The Common Council met 10/16/2024. One of the items they separated out for an individual vote was the Operator/Bartender license for Cindy.
Cindy was convicted of driving while intoxicated 3 times between 1995 and 2007. Because of these convictions, state law requires that, in perpetuity, her blood alcohol level be lower than .02 when she drives. In January of this year, she received a felony conviction for driving with a prohibited blood alcohol content level. As a result, the Appleton Police Department recommended that her bartender license not be renewed.
Cindy claimed that she had been pulled over for having a darkened license plate and was then tested for alcohol. The lab work for the blood test indicated that her blood alcohol content level was .026. She claimed that this was caused by having taken some NyQuil prior to driving. The court record, on the other hand, indicates that she was pulled over for speeding. Beyond that, it is unlikely that drinking a normal dose of NyQuil could cause a person’s blood alcohol content level to rise over .02. Additionally, between 2007 and 2024 she had a series of non-alcohol-related interactions with the court.
The Common Council voted 7-4 to deny the bartender license.
I’ve prepared a transcript of the discussion for download:
This item was discussed by the Safety and Licensing Committee twice. The first time, the committee voted 3-1 to recommend the license be approved. The second time, they voted 3-2 to recommend the license be denied.
Cindy appeared at the Common Council meeting and spoke. She started out by saying, “I’m not here asking you to renew an operator’s license. I am here because if you do not renew that operator’s license, you are effectively putting me out of a job which is my means for survival.”
I’ll let her speak in her own words:
“When I was stopped, I was driving back from Apple—to Appleton from Weyauwega where I was visiting my folks. I believe I was driving with the flow of traffic (if that was going fast; this is on Highway 10. I think everybody knows kind of how traffic moves) when I was stopped and approached. The officer, asked me why I thought he stopped me. I had no idea, and I had not thought I did anything wrong. I did not even know I was being cited for speeding until I was released the next morning.
“This citation has been dropped long before I ever met with the Safety and Licensing council. He told me my tint was start. All this stuff was dismissed before I ever came before this panel. Why did I not mention it? It doesn’t exist. It was dropped. I didn’t think I was trying to be sneaky or hiding anything. I went to court because I had a trace full amount of blood alcohol of a point 026, not point 08. And I do realize this is a violation of my driving privileges.
“I was under the understanding that my appeal was going to be based on the information presented to the Council through the Appleton Police Department, myself, and yet, the reason that the committee brought this back for review was based on Alderman Fenton’s recommendation after she took it upon herself to CCAP me and look farther into my criminal history. As we all know, the information extenuating circumstances are not all contained in those records.”
She finished up by saying, “Please do not let my troubled past affect my possible future. I have followed the terms of my third OWI for over 17 years. I get up. I go to work every day. I do not drink while I’m at work, nor do I drink and drive. My life is not perfect, but it is a daily effort to continue doing the best I can. Please allow me to move forward.”
Alderperson Sheri Hartzheim (District 13) opposed renewing the license not because she did not sympathize with Cindy’s concerns but because the Council was asked to validate and verify that rehabilitation had taken place. The documentation demonstrating rehabilitation consisted of a letter stating that substance abuse treatment had been completed, a letter from the applicants daughter, a letter from a coworker of the applicant, a Driver Safety Plan Status Report indicating that alcohol and other drugs were an issue for the applicant, and a certificate indicating that Cindy had completed a Responsible Beverage Server education course. Per Alderperson Hartzheim, “In totality, those items, to me, don’t prove or show rehabilitation which is the key item that this Council needs […] to vote on in order to approve this license, and I don’t believe that it’s been proven or shown by these documents.”
Alderperson Chris Croatt (District 14) agreed with Alderperson Hartzheim’s position and added that he was going to vote against the license renewal because of the recent felony conviction and the recommendation from the Police Department to not renew the license. He also noted that the Council was not voting on Cindy’s employment but on the renewal of her license. “If the employer chooses to do something with the employment, that’s their choice. This is on the license.”
Alderperson Denise Fenton (District 6) was the Safety and Licensing Committee member who had initially voted in favor of renewing the license but then referred the item back for further discussion whereupon she voted to deny the license renewal. Per Alderperson Fenton, “My inclination is always to give somebody the benefit of the doubt, particularly with the amount of time that it occurred between the third and the fourth OWI.” However, after the initial committee vote she thought back on what had been discussed and some things did not feel right to her. She looked up the case on the Wisconsin Circuit Court Access website and noticed that the original stop was for speeding, not for a darkened license plate as the applicant had indicated. Additionally, “I find it really difficult to believe that a normal dose of cold medicine would have resulted in that blood alcohol level.”
Alderperson Katie Van Zeeland (District 5) also voted against renewing the license. She said, “I do tend to try to give people another shot, but I have some concerns with the way the applicant talks about there being a misunderstanding in information and what happened in their incident. You know, being upset with someone for going and looking up what the public record says is concerning to me. It makes me question if I can trust them, and so I’ll have to vote no.”
Alderperson William Siebers (District 1) was in favor of renewing the license, saying, “I’ve always stated in committee ‘When is the past the past?’ It appears in this situation that the past is not the past even though there’s been a lot of time between the third and the fourth OWI. I think she should be given credit for that. I think she should be applauded for that. I’m going to vote in favor of her having a license, even though she did get her fourth OWI.”
Alderperson Alex Schultz (District 9) was also in favor of renewing the license and shared the concern that the past was never in the past. He put himself in her shoes and felt that the situation was unfair. “If 17 years had passed and I was pulled over, I had some blood alcohol, but it was .026, which is a beer, I could see something like that happening.” Because he did not have a history of OWI an officer would send him on his way and tell him to be careful. Her employer had spoken at a previous committee meeting and presented her as a responsible and hard-working individual. He also noted that no documentation had been provided showing that she had served underage minors or performed her bartender duties inappropriately. “So, given those two things, I’m going to continue to support. I did struggle mightily with it, based on some of the comments that were made, but I will continue to support her, give her this chance, because I put myself in her shoes, and I would be really struggling if I had to lose my employment because I blew a .026.”
Alderperson Patti Heffernan (District 8) believed that the documentation that Cindy had completed substance abuse treatment as well as her employer indicating that she was responsible was evidence of her rehabilitation. She believed that interfering with a person’s ability to work could contribute further to an alcohol use disorder if the person in question had an alcohol use disorder. “Taking somebody’s, you know, bartending license doesn’t stop drunk driving. It stops them from being able to serve alcohol to other people. There that—there would be nothing that would still stop some from—somebody from consuming alcohol and then continuing to drive. All this does is stop somebody’s ability to be employed, which can contribute—if there is an alcohol use disorder, can contribute further to an alcohol use disorder. So, in this situation, I would, I would vote to approve.”
The Council voted 4-7 against approving the bartender license with Alderpersons Siebers, Vered Meltzer (District 2), Heffernan, and Schultz casting the 4 votes in favor of approving the license.
[I’m curious if there are any continuing education opportunities available to local legislators regarding the factors they are allowed to consider when determining whether or not they should overrule recommendations that are driven by state law. Alderperson Siebers’ concerns about the unfairness of the state placing different rules on an individual for the rest of their life after they’ve received three OWI convictions is the sort of argument a jury member might make if they were pushing for jury nullification. It’s essentially saying, “This law is so unfair that I will not uphold it.” A jury has a right to do that, but I’m a little less sure what sort of freedom a governmental body has in that regard. The Council was supposed to be determining if the applicant had demonstrated convincing evidence of rehabilitation, not whether or not the issue she was dealing with was “fair” based on some sort of personal sense of rightness.
I also thought Alderperson Heffernan’s concern that taking away a person’s license could contribute further to an alcohol use disorder was problematic. Boiled down, it was basically saying something along the lines of, “I’m worried this person may be an alcoholic and I don’t want to do something that would make her more of an alcoholic therefore I’m going to vote to allow her to serve alcohol to other people.” It’s hard to see how that would be a responsible decision that takes the safety of the city overall into consideration.
I’m also bothered by the tendency of some alderpersons to be swayed by emotional appeals rather than the factual considerations of a particular case and their responsibility as alderpersons to the city overall. An individual’s emotional appeal and touching personal circumstances shouldn’t override the facts and underlying law and should not be used to determine a case. Having rules that are subjectively enforced is inherently unfair and will only lead to decreased social cohesion and a fraying of community bonds.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1213521&GUID=A5313A45-DFAA-48DE-B2CC-FE146922F184
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