WI: Lake Geneva repeals sex offender ordinance that has been deemed unconstitutional

Lake Geneva, Wisconsin, City Council members have repealed an ordinance which prohibited registered sex offenders from living within 2,000 feet of a child safety zone because it was found to be unconstitutional.

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Dennis Hines
Members of the Lake Geneva City Council have repealed an ordinance which prohibits registered sex offenders from living within 2,000 feet of a child safety zone, which includes playgrounds, public parks, schools, public libraries, aquatic centers and athletic fields for children. The ordinance was repealed because it is considered unconstitutional by federal law.

Dennis Hines
Lake Geneva officials may no longer be able to as strongly restrict where registered sex offenders may live within the city.
Members of the Lake Geneva City Council unanimously approved, April 28, to repeal an ordinance which prohibits registered sex offenders from living within 2,000 feet of a child safety zone, because the ordinance is considered unconstitutional by federal law.
Examples of child safety zones include schools, public parks, playgrounds, public libraries, public swimming pools, public beaches, daycare centers, aquatic facilities and athletic fields for children.
City Attorney Dan Draper said the ordinance, which was adopted in 2017, is considered unconstitutional because it is too limiting as to where registered sex may live within the community. He said the 2,000-foot provision includes most areas of the city.

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“It’s not that it doesn’t have good intentions. But in execution, the problem is it’s unconstitutional, illegal and having it on the books at this time is a big liability for the city,”
Draper said. “Even if we don’t enforce the thing, if someone came along and said, ‘Hey I saw your ordinance, I didn’t move there because I thought they were going to throw me out,’ and if they have that sort of standing, it creates a big liability. The bottom line is, as much as you don’t like the idea, you cannot prohibit people from living in the city because of their past criminal acts, no matter how heinous they are.”
Draper said he had asked City Council members to repeal the ordinance in 2019, but they voted against the measure.
At the time, Draper advised Lake Geneva aldermen to reduce to the residency provision to 750 feet, but City Council members then asked Draper to draft an ordinance which reduced the residency buffer to 1,000 feet.
But City Council members, at the time, voted down the proposed ordinance and decided to keep the residency provision to 2,000 feet.

“Back in 2019 when I brought this up, the City Council at the time poo pooed it and I was probably too soft on them, but I’m not going to be soft on you this time,” Draper said. “If you do not repeal this, you are asking for a lawsuit to be initiated and if that happens it’s on you and then you have to face your taxpayers who say, ‘Why are you paying millions of dollars on this matter?'”
Police Chief Edward Gritzner said the ordinance is unconstitutional and it is difficult for the police department to enforce. He said it may take city officials awhile to develop an ordinance that is constitutional and enforceable.
“We’re at a point where we can’t enforce it,” Gritzner said. “It would probably constitute misconduct in public office for us. So, we know it’s unconstitutional. It’s illegal. We just need something that’s enforceable. Whatever that is, we don’t know yet. It’s going to take a
bit of research. But as it is right now, there’s nothing we can do with it from a police department standpoint.”
Gritzner said a state statute does allow the city to prohibit a violent sexual offender from living within 1,500 feet from a child safety zone.
“If they’re classified as a violent sexual offender then state law does allow for 1,500 feet, so we can enforce that,” Gritzner said. “Right now, we have eight sex offenders in the city, none of which are classified as violent sexual offenders. So, it’s what to do with that classification that’s the topic right now.”
Draper said city officials could ask him to develop another ordinance which limits where registered sex offenders may live in regard to child safety zones in the community.
“Once you repeal it, then you can certainly give me instruction to come back with something but it’s pretty intensive at this point,” Draper said. “If you would like me to come forward with a new ordinance, I would be glad to do that. Give me a month please, it’s going to take some time to put it all together.”