The Safety and Licensing Committee met 04/10/2024. They spent 45 minutes of the 1-hour meeting discussing the Operator/Bartender license for Miguel.
Miguel has a history of driving while intoxicated. For that reason, the Appleton Police Department initially recommended that his license application be denied.
However, shortly after having submitted his license application, Miguel completed probation for his 2019 felony conviction for Operating while Intoxicated (5th or 6th). Wisconsin state law states that licensing agencies may not refuse to license individuals who show competent evidence of sufficient rehabilitation. One of the documents that are listed in the law as being evidence of rehabilitation is documentation showing completion of probation. As a result, the City Attorney’s Office believes from a legal standpoint the city needs to approve the license application or else it will be opening itself up to a potential lawsuit claiming that the city engaged in employment discrimination.
During the 03/27/2024 Safety and Licensing Committee meeting, the committee approved the license application. When it came before the Common Council, Alderperson Chris Croatt (District 14) asked for it to be referred back because he had some questions about the item.
The Safety and Licensing Committee discussed in more detail the legal issues surrounding whether or not they were required to approve the license, and they ended up holding the item for 2 more weeks in order to provide time for the Police Department and the City Attorney’s Office to submit updated memos regarding with new recommendations that take into account that Miguel has successfully completed his probation.
I’ve prepared a transcript of the discussion for download:
Miguel had not been notified by the city that his license had not been approved at the most recent Common Council meeting. He also had presumably not been following the actions of the Council because he did not attend the Safety and Licensing Committee meeting which was unfortunately because the alderpersons would have preferred to be able to ask him questions and discuss the matter with him.
Assistant City Attorney Zak Buruin reviewed Wisconsin State Statute 111.335 for the committee and explained that it states, “If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity […] the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.” The statute goes on to identify documentation showing completion of probation as being a type of evidence that was considered by state law to demonstrate rehabilitation.
He told the committee, “I believe there’s an extreme risk of there being a claim for employment discrimination if the committee does not grant [the license].”
Alderperson Croatt was concerned that that seemed to mean that as long as a person completed probation the committee was legally required to disregard an applicant’s record.
Alderperson Sheri Hartzheim (District 13) was not a member of the committee, but she expressed difficulty in being able to reconcile the section of state law which says, “No license related to alcohol beverages may be issued to a habitual law offender where the circumstances of the law offenses substantially relate to the circumstance of the particular licensed activity,” with this other section of state law requiring them to view him as having been rehabilitated because he completed probation.
Alderperson William Siebers (District 1) was concerned that Miguel was potentially an alcoholic, if perhaps a recovering alcoholic at this moment. “An alcoholic is always going to be an alcoholic. The only difference between one that is abusing alcohol and one that has stopped drinking is that person is a recovering alcoholic.” He wasn’t sure if someone who would need ongoing alcohol dependency support for the rest of his life would truly qualify as being rehabilitated.
Assistant Attorney Buruin stated, “[I]n terms of asking what rehabilitation is, if we’re talking about it colloquially, then the questions are spot on. But for the purposes of this question, it is defined by the statute, and it’s that paperwork—rightly or wrongly.” He was personally familiar with Miguel from his interactions with him through the court system, and regarding granting the license he told the committee, “[M]y policy position on it would be different than my legal position on it, to be blunt. He did not graduate from the drug court program. I’m aware of that. But the statute, as I understand it, is something that he has satisfied, so that is why the legal opinion is what it is. I understand, and I think the concerns are well founded, but the statute has taken some of that out of local hands to some degree, unfortunately.”
There was potentially the tenuous possibility of denying the license application on narrow technical grounds because there were some errors and omissions on it. Miguel had listed only one of his felony conviction and had checked the box saying that he had no misdemeanor convictions when that was not true. Attorney Buruin told the committee, “Oddly enough, and this is something I’ve been scouring over for a fair amount of time since this was brought to the attention, there does not appear to be a basis in the statute to deny based on that information. There are penalties associated with it and a potential roundabout way to exclude because it is a law violation to do so. But […] that is not something that’s typically been looked at to with a lot of vigor in terms of approval or denial decisions. That may or may not have been based on some feedback from prior incarnations of the Council and the committee. I can’t speak to that directly, but that’s what I’ve been told. And, frankly, based on the state of the statute, I think that’s probably sound advice.”
Alderperson Siebers ended up making a motion to hold the item until the next committee meeting. This would allow an opportunity for the city to inform Miguel and his employer that the license had not yet been approved and provide an opportunity for them to attend the next meeting and discuss the issue further with the committee. Additionally, it would give an opportunity to the Police Department and the City Attorney’s Office to draft updated memos taking into account the fact that Miguel had completed probation.
The committee voted 4-0 to approve the motion to hold.
[This situation seems to have the same legal aspects that pertained to the Operator/Bartender license application submitted by Katie back in October of 2023. She had been found guilty of misdemeanor Resisting or Obstructing an officer, guilty of felony Possession of Narcotic Drugs, and guilty of Felony Possession of Methamphetamine. Given that history, the Police Department recommended denial of her license application. As in Miguel’s case, her boss spoke to the committee and talked about how she was an asset to his business and needed a bartender’s license in order to move into a management position. Like Miguel, she was able to provide documentation showing that she had successfully completed her probation. As a result, the committee went ahead and voted to approve the license.
Since October of 2023, Katie has been charged with felony Possession of Cocaine, misdemeanor Possession of Drug Paraphernalia, misdemeanor Disorderly Conduct, misdemeanor Criminal Damage to Property, and felony Bail Jumping. She has also had eviction proceedings opened against her. These cases are all ongoing, and no judgement has yet been reached. But one does question how someone who has truly been rehabilitated would find themselves in a situation where they were facing all of these charges.
It does kind of make one question the practical validity of the idea that completing probation means that a person is rehabilitated in anything outside of the most narrow legal sense of that word.
Having said all that. Miguel is a different person than Katie and we can hope that he makes different decisions than she has and does not go down a similar path.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1162734&GUID=8AF9AF76-0567-449A-928C-F5157A1B7DB3
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