The Safety and Licensing Committee met 01/10/2023. The action item that took up most of the meeting was the recommendation to deny an application for an operator/bartender license.
Andrew applied for a bartender license so that he could serve alcohol at the restaurant he worked at; however, he has a criminal record including convictions for Reckless Harm, Strangulation and Suffocation, Battery, and 4th Degree Sexual Assault. Per the memo from the Police Department, Wisconsin state law “does not allow issuance of licenses or permits to those with an arrest or conviction record unless denial would constitute prohibited employment discrimination.” Unfortunately for Andrew, some of the things he had been convicted of were specifically exempt from the employment discrimination statute. As a result, it was the opinion of Appleton’s Legal Department, that the city may not issue an operator license to Andrew.
The committee voted 3-1 to recommend the application be denied with Alderperson William Siebers (District 1) casting the lone dissenting vote. He was troubled that Andrew had been invited to come to the meeting and plead his case and had been given the impression that there was a hope the committee could approve his application when it seemed that, per the advice of the Legal Department, that was not truly the case.
I’ve prepared a transcript of the discussion for download:
Andrew appeared before the committee and explained that he had been working in restaurants his whole life. Getting an operators license would allow him to help out more at the restaurant he was working at. He acknowledged his history which he described as “a huge downfall” and told the committee, “I have been eight years sober, haven’t touched a drop of alcohol. I have all my paperwork discharged from probation, AODA completion, my domestic violence class. I mean, I have, you know, done a complete 180 since eight years ago when I was last in the system. And I mean, I just want to be given a chance.”
His last record does indeed date to 2015, almost 9 years ago. He told the committee alcoholism ran in his family, and he reiterated he had not drunk alcohol in 8 years.
The committee members were very sympathetic to his case, and Alderperson Katie Van Zeeland (District 5) asked to clarify that if the city were to issue a license to Andrew they would be in violation of State law.
State Statute 125.04(5)(a) states that license related to alcohol beverages may be issued only to persons who “do not have an arrest or conviction record”. The statute went on to link to some exceptions to that rule; however, the several of the crimes that Andrew had been convicted of were explicitly listed under Statute 111.335 as Chapter 940 crimes that did not fall under those exemptions.
Additionally State Statute 111.334(3)(a)1 stated it was not employment discrimination to deny a license to someone if “the individual has been convicted of any felony, misdemeanor, or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity,” and it was the legal opinion of Attorney Buruin that the crimes Andrew was convicted of “relate to the ability to safely undertake the responsibility of service alcohol.”
Alderperson Alex Schultz (District 9) summed up the situation by saying, “So, in essence this this committee has no power to move for approval of the license that the applicant has applied for without running into, essentially, legal jeopardy with the state statute.”
Attorney Buruin responded, “If the committee were to reach the conclusion that the offenses have no material connection to the licensed activity, then it could be approved. It is the position of the legal department that there is, by case law, and, frankly, by common sense as well, a more than material connection between the elements […] of the of the offenses and the license activity.”
Alderperson Van Zeeland asked if, under state law, there was any timespan that could pass after which an applicant convicted of those crimes would be eligible for a license.
Attorney Buruin didn’t see anything that would allow the issuing of a permit, although he noted that Andrew was still allowed to work in an environment with alcohol so long as he was not performing work that required an operator license.
Alderperson Nate Wolff (District 12) asked if there was a way for Andrew to petition the court or get some kind of determination from a judge that would allow him to be issued a license. Attorney Buruin had not looked exhaustively but everything he had seen had referred specifically to receiving a pardon. [I would assume he was thinking of Statute 125.04(5)(b) which points to a pardon as the only way for someone subject to these restrictions to be able to receive a license.]
Alderpersons Van Zeeland, Schultz, and Wolff all commended Andrew for having turned his life around and were all apologetic that, due to state law, they were not allowed to grant him a license.
Alderperson Siebers was not pleased with the situation and asked why they give Andrew the opportunity to come and hold out the possibility that they might approve his license application if there was no way they could approve the license?
Attorney Buruin answered, “I think because we’re required to by means of due process, first off.”
Alderperson Siebers disagreed, responding, “Due process? We don’t have any due process.”
Attorney Buruin explained , “We’re required to handle it this way, and give him a chance to be heard on it as I understand it. Further, the committee could make a different decision and decide that the Legal Department’s interpretation of the statutes is wrong, and it could do that. So, I’m not advising that, but it’s not as though there’s nothing that could be done here. It’s just that from this perspective, it appears that there is a very clear path through the statutes. But ultimately, it is your decision. So, if—this isn’t a decision that the Clerk’s Office or the Legal Department is empowered to make, if that makes sense?”
The committee ended up voting 3-1 to recommend the license application be denied, with Alderperson Siebers casting the dissenting vote.
After the vote was taken some further discussion took place with someone who was not speaking directly into the microphone. I thought at first it was Andrew, but then it sounded like it might have been someone connected with the city. They suggested that it would be nice if information about these sorts of disqualifying convictions be provided along with an application, so people could be informed up front. It also sounded like the he said that the Police Department gave its recommendation but didn’t necessarily know all of the statutes, so having the item come before the committee was a way of conducting due process and clarifying the issues surrounding a denial.
[I was a little surprised that Andrew even attended the meeting given how clear the memo was that the committee would not be allowed under State Law to grant him a license, but in listening to the meeting I got the impression that he had not seen the memo. He had been sent a notice letting him know that his application had been recommended for denial and that he had the right to appeal that to the Safety and Licensing Committee, but the memo explaining the reasons behind the denial was not necessarily included in that notice. It seems like it would have been helpful to have let him know ahead of time why his application had been denied. That way he could have known ahead of time that appealing was likely a useless action, and he wouldn’t have put himself through the discomfort of coming before the committee when there wasn’t anything they could actual do.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1147921&GUID=390565A3-B38A-4087-A912-23A261A4D1BE
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