Associations Cannot Ban Sex Offenders from Community

Many condominium and homeowners’ associations worry about people who are registered as sex offenders under the Sexual Offender Registration and Notification Act (SORNA), usually referred to as “Megan’s Law.” Many associations I work with have considered a range of ideas, from not allowing Megan’s Law registrants to use the community pool all the way to not allowing Megan’s Law registrants to own or rent units in the community. Up until now, there has not been much legal guidance on what an association can and cannot do. A recent case, Lake Naomi Club, Inc. v. Rosado, is the first Pennsylvania case to address some of these questions.

What is Megan’s Law?

Megan’s Law requires people who are convicted of certain sexual crimes to register with the Pennsylvania State Police. Registration may include information on where the person lives and works, photos and physical descriptions of the person, and descriptions of the crime that triggered the registration. Depending on the “Tier” of the sexual offense, a person could be required to register on the Megan’s Law site for 10, 15 or 25 years, or for life.

Some of the worst offenders – defined as “Sexually Violent Predators” – trigger a community notification process. For these registrants, the police will provide notification to anyone who lives or works within 250 feet of the registrant’s home, or to the 25 closest residences. They also provide notice to local school districts, day cares and preschools.

Megan’s Law does not say where registrants can or cannot live or work. Other than notification for Sexually Violent Predators, Megan’s Law does not require the police to tell anyone when a registrant moves into the community. People can search for sexual offenders or request notifications through the State Police.

The Lake Naomi case.

Lake Naomi HOA amended its Declaration to say that no registered Tier III sex offender can reside in any home within the Community. The amendment was approved by over 70% of the Unit Owners. Mr. Rosado owned a home in Lake Naomi when the amendment was passed. The Association sued Rosado to keep him from living in his home.

The Commonwealth Court decided that the Association could not prohibit Megan’s Law registrants from living in the Community. The Court said that Megan’s Law and the Parole Board establish the statewide public policy that regulates where Megan’s Law registrants may live. No condominium or homeowners’ association is allowed to restrict where sex offenders can or cannot live.

Does this affect all association regulations?

This case makes it very clear that an association cannot ban Megan’s Law registrants from living in a community. This leaves the question of whether a Community can place any regulations or restrictions on Megan’s Law registrants. For example, can an association restrict registrants from using the community pool or gym?

The answer is not clear. On one hand, the Court’s opinion only deals with where a person can live. The opinion explains that releasing a sexual offender to his or her residence is a decision that is reserved to the Parole Board. This could mean that a pool regulation is allowed. After all, saying that someone cannot use an amenity does not restrict where a person can live and work.

On the other hand, some of the opinion relies on the principle of “preemption.”  That means that where the State has decided to regulate something, no one else is allowed to regulate that issue. This could mean that Megan’s Law and the Parole Board are the only people who are allowed to make any sort of regulation dealing with Megan’s Law registrants. This includes where registrants live, but it might also include any other kind of regulation.

I think that the Lake Naomi case does not prohibit regulations such as banning Megan’s Law registrants from using the Community amenities. There is a difference between taking away someone’s home and not letting them use the pool. The Court was not asked to consider a lesser restriction like a pool ban. If the Court is asked to rule on something like a pool ban in the future, it is hard to predict how the Court will rule. There is a good chance that the Court will strike down any regulation of sexual offenders. But there is also a possibility that the Court will say that lesser regulations, such as a pool regulation, do not interfere with the state policy of providing sexual offenders a stable environment to encourage rehabilitation.