Smith v. City of Milwaukee
2014 WI App 95
Wis. Ct. App.2014Background
- City of Milwaukee appeals a judgment vacating the Common Council's nonrenewal of Smith's Class B tavern license for Mixx Night Club.
- Trial court conducted de novo review under Nowell I, which was later overturned by Nowell II, and vacated the nonrenewal in favor of renewing and suspending the license 15 days.
- Nowell II established certiorari review for municipal licensing decisions; the City argues Nowell II applies retroactively to this case.
- Hearing and evidence: December 11, 2012 renewal application; January 3, 2013 License Committee hearing with police synopsis and witness testimony; January 15, 2013 Common Council denial based on the Committee findings and police incidents.
- Record includes numerous police incidents at Mixx (fights, battery, gun, underage drinking) and neighbor emails requesting suspension or revocation.
- The appellate court agrees Nowell II retroactive application applies and reverses the trial court, affirming the Common Council's nonrenewal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard of review applies? | Smith argues Nowell II should not apply retroactively. | City argues Nowell II governs certiorari review and retroactive application is proper. | Nowell II retroactively applies; certiorari review governs. |
| Is the City’s nonrenewal within its jurisdiction? | Smith contends the trial court should determine de novo instead of reviewing the city’s decision. | City contends licensing decisions are within the Council's sound discretion and within jurisdiction. | Yes; within jurisdiction. |
| Was the nonrenewal lawful and not arbitrary or oppressive? | Smith asserts error in applying Nowell II and questions the evidence. | City argues the decision followed legal standards and rational basis, supported by findings and evidence. | Lawful and not arbitrary or oppressive. |
| Is the record evidence substantial to support the decision? | Smith contends the evidence is insufficient to sustain nonrenewal. | City relies on police synopsis and neighbor complaints showing a pattern of disorder. | Evidence supports the decision. |
Key Cases Cited
- Nowell v. City of Wausau, 351 Wis. 2d 1 (Wis. 2013) (overruled de novo review; certiorari standard governs municipal licensing)
- Questions, Inc. v. City of Milwaukee, 336 Wis. 2d 654 (Wis. 2011) (certiorari review framework for licensing decisions)
- State ex rel. Ruffalo v. Common Council of the City of Kenosha, 38 Wis. 2d 518 (Wis. 1968) (consideration of patron behavior in license decisions)
- Heritage Farms, Inc. v. Markel Ins. Co., 339 Wis. 2d 125 (Wis. 2012) (retroactivity and sunbursting factors for new legal rules)
- Crystal Lake Cheese Factory v. LIRC, 264 Wis. 2d 200 (Wis. 2003) (substantial evidence standard in certiorari review)