ORD20081285-Sexual Offender Residency Restrictions 10-24 clean
COMMON COUNCIL - CITY OF MUSKEGO
ORDINANCE #1285-2008
AN ORDINANCE CREATING CHAPTER 42 OF THE CITY
OF MUSKEGO CODE OF ORDINANCES ESTABLISHING
SEXUAL OFFENDER RESIDENCY AND LOITERING
RESTRICTIONS WITHIN THE CITY OF MUSKEGO
WHEREAS, the Wisconsin State legislature has provided for the punishment, treatment and
supervision of persons convicted or otherwise responsible for sex crimes against children,
including their release in the community; and
WHEREAS, Chapter 980 of the Wisconsin Statutes provides for the civil commitment of
sexually violent persons. The purpose of the statute is to protect the public, to treat convicted
sex offenders who are at a high risk to reoffend, to reduce the likelihood that they will engage
in such conduct in the future, and following such commitment §980.08 Wisconsin Statutes
provides, under certain conditions, for the supervised release of such persons into the
community; and
WHEREAS, according to the US Department of Justice, Bureau of Justice Statistics, in 2001
there were approximately three hundred eighty-six thousand (386,000) convicted sex
offenders registered in forty-nine (49) states and the District of Columbia; and
WHEREAS, according to a 1997 report prepared by the US Department of Justice titled “Sex
Offenses and Offenders”, nearly two-thirds of victims of convicted rape and sexual assault
offenders serving time in state prison were under the age of eighteen (18); the median age of
victims of imprisoned sexual assault offenders was less than thirteen (13) years; the median
age for rape victims was about twenty-two (22) years; an estimated twenty-four percent (24%)
of those serving time for rape and nineteen percent (19%) of those serving time for sexual
assault had been on probation or parole at the time of the offense; and
WHEREAS, the United States Supreme Court has recognized that the risk of recidivism
posed by sexual offenders is “frightening and high” and “when convicted sex offenders re-
enter society, they are much more likely than any other type of offender to be re-arrested for a
new rape or sexual assault”. Smith v. Doe, 538 U.S. 84 (2003) and McKune v. Lile, 536 U.S.
24, 34 (2002) citing U.S. Department of Justice, Bureau of Justice Statistics, Sex Offenses
and Offenders, 27 (1997); U.S. Department of Justice, Bureau of Justice Statistics,
Recidivism of Prisoners Released in 1983, page 6 (1997); and
WHEREAS, the Common Council is aware that a number of states across the United States,
including, but not limited to, Florida, Georgia, Alabama, Iowa and California, impose
restrictions on sex offenders with respect to residency; and
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WHEREAS, the decision of the United States Court of Appeals for the 8 Circuit in Doe v.
Miller, 405 F.3d 700, 716 (8th Cir., 2005), provides, in part, “the record does not support a
conclusion that the Iowa General Assembly and the Governor acted based merely on
negative attitudes toward, fear of, or a bare desire to harm a politically unpopular group.
\[Citation omitted\] Sex offenders have a high rate of recidivism, and the parties presented
expert testimony that reducing opportunity and temptation is important to minimizing the risk of
re-offense. Even experts in the field could not predict with confidence whether a particular sex
offender will reoffend, whether an offender convicted of an offense against a teenager will be
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among those who “cross over” to offend against a younger child, or the degree to which
regular proximity to a place where children are located enhances the risk of re-offense against
children. One expert in the district court opined that it is just “common sense” that limiting the
frequency of contact between sex offenders and areas where children are located is likely to
reduce the risk of an offense. \[Citation omitted\] 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”; and
WHEREAS, §62.11(5), Wisconsin Statutes grants the “power to act for the government and
good order of the city and for the health, safety, welfare and convenience of the public, and
may carry its powers into effect by license, regulation, suppression, borrowing of money, tax
levy, appropriation, fine, imprisonment, confiscation and other necessary or convenient
means”.
NOW, THEREFORE, the Common Council of the City of Muskego, Waukesha County,
Wisconsin, DO ORDAIN AS FOLLOWS:
SECTION 1. Chapter 42 of the City of Muskego Municipal Code, entitled “Sexual Offenders
Residency Restrictions,” is hereby created to read as follows:
Chapter 42
SEXUAL OFFENDERS RESIDENCY AND LOITERING RESTRICTIONS.
42.01 Findings and Intent
(a) The Common Council finds that repeat sexual offenders, sexual offenders who use
physical violence, and sexual offenders who prey on children are sexual predators
who present an extreme threat to the public safety. Sexual offenders are extremely
likely to use physical violence and to repeat their offenses; and most sexual
offenders commit many offenses, have many more victims that are never reported,
and are prosecuted for only a fraction of their crimes. This makes the cost of
sexual offenders’ victimization to society at large, while incalculable, clearly
exorbitant.
(b) It is the intent of this ordinance not to impose a criminal penalty but rather to serve
the City’s compelling interest to promote, protect, and improve the health, safety,
and welfare of the citizens of the City by creating areas around locations where
children regularly congregate in concentrated numbers wherein certain sexual
offenders and sexual predators are prohibited from establishing temporary or
permanent residence.
42.02 Definitions
(a) Child means a person under the age of 18 for purposes of this ordinance.
(b) Child Day Care means any facility that provides care and supervision for
compensation to four or more children for less than 24 hours a day where a license
is required under Wisconsin Statute §48.65(1) for the operation of such facility.
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(c) Designated Offender means any person who is required to register under
Wisconsin Statutes §301.45 for any sexual offense against a child or any person
who is required to register under Wisconsin Statutes §301.45 and who has been
designated a Special Bulletin Notification (SBN) sex offender pursuant to
Wisconsin Statutes §301.46(2) and (2M).
(d) Golf Course means any public or private golf course or range.
(e) Library means any library that is held open for use by the public where such library
includes a collection of material specifically intended for use by children.
(f) Minor means a person under the age of 17.
(g) Park/Conservation Area means any park, beach, playground, conservation area, or
recreational trail that is held open for use by the public.
(h) Public/Private School means any public or private elementary or secondary school.
(i) Permanent Residence means a place where the person abides, lodges, or resides
for 14 or more consecutive days.
(j) Specialty School means any specialized school for children, including, but not
limited to, a gymnastics academy, dance academy, or music school.
(k) Swimming Pool means any swimming pool, wading pool, or aquatic facility held
open for use by the public.
(l) Temporary Residence means a place where the person abides, lodges, or resides
for a period of 14 or more days in the aggregate during any calendar year and
which is not the person’s permanent address or a place where the person routinely
abides, lodges, or resides for a period of four or more consecutive or non-
consecutive days in any month and which is not the person’s permanent address.
42.03 Sexual Offender and Sexual Predator Residence, Prohibition, Penalties,
Exceptions
(a) Prohibited Location of Residence. It is unlawful for any designated offender to
establish a permanent residence or temporary residence on property that is within
2,000 feet of real property consisting of any of the following:
1. Public/Private School
2. Specialty School
3. Child Day Care
4. Library
5. Park/Conservation Area
6. Swimming Pool
7. Golf Course
The distance shall be measured from the closest boundary line of the real property
supporting the residence of a person to the closest real property boundary line of
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the applicable above enumerated use(s). A map depicting the above enumerated
uses and the resulting residency restriction distances, as amended from time to
time, is on file in the Office of the City Clerk for public inspection pursuant to
Section 42.03(d) of this Ordinance.
(b) Prohibited Activity. It is unlawful for any designated offender to participate in a
holiday event involving children under 18 years of age by means of distributing
candy or other items to children on Halloween, wearing a Santa Claus costume in a
public place on or preceding Christmas, or wearing an Easter Bunny costume in a
public place on or preceding Easter, or other similar activities that may, under the
circumstances then present, tend to entice a child to have contact with a
designated offender. Holiday events in which the offender is the parent or legal
guardian of the children involved, and no non-familial children are present are
exempt from this paragraph.
(c) Loitering. It shall be unlawful for any designated offender to loiter or prowl at any of
the following locations:
1. Public/Private School
2. Specialty School
3. Child Day Care
4. Library
5. Parks/Conservation Area
6. Swimming Pool
7. Golf Course
in a place, at a time, or a manner not usual for law abiding individuals, under
circumstances that warrant alarm for the safety of the persons or property in the
vicinity. Among the circumstances which may be considered in determining
whether such alarm is warranted is the fact that the actor takes flight upon
appearance of a law enforcement officer, refuses to identify himself or herself or
manifestly endeavors to conceal himself or herself or any object. Unless flight by
the actor or other circumstances makes it impractical, a law enforcement officer
shall prior to any arrest for an offense under this section, afford the actor an
opportunity to dispel any alarm which would otherwise be warranted, by requesting
him or her to identify himself or herself or explain his or her presence and conduct
at the aforementioned locations. No person shall be convicted of an offense under
this section if the law enforcement officer did not comply with the preceding
sentence, or if it appears at trial that the explanation given by the actor was true,
and, if believed by the law enforcement officer at the time, would have dispelled the
alarm.
The prohibitions set forth in this section (above) shall not apply where the
designated offender is a minor and was with one or both of his or her parents or
other adult person having his or her care.
(d) Child Safety Zones.
The City Planning Department shall maintain an official map showing locations
identified in Section 42.03(a) of this Ordinance. The Planning Department shall
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update the map at least annually to reflect any changes in the location of prohibited
zones. These shall be designated on the map as “child safety zones”. The map is
to be displayed in the office of the City of Muskego City Clerk. In the event of a
conflict, the terms of this Ordinance shall control.
(e) Penalties.
1. A person who violates provisions of Section 42.03(a) of this Ordinance shall be
subject to a forfeiture of not less than $500.00 and no more than $1,000.00 for
each violation. Each day a person maintains a residence in violation of this
ordinance constitutes a separate violation. The City may also seek equitable
relief to gain compliance.
2. Any person violating Section 42.03(b) or Section 42.03(c) of this Ordinance
shall forfeit not less than $1,000.00 and no more than $2,000.00 for each
violation.
(f) Exception. A designated offender residing within a prohibited area as described in
Section 42.03(a) does not commit a violation of this section if any of the following
apply:
1. The person established the permanent residence or temporary residence and
reported and registered the residence pursuant to Wisconsin Statutes §301.45
before the effective date of this Ordinance.
2. The person is a minor and is not required to register under Wisconsin Statutes
§301.45 or §301.46.
3. The public/private school, specialty school, child day care, library,
park/conservation area, swimming pool, or golf course was opened after the
person established the permanent residence or temporary residence and
reported and registered the residence pursuant to Wisconsin Statutes §301.45.
4. The residence is also the primary residence of the person’s parents,
grandparents, siblings, spouse, or children provided that such parent,
grandparent, sibling, spouse or child established the residence at least two
years before the designated offender established the residence at the location.
42.04 Severability
The provisions of this Ordinance shall be deemed severable and it is expressly declared that
the Common Council would have passed the other provisions of this Ordinance irrespective of
whether or not one or more provision may be declared invalid. If any provision of this
Ordinance or the application to any person or circumstance is held invalid, the remainder of
the Ordinance or the application of such other provisions to other persons or circumstances
shall not be affected.
SECTION 2. SEVERABILITY. The several sections of this Ordinance are declared to be
severable. If any section or portion thereof shall be declared by a court of competent
jurisdiction to be invalid, unlawful or unenforceable, such decision shall apply only to the
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specific section or portion thereof directly specified in the decision, and shall not affect the
validity of any other provisions, sections or portions thereof of the Ordinance. The remainder
of the Ordinance shall remain in full force and effect. Any other Ordinances whose terms are
in conflict with the provisions of this Ordinance are hereby repealed as to those terms that
conflict.
SECTION 3. EFFECTIVE DATE. This Ordinance shall take effect upon passage and
publication as provided by law.
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Dated this 28 day of OCTOBER 2008.
CITY OF MUSKEGO
__________________________
John Johnson, Mayor
ATTEST: First Reading and Second Reading:
October 28, 2008
_____________________________
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Janice Moyer, Clerk Published this 6 day of November 2008