CopyCited 14 times | Published | Supreme Court of Georgia | Mar 21, 2016 | 784 S.E.2d 392
...facility, church, school, or “area where minors congregate,”11 see OCGA § 42-1-
15 (b),12 and from working or volunteering at any childcare facility, church,
school, or business located within 1,000 feet of a childcare facility, church, or
school. See OCGA §
42-1-15 (c) (1).13 To the extent that a sexual offender is
11
“Area where minors congregate” includes “all public and private parks and
recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school
bus stops, public libraries, and public and community swimming pools.” OCGA §
42-1-12
(a) (3).
12
OCGA §
42-1-15 (b) provides:
On and after July 1, 2008, no individual [required to register] shall reside
within 1,000 feet of any child care facility, church, school, or area where
minors congregate if the commission of the act f...
...ed to register by
virtue of acts committed between July 1, 2006 and June 30, 2008),
42-1-17 (b) (residency
restriction for individuals required to register by virtue of acts committed between June 4,
2003 and June 30, 2006).
13
OCGA §
42-1-15 (c) (1) provides:
On and after July 1, 2008, no individual [required to register] shall be
employed by or volunteer at any child care facility, school, or church or by or
at any business or entity that is located withi...
...see OCGA §
42-1-14 (f),16 and many
sexually dangerous predators are subject to an additional employment
restriction, prohibiting employment or volunteer work at any business located
within 1,000 feet of an area where minors congregate. See OCGA §
42-1-15 (c)
(2).17 Finally, although there are procedures by which a sexual offender may
seek to be released from the registration requirements and residency and
employment restrictions, see OCGA §
42-1-19, the standard for release is, quite...
...sexually dangerous predator shall report to the sheriff of the county where such
predator resides six months following his or her birth month and update or
verify his or her required registration information.
17
OCGA §
42-1-15 (c) (2) provides:
On or after July 1, 2008, no individual who is a sexually dangerous predator
shall be employed by or volunteer at any business or entity that is located
within 1,000 feet of an area where minors congr...
...For instance, sexually dangerous
predators must report to the sheriff more frequently than Level I and Level II
sexual offenders. See OCGA §
42-1-14 (f). Sexually dangerous predators cannot
work at any business within 1,000 feet of an area in which minors congregate,
see OCGA §
42-1-15 (c) (2), an employment restriction in addition to those
imposed on sexual offenders generally....
...by classification as a sexually dangerous predator are substantial. In the first
place, the stigma that follows such a classification — as well as the broad
employment restriction imposed uniquely on sexually dangerous predators, see
22
OCGA §
42-1-15 (c) (2) — undoubtedly may have a serious “adverse impact on
an individual’s ability to live in a community and obtain or maintain
employment.”19 People v....
CopyCited 13 times | Published | Supreme Court of Georgia | Nov 21, 2007 | 282 Ga. 754, 2007 Fulton County D. Rep. 3615
...Drolet, Senior Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Michael L. Smith, James E. Dearing Jr., R. Lynn Wood, James E. Dearing, Jr., P.C., Atlanta, for Appellee. HUNSTEIN, Presiding Justice. 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), *742 who previously challenged the predecessor to OCGA §
42-1-15 [3] when its application required him to vacate his residence at his parents' home....
...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. 1. We address first appellant's constitutional challenge to the residency restriction in OCGA §
42-1-15(a). Under the terms of that 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. OCGA §
42-1-15 contains no "move-to-the-offender" exception to its provisions....
...a violation of this section if any of the following apply: . . . a school or child care facility is newly located on or after July 1, 2002"). Thus, even when a registered sex offender like appellant has strictly complied with the provisions of OCGA §
42-1-15 at the time he established his place of residency, the offender 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," as that term is defined in OCGA §
42-1-12(a)(3), [4] within 1,000 feet of his residence. As a result, sex offenders face the possibility of being repeatedly uprooted and forced to abandon homes in order to comply with the restrictions in OCGA §
42-1-15. Further, OCGA §
42-1-15 is part of a statutory scheme that mandates public dissemination of information regarding where registered sex offenders reside....
...The possibility exists that such third parties may deliberately establish *743 a child care facility or any of the numerous other facilities designated in OCGA §
42-1-12 within 1,000 feet of a registered sex offender's residence for the specific purpose of using OCGA §
42-1-15 to force the offender out of the community. See D. Hunter & P. Sharman, Peach Sheet: Crimes and Offenses, 23 Ga. St. U.L.Rev. 11, 19 (2006) (quoting "candid" comment at Senate Judiciary Committee hearing that residency/work restrictions in OCGA §
42-1-15 will force sex offenders "in many cases [to] have to move to another state, and that's the greatest protection I think any of us can offer our kids")....
...A registered sexual offender who knowingly fails to quit a residence that is located within 1,000 feet of any of the facilities or locations designated in the statute commits a felony punishable by imprisonment for not less than ten nor more than 30 years. OCGA §
42-1-15(d)....
...[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests. Lingle, supra at 539-540,
125 S.Ct. 2074. We apply these guidelines to resolve appellant's claim that OCGA §
42-1-15(a) constitutes an unconstitutional regulatory taking of his property....
...Ga. at 443(2),
603 S.E.2d 283, we find appellant's property interest in the Hibiscus Court residence he purchased with his wife to be significant. As a registered sex offender, the locations where appellant may reside are severely restricted by OCGA §
42-1-15(a); as recognized by other states, those locations may also be subject to private limitations, see Mulligan v....
...1147, 1163-1164 (2006) (discussing ordinances enacted by local governments in Florida that have expanded state statutory buffer zones). Nevertheless, appellant and his wife were able to find and purchase a house that complied with the residency restriction in OCGA §
42-1-15. The evidence is uncontroverted that the Hibiscus Court *744 property was purchased for the sole purpose of serving as their home. OCGA §
42-1-15, by prohibiting appellant from residing at the Hibiscus Court house, thus utterly impairs appellant's use of his property as the home he shares with his wife....
...DeKalb County,
242 Ga. 432, 433-434(2),
249 S.E.2d 235 (1978) (property is taken under Georgia Constitution when owner's right to "possess, use, enjoy and dispose of it" impaired). Unlike the situation in the typical regulatory takings case, the effect of OCGA §
42-1-15 is to mandate appellant's immediate physical removal from his Hibiscus Court residence....
...Assuming such a residence can be located, he is faced with the financial burden of maintaining both residences until he and his wife can sell or rent the Hibiscus Court property. Although the State contends that appellant's ability to rent or sell his house eliminates or minimizes the economic impact of OCGA §
42-1-15(a), appellant's testimony established that he and his wife did not purchase the Hibiscus Court property for rental purposes and that neither he nor his wife are real-estate speculators. Even assuming, arguendo, that appellant can lawfully engage in the business of renting a property located within 1,000 feet of a day care center, OCGA §
42-1-15 would thus be used to force appellant and his wife to become lessors, an unwelcomed and unanticipated role for which they are ill-equipped....
...s again, plus additional expenditures such as escrow deposits and utilities transfers, in purchasing a new residence. We thus reject the State's position that appellant has failed to demonstrate a significant economic impact from application of OCGA §
42-1-15 to his situation. Contra Doe v. Baker, 2006 WL 905368, 2006 U.S. Dist. LEXIS 67925 (N.D.Ga.2006) (fact that plaintiff is prohibited by predecessor to OCGA §
42-1-15 from living in his own home does not alone demonstrate significant economic impact). Moreover, OCGA §
42-1-15 looms over every location appellant chooses to call home, with its on-going potential to force appellant from each new residence whenever, within that statutory 1,000-foot buffer zone, some third party chooses to establish any of the long list of places and facilities encompassed within the residency restriction. [6] 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. OCGA §
42-1-15 does not merely interfere with, it positively precludes appellant from having any reasonable investment-backed expectation in any property purchased as his private residence....
...ue to state regulations regarding type of dwellings permitted in forest). *745 In Mann, supra,
278 Ga. at 443-444(2),
603 S.E.2d 283, we recognized the strong governmental interests that are advanced by the residency restriction now codified in OCGA §
42-1-15(a)....
...However, even assuming, arguendo, that the substantiality of the public purpose advanced by a regulation is still pertinent to a takings challenge, but see Lingle, supra,
544 U.S. at 540(II)(B),
125 S.Ct. 2074, [7] we cannot overlook the significant, adverse economic impact of OCGA §
42-1-15 on appellant, the physical ouster that it effects or its elimination of any investment-backed expectations in appellant's residence. Moreover, we must recognize that OCGA §
42-1-15 effectively places the State's police power into the hands of private third parties, enabling them to force a registered sex offender like appellant, under penalty of a minimum ten-year sentence for commission of a felony, to forfeit valuable property rights in his legally-purchased home....
...es omitted.) Mann, supra,
278 Ga. at 443(2),
603 S.E.2d 283. All of society benefits from the protection of minors, yet registered sex offenders alone bear the burden of the particular type of protection provided by the residency restriction in OCGA §
42-1-15(a)....
...No burden is placed on third parties to aid in providing this protection, even though they have been enabled to do so by the mandated public dissemination of the addresses of registered sex offenders. OCGA §
42-1-12(i). 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....
...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. 2. Appellant also contends that the work restriction in OCGA §
42-1-15(b)(1) violates the takings clauses of the United States and Georgia Constitutions....
...Although appellant testified that the business suffered as a result of his absence from the restaurant, he also testified that he could "take a computer and [his] papers and so forth" and perform tasks without being physically present at the restaurant. OCGA §
42-1-15(b)(1) provides that no registered sex offender "shall be employed by ....
...h the residency restriction, "aims to lessen the potential for those offenders inclined toward recidivism to have contact with, and possibly victimize, the youngest members of society." Mann, supra,
278 Ga. at 444(2),
603 S.E.2d 283. Construing OCGA §
42-1-15(b)(1) in light of this legislative aim, we hold that nothing in the statute prohibits a registered sex offender from owning a business or entity within the 1,000-foot buffer zone around child care facilities, schools and churches, as long...
...o enable the sex offender to come into contact with any children who may be attending the child care facility, school or church. Appellant's property interest in the business in which he owns a half-interest is considerable. However, nothing in OCGA §
42-1-15(b)(1) compels appellant to divest himself of that ownership interest in the business or to relocate the business in order to maintain his interest in it....
...[8] Appellant provided no evidence to quantify his claim that the restaurant had "suffered" as a result of his physical absence; rather, his testimony regarding the restaurant's lack of profit centered on the start-up difficulties routinely involved in launching such a business. Thus, although OCGA §
42-1-15(b)(1) has the functional effect of ousting appellant physically from his business, appellant has not shown that the regulation has unduly burdened him financially or adversely affected his reasonable investment-backed expectations in his business....
...ing of his business property. The Court is therefore correct to uphold the trial court's judgment *747 denying Mann's claim as it relates to his business. In rejecting this claim, the majority opines, correctly, that the phrase "employed by" in OCGA §
42-1-15(b)(1) cannot, as a matter of statutory construction, be interpreted to prohibit mere ownership of a business within the 1,000-foot zone....
...I am authorized to state that Justice MELTON joins in this special concurrence. NOTES [1] Individuals classified as sexually dangerous predators under OCGA §
42-1-12(a)(21) are additionally prohibited from being employed by any business or entity located within 1,000 feet of an area where minors congregate. OCGA §
42-1-15(b)(2)....
...[3] Former OCGA §
42-1-13, which restricted registered sex offenders from residing within 1,000 feet of a child care facility but which did not affect where registered sex offenders were employed, was repealed in 2006 and its provisions, as amended, were recodified as OCGA §
42-1-15....
...It does not punish sex offenders retrospectively on the basis of their status. It simply declares that convicted sex offenders who currently reside within certain well-defined areas are guilty of a felony." Thompson v. State,
278 Ga. 394, 396,
603 S.E.2d 233 (2004). [6] OCGA §
42-1-15 affects not only the location of appellant's residence but also such essential economic decisions as whether to rent or purchase, the duration of any lease to be signed, the financial terms for any mortgage used for a new home's purchase, whether to invest funds in improving the property, etc....
