Associations want to know what responsibility they and the board of directors have to disclose the residence within the subdivision of a registered sex offender, as disclosed by the website maintained by the Office of the Attorney General of the State of California. They also ask whether the Association should allow residents of the community to post information concerning registered sex offenders living within the subdivision on the Association bulletin board or other community facility, or to put the information in the newsletter.
For the reasons that follow, it is advisable that directors and managers not disseminate information to the residents of the community concerning the fact that a registered sex offender lives in the community, provided that the Association, its officers, directors and agents have no information that persons are at risk as a consequence of the presence of the sex offender in the community. It is also advisable that the association should not allow residents in the community to post information concerning the identity of the registered sex offenders on the common area bulletin board or other common facilities or in the newsletter. However, it is good practice for the board of directors to periodically distribute to the members public safety information, which can include the address for the Megan’s Law Website. While the Association is not responsible for individual communications by members, whether by word of mouth or leaflets, concerning information they may perceive as relevant to their security, the information about registered sex offenders should not be furnished by the Association, or supported in any way, such as by organizing the distribution of the information or copying of fliers.
California Penal Code Section 290.46
California Penal Code Section 290.46 authorizes the Internet disclosure of information concerning registered sex offenders. There are several important aspects of this law.
First, sub-sections (h)(1) and (2) make it a crime to use the information disclosed in the Internet website to commit a misdemeanor or a felony. The Association and Board Members are therefore exposed to criminal liability if they are involved in the misuse of the information in ways that could be construed as a misdemeanor or felony.
Under sub-paragraph (j)(1), a person is authorized to use information disclosed pursuant to the statute only to protect a person at risk. Accordingly, it is a violation of the law for any officers, directors or agents of an association to use any of the information from the Megan’s Law Website other than to protect a person at risk. Should a registered sex offender living in the community engage in acts which are perceived to create a risk to the community, disclosure of additional information by the association should be legally evaluated. The challenge is to evaluate when a registered sex offender may present a risk to a resident of the association.
Sub-paragraph (j)(2)(G) states that except for information used to protect a person at risk, it is unlawful to use any of the information disclosed by the Internet website for purposes relating to housing or accommodations. The violation of this prohibition exposes the disclosing party to actual damages, treble damages, attorney’s fees, exemplary damages or a civil penalty not exceeding Twenty-Five Thousand Dollars ($25,000).
The provisions of Section 290.46 concerning the Megan’s Law Website parallel Penal Code Section 290.45 concerning the operation by the Department of Justice of a 900 telephone number wherein members of the public may call and inquire whether a named individual is a registered sex offender.
California Penal Code Section 290.45 specifically permits a peace officer to disclose information about a registered sex offender when a peace officer reasonably suspects, based upon information that has come to his or her attention, through information provided by any peace officer or member of the public, that a child or other person may be at risk from a sex offender convicted of specified crimes. The law permits the law enforcement agency to distribute information it deems relevant and necessary to protect the public under the circumstances, including schools and daycare centers. This law permits the law enforcement agency to authorize additional persons to make such disclosures under some circumstances. It is apparent from this law that the Legislature has created a highly detailed scheme with respect to the control and disclosure of information relating to registered sex offenders. The authority of police and law enforcement agencies to disclose such information greatly exceeds those of private citizens who may learn the identity of the registered sex offender through the A900″ number of the website. It appears the intention of the Legislature that the website, like the 900 number, be used solely as a means for individuals to act for their own protection, not to become instruments of communication of the information to third parties.
Association’s Duty to Prevent Criminal Activity on the Common Area
An issue related to the presence of registered sex offenders in the community is the scope of the duty of the Association to prevent a criminal attack on the common area. In this regard, the California courts have stated that there must be a balancing analysis of the risks and burdens present in a given case to determine whether a specific safety measure should or should not be imposed on the property owner. See generally, Vasquez v. Residential Investments, Inc., 118 Cal.App.4th 269 (2004). The main factors to be considered concerning the duty owed by the property owner are the foreseeability of the harm and the burden on the property owner created by the duty to protect against harm. For example, where harm can be prevented by simple means, a lesser degree of harm by foreseeable criminal conduct may be required. See generally, Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 678-679 (1993). Factors that must be considered in determining whether the owner has a duty to take reasonable measures to prevent criminal assaults include notice of prior similar incidents occurring on the premises, evidence of other criminal conduct on the premises which is not similar in nature to the assault in question, the crime rate in the surrounding neighborhood and other specific factors. In the Ann M. case, the Court concluded that the cost and burden of hiring security guards were so substantial, that the high degree of foreseeability of harm was required for a court to impose the necessity of security guards, and that this duty of care would rarely, if ever, arise in the absence of prior similar incidents of violent crime upon the owner’s premises. Ibid, 679.
In Sharon P. v. Arman, Ltd., 21 Cal. 4th 1181 (1999), the California Supreme Court held that even if a high degree of foreseeability of criminal attack could not be established, the owner was still required to provide protection by simple and less burdensome means, including improving lighting and cleanliness, hooking up an already installed security camera over the elevator, and requiring existing personnel to walk through a parking garage periodically, because it was foreseeable that there would be violent third party crimes in underground garages.
It is the obligation of the association to take reasonable measures to prevent foreseeable criminal attack on the common area, with the measures ranging from minimally burdensome to significantly burdensome, depending upon the foreseeability of the harm. In assessing liability, the court must also identify the nature of the third party conduct that the plaintiff contends could have been prevented had the owner taken proposed measures, and to assess how foreseeable it was that this conduct would occur. The courts have stated that the more certain the likelihood of harm, the higher the burden a court will impose on a property owner to prevent it, and the less foreseeable the harm, the lower the burden the court will place on the owner.
Under Penal Code Section 290.46 relating to the Megan’s Law website, associations should not distribute information to the members concerning any residents of the subdivision who are registered sex offenders, as this would violate their right to housing and housing accommodations. It is permissible for the Association to notify the members generally regarding public security numbers and services, such as the police department and the existence of the website. Law enforcement officials have authority to make disclosures and can be encouraged to do so. The Association should not lend its resources to owners who wish to publicize the names of registered sex offenders in the community, such as by use of the common area bulletin board, newsletter or other facilities.
However, should the Association acquire information regarding the existence of a risk to persons on the property from either residents or third parties, it has a duty to take safety measures in proportion to the foreseeability of the risk and other pertinent background facts and circumstances. Such security measures should be coordinated between the board of directors, police department and a security consultant.
In the unexpected event that an owner posts a sign on the owner’s property, such as in a window or on an exterior wall, relating to the presence of a registered sex offender in the association, the board of directors should obtain legal advice based on the potential rights of members California Civil Code Section 1353.6(a) to post noncommercial signs of certain dimension, content and construction which do not violate local, state or federal law.