S-1886

AN ACT Relating to the siting and oversight of facilities for the treatment and housing of sexually violent predators; amending RCW 71.09.020 and 36.70A.200; adding new sections to chapter 71.09 RCW; adding a new section to chapter 36.70A RCW; adding a new section to chapter 36.70 RCW; creating new sections; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature recognizes that the individualized treatment required for constitutional civil commitment includes the realistic possibility of release to a less restrictive alternative than total confinement in appropriate cases. The legislature finds that most persons civilly committed under chapter 71.09 RCW who become eligible for release to a less restrictive alternative do not have appropriate housing and that the lack of housing may unduly restrict the person's ability to move to a less restrictive alternative placement. The legislature also finds that these facilities are essential public facilities, are subject to public protest upon siting, and that some cities and counties have imposed moratoriums on zoning and permitting processes. The legislature further finds that this reaction hampers its ability and the ability of the department of social and health services to comply with federal court orders to create housing for less restrictive alternative placements. The legislature, therefore, intends to provide statewide guidance for the siting of less restrictive alternative housing for persons placed on less restrictive alternative placements under chapter 71.09 RCW.

(2) It is the intent of the legislature to:

(a) Enhance public safety and maximize the potential for successful treatment of sexually violent predators through the secure and tightly controlled use of less restrictive alternatives in community-based secure housing facilities;

(b) Maximize the safety of communities in which secure facilities are located and ensure public input into secure housing facilities by enabling community participation in decisions involving these essential public facilities;

(c) Comply with federal court orders and require the siting of less restrictive alternative housing facilities and to preclude the possibility that the department of social and health services would be unable to site a facility due to local moratoriums and requirements;

(d) Require the department to work with local jurisdictions to address specific local concerns and develop zoning requirements and development regulations that balance the need for siting with public safety; and

(e) Improve public safety by strengthening the safeguards in placement, oversight, and monitoring of the persons released to a less restrictive alternative in a secure residential facility, and by establishing minimum standards for the siting and operation of secure residential facilities.

(3) The legislature finds that community participation in siting and oversight is vital to the success of secure facilities for less restrictive alternatives.

Sec. 2. RCW 71.09.020 and 1995 c 216 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) (("Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

(2) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.)) "Department" means the department of social and health services.

(2) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.

(3) "Likely to engage in predatory acts of sexual violence" means that the person more probably than not will engage in such acts. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030.

(4) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

(5) "Predatory" means acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

((~~(5)~~)) (6) "Recent overt act" means any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.

((~~(6)~~)) (7) "Risk potential activity" or "risk potential facility" means an activity or facility that provides a higher incidence of risk to the public from persons conditionally released from the special commitment center. Risk potential activities and facilities include: Public and private schools, school bus stops, licensed day care and preschool facilities, public parks, publicly dedicated trails, sports fields, playgrounds, recreational and community centers, churches, synagogues, temples, mosques, and public libraries.

(8) "Secretary" means the secretary of social and health services or the secretary's designee.

(9) "Secure facility" or "secure residential facility" means a residential facility for one or more persons civilly committed under this chapter that has supervision, perimeter controls, and either provides or ensures the provision of sex offender treatment services. Secure facilities include but are not limited to the special commitment center, any step-down facility, and any community-based housing established under this chapter and operated by the secretary or under contract with the secretary for the housing or residential treatment of persons conditionally released from the special commitment center.

(10) "Sexually violent offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the first degree, rape in the second degree by forcible compulsion, rape of a child in the first or second degree, statutory rape in the first or second degree, indecent liberties by forcible compulsion, indecent liberties against a child under age fourteen, incest against a child under age fourteen, or child molestation in the first or second degree; (b) a felony offense in effect at any time prior to July 1, 1990, that is comparable to a sexually violent offense as defined in (a) of this subsection, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection; (c) an act of murder in the first or second degree, assault in the first or second degree, assault of a child in the first or second degree, kidnapping in the first or second degree, burglary in the first degree, residential burglary, or unlawful imprisonment, which act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to chapter 71.09 RCW, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28 RCW, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in (a), (b), or (c) of this subsection.

((~~(7) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.~~

~~(8) "Secretary" means the secretary of social and health services or his or her designee.~~))

(11) "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

(12) "Step-down facility" means any secure facility that provides residence for more than five persons as a transition from the special commitment center to a less restrictive placement in the community.

NEW SECTION. Sec. 3. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall adopt rules that balance the average response time of emergency services to the general area of the proposed facility against the proximity of the proposed site to risk potential activities and facilities in existence at the time the site is listed for consideration.

(2) In balancing the competing criteria of proximity and response time the rule shall endeavor to achieve an average law enforcement response time not greater than five minutes and in no case shall the rule permit location of a facility adjacent to, immediately across a street or parking lot from, or within the line of sight of a risk potential activity or facility in existence at the time a site is listed for consideration. "Within the line of sight" means that it is possible to reasonably visually distinguish and recognize individuals.

(3) The rule shall require that great weight be given to sites that are the farthest removed from any risk potential activity.

(4) The rule shall specify how distance from the location is measured and any variations in the measurement based on the size of the property within which a proposed facility is to be located.

(5) The rule shall establish a method to analyze and compare the criteria for each site in terms of public safety and security, site characteristics, and program components. In making a decision regarding a site following the analysis and comparison, the secretary shall give priority to public safety and security considerations. The analysis and comparison of the criteria are to be documented and made available at the public hearings prescribed in section 7 of this act.

(6) The rule shall contain a schedule of monetary penalties for contractors operating secure facilities, not to exceed the total compensation set forth in the contract, and include provisions for termination of all contracts with a service provider that has repeated or serious violations of this section.

NEW SECTION. Sec. 4. By December 1, 2001, the secretary of the department of social and health services shall determine and report to the legislature whether there is a significant group of potential locations that are outside of a five-minute law enforcement response time zone that are more than two miles from any risk potential activities and whether, in the secretary's judgment, the legislature should require the rule to be revised to permit consideration of these properties.

NEW SECTION. Sec. 5. A new section is added to chapter 71.09 RCW to read as follows:

The secretary shall establish criteria for the siting of secure residential facilities which shall include at least the following minimum requirements:

(1) Any real property listed for consideration for the location of or use as a secure facility must meet all of the following criteria:

(a) The proximity and response time criteria established under section 3 of this act;

(b) The site or building is available for lease for the anticipated use period or for purchase;

(d) Appropriate mental health and sex offender treatment providers must be available within a reasonable commute; and

(e) Appropriate permitting for a secure facility must be possible under the zoning code of the local jurisdiction.

(2) For sites which meet the criteria of subsection (1) of this section, the department shall analyze and compare the criteria in subsections (3) through (5) of this section using the method established in section 3 of this act.

(3) Public safety and security criteria shall include at least the following:

(a) Whether limited visibility between the facility and adjacent properties can be achieved prior to placement of any person;

(b) The distance from, and number of, risk potential activities and facilities, as measured using the rules adopted under section 3 of this act;

(d) Suitability of the buildings to be used for the secure facility with regard to existing or feasibly modified features; and

(e) The availability of electronic monitoring that allows a resident's location to be determined with specificity.

(4) Site characteristics criteria shall include at least the following:

(a) Reasonableness of rental, lease, or sale terms including length and renewability of a lease or rental agreement;

(b) Traffic and access patterns associated with the real property;

(d) A contractor or contractors are available to install, monitor, and repair the necessary security and alarm systems.

(5) Program characteristics criteria shall include at least the following:

(a) Reasonable proximity to available medical, mental health, sex offender, and chemical dependency treatment providers and facilities;

(b) Suitability of the location for programming, staffing, and support considerations;

(d) In facilities housing five or fewer residents, a minimum staffing ratio of one staff per resident during normal waking hours and two awake staff during normal sleeping hours. In no case shall all staff on a shift be persons classified as entry or trainee level staff.

(6) Unless otherwise ordered by the court, at least one staff member, or other court-authorized and department-approved person must escort each resident when the resident leaves the site for appointments, employment, or other approved activities. Escorting persons must supervise the resident closely and maintain close proximity to the resident.

(7) For purposes of this section "available" or "availability" of qualified treatment providers includes provider qualifications and willingness to provide services, average commute time, and cost of services.

NEW SECTION. Sec. 6. A new section is added to chapter 71.09 RCW to read as follows:

Security systems for secure residential facilities housing five or fewer residents shall meet the following minimum qualifications:

(1)(a) The security panel must be a commercial grade panel with tamper-proof switches and a key-lock to prevent unauthorized access.

(b) There must be an emergency electrical supply system which shall include a battery back-up system and a generator.

(2) The system must include personal panic devices for all staff.

(3) The security system must be capable of being monitored and signaled either by telephone through either a land or cellular telephone system or by private radio network in the event of a total dial-tone failure or through equivalent technologies.

(4) The department shall issue photo-identification badges to all staff which must be worn at all times.

NEW SECTION. Sec. 7. A new section is added to chapter 71.09 RCW to read as follows:

(1) Whenever the department of social and health services operates, or the secretary enters a contract to operate, a secure facility, the secure facility may be operated only after the public notification and opportunities for review and comment as required by this section.

(2) The secretary shall establish a process for early and continuous public participation in establishing or relocating secure facilities. The process shall include, at a minimum, public meetings in the local communities affected, as well as opportunities for written and oral comments, in the following manner:

(a) If there are more than three sites initially selected as potential locations and the selection process by the secretary or a service provider reduces the number of possible sites for a secure facility to no fewer than three, the secretary or the chief operating officer of the service provider shall notify the public of the possible siting and hold at least two public hearings in each community where a secure facility may be sited.

(b) When the secretary or service provider has determined the secure facility's location, the secretary or the chief operating officer of the service provider shall hold at least one additional public hearing in the community where the secure facility will be sited.

(c) When the secretary has entered negotiations with a service provider and only one site is under consideration, then at least two public hearings shall be held.

(d) To provide adequate notice of, and opportunity for interested persons to comment on, a proposed location, the secretary or the chief operating officer of the service provider shall provide at least fourteen days' advance notice of the meeting to all newspapers of general circulation in the community, all radio and television stations generally available to persons in the community, any school district in which the secure facility would be sited or whose boundary is within two miles of a proposed secure facility, any library district in which the secure facility would be sited, local business or fraternal organizations that request notification from the secretary or agency, and any person or property owner within a one-half mile radius of the proposed secure facility. Before initiating this process, the department of social and health services shall contact local government planning agencies in the communities containing the proposed secure facility. The department of social and health services shall coordinate with local government agencies to ensure that opportunities are provided for effective citizen input and to reduce the duplication of notice and meetings.

(3) This section applies only to secure facilities sited after the effective date of this act.

NEW SECTION. Sec. 8. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall develop a process with local governments that allows each community in which a secure residential facility is located to establish operational advisory boards for the secure facilities. The department of social and health services may conduct community awareness activities to publicize this opportunity. The operational advisory boards developed under this section shall be implemented following the decision to locate a secure facility in a particular community.

(2) The operational advisory boards may review and make recommendations regarding the security and operations of the secure facility and conditions or modifications necessary with relation to any person who the secretary proposes to place in the secure facility.

(3) The operational advisory boards, their members, and any agency represented by a member shall not be liable in any cause of action as a result of its recommendations unless the advisory board acts with gross negligence or bad faith in making a recommendation.

(4) Members of a board shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 9. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall adopt a violation reporting policy for persons conditionally released to secure placements in secure facilities. The policy shall require written documentation by the department of social and health services and service providers of all violations of conditions set by the department of social and health services, the department of corrections, or the court and establish criteria for returning a violator to the special commitment center or a step-down facility. Any conditionally released person who commits a serious violation of conditions shall be returned to the special commitment center and the court shall be notified immediately and the court shall initiate proceedings under RCW 71.09.098 to revoke or modify the less restrictive alternative placement unless the department makes a good cause showing why proceedings should not be initiated. For the purposes of this section, "serious violation" includes but is not limited to:

(a) The commission of any criminal offense;

(b) Any unlawful use or possession of a controlled substance; and

(c) Any violation of conditions targeted to address the person's documented pattern of offense that increases the risk to public safety.

When a person is released to a less restrictive alternative in a secure residential facility under this chapter and is under the supervision of the department of corrections, notice of any violation of the person's conditions of release must also be made to the department of corrections.

(2) Whenever the secretary contracts with a service provider to operate a secure facility, the contract shall include a requirement that the service provider must report to the department of social and health services any known violation of conditions committed by any resident of the secure facility.

(3) The secretary shall document in writing all violations, penalties, actions by the department of social and health services to remove persons from a secure residential facility, and contract terminations. The secretary shall give great weight to a service provider's record of violations, penalties, actions by the department of social and health services or the department of corrections to remove persons from a secure facility, and contract terminations in determining to execute, renew, or renegotiate a contract with a service provider.

NEW SECTION. Sec. 10. A new section is added to chapter 36.70A RCW to read as follows:

(1) On or before September 1, 2002, the legislative authority of each county in the state shall adopt a countywide planning policy to establish the process for siting and to provide for an equitable distribution of secure residential facilities as defined in RCW 71.09.020 within the county and the cities located in whole or in part within the county. The countywide planning policy required by this section shall be adopted in cooperation with the cities located in whole or in part within the county. Counties planning under the growth management act may integrate the planning policy required in the section with their growth management act planning process.

(2) The department of social and health services shall be notified by each county of its intent to begin the countywide planning policy process required by this section and the department shall be invited to participate in this process.

(3) The countywide planning policy required by this section shall, at a minimum, address the following:

(a) The location of existing secure residential facilities;

(b) The social, economic, and other impacts of the existing secure residential facilities on the communities in which they are located and the incremental impacts of siting additional secure residential facilities in these communities;

(c) A proposed allocation for the siting of future secure residential facilities among the county and the cities located in whole or in part within the county; and

(d) Coordination of development regulations, including but not limited to zoning regulations and design standards, to ensure that the proposed allocation of future secure residential facilities can be achieved.

(4) The countywide planning policy required by this section shall:

(a) Be consistent with the siting criteria established pursuant to sections 3 and 5 through 7 of this act;

(b) Require any local conditional use permit or other development application process not to exceed sixty days in length and provide for an appeal process.

(5) Within six months of the date the countywide planning policy required by subsection (1) of this section is adopted, the county and each city within the county shall adopt development regulations implementing the policy adopted under this section through appropriate revisions to their comprehensive plan and development regulations.

NEW SECTION. Sec. 11. A new section is added to chapter 36.70 RCW to read as follows:

Counties planning under this chapter must adopt a countywide planning policy for the siting of secure residential facilities that complies with the timelines and requirements of section 10 of this act.

Sec. 12. RCW 36.70A.200 and 1998 c 171 s 3 are each amended to read as follows:

(1) The comprehensive plan of each county and city that is planning under this chapter shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, ((~~and~~)) group homes, and secure residential facilities as defined in RCW 71.09.020.

(2) The office of financial management shall maintain a list of those essential state public facilities that are required or likely to be built within the next six years. The office of financial management may at any time add facilities to the list. No local comprehensive plan or development regulation may preclude the siting of essential public facilities.

NEW SECTION. Sec. 13. A new section is added to chapter 71.09 RCW to read as follows:

Nothing in this act shall operate to restrict a court's authority to make less restrictive alternative placements to a committed person's individual residence. A court-ordered less restrictive alternative placement to a committed person's individual residence is not a less restrictive placement to a secure facility.

NEW SECTION. Sec. 14. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.