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
