Dover's City Council has taken action its members hope will end a lawsuit brought against the city brought by a convicted sex offender who contends a 2012 ordinance limiting where he could live was unconstitutional.
The suit was filed by the American Civil Liberties Union on behalf of convicted sex offender Michael A. Justice, 45, who had been convicted in 2006 of fourth-degree rape.
In April 2012, council decided to amend the Dover Code to restrict registered sex offenders from living within 500 feet of a commercial daycare facility.
The ACLU argued that provision was unconstitutional because it punished Justice under a law that was not in effect at the time he committed the crime.
The Constitution, argued ACLU attorney Richard Morse, prohibits ex post facto, or retroactive punishment.
In addition to establishing the restriction, the law also required sex offenders already living within the 500-foot limit to move outside that boundary within one year. According to the lawsuit, even though the daycare center had been established long before Justice moved to within its vicinity, the fact that he was living within the established boundary when the law was approved should have made it null and void.
After council approved the ordinance, Justice received a letter from the Dover Police Department ordering him to vacate the apartment, which he shared with his mother, by April 9, 2013. Failure to do so was punishable by a $500 fine for every day he remained in the apartment. After the lawsuit was filed, however, Morse and city attorneys agreed to suspend the fines until the lawsuit was settled.
Justice did not ask for monetary compensation in the suit other than reimbursement of attorney fees and costs.
Council members discussed the situation in a short executive session Tuesday night following their regular council meeting. Returning to public session, they agreed, by a 6-2 vote to change the ordinance, with councilmen Sean Lynn and Adam Perza objecting.
The revised language states that any sex offender who lived or worked with 500 feet of a daycare center as of the day the ordinance was adopted would have been permitted to keep that home or job.
If the offender subsequently moved or changed jobs however, he or she would be subject to the ordinance.
In an email to Morse, Deputy City Solicitor William W. Pepper Sr. said the revised ordinance would be introduced at the June 10 council meeting and, if approved, adopted at the June 24 session.
For all practical purposes, that would end the lawsuit, Morse said.
Morse added he has talked to Justice since the council made its decision, but could not reveal any details of that discussion.