City of Oak Creek

Common Council Report

Meeting Date:  3/05/07

Item No.:

Recommendation:  That the Common Council considers directing the city attorney to prepare an ordinance to impose additional restrictions on the placement of sex offenders in our community and refer said ordinance to the Plan Commission for review and recommendation.

Background:  As you may be aware, the City of Franklin, Wisconsin recently enacted ordinances pertaining to sexually violent persons and residency restrictions.  Franklin Ordinance No. 2006-1902 establishes residency restrictions for a sex offender, providing that these persons may not establish residency within 2,000 feet of property comprising any facility for children and other specified facilities such as public parks and playgrounds. Ordinance No. 2007-1905 sets forth the penalties for violating these restrictions.  Copies of these ordinances are included with this packet.  The city attorney’s office has been reviewing those ordinances and researching the law regarding this difficult issue.  The Franklin city attorney believes that the ordinances which Franklin has adopted will withstand a constitutional challenge.  Although there is no guarantee that a court will rule accordingly if such ordinances were challenged, the city attorney’s office is optimistic that they would be held to be valid.

Of the estimated half-million convicted sex offenders in the country, some will be incarcerated, many will undergo treatment, and most will eventually be released to the community with specific conditions of supervision.  These conditions may include daily visits with probation and parole agents, sex offender treatment programs, and no contact with the victims.

Given the recent wave of highly publicized child abduction and sexual assault cases involving convicted sex offenders, citizens are becoming increasingly concerned about the possibility of these offenders’ reoffending as they are reintroduced into the community.  Over the past five years especially, state and local governments have been working to enact legislation directed at maintaining public safety by effectively decreasing sex offenders’ access and opportunity to victimize children.  At least 22 states have passed laws providing for sex offender residency restrictions.  Wisconsin is not yet one of these states.  Wisconsin has formed a Special Committee on Placement of Sex Offenders, however, to review the current law to determine whether additional statutory restrictions regarding placement of these offenders would improve public safety.  Such additional statutory restrictions would likely preempt any city ordinance that might be adopted.

This body of law is continuing to develop.  Beginning July 1, 2007, for example, the Wisconsin Department of Corrections must place convicted sex offenders who are placed on parole or released to extended supervision in one of the following:  (1) the County in which the offender resided on the date of the offense; (2) the County in which the offender was convicted of the offense; or (3) a sex offender treatment facility.  Wis. Stat. §301.03(20), as created by 2005 WI Act 431.  Remaining current with any changes is critical in enacting any legislation. 

State and municipal sex offender residency restrictions have generally either (1) defined a zone, such as a “child safety zone” or a “community safety zone,” or (2) established a distance marker from particular areas in which a sex offender cannot loiter or reside.  Child safety zones or community safety zones typically include elementary and secondary schools; daycare, childcare, and youth care facilities; public parks; public playgrounds; public swimming pools; public libraries; video arcades; churches; and bus stops.  Distance markers typically specify a distance, ranging from 500 to 2,500 feet, from sites where minors congregate and within which range sex offenders cannot loiter or reside. 

One issue particularly relevant at the municipal level relates to multiple sex offenders living in the same housing unit.  In response to the State of Wisconsin’s attempt to place a sexual predator in the City of Oak Creek in 2004, the city adopted ordinances which placed a limit of two unrelated adults, including sexual offenders, who could be located in any one residence.  The state had been attempting to establish a facility for up to four sexually violent persons.  That ordinance also provided that the placement of any sexually violent persons by the state under Chapter 980 of the Wisconsin statutes constituted a conditional use.

The primary concern with adopting any sex offender residency restrictions lies in the constitutionality of those provisions.  In a 2005 federal court of appeals decision, Doe v. Miller, the Eighth Circuit Court of Appeals upheld an Iowa statute that imposed sex offender residency restrictions.  The court found that the restrictions were constitutional “in order to protect the health and safety of the citizens.”  405 F.3d 700 (8^th Cir. 2005).  The Iowa statute reads:

692A.2A Residency restrictions – child care facilities and schools.

1.  For purposes of this section, “person” means a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor.

2.  A person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.

3.  A person who resides within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school, or a child care facility, commits an aggravated misdemeanor.

4.  A person 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. The person is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility.

b. The person is subject to an order of commitment under chapter 229A.

c. The person has established a residence prior to July 1, 2002, or a school or child care facility is newly located on or [after] July 1, 2002.

Iowa Code §692A.2A(1)-(4).

Presently, Doe v. Miller offers the most guidance in assessing possible constitutional challenges.  Based upon the court’s reasoning in this case and constitutional challenges being made in other jurisdictions, any proposed ordinance should clearly define the following elements:  legislative intent, categories of sex offenders, zones or distance markers, penalties, and exceptions.

There are several key features of the Franklin ordinance.  First, the ordinance clearly states the Council’s intent as maintaining public safety by protecting the welfare of its citizens with “a regulatory measure aimed at protecting the health and safety of children in Franklin from the risk that convicted sex offenders may reoffend in locations close to their residences.” 

Second, the ordinance clearly defines the categories of sex offenders.  Restrictions are placed on “persons” convicted either of a “sexually violent offense” or of a “crime against children.”  The definitions for persons and sexually violent offenses closely mirror the Wisconsin statutory provisions for sexual predators under Chapter 980.  This includes adults who have been convicted of or juveniles who have been adjudicated delinquent of a sexually violent offense or a crime against children.  The ordinance’s definition of “crimes against children,” however, includes serious sex offenses that do not necessarily involve child victims.  The included offenses of first degree sexual assault, second degree sexual assault, third degree sexual assault, sexual exploitation by therapist, rape and incest do not necessarily involve child victims but are still included in this definition of “crimes against children” because of their serious nature.  The Iowa statute imposes residency restrictions only against those sex offenders who have committed offenses that involved children.  This is an issue that the city attorney’s office will continue to research and review.

Third, the ordinance states that the residency restriction distance is “within 2,000 feet of the real property” of “any facility for children,” (which includes, generally, schools, group homes, child and youth residential care centers, shelter care facilities, foster homes, day care centers or programs, and youth centers clearly defined by reference to the Wisconsin statutes) and other enumerated public and private facilities.  The 2,000 foot marker is the same as the distance restriction in Doe v. Miller which was upheld.  The Council must determine what it believes to be the distance necessary to maintain the public safety. 

The ordinance further defines “any facility for children” and the other enumerated public and private facilities as “child safety zones” within and on which persons cannot be present.  The child safety zones in the Iowa statute include elementary and secondary schools and child care facilities.  Since the zones and distances are clearly defined, these aspects of the ordinance would appear to survive any constitutional challenge for vagueness. 

Fourth, the ordinance includes a provision regarding penalties.  It clearly states that any person establishing residency within 2,000 feet of a child safety zone shall be subject to a public nuisance action and other monetary penalties allowable under the code (up to $2,500 for each offense).  The ordinance also states that “the City may undertake all other legal and equitable remedies to prevent or remove a violation of this Chapter.”  The Iowa statute included criminal penalties, but those restrictions applied at the state level and, of course, the City of Oak Creek does not have the authority to impose criminal penalties such as jail time.

Fifth, the ordinance states both residency restriction exceptions and child safety zone exceptions.  The residency restriction exceptions, generally, exclude persons who are incarcerated; who have established residency prior to the effective date of the ordinance; and who are minors.  This is similar to the Iowa residency restriction exceptions. 

The child safety zone exceptions, generally, allow persons to be on restricted property for the following purposes:  (1) attending church with prior written notice and approval; (2) being on their children’s school property with prior written notice and approval; (3) voting; and (4) attending school.

Finally, the ordinance includes an “original domicile restriction” which prevents any person from residing in Franklin unless he or she lived in the city at the time of offense for which he or she was most recently convicted.

There is a considerable amount of research and literature available on this topic from a variety of academic and law enforcement perspectives if Council members would like to review these materials before proceeding to draft any proposed ordinances.

Fiscal Impact: None

Prepared by: Melissa L. Karls Assistant City Attorney	Approved by: Lawrence J. Haskin City Attorney
Approved by: Patrick DeGrave City Administrator	Approved by: Thomas Bauer Police Chief
Fiscal Review by: Beverly A. Buretta, CMC City Clerk