Even Sex Offenders Have Property Rights

A fascinating case was decided by the Georgia Supreme Court on November 21st. The court held in Mann v. Georgia Department of Corrections, S07A1043, that the first part of a law (a) forbidding convicted sex offenders to live within 1000 feet of any child care facility and (b) to work at a place of business similarly located, was an uncompensated taking of the sex offender’s property.

Anthony Mann, a registered sex offender bought a house for himself and his wife, located more than 1000 feet away from such child  facilities. He also became a part owner of a restaurant similarly located. But when new child facilities were established within 1000 feet of his home and his business, has was ordered to move. He filed a lawsuit challenging the constitutionality of the law as a taking of his property without just compensation. The Georgia Supreme Court agreed. Even accepting the strong government interest advanced by the law in question, and the substantiality of the public purpose advanced by the regulation, “we cannot overlook the significant, adverse economic impact of [the statute] on the [registered sex offender], the physical ouster that it effects or its elimination of any investment-backed expectations in [his] residence.” Though all society benefits from the legislation, only the registered sex offender alone bears the burden of this particular protection of minors provided by the statutory residence restriction.

But it was another story when it came to Mann’s half-interest in his restaurant business. Here, said the court, his physical presence on site was not indispensable. Considering his testimony as to what he did at the restaurant, he could retain his half-interest in it without violating the statute, and he could perform his managerial and accounting tasks from his home via computer. There was no showing that maintaining his ownership interest in the business required his physical presence on the premises.  “Thus, although [the statute] OCGA Sec. 42-1-15 (b) (1) has the functional effect of ousting [him] from his business, appellant has not shown that the regulation has unduly burdened him financially or adversely affected his reasonable investment-backed expactations in his business.”

Chief Justice Sears concurred specially, arguing that the majority’s ruling  as to the business, while correct, was overbroad. The holding that the statute bars any business ownership that requires the registered sex offender’s physical presence on the business premises, no matter how infrequent or short is too broad. Properly interpreted, the statute only bars business owners from being employed at a location within the prohibited zone.

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