The Safety and Licensing Committee met 10/27/2021. Much of the meeting was taken up with deliberations regarding the Class A Beer, Class A Liquor, and Class B Beer license applications for Tee Tees Nachos, LLC.
Apparently, the applicant is planning to buy the building from the current owner and open a retail/nacho bar. In one of the suites, they plan to have a nacho bar and sell candy, soda, etc. In one of the other suites, they want to have a painting/craft studio where people can make pottery and drink alcohol while they’re crafting. [I’m honestly not sure I can make it through this recap given how hungry it’s making me for nachos.]
There were two separate license applications. The first one was for a Class “A” Beer and “Class A” Liquor License. This item was initially recommended for approval by the committee at the 10/13/2021 Safety and Licensing Committee meeting but then referred back to the committee by Alderperson William Siebers (District 1) at the 10/202/2021 Common Council meeting.
Alderperson Katie Van Zeeland (District 5) who is the chairperson of the Safety and Licensing Committee asked Alderperson Siebers if he would like to comment on the item.
Alderperson Siebers explained that this building was in his district and do his knowledge has never been a liquor establishment. It was last used as an office complex. His concern was that there was no buffer between the building and the residential properties behind the building. He was concerned that with the Class A license, people would be able to purchase alcohol and then take it into the parking lot in the late hours of the evening and wee hours of the morning where they could consume it and talk loudly. He was also concerned about the outdoor seating they were planning to provide and the impact on the nearby neighborhood.
He obliquely referenced an issue that has come up in Alderperson Michael Smith’s (District 10) neighborhood, which illustrated the need to be careful about issuing alcohol licenses. [I took that as a reference to the Core’s Lounge situation. That bar was located on College Avenue but backed up against a residential neighborhood. After they opened for business, three of the neighbors started calling in noise complaints regarding loud music. The police investigated extensively and could not substantiate the complaints. In fact, three of the many calls that were made came in when the business was closed, so it’s not clear that there is in fact even an objective issue with the bar, but some of the neighbors feel that they are a source of noise. Either way, the city is not able to easily revoke Core’s alcohol license because once a license has been approved the applicant/owner of the license received various statutory protections under State law regarding the revoking of the license.]
Alderperson Van Zeeland ask Clerk Lynch to clarify what a Class A License did.
City Clerk Kami Lynch explained that a Class A license allowed for the sale of alcohol to be taken off premises. All alcohol sold under that license would have to be in their unopened, original container.
Alderperson Van Zeeland pointed out that the application had operating hours listed. She asked City Attorney Glad if they did approve the license would any changes regarding the operating hours have to come back through the committee and Council or would the owners be able to make adjustments on their own?
Attorney Glad didn’t really answer her question, but he did say that alcohol sold under the Class A license would need to be locked up once the time for selling under a Class A permit was reached, which was 9PM.
Alderperson Van Zeeland asked Attorney Glad what kind of considerations the committee was allowed to make when looking at a license like this. Where they able to consider the neighborhood or the type of business the building was before? She wanted to make sure they were considering the right details.
Attorney Glad said that valid reasons for detail of a retail license are based on concern for public health and safety and on the welfare of the community. Those include adverse impacts on traffic, on the peace, quite, and cleanliness of the neighborhood where the establishment is located, on insufficient parking for patrons, on proximity to other licensed establishments, on residential areas, schools, churches, or hospitals, on the ability or inability of police to provide law enforcement services to the establishment, and on the ability of police to provide law enforcement services to the balance of the community. All of those have been accepted as valid reasons effecting public health, safety, and welfare of the community.
Alderperson Van Zeeland said she understood that these applications typically go through the Police Department as well. She wondered if the police would note if there was an issue in the neighborhood regarding traffic or maintaining safety.
Attorney Glad said he could only speak from his understanding of how the process works, but the Police Department was typically looking at criminal background checks. If they did have concerns for the ability of law enforcement to provide services, they could come and speak to the committee about that, but that was a little outside of what was usually asked of them.
Alderperson Van Zeeland asked if anyone wanted to make a motion.
Alderperson Smith made a motion to deny, and Alderperson Alex Schultz (District 9) seconded the motion for the sake of conversation.
Alderperson Smith said he was going to deny the license request for the reasons that Alderperson Siebers raised. He said that he knew the neighborhood because he had grown up around it. It’s a very tight, residential neighborhood. He was concerned because once the license is approved it gets harder to remove it and return peace to the neighborhood. If they open the door for this now it will be like Pandora’s Box. He said that he had a wine tasting business that became a bar that became a problem. The houses in this neighborhood are tight together, there are railroad tracks nearby, and the parking lot for the establishment is huge for its size. He felt that approving the license would be putting gasoline on a fire.
Alderperson Siebers was concerned that regardless of the operating hours they put down on the application the law states that they can stay open until 1 or 2 AM, so they could deviate from what they put on the application tomorrow. Once the license was approved it was going to be nearly impossible to revoke it. Right now, prior to the initial license being approved was the best time to say that this was not the right location for this business.
Alderperson Schultz echoed those sentiments and thought they would be creating an issue unnecessarily by approving the license. The challenge is always to look at the rights of the property owner who has a vision for what they want to do in a commercial space and balance those with the residential neighborhood that will be affected by that commercial activity—particularly when outdoor activity is proposed. He was in full support of the denial, but he acknowledged it was a challenge to vote that way given that the applicant may be investing in this property for significant reasons and wanted to move forward with their vision. However, he was not in favor of creating more issues between commercial and residential properties, and he was concerned that once a license was granted it could take years to abate situations that don’t work out well.
Alderperson Sheri Hartzheim (District 13) wanted to know if a denial by the city would put them in legal danger. She wanted to know beyond Alderperson Siebers saying this was a bad idea, what were their grounds for actually denying this.
Attorney Glad said that the things he listed before are the things that have been found to be acceptable reasons for a denial. He didn’t want to put words into the alderpersons mouths, but based on the discussion the concerns raised were the proximity to residential areas and the adverse effects of peace, quiet. He noted that, at the Council level, they have to put the reason for the denial in writing and send out that denial letter along with the reasons for the denial to the applicant.
Alderperson Harzheim again wanted to know if this would put the city in danger of being sued.
Attorney Glad said that as long as they needed to have a “rational basis” for their actions, and that list of things he gave had all been determined by the courts to meet that standard. They can get sued for any action they take or any inaction; it’s just a matter of how defensible the city’s position was. If the committee denied it and their reasons were lacking, the Common Council would have the chance to supplement the record regarding their reasons for the denial. The City Attorney’s Office would also be able to alert the Council if its reasons were not sufficient.
Alderperson Smith asked the attorney to clarify that now was the best place to deny a license. Once it came time to renew a license that was a whole different ballgame governed by different state statutes.
Attorney Glad said that once a license was approved the person with the license acquired property rights and it required due process hearings and notice to revoke, suspend, or not renew a license. The process did become more complex once a license was granted.
Alderperson Smith reiterated that the point he was making to the committee and that he would make at Council also is that once the license is granted you have to move heaven and hell with justifiable reasons to revoke or not renew. If they wanted to deem the license not acceptable, now was the time to do it.
Alderperson Van Zeeland understood the process to be different when initially granting a license vs not renewing a license. She wanted to know if there was an appeals process if they denied the license application before them.
Attorney Glad said applicants could reapply for the license or they could appeal to the Circuit Court.
Alderperson Schultz wanted to allay some of Alderperson Hartzheim’s concerns. He said that the purpose of the body was to deliberate these very contentious applications that come before it, and it’s upon those who have some experience, particularly Alderperson Siebers who’s been around a long time, to share those experiences so the committee can understand what they’re getting into. “If we just voted yes because we had a fear of being sued what would be—why would we be sitting here?” He appreciated the historical viewpoints that had been presented.
Alderperson Hartzheim responded that she was concerned that, besides Alderperson Siebers’ statements about the neighborhood, there has not been anything presented to indicated that the license applicants will do things that are bad for the city. Two weeks before, the committee didn’t even debate the application and voted to approve it, then it was referred back in Council. She was concerned that their wasn’t a precedent explaining why they should deny this particular application. Given that the applicant had two license applicants before the committee, she wondered if there was room to approve one and deny the other. It bothered her that the business owner had done nothing to make the committee say the license shouldn’t be approved.
Alderperson Van Zeeland saw things differently. She pointed out that the establishment did not previously have a license and she thought that if Alderperson Siebers had been at the previous committee meeting and expressed his concerns the vote would have gone differently.
Alderperson Siebers said, “I think it’s important to keep in mind that this building has, in my so many many years, has not been used as a tavern or for this kind of business. That’s something to keep in mind.” He didn’t think that was a reflection on the people applying for the license but rather a reflection on the type of business they wanted to open. He believed there was a place in the city that these people could operate a business and not be in conflict with the surrounding neighborhood. “This is just not the right place for this business.”
Alderperson Van Zeeland had some concerned about how they would use the property. She wished that the applicant was there to speak and answer questions. Although they weren’t there, they did have recourse to appeal any decision, so she was inclined to deny both license applications.
Clerk Lynch said that she wanted to make sure the committee understand that because this particular location has not been licensed for alcohol sales in the past, they do have to submit a special use permit application. She thought they were in the very early stages of that or that it hadn’t been applied for yet. She wanted the committee to know there was not a rush to act on this license application and that there were still more steps that the applicant had to go through before the business would be ready to be licensed.
Alderperson Van Zeeland asked if they were to deny the items before them would that adversely affect their special use permit applications.
Clerk Lynch answered that she didn’t know where the special use permit was in the process or if it had been applied for yet. If the license was denied at this meeting then the applicant would know they didn’t need to apply for the special use permit because the alcohol license was not going to be granted. But, perhaps they already submitted their application. She wasn’t sure where they were with that process because it was with the Planning Department.
Alderperson Van Zeeland was wondering if they denied the license would it negate the special use permit.
Clerk Lynch wasn’t sure she was the most appropriate person to answer. She thought the special use permit would stay with the property once it was granted so it could be used. But the applicant may choose to withdraw their application if the alcohol permits were not grants. She knew from past alcohol license that as buildings and changed owners or tenants that as long as the special use permit was granted at one point it would stay with the property.
Alderperson Van Zeeland asked Attorney Glad if they were to deny the items in front of them that day but then circumstance changed, would the applicant be able to apply again or would they not be able to do so.
Attorney Glad said there’s a time period of a denial. He thought the municipal code said an applicant needed to wait 12 months before they reapplied. He didn’t have the code in front of him to state that with 100% certainty, however.
Alderperson Smith reiterated that they were at the starting point with this liquor license and this was the time when they could assess the neighborhood and what type of businesses fit within that neighborhood and what kind don’t. He stressed that what may come in as a peaceful, quite place at the beginning can change because the license stays with the property as an asset and different businesses can replace the original business. The neighborhood and surrounding homes will bear the brunt of whatever the future holds so if they don’t think about the future during the present they could be doing greater harm down the road to that neighborhood. “So, is there a precedent for it? Well, I think there are; I just can’t name any. But we can certainly see what has happened with current licenses in current neighborhoods with the current problems that they have here and there.” The applicants may be the sweetest people on earth but he did not think this business fit the neighborhood. He thought the license should be denied.
Alderperson Van Zeeland was leaning toward denial, given that there was still time before the Council meeting for the business owner to reach out to the city or for Alderperson Siebers to gather more information from the neighborhood.
None of the alderperson had anything further to add. The committee voted 4-1 to deny the application with Alderperson Hartzheim being the dissenting vote.
They then moved on to the Class “B” Beer License application for Tee Tee’s Nachos LLC.
Alderperson Van Zeeland asked if Clerk Lynch could explain was a Class B license was.
Clerk Lynch answered that a Class B license allows for on-premise consumption of alcohol. This particular license was for beer so they’d only be able to sell beer in the craft studio. That would have to be sold and consumed on-site.
Alderperson Hartzheim made a motion to approve the license application but it failed for lack of a second.
Alderperson Hartzheim asked if they could approve this particular license but add some caveats that it must be within certain hours of operation. Or would approve it leave the door wide open for staying open and serving beer until 2AM.
Attorney Glad needed some time to review that.
While they were waiting for the answer to that, Alderperson Van Zeeland said that this license concerned her more than the other one because they were looking for outdoor seating. She didn’t think that the property had a noise buffer or anything of that nature.
Alderperson Hartzheim said that she believed the outdoor seating would require a special use permit [which presumably would include hours of operation.] She didn’t see how a pottery studio that wasn’t to seel beer was any different from Pinots Palette. She understood there was a neighborhood issue raised by Alderperson Siebers, but that didn’t bother her as much if there was a way to restrict hours. She didn’t want this establishment to become the next tavern of Morrison Street, but she did want this business to be able to have the opportunity to sell beer to people who are throwing clay. The Class B license was less of a problem to her than the Class A where they could pick alcohol up and walk away with it.
Alderperson Matt Reed (District 8) was also not as concerned about this because the application stated that the outdoor seating area would be from 9AM to 6PM. If it was open until 9, 10, or 11PM then that would be different, but 6PM was reasonable.
Alderperson Siebers reiterated that his impression was that the hours could be changed and they could stay open until 2AM, make pottery, consume beer, and have a juke box blasting away. The hours on the application were not etched in stone.
Clerk Lynch said that there can be conditions put on a license. That is typically done for outdoor areas because they’re outside so noise can carry. She wasn’t sure about regulating indoor areas, however. She added that special use permits are done through the Planning Department which takes into consideration the neighborhood, the space, and the hours that are applied for.
Attorney Glad couldn’t find anything the prohibits or allows regulating hours. His understanding also was that it would be through a special use permitting process and not the retail license itself. He didn’t know the answer on whether they could regulate hours through the retail licensing process and he didn’t think he could find the answer that day.
Alderperson Smith said that since the attorney was looking for information he wanted to clarify and the Class B license might not be as bad as a Class A license he wanted to make a motion to hold the item until the next meeting.
The committee voted unanimously to hold it until the next committee meeting.
[I’m a little surprised that the applicant did not show up for the meeting given that these permits seem pretty crucial to their business. I can definitely appreciate both sides of the argument. Obviously, the city doesn’t want to make it too difficult for people to open businesses because that will needlessly harm the city in the long term, but at the same time, there are considerations about quality of life for people living in residential neighborhoods and it is problematic if by approving a license for a business that is innocuous the city would be opening the door to a disruptive business taking over that location at some point and, beyond that, it’s problematic if the city then has limited recourse to remove that new and disruptive business. Maybe things would be easier if licenses didn’t stay with the property.
I didn’t understand why they wanted a Class A license. It seemed like on-premise consumption would have been more than sufficient. However, all in all, I can say that, alcohol or no, I really want some nachos now.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=880090&GUID=2ECE6971-73AD-4958-B6B5-E27CE019A993
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