The plaintiff in this case, Anthony Mann, lost in the trial court – which found both restrictions constitutional. He then appealed. In previous litigation, Mann’s challenge to the sex offender residency restriction was rejected when applied to Mann’s residence at his parents’ home. See: Mann v. State, 603 S.E. 2d 283 (Ga. 2004). This more recent challenge involved different circumstances.
In August 2003, Mann married and purchased a home. There was no dispute that when the house was purchased it was not within 1,000 feet of any childcare facility, church, school or area where minors congregate. Then, in October 2004, Mann became half-owner and day-to-day operator of a barbecue restaurant. Likewise, that business, when leased, was not within 1,000 feet of any childcare facility, church or school.
Thereafter, childcare facilities located themselves within 1,000 feet of both Mann’s home and business. His probation officer demanded that Mann quit the premises of his business and remove himself from his home under penalty of arrest and revocation of probation. Mann sought a declaration that this application of OCGA § 42-1-15(d) violated the takings clause of the Georgia and United States Constitutions.
The state Supreme Court found that under the sex offender restriction statute, “it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected. The statute provides no protection for an offender, like Mann, who made efforts to purchase a home that complies with the residency restriction.”
Under state law, third parties may readily learn the location of a registered sex offender’s residence. Thus, the possibility exists that third parties may deliberately establish childcare facilities or any of the other types of facilities listed in the statute within 1,000 feet of a sex offender’s home for the specific purpose of forcing the offender out of the community. Moreover, violation of the statute carries the State’s police power by making the violation a felony punishable by imprisonment of 10-30 years.
The Georgia Supreme Court found the residency restriction constituted an unconstitutional taking of Mann’s property. Forcing Mann and his wife to sell or rent their house was “functionally equivalent to the classic taking in which government directly … ousts the owner from his domain.”
This created a severe financial burden that would loom over every location Mann chooses to call home. Since the statute permits the regulatory taking of Mann’s property without just or adequate compensation, the Court held it was unconstitutional.
The Attorney General’s office, which requested clarification from the Court, interpreted this part of the ruling to only apply to sex offenders who own their homes, not to those who rent.
The statute’s work restriction provision was found constitutional. The Court ruled that the law only prohibited Mann from being employed at his business, not from owning it. Thus, his property interests were not at stake since others could be employed to operate the business. The Court’s rationale was based upon Mann’s failure to show that his lack of physical presence at the business had caused it to suffer.
The trial court’s order was affirmed in part and reversed in part. See: Mann v. Georgia Department of Corrections, 282 Ga. 754, 653 S.E.2d 740 (Ga. 2007).
As expected, Georgia lawmakers moved quickly to remedy the deficiencies in the state’s sex offender statute. A new law, Senate Bill 1, would exempt sex offenders who are already employed or own homes from having to move if childcare facilities, churches, schools, etc. are later located within 1,000 feet of their property or place of employment. The bill does not, however, cover sex offenders who rent rather than own their own home. As of April 26, 2008, Senate Bill 1 was awaiting the governor’s signature.
Further, a pending federal class action suit, filed by the Southern Center for Human Rights in 2006, challenges both the residency and work restrictions of the state’s sex offender law (encompassed in HB 1059), which were to go into effect on July 1, 2006. If Senate Bill 1 is enacted it would likely be incorporated into the ongoing class action challenge.
See: Whitaker v. Perdue, U.S.D.C. (N.D. Ga.), Case No. 4:06-cv-140-CC.
Additional Source: Morris News Service
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Related legal cases
Mann v. Georgia Department of Corrections
|Cite||282 Ga. 754, 653 S.E.2d 740 (Ga. 2007)|
|Level||State Supreme Court|
Whitaker v. Perdue
|Cite||U.S.D.C. (N.D. Ga.), Case No. 4:06-cv-140-CC|