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Article
Courtesy of The Orlando Sentinel By Joseph
Freeman Published
August 10, 2011
Residents of a gated community in southwest Orange County are voting on whether to prevent registered sex offenders from living there — a move that attorneys are calling highly unusual.
The new homeowners-association rule would bar offenders from living in Keene's Pointe, a community of about 1,000 single-family homes just south of Windermere.
Russ Blackwell, president of the Keene's Pointe Homeowners Association, went to Windermere's Town Council meeting Tuesday night to answer questions about the proposal. Although Windermere has no say in the matter, Blackwell said he went as a courtesy because the two communities are neighbors.
The proposed rule would prevent a sex offender from living within 2,500 feet of a playground or a school bus stop — limits that would keep offenders out of the entire community. The rule would not keep offenders from owning property in Keene's Pointe, however. It would not be retroactive and would apply only to future property transactions.
The new rule would be "very rare" for homeowner associations, said Tara Lyn Barrett, who specializes in community association law for the Orlando firm Brown, Garganese, Weiss & D'Agresta.
In most cases, residency rules for sex offenders are "regulated enough by state and local ordinances," Barrett said. "We represent about 60 associations, and not one of our convenants says anything in regard to that."
Blackwell said the idea came about when residents discovered that a sex offender was living in the community, even though no incidents took place.
"There are a lot of children in Keene's Pointe — a lot of playgrounds and bus stops," he said.
Windermere officials listened with interest to Blackwell explain the proposal, and seemed willing to explore adopting one of their own. Town Council members directed Police Chief Mike McCoy to research what other municipalities have passed. McCoy said that one issue to think about is enforcement. Would there be a fine? An arrest? He did think it was a "very good thing for the city of Windermere to have on the books."
The election in Keene's Pointe began late last week, and homeowners can vote online or by mail. Results are expected at the association's annual meeting Nov. 17.
Local governments in Florida, such as Winter Park and Ormond Beach, have passed similar distance restrictions. Courts have supported them, even when the ordinances have exceeded the state law that keeps convicted sexual predators from living within 1,000 feet of any school, day-care center, park or playground.
The Florida Department of Law Enforcement maintains a database of sexual offenders that provides searchable information by name and neighborhood.
A Third District Court of Appeal ruling in May 2010 found that a Miami-Dade County ordinance prohibiting offenders from living within 2,500 feet of a school was "not invalidated by Florida law and therefore remains in full force and effect."
"The Legislature has not clearly pre-empted local regulation of the field of the post-conviction conduct of sexual predators," the ruling stated.
Although cities and counties have passed ordinances going beyond the state law, it has been virtually unheard of for homeowner associations in Florida to do the same.
"This is an emerging trend in municipal government and starting to be addressed in associations,as well," said Neal McCulloh, the attorney for Keene's Pointe who drafted the rule. "We're probably going to raise this to all of our clients."
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