Toledo's unconventional effort to move sex offenders away from its schools is unconstitutional, a local attorney argued in a motion filed yesterday in Toledo Municipal Court.
The tactic, attorney Scott Schwab wrote, "attempts to create a criminal statute in order to address a civil problem."
Understanding it, though, takes a bit of a history lesson in Ohio's Sex Offender Registration and Notification law, which has been tweaked several times since it was passed in 1997.
A portion of the law prohibits sex offenders from living within 1,000 feet of schools.
In addition, it allows local governments to ask a judge for injunctive relief - in other words, to seek a court order against defiant offenders.
But the civil process is long and tedious, and worse, often ignored by offenders, authorities in Ohio's larger cities have complained.
Last year, Toledo decided to take a shortcut.
The way the city's law director saw it, sex offenders who move into the restricted, 1,000-feet school perimeter also were violating Toledo's nuisance abatement code.
The code prohibits a property owner to operate or own a property in violation of the law.
Ordinarily, that part of the nuisance abatement code gives city officials some control over establishments that violated liquor codes or that allowed prostitution, and scofflaws can face jail time and fines.
The threat worked for the most part.
Sixty-eight of 85 sex offenders moved after they were threatened with nuisance abatement action.
The remainder are in various stages of the court process, according to Sue Frederick, Toledo's code enforcement manager.
Mr. Schwab, representing registered sex offender Richard Rost, yesterday challenged the use of the nuisance code against sex offenders as unconstitutional.
Mr. Schwab argued that the nuisance abatement code is "criminalized" because of possible jail sentences and cannot be used in civil procedures.
He further points out that the nuisance abatement law used by the city against sex offenders was passed in 2006, while Mr. Rost, who was convicted of having sex with a teenager, was classified in 2002.
He has met his requirements to register on time, but his house at 901 Clark St. is too close to Navarre Elementary School, according to the charges against him.
Neither Mr. Schwab nor Mr. Rost could be reached for comment yesterday.