Is Intracoastal big enough barrier to sex offender?
By Larry Barszewski, Sun Sentinel
January 19, 2014
The city says a registered sex offender lives too close to Birch State Park, even though a child at the park would have to swim or kayak almost 400 feet across the Intracoastal Waterway to pass by his Coral Ridge home.
By foot or bike, the distance is closer to 1.5 miles.
David Barcenas, 51, is suing the city in federal court, saying he should not have to move out of the home he has lived in with his domestic partner for 18 years.
City officials say they are following the 2007 law that prohibits sexual offenders from living within 1,400 feet of a park, school or other spot where children are likely to gather. They say that distance is determined "as the crow flies."
"Looking at this case through a rational lens, the conclusion is inescapable that this ordinance should not apply to David Barcenas," said Brian Bieber, his attorney.
But it's common for sexual offender laws to take a straight-line approach when determining where an offender can and cannot live.
"It doesn't make a difference if a park, playground or school is inaccessible in a pragmatic way, if it's within the 1,400 feet, then it's off limits," said Jill Levenson, a Lynn University professor who has researched sex offender issues.
Distance requirements for sexual offenders have been controversial for years, as cities pass new restrictions and effectively zone offenders out of their communities, forcing many to live under bridges or crowd into limited areas.
The state's sexual offender registry shows more than 100 offenders - mostly transients - living within a quarter-mile of the Budget Inn in the 2700 block of North Federal Highway in Fort Lauderdale. The registry currently lists six offenders living at the Inn, which had 24 there at one time in 2011.
Levenson said many of those offenders aren't homeless. Instead, they live elsewhere but sleep in the area because residency rules are tied to a 10 p.m. to 6 a.m. curfew, she said.
A recent study she worked on shows all but one Broward government has imposed restrictions greater than the state's 1,000-foot minimum, as have 17 Palm Beach County governments. Many go further than Fort Lauderdale, imposing 2,500-foot distances between places where offenders live and children gather.
Levenson said there are good intentions behind the laws - protecting children - but researchers have found no proof the laws have done that.
"Some researchers have argued that policies restricting where sex offenders live, rather than where they go and what they do, ignore empirical evidence and thus misdirect prevention strategies," says the 2013 study of transient sexual offenders and residence restrictions in Florida that she co-authored.
In the Barcenas case, law enforcement officials searched his house in 2009 and found 30 images of child pornography posted on the walls of one room, according to court documents. Two years later, he was charged with one count of possessing child pornography. He pleaded guilty and in January 2012 and was sentenced to 18 months in prison.
Before being released in June, Barcenas sought to be allowed to return to his home despite the city law. U.S. District Judge Kathleen Williams granted his request, Bieber said, requiring that a fence be placed on his property running alongside the water as an added precaution separating him from the park.
The city, however, insists that Barcenas move out of the Northeast 17th Street home. Assistant City Attorney Brad Weissman said he could not comment on the judge's decision because of the pending litigation.
Even if the residency restrictions are conceded, Bieber said the city's ordinance allows offenders to stay in their homes if they lived there prior to the city law taking effect in 2007.
But Weissman said that does not apply to people convicted of sexual crimes after the law took effect. People have been on notice since then that their residency can be restricted if they commit an offense, he said.
Levenson said there are better approaches to dealing with sexual offenders, such as subjecting them to anti-loitering laws where children congregate, rather than pushing them out into the streets.
"If we want criminal offenders to lead a law-abiding life, they really need opportunities to reintegrate successfully into the community," she said.