing to let the offender reside on the property, the
owner or property manager may evict the offender.
EXHIBIT C
Iowa Code
Section 692A.114. Residency restrictions
As used in this section:
“Minor” means a person who is under eighteen years of age or who is enrolled in a secondary school.
“School” means a public or nonpublic elementary or secondary school.
“Sex offender” means a person required to be registered under this chapter who has been convicted of an aggravated offense against a minor.
A sex offender shall not reside within two thousand feet of the real property comprising a school or a child care facility.
A sex offender residing within two thousand feet of the real property comprising a school or a child care facility does not commit a violation of this section if any of the following
apply:
The sex offender is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility.
The sex offender is subject to an order of commitment under chapter 229A.
The sex offender has established a residence prior to July 1, 2002.
The sex offender has established a residence prior to any newly located school or child care facility being established.
The sex offender is a minor.
The sex offender is a ward in a guardianship, and a district judge or associate probate judge grants an exemption from the residency restriction.
The sex offender is a patient or resident at a health care facility as defined in section 135C.1 or a patient in a hospice program, and a district judge or associate probate judge grants
an exemption from the residency restriction.
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G