The Safety and Licensing Committee met 10/09/2024. One of the items that they took up was the bartender/operator license renewal application from Cindy.
Between 1995 and 2007, Cindy was convicted 3 times for driving while intoxicated. In 2024 she received a felony conviction for driving with a prohibited alcohol concentration level. While not legally intoxicated, her blood did test at a .026 blood alcohol content level which was higher than state law allowed someone with 3 OWI convictions to drive at. The Police Department recommended that her bartender license not be renewed.
Cindy claimed to the Safety and Licensing Committee that the initial interaction that led to her testing at an elevated blood alcohol content level was due to having darkened license plates; however, a search of the Wisconsin Circuit Court Access website indicates that there was a dismissed speeding charge associated with the prohibited blood alcohol content level charge. She also told the committee that the elevated alcohol level was caused by having taken some NyQuil. 3 of 4 committee members seemed to believe these assertions. Finally, the committee members seemed to hold the understanding that Cindy had had no interactions with the law between her 2007 OWI conviction and her 2024 conviction for driving with a prohibited blood alcohol content level; however, a search of the Wisconsin Circuit Court Access website indicates that an Appleton resident with the same name, middle initial, and date of birth as Cindy did have multiple non-alcohol-related interactions with the legal system between 2007 and 2024.
The renewal application was initially recommended for approval by a vote of 3-1 at the 09/25/2024 committee meeting but was then referred back to the committee for further discussion and another vote by Alderperson Denise Fenton (District 6).
This time around, the full committee was in attendance and they ended up voting 3-2 to recommend the license for denial with Alderpersons Fenton, Chris Croatt (District 14), and Chad Doran (District 15) voting to deny the license renewal and Alderpersons William Siebers (District 1) and Alex Schultz (District 9) opposing that denial.
I’ve prepared a transcript of the discussion for download:
Alderperson Fenton had initially voted in favor of renewing the bartender license. She explained that after the meeting on 09/25/2024 she discovered that the original traffic stop was not necessary because of a darkened licensed plate but, according to the court record, was for a speeding violation that was dismissed in favor of the prohibited blood alcohol content charge. She also found a couple other encounters with law enforcement in between Cindy’s third OWI conviction and the most recent conviction for having a prohibited blood alcohol content level. Per Alderperson Fenton, this “gave me a lot of concern about the truthfulness of the applicant.”
She went on to say, “I am one of those people who the default is giving somebody the benefit of the doubt, and I still—I don’t care for the policy that if someone has three previous convictions, the blood alcohol level being that low forever, but that’s not something that we’re dealing with here. That’s this—that’s a state function. So, with what I’ve heard, and what I looked at, I have changed my mind from our last meeting, and can’t, in good conscience, vote to approve this license.”
Alderperson Schultz had voted to approve the application at the September meeting and he went on to vote against denial again at this meeting; however, he said, “One of our challenges as this committee is to look at what’s presented to us, including the recommendations to deny from APD based on what we’re supplied, and it’s really not incumbent or not our job to look in any deeper than that when we’re trying to make that decision. But I too, have some reservations, having found out that that the reason for that stop was for speeding, and that was never divulged by the applicant. So, I can understand why someone might not want to bring that up.”
He also questioned the likelihood of NyQuil being the reason Cindy’s blood alcohol content level had been elevated.
Cindy, understandably, seemed sad and upset with the direction things were going. She started out by saying, “I’m not quite sure why this is being done. I thought that we go by the recommendation of the Police Department, and that I was to come in here and show rehabilitation and the city attorney agreed on our last meeting that that had been done. I’m not quite understanding why we’re digging into everything I’ve done.”
She stressed that her fourth conviction was not even for operating while intoxicated but rather for having a prohibited blood alcohol content that would have been the legal limit for every other person in the room.
She disagreed with the idea that she had been pulled over for speeding and said that the police report stated that the police officer pulled her over after he saw a darkened license plate cover.
Alderperson Siebers asked her if she had received treatment after her third OWI conviction in 2007. She said that she had. It had been a 9-month program and when she had completed that she continued to see the therapist about once a month for the next 3 years until her insurance stopped paying for it. Given the number of years that had passed, she did not have proof of having completed that program, but she had been issued a bartender license subsequent to her OWI convictions which she did not think she would have been able to have gotten if she had not been in compliance with the court order to undergo treatment. Assistant City Attorney Zak Buruin also noted that documentation had been provided regarding treatment after the fourth offense.
She argued against the accuracy of the police report regarding her most recent conviction saying it “states that all three convictions occurred in Winnebago County. No, they did not. So, there are discrepancies left and right. I’m not here to discredit a State Patrol. There are just discrepancies, because if you want to look up the OWIs you’ll find that one could occurred in Outagamie, the second one in Winnebago, and the third in Calumet. I had my Calumet sentence transferred over to Waupaca County where my parents lived, so that my father who was nice enough to come pick me up for Huber did so and brought me to employment in Weyauwega.”
Alderperson Croatt had some concern about her claim the city attorney had confirmed that proof of rehabilitation had been established during the previous meeting. He said, “I think it’s important to clarify the position of the Appleton Police Department and the attorney’s office. I believe the applicant stated that there was proof of rehabilitation. I don’t think that’s the position of APD or the attorney’s office. I think that’s for this committee to decide. If we could just make sure that that’s clear for everyone in the room.”
Attorney Buruin said, “I think what I would have shared last time we were here is that the things that would have been ordered by the court were shown, but as Alder Croatt indicated, it is for this committee to determine under the statute whether that’s sufficient to show rehabilitation as contemplated by chapter 125. So, I would not have waited on anything other than compliance with the court order.”
The committee ended up voting 3-2 to recommend the license be denied with Alderpersons Fenton, Croatt, and Doran voting for the denial and Alderpersons Siebers and Schultz voting against the denial.
[I honestly just don’t see what kind of proof there is that she has been rehabilitated or that her blood alcohol content was genuinely caused by drinking NyQuil versus drinking alcohol.
During the 09/25/2024 meeting, she claimed that she had pled guilty to the charge even though she hadn’t been drinking because it was unlikely, given the evidence and the way the law was written, that she would been found not-guilty, but she also said the district attorney who prosecute her “probably kind of knew in the back of his or her mind that I probably was not drinking and driving.” Additionally she claimed that the therapist she had seen after her most recent conviction had believed that her elevated blood alcohol level had been caused by drinking NyQuil. However, we can look and see what was said during these two committee discussions on the matter, see how she described at the second meeting what had happened at the first meeting, and know for a certainty that her understanding of what the City Attorney had said at that first meeting was not accurate. As a result, I don’t know why one would be inclined to trust her understanding of what happened during her interactions with the police, the court system, and the therapist.
I also think it is worth pointing out that the idea that drinking a capful of NyQuil could have caused her to have a lab tested blood alcohol content level of 0.026 seems at best incredibly implausible and at worst outright impossible. I would have liked to have seen her present some sort of evidence backing up this claim, and I also would have liked to have had a clear understanding of the timeframe between when she drank the NyQuil, when she was pulled over, and when her blood was drawn for the test. According to this Michigan-based criminal defense attorney, “A person’s BAC (blood alcohol content) reduces by about 0.02 an hour once a person has stopped drinking. NyQuil contains 10% (perhaps up to 25% in some reports) of alcohol. Even if you drank a whole bottle of Nyquil, your BAC would not get over 0.02, especially the following day. But it could be if you consumed several bottles of the medication.”
Ultimately, although her situation does understandably elicit sympathy, the entire story also seems really unbelievable, and it’s hard to see what she provided to the committee that could credibly have been taken as proof of her rehabilitation, and I question whether it would be appropriate or promote public safety to approve a bartender license for an applicant with this history and this story.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1217784&GUID=02BF0B19-2CCD-4C3C-BD7D-CB043769AA92
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