07/26/2011
By LUCIAN McCARTY
BALLSTON SPA — Sex offenders can move more freely through Saratoga County now that County Court Judge Jerry J. Scarano has struck down a county law restricting where registered sex offenders are permitted to live and work.
In his decision, Scarano said the county cannot enforce the law due to the “Doctrine of Pre-emption” — meaning the state has already set clear guidelines for where sex offenders can and cannot live and the county law cannot supersede them.
The county law, passed in 2006, restricted all sex offenders from living or working within 1,000 feet of a school, child care facility, park, playground, youth center or swimming pool.
Saratoga County Attorney Stephen Dorsey explained that the state’s law is less restrictive in terms of where offenders can live. It only limits the residences of level-3 sex offenders (the most dangerous) and level-2 sex offenders (whose victims were minors), and says they must stay 1,000 feet from schools.
“Our law also applied to day-cares, playgrounds and parks,” Dorsey said, adding that it also limits employment, something the state does not address.
Scarano struck down the law because the state has “assumed full regulatory responsibility” over sex offenders, meaning it violates the Doctrine of State Pre-emption.
“The New York State Legislature has enacted a comprehensive and detailed regulatory scheme pertaining to convicted sex offenders which clearly evinces its intent to occupy the entire field,” he said.
In other words, Scarano struck it down because the state has clearly assumed control of regulating sex offenders, so the local or county municipalities have no right to enact laws to that end.
Although an attorney argued in favor of the local law on behalf of the county, Dorsey said he will recommend to the county Board of Supervisors that they not appeal the judge’s decision.
“The decision is consistent with decisions in Albany, Schenectady and Rensselaer counties,” he said.
The attorney said the county initially based its law on similar laws that had held up to court challenges in other states, but “the New York state courts have taken a different approach. The pendulum is swinging the other way.”
Dorsey also pointed out that Saratoga County was “one of the last counties to have the local law struck down.”
Examination of the county law began when [name withheld] was charged under local law 5-2006 because he resided or worked within 1,000 feet of St. Mary’s Church Elementary School in Ballston Spa. He challenged the law itself as his defense, but was convicted in a local court. He then appealed to Saratoga County Court and Scarano ruled in his favor.
Dorsey said he is drafting a letter to send out to local law enforcement agencies to cease their enforcement of the law.
