Take Miami for example. The Florida Department of Corrections says there are fewer and fewer places in Miami-Dade County where sex offenders can live because the county has some of the strongest restrictions against this kind of criminal in the country. The Julia Tuttle Causeway, which links Miami to Miami Beach , offers no running water, no electricity and little protection from nasty weather. Nearly every day a state probation officer makes a predawn visit to the causeway. That is increasingly the case, say state officials, after several Florida cities enacted laws that prohibit convicted sexual offenders from living within 2, feet of schools, parks and other places where children might gather.
Watch one sex offender describe how he was forced to give up an apartment. Bruce Grant of the Florida Department of Corrections said the laws have not only kept sex offenders away from children but forced several to live on the street. For several of the offenders, the causeway is their second experience at homelessness.
Some of them lived for months in a lot near downtown Miami until officials learned that the lot bordered a center for sexually abused children. Keeping the rats off. With nowhere to put these men, the Department of Corrections moved them under the Julia Tuttle Causeway. With the roar of cars passing overhead, convicted sex offender Kevin Morales sleeps in a chair to keep the rats off him. Morales has been homeless and living under the causeway for about three weeks.
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He works, has a car and had a rented apartment but was forced to move after the Department of Corrections said a swimming pool in his building put him too close to children. I get fed three times a day. City of Orlando, F. In short, a vagueness claim lies where those who enforce the law or those who are subject to its enforcement "must necessarily guess at its meaning and differ as to its application.
FAC contends that the Ordinance is unconstitutionally vague for two reasons. First, FAC submits that the Ordinance "fails to provide sufficient notice as to where schools, daycare centers, parks and playgrounds are located" such that FAC's registered members cannot "determine whether or not their travel through public streets pass within a restricted exclusion zone.
In support, FAC states that Seminole County does not identify all schools, daycare centers, parks, and playgrounds covered by the Ordinance and that Seminole County does not demarcate exclusion zones so that individuals can know where a particular zone begins. Moreover, although the Ordinance requires Seminole County to provide a map showing all exclusion zones, the map omits private playgrounds which are subject to the Ordinance and is of such poor detail that one would not be able to reasonably rely on it to determine where any particular exclusion zone begins.
FAC alleges that these deficiencies are exacerbated by the fact that the Ordinance imposes no scienter requirement for a violation; an individual is strictly liable for violating the Ordinance regardless of whether he or she accidentally enters an exclusion zone or whether he or she is able to ascertain where an exclusion zone begins. Indeed, the Amended Complaint identifies four Does who are members of FAC, have been convicted of various sex crimes, are required to register as sexual offenders or predators, live in Seminole County, and are therefore subject to the Ordinance.
FAC represents that all four Does do not know where all exclusion zones are and fear that they will be arrested and prosecuted for accidentally violating the Ordinance. The second theory FAC forwards for invalidating the Ordinance as unconstitutionally vague is that "it fails to adequately define the justifications which allow an individual to enter exclusion zones and thus promotes the arbitrary and discriminatory enforcement of the Ordinance. FAC says that, although the Ordinance enumerates ten exceptions which permit an individual to travel through an exclusion zone, some of these exceptions are unclear.
FAC specifically points to the exception which allows individuals to enter an exclusion zone to "[a]ttend to familial or parental obligations. FAC argues that this exception is unclear for its failure to define the terms "familial" and "obligation," Doc.
FAC asserts that the Ordinance's potential enforcers similarly have trouble interpreting and understanding what the Ordinance proscribes. One example involves Doe 2, who has no access to a personal vehicle and must rely on public transportation. According to FAC, one of Doe 2's probation officers informed him that he would not violate the Ordinance if he needed to stand at a bus stop located within an exclusion zone as long as no children were also present at the bus stop.
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A second probation officer, however, offered a different interpretation, advising Doe 2 that he would not violate the Ordinance if he needed to utilize a bus stop within an exclusion zone as long as he did not "loiter" at the bus stop. Further still, Doe 2 was threatened with a violation of his probation by a probation officer for riding on a bus that passed near a public park, implying that Doe 2 would violate the Ordinance any time he was within an exclusion zone while using Seminole County's bus system.
FAC discloses that other members have also received conflicting explanations from law enforcement and probation officials on how the Ordinance is enforced. While some officials have said that traveling through an exclusion zone does not violate the Ordinance if the individual is moving "from one permitted area to another and they do not stop in the zone," other officials have said that an individual may only travel through an exclusion zone for a "legitimate reason.
As to the vagueness surrounding the Ordinance's "familial obligation" exception, FAC states that a Seminole County official informed one of its members that he could travel through an exclusion zone to purchase food for his unrelated roommates because they were considered "family" under the Ordinance, but that he could not travel through an exclusion zone to purchase food for only himself. To FAC's knowledge, Seminole County has not illuminated which, if any, of these standards are correct. Based on the facts alleged and a review of the Ordinance, the Court can reasonably infer that the Ordinance is unconstitutionally vague in the ways FAC contends.
The Amended Complaint shows that a number of FAC's members have no way of knowing where all prohibited exclusion zones are located because of Seminole County's failure to adequately identify all schools, daycare centers, parks, and playgrounds covered by the Ordinance.
CECIL LORENZO DANIELS
This failure of notice is complicated by the Ordinance's imposition of strict liability for a violation, potentially lending to arbitrary and discriminatory enforcement. See Colautti v. Franklin, U. High Ol' Times, Inc. Busbee, F. Indeed, FAC alleges facts demonstrating that Seminole County's own officials differ on what the Ordinance proscribes and how it is to be enforced.
As a result, the Court can reasonably infer that both those who enforce the Ordinance and those who are subject to its enforcement must guess at its meaning and differ in its application, thus stating a vagueness claim under the Fourteenth Amendment. Count 2 alleges that the Ordinance violates the Fourteenth Amendment's guarantee to procedural due process. FAC submits that the Ordinance violates procedural due process for the same reasons it is unconstitutionally vague. See Doc.
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It is true that the vagueness of a challenged law necessarily implicates procedural due process. See Bankshot Billiards, Inc. City of Ocala, F. See Section II. To state a claim under the Ex Post Facto Clause, a plaintiff must establish two elements: 1 the challenged law is retrospective, and 2 the law "disadvantage[s] the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime.
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Mathis, U. Graham, U. A law is retrospective when it "appl[ies] to events occurring before its enactment. Seminole County does not dispute that the Ordinance is retrospective, as it was enacted in October and applies to sexual offenders and predators who were convicted and sentenced prior to its enactment.
Instead, Seminole County argues that the Ordinance does not increase the punishment for crime. Specifically, Seminole County contends that the Ordinance escapes scrutiny under the Ex Post Facto Clause because it is primarily civil in nature in that it "provides an enforcement mechanism for ensuring that sex offenders do not approach children.
Smith v. Doe, U. Hendricks, U. However, if the legislating entity intended to create a civil penalty or a non-punitive regulatory scheme, further consideration will need to be given as to whether the law is "so punitive either in purpose or effect as to negate that intention.
Ward, U. This latter inquiry frequently requires an analysis of the law's text and expressions of legislative intent along with a weighing of other "guideposts" established by the United States Supreme Court. These guideposts include:.
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Kennedy v. Mendoza-Martinez, U. FAC alleges sufficient facts demonstrating that the Ordinance increases the punishment of past crime. It is enough at this early point in the proceedings to observe that the Ordinance makes it a misdemeanor to travel through or remain within 1, feet of a school, daycare center, park, or playground.
Moreover, all sexual offenders and predators who are required to register with the Seminole County Sheriff must sign a document which states that violation of the Ordinance is a misdemeanor and "will be By imposing arrest and criminal prosecution for a violation, the Court can reasonably infer that Seminole County intended the Ordinance to be criminal in nature, rather than civil or regulatory. Count 4 alleges that the Ordinance infringes the first amendment right to freedom of association.
The First Amendment protects two categories of association: intimate association and expressive association. Moore v. Tolbert, Fed. The right to intimate association derives from the fundamental right to personal liberty and guarantees that individuals can "enter into and maintain certain intimate human relationships. Jaycees, U. On the other hand, the right to expressive association arises out of the activities explicitly identified in the First Amendment and therefore guarantees the right of individuals to associate for purposes of speaking, assembling, petitioning for the redress of grievances, and exercising religion.
FAC only asserts that the Ordinance violates the right to intimate association. A plaintiff who challenges a law on the grounds that it violates the right to intimate association must establish that the law infringes upon a protected personal relationship. See McCabe v. Sharrett, 12 F. To that end, the United States Supreme Court recognizes a spectrum of personal relationships.
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On one end of this spectrum lie those personal relationships "that attend the creation and sustenance of a family — marriage; childbirth; the raising and education of children; and cohabitation with one's relatives. These relationships are clearly protected under the First Amendment because they are "the most intimate" of human associations.
On the other end of the spectrum lie those relationships which are completely unattached from the creation and maintenance of a family, such as business and employment relationships and mere acquaintanceships.