Reader Questions - Sex Offender in Association

Hi Kelly,

I first want to say I enjoy and appreciate reading your responses and advise on association issues.

I recently found out that the “manager” of the property is a registered sex offender. Some of the owners want to have the monthly HOA board meetings at the pool, but the management company has resisted. I am not sure if any of the board members know of the sex offender’s status.

Should this sex offender be outed to the board? What responsibilities does the board have about having a sex offender on property and engaging people with children?

Kindest Regards,

S.B., San Clemente

Dear S.B.,

California has a “Megan’s Law,” as do all 50 states. The law, found beginning at Penal Code 290, was adopted in 1996 after a tragedy in New Jersey in which a child, Megan Kanka, was lured to her death in July 1994 by a sex offender who lived just 90 feet away from her family’s front door. Nobody knew he had previous convictions for crimes against children. The Legislature expanded California’s Megan’s Law in 2004, establishing a web site to make the information much more accessible so consumers could check to see if there were offenders in their area. The law at Penal Code 290.46 provides for a web site with information on registered sex offenders. That site is www.meganslaw.ca.gov.

The site provides three levels of information, based upon the seriousness of offense. For the most serious types of offenses, the site includes the offender’s photograph, date of birth and registered address. The problem is that the web site gives just enough information to upset residents, but not enough information to allow people to take reasonable precautions.

According to Penal Code 290.4(d)(1), the information is provided to “protect a person at risk”. However, the site does not provide the date the offense occurred or the victim demographic information. This means that when looking at the web site, one cannot tell if the offense occurred 25 years ago or just last year. So is the risk as great? Furthermore, the lack of victim demographic (gender, age of victim) makes it difficult to determine who is at risk. Prosecutors will not reveal this information. Without any victim demographic, persons can only assume that everyone is at risk from a sex offender.

What can a landlord, HOA board or manager do regarding the revelation of a sex offender in the building? Apparently not much is allowed. Penal Code 290.4(d)(2) bars the use of the web site information to discriminate in credit, employment or housing. So, landlords and homeowner associations cannot ban sexual predators from their properties just because they are identified on the web site.

Can or should an association publicize to all members the fact that an offender is living in the association as tenant or owner? This would also seem obvious, but what can the association say without seeming to encourage retaliation against the offender?

This is a very troubling subject, and until the law provides more guidance to property owners, association boards should use great care and consult with their legal counsel as to what is reasonable and permissible in the circumstances. I deeply wish I could provide more clarity on this issue, but hope this helps.

Sincerely,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.