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FCM199501310 FINANCE COMMITTEE - CITY OF NUSKEGO MINUTES OF MEETING HELD TUESDAY, JANUARY 31, 1995 The meeting was called to order at 7:05 P.M. by Chairman De Angelis. Also present were Committee Members Patterson, Dumke and Sanders, Ald. Taube, Ald. Woodard, Ald. D'Acquisto (arrived 7~42 P.M.), Ald. Misko (arrived 8:23 P.M.), City Attorney John Macy and City Clerk Jean Marenda. Mayor De Angelis noted that meeting was noticed in accordance with the Open Meeting Law. Mayor De Angelis stated concerns about licenses being held without a premise description or premises were reviewed by the Rules, Laws & Ordinance Committee. The special meeting tonight is being held to give interested parties who have questions for City Attorney Macy an opportunity to do so. Mayor De Angelis presented his proposal for language changes to the ordinance, as attached. The first paragraph was proposed by Rules, Laws, Ordinance Committee as to how we're going to enforce the ordinance itself. 0 0 Item 1) means that after a new license is issued, unless there's special provisions otherwise set forth by the Finance Committee's recommendation and the Council's approval, if a license is not used within one year it may be grounds for non-renewal, revocation or suspension. This applies to someone who wants to put up a new facility where there is no current building, with each case having different needs, and different conditions imposed. Dick Schaumberg, Schaumberg's Suburban House, questioned the need for change and asked what is the real intent of the whole program. Atty. Macy explained the intent of Par. 1) is to put reasonable conditions on a new license, with the key to write good conditions up front. Art Dyer stated that he has a license that has been "granted" but not "issued", so this wouldn't apply to him. Dyer stated he needed a seller's permit before it can be issued. He said he has spent almost $100,000 and asked if the City could take his license at the end of 365 days. The State of Wisconsin says a liquor license is a property right and it's unconstitutional to take a property right away. Atty. Macy responded that his case would be dealt with after the ordinance is written. I don't know at this point if the ordinance as written applies to you. The policy makers tonight would decide if this should apply to licenses that have either been "issued" or "granted". Your license apparently hasn't been issued due to an action of yourself, not the municipality. Dyer asked, does it apply to me and Macy stated he believed the intent of the ordinance is that it would apply to you. Dyer stated when his license was FINANCE COMMITTEE - PAGE 2 JANUARY 31, 1995 0 granted, nobody said "365 days". Now, after the fact and expense, rules are changed. D'Acquisto arrived at I:42 PM. Mayor stated as it stands right now, Par. 1) is specifically applied to "new" licenses, not old licenses, not renewals. The way it is written right now, this would apply to Mr. Dyer because his license is "granted" but not "issued" and it would be 365 days from date of original issuance. Special conditions are set at time of granting the license. Ald Sanders asked what about renewal of the granting of the license. Atty. Macy said conditions should be placed on it at that renewal time. The intent is if the license is not being used, the City should have the right to not renew the license. You should reserve your right to place reasonable conditions on that license if it is granted and not issued if your're going to renew it. -0 Atty. Dick Frederick, legal counsel for Art Dyer, stated that the cases he read on property rights indicate a liquor license is a property right. I don't know what harm there is in having this liquor license outstanding until the end of time. I think some language could be worked out to assure Mr. Dyer that this provision does not apply to him. D'Acquisto stated the reasons is we often do not have any licenses available and new developers may not come here if no license is available. Schaumberg felt that with 39 licenses out there, it should have a value and be available for someone to buy that building and move the license. Dumke spoke in favor of putting a time limit on a new license per Paragraph 1). Sanders asked for clarification of "new", and Mayor stated it was a "new" applicant and not a renewal. Ald. Misko arrived at 8:23 PM. Paragraph 2) of Mayor's proposal was read and explained. It only applies to someone who had a non-operating premise where the property owner wanted to gain control of the property again such as from a leasee who is the licensee and leaves, refusing to give up the license, not someone being ill, closed seasonally, property for sale, etc. It gives the owner an opportunity to petition the City to take away that license for non-use. Ald. Sanders pointed out that the "60 days or remainder of license period, whichever is greater", should be whichever is "lesser". Mayor agreed that was intent. Paragraph 3) was explained by the Mayor as relating to change of 0 use of the premise, such as to a flower shop with no intention of using the license. Macy added, only means a change from a FINANCE CONNITTEE - PAGE 3 JANUARY 31, 1995 0 licensed establishment, not a broad change of use such as from a mom and pop operation to a sports bar. D'Acquisto posed the situation that someone has a tavern up for sale and in the meantime it is used only temporarily for another purpose, par. 3) doesn't seem to accommodate that situation. Mayor noted that unless they change their premise description they are going to have to meet all the requirements of the Class B license. Taube expressed concern about the property that's for sale. As proposed, if nothing occurs for 365 days, unless special conditions are listed, the license expires. Mayor stated the 365 days in Par. 1) is only for "new" licenses issued, not for current licenses. Par. 3) the 120 days is only for those not used for that purpose, but taken up another use on that property other than sale of alcoholic beverages. 0 Taube questioned the non-use of an existing license. Macy replied as written these amendments do not address that issue, but his personal opinion was that at renewal time a license holder not using the license could be questioned to determine if the intent of Chapter 125 was being misused, and if so I don't think their license should be renewed. That is, however, a policy decision. Taube felt that a person legitimately trying to sell should be allowed to keep the license. Mayor stated the reason non-use of an existing license is not in his proposal is how do you determine all the criteria? He did not feel it was a problem at the present time, and that's why it wasn't changed when first proposed in 1988. Atty. Macy clarified he was not recommending to the City, based on the process gone through in the past year with public input, that the City had a problem and needed a 60-day rule. The proposed language resolves two main issues - the vacant field and the land contract. Taube stated the Rules, Laws and Ordinance Committee recommended that if you don't use the license for 365 days you "may" lose it, which is more liberal than Atty. Macy's recommendation in 1988 that you will lose license if not used in 60 days. Patterson felt the three points are very good, but also had concerns about what isn't addressed. I don't go along that it's personal property. I don't feel that someone should be able to sit on a license to hold it until it's more valuable. I feel we need to address that if closed at time of renewal, they have 365 days, or 2 years, but put some time frame on. I think we should change it and try to protect the City. Mayor felt to try to take into consideration all the scenarios, and the fact that there's no problem right now, and the problems there were in the past are being addressed in the three points made, he didn't recommend the change. 0 D'Acquisto stated his main concern is the practice of someone having a license with no premise. The proposed language gives FINANCE COMMITTEE - PAGE 4 JANUARY 31, 1995 0 0 us some control over that. Dick Schaumberg stated he didn't think there is a problem. Some of the properties would be useless without a license. Jerome Jaraczewski stated to Ald. Taube, you wouldn't be able to prove that someone wasn't open for 5 minutes sometime during the 365 days. I have no problem with the proposed three points as presented. Taube asked Atty. Macy for his opinion. Macy said if you wrote a provision about non-use for 365 days, could they rebut the presumption of non-use by stating they were open during that time? Yes. Misko stated my whole issue is to not issue a license to a vacant lot. Atty. Macy presented a revised draft of changes: Add a second paragraph following the first paragraph: The following situations may be grounds for cancellation, suspension, revocation or non-renewal of the licenses in accordance with the provisions of this section and the laws of the State of Wisconsin: 1) A license is not used within 365 days of its original issuance, unless otherwise provided under special conditfone on said license, or 2) If any license's usage is discontinued for 60 days or a remainder of a license period, whichever is lesser, at the request of the property owner of the licensed premise, or 3) Any licensed premise, for a period of 120 days, is being used for a purpose other than the purpose of serving alcohol beverages, unless otherwise approved through special conditions. Ald. Sanders felt 1) should be clarified to apply it to each new applicant. Atty. Macy will further review language to make any clarifications necessary for submittal to the Finance Committee. Atty. Macy felt the question of how this applies to "granted" but not "issued" should be addressed, and felt that you should reserve the right to impose reasonable conditions at renewal time. This could be included in the first paragraph each time "issued" referred to, to add "or granted". Atty. Frederick felt the changes makes after-the-fact conditions, and referred to it as the "Dyer ordinance". It gives the Council the ability to impose additional conditions that were they imposed at the beginning, he may not have undertaken the expenses and endeavors he has. It's not fair to impose conditions after the fact. FINANCE COMMITTEE - PAGE 5 JANUARY 31, 1995 The proposed language with changes to add "or granted" to first paragraph were reviewed. Ald. Sanders noted that even though 1) referred to "new" licenses, the first paragraph allowed reasonable conditions to be imposed at renewal time. stated that was correct. Mayor That's basically what we do now, but putting into ordinance form. City Clerk Marenda asked if 1) meant that if a license was "granted" but not "issued" would the 365 days start? Mayor responded it wouldn't start until the license was issued, but that would be taken care of in the special conditions. Dyer stated it was his understanding he was not affected. He asked, are you writing an ordinance that does or does not affect me? Mayor stated Par. 1) does not impose any additional conditions on you. The first paragraph stating "granted or issued" is so your license is not treated any differently than anyone,elses in the whole City. This gives us the ability to impose reasonable conditions. Dyer stated that what he thinks is reasonable and what this body has done is not always the same. He asked that the ordinance clarify the rules now. As my attorney says it is not fair to change the rules in the middle. Discussion followed on imposing reasonable conditions at time of renewal. Dyer argued that the criteria should be established now. Mayor felt it was unreasonable to ask that conditions be discussed now without the facts presented. Mayor stated the proposal will be re-drafted with changes discussed and submitted to the next Finance Committee meeting for recommendation to the Council. Ald. Sanders moved to adjourn at lo:15 P.M. Seconded by Ald. Dumke, motion carried. Respectfully submitted, (A TAPE RECORDING OF THE MEETING IN ITS ENTIRETY IS ON FILE IN THE CITY CLERK'S OFFICE.) PROPOSAL PRESENTED TO THE FINANCE COMMITTEE AT MEETING ON TUESDAY, JANUARY 31, 1995, BY MAYOR DAVID L. DE ANGELIS. 1) 2) 3) Any license issued pursuant to the general ordinances for this community shall be subject to such further regulation and restriction as may be imposed by the governing body, or any committee thereof, of the municipality by amendment to this section or by the enactment of a new ordinance. Further, the governing body of the municipality is specifically authorized to impose reasonable conditions upon any alcohol beverage license. If any licensee shall fail or neglect to meet the requirements imposed by such restrictions and regulations or the conditions imposed by the municipality, his or her license may be revoked, not renewed, suspended or cancelled in acc~ordance with this section. In the case of revocation, non-renewal, suspension or cancellation of any license for any violation of any provision of this ordinance, or condition imposed by the governing body, in accordance with section or by the Court or for any reasonable cause no refund shall be made of any part of the license fee. If a new license issued hereunder is not used within 365 days, unless otherwise provided under Special Conditions on said license, or its usage is discontinued for 60 days or remainder of license period, whichever is greater, at the request of the property owner, or said use changes for a period of 120 days, unless otherwise approved through special conditions, such situations may be grounds for cancellation, suspension, revocation or nonrenewal of the license in accordance with the provisions of this section and the laws of the State of Wisconsin. **ALL PROPOSED CHANGES IN BOLD LETTERS.