BRYAN A. EXILE & BLOOM V. MIAMI-DADE COUNTY

State: Florida

Court: Florida Third District Court

Docket No: 09-2768

Case Date: 05/19/2010

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2010
Opinion filed May 19, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-2768 Lower Tribunal No. 09-51205 ________________

Bryan A. Exile and Elliot M. Bloom,
Appellants, vs.

Miami-Dade County,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Florida Institutional Legal Services, and Cassandra Capobianco, Robert Dwyer, Christopher Jones and Peter Sleasman; American Civil Liberties Union Foundation, and Maria Kayanan and Randall C. Marshall; Jeanne Baker, for appellants. R.A. Cuevas, Jr., County Attorney, and Thomas W. Logue, Assistant County Attorney, for appellee.

Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge. As the trial court held in an excellent opinion, we conclude that Section 21281 of the Miami-Dade County Code1, which prohibits convicted sexual offenders from residing within 2500 feet of a school, is not invalidated by Florida law and therefore remains in full force and effect. Neither of the appellants' contentions to the contrary is well taken: (a) The legislature has not clearly preempted local regulation of the field of the post-conviction conduct of sexual predators, so as to invoke the severely restricted and strongly disfavored doctrine of "implied preemption." See

Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So. 2d 637 (Fla. 2d DCA 2007), reversed on other grounds 28 So. 3d 880 (Fla. 2010); City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Tribune Co. v. Cannella, 458 So. 2d 1075, 1077 (Fla. 1984); Phantom of Clearwater v. Pennellas County, 894 So. 2d 1011, 1019 (Fla. 2d DCA 2005), approved sub. nom, Phantom of Brevard v. Brevard County, 3 So. 3d 309, 315 (Fla. 2009); Lowe v. Broward County, 766 So. 2d 1199, 1207 (Fla. 4th DCA 2000), rev. denied, 789 So. 2d 346

"It is unlawful for any person who has been convicted of a violation of Sections 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) 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 of the offense was less than sixteen (16) years of age, to reside within 2,500 feed of any school." Miami-Dade County, Fla., Code of Ordinances,

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