Ft. Lauderdale, Florida Sex Offender Residency Restriction Declared Unconstitutional
The Ft Lauderdale Sex Offender Residency Restriction was declared unconstitutional. Wait… what?!?! A Florida SORR was declared unconstitutional?
YES! The municipal ordinance in the City of Ft. Lauderdale that prohibited registered sex offenders from living within 1400 feet of schools, parks, playgrounds, school bus stops, etc. was found to violate the Ex Post Facto Clause of the Constitution! Hold on… what? Are you serious?
YES! We’ve known for a while (since February 16th) but have been waiting to make the official announcement until we had an order back from the Judge. We just wanted to make 1000% sure. But we’re serious and excited! Many registrants in Fort Lauderdale, FIFTY PERCENT OF WHICH ARE HOMELESS because there’s virtually nowhere for them to live, are no longer subject to the City’s draconian and ineffective residency restrictions! But how did this happen?
Two brave registrants who were going to be kicked out of their Ft. Lauderdale homes stood up and said NO! After being charged with violating the City’s ordinance, they fought for their right to remain in their homes and fought the charge. Represented by Patrick Trese and Valerie Jonas (who represents us in our Internet Identifier case and who we retained for our Ex Post Facto challenge) they fought the charge and the Judge dismissed the violation, finding the ordinance unconstitutional on its face. So, what does this mean?
This means that the ordinance cannot be applied retroactively. More specifically, it doesn’t apply to people whose offenses pre-date the ordinance (2007). Anyone who offended after the ordinance was passed is still subject to the ordinance. So, can registrants with offenses before 2007 live anywhere in Ft. Lauderdale?
Not exactly… there’s one more caveat… Florida has a 1,000-foot State Statute, which was passed in 2004. So, to simplify; if your offense was after the Ft. Lauderdale ordinance was passed, you are subject to a 1,400 foot restriction in Ft Lauderdale. If your offense was before the Ft. Lauderdale ordinance, but after the State ordinance, you are subject to a 1,000 foot restriction. And, if your offense pre-dates the Florida State SORR (October 1, 2004), you are not subject to any residency restriction in Ft. Lauderdale.
Many of you may be asking, “so what about me? I don’t live in Ft. Lauderdale”. Well, although this is not a decision binding on the entire state, this decision is a first crack in the wall (more like a blow from a sledgehammer). Recall, we have a State statute, within the State we have multiple County ordinances and within each County there are multiple City ordinances. Although this is a win for the defendants at only the City level (albeit in one of the 10 most populous cities in Florida), it’s powerfully persuasive. We also all share the same State and Federal constitution. Also, recall we have an upcoming trial in a County challenge in Federal Court!
The bottom line is; this is a huge win for the two defendants, who stood up and risked criminal penalty and the attorneys who fought for them. In turn, it’s a huge win for all of us!
OrderGrantingDef’sMotiontoDismiss
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Hi all,
I’m a defense attorney whose client is faced with the residence restriction dilemma in Palm Beach. Our hurdle is obviously the state statute, in that according to PBSO, the residence is roughly 900 feet from a park.
Has anyone had to come up with some ideas regarding the measurement points that would allow us to argue the Sheriff’s measurement was too restrictive? The statute seems way too vague in saying the measuring point is from the “place of residence to the nearest boundary line of the park etc.” Does place of residence mean the structure or outer curtilage bla bla? Anyone have any thoughts or other creative ways to get our poor client home with his family?
Thanks so much in advance.
Mike
Mike – ACLU National defended plaintiffs challenging the Municipal SORR in Miami-Dade – that’s in the 11th Circuit now, as the case lost in the Southern District of FL. If you are looking for ideas for arguments, check the pleadings in that case (many of which are on this site or contact legal@floridaactioncommittee.org for guidance).
The case you are posting on was also challenging a Municipal SORR and it was in connection with a criminal charge (two defendants, actually but the case was consolidated into one).
You are subject to the STATE STATUTE SORR, which is somewhat of a different animal.
Pretty universally, the application of the SORRs are; from property boundary line to property boundary line (irrespective of whether the school itself sits 1001 feet inside the property boundary) and the measurement is a direct line “as the crow flies” (irrespective of whether an alligator filled moat, a 12 foot wall and 8 lanes of traffic are in between the two points and actual navigable distance is 10,000 feet).
So far the ACLU and others have taken up the challenge and had access to the best experts and not yet been successful. We can steer you in the direction of the experts, studies, research, etc. if you want to take a crack at the State Statute.
Mike, in Brevard County FL the measurement that probation uses is from property line to property line. To show how idiotic such a policy can be, there at one time was a childcare business in one of the spaces of Merritt Square Mall. The only space the childcare business could lay claim to was the four walls of their rented space, yet, Brevard County Probation took their measurements from the outer edge of the mall parking lot, which of course, the business had no claim to. Thankfully that business…as best as I know…is no longer there.
Mike,
WHEN was he “officially off paper”??. I was off paper in 2000, and the statute for Broward County was amended in 2005 to where I was grandfathered-in as being able to be less than 4 doors down from the biggest park in Broward County.
When I asked the Sheriff if this law applied to me, he replied ‘Oh you found out about that little change. YES, you CAN go into that park’
The cops will withhold information Mr. Lawyer if it suits “their narrative”. Like the “Halloween signs” the cops TELL YOU, you HAVE to put up—- you DONT!!! If you are “off paper” you can put up decorations (Christmas, Halloween, Easter, 4th of July with NO repercussions as long as you are “off paper” and in BROWARD COUNTY!!
Mike, Read the decision in Alvarado v. State, 205 So. 3d 810 – Fla: Dist. Court of Appeals, 2nd Dist. 2016 for an idea of how frustrating the situation is for all, including judges.
I think that I have asked this before, but I will ask it again. Has anyone challenged or thought to challenge the STATE statute that enabled these counties and municipalities to impose these ex post facto restrictions that the state CLEARLY determined that it could not impose on anyone convicted prior to 2004?
Here is the deal. A regulatory Odinance, does not violate the Federal or State Ex post Facto laws simply because they are considered remedial not punishment.
Now However, both State and Federal Courts have been ruling
that regardless of intent SORR are a form of punishment resembling banishment and violative of ex post facto provisions.
In the State of Florida, it’s constitution forbids local governments from enacting any forms of punishment. That power lies with the State legislative branch of Government
It is clear on it’s face that the State intended 721.215 to be a punishment for two very legal reasons. 1) unlike all other regularly sanctions imposed on sex offenders, this is the only one applied prospectively. And 2) The penalty imposed for violating this chapter points back to the original offense.
It’s is clear beyond any doubt that the State intended its SORR to be a punishment not merely a regulatory sanction.