Posted by: Patricia Salkin | November 27, 2007

Georgia Supreme Court Find Sex Offender Residency Restriction an Unconstitutional Taking

The Georgia Supreme Court ruled that the State Registered Sex Offender Law prohibiting registered offenders from residing within 1,000 feet of any child care facility, church, school or area where minors congregate is an unconstitutional regulatory taking. The part of the statute that prohibits registered sexual offenders from being employed by any business or entity that is located within 1,000 feet of the same did not, however, amount to a taking.  

The appellant, a registered sex offender, purchased a home with his wife, and at the time of purchase, he was not in violation of the distance restriction.  In addition, the appellant became the half-owner and day-to-day operator of a restaurant, that at the time he leased its current premises, was not within 1,000 feet of any child care facility, church or school.  However, child care facilities later located themselves within 1,000 feet of both appellant’s home and business. After being told he had to move from his residence and quit the premises of his business upon penalty of arrest and revocation of probation, the appellant alleged that the Sate law amounts to an unconstitutional regulatory taking of his property without compensation.   

With respect to the residency restriction, the Georgia Supreme Court noted that it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being uprooted and forced to abandon homes.  Applying the guidelines from Penn Central Transp. Co. v. New York City, 438 U.S. 104, the Court determined that the residency restriction is an unconstitutional taking of the appellant’s property.  The Court found that the appellant’s interest in the property was significant, and that the regulation in effect mandates the appellant’s immediate physical removal from this residence, a functional “equivalent to the classic taking in which government directly…outs the owner from his domain.” Citing to Lingle v. Chevron U.S. A., Inc. 544 U.S. 528 at 539.  

The Court dismissed the State’s arguments that the appellant could rent or sell his house, eliminating or minimizing the economic impact of the statute since he did not purchase the property for rental purposes.  Further, the Court said that even if a purchaser could be found, it would involve numerous expenses, closing costs, attorney fees and realtor commissions, plus escrow deposits and utility transfers.  This, said the Court, demonstrated a significant economic impact from the application of the statute. The Court also found that the statute not only interferes with, but it precludes the appellant from having any reasonable investment-backed expectation in any property purchase as a private residence since there is always a potential that any third party will choose to establish any of the long list of places and facilities encompassed in the residency restriction.   Although the Court acknowledged that the residency restriction advances a strong governmental interest, the Court said, “we cannot overlook the significant, adverse economic impact of [sic: the statute] on appellant, the physical ouster that it effects or its elimination of any investment backed expectations in appellants residence.”  The Court concluded that “justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be ‘spread among taxpayers through the payment of compensation.”  

The Court did not find the employment restriction to be an unconstitutional taking.   Although the appellant could not work on-site due to the restriction, his one-half interest in the business did not require his physical presence on the premises.  The appellant was not able to show that the regulation unduly burdened him financially or adversely affected his reasonable investment-backed expectations in his business.  

Mann v. Georgia Department of Corrections, 2007 WL 4142738 (Ga. 11/21/2007).The opinion is also available at: www.gasupreme.us/pdf/s07a1043.pdf


Responses

  1. I wonder why the Penn Central test was applied when this looks like a per se/categorical taking. Regulatory eviction seems at least as bad as physical invasion.


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