ORD20191428-Chapter 294 (Sex Offenders)
COMMON COUNCIL – CITY OF MUSKEGO
ORDINANCE #1428
AN ORDINANCE TO AMEND CHAPTER 294 (Sex Offenders)
OF THE MUNICIPAL CODE OF THE CITY OF MUSKEGO REGARDING
SEXUAL OFFENDER RESIDENCY AND LOITERING
RESTRICTIONS WITHIN THE CITY OF MUSKEGO
(Sex Offenders)
WHEREAS, the Common Council of the City of Muskego had created Chapter 42 (now 294)
Muskego Municipal Code in 2008, by Ordinance 1285-2008, to protect the safety and welfare of
its citizens by creating zones around places where children regularly gather in which sex
offenders are prohibited from establishing residence, and
WHEREAS, the United States District Court for the Eastern District of Wisconsin issued an
Order on April 17, 2017, in the case titled Hoffman v. Village of Pleasant Prairie, which
contained holdings that directly impact the terms of Municipal Code Chapter 294 and make it
necessary to amend the terms of Chapter 294 to comply with the District Court’s holdings.
NOW, THEREFORE, the Common Council of the City of Muskego do ordain as follows:
SECTION 1: Chapter 294 of the Municipal Code of the City of Muskego is hereby amended in
its entirety as follows:
Chapter 294. Sex Offenders
\[HISTORY: Adopted by the Common Council of the City of Muskego 11-6-2008 by Ord. No.
1285 (Ch. 42 of the 1964 Code).\]
§ 294-1. Findings and intent.
A. The Wisconsin legislature has provided for the punishment, treatment, and supervision of
persons convicted or otherwise responsible for sex crimes against children, including their
release into the community. Indeed, Chapter 980 of the Wisconsin Statutes provides for the
civil commitment of sexually violent persons. The purpose of this chapter is to protect the
public, to reduce the likelihood that convicted sex offenders will engage in such conduct in
the future.
B. The City finds and declares that sex offenders are a serious threat to public safety. When
convicted sex offenders re-enter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault. Given the high rate of recidivism
for sex offenders and that reducing opportunity and temptation is important to minimizing the
risk of re-offense, there is a need to protect children where they congregate or play in public
places in addition to the protections afforded by State Law near schools, day-care centers,
and other places children frequent. The City finds and declares that in addition to schools
and day-care centers, children congregate or play at public parks and other child safety
locations as defined hereunder.
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C. The Common Council finds that the negative consequences of failing to regulate the
movement of sex offenders are a hazard to children and the community. Thus, the Common
Council has a duty and need to regulate where sex offenders reside and loiter within the City
once they are reintegrated into the community. This section is a regulatory measure aimed
at protecting the health and safety of the children in the City of Muskego from the risk that
convicted sex offenders may reoffend in locations close to their residences. It is the intent of
this section 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 residence or loitering; and by regulating certain activities that may be used by
sexual offenders to prey on children.
§ 294-2. Definitions.
As used in this chapter, and unless the context requires otherwise:
CRIMES AGAINST CHILDREN – Any of the following offenses set forth within the Wisconsin
Statutes, as amended, or the laws of this or any other State or the Federal government, having
like elements necessary for conviction and involving a person under the age of eighteen (18)
years, respectively:
Wisconsin Statute Sections:
940.225(1): First Degree Sexual Assault
940.225(2): Second Degree Sexual Assault
940.225(3): Third Degree Sexual Assault
940.22(2): Sexual Exploitation by Therapist
940.30: False Imprisonment-victim was minor and not the offender’s child
940.31: Kidnapping-victim was minor and not the offender’s child
944.01: Rape (prior statute)
944.06: Incest
944.10: Sexual Intercourse with a Child (prior statute)
944.11: Indecent Behavior with a Child (prior statute)
944.12: Enticing Child for Immoral Purposes (prior statute)
948.02(1): First Degree Sexual Assault of a Child
948.02(2): Second Degree Sexual Assault of a Child
948.025: Engaging in Repeated Acts of Sexual Assault of the Same Child
948.05: Sexual Exploitation of a Child
948.055: Causing a Child to View or Listen to Sexual Activity
948.06: Incest with a Child
948.07: Child Enticement
948.075: Use of a Computer to Facilitate a Child Sex Crime
948.08: Soliciting a Child for Prostitution
948.095: Sexual Assault of a Student by School Instructional Staff
948.11(2)(a) or (am): Exposing Child to Harmful Material-felony sections
948.12: Possession of Child Pornography
948.13: Convicted Child Sex Offender Working with Children
948.30: Abduction of Another’s Child
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971.17: Not Guilty by Reason of Mental Disease-of an included offense
975.06: Sex Crimes Law Commitment
FACILITY FOR CHILDREN – A public or private school or a group home, as defined in Wis.
Stats. § 48.02(7); a residential care center for children and youth, as defined in Wis. Stats.
§ 48.02(15d); a shelter facility center, as defined in Wis. Stats. § 48.02(17); a daycare center
licensed under Wis. Stats. § 48.65; a daycare program established under Wis. Stats.
§ 120.13(14); a daycare provider certified under Wis. Stats. § 48.651; or a youth center, as
defined in Wis. Stats. § 961.02(22).
OFFENDER – A person who has been convicted of or has been found delinquent of or has
been found not guilty by reason of disease or mental defect of a sexually violent offense and/or
a crime against children.
PARK/CONSERVATION AREA – Any area held open for use by the public for active or passive
leisure purposes, including but not limited to any park, parkway, recreation or open space area,
beach, playground, conservation area, lake access point or recreational trail. "Park/conservation
area" also means any private lake access point or private beach that owners of two or more lots
or condominium units are entitled use, pursuant to a deed restriction, subdivision plat,
condominium declaration, condominium plat, homeowners' association regulation or similar
rights of common use. \[Amended 4-2-2009 by Ord. No. 1289\]
PERMANENT RESIDENCE – The place where a person sleeps, abides, lodges, or resides for
fourteen (14) or more consecutive days or which qualifies as a residence under the holdings of
the Wisconsin Supreme Court and which may include more than one location, and may be
mobile or transitory.
SEXUALLY VIOLENT OFFENSE – Shall have the meaning as set forth in Wis. Stats.
§ 980.16(6) as amended from time to time.
TEMPORARY RESIDENCE – Residence or premises meeting any of the following criteria:
A. A place where the person sleeps, abides, lodges, or resides for a period of fourteen (14) or
more days in the aggregate during any calendar year and which is not that person’s
permanent residence as defined in this section;
B. A place where the person routinely sleeps, abides, lodges, or resides for a period of four or
more consecutive or nonconsecutive days in any month and which is not that person’s
permanent residence as defined in this section; or
C. A place where a person sleeps, or which qualifies as a temporary residence under the
holdings of the Wisconsin Supreme Court, and which may include more than one location,
and may be mobile or transitory.
§ 294-3. Residency restrictions.
A. It is unlawful for any offender to establish a permanent residence or temporary residence on
property that is within 1,250 feet of real property that supports or upon which there exists
any of the following uses:
(1) Any facility for children.
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(2) Any specialized school for children, including but not limited to a gymnastics academy,
dance academy, or musical school.
(3) A public swimming pool.
(4) A public library.
(5) A park/conservation area.
(6) A public playground.
(7) A school for children.
(8) Athletic fields used by children.
(9) A day care center.
(10) A tutoring facility.
(11) Aquatic facilities open to the public
(12) A golf course.
B. Measurement of the distance. 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 the applicable above-enumerated use(s).
C. Residency restriction exceptions. An offender residing within one thousand two hundred and
fifty (1,250) feet of real property that supports or upon which there exists any of the uses
enumerated in subsection A of this section does not commit a violation of this chapter if any
of the following apply:
(1) The offender is required to serve a sentence or is otherwise involuntarily required to
reside in a jail, prison, juvenile facility, or other correctional institution or mental facility.
(2) The offender has established a residence prior to the effective date of the Ordinance
codified in this chapter.
(3) The use enumerated in subsection A of this section began after the offender established
a residence.
(4) The offender is a minor or ward under guardianship.
D. In addition to and notwithstanding the foregoing, but subject to subsection C of this section,
no person who has been convicted of sexually violent offense and/or crime against children,
shall be permitted to reside in the City of Muskego and no supervised release of such
Wisconsin Statute Chapter 980 sexually violent person shall be established in the City of
Muskego unless such person was domiciled in the City of Muskego at the time of the
offense resulting in the person’s most recent conviction for committing the sexually violent
offense and/or crime against children.
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§ 294-4. Holiday events and public gatherings.
It is unlawful for any 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 an 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 section.
§ 294-5. Loitering.
A. It is unlawful for any person defined as an offender pursuant to Section 294-2 to loiter or
prowl in the locations enumerated in Section 294-3(A), in a place, at a time, or a manner not
usual for law-abiding individuals under circumstances that warrant alarm for the safety of
persons or property in the vicinity.
B. 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 peace officer, refuses
to identify himself/herself or manifestly endeavors to conceal himself/herself or any object.
Unless flight by the actor or other circumstances make is impracticable, a peace office 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/her to identify
himself/herself and explain his/her presence and conduct at the locations enumerated in
Section 294-3(A). No person shall be convicted of an offense under this section if the peace
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 peace officer at the time,
would have dispelled the alarm.
C. This section shall not apply where the actor was accompanied by his/her parent, guardian,
or other adult person having his/her care, custody, or control, or where that actor was
exercising First Amendment rights protected by the United States Constitution or Wisconsin
Constitution, including freedom of speech, the free exercise of religion, and the right of
assembly.
§ 294-6. Child safety zones.
The City Planning Division shall maintain an official map showing locations identified in § 294-3
of this chapter. The Planning Division shall 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 chapter shall control.
§ 294-7. Penalties and remedies.
A. Forfeitures. Any person found guilty of violating this chapter shall be subject to a forfeiture of
not less than five hundred dollars ($500.00) nor more than five thousand dollars ($5,000.00)
for each violation. Each violation and each day a violation continues or occurs shall
constitute a separate offense. Neither the issuance of a citation nor the imposition of
forfeiture hereunder shall preclude the City from seeking or obtaining any or all other legal
and equitable remedies to prevent or remove a violation of this chapter.
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B. Injunction-Violation of residency restrictions. If an offender establishes a permanent or
temporary residence in violation of Section 294-3, the Chief of Police may refer the matter to
the City Attorney. The referral shall include a written determination by the Chief of Police
that, upon all of the facts and circumstances and the purpose and intent of this chapter,
such violation interferes substantially with the comfortable enjoyment of life, health, safety of
another or others. Upon such referral, the City Attorney may bring an action in the name of
the City in Circuit Court to permanently enjoin such residency as a public nuisance.
SECTION 2: It is the intent of the Common Council that the provisions of this Chapter are
severable. If any section or portion thereof shall be declared by a decision of a Court of
competent jurisdiction to be invalid, unlawful or unenforceable, such decision shall apply only to
the specific section or portion thereof directly specified in the decision, and not affect the validity
of all other provisions, sections or portion thereof of the Ordinance which shall remain in full
force and effect. Any other Ordinance whose terms are in conflict with the provisions of this
Ordinance is hereby repealed as to those terms that conflict.
SECTION 3: This Ordinance shall be in full force and effect from and after its passage and
publication.
RD
PASSED AND APPROVED THIS 23 DAY OF APRIL 2019.
CITY OF MUSKEGO
Kathy Chiaverotti, Mayor
ATTEST: First Reading: April 9, 2019
Clerk-Treasurer
Newly Enacted Ordinance Published: May 1, 2019