Lawsuit against city of Grover Beach

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VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Janice M. Bellucci, Esq., SBN 108911 LAW OFFICES OF JANICE M. BELLUCCI 235 East Clark Avenue, Suite C Santa Maria, California 93455 Tel: (805) 896-7854 Fax: (805) 349-8872 [email protected] Attorney for Plaintiff Frank Lindsay

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

FRANK LINDSAY, an individual, Plaintiff, vs. CITY OF GROVER BEACH, an incorporated California Municipality; and DOES 1 to 10, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Case No.: VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [42 U.S.C. Section 1983]

INTRODUCTION

1. This civil rights action challenges the entirety of Article III, Chapter 16,

Section 3999 of the City of Grover Beach Municipal Code (the Grover Beach

Residency Restrictions) in that, on their face and as applied, the Grover Beach

Residency Restrictions violate the First, Fifth and Fourteenth Amendments to the United

States Constitution, the Ex Post Facto Clause of the United States Constitution, and are

unconstitutionally vague and overbroad as more specifically alleged herein.

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 1 of 14 Page ID #:1

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JURISDICTION AND VENUE

2. This court has jurisdiction over this action under 28 U.S.C. Sections 1331,

1343(a), and 2201, as well as pursuant to 42 U.S.C. Section 1983.

3. Under 28 U.S.C. Section 1391(b), venue is proper in this Federal district

because defendant is a municipality in this district and the events giving rise to the

claims have occurred and continue to occur in this district.

PARTIES

4. Plaintiff Frank Lindsay (Plaintiff) is and at all times material to this

action was a resident of the State of California and the City of Grover Beach as well as a

citizen of the United States. Plaintiff owns a home within 2,000 feet of a school and a

park in the City of Grover Beach and has been a resident of the city since 1997. Plaintiff

was a resident of Grover Beach when the Grover Beach Residency Restrictions at issue

went into effect. Plaintiff is required to register as a sex offender pursuant to California

Penal Code Section 290, et seq., as a result of a conviction in 1979 for a sex offense

involving a victim less than 18 years of age. Plaintiff is prohibited from relocating to a

new residence within Grover Beach due to the citys residency restrictions.

5. The City of Grover Beach (Defendant) is an incorporated city located in

San Luis Obispo County, California. Defendant adopted the City Ordinances at issue

here through the five-member Grover Beach City Council and enforces such ordinances

through the Chief of Police of the City of Grover Beach.

6. The true names and capacities of Defendants sued as Does 1 through 10 are

unknown to Plaintiff, who therefore sues such Defendants by fictitious names. Plaintiff

will seek leave to amend this Complaint, if necessary, to reflect the true names once they

have been ascertained.

7. Defendant and Does 1 through 10 are collectively referred to herein as

Defendants.


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FACTS

8. The City Council of Grover Beach adopted Ordinance 07-01 in 2007, which

was subsequently codified as City of Grover Municipal Code, Article III, Chapter 16,

section 3999, entitled Residency Requirements for Penal Code 290 Registrants. This

Ordinance went into effect on or about February 19, 2007.

9. The City Council of Grover Beach adopted Ordinance 08-14 in 2008 which

amended City of Grover Beach Municipal Code, Article III, Chapter 15, Section 3999,

entitled Residency Requirements for Penal Code 290 Registrants. This Ordinance

went into effect on or about March 18, 2008.

10. The City Council of Grover Beach adopted Ordinance 14-01 (the

Ordinance) in 2014 which further amended City of Grover Beach Municipal Code,

Article III, Chapter 15, Section 3999, entitled Residency Requirements for Penal Code

290 Registrants. This Ordinance went into effect on or about April 2, 2014.

11. As enacted, the Ordinance prohibits sex offenders, whose victim was less

than 18 years of age, from establishing or residing at a permanent or temporary residence

within designated protected locations, defined as areas within two thousand (2,000)

feet of any school, park, or day care center. Ordinance (B)(1).

12. The Ordinance defines Children as persons who are under the age of

eighteen (18). Id. (A)(1).

13. The Ordinance defines a Sex Offender as a person who has been

required to register with a governmental entity as a sex offender under California Penal

Code Section 290. Id. (A)(2).

14. The Ordinance defines a School as any public or private school which is

established to educate children under eighteen years of age. Id. (A)(7).

15. The Ordinance defines a Park as any city, county, school district, state,

or federal public park or playground where children are likely to be. Id. (A)(8).


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16. The Ordinance defines a Day Care Center as any child care facility

including infant care centers, preschools, extended day care facilities, and school-age

child care centers, as defined in Section 1596.76 of the California Health and Safety

Code and licensed pursuant to the provisions of the California Child Day Care Facilities

Act (Health and Safety Code Sections 1596.70 et seq.[)]. Id. (A)(3).

17. The Ordinance defines Permanent Residence as a place where a person

abides, lodges, or resided for fourteen (14) or more consecutive days. Id. (A)(4)

18. The Ordinance defines Temporary Residence as a place where a 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 persons permanent address, or a place

where a person routinely abide, lodges, or resides for a period of four (4) or more

consecutive or nonconsecutive days in any month and which is not the persons

permanent residence. Id. (A)(5).

19. The Ordinance requires the City Council to adopt a list of protected

locations within Grover Beach as defined by that Ordinance. Id. (B)(2). The City

Council thereafter designated the following protected locations within Grover Beach:

Grover Heights Elementary School and Park, Ramona Garden Park Center, Grover

Beach Elementary, Dandy Lion Day Care, Mentone Basin Park, 16th Street Park,

Fairgrove Elementary School, South County Skate Park, Hero Community Park, Costa

Bella Park and Pismo State Beach.

20. The Ordinance further directed the City Council to adopt . . . a map

showing the protected locations and those properties within one thousand (2,000) feet of

the protected locations from which Registrants are excluded by that Ordinance. Id.

The City Council thereafter adopted a map purporting to depict 2,000-foot boundaries

around the twelve protected areas designated by the City Council, from which

Registrants were excluded by the Ordinance. See Exhibit A.


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21. On information and belief, as evidenced by Exhibit A, virtually every

square foot of the city is included within the Grover Beach Residency Restrictions. Of

the three small corners of the city left untouched by the Grover Beach Residency

Restrictions, well over half of it is zoned Retail Commercial, Open Space, Urban

Reserve, or some other non-residential use.

22. On information and belief, less than one percent (1%) of the City of Grover

Beach is potentially available to house Registrants under the Grover Beach Residency

Restrictions. Therefore, in order to comply with the Grover Beach Residency

Restrictions, virtually all Registrants cannot reside within the City of Grover Beach

because there is no residential real estate available to them. This fact is supported by the

statements of one member of the Grover Beach City Council during the debate of the

adoption of the Ordinance, who objected to the residency restriction being expanded

from one thousand feet to two thousand feet . . . due to the limited areas located within

the city limits that would remain available for residential use. The same Council

member subsequently cast the only vote in opposition to the 2014 Ordinance.

23. To calculate the relevant distances around protected locations, the Grover

Beach Residency Restrictions prescribe that the [d]istance from protected locations

shall be measured from the outer boundaries of the properties on which the facilities

described in this subsection are situated. Any parcels that are partially included within a

protected area, as shown on the map, shall be considered to be wholly included within

the protected area. [T]he distance of two thousand feet (2,000) feet shall be measured in

a straight line from the closest property line of the residence of a sex offender, to the

closest property line of any protected location. Grover Beach Residency Restrictions

(B)(3)-(4).

24. The penalties for any violation of the Ordinance are significant and include

a misdemeanor publishable by a fine of up to One Thousand Dollars ($1,000.00) or by

imprisonment for up to one (1) year, or both. Grover Beach Residency Restrictions


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3999.1. The Grover Beach Residency Restrictions further provide that [a] person is

guilty of a new and separate offense if he/she has not relocated his/her residence to an

area which is not within two thousand (2,000) feet of a protected area within thirty (30)

days of being cited for a violation of this section for the first time. In addition, a person

is guilty of a new and separate offense for each day thereafter that he/she does not

relocate his/her residence to an area that is not within two thousand (2,000) feet of a

protected area. Id. (emphasis added).

25. In its attempt to justify the residency restrictions at issue, the Grover Beach

City Council relied on various unsubstantiated and misleading assertions regarding the

alleged risks posed by convicted sex offenders in the community as well as the

mitigation of those risks supposedly achieved through its Residency Restrictions. For

example, the Ordinance asserted that based on the evidence available, sex offenders

have recidivism rates as high as forty-five percent . . . and are least likely to be cured and

the most likely to reoffend . . . .

26. The findings set forth in the Ordinance are bald assertions and contain no

specific citations to authority, fail to differentiate between the myriad circumstances

under which residents can be designated sex offenders and fail to account for the

amount of time that elapsed between the conduct giving rise to a Registrants conviction

and the burdens imposed by the Grover Beach Residency Restrictions, among other

flaws.

27. In addition, the findings set forth in the Ordinance are controverted by

state and federal government statistics regarding sex offenders, including the fact that

sex offenders on parole re-offend at a rate of only 1.8 percent1 and 5.3 percent overall

2.

1 See California Department of Corrections and Rehabilitation Report, 2013 Outcome Evaluation Report, dated January

2014, page 26 2 See California Sex Offender Management Board Report, Year End Report (2014), page 5.


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These rates of re-offense are considerably lower than rates of re-offense for those

convicted of other crimes.3

28. Further, the findings set forth in the Ordinance are controverted in

decades-long research conducted by Dr. Karl Hanson, the preeminent researcher on this

topic. According to that research, an individual convicted of a sex offense who has not

re-offended in 17 years is no more likely to commit a sex offense than someone who has

never been convicted of a sex offense.4

29. By definition, the Grover Beach Residency Restrictions do not apply to

anyone who is not required to register as a sex offender pursuant to Penal Code section

290, such as those who were convicted of a sex offense in another state.

30. Furthermore, the Grover Beach Residency Restrictions, by their terms, do

not apply to Registrants who established a residence before being convicted of an

offense requiring registration and who have continuously remained in the same residence

that they occupied at the time of their offense. Grover Beach Residency Restrictions

3999(B)(1). That is, Registrants who have maintained the same residence since the

time of their offense may remain in the same residence notwithstanding the Grover

Beach Residency Restrictions. However, a Registrant who seeks to move to from

his/her original residence to a different residence is subject to the Grover Beach

Residency Restrictions.

31. Plaintiff Frank Lindsay owns and lives in a residence that is within 2,000

feet of a park and a school. Plaintiff Frank Lindsay was physically attacked in his

residence by a stranger in 2011. Due to that attack, Plaintiff desires to establish a new

residence in Grover Beach but is prevented from doing so due to the Grover Beach

Residency Restrictions.

3 See U.S. Department of Justice Report, Recidivism of Sex Offenders Released from Prison in 1994, page 27, Table 29.

4 See CASOMB Report, A Better Path to Community Safety, page 16.


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32. Plaintiff Frank Lindsay testified in opposition to the proposed Ordinance

during the Grover Beach City Council meeting on March 3, 2014. During his testimony,

Plaintiff Frank Lindsay stated his belief that the Ordinance under consideration by the

City Council violated his constitutional rights.

33. Because the City of Grover Beach continues to enforce the Grover Beach

Residency Restrictions in a manner that prohibits Registrants who currently reside

outside of Grover Beach from acquiring a residence in Grover Beach, the Grover Beach

Residency Restrictions accomplish the unconstitutional goal of banishment, do not serve

any legitimate government purpose, and are not appropriately tailored or related to any

professed or lawful purpose.

34. Because the City of Grover Beach continues to enforce the Grover Beach

Residency Restrictions in a manner that prohibits Registrants who already reside within

Grover Beach from moving to a new residence within that city, the Grover Beach

Residency Restrictions accomplish the unconstitutional goal of banishment, do not serve

any legitimate government purpose, and are not appropriately tailored or related to any

professed or lawful purpose.

35. Proposition 83, also known as Jessicas Law (effective November 6,

2006), as codified in subsections (b) and (c) of California Penal Code Section 3003.5,

authorizes local governments to enact ordinances that further restrict the residency of

any registered sex offender provided they are consistent with the Constitutions of the

United States and the State of California. (See California Penal Code 3003.5 (c).)

However, the California Supreme Court recently ruled that residency restrictions may

not be imposed upon sex offenders in a manner that deprives them of their constitutional

rights and liberty interests, including their right to be free from arbitrary, oppressive, and

unreasonable laws that bear no rational relationship to the states goal of protecting

residents. In re Taylor, 60 Cal. 4th 1019, 1042 (2015).


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36. Defendant has expended, is expending, and/or will expend public funds on

enforcing, preparing to enforce, and/or attempting to enforce the Grover Beach

Residency Restrictions. Defendant has a mandatory duty to refrain from expending

public funds on enforcing, preparing to enforce, and/or attempting to enforce the Grover

Beach Residency Restrictions because they are invalid and unconstitutional.

37. In addition, while the Grover Beach Residency Restrictions do not by their

terms impose burdens on persons other than Registrants, the Grover Beach Residency

Restrictions, as applied, may impose the burdens upon family members of Registrants

and upon others who reside with or wish to reside with Registrants, with the exceptions

as previously defined.

38. Defendant lacks either a compelling or substantial legitimate governmental

interest in restraining the civil liberties of Registrants in the manner expressly provided

by the Grover Beach Residency Restrictions.

39. In addition, the Grover Beach Residency Restrictions are not the least

restrictive means to further any compelling or substantial governmental interest and,

specifically, to protect children as the Grover Beach Residency Restrictions purport.

40. Further, the Grover Beach Residency Restrictions fail to pass constitutional

muster because their restrictions are not sufficiently narrowly tailored to serve a

legitimate government interest.

41. The Grover Beach Residency Restrictions are overly broad and burdens

substantially more constitutionally protected conduct than is necessary to further any

legitimate governmental interest.

42. The Grover Beach Residency Restrictions are vague and fail to provide

sufficient notice of the conduct prohibited or allowed by Registrants so that they may

conform their conduct to the requirements of the law and thereby prevent arbitrary and

discriminatory enforcement.


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43. Finally, the Grover Beach Residency Restrictions are arbitrary and

politically motivated, imposed by a local government in response to popular sentiments,

based upon misinformation which seeks retribution against Registrants who constitute a

socially outcast minority. The Grover Beach Residency Restrictions also lend

themselves to discriminatory enforcement as well as the suppression of the constitutional

rights of Registrants, as well as individuals who travel with them, including spouses and

family members.

44. For the reasons stated above, the Grover Beach Residency Restrictions are

in violation of the First, Fifth and Fourteenth Amendments, the Ex Post Facto Clause of

the United States Constitution, and are unconstitutionally vague.

FIRST CLAIM

(42 U.S.C. 1983 Fifth Amendment)

45. Plaintiff re-alleges paragraphs 1 through 44 of this Complaint as though

fully set forth herein.

46. By leaving in place, enforcing, and/or threatening to enforce the Grover

Beach Residency Restrictions, Defendant deprives Plaintiff and other Registrants of

rights guaranteed by the Fifth Amendment of the United States Constitution, including

the rights to life, liberty, property, familial association, and due process of law.

Defendant commits these unconstitutional acts under color of authority of law.

47. Continued enforcement or threats of enforcement of the Grover Beach

Residency Restrictions violate the rights of Plaintiff and the rights of other Registrants,

which are protected by the Fifth Amendment of the United States Constitution.

Therefore, the Grover Beach Residency Restrictions are void, both facially and as

applied; and they should be enjoined and their previous enforcement nullified. The

injuries Plaintiff is suffering as a result of the actions of Defendants, and each of them,

are severe, irreparable, and ongoing. Immediate and permanent injunctive relief is


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necessary to halt and prevent further occurrence of these ongoing constitutional

deprivations and infliction of irreparable harm.

SECOND CLAIM

(28 U.S.C. 1983 Fourteenth Amendment)





rights guaranteed by the Fourteenth Amendment of the United States Constitution,

including the Substantive Due Process and Equal Protection Clauses, as well as the

rights to family autonomy, privileges and immunities, and the right to travel. Defendant

commits these unconstitutional acts under color of authority of law.


Residency Restrictions violates the rights of Plaintiff and other Registrants, which are

protected by the Fourteenth Amendment of the United States Constitution. Therefore,

the Grover Beach Residency Restrictions are void, both facially and as applied; and they

should be enjoined and their previous enforcement nullified. The injuries Plaintiff is

suffering as a result of the actions of Defendants, and each of them, are severe,

irreparable, and ongoing. Immediate and permanent injunctive relief is necessary to halt

and prevent further occurrence of these ongoing constitutional deprivations and

infliction of irreparable harm.

THIRD CLAIM

(28 U.S.C. 1983 Ex Post Facto Clause)






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rights guaranteed by the Ex Post Facto Clause of the United States Constitution.

Defendant commits these unconstitutional acts under color of authority of law.


Residency Restrictions violates the rights of Plaintiff and the rights of other Registrants,

which are protected by the Ex Post Facto Clause of the United States Constitution.







FOURTH CLAIM

(28 U.S.C. 1983 Void for Vagueness)




Beach Residency Restrictions, Defendant unconstitutionally enforces an ordinance that

deprives Plaintiff and other Registrants of rights which are protected by the Void for

Vagueness Doctrine extended into the Due Process Clauses of the Fifth and Fourteenth

Amendments of the United States Constitution. Therefore, the Grover Beach Residency

Restrictions are void, both facially and as applied; and they should be enjoined and their

previous enforcement nullified. The injuries Plaintiff suffers as a result of the actions of

Defendants, and each of them, are severe, irreparable, and ongoing. Immediate and

permanent injunctive relief is necessary to halt and prevent further occurrence of these

ongoing constitutional deprivations and infliction of irreparable harm.


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FIFTH CLAIM

(California Constitution, Article XI, Section 7 Preemption)




Beach Residency Restrictions, Defendant is in violation of the California Constitution

insofar as the State of California has created, both by legislative enactment and popular

initiative, an entire body of law regulating Registrants. Thus, the Grover Beach

Residency Restrictions are preempted by the laws of the State of California, and violate

the Constitution of the State of California. Defendant commits these unconstitutional

acts under color of authority of law.


Residency Restrictions violate Article XI, Section 7 of the California Constitution.







SIXTH CLAIM

(28 U.S.C. 2201 Declaratory Relief)



60. An actual controversy exists between Plaintiff and Defendant regarding the

constitutionality and enforceability of the Grover Beach Residency Restrictions.

61. Plaintiff is entitled to a declaration of his rights with regard to the Grover

Beach Residency Restrictions.


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PRAYER FOR RELIEF

Because of the actions alleged above, Plaintiff seeks judgment against Defendant

as follows:

a. That Defendant be enjoined in perpetuity from enforcing the City of Grover

Beach Municipal Code Article III, Chapter 16, Section 3999;

b. That the City of Grover Beach Municipal Code Article III, Chapter 16,

Section 3999 be declared null and void as unconstitutionally vague and in violation of

the Fifth and Fourteenth Amendments of the United States Constitution, the Ex Post

Facto Clause of the United States Constitution, and Article XI, Section 7 of the

California Constitution;

c. That Plaintiff recover from the Defendant, under 42 U.S.C. Section 1988,

all of Plaintiffs reasonable attorneys fees, costs and expenses of this litigation; and

d. That Plaintiff recovers such relief as the Court deems just and proper.

Dated: June 17, 2015 LAW OFFICES OF JANICE M. BELLUCCI

By: /s/ Janice M. Bellucci Janice M. Bellucci Attorney for Plaintiff


Lawsuit against city of Grover Beach

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