[HISTORY: Adopted by the City Council of
the City of Marlborough 5-21-2007 by Ord. No. 06-1001231H (Ch. 162 of the 1986 Code). Amendments noted where applicable.]
A.
It is the intent of this chapter to serve and to protect
the City's compelling interest to promote, protect and improve the
health, safety and welfare of the citizens of the City by creating
areas around locations where children, the elderly and the mentally
retarded regularly congregate in concentrated numbers wherein certain
registered sex offenders are prohibited from loitering and establishing
temporary or permanent residence.
B.
After careful consideration, the City finds that this
legislation is the most narrowly tailored means of limiting, to the
fullest extent possible, the opportunity for registered sex offenders
to approach or otherwise come in contact with children, the elderly
and the mentally retarded in places where children, the elderly and
the mentally retarded would naturally congregate, and that the protection
of the health and safety of our children, elderly and the mentally
retarded is a compelling governmental interest.
C.
By the enactment of this or any other legislation,
the City understands that it cannot remove the threat posed to or
guarantee the safety of children, the elderly and the mentally retarded,
or assure the public that registered sex offenders will comply with
the mandates of this statute. This legislation is intended to create
a civil, nonpunitive regulatory scheme in order to protect children,
the elderly and the mentally retarded to the extent possible under
the circumstances and not as a punitive measure of any kind.
D.
Registered sex offenders pose a clear threat to the
children, the elderly and the mentally retarded residing or visiting
in the community. Because registered sex offenders are more likely
than any other type of offender to reoffend for another sexual offense,
the City desires to impose safety precautions in furtherance of the
goal of protecting the children, the elderly and the mentally retarded.
The purpose of this regulation is to reduce the potential risk of
harm to children, the elderly and the mentally retarded of the community
by impacting the ability for registered sex offenders to be in contact
with unsuspecting children, the elderly and the mentally retarded
in locations that are primarily designed for use by or are primarily
used by children, the elderly and/or and the mentally retarded, namely,
the grounds of a public or private school for children, a center or
facility that provides day care or children's services, a park, other
public recreational facility, elderly housing facilities or facilities
for the mentally retarded. The City desires to add location restrictions
to such offenders to the extent state law is silent.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
The following words, terms and phrases, when
used in this chapter, shall have the meanings ascribed to them in
this section, except where the context clearly indicates a different
meaning:
Person or persons under 18 years of age.
Any establishment, whether public, private or parochial,
which provides care for children and is registered with and licensed
pursuant to the laws of the Commonwealth of Massachusetts by the Department
of Early Education and Care.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
Person or persons over 60 years of age.
Includes any building which provides a group residence for
the elderly and is located within the City of Marlborough.
To set up or bring into being a dwelling place or an abode
where a person sleeps, which may include more than one location, and
may be mobile or transitory, by means of purchasing real property
or entering into a lease or rental agreement for real property (including
a renewal or extension of a prior agreement whether through written
execution or automatic renewal).
Includes facilities under the jurisdiction of the Department
of Developmental Services and which is located within the City of
Marlborough.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
To remain for more than 15 minutes within a five-hundred-foot
distance of the location in question.
[Added 10-5-2009 by Ord.
No. 09-1002289B]
Pursuant to MGL c. 123B, § 1, a person who, as
a result of inadequately developed or impaired intelligence, as determined
by clinical authorities as described in the regulations of the Department
of Developmental Services, is substantially limited in his or her
ability to learn or adapt, as judged by established standards available
for the evaluation of a person's ability to function in the community.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
Includes active and passive public land designated for recreational
or athletic use by the City of Marlborough, and located within the
City of Marlborough.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
A place where a person lives, abides, lodges or resides for
14 or more consecutive days.
Includes, but is not limited to, a playground, a forest preserve,
conservation area, jogging trail or running track, hiking trail, beach,
water park, wading pool, soccer field, baseball field, football field,
basketball court or hockey rink, mini-golf business, video arcade,
laser tag establishment, Boys and Girls Club(s), skate park, dance
or gymnastic studio, movie theater, martial arts school or family-oriented
pool hall, whether publicly or privately owned, to which the public
has a right of access as an invitee and which is located within the
City of Marlborough.
For the purposes of this chapter shall mean: a) any person
who is designated as a sexually violent predator pursuant to Chapter
6, § 178K(2)(c), of the Massachusetts General Laws and who
is required to register as a sex offender pursuant to the guidelines
of the Sex Offender Registry Board; b) any person who is required
to register as a sex offender pursuant to Chapter 6, § 178C
of the Massachusetts General Laws and who, for so long as such person
is finally classified as a Level 3 offender pursuant to the guidelines
of the Sex Offender Registry Board; and c) any person who, is required
to register as a sex offender pursuant to Chapter 6, § 178C
of the Massachusetts General Laws, who, for so long as such person
is finally classified as a Level 2 offender pursuant to the guidelines
of the Sex Offender Registry Board, and who has committed a sex offense
against a child, an elder and/or a mentally retarded person.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
Any public or private educational facility that provides
educational instruction to children in grades pre-K through 12.
Any area designated by the public school district or by a
private or parochial school within the City of Marlborough as a school
bus stop.
The same meanings as provided for in MGL c. 6, § 178C.
A place where a person lives, abides, lodges or resides for
a period of less than 14 consecutive days or 14 days in the aggregate
during any calendar year, which is not the person's permanent address
or place where the person routinely lives, abides, lodges or resides
and which is not the person's permanent residence; but "temporary
residence," shall not include residence at a hospital or other health
care or medical facility for less than 14 consecutive days or 14 days
in the aggregate during any calendar year.
A.
Prohibition. A registered sex offender is prohibited
from establishing a permanent residence or temporary residence within
1,000 feet of any school, day-care center, park, other recreational
facility, elderly housing facility or facility for the mentally retarded;
provided, however, that the prohibition contained in this section
shall not apply to any Level 3 offender to the extent and in the manner
such Level 3 offender is already governed by MGL c. 6, § 178K(2)(e).
[Amended 10-5-2009 by Ord. No. 09-1002289B]
B.
Evidentiary matters; measurements. For purposes of
determining the minimum distance separation under this section, the
distance shall be measured by following a straight line from the outer
property line of the permanent or temporary residence to the nearest
outer property line of any school, day-care center, park, recreational
facility, elderly housing facility or facility for the mentally retarded.
C.
Exceptions. A registered sex offender residing within
1,000 feet of any school, day-care center, park, recreational facility,
elderly housing facility or facility for the mentally retarded does
not commit a violation of this section if any of the following apply:
(1)
The registered sex offender established the permanent
residence prior to the effective date of this chapter, and:
(a)
Permanent residence was established by purchasing
the real property where the residence is established, as long as the
registered sex offender continues to reside in and does not move to
another restricted location in Marlborough different from the permanent
residence established prior to the effective date of this chapter;
(b)
Permanent residence was established through
a valid, fixed-term, written lease or rental agreement, executed prior
to the effective date of this chapter, as long as the registered sex
offender continues to reside within and does not move to another restricted
location in Marlborough different from the permanent residence established
prior to the effective date of this chapter; or
(c)
Permanent residence was established through
a verbal lease or rental agreement at the will of the landlord, as
long as the registered sex offender continues to reside within and
does not move to another restricted location in Marlborough different
from the permanent residence established prior to the effective date
of this chapter.
(2)
The registered sex offender is a minor living with his or her parent(s) or legal guardian(s), which parent(s) or legal guardian(s) has(have) established a permanent residence pursuant to § 517-3C(1).
(3)
The school, day-care center, park, recreational facility,
elderly housing facility or facility for the mentally retarded within
1,000 feet of the registered sex offender's permanent residence was
opened after the registered sex offender established the permanent
residence.
D.
Forfeiture of exception. If, either after the effective date of this chapter or after a new school, day-care center, park, recreational facility, elderly housing facility or facility for the mentally retarded opens, a complaint or an indictment is issued by a court against a registered sex offender otherwise enjoying an exception under Subsection C that such sex offender has committed another sex offense, he/she will immediately forfeit that exception and be required to comply with this section.
E.
Notice to move. A registered sex offender who resides
on a permanent or temporary basis within 1,000 feet of any new school,
day-care center, park, recreational facility, elderly housing facility
or facility for the mentally retarded shall be in violation of this
section and shall, within 30 days of receipt of written notice of
the registered sex offender's noncompliance with this chapter, move
from said location to a new location, but said location may not be
within 1,000 feet of any new school, day-care center, park, recreational
facility, elderly housing facility or facility for the mentally retarded.
It shall constitute a separate violation for each day beyond the 30
days the registered sex offender continues to reside within 1,000
feet of any new school, day-care center, park, recreational facility,
elderly housing facility or facility for the mentally retarded. Furthermore,
it shall be a violation each day that a registered sex offender shall
move from one location in the City to another that is within 1,000
feet of any new school, day-care center, park, recreational facility,
elderly housing facility or facility for the mentally retarded.
F.
Penalties. Any violation of this section shall be
enforced by noncriminal disposition
pursuant to MGL c. 40, § 21D, as follows:
(1)
First offense by registered sex offender: noncriminal
fine of $150 and notification to offender that he/she has 30 days
to move.
(2)
Subsequent offense by registered sex offender: noncriminal
fine of $300 and notification to offender's parole officer and/or
probation officer, and the commonwealth's Sex Offender Registry Board,
that the sex offender has violated a municipal ordinance.
A.
Prohibitions.
(1)
A registered sex offender is prohibited from entering
upon the premises of a school or day-care center unless previously
authorized specifically in writing by the school administration or
day-care center owner.
(2)
A registered sex offender is prohibited from entering
upon the premises of an elderly housing facility or facility for the
mentally retarded unless previously authorized in writing by the on-site
manager of the elderly housing facility or facility for the mentally
retarded.
(3)
A registered sex offender is prohibited from entering
upon the premises of a park or any recreational facility.
(4)
A registered sex offender, after having received notice
from the Marlborough Police Department that he/she is loitering by
having remained for more than 15 minutes within a five-hundred-foot
distance of a school, a day-care center, a park, any recreational
facility, elderly housing facility or facility for the mentally retarded,
is prohibited from continuing to so loiter. For purposes of determining
the minimum distance separation under this section, the distance shall
be measured by following a straight line from the registered sex offender
to the outer property line of the school, a day-care center, a park,
any recreational facility, elderly housing facility or facility for
the mentally retarded.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
(5)
A registered sex offender, after having received notice
from the Marlborough Police Department that he/she is loitering by
having remained for more than 15 minutes within 500 feet of a school
bus stop, is prohibited from continuing to so loiter; provided, however,
that this prohibition shall not apply on days when the schools within
the City of Marlborough are not in session.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
C.
Penalties. Any violation of this section may be enforced
by noncriminal disposition pursuant to MGL c. 40, § 21D,
resulting in a noncriminal fine of $150 for a first violation and
a noncriminal fine of $300 for each additional violation of this section.
A registered sex offender commits a separate offense for each and
every violation of this section.
[Amended 10-5-2009 by Ord. No. 09-1002289B]
The provisions of this chapter shall not be
applicable to registered sex offenders incarcerated in any facilities
owned, maintained and/or operated by the City of Marlborough.
A.
The Marlborough Police Department shall be charged
with the enforcement of this chapter.
B.
A written list describing the prohibited areas defined
in this chapter inclusive of school bus stops, as well as a map depicting
the residency restriction areas and a map depicting the safety zones
exclusive of school bus stops, shall be created by the City and maintained
by the Marlborough Department of Public Works. As to school bus stops,
the list and not the map depicting the safety zones shall govern.
The City shall review both the list and the maps no less than annually
for changes. The list, the maps and a copy of this chapter will be
available to the public at the Marlborough Police Department and Marlborough
City Clerk's office, and on the City of Marlborough's website.
