An amended statute and a recent case improve our understanding of places sex offenders cannot live and go in North Carolina.
First, the statute. Under G.S. 14-208.16, a registered sex offender may not reside within 1,000 feet of a school or child care center. The law has always defined “child care center” by reference to G.S. 110-86(3), which defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” “Child care,” in turn, is defined as a “program or arrangement where three or more children less than 13 years old, who do not reside where the care is provided, receive care on a regular basis of at least once per week for more than four hours but less than 24 hours per day from persons other than their guardians or full-time custodians, or from persons not related to them by birth, marriage, or adoption.” G.S. 110-86(2). The definition then goes on to exclude 11 types of care, like certain home care arrangements, recreational programs, and drop-in care at a place like a gym or church. In short, it’s a very specific definition that excludes some things that many people would probably think are covered.
Legislation signed into law by the governor on June 24, 2014, S.L. 2014-21 (H 777), amends G.S. 14-208.16 to fill one perceived gap in the statute. The amendment provides that the term “child care center” does, for purposes of the sex offender residency restriction, include “permanent locations of organized clubs of Boys and Girls Clubs of America.” The amended definition applies to all persons registered or required to register on or after June 24, 2014, but does not apply to a person who established his or her residence prior to that date. That grandfather clause allows an otherwise prohibited person to continue living in a residence near a Boys and Girls Club if he or she established the residence before the law came into effect. For a discussion of how a residence is “established,” see this prior post.
(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including but not limited to schools, children’s museums, child care centers, nurseries, and playgrounds;
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in (1) that are located in malls, shopping centers, or other property open to the general public; or
(3) At any place where minors gather for regularly scheduled education, recreational, or social programs.
In State v. Simpson, decided yesterday by the court of appeals, the defendant, a registered sex offender, was found sitting on a bench near the batting cage and ball field at Cub Creek Park in Wilkesboro. An off-duty officer saw him there and called the police. He was arrested and charged under option (2) above—being within 300 feet of any location intended primarily for the use, care, or supervision of minors that is located on premises that are not intended primarily for minors. (I discussed the “location within a place” nature of the 300-foot rule in this prior post.)
The court of appeals rejected the defendant’s argument that the State’s indictment was defective because it failed to specify that the place (the park) within which the prohibited location (the batting cage and ball field) was located was not intended primarily for the use, care, or supervision of minors. Naming the park was enough to give the defendant sufficient notice of the accusation.
As to the substance of the charge, however, the court agreed with the defendant that the batting cage and ball field were not shown to be locations intended primarily for use by minors. Batting cages and ball fields are of course used by minors—there was even testimony that children were in line at the cage while the defendant was there. But unlike the prohibited locations explicitly listed in the statute (playgrounds and children’s museums, for example), it is not self-evident that batting cages and ball fields are intended primarily for minors. Unless the State shows some “special circumstances” to the contrary, they are presumably intended to be used by adults, too.
Simpson helps clarify our understanding of what sort of “location within a place” triggers the 300-foot rule, but questions will surely remain. For some locations the primary intended use will be a close call, like some swimming pools, athletic facilities, arcades, and areas within bookstores to name a few. In light of Simpson, the parties should be prepared to show facts about the location (the typical clientele, the décor, the depth of the pool, the dimensions of the field, the type of games or books present, etc.) that help demonstrate the primary intended use.