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UPDATE: Missouri sex offender challenges residency restrictions

Tuesday, September 29, 2009 | 5:29 p.m. CDT

JEFFERSON CITY — A Missouri sex offender contended Tuesday that a state law requiring him to live more than 1,000 feet from schools and child care centers is unconstitutional.

An attorney for the sex offender told the Missouri Supreme Court the law should be struck down for two reasons: Its 1,000-foot buffer is too vague, and it imposes restrictions on offenders that were not in place when they were convicted.

It is the latest case in which the Supreme Court is faced with deciding how to implement new sex offender policies for people convicted of prior sex offenses. Previously, the high court has held the buffer zone could not be enforced against people who already were living near schools because Missouri's constitution bars "retroactive" laws.

Missouri in 2004 first enacted a law barring many sex offenders from living within 1,000 feet of public and private schools or any child care facilities. The ban applies to any location where the sex offender sleeps. Violators face up to four years in prison the first time and 15 years for repeat offenses.

The issue Tuesday involved a sex offender whose offenses came before the residency restrictions but who did not attempt to move near a child care facility until several years after the buffer zone was created. The case also focused on how the 1,000-foot limitation should be measured.

The sex offender — identified in court only by his initials "F.R." — was convicted of five felony sex crimes in 1999 and notified the St. Charles County Sheriff's Department of his plans to move into his fiancee's home in the St. Louis suburb of O'Fallon. Police initially approved the move, but several days later when neighbors complained, "F.R." was told he had two days to move out or that he would be arrested.

That was because the property line for the O'Fallon home is 913 feet from the property line of the Kid's Academy child care facility. But the corners of the home and child care center are 1,078 feet apart, and the front doors for the two buildings are 1,097 feet apart.

Attorney Michael Gross, who represented the sex offender during oral arguments, said living restrictions for "F.R." are unconstitutional because they were not in place when he was convicted. Gross also argued that the law is unclear about whether the 1,000-foot buffer should be measured from building to building or from lot line to lot line.

Gross said there is a fundamental right for residents to travel freely and live where they wish with some limits.

"F.R.'s ability to enjoy that right was diminished by this law for no reason except for the fact that in 1999 he was convicted of a sex offense," Gross said.

After the hearing, Gross declined to say where his client currently lives.

During oral arguments, judges pointed out that the 1,000-foot buffer zone didn't affect where "F.R." was living when it was enacted and only became an issue in 2008 when he tried to move.

Judge Laura Denvir Stith questioned whether the sex offender living restrictions had any more affect upon "F.R." than other new laws. She said barring a law that creates new restrictions or requires new actions would make it impossible for the legislature to ever pass legislation.

Robert Hoeynck, the assistant counselor for St. Charles County, said the circumstances with "F.R." were different from other cases because the living restrictions did not force him to move.

"There's no legal right to live in the property at the time," Hoeynck said.

Hoeynck said that the 1,000-foot buffer zone should be measured from lot line to lot line because children attending a school or child care center likely have access to most of that facility's property. Likewise, homeowners have access to their entire parcel and are not restricted to the building.

The Missouri attorney general's office, in a written argument submitted to support St. Charles County, likened the buffer zone to a new local zoning ordinance that can bar previously permitted behavior.

 


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