Georgia Law that Prohibited Registered Sex Offenders From Living Within 1,000 Feet of Areas Where Children Congregate Declared Unconstitutional

          In 2007, the Georgia Supreme Court ruled as unconstitutional a Georgia law that prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate. 

          The case, Mann v. Georgia Department of Corrections, arose when Anthony Mann, a registered sex offender in Georgia, filed a lawsuit asking that the law mentioned above be declared unconstitutional because it authorized the taking of his home without his being financially compensated in violation of both the United States Constitution and the State Constitution of Georgia. 

          Mann also asked that this law be declared unconstitutional because it prohibits registered sex offenders from working at any business in Georgia that is located within 1,000 feet of a church, school, or child care facility.  He argued that this law likewise authorizes the unconstitutional taking of his business, just as it does his home, without his being financially compensated.

         The Georgia Supreme Court did ultimately declare that portion of the law unconstitutional which prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate.  However, it did not rule unconstitutional that portion of the same law which prohibits registered sex offenders from working at businesses located within 1,000 feet of a church, school, or child care facility.

          The Court began its analysis by stating that "[u]nder 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. . . .  Thus, even when a registered sex offender like [Mr. Mann] has strictly complied with the [statute] 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 'areas where minors congregate,' . . . 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 [the statute]."

          The Court continued on to state that this particular law "is part of a statutory scheme that mandates public dissemination of information regarding where registered sex offenders reside. . . .  Thus, third parties may readily learn the location of a registered sex offender's residence.  The possibility exists that such third parties may deliberately establish a child care facility or any of the numerous other facilities designated in [the statute] within 1,000 feet of a registered sex offender's residence for the specific purpose of using [the statute] to force the offender out of the community."

          The Court went on, however, to rule that that portion of the statute which prohibits registered sex offenders from working at any business that is located within 1,000 feet of a church, school, or child care facility is constitutional because "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 as that ownership does not involve the sex offender's physical presence at the business or entity so as to enable the sex offender to come into contact with any children who may be attending the child care facility, school or church."

          The Court observed that "[a]lthough the statute's work restriction does directly deprive [Mann] of his right to work at the physical location of the business, there was no showing that [his] property interest in the business depends on his physical presence; that the tasks he performs on site at the restaurant cannot be performed economically by others; and that other tasks he performs cannot be handled with comparable economic efficiency at a site outside any buffer zone.  [Mann] 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."

          But what if a business owner who is a registered sex offender were to prove that he does have to be physically present at his business for it to survive?  What if he were to prove that the tasks he performs on site cannot be performed economically by others?  Or what if he were to prove that the tasks he performs cannot be handled with comparable economic efficiency at a site outside the 1,000-foot buffer zone?  Might the Georgia Supreme Court then declare the other portion of the statute unconstitutional as well?  I would not be surprised to see lawsuits filed in Georgia in the next few years arguing precisely these points or ones similar to them.