Title
An Ordinance to Create Section 6.027 of the West Allis Revised Municipal Code Relating to Residency Restrictions For Sex Offenders and Directing Action For Injunctive Relief for Violation Thereof.
Body
WHEREAS, the Wisconsin Statutes provide for the punishment, treatment and supervision of persons convicted or otherwise responsible for sex crimes against children, including their release into the community; and
WHEREAS, Chapter 980 of the Wisconsin Statutes provides for the civil commitment of sexually violent persons, a more dangerous type of sex offender, and specifically, at Section 980.08, Stats., following such commitment, under certain conditions, provides for the supervised release of such persons into the community; and
WHEREAS, the City of West Allis places a high priority on maintaining public safety through highly skilled and trained law enforcement, as well as dependency upon laws that deter and punish criminal behavior; and
WHEREAS, sex offenders have very high recidivism rates, and according to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to re-offend and prey on the most innocent members of our society, and more than two-thirds of the victims of rape and sexual assault are under the age of 18 and sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon; and
WHEREAS, the Common Council has reviewed the findings of a number of the Legislatures of these United States, including, but not limited to, Pennsylvania, Alabama, Iowa, Florida, Maine, Louisiana and the Common Council of Franklin, Wisconsin, as they pertain to laws adopted which relate to, and in part, impose restrictions upon sex offenders with respect to residency; and
WHEREAS, the Common Council having also reviewed the decision of the United States Court of Appeals for the 8th Circuit, in Doe v. Miller, 405 F.3d 700, 716 (8th Cir. 2005), providing 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 re-offend, whether an offender convicted of an offense against a teenager will be 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 reoffense 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, the Common Council intending to codify in the Revised Municipal Code of the City of West Allis in furtherance of the protection of the safety of its citizens and for the proposition that municipalities be responsible for, as well as to, their own citizens; and
WHEREAS, through 2005 Wisconsin Acts 431 and 434, the Wisconsin Legislature has both created and repealed Statutory Provisions relating to the placement of sexually violent persons as set forth by the Wisconsin Revisor of Statutes in a letter dated September 25, 2006, thereby leaving the location of sex offender residency unregulated; and
WHEREAS, the Common Council having considered those submissions and presentations made to the State of Wisconsin Legislative Council Special Committee on Placement of Sex Offenders at the State Capitol of Madison, Wisconsin, at its meeting on November 30, 2006; and
WHEREAS, the Common Council having considered the proposed amendment to the Revised Municipal Code of the City of West Allis to create residency restrictions for certain sex offenders and additional provisions to further protect children, and upon all of the records, files, studies, reports and proceedings pertaining to the subject matter, and all of the prior actions and experience of the City of West Allis in protecting the community from sexually violent persons, the Common Council finds the proposed ordinance will serve to protect the health, safety and welfare of the Community.
The Common Council of the City of West Allis do ordain as follows:
PART I. Section 6.027 of the Revised Municipal Code of the City of West Allis is hereby created to read as follows:
6.027 Sex offender residing within ONE THOUSAND FIVE HUNDRED FEET (1,500') of schools, daycare centers, parks and other specified facilities and uses prohibited.
This Section is a regulatory measure aimed at protecting the health and safety of children in West Allis from the risk that certain convicted sex offenders may re-offend in locations close to their residences. The City finds and declares that certain 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 re-arrested 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 and daycare centers. The City finds and declares that, in addition to schools and daycare centers, children congregate or play at public parks.
(1) Definitions. As used in this Section and unless the context otherwise requires:
(a) A "crime against children" shall mean 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 18 years, respectively:
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;
948.085 Sexual Assault of a Child Placed in Substitute Care;
948.09 Sexual Intercourse with a Child age 16 or older;
948.095 Sexual Assault of a Student by School Instructional Staff;
948.10 Exposing Genitals or Pubic areas to a child;
948.11 Exposing Child to Harmful Material or Harmful Descriptions of Narrations;
948.12 Possession of Child Pornography;
948.13 Convicted Child Sex Offender Working with Children;
948.14 Registered Sex Offender and Photographing Minors;
948.30 Abduction of Another's Child;
971.17 Not Guilty by Reason of Mental Disease-of an included offense; and
975.06 Sex Crimes Law Commitment.
(b) "Offender" means 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 crime against children.
(c) "Residence" means the place where an offender sleeps, which may include more than one location, and may be mobile or transitory.
(d) "Original Domicile" means the offender's true, fixed and permanent home, to which the offender intends to return and remain even though currently residing elsewhere.
(2) Residency restrictions. An offender shall not establish a residence in any location on a parcel of land which, in whole or in part, is within one thousand five hundred feet (1,500') of the real property comprising any of the following:
(a) Any facility for children (which means a public or private school, a group home, as defined in Section 48.02(7), Stats., a residential care center for children and youth, as defined in Section 48.02 (15d), Stats., a shelter care facility, as defined in Section 48.02 (17), Stats., a foster home, as defined in Section 48.02 (6), Stats., a treatment foster home, as defined in Section 48.02 (17q), Stats., a daycare center licensed under Section 48.65, Stats., a daycare program established under Section 120.13 (14), Stats., a daycare provider certified under Section 48.651, Stats., or a youth center, as defined in Section 961.01 (22), Stats.); and/or
(b) Any facility used for:
1. a public park, parkway, parkland, park facility;
2. a public swimming pool;
3. a public library;
4. a recreational trail;
5. a public playground;
6. a school for children;
7. athletic fields used by children;
8. a daycare center;
9. any specialized school for children, including, but not limited to, a gymnastics academy, dance academy or music school;
10. aquatic facilities open to the public;
The distance shall be measured from the closest boundary line of the real property supporting the residence of an offender to the closest real property boundary line of 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.
(3) Residency restriction exceptions. An offender establishing a residence in any location on a parcel of land which, in whole or in part, is within one thousand five hundred feet (1,500') of the real property comprising any of the uses enumerated in subsection (2) above, does not commit a violation of this subsection if any of the following apply:
(a) The offender is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility.
(b) The offender has established a residence prior to the effective date of this subsection on August 2, 2007, which is within one thousand five hundred feet (1,500') of any of the uses enumerated in subsection (2) above, or such enumerated use is newly established after such effective date and it is located within such one thousand five hundred feet (1,500') of a residence of an offender, which was established prior to the effective date of this Section.
(c) The offender is a minor or ward under guardianship.
(4) Original domicile restriction. In addition to and notwithstanding the foregoing, but subject to subsection (3). above, no person and no individual who has been convicted of a crime against children shall be permitted to establish a residence in the City of West Allis, unless such person was domiciled in the City of West Allis at the time of the offense resulting in the person's most recent conviction for committing the crime against children.
(5) Violations. If an offender violates subsection (2), above, by establishing a residence or occupying residential premises in any location on a parcel of land which, in whole or in part, is within one thousand five hundred feet (1,500') of those premises as described therein, without any exception(s) as also set forth above, the City Attorney, upon referral from the Chief of Police and the written determination by the Chief of Police that upon all of the facts and circumstances and the Purpose of the Section, such residence occupancy presents an activity or use of property that interferes substantially with the comfortable enjoyment of life, health, safety of another or others, shall bring an action in the name of the City in the Circuit Court for Milwaukee County to permanently enjoin such residency as a public nuisance.
PART II. The terms and provisions of this ordinance are severable. Should any term or provision of this ordinance be found to be invalid by a court of competent jurisdiction, the remaining terms and provisions shall remain in full force and effect.
PART III. All ordinances or parts of ordinances contravening the provisions of this ordinance are hereby repealed.
PART IV. This ordinance shall take effect and be in force from and after its passage and publication.
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