Nowell v. City of Wausau
Nowell v. City of Wausau
Opinion of the Court
¶ 1. Thomas and Suporn Now-ell, d/b/a IC Willy's, LLC, appeal a judgment affirming the City of Wausau's decision not to renew the bar's combined intoxicating liquor and fermented malt beverage license. The circuit court concluded that judicial review of the City's decision under Wis. Stat. § 125.12(2)(d) should be limited to issues reviewable by certiorari.
BACKGROUND
¶ 2. On May 25, 2010, the City notified IC Willy's that it intended not to renew the bar's combined beer and liquor license the following month. As justification, the notice cited fifty-one police calls to the premises since October 2009. Fourteen calls were noise complaints, nine of which related to the level of bass emanating from the bar. In addition, the notice cited an earlier fifteen-day suspension for a "Girls Gone Wild" event, as well as multiple citations for disturbing the peace and allowing minors on the premises.
¶ 3. The following month, the City's public health and safety committee held a hearing at IC Willy's request. The committee recommended nonrenewal af
¶ 4. IC Willy's sought judicial review of the City's decision under Wis. Stat. § 125.12(2)(d) and demanded that the circuit court independently determine whether the bar was entitled to renewal. Citing Marquette Savings & Loan Ass'n v. Village of Twin Lakes, 38 Wis. 2d 310, 316, 156 N.W.2d 425 (1968), the court concluded that the scope of review under § 125.12(2) (d) is limited to matters reviewable by certiorari. The court determined that the City kept within its jurisdiction, acted according to law, did not act arbitrarily, and based its decision on the evidence before it. IC Willy's appeals, again arguing that § 125.12(2)(d) contemplates de novo review.
DISCUSSION
¶ 5. Liquor and beverage license renewals are governed by Wis. Stat. § 125.12(3). This statute permits local authorities to refuse to renew a license for a number of reasons,
¶ 6. Determining the scope of review established by Wis. Stat. § 125.12(2)(d) is a matter of statutory interpretation. We begin with the plain language of the
¶ 7. Here, the circuit court concluded Wis. Stat. § 125.12(2) (d) contemplates a certiorari review. Certiorari is an extraordinary remedy that tests the validity of a judicial or quasi-judicial decision. Acevedo v. City of Kenosha, 2011 WI App 10, ¶ 8, 331 Wis. 2d 218, 793 N.W.2d 500; Ottman v. Town of Primrose, 2011 WI 18, ¶ 34, 332 Wis. 2d 3, 796 N.W.2d 411. The process for obtaining a writ of certiorari bears "no resemblance to the usual processes of courts, by which controversies between parties are settled by judicial tribunals," and there is no "answer" or other opposing pleading. Merkel v. Village of Germantown, 218 Wis. 2d 572, 577, 581 N.W.2d 552 (Ct. App. 1998) (citations omitted). "The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record." Id. (citation omitted).
¶ 9. The City contends we are bound by prior decisions purportedly holding that review under Wis. Stat. § 125.12(2)(d) is by certiorari. In Marquette Savings & Loan, 38 Wis. 2d at 316, our supreme court, reviewing a disputed village decision to renew a liquor
¶ 10. The City's argument fails, however, because the evolution of the licensing statutes has rendered the court's decision in Marquette Savings & Loan obsolete. At the time, licenses for fermented malt beverages and intoxicating liquors were addressed by different sections of the state statutes. See Wis. Stat. § 66.054 (1967); Wis. Stat. ch. 176 (1967). Chapter 176, which governed liquor licenses, did not provide a mechanism for judicial review, leading our supreme court to adopt certiorari review in Marquette Savings & Loan. See Wis. Stat. § 176.05 (1967). By contrast, Wis. Stat. § 66.054 (1967), which governed licenses for fermented malt beverages, included a provision for court review virtually identical to what is now Wis. Stat. § 125.12(2)(d).
¶ 11. We recognize this interpretation of Wis. Stat. § 125.12(2)(d) represents a substantial departure
¶ 12. As we have explained, it is evident the legislature intended closer scrutiny of licensing decisions than is provided by traditional certiorari. This was a policy choice the legislature was entitled to make, and we will not second-guess its wisdom. See Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶ 43, 283 Wis. 2d 1, 698 N.W.2d 794. Licensing can become a "hot potato," pitting certain segments of a community against tavern owners with little political clout. See State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203, 209-10, 313 N.W.2d 805 (1982) (invalidating municipal ordinance that was "supported by special inter
¶ 13. We conclude the circuit court erroneously interpreted Wis. Stat. § 125.12(2)(d) to require review by certiorari. This limited IC Willy's opportunity to raise matters and present evidence outside the scope of certiorari review, and incorrectly accorded the City's nonrenewal decision a presumption of correctness. On remand, the circuit court is directed to conduct any additional hearings necessary to exercise its sound discretion on the renewal of IC Willy's license.
By the Court. — Judgment reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Acceptable reasons for nonrenewal are listed in Wis. Stat. § 125.12(2)(ag)l.-7.
The legislature may, by statute, authorize the taking of additional evidence on certiorari review if necessary for the proper disposition of the matter. See Wis. Stat. §§ 59.694(10); 62.23(7)(e)10.; 88.09. However, it may do so only to the extent that the additional evidence is relevant to one of the four matters reviewable on certiorari: (a) whether "the agency kept within its jurisdiction;" (b) whether "the agency acted according to law;" (c) whether "the action was arbitrary, oppressive, or unreasonable;" and (d) whether "the evidence presented was such that the agency might reasonably make the decision it did." See Merkel v. Village of Germantown, 218 Wis. 2d 572, 578, 581 N.W.2d 552 (Ct. App. 1998).
Review under Wis. Stat. § 66.054(14) (1967), was limited to decisions granting, revoking, or failing to revoke a license. The legislature has since expanded this review to nonrenewal decisions under Wis. Stat. § 125.12(3).
In State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901 (1987), our supreme court arguably applied the standard governing certiorari review when determining whether a municipality had properly denied the applicant a liquor license under the consolidated licensing laws. Smith, however, is not controlling, as the issue we decide here was neither raised nor addressed in that case.
The extraordinarily short time provided by the legislature for judicial review under Wis. Stat. § 125.12(2)(d) supports this inference. In an action for judicial review of a municipality's refusal to renew a license, a decision must be rendered no later than thirty-five days after the initial pleading is filed. Id.
Reference
- Full Case Name
- Thomas D. Nowell and Suporn Nowell, d/b/a IC Willy's, LLC v. City of Wausau, Defendant-Respondent
- Cited By
- 2 cases
- Status
- Published