Chapter 9.65
SEXUAL OFFENDER RESIDENCY, PROHIBITED ACTIVITIES AND LOITERING RESTRICTIONS
Sections:
9.65.010 Findings and purpose of chapter.
9.65.030 Residency restrictions for sex offenders, exceptions.
9.65.040 Renting real property to sex offenders, restricted.
9.65.050 Prohibited activities by sex offenders, exception.
9.65.060 Loitering by sex offender prohibited, exception.
9.65.010 Findings and purpose of chapter.
[Note: The recitals that precede the text of the ordinance codified in this chapter are hereby incorporated herein by reference as if set forth in full, and are made part of this chapter].
This chapter is a regulatory measure aimed at protecting the health and safety of children in the Town of East Troy from the risk that convicted sex offenders may re-offend in locations close to their residences. The Town 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 other types of offenders to be re-arrested for a new 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-offending, there is a need to protect children where they congregate or play in public places in addition to the protections that may be afforded by state law near schools, day care centers and other places children frequent. The Town finds and declares that in addition to schools and day care centers, children congregate or play in the Town at public parks, camps, public trails and beaches.
It is not the intention of the Town to punish sex offenders, but rather to serve the Town’s compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the Town by creating areas around certain locations where children regularly congregate in concentrated numbers, wherein sex offenders are prohibited from establishing a temporary or permanent residence, from loitering, and from engaging in certain activities. (Ord. 2016-3 § 1. 2008 code §5(1))
9.65.020 Definitions.
Except where an inconsistent definition is expressly specified, the terms used in this chapter shall be interpreted to be consistent with the definitions found in Wis. Stat. Chs. 948, Crimes Against Children, 301.45, Registered Sex Offenders, and 980, Sexually Violent Person Commitments. The following words and phrases shall have the following meanings:
1. “Child” means a person under the age of 18.
2. “Children” means two or more persons under the age of 18.
3. “Child safety location” means the site upon which any of the following are located without regard to whether such site is located within the geographic limits of the Town of East Troy:
a. Facility for children;
b. Group home, as defined in Wis. Stat. § 48.02(7);
c. Library, that is held open for use by the public;
d. Licensed day care center as defined in Wis. Stat. § 48.65;
e. Public or private primary, elementary, secondary, middle, junior high, or high school;
f. Recreational trail, playground or park;
g. Specialized school for children, including, without limitation, a gymnastics academy, dance academy, or music school;
h. Beaches, swimming pool, wading pool, or aquatic facility held open for use by the public;
i. A public or private golf course or range;
j. Church or place of worship; and
k. All camps within the Town of East Troy.
4. “Child safety zone” means any property within the Town of East Troy that is physically located within 1,500 feet of any child safety location. In the event that any portion of the property falls within a child safety zone, the entire property will be considered part of the child safety zone.
5. “Crime against children” means 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 where the victim is a child, respectively:
§ 940.225(1), First degree sexual assault;
§ 940.225(2), Second degree sexual assault;
§ 940.225(3), Third degree sexual assault;
§ 940.225(3m), Fourth degree sexual assault;
§ 940.22(2), Sexual exploitation by therapist;
§ 940.30, False imprisonment – victim was a minor and not the offender’s child;
§ 940.31, Kidnapping – victim was a 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 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 or volunteer;
§ 948.10(1)(a), Exposing genital, pubic area, or intimate parts;
§ 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;
§ 948.14, 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;
§ 975.06, Sex Crimes Law, commitment.
6. “Domicile” means an individual’s fixed and permanent residence where the individual intends to remain permanently and indefinitely and to which whenever absent the individual intends to return; provided, however, that no individual may have more than one domicile at any time. A residence being used for any special or temporary purpose is not considered a domicile.
7. “Facility for children” means a public or private school, a group home, as defined in Wis. Stat. § 48.02(7), a residential care center for children and youth, as defined in Wis. Stat. § 48.02(15d), a shelter care facility as defined in Wis. Stat. § 48.02(17), a day care center licensed under Wis. Stat. § 48.65, a day care program established under Wis. Stat. § 120.13(14), a day care provider certified under Wis. Stat. § 48.651, or a youth center, as defined in Wis. Stat. § 961.01(22).
8. “Governing body” means the Town Board of the Town of East Troy.
9. “Minor” means a person under the age of 17.
10. “Municipality” means the Town of East Troy.
11. “Permanent residence” means a place where a person abides, lodges, or resides for 14 or more consecutive days.
12. “Sex offender” or “sexual predator” means a person who has been convicted of, found delinquent of, or found not guilty by reason of disease or mental defect of a sexually violent offense and/or a crime against a child or children.
13. “Sexually violent offense” has the meaning set forth in Wis. Stats. § 980.01(6), as amended from time to time.
14. “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 nonconsecutive days in any month and which is not the person’s domicile.
15. “Special or temporary purpose” means a situation that is out of the ordinary, such as but not limited to, an immediate family member who requires extra care due to severe health issues from a stroke, Alzheimer’s disease, etc. (Ord. 2016-3 § 1. 2008 code §5(2))
9.65.030 Residency restrictions for sex offenders, exceptions.
1. Child Safety Zone Restriction. Subject to the exceptions in subsection (3) of this section, no sex offender shall establish a permanent residence or temporary residence within the Town of East Troy that is within a child safety zone, as determined by following a straight line from the outer property line of the domicile or temporary residence to the nearest outer property line of any child safety location.
2. Original Domicile Restriction. In addition to subsection (1) of this section, but subject to the exceptions in subsection (3) of this section, no sex offender shall establish a permanent or temporary residence within the Town of East Troy and no supervised release of a sex offender shall be established in the Town of East Troy unless such person was domiciled in the Town of East Troy at the time of the offense resulting in the person’s most recent conviction for committing the sexually violent offense and/or crime against a child or children. This section shall not apply if the sex offender establishes a domicile outside of the Town of East Troy prior to returning to the Town of East Troy.
3. Exceptions. A sex offender may not be found to be in violation of the residence restriction in subsection (1) of this section, or in violation of the loitering restriction in ETMC 9.65.060, if the sex offender establishes that any of the following apply:
a. The sex offender was domiciled in the Town of East Troy prior to the effective date of the ordinance codified in this chapter; provided, however, that if the sex offender was then subject to Wis. Stat. § 301.45, the sex offender must have also reported and registered the residence pursuant to Wis. Stat. § 301.45 prior to such date to take advantage of the exception.
b. The sex offender is a minor and is not required to register under Wis. Stat. §§ 301.45 and 301.46.
c. The child safety location began after the sex offender had established the domicile or temporary residence and reported and registered the residence if required pursuant to Wis. Stat. § 301.45.
d. The sex offender is subject to an active court order to serve a sentence or is otherwise involuntarily required to reside in a jail, prison, juvenile facility, or other correctional institution or mental facility within the child safety zone.
e. The property supporting a use within a child safety zone also supports a church, synagogue, mosque, temple, or other house of religious worship, subject to the following conditions:
i. Entrance and presence on the property may occur only during hours of worship or other religious program or service.
ii. The person may not participate in any religious education programs that include individuals under the age of 18.
f. The property supporting a use within a child safety zone also supports a use lawfully attended by the sex offender’s natural or adopted child or children, which child’s use reasonably requires the attendance of the sex offender; provided, that entrance and presence on the property occurs only during hours of activity related to the use of the child or children.
g. The property supporting a use within a child safety zone also supports a polling location in a local, state or federal election, subject to the following conditions:
i. The sex offender is eligible to vote.
ii. The polling location is the designated polling location for the sex offender.
iii. The sex offender casts his or her ballot with whatever usual and customary assistance is available and vacates the property immediately after voting.
h. The property supporting a use within a child safety zone also supports a school lawfully attended by the sex offender as a student; provided, that the sex offender may only remain on the property at such times that are reasonably required for his or her educational purposes.
i. The property supporting a use within a child safety zone also supports a police station, Town Hall, or other governmental building, provided the sex offender vacates the property immediately after completing the activity that allowed his or her participation and presence at the property. (Ord. 2016-3 § 1. 2008 code §5(3))
9.65.040 Renting real property to sex offenders, restricted.
No person shall let or rent any place, structure, or part thereof, trailer or other conveyance, with the knowledge that it will be used as a domicile or temporary residence by a sex offender contrary to the provisions of ETMC 9.65.030. (Ord. 2016-3 § 1. 2008 code §5(4))
9.65.050 Prohibited activities by sex offenders, exception.
1. Prohibited Activities by Sex Offenders. Except as provided in subsection (2) of this section, no sex offender shall participate in any event in the Town of East Troy involving a child or children by means of distributing candy or other items to such child or children. Examples of such events would include, but not limited to: Halloween, wearing a Santa Claus costume in a public place in relationship to Christmas, wearing an Easter Bunny costume in a public place in relationship to Easter, or other activities that may, under the circumstances then present, tend to entice a child or children to have contact with a sex offender.
2. Exception. Events in which the sex offender is a parent or legal guardian of the child or children involved are exempt from the provisions of subsection (1) of this section; provided, that no child or children other than a child or children of the sex offender are present at the event, and that the sex offender’s participation in such event complies with any restrictions set by the court or any other governing authority with legal jurisdiction, i.e., probation, parole, Department of Corrections, etc. (Ord. 2016-3 § 1. 2008 code §5(5))
9.65.060 Loitering by sex offender prohibited, exception.
1. Loitering by Sex Offender. No sex offender shall loiter or prowl on or within 200 feet of any child safety location, 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 person 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 person or other circumstances makes it impractical, a law enforcement officer shall prior to any arrest for an offense under this section, afford the person 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 person was true, and, if believed by the law enforcement officer at the time, would have dispelled the alarm.
2. Exception. The prohibitions set forth in subsection (1) of this section shall not apply where the sex offender is a minor who is with one or both of his or her parents or guardian at the time of the offense or the sex offender was exercising First Amendment rights protected by the United States Constitution, including freedom of speech, free exercise of religion and the right of assembly. (Ord. 2016-3 § 1. 2008 code §5(6))
9.65.070 Penalties.
1. A person who violates provisions of sections of this chapter shall be subject to a forfeiture of not less than $500.00 and no more than $2,000 for each violation. Each day a person is in violation of this chapter constitutes a separate violation. The Town of East Troy may also seek equitable relief to gain compliance.
2. In addition and not to the exclusion or prejudice of such other penalties and remedies as may apply, violation of ETMC 9.65.030 or 9.65.040 shall also constitute a public nuisance, which the Town of East Troy may enforce by action or proceeding to enjoin or abate such public nuisance. Any person who shall violate any provision of this chapter or any order, rule or regulation made herein shall be subject to a penalty as provided in Chapter 1.20 ETMC. (Ord. 2016-3 § 1. 2008 code §5(7))