As you may be aware, the Police Department put forward a proposed new ordinance that would require Class B establishments (essentially, bars and restaurants that serve alcohol) to, as part of maintaining their alcohol license, install surveillance cameras at the entrances and exits of their establishments, to maintain those recordings for a minimum of 30 days, and to turn over any footage to the police within 8 hours of a request.
This item has not yet brought forward for a vote, but it was discussed by the Safety and Licensing Committee which seemed hesitant to move forward with the proposal in its current form and it also garnered feedback from the public, all of whom were opposed it its implementation.
I reached out to the City Attorney’s Office with a few questions about the proposed amendment, and Assistant Attorney Zak Buruin was kind enough to respond.
QUESTION: It looks like the ordinance would require a private business, as part of their licensure, to (a) install security cameras with their own money and on their own private property and (b) give up their 4th Amendment rights as those rights pertain to the recordings made by the cameras.
When the resolution limiting the placement of political signs on public property came up, it turned out that the city could not limit the 1st Amendment rights of the businesses that were renting government owned property from the city outside of including a clause in the lease agreement in which the private entities agreed to give up their 1st amendment rights in a limited fashion as it pertained their use of city owned property. In this case, however, the city seems to be much more broadly and unilaterally requiring privately owned businesses operating on private property to give up their 4th amendment rights in order to be able to maintain their alcohol licenses and conduct business in the city.
Has the Attorney’s Office verified that this ordinance is legal? What statute or case law is the city relying on to permit such an ordinance? Can a municipality legally pass an ordinance limiting a constitutional right in this manner?
ANSWER: This proposal has undergone legal review and appears to be within applicable municipal authority as constrained by state and federal statutory and constitutional protections. Alcohol licenses are subject to reasonable and rational regulation under the state’s police powers. That regulatory authority is shared with municipalities by statute with the understanding that such matters are of local concern. That regulatory authority is not unfettered, but the relevant caselaw appears to support the ability of municipalities to impose such regulation such as what was discussed at [the 02/28/2024 Safety and Licensing Committee] meeting.
Most directly, Wisconsin Statutes §125.10(1) grants municipalities the authority to regulate the sale of alcohol beverages so long as such regulations are not in conflict with Chapter 125. §125.02(17) defines “regulation” as “any rule or ordinance adopted by a municipal governing body.” The relevant caselaw is explicitly supportive of the high degree of municipal discretion to regulate the sale of alcohol and in a manner that suits the local community, and to condition alcohol beverage licenses on municipal regulation that does not conflict with Chapter 125. Some of the representative, guiding cases include, Wisconsin Dolls, LLC v. Town of Dell Prairie (2012 WI 76), Nowell v. City of Wausau (2013 WI 88), State ex rel. Smith v. City of Oak Creek (139 Wis.2d 788 (1987)), Coralic v. City of Milwaukee (2011 Wi App 136), North Central Conservancy Trust, Inc v. Town of Harrison (2023 WI App 64), and Moedern v. McGinnis (70 Wis. 2d 1056 (1975)).
QUESTION: The ordinance seems to require businesses to purchase, install, and maintain these surveillance cameras with their own money, but the ordinance is being introduced explicitly for the benefit of the Police Department which would have control over the placement of the cameras and access to the recordings of those cameras within 8 hours of a request. In some respects, that seems like a tax on those businesses, but I thought there were laws limiting the types of taxes municipalities could introduce. Does this ordinance fall within the boundaries of those laws?
ANSWER: It does not. The proposal would not involve the city collecting any money or revenue in any other form.
QUESTION: Right now, this ordinance would only apply to Class B establishments, but it seems like similar ordinances could be introduced in the future that apply to businesses more broadly or that could even apply to apartment owners/managers or private homeowners. What is the limiting principle to this ordinance? Is there anything in state or federal law that would prevent it from being expanded to other businesses and individuals sometime in the future?
ANSWER: The requirements of the proposal are tied to alcohol licenses and the explicit powers granted to municipalities by the state legislature under Chapter 125. Chapter 125’s application is limited to the sale of alcohol. The authority upon which this proposal rests would not expand beyond that.
The reliance on Chapter 125 limits this requirement to businesses engaging in the sale of alcohol. Whether similar requirements may be possible for other businesses not subject to regulation under Chapter 125 is not something that has been looked at, at as it was not part of any proposal submitted for legal evaluation. Chapter 125 also provides no basis for a similar requirement in apartment buildings or homes. Beyond that, the reasonable expectation of privacy at a private residence is much higher than at a place of public accommodation which is already subject to municipal and state regulation, oversight, and inspection such as a premises licensed for the sale of alcohol. Again, there has been no evaluation of whether any other basis might exist for similar camera requirements in other locations, as there has been no such proposal.
QUESTION: During the Safety and Licensing Committee meeting you said that Milwaukee had a surveillance camera ordinance that effectively applied to all retail establishments. Did you mean all retail establishments in general or did you mean all retail establishments that sell alcohol (whether they’re Class B or something else)?
ANSWER: I was referring to Milwaukee ordinance §105-91. It applies to all retail establishments, and “retail establishment” is broadly defined within the ordinance.
In the Milwaukee ordinance, the police chief invokes the ordinance to require any specific retail establishment meeting the specified criteria to adhere to the camera requirements. I believe I mentioned at last week’s meeting that at least one of the ordinances I was referencing was reactive in its application. I don’t recall if I made the statement generally or if I specified which one I was referring to, but this is the ordinance I was referring to.
NOTE: I did look up the Milwaukee ordinance that Attorney Buruin referenced. As he noted, it applies to all retail establishments, not simply establishments that sell alcohol. It is, however, reactive in nature in that the requirement to install video surveillance cameras only kicks in for “any retail establishment that has facilitated or been the location of 3 or more incidents of qualified activity within a one year period”.
[For what it’s worth, it does appear to me, given the existence of the Milwaukee ordinance, that although the Appleton ordinance is based on its state granted power to regulate the sale of alcohol, there is a possibility that the city would have the authority to expand a video surveillance installation requirement beyond Class B establishments to some degree should it want to. It is not clear to me where exactly that authority ends.
Also, it’s a little galling to me that apparently state and/or federal law allows government entities to require private businesses to spend money installing equipment specifically for the benefit of government agents but for some reason that is not viewed as a tax.]
Be the first to reply