Florida: Significant ex post facto victory in Ft. Lauderdale case

By Robin . . . In a significant victory for registered citizens in Florida who have been hounded by the ever-increasing reach of residency restrictions enacted by local ordinances, Judge Mindy Solomon of Broward County has held Section 16-127 of the Fort Lauderdale Code of Ordinances unconstitutional both as applied and on its face. The effect of this ruling is to roll back an enhanced residency restriction applied to registered citizens which was enacted in October, 2007, and that prohibited all persons ever convicted of enumerated child sex offenses from residing within 1,400 feet of various designated landmarks, including schools and school bus stops.

This action came before Judge Solomon by consolidation of two separate claims by Ira Anderson and Sean Ford who had both been charged with violations of the ordinance for residing within the 1,400 foot threshold. Upon review of the underlying facts, and in reliance upon the Mendoza factors utilized by the U.S. Supreme Court in Smith v. Doe, Judge Solomon concluded that while the city commissioners’ intent when passing the 2007 ordinance was “remedial, not punitive,” the defendants presented convincing arguments establishing that the effects of the ordinance were punitive “by the clearest proof.”

Citing three specific Mendoza factors in her Order, Judge Solomon held the ordinance unconstitutional for 1) its restraint on available and affordable housing (finding that less than 1% of such housing options were available to the defendants within the city of Fort Lauderdale), 2) its banishment of registered citizens on account of restraints on housing, and that there is 3) no rational basis for restricting registrants from residing at night within 1,400 feet of facilities that are only populated by children during a portion of daylight.

Strengthening the defendants’ claims was expert testimony provided by Prof. Kelly Socia and Prof. Jill Levenson. Prof. Socia, a geomapping expert, used census and mapping data to demonstrate the ordinance’s severe impact on available housing within the city of Fort Lauderdale. Prof. Levenson testified that “residence restrictions do not reduce the risk of sexual reoffense, because proximity to schools is not a risk factor in sexual reoffense.”

NARSOL gives thanks to Florida Action Committee (FAC) for first publishing this important news.

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Robin Vander Wall

As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.

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    • #37987 Reply
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      emma

      God is Awesome! We are all human beings.

      • #38011 Reply
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        WC_TN

        This is a wonderful victory for registered citizens in Florida. It seems the courts are our only resort. Thank God there are some judges of honorable character who are not afraid to call things like they are.

        In my opinion, the next thing that needs to be attacked is the fact that individual municipalities are able to set their own residency & presence restrictions. The state needs to set one fixed standard and leave it at that. When each municipality can set their own statutes, it becomes one-upmanship on who will pass the harshest restrictions to stop offenders who are legislated out of one municipality from moving into another with less stringent restrictions.

        What I predicted is finally happening. These sex offender regimes are starting to collapse under the weight of their own punitive nature. Let the legislators keep heaping on the restrictions. They are too stupid and short-sighted to see that they’re actually spelling doom for the very laws they rubber stamp every legislative session. The more restrictive they become, the harder it gets for them to maintain a “non-punitive” intent.

      • #38129 Reply
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        Debi B

        Is there any hope for dissolving the sex stings? People are obviously set up on these and are turned into criminals then required to register. Men who have never committed a crime in their life, who would never molest children. What is being done to help them?

        • #38210 Reply
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          Hank

          Well said.

    • #38056 Reply
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      D

      It is no wounder after a federal court found it to be punishment naturally the lower courts are supposed to follow the lead. My question is if it is punishment then why is the registry not be abolished since an additional punishment is double jeopardy.

      • #38111 Reply
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        misdemeanor offender

        D:

        Double jeopardy is an interesting path. However, for double jeopardy to work, there must be a trial. Because sex offender laws are created by Ex Post Facto methods it would be very difficult to perhaps argue that viewpoint. However, I do understand where you are coming from because it does serve some validity that additional punishments or requirements are handed out long after the judicial trial phase.

        I would suggest the best path is to argue Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. I have been a long advocate of registered offenders to seek legal advice under the Rational Base test because it allows the individual to file a complaint. Under that legal test, the law must have a legitimate interest. Naturally, the state will seek the interest of public safety. The next step is that there should be a rational connection between the law means and goal. The state again would seek that additional sex offender laws reduce recidivism. Please keep in mind that I am not an attorney and not providing legal advice. I am only voicing a conversation and opinion.

        The best way to remedy silly and fear-based registry laws is to use the data against the state. There are plenty of scholarly and impartial articles that demonstrate sex offender laws do more harm than good. The real issue is money is that most sex offenders are either banished from fair accessibility by specific requirements to keep them out of legislative buildings, public libraries seeking research, universities that insist that sex offenders pose a risk on campus, churches, among just a growing list of off-limits areas. It is time for the courts to be shown this data; which is non-existent. Judges need to be shown proof by impartial and convincing evidence.

    • #38130 Reply
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      Debi B

      What is being done about the sex sting operations? They only turn innocent men into criminals, men with no prior record and men who have no intent of molesting.

      • #38140 Reply
        Fred
        Fred
        Admin

        Hello Debi,
        We have a conference call next week to discuss the issue of internet sex stings. I hope you will be able to join us.

        Can they do that?

    • #38162 Reply
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      Bill

      The wisdom of Solomon shines forth. Unfortunately, she will probably be voted out next term.

    • #38218 Reply
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      Interested Bystander

      “3) no rational basis for restricting registrants from residing at night within 1,400 feet of facilities that are only populated by children during a portion of daylight.”

      Finally a judge that gets that! Residency laws only block where one sleeps at night. So stupid.

      • #38255 Reply
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        misdemeanor offender

        Agreed.

        I am still trying to understand the rationale of why an offender cannot live near a school or daycare? What is the coalition between a school after 6 PM and an offender sleeping in his/her home during normal bedtime hours? There is nothing that indicates a threat to children or anyone for that matter? It seems rather silly and not thought out.

    • #38230 Reply
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      Abolish Registries

      Registry has destroyed my life. It’s ex post facto implementation after 2 decades of rebuilding my life has been devastating. Now it is finally being called punishment…it is torture. I will be paid damages or I will seek revenge for the violations done unto me my family my friends. If it’s an eye for an eye then there must be some pain for those whom have inflicted this upon those whom already paid the debt.

    • #38388 Reply
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      Anthony

      That is right take down all the residency restrictions in which a sex based offense has nothing to do with proximity or protect children. It is all punitive!

    • #39916 Reply
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      NH Registrant

      Residency restrictions are ridiculous. If someone is determined to re-offend, they will travel miles to get to their victim(s). But, less than 5% of all registered citizens ever re-offend!

    • #40054 Reply
      Avatar
      JEV

      For most that are not Lawyers you need to turn this Legalize mumble jumbo into language we humans can understand?

      • #40073 Reply
        Robin Vander Wall
        Robin Vander Wall
        Admin

        Did the best I could do. I am sorry it doesn’t meet your expectations. But thanks for the criticism.

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