Number
110471
Version
SUBSTITUTE 1
Reference
Sponsor
ALD. COGGS
Title
A substitute ordinance relating to trespass upon lands, buildings or premises while carrying, possessing or controlling firearms, and providing penalties.
Sections
110-10 rc
Analysis
This ordinance revises provisions of the code relating to trespass to private property to make the provisions and penalties consistent with changes in state law that authorize the carrying of firearms, concealed or openly, under specified circumstances. These circumstances include possession and carrying of firearms on private property.
Section 66.0409(2), Wis. Stats., prohibits a municipality from enacting an ordinance or adopting a resolution that regulates the use, keeping, possession, bearing or transportation of any firearm or part of a firearm, including ammunition, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
The ordinance, consistent with state law, provides specific notice requirements applicable to owners and occupants of land and buildings who wish to prohibit or restrict the carrying of firearms on land and in buildings that they own or occupy.
Penalties are increased for trespass from a forfeiture of not more than $500 to a forfeiture in the range of not less than $100 nor more than $1,000.
New penalties are provided for trespass while carrying a dangerous weapon or while carrying a firearm without a license. These penalties include a forfeiture of not less than $500 nor more than $1,000.
Body
Whereas, 2011 Wisconsin Act 35 made the law of trespass, prohibiting entering or remaining on any land of another after being notified by the owner or occupant not to enter or remain, inapplicable to an individual if the owner's or occupant's intent is to prevent the individual from carrying a firearm on the land; and
Whereas, New statutory trespass provisions in 2011 Wisconsin Act 35 permit certain owners and occupants of property to prohibit persons from carrying concealed weapons, including concealed firearms, in or on the property; and
Whereas, Political subdivisions, including municipalities, are prohibited under 2011 Wisconsin Act 35 from enforcing any ordinance relating to disorderly conduct or "other inappropriate behavior" for loading, carrying, or going armed with a firearm without regard to whether the firearm is loaded or is concealed or openly carried; and
Whereas, Section 66.0409(2), Wis. Stats., prohibits a municipality from enacting an ordinance or adopting a resolution that regulates the use, keeping, possession, bearing or transportation of any firearm or part of a firearm, including ammunition, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute; and
Whereas, The common council intends to conform its ordinances to the requirements of state statute while providing residents of the city with the utmost protection available under municipal law to preserve health, safety and welfare; now, therefore
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 110-10 of the code is repealed and recreated to read:
110-10. Trespassing Upon Buildings or Premises; Signs. 1. PROHIBITED GENERALLY. It shall be unlawful for any person within the limits of the city to go upon or remain upon the lands, buildings or premises of another or any part, portion or area thereof after having been forbidden to do so or warned not to do so, either orally or in writing, by the owner or other lawful occupant including a lessee, custodian or other person in possession thereof, his or her agent or representative, or after having been forbidden to do so or warned not to do so by a sign posted on such lands, buildings, premises or part, portion or area thereof at a place where such sign may be reasonably seen, provided that this section shall not apply to police officers or fire fighters in the discharge of official duties. This section shall not apply to a person lawfully carrying a firearm as defined in s. 105-34-2-h if the person is licensed under s. 175.60, Wis. Stats., or permitted as an out-of-state licensee, to carry a firearm and if the intent of the owner or lawful occupant is solely to prevent a licensee or out-of-state licensee from carrying a firearm on the land of the owner or lawful occupant.
2. TRESPASS TO BUILDINGS WHILE CARRYING A FIREARM. a. Definitions. In this section:
a-1. "Carry" means to go armed with.
a-2. "Dwelling unit" means a structure or that part of a structure which is used or intended to be used as a home, residence or sleeping place by one person or by 2 or more persons maintaining a common household, to the exclusion of all others.
a-3. "Implied consent" means conduct or words or both that imply that an owner or occupant of land has given consent to another person to enter the land.
a-4. 'License" means a license to carry a concealed weapon under s. 175.60, Wis. Stats.
a-5. "Licensee" means a licensee, as defined in s. 175.60 (1) (d), Wis. Stats., or an out-of-state licensee, as defined in s. 175.60 (1) (g), Wis. Stats.
a-6. "Nonresidential building" includes a nursing home, a community-based residential facility, a residential care apartment complex, an adult family home and a hospice as these are defined in ch. 50, Wis. Stats.
a-7. "Place of employment" has the meaning given in s. 101.01 (11), Wis. Stats.
a-8. "Private property" means real property that is not owned by the United States, this state or a local governmental unit.
a-9. "Open land" means land that meets all of the following criteria:
a-9-a. The land is not occupied by a structure or improvement being used or occupied as a dwelling unit
a-9-b. The land is not in the immediate vicinity of a structure or improvement being used or occupied as a dwelling unit.
a-9-c. The land is not occupied by a public building.
a-9-d. The land is not occupied as a place of employment.
a-10. "Special event" means an event that is open to the public, is for a duration of not more than 3 weeks, and either has designated entrances to and from the event that are locked when the event is closed or requires an admission.
b. Prohibited. It is unlawful for any person, while carrying a firearm, to enter or remain:
b-1. At a residence that the actor does not own or occupy after the owner of the residence, if he or she has not leased it to another person, or the occupant of the residence has notified the actor not to enter or remain at the residence while carrying a firearm or with that type of firearm. In this paragraph, "residence," with respect to a single-family residence, includes the residence building and the parcel of land upon which the residence building is located, and "residence," with respect to a residence that is not a single-family residence, does not include any common area of the building in which the residence is located or any common areas of the rest of the parcel of land upon which the residence building is located.
b-2. In a common area in a building, or on the grounds of a building, that is a residence that is not a single-family residence if the actor does not own the residence or does not occupy any part of the residence, if the owner of the residence has notified the actor not to enter or remain in the common area or on the grounds while carrying a firearm or with that type of firearm. This paragraph does not apply to a part of the grounds of the building if that part is used for parking and the firearm is in a vehicle driven or parked in that part.
b-3. In any part of a nonresidential building, grounds of a nonresidential building, or land that the actor does not own or occupy after the owner of the building, grounds, or land, if that part of the building, grounds, or land has not been leased to another person, or the occupant of that part of the building, grounds, or land has notified the actor not to enter or remain in that part of the building, grounds, or land while carrying a firearm or with that type of firearm. This paragraph does not apply to a part of a building, grounds or land occupied by the state or by a local governmental unit, to a privately or publicly-owned building on the grounds of a university or college, or to the grounds of or land owned or occupied by a university or college, or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of a building, grounds or land used as a parking facility.
b-4. At a special event if the organizers of the special event have notified the actor not to enter or remain at the special event while carrying a firearm or with that type of firearm. This paragraph does not apply, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the special event grounds or building used as a parking facility.
b-5. In any part of a building that is owned, occupied or controlled by the state or any local governmental unit, excluding any building or portion of a building under s. 175.60 (16) (a), Wis. Stats., if the state or local governmental unit has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This paragraph does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility.
b-6. In any privately or publicly-owned building on the grounds of a university or college, if the university or college has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This paragraph does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility.
c. Determining Implied Consent. A determination that a person has implied consent to enter the land of another shall be based upon consideration of all the circumstances existing at the time the person entered the land, including all of the following whether the owner or occupant permitted previous entries by the person or by other persons under similar circumstances, the customary use of the land by other persons, whether the owner or occupant represented to the public that the land may be entered for particular purposes and the general arrangement or design of any improvements or structures on the land.
d. Methods of Providing Notice. A person has received notice from the owner or occupant within the meaning of par. b if he or she has been notified personally, either orally or in writing, or if the land is posted. Land is considered to be posted or notice is considered given if:
d-1. A sign at least 11 inches square is placed in at least 2 conspicuous places for every parcel to be protected. The sign shall provide an appropriate notice and the name of the person giving the notice followed by the word "owner" if the person giving the notice is the holder of legal title to the land and by the word "occupant" if the person giving the notice is not the holder of legal title but is a lawful occupant of the land. Proof that appropriate signs as provided in this subdivision were erected or in existence upon the premises to be protected prior to the event complained of is sufficient to prove that the premises to be protected were posted as provided in this subdivision.
d-2. Markings at least one-foot long, including in a contrasting color the phrase "private land" and the name of the owner, are placed in at least 2 conspicuous places for every 40 acres to be protected. The sign shall be at least 5 inches by 7 inches.
d-3. Notice has otherwise been provided consistent with s. 943.13(2)(bm)2, Wis. Stats.
3. PENALTY. a. Any person violating this section shall upon conviction be fined not less than $100 nor more than $1,000 and upon default of payment may be imprisoned as provided by law.
b. Any person violating this section while carrying a firearm or other dangerous weapon who is not licensed under s. 175.60, Wis. Stats., or permitted as an out-of-state licensee, to carry a firearm, shall upon conviction be fined not less than $500 nor more than $1,000 and upon default of payment may be imprisoned as provided by law.
LRB
APPROVED AS TO FORM
_________________________
Legislative Reference Bureau
Date:_____________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
_________________________
Office of the City Attorney
Date:____________________
Requester
Drafter
LRB132106-3.3
Richard L. Withers
7/22/2013