Location:
MUNICIPALITIES; SEX OFFENDERS;

OLR Research Report


July 31, 2009

 

2009-R-0277

LOCAL ORDINANCES RESTRICTING SEX OFFENDERS FROM CERTAIN AREAS

By: Sandra Norman-Eady, Chief Attorney

You asked (1) for the number of Connecticut municipalities with ordinances banning sex offenders from certain areas, (2) the legal authority municipalities have used to adopt these ordinances, and (3) whether the ordinances have been challenged.

SUMMARY

Ordinances in five Connecticut municipalities ban convicted sex offenders from many public places frequented by children (so-called “child safety zones”). Danbury adopted the first of these ordinances in 2006, banning sex offenders from city-run recreational areas. Brookfield, New Milford, Ridgefield, and Windsor Locks followed. All of these towns give police the authority to detain and fine violators. Greenwich residents considered but defeated a sex offender ordinance in a June representative town meeting, citing concerns about constitutionality and potential legal challenges from civil liberties groups. The Greenwich board of selectmen will vote on another version of the ordinance at its August 13, 2009 meeting.

Apparently, these municipalities are using the broad police powers granted to them by statute as their authority for adopting ordinances banning sex offenders from certain areas. Generally, courts have upheld ordinances based on this authority if they are reasonably calculated to achieve health, safety, and welfare.

After an electronic search for cases and contacting the American Civil Liberties Union, victim advocate, child advocate, and town attorneys in the towns with sex offender ordinances, we do not believe there have been any legal challenges to these ordinances. However, numerous other states and municipalities have such laws and ordinances that have been challenged with varying degrees of success. None of these decisions are binding on Connecticut courts.

MUNICIPAL SEX OFFENDER ORDINANCES

Municipal ordinances in Brookfield, Danbury, New Milford, Ridgefield, and Windsor Locks prohibit “child sex offenders” who are required to register in this state from being present in any “child safety zone.”   If a police officer reasonably believes a child sex offender is in a child safety zone in violation of the ordinance, the office must ask for identification (i.e., name, address, and telephone number).  If the officer's belief is confirmed, he or she must issue the offender a written warning and require him or her to leave the area.  An offender who refuses to leave or commits subsequent offenses is subject to a fine for each violation.  The fine does not apply if the offender's conduct results in his conviction for a new criminal offense or if his parole or probation is revoked because of it.

Table 1 shows the key components of the sex offender ordinance in each municipality, including available citations.

TABLE 1: MUNICIPAL SEX OFFENDER ORDINANCES

Municipality with Citations

Definition of Child Safety Zone

Definition of Child Sex Offender

Penalty for Violations

Brookfield

186-1 et seq.

Parks, schools, playgrounds, pools, recreation centers, beaches, sport facilities, sport fields, and the land and buildings upon which they are located

All sex offenders required to register in this state, including those found not guilty by reason of mental disease or defect and convicted out of state.

The ordinance does not apply to an offender:

1. whose name has been removed from the Department of Public Safety's Sex Offender Registry or from the registry in another state or in the federal or military system by court order or expiration of the registration term,

2. entering into a polling place in a child safety zone to vote if he or she leaves immediately after voting, or

3. entering a child safety zone to drop off or pick up his or her child if he or she leaves immediately after doing so.

$250

Table 1: -Continued-

Municipality with Citations

Definition of Child Safety Zone

Definition of Child Sex Offender

Penalty for Violations

Danbury

12-27

Same as Brookfield

All sex offenders required to register in this state, including those found not guilty by reason of mental disease or defect and convicted out of state.

The ordinance does not apply to an offender:

1. whose name has been removed from the Department of Public Safety's Sex Offender Registry or from the registry in another state or in the federal or military system by court order or expiration of the registration term,

2. entering into a polling place in a child safety zone to vote if he or she leaves immediately after voting, or

3. complying with a sentence or order of probation or parole

$250

Greenwich draft proposed ordinance

Same as Brookfield plus educational facilities and the land and buildings upon which they are located

Same as Brookfield plus offenders complying with a sentence or order of probation or parole or meeting with an adult about their child's medical care or condition or educational program

$100

New Milford

26-1 et seq.

Same as Brookfield plus youth gardens, youth farm enterprises, educational facilities, and the land and buildings upon which they are located

Same as Danbury plus offenders who are custodial parents entering a zone to meet with an adult about their child's medical care or condition or educational program

$100

Ridgefield

Same as Brookfield

Same as Danbury

$250

Windsor Locks

Same as Brookfield plus libraries and the land and buildings upon which they are located

Same as Danbury

$99

AUTHORITY FOR MUNICIPAL ORDINANCES

The state Supreme Court has long held that municipalities have no inherent powers (see Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60 (1959)).  Thus, the only powers municipalities have are those granted to them by the state constitution or state statutes. Municipalities have the authority under state statutes to protect or promote the peace, safety, good government, and welfare of the municipality and its inhabitants, including regulating the use of streets, sidewalks, public places, and grounds for public and private purposes (CGS 7-148 (c)(7)(H) (xii) and (xiii)).  Municipalities are apparently using this broad police power to ban sex offenders from certain areas.

Any ordinance drafted pursuant to a municipality's police powers granted under CGS 7-148 is facially valid if it relates to safety and general welfare (Greater New Haven Property Owners Association v. New Haven (288 Conn. 181 (2008)). The “statutory scheme of 7-148 envisages its adaption to infinitely variable conditions for the effectuation of the purposes of these statutes” (Modern Cigarette, Inc. v. Orange, 256 Conn 105 (2001)). The test for determining whether a municipal ordinance enacted pursuant to CGS 7-148 is valid in its application is whether it is reasonably calculated to achieve health, safety, and welfare (Greater New Haven quoting Modern Cigarette 288 Conn. 181, 187).

CHALLENGES TO ORDINANCES PLACING RESTRICTIONS ON SEX OFFENDERS

As of 2006, 22 states and 400 municipalities restrict where sex offenders can live or visit (see OLR Report 2007-R-0380). Most of the restrictions prohibit them from visiting or living in close proximity to places where children congregate. Sex offenders have challenged some of these laws and ordinances on the grounds that they violate provisions in the federal and state constitutions.

Although the U.S. Supreme Court has determined that an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate, nonpunitive governmental objective (Kansas v. Hendricks, 521 U.S. 346, state statute required the involuntary civil commitment of sexually violent predators), residency restrictions have been overturned.

For example, the Georgia Supreme Court held that a state law prohibiting convicted sex offenders from living or loitering within 1,000 feet of schools or other common gathering places for children constituted an unconstitutional regulatory taking. It found that the restrictions placed nearly all of the homes in certain counties off limits, amounting to banishment, and subjected offenders who complied with the law to the possibility of being repeatedly uprooted whenever someone opted to open a school, church, or other facility serving children near their home (Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007)). The Indiana Supreme Court held that a state law making it a class D felony for sex offenders to live within 1,000 feet of school property, a youth center, or a public park violated the state constitution's ex post facto laws when applied to offenders who purchased their home and committed a sex offense before the law's enactment (State v. Pollard, No. 05 S02-0906-CR-305 (6/30/2009)).

Other states have upheld sex offender residency restrictions. For example, the U.S. Court of Appeals upheld an Iowa statute prohibiting certain sex offenders from residing within 2,000 feet of a school or registered child care facility. Plaintiffs argued that the statute violated (1) their rights to due process, travel, and personal choices regarding family; (2) right against self incrimination; and (3) the ex post facto clause of the federal constitution.

The Court held that the:

1. inability of some towns to identify the location of all schools and registered child care facilities did not deprive the plaintiffs of notice in violation of due process;

2. law's failure to provide a process for individual determinations of dangerousness did not constitutionally foreclose a right to be heard in violation of due process;

3. law did not impose any obstacle to a sex offender's entry into Iowa or erect an actual barrier to interstate movement;

4. U.S. Supreme Court has not decided whether there is a fundamental right to intrastate travel;

5. plaintiffs were not persuasive in arguing that the federal constitution establishes a right to live where you want;

6. law does not regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the law; thus, there is no liberty interest relating to a matter of marriage and family that requires heightened scrutiny;

7. residency requirement does not compel a sex offender to be a witness against himself or herself; and

8. law established a civil proceeding that was not “so punitive either in its purpose or effect so as to negate the state's nonpunitive intent” (Doe v. Miller, 405 F. 3d 700 (8th Cir. 2005) citing Smith v. Doe, 538 U.S. 84 (2003)).

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