Under G.S. 14-208.16, a registered sex offender may not reside “within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” What’s the right way to measure those 1,000 feet? As the crow flies? Property line to property line? Building to building? Continue reading
Tag Archives: residency restrictions
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.
The recent case, State v. Simpson, bears on where sex offenders may be (as opposed to where they may reside). Under G.S. 14-208.18, certain sex offenders may not knowingly be:
(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.
A registered sex offender may not knowingly reside within 1,000 feet of a school or child care center. G.S. 14-208.16. That restriction was enacted in 2006, S.L. 2006-247, and applies to all registered sex offenders in North Carolina, regardless of their particular crime or date of offense. A violation of the law is a Class G felony.
The residency restriction law has two exceptions that exclude certain sex offenders from its coverage. Both exceptions, which operate as grandfather clauses that protect certain registrants’ property interests, were likely included in the in an effort to avoid some of the litigation that had arisen regarding other states’ residency restrictions around that time. See, e.g., Mann v. Georgia Dept. of Corr., 653 S.E.2d 740 (Ga. 2007) (holding that Georgia’s similar restriction violated the Takings Clause by forcing a sex offender to move out of his home, without compensation, when a child care center opened nearby).
The first exception is for changes in the ownership or use of property within 1,000 feet of a registrant’s address that occur after the registrant establishes residency. G.S. 14-208.16(d). In other words, if the sex offender was there first, he or she does not have to move away if a school or child care center opens up nearby. The statute provides three ways in which a residence can be “established” for purposes of applying the exception:
- Purchasing or entering into a specifically enforceable contract to purchase the residence;
- Entering into a written lease for the residence; and
- Residing with an immediate family member “who established residence in accordance with this subsection [G.S. 14-208.16(d)].” Immediate family member is defined as a child or sibling who is at least 18 years old, or a parent, grandparent, legal guardian, or spouse of the registrant.
The second exception, broader than the first, is that the restriction does not apply at all to any registrant who established a residence before the law came into effect in 2006. Unlike the first exception, the second exception was not initially written into G.S. 14-208.16 itself. It was, rather, included in the effective date clause of the legislation that enacted that statute. S.L. 2006-247, § 11.(c) (“Subsection (a) of this section does not apply to a person who has established a residence prior to the effective date of this subsection.”). The same methods of establishing residence applicable to the first exception (purchase, lease, or residing with an immediate family member) also apply to the second exception.
Not everyone interpreted the second exception the same way. First, because it was in the session law but not the codified statute, some people apparently were not aware of it at all. Second, there was some confusion about the triggering date of the exception, with some people reading the law to exclude registrants who established a residence before December 1, 2006 (the date mentioned in §11.(c) of S.L. 2006-247), and others thinking the residence had to have been established by August 16, 2006 (the day the governor signed the bill into law). Third (and perhaps most significantly), there were differences of opinion about the proper interpretation of the “reside with an immediate family member” method of establishing residence. Some thought the exception applied only if the registrant actually moved in with the immediate family member before the law’s effective date, regardless of when the family member purchased or leased the residence. Others read that exception to relate back to the date the immediate family member established the residence, even if the registrant himself or herself didn’t live there until later. The latter reading had some support in the statute (the law refers to immediate family members who establish residence “in accordance with this subsection,” arguably bringing them within the law’s overall effective date fold), but people disagreed.
Legislation enacted this year, effective when it became law on April 16, 2013, attempted to address all three of those concerns. S.L. 2013-28. First, the legislation wrote the second exception into G.S. 14-208.16(a) itself, bringing it out of the shadows of the session laws. Second, the now-codified second exception makes clear that it applies as of August 16, 2006—not December 1 of that year.
Finally, the legislation attempted to clarify that the exception is measured by the date the registrant establishes residency, and does not relate back to the date the residence was established by an immediate family member. A pointed clause in the legislation’s preamble defined the problem the revised law was intended to address:
“Whereas, law enforcement officials mistakenly believe, based only upon the codified portion of the [2006] law . . . that a registered sex offender can legally reside within 1,000 feet of a school or day care center if the offender moves in with a family member who had established residence at the location prior to the effective date of the law, even though the offender did not establish residence at the location prior to August 16, 2006 . . . .”
That framing of the issue should make clear (to people who read session laws, at least) that revised G.S. 14-208.16(a) is intended to exclude only those registrants who themselves established a residence before August 16, 2006, and that the exclusion does not relate back to the date an immediate family member established residence. Any registrant who was residing with an immediate family member under a former interpretation of the law probably should have moved out after April 16, 2013.
Category: Crimes and Elements, Uncategorized | Tags: registration, residency restrictions, sex offenders, sex offenses
The News & Observer ran an article last weekend about some of the restrictions on where sex offenders are allowed to live or go. One of the laws mentioned was G.S. 14-208.18(a)(2), which makes it a Class H felony for certain registered sex offenders to “knowingly be . . . [w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that not 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] that are located in malls, shopping centers, or other property open to the general public.” It was clear from the article that there’s some confusion about the law, so it seemed a good topic for today’s post.
Passed in 2008 (S.L. 2008-117), the 300-foot rule prohibits covered offenders from going near certain locations within places. It effectively tells the registrant, “You can go to places like the mall, you just can’t go within 300 feet of the playground within the mall.” That sounds easy enough, but there are some complications. First, which locations qualify as locations “primarily for the use, care, or supervision of minors” under this law? It seems like a clearly demarcated play area within a larger, non-kid-specific place would be covered. That would appear to render just about any fast-food restaurant with a play area entirely off limits—the play area is primarily for minors and the restaurant as a whole is not. Even the largest of restaurants (except maybe that giant McDonald’s that spans the Will Rogers Turnpike in Oklahoma) would almost certainly be swallowed up by the football field–sized radius drawn around any play area on site. Would a single coin-operated ride also qualify as a location for the use of children? In a multi-story mall can a covered registrant knowingly be in the areas above or below the play area? What about a shallow “kiddie area” in a public pool? Is that a location with a broader place (the pool as a whole) such that covered offenders cannot come within 300 feet of it? A play apparatus for children located within a broader park used by adults and children alike? A juvenile area within a bookstore or library? These are all actual questions I’ve been asked.
A related question, discussed in the N&O article, is whether the 300-foot radius around the location within a place extends beyond the boundaries of the place itself. In the McDonald’s example, for instance, does the presence of a “Play Place” on site just mean the offender cannot go on the premises of the McDonald’s itself, or does the 300-foot radius also sweep across adjoining parcels, rendering them (or portions of them) off limits too? To illustrate, does the restriction only apply to the greenish area in the figure below, or does it also exclude offenders from the yellow area outside of the mall premises?
The literal language of the statute suggests that the yellow area is included, but that works a somewhat strange result in that locations within places would be surrounded by a 300-foot buffer while places devoted entirely to use by children (from which covered registrants are excluded under G.S. 14-208.18(a)(1)) would not. (There is no 300-foot boundary drawn around, say, a stand-alone children’s museum or school. Rather, the offender just cannot go on the museum or school property itself under G.S. 14-208.18(a)(1) or (a)(3).)
To further complicate things, what if (as depicted in the figure) a covered registrant’s home falls within the portion of the 300-foot radius that lies outside the mall? Does the 300-foot restriction then operate like a residency restriction? North Carolina has explicit residency restrictions under G.S. 14-208.16, which prohibits registrants from residing with 1,000 feet of schools and child care centers, as those places are defined by law. Again, it would be strange if the 300-foot rule operated as a more restrictive residency restriction than the residency restriction itself. It also bears mentioning that the 300-foot rule does not include the grandfather clauses built into G.S. 14-208.16 that exclude offenders who established a residence before residency restrictions came into effect on December 1, 2006 (see S.L. 2006-247, sec. 11) or who lived in a place before a school or daycare opened up nearby. Without those exemptions, an offender forced to move out of his or her property might have a valid claim under the Takings Clause. See, e.g., Mann v. Georgia Department of Correction, 282 Ga. 754 (2007) (holding Georgia’s residency restriction law constituted an impermissible taking as applied to a sex offender who was forced to move after a child care center opened near his home).
The 300-foot rule (and other provisions within G.S. 14-208.18) raise other constitutional issues, particularly to the extent that they might infringe on a covered registrant’s ability to practice his or her religion. As mentioned in the N&O article, that aspect of the law has been litigated at the trial court level (a superior court judge ruled in a Chatham County criminal case that portions of the law are unconstitutionally vague and overbroad), but not in our appellate courts. I’ll save any conjecture about those constitutional issues for a future post and instead conclude this one by focusing on some things we know about G.S. 14-208.18.
First, as I mentioned before, the law came into effect on December 1, 2008, and applies to offenses committed on or after that date. It’s clear, I think, that “offenses” refers to violations of G.S. 14-208.18 itself, not to the underlying sex crime that got the offender on the registry.
Second, the law does not apply to all registered sex offenders. Rather, it applies only to those who committed an offense in Article 7A of Chapter 14 (rape, sexual offense, statutory rape or sexual offense, sexual battery, and intercourse with certain victims—and there is no “substantial similarity” provision that would include analogous out-of-state crimes), or whose offense involved a victim who was under the age of 16 at the time of the offense. G.S. 14-208.18(c). (By contrast, the residency restrictions in G.S. 14-208.16 do apply to all registrants, except those who might fall within one of the grandfather clauses mentioned above.) It’s not clear whether this law, like the satellite-based monitoring (SBM) law, requires that the victim’s age be apparent based on the elements of the crime of conviction alone for the offense to be covered. See State v. Davison, discussed here. Unlike the SBM law there’s no mention of “conviction offense” in G.S. 14-208.18(c), so it’s probably permissible to look at the facts of the case to determine the victim’s age. That’s the position taken in a publication from the Attorney General’s office (available here, page 24).
Third, subsections (d) through (g) of the statute set out exceptions to the law that allow: (1) offenders who are parents or guardians of a minor to obtain emergency medical care for that minor; (2) offenders who are parents or guardians, under certain circumstances, to visit schools for conferences; (3) offenders to vote; (4) school-age offenders to attend public school if permitted by the board of education; and (5) juvenile offenders to obtain medical care.
I realize this post offers more questions than answers. The best I can say for now is that I’ll keep you posted on any clarifications that emerge from the General Assembly or the appellate courts. I welcome your comments on whether and how this law has been applied where you are.
Category: Crimes and Elements, Uncategorized | Tags: 300-foot limit, residency restrictions, sex offenders, sex offenses