Niagara Gazette

October 6, 2012

Repeal of county 'pedophile-free' zone law delayed

Staff reports
Niagara Gazette

Niagara Gazette — LOCKPORT — After a sparsely attended but angst-filled public hearing, county legislative leaders decided Tuesday to put off repeal of the 2008 Pedophile-Free Child Safety Zone Act.

The county law has been targeted due to a series of court rulings around New York state, all striking down local laws that attempt to regulate the movements of registered sex offenders, as illegal.

After three Niagara Falls city residents all spoke against repeal, including a grandmother of 9 who identified herself as a “survivor” of childhood sexual abuse, Minority Caucus Leader Dennis Virtuoso, D-Niagara Falls, and Majority Leader Richard Updegrove, R-Lockport, announced they would not permit introduction of a late resolution proposing repeal on the legislature’s Tuesday meeting agenda.

Although the repeal hearing was scheduled well in advance, and the county attorney’s office has advised the legislature has no choice but to repeal the law, repeal sponsor Paul Wojtaszek, R-North Tonawanda, did not submit a resolution until after the deadline for getting legislation onto the meeting agenda. Late resolutions can’t be taken up by the body unless the majority and minority leaders, and the legislature chairman, all sign off. None did.

Instead, Chairman Bill Ross, C-Wheatfield, said, Wojtaszek will explore possible “modifying” of Zone Act language to keep its essence in tact but no longer running afoul of the state constitution.

That may not be possible, judging from County Attorney Claude Joerg’s read on the law.

The Zone Act bans certain registered sex offenders from establishing residence within 1,000 feet of any school, child care facility, playground or other child-centered gathering place in Niagara County. The state “rates” convicted sex offenders as Level 1, 2 or 3 offenders, based on the degree of propensity a convict shows to commit another sex crime; and the Zone Act applies to all Level 2 and Level 3 offenders whose victims were minors.

In several bodies of law, New York State regulates Level 3-registered offenders who are serving parole or probation only. Thus the Zone Act goes further — and that’s become a legal problem for Niagara County, according to Joerg. A series of state and federal court rulings find that local laws similar to the Zone Act are “pre-empted” by the state, meaning once the state Legislature has made law, localities are not free to exceed it. “Only the state, through the Department of Parole, can enforce regulations on sex offenders,” Joerg said. “Localities cannot make their own rules. We are left with the framework by the state.”

Wojtaszek, an attorney who works in criminal justice, co-authored the 2008 Zone Act and said he knew at the time it was going further than state law, but believed it would pass constitutional muster. The act identified a public interest in local law enforcement keeping an eye on offenders who were no longer being supervised by the state through parole or probation, he said.

The risk to the county in enforcing an illegal law is that it gives rise to lawsuits by sex offenders, Joerg said. An illegal law produces illegal arrests and illegal imprisonment, in other words, grounds for monetary “damage” claims.

“If an arrest is illegal, the citizenry is not helped,” Joerg said. “It opens us up to giving them money on top of what they’ve already done.”

The county has in fact already been sued twice over the Zone Act. A suit several years ago was tossed out of court on a technicality, by Judge Richard C. Kloch Sr. Another suit was filed last year, by a man with family in North Tonawanda who claimed the county’s radius restriction made him unable to establish residence and thus blocked his release from jail. Joerg said the county petitioned for dismissal of that suit this past December and Judge Catherine Panepinto has yet to rule on the petition. The plaintiff has since been released from jail, Joerg added. Residents who addressed the Zone Act not only opposed its repeal, they urged the legislature to raise the radius restriction and/or stand up to the state.

Two thousand feet would be the rule were it up to Ron Anderluh, representing the Niagara Street Business Association and himself personally, he said.

“If it turns into lawsuits, maybe we need to get tougher, better lawyers to fight the suits,” Nicholas D’Agostino added.