Related Article: Not all sex offenders prohibited from living near schools (OR: April 2008)
Not all sex offenders prohibited from living near schools
Published by Lorie Garland, Assistant V.P., Legal Services
Summary: Ohio’s Megan’s Law was amended in 2003 to prohibit certain sexually oriented offenders from establishing or occupying a residential premise that is within 1,000 feet of any school property. Ohio’s landlord-tenant laws and eviction provisions were also amended to permit a landlord to evict a tenant in violation of this provision. Subsequently, county prosecutors were given the authority to evict offenders who violated this provision.
Megan’s Law
Published OAR’s Legal Services Group
Summary: Megan’s Law requires individuals convicted of a sexually oriented offense to register with the local sheriff’s office. See more details on Megan’s Law.
Not all sex offenders prohibited from living near schools
by Lorie Garland
Assistant Vice President
Legal Services
Ohio’s Megan’s Law was amended in 2003 to prohibit certain sexually oriented offenders from establishing or occupying a residential premise that is within 1,000 feet of any school property. Ohio’s landlord-tenant laws and eviction provisions were also amended to permit a landlord to evict a tenant in violation of this provision. Subsequently, county prosecutors were given the authority to evict offenders who violated this provision.
Sex offenders who owned or were convicted prior to the effective date of this residency provision felt that the law did not apply to them and that they could not be forced to move from their home that was within 1,000 feet of a school. Their position was that the law could not be applied retroactively. Appellate courts differed on the retroactive application of the residency restriction. This issue was recently resolved by the Supreme Court of Ohio.
The case involved Gerry Porter, Jr. who purchased a home near Cincinnati in 1991. He lived there with his wife and two sons. Porter was convicted of sexual imposition in 1995 and sexual battery in 1999. Porter was required to register with the sheriff as a sexually oriented offender. Following enactment of the sex offender residency restriction in 2003, Green Township sought a permanent injunction that would prevent Porter from continuing to occupy his home because his property was within 1,000 feet of an elementary school. Porter opposed the injunction, claiming that the residency restriction did not apply to him. He argued that it was unconstitutional to apply the residency provision retroactively.
The Hamilton County Court of Common Pleas issued the injunction permanently prohibiting Porter from living in his home. This decision was appealed.
The 1st District Court of Appeals affirmed the trial court’s decision finding that the residency restriction could be applied to an offender who bought his home and committed his offense before the effective date of the statute. However, the 1st District Court’s decision was in conflict with a 2006 decision of the 2nd District Court which held that the residency provision was unconstitutional when applied to a sex offender who purchased his home before the effective date of the 1,000 foot provision. The Supreme Court agreed to hear the Porter case to resolve the conflicting decisions of the appellate courts.
The issue the Supreme Court addressed was whether the 1,000 foot residency restriction of Megan’s Law could be applied retroactively. In previous decisions, the Supreme Court has established a two-part test to determine if a law can be applied retroactively.
The first issue to be considered is whether the General Assembly expressly made the statute retroactive. Only if it did, does the court consider the second issue which is whether the restriction is substantive or remedial in nature. If a statute is expressly made retroactive, the court would then consider whether the statute violates the Ohio Constitution’s prohibition against a retroactive law that impairs vested substantive rights.
In considering the first issue, the Supreme Court reviewed Ohio law on statutory construction. Ohio law provides that a statute is presumed to apply prospectively (i.e. only to events that take place after the effective date of the law) unless expressly made retroactive. To overcome the presumption of prospectively, a statute must clearly proclaim its retroactive application.
Upon analyzing the 1,000 foot provision under this standard, the Supreme Court found that the statute did not clearly indicate the legislative intent for the 1,000 foot provision to apply to a sex offender who committed his offense and lived in his house before the residency provision was enacted. Therefore, the residency restriction could not be applied retroactively.
Based upon the Court’s finding on the first part of the test, the Court did not have to consider the second part of the test, i.e. whether the restriction was substantive or remedial in nature. The Court found that the 1,000 foot residency restriction did not apply to Porter. The decision of the Court of Appeals to issue the permanent injunction was reversed.
Ohio Megan’s Law
Revised January 2008
Since July of 1994, when seven year old Megan Kanka of Hamilton, NJ was raped and murdered by a convicted sex offender who lived in her neighborhood, states have been adopting laws for community notification of sex offenders. Ohio’s Sex Offender Registration and Notification Law, HB 180, was adopted in 1996 with an effective date of July 1, 1997 for the registration and community notification provisions. Ohio’s Megan’s Law has been amended several times since its enactment.
Megan’s Law requires individuals convicted of a sexually oriented offense to register with the local sheriff’s office. The sheriff will notify the Bureau of Criminal Identification and Investigation (BCI). BCI will include this information in the State Registry of Sex Offenders and Child Victim Offenders and also notify the FBI. The offender must notify the sheriff of an address change and must periodically verify their current address. The registration requirement will last from 15 years to life depending upon the offender’s conviction.
An offender is required to provide written notification to the sheriff of the offender’s intent to reside in the county at least twenty days prior to the date the offender actually moves in. Within three days of establishing a residence in the county the offender must again provide written notification to the sheriff.
If the offender is subject to the community notification requirements the sheriff is required to notify local law enforcement, the victim (if requested by the victim) and neighbors of the offender within 5 days of the offender registering a residence or intended residence. The neighbors who will be provided written notification from the sheriff are: (a) all residences within 1,000 feet of the offender’s residence which are not in a “multi-unit building”. (A “multi-unit building” is defined as a building with more than 12 residential units that have entry doors that open directly into the unit from a hallway that is shared with one or more other units), (b) if a multi-unit building is within 1,000 feet of the offender’s residence, a notice will be given to the building or condominium manager and a notice will be posted in each common entryway, (c) If the offender lives in a multi-unit building, notice will also be given to all units that share a common hallway with the offender’s unit.
The sheriff is also required to provide written notice of the offender’s registration within seven days to all of the following:
1. Executive director of the public children services agency
2. Superintendent of the school district
3. Hiring officer of each chartered nonpublic school
4. Director of each preschool
5. Administrator of each child day-care center
6. President of each college or university
7. Certain volunteer organizations and others who have requested notification
The written notice provided by the sheriff will include the offender’s name, the address or addresses of the offender’s residence, school, institution of higher education, or place of employment, the offense for which the offender was convicted, the classification of the offender and the offender’s photograph. Megan’s Law provides that the written notice is a public record and is open to inspection under Ohio’s Public Records Law. Anyone should be able to obtain information from the local sheriff’s office or web site regarding registered offenders in the area. The Ohio Attorney General also maintains a sex offender database on its web site, www.esorn.ag.state.oh.us.
Megan’s Law prohibits an offender of a sexually oriented offense from establishing or occupying a residential premises that is within 1,000 feet of any school, preschool or child daycare center. Ohio’s landlord-tenant laws and eviction provisions permit a landlord to evict a tenant in violation of this provision. The law also permits county prosecutors to evict offenders who violate this provision.
Megan’s Law does not address a property owner’s or real estate licensee’s duty to disclose to a tenant or buyer that a known sex offender lives in the neighborhood. It is impossible to say with certainty how a court would rule on this disclosure issue as some decisions state that information of public record does not have to be disclosed and other decisions indicate that this could be found to be material information that should have been disclosed. Due to this uncertainty, if the property owner has been notified by the sheriff, the cautious approach would be to disclose this information to the buyer or tenant. Of course this issue and the brokerage disclosure policy must be discussed with the property owner and consented to. If the property owner does not consent, the broker must decide whether to comply with the owners request not to disclose or decline to sell/rent the property due to the possible risk involved.
To facilitate the seller’s disclosure of notice received under Megan’s Law and the buyer’s awareness of a sex offender’s requirement to register with the local sheriff, a sex offender provision can be included in the purchase contract. Attached is sample language. Also attached are sample sex offender provisions that can be included in your agency agreements. With the listing agreement provision, the seller is agreeing to disclose notice received under Megan’s Law. With the buyer representation agreement, the buyer is put on notice of the sex offender registration requirement, their ability to obtain information from the sheriff and recommends the buyer obtain this information.
These are sample provisions and are not required by Megan’s Law. However, they provide REALTORS with a means to notify the seller and buyer of the Sex Offender Registration and Notification Law and to address the disclosure issue. Local Board’s with questions regarding the disclosure obligations of Megan’s Law can contact either Peg Ritenour, Lorie Garland, or their own Local Board Counsel.
PURCHASE CONTRACT
Ohio’s Sex Offender Registration and Notification Law
Ohio’s Sex Offender Registration and Notification Law requires the local sheriff to provide written notice to neighbors if a sex offender resides or intends to reside in the area. The notice provided by the sheriff is a public record and is open to inspection under Ohio’s Public Records Law. Therefore, you can obtain information from the sheriff’s office regarding the notices they have provided pursuant to Ohio’s sex offender notification law.
The seller certifies that he/she has not received notice pursuant to Ohio’s sex offender notification law, unless noted below:
_________________________________
The Buyer acknowledges that the information disclosed above may no longer be accurate and agrees to inquire with the local sheriff’s office. If current information regarding the status of registered sex offenders in the area is desired, buyer agrees to assume the responsibility to check with the local sheriff’s office. Buyer is relying on their own inquiry with the local sheriff’s office as to registered sex offenders in the area and is not relying on the seller or any real estate agent involved in the transaction.
LISTING AGREEMENT
Ohio’s Sex Offender Registration and Notification Law
Ohio’s Sex Offender and Notification Law requires the local sheriff to provide written notice to neighbors if a sex offender resides or intends to reside in the area. If you have or do receive notice from the sheriff’s office pursuant to this law, you agree to disclose this fact to the Buyer in the Purchase Contract.
BUYER REPRESENTATION AGREEMENT
Ohio’s Sex Offender Registration and Notification Law
Ohio’s Sex Offender Registration and Notification Law requires the local sheriff to provide written notice to neighbors if a sex offender resides or intends to reside in an area. This notice is to residences within one thousand feet of the offender’s residence. Residences not within one thousand feet of offender’s will not receive notification from the sheriff. The notice provided by the sheriff is a public record and is open to inspection under Ohio’s Public Records Law. Therefore, you can obtain information from the sheriff’s office regarding the notices they have provided pursuant to Ohio’s sex offender notification law. It is recommended that you obtain information from the sheriff’s office regarding registered sex offenders in the area you are considering to live.