UPDATE: Sex Offender to Continue Fight with Village over Residency

A registered sex offender who village officials say is violating Menomonee Falls' residency rules hopes to take his case to the state Supreme Court.

Since 2009, Jason Ferguson has been unsuccessfully challenging the village's finding that he is violating an ordinance that prohibits sex offenders from living within 1,500 feet of facilities or properties used by children, such as schools and day care centers. 

In 2000, Ferguson was a 22-year-old manager at Hardee’s on Main Street in Menomonee Falls. A 14-year-old girl came to the restaurant with two other friends to apply for the job. Ferguson brought the girl back into the manager’s office, unzipped his pants and asked her to perform oral sex on him. Ferguson told police at the time he thought she was 15 or 16 years old, according to the report.

After the incident occurred, the girl was hired at Hardee’s. She told officers that Ferguson asked her to perform oral sex on him again and made other sexual comments to her while she was working, according to the report.

Ferguson was convicted in 2001 of second-degree sexual assault of a child. He received six months in jail and 60 months of probation; the probation was discharged in 2007 and according to Wisconsin Circuit Court records, he has no other criminal record.

There is no question that Ferguson lives within the village's so-called child safety zone.

But the issue is a bit complicated because Ferguson started living in the zone, in an apartment on Main Street, four years before the ordinance was passed in 2007. A grandfather clause in the ordinance allowed offenders to continue living at their current address, even if it was located within the child safety zone.

But in November 2008, Ferguson moved less than a mile away — to Menomonee River Parkway — to live with his wife's parents. Once he moved, Falls police said he was in violation of the ordinance and issued him a $1,100 citation.

On Wednesday, the state appeals court upheld a Waukesha County Circuit Court ruling that Ferguson indeed violated the ordinance.

His attorney, however, argues that since Ferguson has been living in the zone since before the ordinance was passed he should be allowed to continue to live within the zone even though he changed his address.

“He gets booted out of his apartment and goes to live with his in-laws within the same protection unit. So how has the threat increased to anyone?” asked Ferguson’s attorney, Daniel Fay.

“We have these ordinances because they look good. But look in any neighborhood within 1,500 feet of a school. How many drunk drivers live in that area? Who represents a bigger threat to the kid on a bicycle?” Fay asked.

The Menomonee Falls Municipal Court in May 2009 found Ferguson guilty of violating the village's ordinance, and ruled that Ferguson’s grandfather status did not travel with him when once he changed residences. That ruling was appealed but upheld in circuit court and the appeals court.

Fay said the ordinance doesn’t specifically prohibit a sex offender from moving from one location to another within a safety zone. He said the court rulings went beyond what was written in the ordinance, which he said is prohibited if the ordinance itself isn't ambiguous.

“We’ll pursue this at the Supreme Court level. What do we have to lose?” Fay said. “My job is to test the system; it’s not to get along with the system.”

Village Attorney Michael Morse said the other courts correctly interpreted the language in the ordinance. He said the grandfather clause of the ordinance refers to a “residence” not “resident.” In other words, a specific home can be "grandfathered," but not the offender himself. 

“I think the opinion stands for itself and it’s well written, and we believe the court’s decision is correct,” Morse said.

During a Circuit Court hearing, the village contended that allowing Ferguson to move under the grandfather clause would undermine the purpose of the ordinance, which is to prevent sex offenders from living near children.

“This is not a punitive law, this is a regulatory law. It was drafted with the goal of protecting children,” Morse said.

According to data from the state’s sex offender registry, Ferguson is still registered at the Menomonee River Parkway address. He was forced to move after his lease was terminated at his Main Street apartment in 2008. His wife suffers from serious medical issues, so they moved in with her parents on Menomonee River Parkway.

Menomonee Falls Police Capt. Mark Waters said Ferguson could technically receive a citation every day that he continues to live at his current residence. He said the department typically waits until cases clear the courts to pursue further enforcement. Waters said they are in discussions with Morse on whether to issue another 30-day notice to Ferguson based on Wednesday's appeals court ruling.

“Generally, we’ll wait for the court to hear that citation,” Waters said. “And if he is fact found guilty, he is eligible to get a citation each day. But our goal is for compliance of the law not to rack up citations.”

Fay said the ordinance is overbearing and unpractical for sex offenders who have not been in any trouble with the law and are following mandatory guidelines. He said Ferguson is essentially homeless if he is forced to vacate his current home.

“The bottom line is, ‘Where do want these people to move to?’ ” Fay asked. “What are we going to do with these people who are convicted of crimes? Maybe set up our own little country for them like we did with Australia.”