Ord 75-05
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ORDINANCE NO. 75-05
AN ORDINANCE OF THE CITY OF DELRA Y BEACH
AMENDING TITLE 13, "GENERAL OFFENSES", OF THE
CODE OF ORDINANCES BY ENACTING A NEW
CHAPTER 136, "SEXUAL OFFENDERS AND SEXUAL
PREDATORS"; PROVIDING FOR DEFINITIONS;
PROHIBITING SEXUAL OFFENDERS AND SEXUAL
PREDATORS CONVICTED OF CRIMES UNDER
CERTAIN FLORIDA STATUTES FROM LIVING WITHIN
1,500 FEET OF SPECIFIED LOCATIONS WITHIN THE
CITY OF DELRA Y BEACH AND PROVIDING FOR
PENALTIES; PROVIDING A SAVING CLAUSE;
GENERAL REPEALER CLAUSE; AND AN EFFECTIVE
DATE.
WHEREAS, the Mayor and the City Commission are deeply concerned about
occurrences in our state and elsewhere, whereby convicted sex offenders who have been released
from custody victimize children within the community where they reside; and
WHEREAS, the Mayor and the City Commission acknowledge the recidivism rate for
released sex offenders is alarmingly high, especially for those who commit their crimes on children;
and
WHEREAS, the Florida Legislature has determined that sexual offenders and predators
convicted of certain sexual crimes pose a real and substantial danger to children and therefore, has
prohibited such sexual offenders and predators from residing within one thousand (1,000) feet from
certain locations where children regularly congregate, as set forth in sections 794.065 and 947.1405,
Florida Statutes; and
WHEREAS, the Mayor and the City Commission desire to establish a policy which
protects, to an extent greater than the State statutes, the public health, safety, and welfare of its most
vulnerable citizens from this threat; and
WHEREAS, Article VIII, Section 2(b) of the Florida Constitution and ~166.021, Florida
Statutes, grant the City authority to adopt such provisions in order to protect the health, safety and
welfare of its residents; and
WHEREAS, the 8'" Circuit, United States Court of Appeals recently issued an opinion in
the case of Doe v. Miller, 2005 WL 991635 (8'" Cir. April 29, 2005) in which the Court upheld similar
residency restrictions adopted by the State of Iowa, and found the restrictions to be valid; and
r'
/'1
WHEREAS, F.S. 794.065 and F.S. 947.1405 does not contain clear language expressly
preempting local government from enacting ordinances regarding unlawful places of residences for
persons convicted of sex offenses, nor is the legislative scheme so pervasive as to evidence an intent
to preempt the particular area, or is there such a strong public policy reason for finding such an area
preempted by the Legislature as depicted in Phantom of Clearwater, Inc. V. Pinel/as County, 894 So.2d
1011 (FL, 2nd DCA, 2005); and
WHEREAS, the City Commission finds that the creation of a Sexual Violator Residency
Prohibition Section in the City Code of Ordinances to prohibit convicted sex offenders from living
within one thousand five hundred (1,500) feet of specified locations in the City of Dekay Beach is in
the best interest of the health, safety and welfare of the residents and citizens of the City of Dekay
Beach.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRA Y BEACH, FLORIDA AS FOLLOWS:
Section 1. That Chapter "General Provisions" of the Code of Ordinances of the City of
Dekay Beach is hereby amended by enacting Chapter 136, "Sexual Offenders and Sexual Predators",
to read as follows:
CHAPTER 136. SEXUAL OFFENDERS AND SEXUAL PREDATORS
Sec. 136.ot. DEFINITIONS.
(A) The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this chapter, except where the context clearly indicates a different
mearung:
(1) "Permanent residence" means a place where the person abides, lodges, or
resides for 14 or more consecutive days.
(2) "Temporary residence" means a place where the person abides, lodges, or
resides for a period of 14 or more days in the aggregate during any calendar year and which is not
the person's permanent address, or a place where the person routinely abides, lodges, or resides for a
period of 4 or more consecutive or nonconsecutive days in any month and which is not the person's
permanent residence.
Sec. 136.02 SEXUAL OFFENDER AND SEXUAL PREDATOR RESIDENCE
PROHIBITION.
2
Ordinance No. 75-05
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(A) It is unlawful for any person who has been convicted of a violation of
Section 794.011 ("Sexual battery"), 800.04 ("Lewd or lascivious offenses committed upon or in the
presence of persons less than 16 years of age"), 827.071 ("Sexual performance by a child"), or
847.0145 ("Buying or selling of minors"), Florida Statutes, or similarly relates to offenses if out-of-
state, regardless of whether adjudication has been withheld, in which the victim of the offense was
less than 16 years of age, to establish a permanent residence or temporary residence within 1,500
feet of any school, designated public school bus stop, day care center, or park.
(B) For purposes of determining the minimum distance separation, the distance shall be
measured by following a straight line from the outer property line of the permanent residence or
temporary residence to the nearest outer property line of a school, designated public school bus
stop, day care center or park.
(C) Exceptions:
A person referenced in B(l) and residing within 1,500 feet of any school,
designated public school bus stop, day care center, or park, does not commit a violation of this
section if:
(1) The person established the permanent residence prior to November
15,2005 (the effective date of this Ordinance No. 75-05);
(2) The person had permanent residency pnor to being designated a
sexual offender or predator.
(3) The person was a minor when he/she committed the offense and
was not convicted as an adult.
(4) The person is a minor.
(5) The school, designated public school bus stop, day care center, or
park or within 1,500 feet of the person's permanent residence was opened after the person
established the permanent residence.
Sec. 136.03 ENFORCEMENT AND PENALTIES.
A person who violates this section shall be punished as provided in Section 10.99, Code
of Ordinances.
Section 2. If any section, subsection, paragraph, sentence or word or other
provision of this ordinance, or any portion thereof, or its application to any person or circumstance,
be declared by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall
3
Ordinance No. 75-05
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/,\
not affect the validity of any other section, subsection, paragraph, sentence or word or provision or
its application to other persons or circumstances and shall not affect the validity of the remainder
hereof as a whole or part thereof other than the part declared to be invalid.
Section 3.
same are hereby repealed.
All ordinances or parts of ordinances in conflict herewith be, and the
Section 4.
second and final reading.
This ordinance shall become effective immediately upon passage on
PASSED AND ADOPTED by the City ~mmission of the City of Delray Beach in
regular session on second and final reading on this ~ (lay of November, 2005.
ATTEST:
CITY OF DELRA Y BEACH, FLORIDA
~.... ~>'D.~~:~.
City Clerk
First Reading on \ \\ \()l5
Second Reading on \ ~ c:; \c::F;
~z~
, Mayor
4
Ordinance No. 75-05
MEMORANDUM
FROM:
MAYOR AND CITY COMMISSIONERS
CITY MANAGERen1
AGENDA ITEM # 'Or - REGULAR MEETING OF NOVEMBER 15. 2005
ORDINANCE NO. 75-05 (AMENDING TITLE 13. "GENERAL
OFFENSES")
TO:
SUBJECT:
DATE:
NOVEMBER 11,2005
This ordinance is before Commission for second reading and public hearing to amend Tide 13,
"General Offenses", of the Code of Ordinances, by enacting a new Chapter 136, "Sexual Offenders
and Sexual Predators", which provides that sexual predators and sexual offenders cannot reside within
1,500 feet of a designated school, public bus stop, day care center, or park.
At the first reading on November 1, 2005, the Commission passed Ordinance No. 75-05.
Recommend approval of Ordinance No. 75-05 on second and final reading.
S:\City Clerk\agenda memos Oed 75-05 Sexual Predators Offenders 111505
[IT' DF DELRA' BEA[H
CITY anORNEY'S OFFICE
... POLICE LEGAL ADVISOR
" III!
300 \V ATLANTIC A VEr-:UE . DELRA Y BEACH. FLORIDA 33444
TELEPH()!\[ :;()L"ltl)-7K23. FACSIJ\..llLE 561/243-71315
1993
POLICE LEGAL ADVISOR
MEMORANDUM
To:
City Commission
David Harden, City Manager
Catherine M. Kozol, 17 J
Police Legal Advisor/~Attorney
From:
Date:
October 18, 2005
Re:
Sexual Predators and Sexual Offenders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Attached please find an original and two copies of the Sexual Predator
and Sexual Offender Ordinance for placement on the Agenda.
This is an ordinance which provides that sexual predators and sexual
offenders cannot reside within 1500 feet of a designated school, public bus stop,
day care center or park. There are exceptions for offenders and predators who
are juveniles or who have established a permanent residence in Delray Beach
prior to the enactment of the ordinance. Any person who violates this shall be
punished with up to a $500.00 fine and/or 60 days in the county jail, our standard
ordinance penalty.
If you have any questions, please do not hesitate to call me.
Ath/encs.
cc with Encs.
Chevelle Nubin, City Clerk
Susan Ruby, City Attorney
Chief J. Schroeder
of<
4
\ ;t,&
ORDINANCE NO. 75-05
AN ORDINANCE OF THE CITY OF DELRAY BEACH
AMENDING TITLE 13, "GENERAL OFFENSES", OF
THE CODE OF ORDINANCES BY ENACTING A NEW
CHAPTER 136, "SEXUAL OFFENDERS AND SEXUAL
PREDATORS"; PROVIDING FOR DEFINITIONS;
PROHIBITING SEXUAL OFFENDERS AND SEXUAL
PREDATORS CONVICTED OF CRIMES UNDER
CERTAIN FLORIDA STATUTES FROM LIVING WITHIN
1,500 FEET OF SPECIFIED LOCATIONS WITHIN THE
CITY OF DELRAY BEACH AND PROVIDING FOR
PENALTIES; PROVIDING A SAVING CLAUSE;
GENERAL REPEALER CLAUSE; AND AN EFFECTIVE
DATE.
WHEREAS, the Mayor and the City Commission are deeply concerned about
occurrences in our state and elsewhere, whereby convicted sex offenders who have
been released from custody victimize children within the community where they reside;
and
WHEREAS, the Mayor and the City Commission acknowledge the recidivism
rate for released sex offenders is alarmingly high, especially for those who commit their
crimes on children; and
WHEREAS, the Florida Legislature has determined that sexual offenders and
predators convicted of certain sexual crimes pose a real and substantial danger to
children and therefore, has prohibited such sexual offenders and predators from
residing within one thousand (1,000) feet from certain locations where children regularly
congregate, as set forth in sections 794.065 and 947.1405, Florida Statutes; and
WHEREAS, the Mayor and the City Commission desire to establish a policy
which protects, to an extent greater than the State statutes, the public health, safety,
and welfare of its most vulnerable citizens from this threat; and
WHEREAS, Article VIII, Section 2(b) of the Florida Constitution and ~166.021,
Florida Statutes, grant the City authority to adopt such provisions in order to protect the
health, safety and welfare of its residents; and
WHEREAS, the 8th Circuit, United States Court of Appeals recently issued an
opinion in the case of Doe v. Miller, 2005 WL 991635 (8th Cir. April 29, 2005) in which
the Court upheld similar residency restrictions adopted by the State of Iowa, and found
the restrictions to be valid; and
1
WHEREAS, F.S. 794.065 and F.S. 947.1405 does not contain clear language
expressly preempting local government from enacting ordinances regarding unlawful
places of residences for persons convicted of sex offenses, nor is the legislative
scheme so pervasive as to evidence an intent to preempt the particular area, or is there
such a strong public policy reason for finding such an area preempted by the
Legislature as depicted in Phantom of Clearwater, Inc. V. Pinel/as County, 894 So.2d
1011 (FL, 2nd DCA, 2005); and
WHEREAS, the City Commission finds that the creation of a Sexual Violator
Residency Prohibition Section in the City Code of Ordinances to prohibit convicted sex
offenders from living within one thousand five hundred (1,500) feet of specified locations
in the City of Delray Beach is in the best interest of the health, safety and welfare of the
residents and citizens of the City of Delray Beach.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF DELRA Y BEACH, FLORIDA AS FOLLOWS:
Section 1. That Chapter "General Provisions" of the Code of Ordinances of the
City of Delray Beach is hereby amended by enacting Chapter 136, "Sexual Offenders
and Sexual Predators", to read as follows:
CHAPTER 136. SEXUAL OFFENDERS AND SEXUAL PREDATORS
Sec. 136.01. DEFINITIONS.
(A) The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this chapter, except where the context
clearly indicates a different meaning:
(1) "Permanent residence" means a place where the person abides,
lodges, or resides for 14 or more consecutive days.
(2) "Temporary residence" means a place where the person abides,
lodges, or resides for a period of 14 or more days in the aggregate during any calendar
year and which is not the person's permanent address, or a place where the person
routinely abides, lodges, or resides for a period of 4 or more consecutive or
nonconsecutive days in any month and which is not the person's permanent residence.
Sec. 136.02 SEXUAL OFFENDER AND SEXUAL PREDATOR RESIDENCE
PROHIBITION.
(A) It is unlawful for any person who has been convicted of a violation
of Section 794.011 ("Sexual battery"), 800.04 ("Lewd or lascivious offenses committed
upon or in the presence of persons less than 16 years of age"), 827.071 ("Sexual
2
performance by a child"), or 847.0145 ("Buying or selling of minors"), Florida Statutes,
or similarly relates to offenses if out-of-state, regardless of whether adjudication has
been withheld, in which the victim of the offense was less than 16 years of age, to
establish a permanent residence or temporary residence within 1,500 feet of any
school, designated public school bus stop, day care center, or park.
(B) For purposes of determining the minimum distance separation, the
distance shall be measured by following a straight line from the outer property line of the
permanent residence or temporary residence to the nearest outer property line of a
school, designated public school bus stop, day care center or park.
(C) Exceptions:
A person referenced in B(1) and residing within 1,500 feet of any
school, designated public school bus stop, day care center, or park, does not commit a
violation of this section if:
(1) The person established the permanent residence prior to
, 2005 (the effective date of this Ordinance No. );
(2) The person had permanent residency prior to being
designated a sexual offender or predator.
(3) The person was a minor when he/she committed the offense
and was not convicted as an adult.
(4) The person is a minor.
(5) The school, designated public school bus stop, day care
center, or park or within 1,500 feet of the person's permanent residence was opened
after the person established the permanent residence.
Sec. 136.03 ENFORCEMENT AND PENALTIES.
A person who violates this section shall be punished as provided in Section
10.99, Code of Ordinances.
Section 2. If any section, subsection, paragraph, sentence or word or
other provision of this ordinance, or any portion thereof, or its application to any person
or circumstance, be declared by a court of competent jurisdiction to be invalid or
unconstitutional, such decision shall not affect the validity of any other section,
subsection, paragraph, sentence or word or provision or its application to other persons
or circumstances and shall not affect the validity of the remainder hereof as a whole or
part thereof other than the part declared to be invalid.
3
not affect the validity of any other section, subsection, paragraph, sentence or word or provision or
its application to other persons or circumstances and shall not affect the validity of the remainder
hereof as a whole or part thereof other than the part declared to be invalid.
Section 3.
same are hereby repealed.
All ordinances or parts of ordinances in conflict herewith be, and the
Section 4.
second and final reading.
This ordinance shall become effective immediately upon passage on
PASSED AND ADOPTED by the City Commission of the City of Delray Beach in
regular session on second and fmal reading on this _ day of November, 2005.
ATTEST:
CITY OF DELRA Y BEACH, FLORIDA
City Clerk
Jeff Perlman, Mayor
First Reading on
Second Reading on
4
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C)~ -1a;
Boca Raton/Delray Beach News - FridaylSaturday, November 4-5, 2005 23
www.bocanews.com .
100
ANNOUNCEMENTS
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VIDING A GENERAl. REPfAlER
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RAY BEACH MENDN3 TIIl.f 13,
"GENEAAlt:lffmsES",lFlHECOOE
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NEW CHAPTER 136. "'SEXUAL
0ffEtt)fRS AND SEXUAl PREDA-
TORS";, PRQVJOING fOR DEAN!-
nONS: PROHIBmNG SEXUAL
OffENDERS AND SEXUAl fIREl)A-
TORS COHVICTED OF CRIMEs
UNIJERCfRTAlNRDRlDASTATUltS
AIDU- lIVING WITHIN l.soo fEET OF
SPEClAED LOCAl1ONSWfTHlNnt:
ClTY OF OElRAY 8fACH AND PRO-
VlDINGffiflPENAl1'Q;PROVlDIMi
A SAVING CLAUSE; GENERAl
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I.EG.u. None..
I1t:t't:AILH~ANIJ'ANI:f-H::G-
llVEOATE
Pleasebeadvisedlhalifa~
decides to appeal any decision made
bytheCilyCommissionwitflrespootlO
anymattetCOl1sideredallhesehear-
ings,sucl1pernon may need loenSu-e
tNt-averbllllmrecordiocludeslhefes.-
tirnony and evidence upon which tile
appeal is to be based. The City does
~~F'1=os~reront
ClTYOfDflAAY IlfACH
CheWIleO.Nubin
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