HOA ban on sex offenders leads to lawsuit

9-27-2013 Texas:

A Texas homeowners association is facing a lawsuit that claims it improperly tried to oust a registered sex offender living there.

Theodore Whipple and his wife say in their lawsuit that he is a low-risk sex offender, convicted more than 20 years ago, KVUE reports. They claim a violation of the 14th Amendment’s right to due process, the Texas Deceptive Trade Practices Act and the right to alienate property, according to a Courthouse News Service article published last November. Texas Lawyer’s Tex Parte Blog also published a story last year.

Whipple says the Valley View Village Condominium Homeowners Association in Austin informed him of a new rule last September that bars registered sex offenders from any condo property that is within 2,000 feet of any place where children congregate. The rule effectively bars him from the property, Whipple says.

Whipple got the notice on the day he was released from prison for failing to properly register his residence. He is represented on a pro bono basis by Akin Gump partner Fred Williams, and he remains in the condo while the lawsuit is pending.

According to the suit, state law no longer bars Whipple from coming within 500 feet of children because his parole has ended.“This is an effort by the homeowners association to take the law upon themselves and create their own little law for the neighborhood," Williams told KVUE. ..Source.. by Debra Cassens Weiss

---

HOA facing lawsuit after sex offender told to stay out

AUSTIN -- A homeowner's association is trying to keep sex offenders out. Now it's facing a lawsuit.

The Valley View Village Condominiums located behind Highway 71 in Southwest Austin is a quiet, small community of about 68 families.

"We watch out for one another," said community board member Eleanor Rotthoff.

Walking through the neighborhood with her granddaughter one day, Rotthoff met a new neighbor.

"He had an absolutely adorable border collie puppy, and we had to stop and play with the puppy and admire it," Rotthoff said.

She soon learned that man, Theodore Whipple, is a convicted sex offender.

"My blood ran cold quite frankly," she explained.

In 1991, a Williamson County court convicted Whipple of indecency with a child and sentenced him to eight years.

"When I did find out it involved a sexual assault on a 12-year-old, I realized my granddaughter at that point was 12. It was not a comfortable feeling," Rotthoff said.

He's also been charged with failure to register as a sex offender after he listed the wrong address. He served three more years for that. After his release last September, he moved back home to Valley View with his wife.

"Our position is, it's a violation of my client's constitutional rights and state law rights," said Fred Williams, a partner with the Akin Gump law firm who is representing Whipple and his wife. Williams says since Whipple's parole ended in November, his only requirement is to register with the state.

But the HOA says under its rules, no convicted sex offender can be within 2,000 feet of a place where children congregate -- like the pool or a nearby bus stop.

"This is an effort by the homeowners association to take the law upon themselves and create their own little law for the neighborhood," Williams said.

Akin Gump is taking on the case pro bono.

"I find it incomprehensible that they have decided to make a crusade on behalf of pedophiles," said Rotthoff. "We're just some ordinary, South Austin, middle class people trying to protect our children."

Originally, the HOA asked Whipple to leave or pay a $1,000-a-day fine. They have now agreed to let him stay for the duration of the lawsuit. ..Source.. by SHANNON MURRAY

---

See also: Can Associations Bar Sex Offenders From Residing in The Neighborhood?

See Also: Association Help Now

Whipple et al v. Valley View Village Condominium Homeowners Association
Texas Western Dist court 1:12-cv-01073
Judge Lee Yeakel

---

State v Pollard

6-30-2009 Indiana:

State v Pollard
908 N.E.2d 1145 (2009)

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the "residency restriction statute" constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

Facts and Procedural History
On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which he was apparently sentenced.1 On July 1, 2006, the residency restriction statute — Ind. Code § 35-42-4-11 — came into effect. That statute provides that a person convicted of certain sex-related crimes is classified as an "offender against children" and commits "sex offender residency offense," a Class D felony, if the person knowingly or intentionally resides within 1,000 feet of school property, a youth program center, or a public park.2 On January 23, 2007, the State charged Pollard with violation of the residency restriction statute, and Pollard responded with a motion to dismiss contending the statute violated the ex post facto prohibition contained in Article I, section 24 of the Indiana Constitution. The parties presented the matter to the trial court based on stipulated facts as follows:

1. That the defendant, Anthony W. Pollard, has an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana. Further, Anthony W. Pollard has had his ownership interest in the real estate for approximately the past 20 years.

2. That the defendant, Anthony W. Pollard had an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause.

3. That the residence owned and occupied by Anthony W. Pollard located at 817 North Monroe Street, Hartford City, Indiana is within one thousand (1,000) feet of school property, a youth program center or a public park.

4. That the defendant, Anthony W. Pollard was residing at the residence located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause. The defendant resided at the residence located at 817 North Monroe Street, Hartford City, Indiana more than two (2) nights in a thirty (30) day period prior to January 12, 2007.

5. That the defendant, Anthony W. Pollard has a prior conviction for an offense listed under I.C. 35-42-4-11(a)(2).

6. That the defendant, Anthony W. Pollard's conviction under I.C. 35-42-4-11(a)(2) occurred prior to the effective date of Indiana Code 35-42-4-11 which was on July 1, 2006.

7. That the defendant, Anthony W. Pollard has been a resident and owner of the residence located at 817 North Monroe Street, Hartford City, Indiana for at least one year prior to the effective date of I.C. 35-42-4-11.

Appellant's App. at 9-10. After entertaining arguments of counsel, submitted by way of written memoranda, the trial court granted Pollard's motion to dismiss concluding that as applied to Pollard the residency restriction statute violates the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. Appellant's App. at 19. On review, focusing primarily on the punitive impact of the statute on Pollard's property interest, the Court of Appeals agreed and affirmed the trial court's order of dismissal. State v. Pollard,886 N.E.2d 69 (Ind.Ct.App.2008). Although we agree the trial court's order of dismissal should be affirmed our analysis is different from that of our colleagues. We therefore grant transfer and affirm the judgment of the trial court.3

....

Conclusion
Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis,898 N.E.2d 281, 285 (Ind.2008) (declaring "courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant's constitutional rights"). We affirm the trial court's judgment.

---

Ind. Supreme court finds residency law not retroactive

INDIANAPOLIS (AP) - The Indiana Supreme Court says convicted sex offenders need not relocate if they resided near places frequented by children before a 2006 state law that restricts where they live.

The court ruled this week that the law violates the Indiana constitution by retroactively punishing ____ of Blackford County.

He had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997. ____ then was charged in 2007 with violating the law that prohibits convicted sex offenders from living within 1,000 feet of a school, park or youth program center.

A Blackford County judge dismissed the charge as unconstitutional, and the state appealed. But the Indiana Court of Appeals and now the state Supreme Court both upheld the local ruling. ..Source.. by Fox28.com

Mann v Georgia Dept Of Corrections

11-21-2007 Georgia:

Mann v. Georgia Dept. Of Corrections
(653 S.E.2d 740 (2007)

This case involves a constitutional takings challenge to OCGA § 42-1-15, which prohibits registered sex offenders from residing or loitering at a location that is within 1,000 feet of any child care facility, church, school or area where minors congregate (the "residency restriction"), id. at (a), or being employed by any business or entity located within 1,000 feet of any child care facility, church or school (the "work restriction"). Id. at (b)(1).1

Appellant Anthony Mann is a registered sexual offender,2 see OCGA § 42-1-12(a)(20)(B), who previously challenged the predecessor to OCGA § 42-1-153 when its application required him to vacate his residence at his parents' home. In Mann v. State,278 Ga. 442, 603 S.E.2d 283 (2004), we rejected his takings challenge to the residency restriction on the basis that he had only a minimal property interest in the living arrangement he enjoyed at his parents' home. Id. at 443(2), 603 S.E.2d 283.

The record here establishes that appellant moved from his parents' home, got married in August 2003 and purchased, together with his wife, a home on Hibiscus Court in Clayton County in October 2003. It is uncontroverted that the home at the time it was purchased was not within 1,000 feet of any child care facility, church, school or area where minors congregate.

Around October 2004, appellant became the half owner and day-to-day operator of a Clayton County business, a barbecue restaurant, where he cooks and runs the dining room among other duties. It is likewise uncontroverted that the business, at the time it leased its current premises, was not located within 1,000 feet of any child care facility, church or school.

However, child care facilities thereafter located themselves within 1,000 feet of both appellant's home and his business. Appellant's probation officer then demanded that appellant quit the premises of his business and remove himself from his home upon penalty of arrest and revocation of probation. See OCGA § 42-1-15(d).

Appellant brought this action seeking a declaration that OCGA § 42-1-15 is unconstitutional, inter alia, because it "authorizes the regulatory taking of his property without any compensation as required by the Constitution of the United States, as well as the Constitution of the State of Georgia." The trial court rejected appellant's arguments and he appeals. For the reasons that follow, we affirm in part and reverse in part the trial court's order.

Looking to the magnitude and character of the burden OCGA § 42-1-15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542, 125 S.Ct. 2074; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543, 125 S.Ct. 2074.

We therefore find that OCGA § 42-1-15(a) is unconstitutional to the extent that it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.

---

---

Ga. court overturns restrictions on where sex offenders live

11-21-2007 Georgia:

The Georgia Supreme Court Wednesday tossed out the state's restrictions on where sex offenders can live, if they own the property, saying it is unconstitutional to force them to relocate because a child care facility, school, church later opens up nearby.

The decision came on an appeal filed by a Clayton County man, who researched neighborhoods before he and his wife bought a house in Hampton. Anthony Mann, a registered sex offender for a 2002 conviction in North Carolina for "indecent liberties with children," also challenged the state law that restricts where he can work, but the court ruled against him on that issue.

For a decade, Georgia law has prohibited sex offenders from living within 1,000 feet of any place where children gather. According to the Georgia Bureau of Investigation, which maintains the states' sex offender registry, almost 15,000 are on the list but there is no way to tell if the addresses are places they rent, own, or live at no charge.

In the case of people who buy their homes, presiding Justice Carol Hunstein wrote in a 16-page opinion the prohibition amounted to an illegal taking of property because offenders are forced to choose between at least 10 years is prison or forfeiting "valuable property rights." Sex offenders, according to the opinion, "face the possibility of being repeatedly uprooted and forced to abandon homes in order to comply with the restrictions" of the statute. The restriction, in effect, left them "no place" to live in Georgia "without being continually at risk of being" forced to move.

Opponents of the residency restriction have argued it interferes with the very things a sex offender needs to stay out of trouble — a stable home and job. They also contend it could push sex offenders underground, making it harder to track them because they do not register out of fear they will have to move repeatedly.

The way the law is written, Hunstein wrote, the state's police power is transferred to third parties who build new facilities where children will congregate and make offenders living within 1,000 feet of them in violation of the law. Hunstein noted that registry laws in Alabama and Iowa, both of which have 2,000-feet restrictions, say that offenders who are found to live within the restricted area cannot be found in violation of the law and moved.

Under Georgia law, Hunstein wrote, even an offender such as Mann, who had previously complied with the law's restrictions, "cannot legally remain there whenever others — over whom the offender has no control — decide to locate a child care facility, church, school or 'area where minors congregate'...within 1,000 feet of his residence."

"While this time it was a day care center, next time it could be a playground, a school bus stop, a skating rink or a church," the opinion said. The ruling did not affect the restriction if the residence is rented. The justices said an offender's property interest in a rental home was "minimal," as opposed to the "significant" interest if the offender owns it.

The law, passed by a Legislature trying to run sex offenders out of the state, "looms over every location [a sex offender] ... chooses to call home, with its on-going potential to force (the sex offender) from each new residence whenever ... some third party chooses to establish any of the long list of places and facilities encompassed within the residency restriction.

The justices, however, did not support Mann's argument concerning the barbecue restaurant in which he half owns, Ballard's southern Style BBQ.

The 2006 General Assembly, in attempt to put more pressure on sex offenders, expanded restrictions on them to include places where they worked. Sex offenders cannot work with 1,000 feet of places where children gather and the Supreme Court said that was constitutional.

"Although the statue's work restriction does directly deprive ...[the sex offender] of his right to work at the physical location of the business, there is no showing that [his] property interest in the business depends on his physical presence," the justices wrote. ..more.. by RHONDA COOK, BILL RANKIN, The Atlanta Journal-Constitution

Hyle v Porter

2-20-2008 Ohio:

Hyle v Porter

Hyle v Porter: Because R.C. 2950.031 was not expressly made retrospective, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute.

The First District Court of Appeals found its judgment in this case to be in conflict with the judgment of the Second District Court of Appeals in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, and certified the record to this court for review and final determination. We determined that a conflict exists on the following issue: “Whether R.C. 2950.031—Ohio’s residency-restriction statute prohibiting certain sexually oriented offenders from living within 1,000 feet of a school—can be applied to an offender who had bought his home and committed his offense before July 31, 2003 (the effective date of the statute).” 112 Ohio St.3d 1487, 2007-Ohio-724, 862 N.E.2d 115.