Florida Action Committee, Inc. v. Seminole County et al
Filing
61
ORDER denying 44 Defendant Sheriff Eslinger's Motion to Dismiss Amended Complaint; denying 45 Defendant Seminole County's Motion to Dismiss Amended Complaint. Defendants shall answer Plaintiff's Amended Complaint within fourteen (14) days of this Order. Signed by Judge Paul G. Byron on 6/17/2016. (SEN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLORIDA ACTION COMMITTEE, INC.,
Plaintiff,
v.
Case No: 6:15-cv-1525-Orl-40GJK
SEMINOLE COUNTY and DONALD F.
ESLINGER in his official capacity,
Defendants.
ORDER
This cause comes before the Court on the following:
1. Defendant Sheriff Eslinger’s Motion to Dismiss Amended Complaint
(Doc. 44), filed January 8, 2016;
2. Defendant Seminole County’s Motion to Dismiss Plaintiff’s Amended
Complaint for Declaratory and Injunctive Relief (Doc. 45), filed January 8,
2016; and
3. Plaintiff’s Omnibus Response to Defendants’ Motions to Dismiss (Doc. 52),
filed February 4, 2016.
Upon consideration, Defendants’ motions to dismiss are due to denied.
I.
BACKGROUND
Plaintiff, Florida Action Committee, Inc. (“FAC”), is a non-profit, voluntary
membership organization formed under section 501(c)(4) of the Internal Revenue Code.
(Doc. 52-1, ¶ 1). FAC states that it has approximately 650 members across Florida, many
of whom (but not all) are registered sexual offenders or sexual predators. (Doc. 32, ¶ 12).
FAC affirms that its “mission is to educate the media, legislators, and the public with the
1
facts surrounding sex offender laws.” (Id. ¶ 8). FAC pursues this mission in part by
engaging in litigation to challenge laws which target sexual offenders and predators.
(Doc. 52-1, ¶ 4).
To that end, FAC brings this action against Defendants, Seminole County and
Seminole County Sheriff Donald F. Eslinger in his official capacity (collectively, “Seminole
County”), 1 to assert a number of constitutional challenges against Seminole County
Ordinance 2005-41 (hereinafter referred to as the “Ordinance”), 2 which was enacted on
October 3, 2005 and is codified in Chapter 228 of the Seminole County Code (hereinafter
cited as “SCC”). In pertinent part, the Ordinance establishes a 1,000-foot exclusion zone
around every school, daycare center, park, and playground within Seminole County’s
jurisdictional limits and proscribes sexual offenders and predators from traveling through
or remaining in these exclusion zones. SCC § 228.2. The Ordinance provides a number
of exceptions to these restrictions, such as when a sexual offender or predator travels for
work, education, medical, religious, or legal reasons, or in the case of an emergency.
See id. § 228.2(a)–(j). Violation of the Ordinance constitutes a misdemeanor and is
punishable by a fine of up to $500.00 and/or sixty days in jail. See id. § 1.8.
FAC contends that the Ordinance violates some of its members’ constitutional
rights in a number of ways. First, FAC claims that the Ordinance is impermissibly vague
and violates the guarantees of procedural due process enshrined in the Fourteenth
Amendment. Next, FAC challenges the Ordinance as an unconstitutional ex post facto
1
2
Because a lawsuit against a local government employee in his official capacity is
actually a lawsuit against the local government itself, the Court will refer to Sheriff
Eslinger and Seminole County collectively throughout this Order unless otherwise
indicated. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).
The Ordinance is attached to this Order as Appendix A and is available online at
https://www2.municode.com/library/fl/seminole_county/codes/code_of_ordinances?n
odeId=CH228SEOFSEPR (last visited June 17, 2016).
2
law. FAC additionally alleges that the Ordinance infringes on the first amendment right
to freedom of association. Finally, FAC argues that the Ordinance infringes the right to
intrastate travel guaranteed by the Florida Constitution. FAC seeks declaratory and
injunctive relief for these constitutional injuries through 42 U.S.C. § 1983. Seminole
County now moves to dismiss FAC’s Amended Complaint in its entirety. 3
II.
DISCUSSION
Seminole County moves to dismiss FAC’s Amended Complaint for lack of standing
and for failing to state claims upon which relief can be granted. Because FAC’s standing
to bring this lawsuit implicates the Court’s subject matter jurisdiction, the Court must
resolve that issue first. The Court will then turn to the sufficiency of each of FAC’s claims.
A.
Whether FAC Has Standing
Standing to bring and maintain a lawsuit is a fundamental component of a federal
court’s subject matter jurisdiction. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146
(2013). Challenges to standing therefore attack the court’s subject matter jurisdiction to
adjudicate the parties’ dispute.
See Stalley ex rel. United States v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam). Attacks on
standing come in two forms: facial and factual. Id. In a facial attack, the court looks to
the face of the complaint and determines whether the plaintiff sufficiently alleges standing.
Id. at 1232–33. In doing so, the court is limited to the complaint’s allegations and exhibits,
which the court must accept as true. Id. In contrast, a factual attack contests the plaintiff’s
standing in fact, regardless of what the complaint says. McElmurray v. Consol. Gov’t of
3
The Court notes that Seminole County and Sheriff Eslinger filed separate motions to
dismiss. However, because the County’s motion adopts and incorporates by
reference Sheriff Eslinger’s motion, the Court will cite only to Sheriff Eslinger’s motion
in this Order.
3
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). When confronting a
factual attack, the court affords no presumption of truth to the complaint and may consider
matters outside of its allegations and exhibits, such as affidavits, testimony, and other
evidence. Id. The party invoking a federal court’s subject matter jurisdiction bears the
burden of establishing standing for each claim he or she asserts. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). At the pleading stage,
this burden is not particularly onerous and will be satisfied by “general factual allegations
of injury resulting from the defendant’s conduct.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992).
An association like FAC will have standing to pursue claims on behalf of its
members where three elements are met: “(a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977); Conn. State Dental Ass’n v. Anthem Health
Plans, Inc., 591 F.3d 1337, 1354 (11th Cir. 2009). Seminole County contends that FAC
fails the first two elements of associational standing in that (a) none of FAC’s members
have standing on their own to maintain the claims alleged, and (b) the interests FAC
seeks to protect are not germane to its purpose. (Doc. 44, pp. 7–14). Seminole County
insists that FAC does not actually represent its members, but utilizes its membership as
a vehicle to espouse a particular political viewpoint. Seminole County therefore launches
a factual attack on FAC’s standing and the Court may look outside the four corners of the
Amended Complaint to resolve the issue.
4
Regarding the first element of associational standing, FAC must show that at least
one of its members has standing in their own right to state each of the claims FAC asserts.
See Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1344 (11th Cir. 2005). In order to
have individual standing, a plaintiff must demonstrate that he suffered or will imminently
suffer an injury-in-fact, that a causal connection exists between this injury and the
defendant’s conduct, and that his injury will be redressed by a favorable decision. Id.
Where, as here, a plaintiff files a pre-enforcement constitutional challenge against a law
which imposes criminal sanctions, it is not necessary for the plaintiff to subject himself to
arrest or prosecution in order to suffer the requisite injury-in-fact; rather, the plaintiff need
only establish that he intends to engage in the conduct proscribed by the law and there
is a credible threat of prosecution should he engage in that conduct. Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). There are three ways a plaintiff
can meet this standard: (1) he was actually threatened with application of the law,
(2) application of the law is likely, or (3) there is a credible threat of application. Socialist
Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir. 1998).
FAC identifies Doe #3 as one of its members who has individual standing to bring
all five of its constitutional claims. In 1990, Doe #3 pled no contest to two charges of lewd
and lascivious conduct in the presence of a child. (Doc. 32, ¶ 69). Doe #3 has completed
his sentence and now lives in Seminole County. (Id. ¶¶ 69–70). Doe #3 is required by
state law to register as a sexual offender every six months with the Seminole County
Sheriff; as a result, he must abide by the Ordinance’s travel restrictions. (Id. ¶ 72). Each
time Doe #3 registers with the Seminole County Sheriff, he is warned that he is subject
to arrest should he violate the Ordinance. (Id.). Doe #3 is also required to sign and initial
a document titled “Seminole County Sheriff’s Office Sexual Offender/Predator Ordinance
5
Summary,” which provides notice of the Ordinance’s travel restrictions and cautions that
“[a]ny violation of these provisions will be treated as a misdemeanor offense and charged
accordingly.” (Id.; Doc. 32-4). FAC states that, despite the Ordinance and the Sheriff’s
summary, Doe #3 does not know where all of the exclusion zones are located and how
to avoid them. (Doc. 32, ¶ 73). Further, FAC represents that, although Doe #3 does not
live within an exclusion zone, his neighborhood is surrounded by exclusion zones. (Id.
¶¶ 74–75). Doe #3 therefore routinely violates the Ordinance in order to go grocery
shopping, visit his bank, and conduct business with the Seminole County government.
(Id. ¶ 76). FAC also discloses that Doe #3 violated the Ordinance on one occasion by
visiting a park with his niece and her children to watch family members play in a sporting
event. (Id. ¶ 78). While in the park, a police officer approached Doe #3, informed him
that he was violating the Ordinance, and directed him to leave the park or else he would
be arrested. (Id.).
At this stage of the proceedings, FAC has alleged sufficient factual material to carry
its burden of proving that Doe #3 has individual standing to bring each of its constitutional
challenges to the Ordinance. When Doe #3 registers with the Seminole County Sheriff
every six months, he is notified of the Ordinance’s restrictions and punishments and is
required to acknowledge in writing that he received such notice, implying that Seminole
County is likely to enforce the Ordinance. The Seminole County Sheriff additionally warns
Doe #3 that he will be arrested should he fail to abide by the Ordinance, constituting a
credible threat of application. Indeed, the one time Doe #3 was found to be in violation
of the Ordinance, he was actually threatened with arrest. Doe #3’s previous interactions
with Seminole County and the Ordinance along with his stated intention to continue
violating the Ordinance out of necessity satisfy all three means of alleging injury-in-fact to
6
bring this pre-enforcement action. See Leahy, 145 F.3d at 1245.
Since Doe #3’s
threatened injuries are causally linked to Seminole County’s Ordinance and a favorable
decision would redress these injuries, Doe #3 has individual standing to bring all five
constitutional claims alleged in the Amended Complaint.
As to the second element of associational standing, FAC must show that the
interests it pursues through this litigation are germane to its organizational purpose. See
Hunt, 432 U.S. at 343. This inquiry is “undemanding” and requires “only ‘mere pertinence’
between the subject of the litigation and the organizational purpose.” In re Managed Care
Litig., 298 F. Supp. 2d 1259, 1307 (S.D. Fla. 2003) (quoting Humane Soc’y v. Hodel,
840 F.2d 45, 58 (D.C. Cir. 1988)). Stated differently, germaneness only requires that the
injury allegedly suffered by the organization’s members has “some reasonable connection
with the reasons the members joined the organization and with the objectives of the
organization.” Med. Ass’n of Ala. v. Schweiker, 554 F. Supp. 955, 965 (M.D. Ala. 1983),
aff’d per curiam, 714 F.2d 107 (11th Cir. 1983).
FAC states in the Amended Complaint that it is “a voluntary membership
organization that works to reform the sexual offender/predator laws and registry in
Florida . . . and advocates for the reform of laws that unreasonably limit the ability of
offenders to legally live and work in Florida’s communities.” (Doc. 32, ¶ 2). In support of
its standing, FAC submits the sworn declaration of its President, Gail Colletta, who
describes FAC’s purpose and activities in detail. (Doc. 52-1). Ms. Colletta confirms that
FAC has worked since 2011 to reform Florida’s sexual offender and predator laws and
explains that FAC accomplishes its objectives in part by engaging in litigation to target
laws which FAC’s members believe to unconstitutionally infringe on their rights. (Id. ¶¶ 1–
2, 4). To that end, Ms. Colletta estimates that approximately 650 individuals comprise
7
FAC’s membership and states that these members consist of registered sexual offenders
and predators, their friends and family, treatment providers, and other members of the
general public who support FAC’s goals. (Id. ¶ 5). Ms. Colletta further discloses that FAC
is run by a Board of Directors composed solely of members and that the Board of
Directors evaluates potential litigation opportunities presented by FAC’s membership.
(See id. ¶¶ 8, 11, 14, 16). In fact, Ms. Colletta reveals that FAC’s Board of Directors first
learned of Seminole County’s Ordinance through a conference call with its members. (Id.
¶ 15).
FAC again provides sufficient facts at this stage of the proceedings to carry its
burden of proving that the interests it pursues in this lawsuit are germane to its purpose.
FAC shows that part of its purpose is to reform sexual offender and predator laws in
Florida, that its members join the organization to help FAC forward that purpose, and that
its membership specifically proposed that FAC challenge the Ordinance in this case
because they believe the Ordinance has caused and continues to cause their
constitutional injuries. The Court is therefore satisfied that the interests FAC seeks to
protect through this litigation—reforming a law which imposes travel restrictions on sexual
offenders and predators within Seminole County—are germane to its stated purpose and
to the injuries allegedly suffered by some of its members.
In sum, the Court finds that FAC carries its burden of demonstrating that at least
one of its members has individual standing to bring the constitutional challenges asserted
in the Amended Complaint and that the interests FAC seeks to protect through this
litigation are germane to its purpose. Because Seminole County does not contest the
third element of associational standing—that individual participation of FAC’s members
in this lawsuit would be unnecessary to resolve FAC’s claims or to grant the relief FAC
8
seeks—the Court concludes that FAC has associational standing sufficient to survive
Seminole County’s motion to dismiss.
B.
Whether FAC States Claims for Relief
Seminole County next moves to dismiss all of FAC’s constitutional challenges to
the Ordinance for failing to state claims under Rule 12(b)(6). A motion to dismiss made
under this rule tests the legal sufficiency of a plaintiff’s complaint. In order to survive the
motion, the complaint must “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the
plaintiff alleges enough facts to “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The mere recitation of the elements of a claim are not enough and the district
court need not give any credence to legal conclusions that are not supported by sufficient
factual material. Id. District courts must accept all well-pleaded allegations within the
complaint as true and read the complaint in the light most favorable to the plaintiff.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).
“To state a Section 1983 claim, a plaintiff must allege that the defendant acted
under color of state law to deprive the plaintiff of a federal right.” Incredible Invs., LLC v.
Fernandez-Rundle, 28 F. Supp. 3d 1272, 1279 (S.D. Fla. 2014). In this case, FAC alleges
that, through the Ordinance, Seminole County has deprived its members of numerous
federal and state constitutional rights. The Court examines each right in turn:
1.
Void for Vagueness
Count 1 alleges that the Ordinance is void for vagueness under the Fourteenth
Amendment to the United States Constitution. Challenges based on a law’s vagueness
are characterized as either “facial” or “as-applied.” See DA Mortg., Inc. v. City of Miami
9
Beach, 486 F.3d 1254, 1262 (11th Cir. 2007). In a facial challenge, the plaintiff seeks to
invalidate a law in its entirety. Id. Conversely, a plaintiff who mounts an as-applied
challenge seeks to vindicate only his or her own rights with respect to the law. Id. FAC
challenges the Ordinance both on its face and as applied to its members. (Doc. 32, ¶ 2;
Doc. 52, p. 1).
Regardless of whether a plaintiff’s vagueness challenge is best characterized as
facial, as-applied, or both, it is enough at the pleading stage for the plaintiff to allege
sufficient factual material to allow the Court to reasonably infer that the contested law is
unconstitutionally vague. See Iqbal, 556 U.S. at 678. A law is unconstitutionally vague
when it fails to provide adequate notice to citizens of what it proscribes or the law provides
insufficient guidance on how it is to be applied. Leib v. Hillsborough Cty. Pub. Transp.
Comm’n, 558 F.3d 1301, 1310 (11th Cir. 2009).
Therefore, a plaintiff can state a
vagueness claim either by showing (1) the contested law is so unclear that no person of
ordinary intelligence would be able to read the law and understand what conduct it
prohibits, or (2) the law is so unclear that it effectively empowers police officers, judges,
and juries to enforce the law on an ad hoc, subjective, arbitrary, or discriminatory basis.
Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972); Diversified Numismatics, Inc.
v. City of Orlando, 949 F.2d 382, 386–87 (11th Cir. 1991) (per curiam). 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.”
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
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
10
members cannot “determine whether or not their travel through public streets pass within
a restricted exclusion zone.” (Doc. 32, ¶ 94). 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. (Id. ¶¶ 29, 38, 39). 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. (Id. ¶¶ 40–43). 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. (Id. ¶ 90). 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. (See id. ¶¶ 50–51, 60–61, 68–70, 80–82). 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. (Id. ¶¶ 56, 67,
73, 85).
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.” (Id. ¶ 95). FAC says that, although the Ordinance
enumerates ten exceptions which permit an individual to travel through an exclusion zone,
11
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.” See SCC § 228.2(h). FAC argues that this exception is unclear for its failure
to define the terms “familial” and “obligation,” (Doc. 32, ¶ 31), and that Doe #1 does not
understand whether “familial obligation” includes traveling through an exclusion zone to
go to the grocery store to buy food or to a hardware store to purchase home repair items,
(id. ¶ 77).
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.
(Id. ¶ 63). 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. (Id. ¶ 66). 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. (Id.). 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. (See id. ¶ 64).
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
12
zone for a “legitimate reason.”
(Id. ¶ 92).
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. (Id.). To FAC’s knowledge, Seminole County has not illuminated which, if
any, of these standards are correct. (Id.).
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. 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, 439 U.S. 379, 395 (1979) (“This Court has long
recognized that the constitutionality of a vague statutory standard is closely related to
whether that standard incorporates a requirement of mens rea.”); cf. High Ol’ Times, Inc.
v. Busbee, 673 F.2d 1225, 1229 (11th Cir. 1982) (“[T]he inclusion of a specific mens rea
element may alleviate a law’s vagueness with respect to providing fair notice . . . .”).
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.
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2.
Procedural Due Process
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. 32,
¶¶ 98–100). It is true that the vagueness of a challenged law necessarily implicates
procedural due process. See Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340,
1349 (11th Cir. 2011). The Court therefore agrees with Seminole County that Count 2 is
really another iteration of Count 1. Accordingly, for the same reasons FAC stated a void
for vagueness claim in Count 1, FAC also states a procedural due process claim in
Count 2. See Section II.B.1, supra.
3.
Ex Post Facto Clause
Count 3 alleges that the Ordinance violates the Constitution’s Ex Post Facto
Clause. 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.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver
v. Graham, 450 U.S. 24, 29 (1981)) (citations and internal quotation marks omitted). A
law is retrospective when it “appl[ies] to events occurring before its enactment.” Id.
(quoting Weaver, 450 U.S. at 29). Seminole County does not dispute that the Ordinance
is retrospective, as it was enacted in October 2005 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
14
enforcement mechanism for ensuring that sex offenders do not approach children.”
(Doc. 44, p. 27).
Whether a law increases punishment for a past crime is ascertained by first
determining whether the legislating entity intended the law “to establish ‘civil’
proceedings” or to inflict punishment. Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting
Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). “If the intention of the legislature was
to impose punishment, that ends the inquiry.” Id. 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.” United States v. Ward, 448 U.S. 242, 248–49 (1980).
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. Id. These guideposts include:
Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional
aims of punishment—retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an
alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation
to the alternative purpose assigned . . . .
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963) (footnotes omitted).
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 1,000 feet
of a school, daycare center, park, or playground. SCC § 228.2. Moreover, all sexual
offenders and predators who are required to register with the Seminole County Sheriff
15
must sign a document which states that violation of the Ordinance is a misdemeanor and
“will be . . . charged accordingly.”
(Doc. 32-4).
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. FAC therefore states
an Ex Post Facto Clause claim against the Ordinance.
4.
The Right to Freedom of Association
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, 490 F. App’x 200, 203 (11th
Cir. 2012) (per curiam). 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.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18
(1984). 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. Id. at 618. FAC only asserts that the Ordinance
violates the right to intimate association. (Doc. 32, ¶ 106; Doc. 52, pp. 22–23).
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.3d 1558, 1563 (11th Cir. 1994). To that end, the United
States Supreme Court recognizes a spectrum of personal relationships. 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.” Roberts, 468 U.S. at 619 (citations omitted). These relationships are
16
clearly protected under the First Amendment because they are “the most intimate” of
human associations. Id. at 620. 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. See id.; McCabe,
12 F.3d at 1563. These relationships are “the most attenuated of personal attachments”
and are not sufficient to warrant first amendment protection. Roberts, 468 U.S. at 620;
see also, e.g., Moore, 490 F. App’x at 203–04 (holding that friendship, without more, is
not constitutionally protected); Cummings v. DeKalb Cty., 24 F.3d 1349, 1354 (11th Cir.
1994) (holding that co-worker relationship is not constitutionally protected), cert. denied,
513 U.S. 1111 (1995). “Between these poles, of course, lies a broad range of human
relationships that may make greater or lesser claims to constitutional protection . . . .”
Roberts, 468 U.S. at 620. Overall, relationships deserving protection will exhibit traits
which are quantitatively and qualitatively more akin to familial relationships, such as
congeniality, a shared purpose, smallness in size relative to the relationship’s shared
purpose, selectivity in entering into and maintaining the relationship, and seclusion from
others in making decisions important to the relationship. See id.; Bd. of Dirs. of Rotary
Int’l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987).
Here, FAC alleges sufficient facts to warrant the reasonable inference that the
Ordinance infringes upon a protected personal relationship. FAC states that Doe #3’s
niece and her children live in Seminole County and that they have asked Doe #3 to join
them at various parks and playgrounds within Seminole County to watch other family
members play in sporting events. (Doc. 32, ¶ 78). However, because of the Ordinance’s
travel restrictions, Doe #3 is not permitted to do so. (Id. ¶ 79). Although FAC offers no
other facts describing the character and extent of Doe #3’s relationship with his niece and
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her children, the Court can reasonably infer that the relationship is closer to the familial
end of the Supreme Court’s spectrum than not. Doe #3 is obviously related to his niece
and her children and the parties appear to want to maintain a familial relationship by
attending family events together.
Because the Ordinance prohibits Doe #3 from
associating with his niece and her children at parks and playgrounds, the Court can
reasonably infer that the Ordinance infringes on the first amendment right to freedom of
intimate association.
5.
Infringement of the Right to Intrastate Travel
Finally, Count 5 alleges that the Ordinance infringes the right to intrastate travel
guaranteed by Article I, Section 2 of the Florida Constitution. As recognized by the Florida
Supreme Court, the right to travel within the State is well-established:
Hailing a cab or a friend, chatting on a public street, and
simply strolling aimlessly are time-honored pastimes in our
society and are clearly protected under Florida as well as
federal law. All Florida citizens enjoy the inherent right to
window shop, saunter down a sidewalk, and wave to friends
and passersby with no fear of arrest.
State v. J.P., 907 So. 2d 1101, 1113 (Fla. 2004) (quoting Wyche v. State, 619 So. 2d 231,
235 (Fla. 1993). Therefore, to state a claim that a law violates the right to intrastate travel,
a plaintiff must show that the law limits his ability to move within the State. See Catron v.
City of St. Petersburg, 658 F.3d 1260, 1270 (11th Cir. 2011).
FAC easily alleges that the Ordinance limits the movement of its registered
members within Florida. The Ordinance itself explicitly prohibits sexual offenders and
predators from traveling through or remaining within a 1,000-foot exclusion zone which
surrounds every school, daycare center, park, and playground within Seminole County.
See SCC § 228.2. Due to the sheer number of exclusion zones the Ordinance creates
and the breadth of each zone, FAC explains that Doe #1 cannot leave his neighborhood
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unless his movement falls within one of the ten exceptions enumerated by the Ordinance.
(Doc. 32, ¶¶ 58–59). Similarly, because Doe #4 lives within an exclusion zone, he is
essentially forbidden from leaving his home unless it is for one of the Ordinance’s
exceptions. (Id. ¶ 84). Because the Ordinance applies to all sexual offenders and
predators in Florida regardless of whether they live in Seminole County, FAC further
alleges that the Ordinance limits the movements of those who would otherwise travel
through Seminole County on their way to other parts of the State. (Id. ¶ 23). FAC has
additionally attached a map to its Amended Complaint which it contends identifies most
of the exclusion zones within Seminole County. (Doc. 32-3). According to that map,
sexual offenders and predators are barred from entire cities within Seminole County.
Based on these factual allegations, the Court can reasonably infer that the Ordinance
limits the ability to move within Florida. FAC therefore states a claim that the Ordinance
infringes the right to intrastate travel under the Florida Constitution.
C.
Whether FAC May Seek Injunctive Relief
As a final matter, Seminole County moves to dismiss FAC’s demand for injunctive
relief should it prevail on any of its constitutional challenges. (Doc. 44, pp. 34–35).
However, only claims for relief are subject to dismissal, not the relief itself. See Fed. R.
Civ. P. 12(b)(6); Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002). Since an
injunction is relief rather than a claim for relief, a motion to dismiss is not the appropriate
vehicle for its disposal.
III.
CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant Sheriff Eslinger’s Motion to Dismiss Amended Complaint
(Doc. 44) is DENIED.
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2. Defendant Seminole County’s Motion to Dismiss Plaintiff’s Amended
Complaint for Declaratory and Injunctive Relief (Doc. 45) is DENIED.
3. Defendants shall answer Plaintiff’s Amended Complaint within fourteen
(14) days of this Order.
DONE AND ORDERED in Orlando, Florida on June 17, 2016.
Copies furnished to:
Counsel of Record
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APPENDIX A
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