Lawsuit Against City of Grover Beach

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 1 of 14 Page ID #:1
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
JMBellucci@aol.com
Attorney for Plaintiff Frank Lindsay
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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FRANK LINDSAY, an individual,

Plaintiff,
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vs.
CITY OF GROVER BEACH, an
incorporated California Municipality;
and DOES 1 to 10, inclusive,
Defendants.
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Case No.:
VERIFIED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF
[42 U.S.C. Section 1983]
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INTRODUCTION
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1.
This civil rights action challenges the entirety of Article III, Chapter 16,
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Section 3999 of the City of Grover Beach Municipal Code (the Grover Beach
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Residency Restrictions) in that, on their face and as applied, the Grover Beach
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Residency Restrictions violate the First, Fifth and Fourteenth Amendments to the United
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States Constitution, the Ex Post Facto Clause of the United States Constitution, and are
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unconstitutionally vague and overbroad as more specifically alleged herein.
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_________________________________________________________________________________________________________
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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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.
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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
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citizen of the United States. Plaintiff owns a home within 2,000 feet of a school and a
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park in the City of Grover Beach and has been a resident of the city since 1997. Plaintiff
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was a resident of Grover Beach when the Grover Beach Residency Restrictions at issue
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went into effect. Plaintiff is required to register as a sex offender pursuant to California
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Penal Code Section 290, et seq., as a result of a conviction in 1979 for a sex offense
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involving a victim less than 18 years of age. Plaintiff is prohibited from relocating to a
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new residence within Grover Beach due to the citys residency restrictions.
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5.
The City of Grover Beach (Defendant) is an incorporated city located in
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San Luis Obispo County, California. Defendant adopted the City Ordinances at issue
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here through the five-member Grover Beach City Council and enforces such ordinances
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through the Chief of Police of the City of Grover Beach.
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6.
The true names and capacities of Defendants sued as Does 1 through 10 are
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unknown to Plaintiff, who therefore sues such Defendants by fictitious names. Plaintiff
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will seek leave to amend this Complaint, if necessary, to reflect the true names once they
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have been ascertained.
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7.
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Defendants.
Defendant and Does 1 through 10 are collectively referred to herein as
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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.
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10.
The City Council of Grover Beach adopted Ordinance 14-01 (the
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Ordinance) in 2014 which further amended City of Grover Beach Municipal Code,
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Article III, Chapter 15, Section 3999, entitled Residency Requirements for Penal Code
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290 Registrants. This Ordinance went into effect on or about April 2, 2014.
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11.
As enacted, the Ordinance prohibits sex offenders, whose victim was less
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than 18 years of age, from establishing or residing at a permanent or temporary residence
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within designated protected locations, defined as areas within two thousand (2,000)
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feet of any school, park, or day care center. Ordinance (B)(1).
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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
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required to register with a governmental entity as a sex offender under California Penal
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Code Section 290. Id. (A)(2).
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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).
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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
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during any calendar year and which is not the persons permanent address, or a place
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where a person routinely abide, lodges, or resides for a period of four (4) or more
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consecutive or nonconsecutive days in any month and which is not the persons
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permanent residence. Id. (A)(5).
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19.
The Ordinance requires the City Council to adopt a list of protected
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locations within Grover Beach as defined by that Ordinance. Id. (B)(2). The City
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Council thereafter designated the following protected locations within Grover Beach:
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Grover Heights Elementary School and Park, Ramona Garden Park Center, Grover
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Beach Elementary, Dandy Lion Day Care, Mentone Basin Park, 16th Street Park,
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Fairgrove Elementary School, South County Skate Park, Hero Community Park, Costa
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Bella Park and Pismo State Beach.
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20.
The Ordinance further directed the City Council to adopt . . . a map
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showing the protected locations and those properties within one thousand (2,000) feet of
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the protected locations from which Registrants are excluded by that Ordinance. Id.
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The City Council thereafter adopted a map purporting to depict 2,000-foot boundaries
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around the twelve protected areas designated by the City Council, from which
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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
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because there is no residential real estate available to them. This fact is supported by the
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statements of one member of the Grover Beach City Council during the debate of the
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adoption of the Ordinance, who objected to the residency restriction being expanded
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from one thousand feet to two thousand feet . . . due to the limited areas located within
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the city limits that would remain available for residential use. The same Council
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member subsequently cast the only vote in opposition to the 2014 Ordinance.
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23.
To calculate the relevant distances around protected locations, the Grover
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Beach Residency Restrictions prescribe that the [d]istance from protected locations
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shall be measured from the outer boundaries of the properties on which the facilities
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described in this subsection are situated. Any parcels that are partially included within a
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protected area, as shown on the map, shall be considered to be wholly included within
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the protected area. [T]he distance of two thousand feet (2,000) feet shall be measured in
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a straight line from the closest property line of the residence of a sex offender, to the
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closest property line of any protected location. Grover Beach Residency Restrictions
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(B)(3)-(4).
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24.
The penalties for any violation of the Ordinance are significant and include
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a misdemeanor publishable by a fine of up to One Thousand Dollars ($1,000.00) or by
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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).
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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
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alleged risks posed by convicted sex offenders in the community as well as the
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mitigation of those risks supposedly achieved through its Residency Restrictions. For
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example, the Ordinance asserted that based on the evidence available, sex offenders
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have recidivism rates as high as forty-five percent . . . and are least likely to be cured and
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the most likely to reoffend . . . .
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26.
The findings set forth in the Ordinance are bald assertions and contain no
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specific citations to authority, fail to differentiate between the myriad circumstances
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under which residents can be designated sex offenders and fail to account for the
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amount of time that elapsed between the conduct giving rise to a Registrants conviction
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and the burdens imposed by the Grover Beach Residency Restrictions, among other
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flaws.
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27.
In addition, the findings set forth in the Ordinance are controverted by
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state and federal government statistics regarding sex offenders, including the fact that
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sex offenders on parole re-offend at a rate of only 1.8 percent1 and 5.3 percent overall2.
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See California Department of Corrections and Rehabilitation Report, 2013 Outcome Evaluation Report, dated January
2014, page 26
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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
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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.
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30.
Furthermore, the Grover Beach Residency Restrictions, by their terms, do
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not apply to Registrants who established a residence before being convicted of an
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offense requiring registration and who have continuously remained in the same residence
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that they occupied at the time of their offense. Grover Beach Residency Restrictions
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3999(B)(1). That is, Registrants who have maintained the same residence since the
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time of their offense may remain in the same residence notwithstanding the Grover
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Beach Residency Restrictions. However, a Registrant who seeks to move to from
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his/her original residence to a different residence is subject to the Grover Beach
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Residency Restrictions.
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31.
Plaintiff Frank Lindsay owns and lives in a residence that is within 2,000
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feet of a park and a school. Plaintiff Frank Lindsay was physically attacked in his
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residence by a stranger in 2011. Due to that attack, Plaintiff desires to establish a new
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residence in Grover Beach but is prevented from doing so due to the Grover Beach
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Residency Restrictions.
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See U.S. Department of Justice Report, Recidivism of Sex Offenders Released from Prison in 1994, page 27, Table 29.
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
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professed or lawful purpose.

34.
Because the City of Grover Beach continues to enforce the Grover Beach
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Residency Restrictions in a manner that prohibits Registrants who already reside within
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Grover Beach from moving to a new residence within that city, the Grover Beach
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Residency Restrictions accomplish the unconstitutional goal of banishment, do not serve
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any legitimate government purpose, and are not appropriately tailored or related to any
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professed or lawful purpose.
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35.
Proposition 83, also known as Jessicas Law (effective November 6,
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2006), as codified in subsections (b) and (c) of California Penal Code Section 3003.5,
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authorizes local governments to enact ordinances that further restrict the residency of
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any registered sex offender provided they are consistent with the Constitutions of the
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United States and the State of California. (See California Penal Code 3003.5 (c).)
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However, the California Supreme Court recently ruled that residency restrictions may
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not be imposed upon sex offenders in a manner that deprives them of their constitutional
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rights and liberty interests, including their right to be free from arbitrary, oppressive, and
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unreasonable laws that bear no rational relationship to the states goal of protecting
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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
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as previously defined.
38.
Defendant lacks either a compelling or substantial legitimate governmental
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interest in restraining the civil liberties of Registrants in the manner expressly provided
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by the Grover Beach Residency Restrictions.
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39.
In addition, the Grover Beach Residency Restrictions are not the least
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restrictive means to further any compelling or substantial governmental interest and,
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specifically, to protect children as the Grover Beach Residency Restrictions purport.
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40.
Further, the Grover Beach Residency Restrictions fail to pass constitutional
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muster because their restrictions are not sufficiently narrowly tailored to serve a
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legitimate government interest.
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41.
The Grover Beach Residency Restrictions are overly broad and burdens
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substantially more constitutionally protected conduct than is necessary to further any
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legitimate governmental interest.
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42.
The Grover Beach Residency Restrictions are vague and fail to provide
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sufficient notice of the conduct prohibited or allowed by Registrants so that they may
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conform their conduct to the requirements of the law and thereby prevent arbitrary and
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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.
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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.
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FIRST CLAIM
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(42 U.S.C. 1983 Fifth Amendment)
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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
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Beach Residency Restrictions, Defendant deprives Plaintiff and other Registrants of
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rights guaranteed by the Fifth Amendment of the United States Constitution, including
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the rights to life, liberty, property, familial association, and due process of law.
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Defendant commits these unconstitutional acts under color of authority of law.
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47.
Continued enforcement or threats of enforcement of the Grover Beach
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Residency Restrictions violate the rights of Plaintiff and the rights of other Registrants,
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which are protected by the Fifth Amendment of the United States Constitution.
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Therefore, the Grover Beach Residency Restrictions are void, both facially and as
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applied; and they should be enjoined and their previous enforcement nullified. The
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injuries Plaintiff is suffering as a result of the actions of Defendants, and each of them,
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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)
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48.

49.
rights guaranteed by the Fourteenth Amendment of the United States Constitution,
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including the Substantive Due Process and Equal Protection Clauses, as well as the
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rights to family autonomy, privileges and immunities, and the right to travel. Defendant
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commits these unconstitutional acts under color of authority of law.
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50.
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Residency Restrictions violates the rights of Plaintiff and other Registrants, which are
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protected by the Fourteenth Amendment of the United States Constitution. Therefore,
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the Grover Beach Residency Restrictions are void, both facially and as applied; and they
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should be enjoined and their previous enforcement nullified. The injuries Plaintiff is
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suffering as a result of the actions of Defendants, and each of them, are severe,
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irreparable, and ongoing. Immediate and permanent injunctive relief is necessary to halt
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and prevent further occurrence of these ongoing constitutional deprivations and
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infliction of irreparable harm.
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THIRD CLAIM
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(28 U.S.C. 1983 Ex Post Facto Clause)
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51.

52.
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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.
53.
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.
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FOURTH CLAIM
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(28 U.S.C. 1983 Void for Vagueness)
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54.

55.
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Beach Residency Restrictions, Defendant unconstitutionally enforces an ordinance that
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deprives Plaintiff and other Registrants of rights which are protected by the Void for
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Vagueness Doctrine extended into the Due Process Clauses of the Fifth and Fourteenth
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Amendments of the United States Constitution. Therefore, the Grover Beach Residency
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Restrictions are void, both facially and as applied; and they should be enjoined and their
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previous enforcement nullified. The injuries Plaintiff suffers as a result of the actions of
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Defendants, and each of them, are severe, irreparable, and ongoing. Immediate and
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permanent injunctive relief is necessary to halt and prevent further occurrence of these
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ongoing constitutional deprivations and infliction of irreparable harm.
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FIFTH CLAIM
(California Constitution, Article XI, Section 7 Preemption)
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56.

57.
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
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the Constitution of the State of California. Defendant commits these unconstitutional
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acts under color of authority of law.
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58.
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Residency Restrictions violate Article XI, Section 7 of the California Constitution.
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SIXTH CLAIM
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(28 U.S.C. 2201 Declaratory Relief)
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59.

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
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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.
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Dated: June 17, 2015
LAW OFFICES OF JANICE M. BELLUCCI
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By:
/s/ Janice M. Bellucci
Janice M. Bellucci
Attorney for Plaintiff
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Lawsuit Against City of Grover Beach

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

Janice M. Bellucci, Esq., SBN 108911

Attorney for Plaintiff Frank Lindsay

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FRANK LINDSAY, an individual,

unconstitutionally vague and overbroad as more specifically alleged herein.

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

JURISDICTION AND VENUE

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

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

claims have occurred and continue to occur in this district.

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

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

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

have been ascertained.

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

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 3 of 14 Page ID #:3

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

went into effect on or about March 18, 2008.

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

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

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

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

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

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

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).

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 4 of 14 Page ID #:4

The Ordinance defines Permanent Residence as a place where a person

The Ordinance defines Temporary Residence as a place where a person

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

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

Bella Park and Pismo State Beach.

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

Registrants were excluded by the Ordinance. See Exhibit A.

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 5 of 14 Page ID #:5

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

Reserve, or some other non-residential use.

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

To calculate the relevant distances around protected locations, the Grover

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

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 6 of 14 Page ID #:6

protected area. Id. (emphasis added).

the most likely to reoffend . . . .

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

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

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 7 of 14 Page ID #:7

convicted of other crimes.3

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

never been convicted of a sex offense.4

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

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

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

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

Case 2:15-cv-04577 Document 1 Filed 06/17/15 Page 8 of 14 Page ID #:8

Plaintiff Frank Lindsay testified in opposition to the proposed Ordinance

City Council violated his constitutional rights.

Residency Restrictions in a manner that prohibits Registrants who currently reside

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

professed or lawful purpose.

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