Would Cayce’s proposed sex-offender residency and loitering restrictions survive constitutional review?

Plain-English summary

Cayce’s public-safety director asked about a proposed ordinance restricting registered sex offenders from residing or loitering within 2,500 feet of schools, child-care sites, churches, parks and other places listed in the ordinance. The AG predicted that a court would likely uphold the ordinance. He relied on the presumption that local ordinances are valid and on decisions that had sustained similar restrictions as rational means of protecting children.

The AG highlighted the proposed exception for a permanent home established before the ordinance or before a newly protected facility began operating. That protection addressed a property-taking problem identified in a Georgia case involving a homeowner forced to move after a child-care center opened nearby. He also said an unusually burdensome buffer that effectively excluded a person from a city could raise constitutional concerns. His answer was a prediction about the proposed text, not a court ruling on an enacted ordinance.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG declare Cayce’s proposed ordinance constitutional? A: No. He predicted that a court would likely uphold it. The opinion recognized that courts, rather than the AG, make the final constitutional determination.

Q: What locations were included in the proposed buffer?
A: The proposal listed schools, child-care facilities, churches, playgrounds, parks, school-bus stops, public pools, youth athletic facilities and neighborhood or youth centers, with a 2,500-foot distance.

Q: Would the proposal force someone from a home established before the rule or a nearby facility? A: The quoted ordinance exempted a permanent residence established before the ordinance or before the protected facility began operating. The AG considered that exception central to his takings analysis.

Q: Did the AG address the loitering ban separately?
A: Yes. He noted that the ordinance defined loitering to include remaining in one place without an apparent lawful purpose, and relied on a federal decision upholding a park-access restriction against due-process attack.

Background and statutory framework

The opinion compared the proposed local ordinance with the State’s sex-offender registry law and constitutional decisions about residency, due process and property rights. A footnote concluded that the registry law did not preempt Cayce’s proposal. The AG’s favorable assessment depended in part on the ordinance’s exception for existing permanent homes; he also identified possible concerns if a buffer became too onerous.

Citations and references

Registry provision quoted: South Carolina Code Section 23 -3-430. Federal case discussed: Doe v. Miller, 405 F.3d 700 (8th Cir. 2005).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-7-2008/
• Original PDF: https://www.scag.gov/media/jqol2edg/mcnair.pdf

Original opinion text

south C

Henry McMaster
Attorney General

January 7, 2008

Charles E. McNair, Director

Cayee Department of Public Safety
Post Office Box 2004

Cayce, South Carolina 29171
Dear Mr. McNair:
You request an opinion regarding the constitutionality of an ordinance of the City of Cayce. This ordinance imposes certain proximity restrictions on residency and loitering of registered sex

offenders in relation to schools, churches, day care centers, parks and other designated facilities frequented by children and young people. In your request letter, you note that "[t]he ordinance is based on a Georgia state statute that has been determined by the courts to be constitutional." Law / Analysis

The Cayce Ordinance in question provides as follows:
WHEREAS, the Council has determined that it is in the interest of the security, safety, general welfare and peace of the public within the City for the City to impose certain restrictions on the residency and loitering of registered sex offenders to attempt to address the risk of sex crimes, the risk of recidivism of registered sex offenders, the threat posed by sex offenders, and the repercussions of sex crimes for the victims and for society as a whole,

NOW, THEREFORE, BE IT ORDAINED by the Mayor and Council of

the City of Cayce, in Council, duly assembled, that Chapter 28 of the Cayce City Code ("Offenses and Miscellaneous Provisions") is hereby amended as follows: 1.

Article XII ("Sex Offenders") is added.

2.

Section 28-270 ("Restrictions on Residency and Loitering for Sex

Offenders") is added to Article XII to read as follows:

embert C. Dennis Building

Post Office Box 1 1 549

Columbia,

Telephone 803-734-3970

•acsimiu-;

-6283

Mr. McNair
Page 2

January 7. 2008

ARTICLE XII. SEX OFFENDERS

Section 22-270. Restrictions on residency and loitering of sex offenders.

(a)

Any person required to register as a sex offender pursuant to South

Carolina Code Section 23 -3-430 shall not maintain a residence, reside or loiter within 2500 feet of any school, child care facility, church, playground, park, designated school bus stop, public pool, youth athletic facility or playing fields or courts or rinks, or neighborhood or youth center.

(b)

The buffer distance described above shall be determined by measuring

from the outer boundary of the property on which the person maintains a residence,

resides or loiters to the outer boundary of the other property, at their closest points. The buffer distance shall be measured as the shortest straight line between the two points without regard to any intervening structures or objects. (c)

As used in this section, the word "loiter" shall mean remaining idle

in essentially one location for no apparent lawful purpose, or without a lawful purpose for being present, or for the purpose of watching, gazing or looking upon the

occupants of the other property in a clandestine manner or with unlawful intent, or under circumstances that warrant alarm for the safety of persons or property in the vicinity, or to establish control over identifiable areas, or to intimidate others from entering those areas, or to conceal illegal activities. (d)

The prohibition on maintaining a residence or residing shall not apply

to a permanent residence established by the registered sex offender prior to the enactment of the Code section or prior to the commencement of the operation of the other buffered property for any of the purposes listed in subsection (a) above. Ifany section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this Ordinance is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity ofthe remaining portions of this Ordinance, the Council hereby declaring that it would have passed this

Ordinance, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereofmay be declared to be unconstitutional, invalid, or otherwise

ineffective.

Mr. McNair
Page 3
January 7, 2008

South Carolina's sex offender registry is codified at S.C. Code Ann. §§ 23-3-400.

Our

Supreme Court has described the legislation creating the registry as follows:

[t]he Act mandates that [convicted sex offenders] register as a sex offender in South Carolina for life.

S.C. Code Ann. § 23-3-460; See South Carolina Sex Offender

Registry at http://www.sled.state.sc.us. The online registry provides information like sex, age, height, and weight to help identify the offender.

It also includes the

offender's last reported address and the sex offense he committed. Hendrix v. Taylor, 353 S.C. 542, 546, 579 S.E.2d 320, 322 (2003). One purpose of the registry is to "provide law enforcement the tools needed in investigating criminal offenses." Moreover, such provision's intent is "to provide for the public health, welfare and safety of its citizens." Hendrix, 353 S.C., Id. at 550, 579 S.E.2d, Id. at 324.

In Hendrix, the Court upheld the Registry Act as

constitutional against due process and equal protection challenges. Decisions ofour Court have also rejected other constitutional challenges as well. See, State v. Walls , 348 S.C. 26, 558 S.E.524 (2002)

[Sex Offender Registry Act does not violate Ex Post Facto Clause when defendant was required to register 25 years after committing the offense]; In the Interest ofRonnie A., 355 S.C. 407, 585 S.E.2d 31 1 (2003) [juvenile's due process rights were not violated by requirement that he register as sex

offender].
With that background in mind, we turn to an analysis of the proposed Cayce Ordinance. As you note in your letter, the Ordinance imposes certain proximity restrictions on residence and loitering of registered sex offenders in relation to schools, churches, day care centers, parks and other designated facilities frequented by children and young people. In analyzing the constitutionality of the Ordinance, we recognize that like any other municipal ordinance, Cayce's would, if adopted, carry with it the presumption of validity.

As was stated in a prior opinion of this Office, dated

December 14, 2006,
... an ordinance is a legislative enactment and therefore, is presumed constitutional.

Town ofScranton v. Willoughby, 306 S.C. 421, 422, 412 S.E.2d 424, 425 (1991). Our Supreme Court "has held that a duly enacted ordinance is presumed

constitutional; the party attacking the ordinance bears the burden of proving its unconstitutionality beyond a reasonable doubt. City ofBeaufort v. Baker, 3 1 5 S.C. 146, 1 53, 432 S,E.2d 470, 474 (1 993). Moreover, "[w]hile this office may comment upon constitutional problems, it is solely within the province of the courts of this

State to declare an act unconstitutional.
The Cayce Ordinance is not unique in its attempt to afford protection for children from registered sex offenders.

A number of federal and state decisions have addressed the
constitutionalitv of similar ordinances and statutes attacked on the basis of various constitutional

Mr. McNair
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January 7, 2008

challenges. Almost universally, these decisions have upheld as constitutional the particular ordinance or statute in question. See, Mann v. State, 278 Ga. 442, , 603 S.E.2d 283 (2004); Weems

v. Little Rock Police Dept., 453 F.3d 1010 (8th Cir. 2006); State ex re/. White v. Billings, 1 39 Ohio Misc. 2d 76, 860N.E.2d831 (2006); Hyle v. Porter, 170Ohio App.3d710, 868N.E.2d 1047(2006);

Lee v. State, 895 So.2d 1038 (Ala. 2004); Doe v. Miller, 405 F.3d 700 (8th Cir. 2005); State v. Seering, 701 N.W.2d 655 (Iowa 2005); People v. Leroy, 357 Ill.App.3d 530, 828 N.£.2d 769 (2005); Standley v. Town ofWoodfin, 650 S.E.2d 6 1 8 (N.C. 2007); but see, State v. Mutter, 171 Ohio App.3d 563, 871 N.E.2d 1264 (2007); M.ann v. Georgia Dept of Corrections, __ S.E.2d _ (2007), 2007 WL 4142738. In Doe v. Miller, supra , for example, sex offenders brought a class action challenging the

constitutionality of an Iowa statute which prohibited a person who had committed a criminal sex offense against a minor from residing within 2000 feet of a school or child care facility. The Eighth Circuit Court of Appeals upheld the statute against a variety of constitutional challenges, including those based upon procedural due process, substantive due process, the constitutional right to travel,

and the fact that the provision violated the Ex Post Facto Clause. The Court of Appeals rejected the contention that the right to choose one's residence is a fundamental right. In the Court's view, the statute in question rationally advanced the state's interest in protecting children from sexual offenders. Thus, the statute was deemed valid. In the words of the Eighth Circuit,
[w]e think the decision whether to set a limit on proximity of "across the street" ... or 500 feet or 3000 feet ... or 2000 feet ... is the sort of task for which the elected

policymaking officials on a State, and not the federal courts, are properly suited .... The policymakers of Iowa are entitled to employ such "common sense" and we are not persuaded that the means selected to pursue the State's legitimate interest are

without rational basis.
405 F.3d at 714-716. Moreover, in People v. Leroy, supra , the Illinois Court of Appeals concluded that the probationer possessed no fundamental constitutional right to live with his mother within 500 feet of a school.

In addition, the residency restriction did not constitute cruel and unusual

punishment, reasoned the Court. Articulating the Legislature's purpose and design in enacting such

a provision, the Court stated as follows:

[wjith regard to the public interest subsection (b-5) seeks to protect, we conclude that the state has a legitimate and compelling interest in protecting children from adult

offenders. See, e.g.. People v. Williams, 133 IlL2d 449, 455, 141 111. Dec. 444, 551 N.E.2d 631 (1990). In conjunction with that interest, the state has broad powers,

subject to constitutional confines, to avert potentially dangerous situations. Williams, 133 I11.2d at 457, 141 Ill.Dec. 444, 551 N.E.2d 631. As we have stated before, the prohibitive subsections of section 1 1-9.4 of the Criminal Code of 1961 (720 ILCS

Mr. McNair
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January 7, 200<

5/11-9.4 (West 2002)) are intended to protect children from known child sex offenders. People v. Diestelhorsf, 344 III.App.3d 1 172, 1 184, 280 111. Dec. 201, 801 N.E.2d 1 146 (2003). Prohibiting known child sex offenders from having access to children in schools bears a reasonable relationship to protecting school children from known child sex offenders. People v. Stork, 305 Ill.App.3d 714, 722, 238 111. Dec. 941, 713 N.E.2d 187 (1999). Accordingly, we conclude that by prohibiting child sex offenders from living within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age, subsection (b-5) also bears a reasonable relationship to the goal ofprotecting children from known child sex offenders and sets forth a reasonable method of furthering that goal. Although the record is bare of any statistics or research correlating residency distance with sex offenses, we conclude that it is reasonable to believe that a law that prohibits child sex offenders from living within 500 feet of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the opportunity for the child sex offenders to commit new sex offenses against those children will be reduced as well. Although it is not clear from the record how the distance of 500 feet was decided upon, we believe that

500 feet is a reasonable distance. We note that among the 1 3 states that have enacted some form of residency restriction applicable to sex offenders, the 500-foot restriction of subsection (b-5) is the least restrictive in geographical terms. 828 N.E.2d at 776. Moreover, in Weems v. Little Rock Police Dept., supra , the Court held that the residency restriction upon sex offenders living within 2000 feet of a school or day care center is constitutional. In the Court's opinion, this requirement does not violate substantive due process or equal protection by treating high risk offenders who do not own property differently from property-owning high risk

offenders, or from low risk offenders. Nor did the restriction intrude upon the constitutional right to travel. According to the Eighth Circuit, "[t]he Arkansas legislature undoubtedly has a legitimate

interest in protecting children from the most dangerous sex offenders." In the view of the Court, "a residency restriction designed to reduce proximity between the most dangerous offenders and

locations frequented by children is within the range of rational policy options available to a state

legislature charged with protecting the health and welfare of its citizens." 453 F.3dat 1015. Likewise, the Iowa Supreme Court, in State v. Seering, supra upheld a statute which prohibits sex offenders from living within 2000 feet of an elementary or secondary school or child care facility. In the Court's Opinion, "[ajlthough freedom of choice in residence is ofkeen interest to any individual, it is not a fundamental interest entitled to the highest constitutional protection." 701 N.W.2d at 664. Instead, the State must demonstrate only a rational interest in restricting the choice of residency location. Thus, concluded the Court, there is 'ua reasonable fit between the government

Mr. McNair
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January 7, 2008

interest of preventing sex offenders from reoffending and the residency restriction statute.

Id. at

665. Moreover, the statute did not unreasonably infringe upon the offender's "private interest in

freedom of choice of residence" or upon procedural due process. The purpose of the statute was not punitive and thus did not increase punishment after commission ofthe crime, in contravention of the Ex Post Facto Clause. Your letter indicates that the Cayce Ordinance is modelled upon a Georgia statute. In Mann v. State, supra the Supreme Court of Georgia addressed the constitutionality of the law which barred registered sex offenders from living within 1000 feet of a child care facility, a school or any area

where minors congregate. In the view of the Court, "the statute aims to lessen the potential for those offenders inclined toward recidivism to have contact with, and possibly victimize, the youngest members of society. As such, the State's interests underlying the Residency Statute are entitled to substantial weight." 603 S.E.2d at 286. With respect to the argument that "the Registered Offender statute is unconstitutionally over-broad because less restrictive remedies are available to promote

the State's interest in separating convicted sex offenders and minors," the Court rejected such argument, concluding as follows:

[hjowever, a statute is over-broad only if it reaches a substantial amount of constitutionally protected conduct. In the present case, the Registered Offender Statute does not have an impact upon any protected conduct, since it only prohibits

residency within 1 ,000 feet of a "child care facility," "school," or an "area where minors congregate." A convicted sex offender may still own property and lease it, visit it, or conduct any type of business upon it within the 1,000 foot zone. Accordingly, contrary to appellant's argument, we conclude the Statute's restrictions are narrowly tailored to serve its intended purpose, and we reject his over-breadth argument.

603 S.E.2d at 286.
The most recent Mann case { WL 4 1 4273 8) decided by the Georgia Supreme Court must also

be examined. In that case, the question before the Court was whether the retroactive application of the Georgia Residency statute to a sex offender by forcing him to move out of his home after a child

care center opened a facility within the restricted zone constituted an unconstitutional "taking" of his property without just compensation. The Georgia Supreme Court recognized and reiterated the

first Mann decision's conclusion rejecting Mann's "takings challenge to the residency restriction on the basis that he had only a minimal property interest in the living arrangement he enjoyed at his parent's home." However, in Mann 11, the circumstances had changed. Mann had "moved from his parent's home, got married in August 2003 and purchased, together with his wife, a home on Hibiscus Court in Clayton County in October 2003."

Mr. McNair
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Subsequently, a child care center located within 1000 feet of both Mann's home and his restaurant. Mann's probation officer thus demanded that the statute required that he move from his home upon penalty of arrest and revocation of probation. The Georgia Supreme Court, however, concluded that requiring Mann to move even though

the child care facility located within the 1000 feet restriction constituted a "taking" without "just compensation." In the Court's opinion,
[ujnder the terms of... [the Georgia] 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 - 1 5 contains no "move-to-the-offender" exception to its provisions. Compare, e.g., Ala.Code § 15-20-26(e) (2007) ("[c]hanges to property within 2,000 feet of an adult criminal sex offender's registered address which occur

after an adult criminal sex offender establishes residency or accepts employment shall not form the basis for finding that a criminal sex offender is in violation of' residency/work restrictions); Iowa Code § 692A.2A (4)(c) (2006) (sex offender "residing within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility does not commit 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 §42-1-1 2(a)(3), 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 ofinformation regarding where registered sex offenders reside. OCGA
§ 42-1-12(1). 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 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 1 think any of us can offer our kids"). A registered sexual offender

Mr. McNair
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January 7. 2008

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 § 42-1-1 5(d). As the United States Supreme Court recognized mLingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L,Ed.2d 876 (2005),

government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster-and that such "regulatory takings" may be compensable under

the Fifth Amendment.
Accord Mann , supra, 278 Ga. at 443(2), 603 S.E.2d 283. Regulations that fall short

of eliminating property's beneficial economic use may still effect a taking, depending upon the regulation's economic impact on the landowner, the extent to which it

interferes with reasonable investment-backed expectations, and the interests promoted by the government action.

Contrasting the situation with that in the earlier Mann case, where Mann's "property interest in his rent-ftee residence at his parent's home ... [was] minimal," the Court found that "the property

interest in the Hibiscus Court residence he purchased with his wife [was] ... significant." In the Court's view, Mann and his wife had purchased a home not then in contravention of the restrictions

"for the sole purpose of serving as their home." Accordingly, "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." Id. Requiring he and his wife to move is "'functionally equivalent to the classic taking in which government directly ... ousts the owner from his domain." (Quoting Lingle, supra , 544 U.S. at 539). The Court also noted that the statute could easily have included a provision

protecting such homeowners as other states with similar provisions had done.1

1 In our view, the Cayce Ordinance is not preempted by the Sex Offender Registry Act. As our Supreme Court has stated, determining whether a local ordinance is valid is a two step process. The first step is to ascertain whether the local government had the power to enact the ordinance. If so, then it must be ascertained whether the ordinance is inconsistent with the Constitution or general

law of the state. South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624 (2006).

Here, nothing in the Registry Act suggests the Legislature intended to proscribe the type of restriction contained in Cayce's Ordinance. Moreover, in American Civil Liberties Union ofNew-

Mexico v. City ofAlbuquerque, 137 P. 3d 1215 (N.M. 2006), the New Mexico Court of Appeals held (continued...)

Mr. McNair
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Januaty 7, 20(P

Conclusion

It is our opinion that the Cayce ordinance, prohibiting those on the sex offender registry from residing or loitering within 2500 feet of any school, child care facility, church, or other similar facility where children congregate would likely be upheld by a court as constitutionally valid. As discussed above, numerous decisions have found similar statutes or ordinances to be constitutional against a variety of constitutional challenges, including procedural and substantive due process, equal protection, vagueness, etc.

These decisions have focused upon the State's interest in the

protection of children from convicted sex offenders as being paramount. Clearly, in this instance, the purpose of the Cayce ordinance as stated therein is to "attempt to address the risk of sex crimes, the risk of recidivism of registered sex offenders, the threat posed by sex offenders, and the repercussions of sex crimes for the victims and for society as a whole." Inasmuch as courts have

consistently recognized that the right of a convicted sex offender to a particular residency is not a "fundamental" right, we believe a court would likely uphold the Cayce ordinance as a valid and rational means of addressing the threat posed by convicted sex offenders to young children in the places where children most likely congregate or frequent. In the words of one court, a municipality such as Cayce "undoubtedly has a legitimate interest in protecting children from the most dangerous sex offenders."

Weems, supra. As Weems concluded, a legislative body may rationally choose a

policy "designed to reduce proximity between the most dangerous offenders and locations frequented

by children ...." Id. Such is the case here.
With regard to the "loitering" prohibition in the Ordinance, the Seventh Circuit in Doe v. City

of Lafayette, 377 F.3d 757 (7!h Cir. 2004) has concluded that banning altogether a convicted sex offender from all city parks does not violate either the First Amendment or the Due Process Clause. While the Court in Doe acknowledged that the plurality opinion in City ofChicago v. Morales, 527 U.S. 41 ( 1 999) recognized that the Due Process Clause provides a "liberty" interest in the freedom

to loiter for innocent purposes, such is not, according to the Seventh Circuit, a fundamental right. Therefore, concluded the Court in Doe , the policy was reasonably related to the city's interest in protecting children.

Moreover, in this instance, the Cayce Ordinance defines "loitering" as

"remaining idle in essentially one location for no apparent lawful purpose. " (emphasis added).

'(...continued)
that an ordinance restricting the residence of sex offenders to certain locations was not preempted by the New Mexico sex offender registry Act. The Court found that the Legislature, in enacting the

registry Act did not intend to occupy the field; nor did the ordinance conflict with state law . in view of the presumption of validity which Cayce's ordinance must be given as well as the fact that there is no indication of an intent by the General Assembly to preempt such ordinances, we conclude there is no preemption of the Cayce ordinance by state law.

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January 7, 2008

We also note that the Cayce ordinance contains a provision which states that the prohibition "shall not apply to a permanent residence established by the registered sex offender prior to the enactment of this Code section or prior to the commencement of the operation of the other buffered property for any of the purposes listed in subsection (a) above." This provision distinguishes the Cayce ordinance from the constitutional defect identified in the second Mann case. Thus, so long as this protection remains in the proposed Cayce Ordinance, any unconstitutional "takings" issue is obviated. Such a provision protecting homeowners is thus in accord with Mann 's statement that any such statute or ordinance should contain such a "grandfather" provision. Finally, we note that the restriction in the Cayce Ordinance is proposed as being 2500 feet. As the courts have indicated, the exact distance of the restriction is primarily a matter for the legislative body (such as city council) to determine. Obviously, the less the restriction imposed, the more likely a court will uphold it. We note that Weems, supra upheld a distance of 2000 feet, as did Lee v. Stale, supra and State v. Seering, supra . On the other hand, a restriction so onerous that a person is legislated out of the city or municipality may be constitutionally problematical, although

we have located one unpublished federal decision, Hawkins v. City of Gainesville, 2007 WL 44 1 2994 which upheld a city ordinance prohibiting sex offenders from living within 2500 feet ofthe

city limits.
In conclusion, we advise that the Cayce Ordinance would likely be upheld. So long as such

an ordinance is not applied to a person establishing a permanent residence prior to the passage of the Ordinance, or prior to "the commencement of the operation of the other buffered property for any purpose" listed in such an ordinance, (as Cayce's proposed ordinance presently does), the Ordinance will likely be deemed by a court to be valid. Very truly yours, Henry D. McMaster

_

Robert D. Cook
Assistant Deputy Attorney General

RDC/an