Bill Text: HI HB2059 | 2010 | Regular Session | Introduced

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Bill Title: Registered Covered Offenders; Residential Restrictions

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2010-01-20 - (H) Referred to PBS, JUD, referral sheet 2 [HB2059 Detail]

Download: Hawaii-2010-HB2059-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	2059
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO REGISTERED covered OFFENDERS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that sex offender and other types of transitional group homes are currently being established in residential areas.  Persons suffering from alcohol and drug addiction are treated as disabled persons entitled to protection under the federal Fair Housing Act.  Cities and counties have encountered difficulty in applying the Fair Housing Act because of the decision by the United States Supreme Court in City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995), and other related decisions.  In City of Edmonds, the Court held that a numerical limit on the number of unrelated adults in a single family dwelling violates the Fair Housing Act as it relates to disabled individuals.

     Group homes have been established in family neighborhoods under the rationale that drug and alcohol addiction is a disabling condition that qualifies drug and alcohol addicted residents for protection under the Fair Housing Act.  This rationale has then been used as a basis to extend protection to sex offenders or other felons who may or may not be under the supervision of the jurisdiction's corrections agency.  According to the United States Department of Justice, Civil Rights Division, persons convicted for illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders are not considered disabled under the Fair Housing Act, by virtue of that status.

     This Act addresses only the issue of registered adult sex offenders.  In particular, this Act:

(1)  Sets a limit of two registered adult sex offenders in a residential dwelling unit;

(2)  Provides for a judicial bypass to exceed that limit in limited circumstances;

(3)  Authorizes counties to exceed the limit by ordinance to allow and regulate group residence homes for sex offenders; and

(4)  Grandfathers current residence situations, while requiring compliance with county ordinances when established.

The purpose of this Act is to balance the need for housing for registered adult sex offenders and the concerns of citizens that arise from sex offender group homes being established in residential neighborhoods.

     SECTION 2.  Chapter 846E, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§846E-    Adult covered offenders; prohibited group dwelling; exceptions.  (a)  Except as otherwise provided in this section, when a covered offender is required to be registered under this chapter, that person may not reside in any residential dwelling unit with more than one other covered offender who is also required to register pursuant to this chapter.  If, on the effective date of this section, any covered offender required to be registered under this chapter is legally residing in a residential dwelling unit with more than one other covered offender required to so register, the person may continue to reside in that residential dwelling unit without violating this section, provided that no additional covered offenders required to be registered shall move into that residential dwelling unit if the covered offender moving in would be in violation of this section.

     (b)  For purposes of this section:

     (1)  "Reside" or "residing" means occupying the residential dwelling unit as a fixed place of abode or habitation for any period and to which place the person has the intention of returning after a departure or absence therefrom regardless of the duration of absence;

     (2)  "Residential dwelling unit" includes but is not limited to single-family dwellings and units in multifamily dwellings, including units in duplexes, apartment dwellings, mobile homes, condominiums, and townhouses in areas zoned as residential;

     (c)  A judge of the district court, upon petition and after an appropriate hearing, may authorize a covered offender required to be registered under this chapter to reside in a residential dwelling unit with more than one other covered offender who is also required to be registered under this chapter, if the judge determines upon clear and convincing evidence that:

     (1)  Not doing so would deprive the petitioner of a constitutionally guaranteed right; and

     (2)  The right is more compelling under the facts of the case than is the interest of the state and county governments in protecting neighboring citizens, including minors, from risk of physical or psychological harm.  The risk of harm shall be presumed, absent clear and convincing evidence to the contrary, given the petitioner's status as a covered offender required to be registered under this chapter.

     Any exception allowed under this subsection shall be limited to alleviate only a deprivation of constitutional right that is more compelling than the interest of the state and county governments in minimizing the risk of harm to the neighboring citizens.  Any order of exception under this subsection shall be made a part of the registry maintained pursuant to this chapter.

     (d)  Any county may establish standards for the operation of residential dwelling units for registered covered offenders that exceed the number of registered covered offenders allowed to reside in a residential dwelling unit under subsection (a).  Applicable standards shall include procedures to allow comment by neighboring residents within a specified distance and may include but are not limited to:

     (1)  Designating permissible zones in which the dwelling units may be located;

     (2)  Designating permissible distances between the dwelling units;

     (3)  Designating the maximum number of registered covered offenders allowed to reside in the dwelling units;

     (4)  Designating qualifications and standards for supervision and care of the dwelling units and the residents;

     (5)  Designating requirements and procedures to qualify as the operator of the dwelling units, including any requirement that the residents be engaged in treatment or support programs for registered covered offenders and related addiction treatment or support programs; and

     (6)  Designating any health and safety requirements that are different than those applicable to other residential dwelling units in the zone.

     (e)  No person or entity shall operate a residential dwelling unit for registered covered offenders in violation of the limitations of subsection (a), except as otherwise provided under subsection (d).  If, on the effective date of this section, any individual or entity is operating an existing residential dwelling unit for covered offenders required to be registered under this chapter, and when such individual or entity also requires such persons to be participants in a sex offender treatment or support program, the individual or entity shall not be precluded from continuing to operate the residential dwelling unit; provided that:

     (1)  The residential dwelling unit shall not operate at a capacity exceeding eight residents in the dwelling unit and two residents per bedroom, or the existing number of residents, whichever is less;

     (2)  Once the county enacts an ordinance pursuant to subsection (d) establishing standards for the operation of residential dwelling units for registered covered offenders, the operator of the residential dwelling unit, no later than one year after enactment of the ordinance, shall comply with all standards of the ordinance, except any requirement that is less than the maximum capacity provided for under paragraph (1) or that requires a relocation of the residence;

     (3)  The burden of proving that an existing residential dwelling unit qualifies for continuing operation under this subsection shall be upon the operator of the residential dwelling unit; and

     (4)  Any change in the use of an existing residential dwelling unit shall void the exception for the continuing operation of the dwelling unit under the provisions of this section.

     (f)  If any covered offender required to be registered under this chapter is on probation or parole under the supervision of the court or Hawaii paroling authority, respectively, the court or the authority shall be notified by the covered offender or the covered offender's agent of any intent to reside with another covered offender required to be registered under this chapter.  The court or the authority shall approve the living arrangement in advance as consistent with the terms of the probation or parole and consistent with the objective of reducing the risk of recidivism.

     (g)  Any person who knowingly violates the provisions of this section shall be guilty of a misdemeanor.

     (h)  Any county shall be entitled to injunctive relief against any person or entity operating a residential dwelling unit within its jurisdiction in violation of this section."

     SECTION 3.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

Report Title:

Registered Covered Offenders; Residential Restrictions

 

Description:

Limits the number of covered offenders required to be registered under chapter 846E, HRS, who may live together.  Authorizes the counties to adopt ordinances regulating residences for registered covered offenders.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.