Steven J. Wernick, In Accordance with a Public Outcry: Zoning Out Sex Offenders through Residence Restrictions in Florida

58 Fla. L. Rev. 1147 (2006) | | | |

INTRODUCTION :: On January 11, 2006, William Smith Jr., a sixty-five-year-old convicted sex offender, moved into a small wooden house behind a day-care center in Ocala, Florida. His housewarming, however, was short-lived. The day after Smith moved in, local police officers arrived at his house and informed him that he would have to find another place to call home. Under a new city ordinance, sex offenders guilty of crimes against children under the age of sixteen are prohibited from living within 1,500 feet of locations where children gather. When Smith failed to take steps to change his residence, on January 30, 2006, he became the first person arrested under Ocala’s residence restrictions.

Ocala is not the only place where sex offenders face restrictions on where they may reside. Twenty different states and a spate of local governments have turned to residential buffer zones as a possible method of preventing sex crimes against children. Expanding upon registration laws aimed at keeping tabs on previously convicted sex offenders, state lawmakers have enacted residence restrictions prohibiting sex offenders from living near schools and other child-centered facilities. Not satisfied with existing state legislation, numerous municipalities have passed or are considering laws imposing even harsher restrictions. In the spirit of the Not in My Backyard (NIMBY) movement, these laws often appear to be an attempt by towns, cities, counties, and other local governments to expel sex offenders altogether.


Proponents of residence restrictions argue that there is no cure for sex offenders and that sex offenders have a high rate of recidivism that makes them a potential threat forever. Opponents counter that recent studies show no causal link between proximity of sex offenders to children and the propensity of recidivism. Despite evidence that residence restrictions may be missing the mark when it comes to preventing sex crimes involving child victims, courts are typically reluctant to interfere with state legislatures on how best to protect the health and safety of their citizens. In light of the Eighth Circuit’s ruling in Doe v. Miller and the Supreme Court’s decision not to grant certiorari, it seems unlikely that Florida’s current legislation will succumb to constitutional challenges.

The recent upsurge in municipal efforts to enact even stricter residence restrictions, however, is cause for concern. These municipal ordinances may be pre-empted by, or in conflict with, state law when the state has already occupied the field. Most importantly, and from a policy perspective, tougher residence restrictions may not solve the problem. Even if these ordinances are constitutional on their face, the myopic race to exclude sex offenders from communities could potentially increase their propensity to reoffend.

The Florida Legislature is continuously re-thinking its comprehensive approach to the sex offender problem. This Note evaluates Florida’s residence restrictions against sex offenders in light of the most recent developments in the courts and discusses potential solutions to protecting these restrictions against litigation. This Note will proceed with a background on sex crimes, discussing the progression of restrictive legislation aimed at sex offenders, from registration and notification laws to new laws that effectively quarantine sex offenders from certain neighborhoods. This Note will then address constitutional challenges faced by state and local governments and the recent holding in Doe v. Miller, upholding the legitimacy of these laws.

In the wake of Doe v. Miller, this Note will analyze Florida’s approach to residence restrictions against sex offenders and the likelihood that these buffer zones will withstand judicial scrutiny. Even assuming that states and local governments will be afforded broad discretion, there are several concerns that must be addressed to protect against as-applied challenges and to create more effective laws, including the potential conflict between state and local laws. This Note will conclude with a proposal for creating uniform legislation that withstands judicial scrutiny while effectuating the legislative purpose of protecting children from future harm.

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