Backup Documents 07/08/2014 Item #10A Add On Item 10A
July 8,2014 BCC Meeting
EXECUTIVE SUMMARY I
Recommendation that the Board direct the County Attorney to work with the County
Manager and the Sheriff's Office to prepare and bring back a proposed ordinance that
would establish a Collier County Sexual Offender and Sexual Predator Residency
Ordinance that is more restrictive that State Statute.
OBJECTIVE: To better protect the children of Collier County.
CONSIDERATIONS: Florida Statutes 775.215 provides that certain defined convicted sexual
offenders and predators may not reside within 1,000 feet of any school, child care facility, park,
or playground. I recently discussed my concern with the County Attorney that there are large
numbers of convicted sexual offenders and predators clustered in family neighborhoods just
outside these limitations. The County Attorney advised me that since the last time the Board
discussed this matter, it has been judicially determined that a local government may enact stricter
regulations than the State Statute. I would like the Board to direct the County Attorney to work
with the County Manager and the Sheriff's Office to bring back a proposed Sexual Offender and
Sexual Predator Residency Ordinance that is more restrictive that State Statute.
FISCAL IMPACT: None at this time.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: The County Attorney has reviewed this item and approved it
as to form and legality. Majority support of the Board is required for approval. A copy of the
referenced legal decision is attached as back-up. -JAK
RECOMMENDATION: That the Board of County Commissioners direct the County Attorney
to work with the County Manager and the Sheriff's Office to prepare and bring back a proposed
ordinance that would establish a Collier County Sexual Offender and Sexual Predator Residency
Ordinance that is more restrictive than State Statute.
PREPARED BY: Commissioner Donna Fiala.
Attachment: The decision involving Exile and Bloom vs. Miami-Dade County.
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LexisNexis.
1 of 1 DOCUMENT
Bryan A.Exile and Elliot M.Bloom,Appellants,vs.Miami-Dade County,Appellee.
No.3D09-2768
COURT OF APPEAL OF FLORIDA,THIRD DISTRICT
35 So.3d 118;2010 Fla.App.LEXIS 6919;35 Fla.L.Weekly D 1121
May 19,2010,Opinion Filed
SUBSEQUENT HISTORY: Released for Publication force and effect.Neither of the appellants'contentions to
June 4,2010. the contrary is well taken:
PRIOR HISTORY: [**1] 1 "It is unlawful for any person who has been
An Appeal from the Circuit Court for Miami-Dade convicted of a violation of Sections 794.011
County,Pedro P.Echarte,Jr.,Judge.Lower Tribunal No. (sexual battery), 800.04(lewd and lascivious acts
09-51205. on/in presence of persons under age 16),827.071
(sexual performance by a child) or 847.0145
COUNSEL: Florida Institutional Legal Services, and (selling or buying of minors for portrayal in
Cassandra Capobianco,Robert Dwyer,Christopher Jones sexually explicit conduct), Florida Statutes, or a
and Peter Sleasman; American Civil Liberties Union similar law of another jurisdiction, in which the
Foundation, and Maria Kayanan and Randall C. victim of the offense [**2]was less than sixteen
Marshall;Jeanne Baker,for appellants. (16)years of age, to reside within 2,500 feed of
any school." Miami-Dade County, Fla, Code of
R.A. Cuevas, Jr., County Attorney, and Thomas W. Ordinances,§21-281(a)(2009).
Logue,Assistant County Attorney,for appellee.
(a) The legislature has not clearly preempted local
JUDGES:Before WELLS and ROTHENBERG,JJ.,and regulation of the field of the post-conviction conduct of
SCHWARTZ,Senior Judge. sexual predators, so as to invoke the severely restricted
and strongly disfavored doctrine of "implied
OPINION BY:SCHWARTZ preemption." See Browning v. Sarasota Alliance for Fair
Elections, Inc., 968 So. 2d 637 (Fla. 2d DCA 2007),
OPINION reversed on other grounds 28 So. 3d 880 (Fla. 2010);
City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243
[*118] SCHWARTZ,Senior Judge. (Fla. 2006);Tribune Co. v. Cannella, 458 So. 2d 1075,
1077 (Fl
As the trial court held in an excellent opinion, we (Fla. 1984); Phantom of Clearwater v. Pennellas
County, 894 So. 2d 1011, 1019 (Fla. DCA 2005),
conclude that Section 21-281 of the Miami-Dade County ar v. Brevard
Code I,which prohibits convicted sexual offenders from approved sub. nom, Phantom of Brevard
residing within 2500 feet of a school, is not County,3 So.3d 309,315(Fla.2009);Lowe v.Broward
County,766 So.2d 1199, 1207(Fla.4th DCA 2000),rev.
invalidated by Florida law and therefore remains in full
denied, 789 So. 2d 346 (2000) ("The courts should be
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35 So.3d 118,•119;2010 Fla.App.LEXIS 6919,**2;
35 Fla.L.Weekly D 1121
careful in imputing intent on behalf of the Legislature to that required outdoor signs to be set back 200 feet from
preclude a local elected governing body from exercising streets did not conflict with a state statute that required
its home rule powers."); Tallahassee Mem. Reg. Med. outdoor signs be set back 15 feet from the streets because
Ctr.,Inc.v.Tallahassee Med.Ctr.,Inc.,681 So.2d 826, a person could comply with the County ordinance
831(Ha.1st DCA 1996);and without violating the state statute).Compare Scavella v.
Fernandez, 371 So. 2d 535 (Fla. 3d DCA 1979)
(b) The 2500 foot provision is [**3] not in (expressly distinguishing Jordan Chapel and E.B.
cognizable "conflict" with the less restrictive 1000 foot Elliott).
buffer zone provided by Section 794.065(1) 2 Florida
Statutes.See Laborers'Int'l Union of N.Am.,Local 478 2 "It is unlawful for any person who has been
v. Burroughs, 541 So. 2d 1160 (Fla. 1989) (holding convicted of a violation of a. 794.011, s. 800.04,
ordinance did not conflict with statute because a party s. 827.071, a. 847,0135(5), or s. 847.0145,
could comply with the ordinance without violating the regardless of whether [**4]adjudication has been
statute); Metro. Dade County v. Santos,430 So. 2d 506 withheld, in which the victim of the offense was
(Fla. 3d DCA 1983); Jordan Chapel Freewill Baptist less than 16 years of age, to reside within 1,000
Church v. Dade County, 334 So. 2d 661, 664 (Fla. 3d feet of any school, day care center, park, or
DCA 1976), cert. denied, 348 So. 2d 949 (1977); E.B. playground...."§794.065(1)Fla.Stat.(2009).
Elliott Advertising Co.v. Metro. Dade County,425 F.2d
1141, 1150(5th Cir. 1970)(holding a county ordinance Affirmed.
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IN THE CIRCUIT COURT OF THE
. 11TH JUDICIAL CIRCUIT IN AND FOR
• MIAMI-DADE COUNTY,FLORIDA
•
•
GENERAL JURISDICTION DIVISION
. CASE NO. 09-51205 CA 13
BRYAN A.EXILE and
ELLIOTT M.BLOOM,
Plaintiffs, -... "....a frvt,11,PARISE
MIAMI-DADE COUNTY,
Defendant.
•
1
ORDER GRANTING FINAL JUDGMENT ON THE PLEADINGS IN FAVOR OF
pEFENDANTr,
•
I. Facts
Plaintiffs,who are convicted sexual offenders,have challenged the validity of the Miami-
Dade County Sexual Offender and Sexual Predator Residency Ordinance, §§21-177—21-284 of
the Codo of Miami-Dade County.1 Plaintiffs contend that by enacting various sexual offender
and predator statutes the Florida Legislature impliedly preempted Miami-Dade County's
Ordinance. Defendant now seeks a judgment on the pleadings as a matter of law.
In relevant part,the County Ordinance prohibits convicted sexual offenders from
residing within 2,500 feet of a schooL §21-218,Miami-Dade County Code. It provides
exceptions for sexual offenders who established a residency before the effective date of the
ordinance;who were minors when they committed the offense;or who established a residence
prior to a school being built within 2,500 of the residence. §21-281,Miami-Dade County Coda
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CASE NO. 09-51205 CA 13
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II. Legal Standard
•
As a preliminary matter,the court finds that a motion for judgment on the pleadings may
properly be considered in this case. Judgment on the pleadings can be entered if the merits of the
case can be determined as a matter of law from the pleadings. Trail Burger King,Inc.v. Burger
King of Miami, Inc., 187 So.2d 55, 56 (Fla. 3d DCA 1966). Judgment on the pleadings is
appropriate in this case because the complaint is grounded on a claim of implied preemption and,
thus,presents a pure issue of law. See, Roberts v. Metropolitan Dade County, 354 So.2d 472
(Fla. 3d DCA 1978)("the trial court did not err in entering a judgment on the pleadings which
determined... legislative intent").
Implied preemption is dependent on legislative intent See, e.g., Lowe v. Broward
County, 766 So.2d 1199, 1207 (Fla. 4th DCA 2000), rev: denied, 789 So. 2d 346 (Fla. 2001).
Legislative intent turns on statutory interpretation and"[sjtatutory interpretation is a question of
law." Bellsouth, Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003); see, also Talbott v. American
Isuzu Motors,Inc,,934 So.2d 643,644(Fla.2d DCA 2006)(holding that the question whether a
statute preempts another regulation is a question of law). Accordingly, implied preemption is
usually resolved on a limited record and is often determined by motions to dismiss based solely
on legal argument. See, e.g., State v. Harden, 873 Sold 352 (Fla. 3d DCA 2004), ard, 938
So.2d 480(Fla.2006).
Implied preemption can normally be resolved"strictly based on a review of the plain text
of[the statute] and the plain text of the ordinance...." Phantom of Clearwater, Inc. v. Pinellas
County, 894 So.2d 1011, 1015 (Fla. 2d DCA 2005), approved, Phantom of Brevard, Inc. v.
Brevard County, 3 So.2d 309 (Fla.2008). Therefore, as stated by the Second District Court of
Appeals, "[i)n light of the legal issues presented—preemption and conflict with state law—the
•
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CASE NO. 09-51205 CA 13
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purpose of the evidentiary hearing is unclear." Browning v.Sarasota Alliance for Fair Elections,
Ina,968 So.2d 637,642 n.2(Fla. 2d DCA 2007).
Plaintiffs bear a heavy burden of persuasion because"(immplied preemption is disfavored
in Florida." Meteor Motors,Inc. v. Thompson Halbach &Assoc., 914 So.2d 479, 483 (Fla. 4th
DCA 2005. Kligelfv. State Office of Fin. Reg., 876 So.2d 36, 38 (Fla. 46 DCA 2004) (`The
Florida Supreme Court has made clear that implied preemption is not favored under Florida
Iaw.").
Implied preemption is disfavored for two reasons. First, the Florida Constitution and law
reflect a strong commitment to self-government at the local level and, therefore, "courts should
be careful in imputing intent on behalf of the Legislature to preclude a local elected governing
•body from exercising its home rule powers."Lowe v. Broward County,'766 So.2d 1199, 1207
(Fla. 4th DCA 2000), rev. denied, 789 So.2d 346 (Fla 2001). Second, the courts are
understandably reluctant to preclude local self-governrnment based on legislative silence because
"if the legislature can easily create express preemption by including clear language in a statute,
there is little justification for the courts to insert such words into a statute." Phantom of
Clearwater, Ina v. Pinellas County,894 So.2d 1011, 1019(Fla. 2d DCA 2005), approved, 3
So.2d 309(Fla. 2008). As a result,in Florida, implied preemption has been found only once at
the appellate level and it has been rejected over eighteen times.2
D. Analysis of Implied Preemption
• To determine if the Legislature intended to impliedly preempt a local ordinance, courts
use a two pronged test: "Implied preemption should be found to exist only in cases where the
2For a list of these oases,see Appendix"A"to this Order.
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CASE NO. 09-51205 CA 13
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legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and
where strong public policy reasons exist for finding such an area to be preempted by the
Legislature." Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical
Center, Inc.,681 So.2d 826, 831 (Fla. 15' DCA 1996) (emphasis added). Because implied
preemption is disfavored,,the Supreme Court has emphasized that it can be found only"so long
as it is clear that the legislature has clearly preempted local regulation of the subject" City of
Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006) (reversing court that found implied
. preemption)(emphasis added).
-A. Florida Sexual Offender Laws are Not Sufficiently Pervasive to Clearly
Indicate Preemptive Intent
Plaintiffs contend that the statutes governing sexual offenders are so pervasive that they
indicate the Legislature intended to occupy the field and preclude any Local ordinances. IIt is
certainly true that the.Legislature has passed laws regarding sexual offenders such as making
sexual molestation of children a crime; providing for penalties,parole, and probation;requiring
released felons to register their residences; providing for community notification about sexual
offenders'crimes and addresses;and prohibiting released felons from living within 1,000 feet of
schools, day cares, parka, or playgrounds. See, e.g., §§ 775.21, 775.24, 794.065, 943.0435,
943.04351, 943.04352, 943.04353, 943.04354, 943.0436, 948.30, 948.31, 948.32, Fla. Stat.
Under Florida's standard for implied preemption, however, these statutes are not sufficiently
pervasive to demonstrate that the legislature has clearly preempted local regulation of the
subject. These statutes are substantially less pervasive and comprehensive than the laws
governing marriage, divorce, and family at issue in Lowe v. Broward County, 766 So.2d 1199
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CASE NO. 09-51205 CA 13
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(4`h DCA 2000), rev'd dented, 789 So.2d 346 (Fla. 2001). Notwithstanding the fact that the
marriage and family laws at issue in Lowe cover five separate chapters of Florida Statutes and
span over 107 pages,the Fourth District Court of Appeals held that such comprehensive laws did
not impliedly preempt a county from enacting an ordinance extending benefits to domestic
partners.
In Hillsborough County v.Fla. Rest.Ass'n,603 So.2d 587(Fla.2d DCA 1992),the Court
held that the state's comprehensive laws'governing the sale of food and alcohol (which cover
over eleven separate chapters of Florida Statutes and span over 159 pages)should not be read to
preempt by'implication an ordinance requiring notice to pregnant women of the dangers of
alcohol. Similarly, the Third District Court of Appeals found that the extensive and
comprehensive statutes governing condominiums (which cover six chapters of Florida Statutes
and span more than'210 pages) did not preempt a city ordinance governing condominium
conversions.City of Miami Beach v.Rollo Corp.,404 So.2d 1066(Fla.3d DCA 1981).
Florida's sexual offender laws are not sufficiently pervasive to support a finding of clear
legislative intent to preempt local ordinances. As explained by the Supreme Court,Florida law •
requires"a more restrictive application of the preemption doctrine,precluding preemption and
•
leaving 'home rule' to [local governments] unless the legislature has expressly said
• otherwise." Tribune Co. v. Cannella,458 So.2d 1075, 1077(Fla. 1984)(emphasis added). See,
•
also Kurtz v. City of North Miami,625 So.2d 899, 900 n.l (Fla. 3d DCA 1993), rev'd on other
grounds,653 So.2d 1025 (Fla. 1995) (finding that the Florida Clean Indoor Air Act, § 386.202,
Fla.Stat.does not preempt a municipal administrative order governing hiring of smokers).
•
B.. Florida Legislative History Indicates No Intention to Preempt
•
•
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CASE NO. 09-51205 CA 13
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The legislative history of Florida's sexual offender statutes suggests that Florida's
Legislature.did not intend to preempt local residency ordinances. Florida's legislative history
demonstrates that the Legislature has had ample opportunities to preempt local sexual offender
residency ordinances, but has chosen not to do so. Indeed, in the 2006, 2007, 2008, and 2009
Legislative Sessions, the Legislature considered and rejected numerous bills which would have
expressly preempted local sexual offender residency ordinances.3 As reasoned by Judge Wolf in
Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical Center, Inc., 681
So.2d 826, 831 (Fla. 1st DCA 1996), "if the legislature can easily create express preemption by
including clear language in a statute,there is little justification for the courts to insert such words
• • into a statute." Phantom of Clearwater,Inc. v.Pinellas County,894 So.2d 1011, 1019(Fla. 2d
DCA 2005),approved,3 So.2d 309(Fla.2008);see also Homestead Hosp.,Inc. v.Miami Dade
County, 829 So.2d 259,264(Fla.3d DCA 2002) (holding that the Legislature's refusal to sever
certain statutory language indicated its intent that such language not bo severed). For the same
reason,there is little justification in this case to insert words of preemption into the statutes sub
Judice.
Furthermore,on September 15,2009,Florida Representative(}lorioso filed a bill seddng
to, inter alia, preempt local sexual offender residency ordinances. HB 119 (2010). Thus, it
appears the Legislature does not consider local ordinances on this subject to be preempted and
3Fla.HB 591,2d Eng.(Reg.Sess.2006);Fla SB 768(Reg.Sess. 2006);Fla.HB 339 CS
(Reg. Sess.2006);Fla.HB 59(Reg. Sess.2007);Fla.HB 533,§3 (Reg. Sess. Reg. Sess.2007);
Fla.HB 683, § 2(Reg. Sess.2007);Fla.S13 2608 (Reg. Sess.2207);Fla. CS for SB 2490(Reg.
Sess.2008);Fla.CS for CS for SB 1430§ 2(Reg. Sess. 2009);Fla.CS for CS for SB 320(Reg.
Sess.2009).
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continues to contemplate whether to explicitly preempt local sexual offender residency
ordinances.
Plaintiffs in this case are asking that the court read into the statute preemption language
that the Legislature has considered and has, thus far, chosen not to add. In the words of the
Third District Court of Appeals, "[ojbviously the legislature knew how to forbid local intrusion
into regulation of this subject matter if it wished. Particularly in view of the settled rules which
require that any such language be strictly construed, we decline to read such a provision into a
statutory situs where it so obviously and pointedly does not appear." Metropolitan Dade County
v.Santos,430 So.2d 506, 508(Fla.3d DCA 1983)(finding Legislative silence did not amount to
implied preemption o f ordinance that was stricter than statute).
• This legislative history demonstrates this case does not fit the narrow exception that
recognizes implied preemption only when`it is clear that the legislature has clearly preempted
local regulation of the subject." Mulligan,934 So.2d at 1243(emphasis added). It can hardly be
said that the Legislature "clearly' intended to impliedly preempt local ordinances when it
repeatedly considered,but declined to do so expressly.
•
W. Statewide Uniformity
Plaintiffs make various public policy arguments that the preemption of local sexual
offender residency ordinances would be in the best interest of sexual offenders and their potential
victims, however, as the First District Court of Appeals has stated: "Implied preemption should
be found to exist only in cases where the legislative scheme is so pervasive as to evidence an
intent to preempt the particular area, and where strong public policy reasons exist for finding
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CASE NO. 09-51205 CA 13
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such an area to be preempted by the Legislature?' Tallahassee Memorial Regional Medical
Center, Inc. v. Tallahassee Medical Center, Inc.,681 So.2d 826, 831 (Fla 1'r DCA 1996)
(emphasis added). This court has already found that there is an absence of legislative intent to
preempt local sex offender residency ordinances and,thus,this court will discuss,but not decide
whether preemption is"in the best interest"or not.
There are compelling arguments both for and against statewide uniformity in this area.
The overwhelming majority of the Florida county court judges who have examined this issue,for
instance, have felt that some flexibility should be left at the local level "so that the size of the
zones may be set based upon the character of each city or county...." State v. Wilson,Case No.
MM07-011177-BA (Fla. Polk County Ct. March 4,2009) (holding State did not preempt local
sexual offender residency ordinances). See, e.g., State v. Chaddocic 15 Fla.Law Weekly Supp.
1109a(Miami-Dade County Ct. Sept. 29, 2008);State v. Long, 15 Fla Law Weekly Supp. 255
•
(Fla.Duvall County Ct.Nov. 17,2007). •
Furthermore, Florida's strong policy towards local home rule would be contrary to the
view that such decisions should be centralized in Tallahassee. In fact,the Florida Supreme Court
has recognized that local government meetings often provide the bast forum for the competing
interests involved to be weighed and resolved in making such decisions. See City of Temple
Terrace v. Hillsborough Ass'n for Retarded Citizens, Inc., 322 So.2d 571, 577(Fla. 2d DCA
1975), aff'd, 332 So.2d 610 (1976) (finding absence of preemption by Legislature and finding
that a state agency's placement of group home was subject to city zoning even though some local
community groups advocated a "not-in-my-backyard"mentality).
Such a need for judicially-mandated statewide uniformity has been found only once and
that was in the area of vote verification. Browning v. Sarasota Alliance for Fair Elections,Inc.,
•
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LciSE NO. 09-51205 CA 13
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968 So.2d 637, 648 (Fla. 2d DCA 2007) ("The regulation of voting cannot be given unequal
application different parts of the state"). While the verification of a vote is not impacted by
local circumstances,the issue of the most effective size of a sexual offender buffer zone may be
impacted by local conditions for the reasons set forth above. Therefore,the need for judicially-
imposed uniformity, while necessary in Browning, is not necessarily applicable in the instant
case.
Conclusion
Based upon the text and legislative history of the state sexual offender laws, the court
finds as a matter of law that the Legislature did not intend to preempt local sexual offender
residency ordinances. Final judgment on the pleadings is granted against Plaintiffs and for
Miami-Dade County and Miami-Dade County shall go hence without day.
16
DONE AND ORDERED in Chambers, at Miami, Florida on this "co day of
September,2009.
PEDRO ECHARTB,JR.
CIR COURT JUDGE
Copies to counsel of record
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ter