The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Danny Terrance ("Terrance") has filed a complaint against Defendant City of Geneva, New York ("the City"), requesting a declaration that the City of Geneva Municipal Code, Part II, General Legislation, Chapter 285 ("Chapter 285") is unconstitutional. Terrance also seeks an injunction against the City's enforcement of Chapter 285. The City has filed a pre-answer motion to dismiss under Fed. R. Civ. P. 12(b)(6).
Chapter 285, passed on April 2, 2008, places residency restrictions on certain levels of sex offenders, as designated by New York State's Sex Offender Registration Act ("SORA"). Any registered level two or level three sex offenders (i.e., those classified as having a medium to high risk of committing another offense), are permanently precluded from residing one thousand feet from a school or five hundred feet from a park, playground, or daycare center in Geneva--regardless of that person's parole or probationary status. See City of Geneva Municipal Code, Part II, General Legislation, § 285-1(A-E)(quoted in, e.g., Defendant's Memorandum of Law at 1-2).
Chapter 285 exempts from its requirements any sex offender who already resides within one thousand feet of a school or within five hundred feet of a park, a playground, or a daycare center as of April 2, 2008. Sex offenders who move to a residence in violation of Chapter 285 receive ninety days in which to find an alternative residence before any civil fine is imposed. There are no criminal penalties for violating Chapter 285.
Terrance is a resident of Geneva and has been adjudicated as a level three sex offender by the New York State Division of Criminal Justice Services ("NYSDCJS"). Accordingly, Terrance has been deemed to have a high risk of committing another sexual offense. Terrance was convicted on March 2, 1999, when he was twenty-nine-years old, of first degree sexual abuse of a thirteen-year-old girl. He is no longer under any probationary or parole supervision.
On April 26, 2010, Terrance notified the City that he had moved his residence, to a location which is within five hundred feet of a playground, in violation of Chapter 285. The City notified Terrance and informed him that failure to find new housing within ninety days would result in a civil fine.
The conflict between New York State law and the City's Chapter 285 is that Terrance's current disputed residence is not prohibited according to State residency restrictions under N.Y. Penal Law§ 65.10(4)(a). The State residence restrictions apply only to level three sex offenders who are also subject to a sentence of probation or parole (conditional discharge). Chapter 285 expands residency restrictions to all level two and level three sex offenders, including those who are no longer subject to a sentence of probation or parole. Plaintiff has been designated a level three sex offender, but he is not subject to a sentence of probation or parole.
On July 23, 2010, Terrance, represented by counsel, filed a complaint in State Court, asserting that Chapter 285 is preempted by SORA, and that it violates his rights under the Ex Post Facto Clause, the Equal Protection Clause, the Due Process Clause, and the Contracts Clause of the United States Constitution.
The City removed the complaint on the basis that this Court has original jurisdiction over Terrance's claims that Chapter 285 violates several provisions of the Federal Constitution. See 28 U.S.C. §§ 1331; 1441(b). Plaintiff has not moved to remand the matter to State court.
The City moves to dismiss the complaint, arguing that Chapter 285 is a proper exercise of a local government's police power to protect the safety and welfare of its citizens. Plaintiff opposed the motion, stating that even if the motion were construed as a motion for summary judgment, the complaint should stand and that relief is warranted. The City filed a reply memorandum of law.
For the reasons that follow, the Court finds that Chapter 285 of Geneva's Municipal Code is preempted by New York State's comprehensive, detailed, and thorough scheme for regulating sex offenders. Accordingly, judgment in favor of Plaintiff is granted to the extent that Chapter 285 is declared invalid and will not be given effect. Because of this disposition, the Court need not rule on ...