TITLE XV

OFFENSES AND MISDEMEANORS

South Dakota

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Chapter 15.04     Prohibition Regarding Sex Offenders in Child Safety Zone

15.0401     Purpose and Intent

Sex offenders pose a clear threat to the children residing, or visiting in the community. Because convicted sex offenders are more likely than any other type of offender to reoffend for another sexual assault, the city council of the City of Scotland desires to impose safety precautions in furtherance of the goal of protecting the children. The purpose of this regulation is to reduce the potential risk of harm to children of the community by impacting the ability for sex offenders to be in contact with unsuspecting children in locations that are primarily designed for use by, or are primarily used by children, namely, the grounds of a public or private school for children, a center or facility that provides daycare or children’s services, a public playground, a public park, a public pool, a dance studio, a video arcade or an amusement center. The City of Scotland desires to add location restrictions to such offenders where the state law is silent.

15.0402     Definitions

As used in this ordinance unless the context otherwise requires:

Child or children - shall mean a person or persons who are under the age of eighteen.

Child care facility - shall mean any center or facility, whether public or private, either licensed or unlicensed, that provides daycare or children’s services for a fee.

Child safety zone - shall mean the area that lies within two thousand feet from the facilities and grounds of any school, public park, public playground, public pool, child care facility, dance studio, video arcade, or amusement center, including the facilities and grounds itself;

Loiter - shall mean standing, sitting idly, and to remain, whether or not the person is in a  vehicle, for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors;

Residence - shall mean a place where the person abides, lodges, regularly sleeps, or resides, where he/she is habitually present, and to which when he/she departs he/she intends to return. A residence may include more than one location and may be mobile or transitory. A person is considered to have established a “residence” pursuant to the provisions of this ordinance if the person abides, lodges, or resides at a location for a period of 14 or more days in the aggregate during any calendar year, or if the person routinely abides, lodges, or resides for a period of four or more consecutive or nonconsecutive days in any month, even if the location is not the person’s permanent address.

School - shall mean any public, private, denominational, or parochial school offering preschool, kindergarten, or any grade from one through twelve.

Sex offender - shall mean any person who is required to register as a sex offender pursuant to chapter 22-24B of the South Dakota Codified Laws, or any person convicted under the law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have required registration under the chapter 22-24B of the South Dakota Codified Laws, if the conviction occurred in South Dakota.

15.0403     Sex Offender Residency Restrictions; Exceptions

a)    Prohibited location of residence. It is unlawful for any person who is a sex offender as defined herein, to reside or establish a residence within two thousand (2000) feet of the real property comprising a public, private, denominational or parochial school, a child care facility, public park, public playground, public pool, dance studio, video arcade, or amusement center.

b)    Measurement of distance. For purposes of determining the minimum distance separation, the requirement shall be measured by following a straight line from the outer property line of the permanent residence or temporary residence to the nearest outer boundary line of a school, child care facility, public park, private playground, public pool, dance studio, video arcade, or amusement center.

c)    Exceptions. A person residing within two thousand (2000) feet of any real property comprising of a school, child care facility, public park, private playground, public pool, dance studio, video arcade, or amusement center does not commit a violation of this section if any of the following apply:

          1)    The person’s residence results from a requirement to serve a sentence at a jail, prison, juvenile facility, or resides in any

                 other correctional institution or facility including a correctional or treatment facility operated by the state or any political

                 subdivision which is located within child safety zone;

          2)    The person is placed in a health care facility licensed pursuant to chapter 34-12, or certified under Title XVIII or XIX of

                  the Social Security Act as amended to December 31, 2001, or receiving services from a community service provider

                 accredited or certified by the Department of Human Services, which is located within a community safety zone;

          3)    The person was under age eighteen at the time of the offense and the offender was not tried and convicted of the

                  offense as an adult;

          4)    The person established the residence prior to the effective date of this ordinance and has not moved from that residence.

          5)    The school, child care facility, public park, public pool, or public playground, dance studio, video arcade, or amusement

                 park was built or established subsequent to the person’s establishing residence at the location; or

          6)    The person’s place of residence becomes a violation of this ordinance solely because of annexation into the city.

          7)    The circuit court has entered on order pursuant to SDCL 22-24B-28 exempting the offender from the provisions of

                 SDCL 22-24B-22 to 22-24B-28, inclusive.

          8)    The Scotland City Council has granted the offender an exemption from the child safety zone restrictions of this ordinance

                 pursuant to 15.0405 to 15.0407 below.

15.0404     Loitering within Zone Prohibited – Exemption by Court Order

It is unlawful for any person who is required to register as a sex offender as defined in chapter 22-24B of the South Dakota Codified Laws to loiter within a child safety zone defined by this ordinance unless (1) the offender was under age eighteen at the time of the offense and the offender was not tried and convicted of the offense as an adult, (2) the circuit court has entered and order pursuant to SDCL 22-24B-28 exempting the offender from the provisions of SDCL 22-24B-22 to 22-24B-28, inclusive, or (3) the Scotland City Council has granted the offender an exemption from the child safety zone restrictions of this ordinance under 15.0405 to 15.0407 below.

15.0405     Exemption from Child Safety Zone Restrictions

A person subject to child safety zone restrictions pursuant to 15.0403 and 15.0404 and who is eligible for exemption from these restrictions as provided for under 15.0406 may petition the Scotland City Council for exemption from the child safety zone restrictions imposed within the ordinance. However, the City Council shall have no authority to exempt and shall not exempt any person from a “community safety zone” as defined by SDCL 22-24B-22(1) and from the restrictions imposed pursuant to SDCL 22-24B-22 to 22-24B-28 inclusive.

The petition and documentation supporting the request for exemption from the child safety zone restrictions shall include:

1)    All information required for registration of convicted sex offender in SDCL 22-24B-8;

2)    A detailed description of the sex crime that was the basis for the offender to be subject to the child safety zone restrictions;

3)    A certified copy of judgement of conviction or other sentencing document; and

4)    The person’s criminal record.

The City Council may request that the petitioner provide additional information if the information provided is incomplete or if the City Council desires more information relative to the request for exemption.

No person petitioning the City Council under this section for an exemption from the child safety zone restrictions shall be entitled to court appointed counsel, publicly funded experts, or publicly funded witnesses.

15.0406     Eligibility for Exemption from Restrictions

To be eligible for exemption from the child safety zone restrictions of this ordinance, the petitioner shall show, by clear and convincing evidence, the following:

1)    That at least ten years have elapsed since the date the petitioner was convicted of the offense that subjected the petitioner to the child safety zone restrictions of this ordinance. For purposes of this subdivision, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility or during which the petitioner was on probation or parole supervision does not count toward the ten-year calculation, regardless of whether such incarceration, confinement or community supervision was for the sex offense requiring registration or for some other offense;

2)    That the petitioner is not a recidivist sex offender. A recidivist sex offender is a person who has been convicted or adjudicated for more than one sex crime listed in SDCL subdivision 22-24B-1(1) to (19), inclusive, regardless of when those convictions or adjudications occurred. For purposes of this subdivision and subdivision (1) of this section, a conviction or adjudication includes a verdict or pleas of guilty; a verdict or plea of guilty but mentally ill; a plea of nolo contendere; a suspended imposition of sentence granted under SDCL 23A-27-13, regardless of whether it has been discharged; a deferred prosecution agreement entered by a prosecutor; and a determination made in another state, federal jurisdiction, or courts martial that is comparable to any of these events;

3)    That the petitioner has completely and truthfully complied with the registration and reregistration requirements imposed under SDCL chapter 22-24B;

4)    That the petitioner has actually resided in South Dakota at least ten consecutive years immediately prior to the filing of the petition. Residence as used in this subdivision does not mean the registration address of an incarcerated sex offender; and

5)    The circumstances of the crime subjecting the offender to community safety zone restrictions did not involve a child under age thirteen.

15.0407     Granting or Denying Petition – Restrictions on Subsequent Petitions

If the Scotland City Council finds that all of the criteria provided for in 15.0406 have been met and that the petitioner is not likely to offend again, then the City Council may, in its discretion, exempt the petitioner from the child safety zone restrictions of this ordinance. If the petition is denied, the petitioner may not file a subsequent petition for at least two years from the date the previous petition was denied.

15.0408     Penalty

Any person violating any provision of the ordinance, shall be guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed five hundred dollars ($500). A person shall be guilty of a separate offense for each and every day during which a violation of this ordinance occurs.

15.0409     Severability

If any provision of this ordinance or its application to any person or circumstances shall be held invalid, the remainder of the ordinance, or the application of the provisions to other persons or circumstances, shall not be affected.