Case: 15-14336    Date Filed: 01/25/2017    Page: 1 of 15


                                                                          [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-14336
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:14-cv-23933-PCH



JOHN DOE #1,
JOHN DOE #2,
JOHN DOE #3,
FLORIDA ACTION COMMITTEE, INC.,

                                                   Plaintiffs - Appellants,

versus

MIAMI-DADE COUNTY,
FLORIDA DEPARTMENT OF CORRECTIONS,
SUNNY UKENYE,
Circuit Administrator for the Miami Circuit Office,
Florida Department of Corrections, in his full official capacity,

                                                   Defendants - Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (January 25, 2017)
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Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.

WILSON, Circuit Judge:

         We vacate our prior opinion, Doe v. Miami-Dade Cnty., No. 15-14336, 2016

WL 5334979 (11th Cir. Sept. 23, 2016), and substitute the following opinion in its

place.

         Plaintiffs-Appellants John Doe #1, John Doe #2, John Doe #3, and the

Florida Action Committee, Inc. (FAC) (collectively, the Plaintiffs), appeal the

district court’s dismissal of their ex post facto challenges to the residency

restriction in Miami-Dade County’s Lauren Book Child Safety Ordinance (the

Ordinance). On appeal, the Plaintiffs argue that they pleaded sufficient facts to

state a claim that the residency restriction is so punitive in effect as to violate the

ex post facto clauses of the federal and Florida Constitutions. At this stage, we

conclude that Doe #1 and Doe #3 have alleged plausible ex post facto challenges to

the residency restriction. Therefore, we affirm in part, reverse in part, and remand

for proceedings consistent with this opinion.

                                            I

         On November 15, 2005, Miami-Dade County (the County) adopted the

Ordinance, which imposes, inter alia, a residency restriction on “sexual offenders”




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and “sexual predators.” 1 See Miami-Dade Cty., Fla., Code of Ordinances ch. 21,

art. XVII. The Ordinance prohibits a person who has been convicted of any one of

several enumerated sexual offenses involving a victim under sixteen years of age

from “resid[ing] within 2,500 feet of any school.” Id. § 21-281(a). The 2,500-foot

distance is “measured in a straight line from the outer boundary of the real property

that comprises a sexual offender’s or sexual predator’s residence to the nearest

boundary line of the real property that comprises a school,” rather than “by a

pedestrian route or automobile route.” Id. § 21-281(b). There are three exceptions

to the County’s residency restriction: (1) “[t]he sexual offender or sexual predator

established a residence prior to the effective date of th[e] [O]rdinance”; (2) “[t]he

sexual offender or sexual predator was a minor when he or she committed the

sexual offense and was not convicted as an adult”; and (3) “[t]he school was

opened after the sexual offender or sexual predator established the residence.” Id.

§ 21-282(1). Violations of the Ordinance are punishable by a fine up to $1,000,

imprisonment for up to 364 days, or both. Id. § 21-281(c).

       On December 20, 2014, the Plaintiffs filed a complaint against the County,

the Florida Department of Corrections, and the Florida Department of Corrections

Miami Circuit Administrator, Sunny Ukenye, in his official capacity (collectively,


   1
      The present text of the Ordinance is reproduced in the Appendix in relevant part. Any
differences between the 2005 version, which went into effect on November 25, 2005, and the
present version of the Ordinance are immaterial to this appeal.
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the Defendants), challenging the constitutionality of the County’s residency

restriction. Specifically, the Plaintiffs challenged the County’s residency

restriction (1) as void for vagueness under the Fourteenth Amendment and the

Florida Constitution; (2) as a violation of their substantive due process rights to

personal security and to acquire residential property under the Fourteenth

Amendment and the Florida Constitution; and (3) as an unconstitutional ex post

facto law under the federal and Florida Constitutions. The Defendants moved to

dismiss, and the district court dismissed all the claims with prejudice under Federal

Rule of Procedure 12(b)(6). The Plaintiffs properly appealed only the dismissal of

their ex post facto challenges against the County.

                                              II

       “We review de novo the district court’s grant of a motion to dismiss under

12(b)(6) for failure to state a claim, accepting the allegations in the complaint as

true and construing them in the light most favorable to the plaintiff.” Hill v. White,

321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam).

                                             III

       Both the federal and Florida Constitutions prohibit the passage of ex post

facto laws. See U.S. Const. art. I, § 9, cl. 3; id. art. I, § 10, cl. 1; Fla. Const. art. I, §

10. An ex post facto law is a law that “appl[ies] to events occurring before its

enactment” and that “disadvantage[s] the offender affected by it, by altering the


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definition of criminal conduct or increasing the punishment for the crime.” Lynce

v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 896 (1997) (internal quotation marks

and citation omitted). In Smith v. Doe, the Supreme Court outlined a framework

for determining whether Alaska’s sex offender registration and notification

requirements violated the federal Ex Post Facto Clause. See 538 U.S. 84, 92–93,

97, 123 S. Ct. 1140, 1146–47, 1149 (2003). We join our sister circuits in applying

the Smith framework to evaluate an ex post facto challenge to a residency

restriction on sexual offenders.2 See Doe v. Snyder, Nos. 15-1536, 15-2346, 15-

2486, slip op. at 5–7 (6th Cir. Aug. 25, 2016) (consolidated); Shaw v. Patton, 823

F.3d 556, 561–62 (10th Cir. 2016); Doe v. Miller, 405 F.3d 700, 718 (8th Cir.

2005).

       The Smith Court noted that Alaska’s statute was retroactive and applied the

following framework to determine whether the statute violated the Ex Post Facto

Clause:

              We must ascertain whether the legislature meant the
              statute to establish civil proceedings. If the intention of
              the legislature was to impose punishment, that ends the
              inquiry. If, however, the intention was to enact a
              regulatory scheme that is civil and nonpunitive, we must
              further examine whether the statutory scheme is so
              punitive either in purpose or effect as to negate the
              State’s intention to deem it civil.


   2
     We evaluate both the federal and state ex post facto challenges under Smith. See Houston v.
Williams, 547 F.3d 1357, 1364 (11th Cir. 2008).
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538 U.S. at 92, 123 S. Ct. at 1146–47 (alteration adopted) (internal quotation

marks and citations omitted). After determining that the Alaska legislature

intended to “create a civil, nonpunitive regime,” the Court explained that several

factors guide the second part of the analysis:

               whether, in its necessary operation, the regulatory
               scheme: [1] has been regarded in our history and
               traditions as a punishment; [2] imposes an affirmative
               disability or restraint; [3] promotes the traditional aims of
               punishment; [4] has a rational connection to a
               nonpunitive purpose; or [5] is excessive with respect to
               this purpose.

See id. at 96–97, 123 S. Ct. at 1149.3 Ultimately, the Court concluded that the

Alaska statute was not punitive and, therefore, did not violate the Ex Post Facto

Clause. See id. at 105–06, 123 S. Ct. at 1154.

                                                IV

       The County does not contest that its residency restriction applies to

individuals “convicted” of relevant sexual offenses before the passage of the

Ordinance. See Ordinance § 21-281(a); Lynce, 519 U.S. at 441, 117 S. Ct. at 896

(a statute is only retroactive if it “appl[ies] to events occurring before its

enactment” (internal quotation mark omitted)). Therefore, we accept for purposes


   3
      None of the factors is dispositive and two other factors may be considered in the second
step of the Smith framework: whether the regulatory scheme “comes into play only on a finding
of scienter” and whether “the behavior to which it applies is already a crime.” See Smith, 538
U.S. at 97, 105, 123 S. Ct. at 1149, 1154. However, the Court explained, these two factors
carried little weight in the Court’s analysis of the Alaska statute. See id. at 105, 123 S. Ct. at
1154.
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of this appeal that the residency restriction applies retroactively. Additionally, the

Plaintiffs do not contest the County’s assertion that the County intended the

Ordinance to be civil and non-punitive. Therefore, we also accept for purposes of

this appeal that the County intended to “create a civil, nonpunitive regime” under

the first step of the Smith analysis. See Smith, 538 U.S. at 96, 123 S. Ct. at 1149.

       Finally, only Doe #1 and Doe #3 have properly alleged that the County’s

residency restriction applied retroactively to them—that the restriction applied to

their pre-enactment convictions for qualifying sexual offenses. 4 Accordingly, we

need only decide whether Doe #1 and Doe #3 alleged sufficient facts to state a

plausible claim that the County’s residency restriction is so punitive in effect as to

violate the federal and Florida ex post facto clauses under Smith. See Ashcroft v.

Iqbal, 556 U.S. 662, 677–79, 129 S. Ct. 1937, 1949–50 (2009). We conclude they

have done so.

       The complaint sufficiently alleged that the County’s residency restriction


   4
      Construing the complaint in the light most favorable to the Plaintiffs, Doe #1 was convicted
of his relevant sexual offense in 1992, and Doe #3 was convicted of his relevant sexual offense
in 1999—both before the County’s residency restriction was enacted in 2005. See Amended
Complaint at ¶¶ 17, 48, Doe v. Miami-Dade Cty., No. 1:14-cv-23933-PCH (S.D. Fla. Apr. 3,
2015) [hereinafter Amended Complaint]. Both are also “sexual offenders” under the Ordinance
because they are residents of Miami-Dade County and are registered as sexual offenders. Id. at
¶¶ 14, 45; see Ordinance § 21-280(10) (citing Fla. Stat. § 943.0435).
     However, Doe #2 only alleged that he was convicted of his relevant sexual offense in 2006.
See Amended Complaint at ¶ 32. Thus, Doe #2 failed to allege that the County’s residency
restriction retroactively increased his punishment. Similarly, FAC—a non-profit corporation that
works to reform the sexual offender laws in Florida—failed to allege that any of its members
were convicted of, or even committed, a relevant sexual offense before November 15, 2005. See
id. at ¶¶ 55–63.
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imposes a direct restraint on Doe #1’s and Doe #3’s freedom to select or change

residences. Under the “affirmative disability or restraint” factor, “we inquire how

the effects of the [Ordinance] are felt by those subject to it.” See Smith, 538 U.S.

at 99–100, 123 S. Ct. at 1151 (internal quotation marks omitted). The Plaintiffs

alleged in their complaint that the County’s residency restriction severely limits

housing options for individuals subject to the restriction, “drastically

exacerbat[ing] transience and homelessness.” See Amended Complaint at ¶ 74.

Doe #1 and Doe #3 have specifically alleged that they are homeless and that their

homelessness resulted directly from the County’s residency restriction “severely

restricting available, affordable housing options.” Id. at ¶ 54; accord id. at ¶ 28.

Doe #1 was twice instructed by probation officers to live at homeless

encampments after the County’s residency restriction made him unable to live with

his sister and he could not find other housing compliant with the restriction. See

id. at ¶¶ 18–28. He currently lives at a makeshift homeless encampment near “an

active railroad track” (the Encampment).5 See id. at ¶¶ 5, 25. Similarly, Doe #3

sleeps in his car at the Encampment because, “despite repeated attempts, he has

been unable to obtain available, affordable rental housing in compliance with the

Ordinance.” See id. at ¶¶ 52–53.



   5
    There are no restroom facilities, sanitary water, or designated shelter at the Encampment,
which is technically on private property. See id. at ¶¶ 120–23.
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       Doe #1 and Doe #3 also sufficiently alleged that the County’s residency

restriction is excessive in comparison to its public safety goal of addressing

recidivism. 6 See Smith, 538 U.S. at 105, 123 S. Ct. at 1154 (regulation is excessive

if “[un]reasonable in light of [its] nonpunitive objective”). Accepting the facts

alleged in the complaint as true, the County’s residency restriction is “among the

strictest in the nation.” See Amended Complaint at ¶ 74. An individual becomes

subject to the restriction based solely on the fact of his or her prior conviction for a

listed sexual offense, without regard to his or her individual “risk of recidivism

over time.” See id. at ¶¶ 72–73. And the County’s residency restriction applies for

life, even after an individual no longer has to register as a sexual offender under

Florida law and is no longer subject to the state law 1,000-foot residency

restriction. See id. at ¶ 72. The County’s residency restriction also applies “even if

there is no viable route to reach the school within 2500 feet.” Id. at ¶ 141. The

County adopted this broad residency restriction even though “there is no evidence

that residency restrictions have any impact on recidivism or public safety, or that

an individual’s residential proximity to a school, is a salient risk factor in sexual

offending.” Id. at ¶ 140.


   6
     The stated intent of the Ordinance “is to serve the County’s compelling interest to promote,
protect and improve the health, safety and welfare of the citizens of the County, particularly
children, by prohibiting sexual offenders and sexual predators from establishing temporary or
permanent residence in certain areas where children are known to regularly congregate.” The
County made findings that, inter alia, “[s]exual offenders are extremely likely to use physical
violence and to repeat their offenses.” See Ordinance § 21-278.
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      The Plaintiffs further argue that the County’s residency restriction not only

fails to advance, but also directly undermines, the goal of public safety. The

complaint stated that “[t]he only demonstrated means of effectively managing

reentry and recidivism [of former sexual offenders] are targeted treatment, along

with maintaining supportive, stable environments that provide access to housing,

employment, and transportation,” rather than by “[making] categorical

assumptions about groups of former sexual offenders.” See id. at ¶¶ 137, 143.

The complaint also alleged that the transience and homelessness that the residency

restriction causes undermine sexual offenders’ abilities to successfully re-enter

society and increase the risk of recidivism by “mak[ing] it more difficult for

Plaintiffs and others to secure residences, receive treatment, and obtain and

maintain employment.” See id. at ¶¶ 146, 149. In light of the foregoing, we

conclude that Doe #1 and Doe #3 have stated a plausible claim that the County’s

residency restriction is so punitive in effect as to violate the ex post facto clauses of

the federal and Florida Constitutions.

                                           V

      Our role in reviewing the grant of a 12(b)(6) motion merely is to determine

whether the plaintiffs stated a plausible claim, such that they should be permitted

to proceed to discovery. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337

(11th Cir. 2012) (per curiam). Here, Doe #1 and Doe #3 alleged sufficient facts to


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raise plausible claims that the County’s residency restriction is so punitive in effect

that it violates the ex post facto clauses of the federal and Florida Constitutions.

Whether Doe #1 and Doe #3 ultimately prevail is a determination for a future stage

of this litigation. Thus, we reverse the district court’s grant of the County’s motion

to dismiss as to Doe #1 and Doe #3’s ex post facto challenges and remand for

further proceedings.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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                        Appendix

ARTICLE XVII. - THE LAUREN BOOK CHILD
SAFETY ORDINANCE

Sec. 21-277. - Title.

  Article XVII shall be known and may be cited as “The
Lauren Book Child Safety Ordinance.”

Sec. 21-278. - Findings and Intent.

(a) Repeat sexual offenders, sexual offenders who use
    physical violence and sexual offenders who prey on
    children are sexual predators who present an
    extreme threat to the public safety. Sexual offenders
    are extremely likely to use physical violence and to
    repeat their offenses. Most sexual offenders commit
    many offenses, have many more victims than are
    ever reported, and are prosecuted for only a fraction
    of their crimes. This makes the cost of sexual
    offender victimization to society at large, while
    incalculable, clearly exorbitant.

(b) The intent of this article is to serve the County’s
    compelling interest to promote, protect and improve
    the health, safety and welfare of the citizens of the
    County, particularly children, by prohibiting sexual
    offenders and sexual predators from establishing
    temporary or permanent residence in certain areas
    where children are known to regularly congregate, to
    prohibit renting or leasing certain property to sexual
    offenders or sexual predators if such property is
    located where children are known to regularly
    congregate and to restrict sexual offenders’ and
    sexual predators’ access to parks and child care
    facilities.

                           ....


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Sec. 21-280. - Definitions.

    The following terms and phrases when used in this
article shall have the meanings ascribed to them in this
section unless the context otherwise requires:

                              ....

(4) “Convicted” or “conviction” means a determination
     of guilt which is the result of a trial or the entry of a
     plea of guilty or nolo contendere, regardless of
     whether adjudication is withheld. A conviction for a
     similar offense includes, but is not limited to: a
     conviction by a federal or military tribunal,
     including courts-martial conducted by the Armed
     Forces of the United States, and includes a
     conviction or entry of a plea of guilty or nolo
     contendere resulting in a sanction in any state of the
     United States or other jurisdiction. A sanction
     includes, but is not limited to, a fine, probation,
     community control, parole, conditional release,
     control release, or incarceration in a state prison,
     federal prison, private correctional facility, or local
     detention facility.

                              ....

(7) “Permanent residence” means a place where a person
     abides, lodges, or resides for fourteen (14) or more
     consecutive days.

(8) “Reside” or “residence” means to have a place of
     permanent residence or temporary residence.

(9) “School” means a public or private kindergarten,
    elementary, middle or secondary (high) school.

(10) “Sexual offender” shall have the meaning ascribed
     to such term in Section 943.0435, Florida Statutes.


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(11) “Sexual offense” means a conviction under Section
     794.011, 800.04, 827.071, 847.0135(5) or 847.0145,
     Florida Statutes, or a similar law of another
     jurisdiction in which the victim or apparent victim
     of the sexual offense was less than sixteen (16) years
     of age, excluding Section 794.011(10), Florida
     Statutes.

(12) “Sexual predator” shall have the meaning ascribed
     to such term in Section 775.21, Florida Statutes.

(13) “Temporary residence” means a place where the
    person abides, lodges, or resides for a period of
    fourteen (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
     four (4) or more consecutive or nonconsecutive days
     in any month and which is not the person’s
     permanent residence.

Sec. 21-281. - Sexual Offender and Sexual Predator
Residence Prohibition; Penalties.

(a) It is unlawful for any person who has been convicted
    of a violation of Section 794.011 (sexual battery),
    800.04 (lewd and lascivious acts on/in presence of
    persons under age 16), 827.071 (sexual performance
    by a child), 847.0135(5) (sexual acts transmitted
    over computer) or 847.0145 (selling or buying of
    minors for portrayal in sexually explicit conduct),
    Florida Statutes, or a similar law of another
    jurisdiction, in which the victim or apparent victim
    of the offense was less than sixteen (16) years of
    age, to reside within 2,500 feet of any school.

(b) The 2,500-foot distance shall be measured in a
    straight line from the outer boundary of the real
    property that comprises a sexual offender’s or sexual
    predator’s residence to the nearest boundary line of
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    the real property that comprises a school. The
    distance may not be measured by a pedestrian route
    or automobile route, but instead as the shortest
    straight line distance between the two points.

(c) Penalties. A person who violates section 21-281(a)
    herein shall be punished by a fine not to exceed
    $1,000.00 or imprisonment in the County jail for not
    more than 364 days or by both such fine and
    imprisonment.

Sec. 21-282. - Exceptions.

(1) A sexual offender or sexual predator residing within
    2,500 feet of any school does not commit a violation
    of this section if any of the following apply:

    (a) The sexual offender or sexual predator
        established a residence prior to the effective
        date of this ordinance. The sexual offender or
        sexual predator shall not be deemed to have
        established a residence or registered said
        residence for purposes of this section, if the
        residence is an illegal multifamily apartment
        unit within a neighborhood zoned for single-
        family residential use.

    (b) The sexual offender or sexual predator was a
        minor when he or she committed the sexual
        offense and was not convicted as an adult.

    (c) The school was opened after the sexual offender
        or sexual predator established the residence.

(2) Section 21-282(1)(a) and (1)(c) herein shall not apply
    to a sexual offender or sexual predator who is
    convicted of a subsequent sexual offense as an adult
    after residing at a registered residence within 2,500
    feet of a school.


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