Lee judges: Law restricting sex offender movements too broad

12-16-2009 Florida:

A Lee County ordinance that excluded sex offenders from recreational sites like beaches and swimming pools was deemed too broad by a pair of county judges in a ruling released Monday.

Yet, judges Radford R. Sturgis and John E. Duryea Jr. upheld the law’s constitutionality while removing some of its haziest language.

Defense attorneys in the case said they were satisfied.

“They recognized that certain words had to be given a plain and ordinary meaning,” said John Coleman.

Sheriff Mike Scott, whose agency crafted the law, said the law will be immediately amended as ordered.

“The safety and well being of our community is paramount to us and the ordinance still provides important protections for our citizens as the premise of it remains intact,” Scott wrote in an e-mail.

The ordinance, passed by the Lee County Commission in March, prohibited registered sex offenders from visiting any public place where children “regularly congregate.” It listed zoos, libraries and daycare centers, but opened the list to “other similar type places where children congregate.”

Sex offenders were prohibited from a 300-foot radius of the sites. An arrest can mean a 60-day stay in jail and a $500 fine.

The vague language of the law had attorneys demanding a review.

“Basically what we’re arguing is you got a right to walk down the street,” said Fort Myers attorney Peter Aiken.

“Individuals are not supposed to guess at what is lawful or unlawful,” said Coleman.

Aiken represented Joseph Comfort, a Lehigh Acres man arrested for tanning at a public swimming pool. Comfort’s case wasn’t overturned in Monday’s ruling, as the judges decided the ordinance’s reference to “public swimming pool,” was commonly understood. Aiken said he was still pleased by the ruling.

“It sort of split the baby, because we lose on part of it, but we win on part of it because it knocks out a lot of the vague language,” he said.

In the order, Duryea and Sturgis wrote that the number of sites possibly prohibited in the ordinance, “is so diverse as to make the added inclusive terms of ‘but not limited to’ and ‘other similar languages’ overbroad and inexclusive of innumerable locations which could potentially have a chilling effect on the exercise of fundamental constitutional rights.”

The other defendant covered by the motion, Jeffrey Israel, saw his case dropped, due to a separate motion that Coleman filed for dismissal. Israel was arrested after being spotted near a private swimming pool in his own neighborhood.

Both attorneys remain critical of the ordinance. Aiken notes that Comfort’s original charge had nothing to do with children, and Coleman pointed out that his client wore a GPS device on his leg and lived with his parents.

Coleman questioned the usefulness of the ordinance.

“It’s a matter of politics,” he said. “They can stand on the good side there — ’We’re trying to protect children.’ No one really stands in defense of the accused.”

“We’re a very unforgiving society,” he added. ..Source.. STEVEN BEARDSLEY