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Home My WebLink About02. 21-296JUNE 8, 2021 21-296 RESOLUTION (CARRIED___5-1____LOST _______ LAID OVER _______ WITHDRAWN _______) PURPOSE: APPROVE COMBINATION “CLASS B” LICENSE / G.S. DAVIES, INC. / SHERMAN HOUSE / 1029 S. MAIN STREET INITIATED BY: CITY COUNCIL WHEREAS, an application and all required documentation for renewal of the combination “class B” license for G.S. Davies, Inc., has been submitted, and fees deposited; and WHEREAS, the official records of the Office of the City Clerk indicated that the licensee and premises for which the license is sought are not compliant with City Ordinance 4-6 Required Use of License; and WHEREAS, a Notice of Intention to Not Renew was sent to the Licensee and the Licensee provided information which the Council has considered and the Council has determined that sufficient grounds exist to waive the requirements of Section 4-6 of the City of Oshkosh Municipal Code for this premises for the current license year (2021-2022) for the reasons specified below. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the following license is hereby granted subject to satisfaction of such conditions as may be identified by the Chief of Police and Fire Chief, or their respective designees, or by a representative of the Winnebago County Health Department; subject to the payment of taxes and other charges as specified in section 4-5(B) of the City of Oshkosh Municipal Code; and subject to the fulfillment of any further conditions imposed by State Statute for issuance of such license: G.S. Davies, Inc., Gary Davies – Agent, for premises located at 1029 S. Main Street City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: June 3, 2021 RE: Non-renewal Hearing – G. S. Davies, Inc. d/b/a Sherman House Attached to this memorandum is an outline for the procedure on the liquor license non-renewal hearing and a draft version of Findings of Fact and Conclusions of Law which the Council may use as a basis for its findings pertaining to the license hearing for G. S. Davies, Inc. The Findings and Conclusions of Law are based upon the Notice of Non-Renewal that was sent to G. S. Davies, Inc., Agent Gary Davies, and would apply if based upon evidence presented at the hearing the Council finds that G. S. Davies, Inc. has not used the license granted to it in compliance with section 4-6 of the City of Oshkosh Municipal Code. The attached Findings of Fact and Conclusions of Law is a draft only and may be modified by the Council as evidence may indicate. It is simply intended to provide the Council with an initial framework from which to proceed. If anyone has any questions or concerns, please feel free to contact me. BEFORE THE COMMON COUNCIL CITY OF OSHKOSH PROCEDURE ON LIQUOR LICENSE HEARING NONRENEWAL June 8, 2021 ANNOUNCEMENT OF LICENSE HEARING - See attached Exhibit “A” APPEARANCES (Licensee, any representative of Licensee) EXPLANATION OF PROCEDURE STATEMENT BY THE CITY CLERK REGARDING NON-RENEWAL NOTICE TO LICENSEE AND RECORDS OF HER OFFICE ACCEPT THE NOTICE OF HEARING AND AFFIDAVIT OF THE CLERK INTO THE HEARING RECORD. TESTIMONY OF LICENSEE/REPRESENTATIVE (Clerk will swear in any witnesses. Direct and cross examination and questions by Council) FINAL STATEMENT BY THE LICENSEE/REPRESENTATIVE HEARING DECLARED CLOSED COUNCIL MEMBER DELIBERATION Motions and roll call votes to renew/nonrenew license with or without conditions  To renew the license without conditions o Motion to approve o “yes” vote approves license; “no” vote does not approve renewal license  To non-renew the license o Motion to approve o “yes” vote approves license; “no” vote does not approve renewal license o If the license is not approved, then go through Findings of Fact and Conclusions of Law, make any changes as necessary – can be done by consensus o Motion to approve Findings of Fact and Conclusions of Law  To renew the license with conditions o Motion to approve o Motion to amend the resolution to include the conditions o “yes” vote approves amendment to include conditions; “no” vote rejects amendment with conditions o Vote on the Main Motion (as amended if conditions passed) - “yes” vote approves license as amended; “no” vote does not approve renewal license o If License is not renewed with/without conditions - go through the Findings of Fact and Conclusions of Law, make any changes necessary – can be done by consensus o Motion to approve Findings of Fact and Conclusions of Law DIRECTIONS TO CLERK Notify the applicant of the Council’s determination, and Notify the applicant, if applicable, whether the conditions have been met as of July 1, 2021 RETURN TO COUNCIL AGENDA Exhibit “A” The purpose of this meeting is to conduct a hearing per Section 125.12 of the Wisconsin Statutes on the decision to renew or nonrenew the license of G. S. Davies, Inc d/b/a Sherman House, Agent Gary Davies for premises located at 1029 S. Main Street, Oshkosh, Wisconsin. The procedure for this hearing is as follows. The City Clerk will review the Notice of Nonrenewal served upon the Licensee and enter the certified public records into the record of this hearing. The Licensee will then be given an opportunity to present any evidence that he/she wishes the Council to consider in relation to the decision whether or not to renew the license. Anyone giving testimony before the Council will be sworn in by the City Clerk. After the Licensee has been given the opportunity to present any information he/she wishes the Council to consider, the Council members will be then be permitted to ask questions. Thereafter, the Licensee will be given a final opportunity to make a statement to the Council. The hearing is then closed and the issue will be discussed and voted on by the Council. The Council will base its decisions only on the evidence it hears at this hearing. DRAFT VERSION of FINDINGS of FACT and CONCLUSIONS of LAW This draft of Findings of Fact and Conclusions of Law is based upon the Notice of Intent to Non-Renew and would be applicable if the Council determines that the evidence at the hearing supports the conclusion that G. S. Davies, Inc. has failed to conduct a license-related business upon the premises located at 1029 S. Main Street in the City of Oshkosh in compliance with the requirements of section 4-6 of the City of Oshkosh Municipal Code. The Findings and Conclusions may be modified as necessary based upon information presented at the hearing in this matter. BEFORE THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN ______________________________________________________________________ ______ G. S. Davies Inc. 1029 S. Main Street, Oshkosh, Wisconsin 54902 Gary Davies, Agent, 1241 Glane Court, Oshkosh, WI 54902 Findings of Fact, Conclusions of Law and Determination of the City Council for the City of Oshkosh: This matter coming before the Council on June 8, 2021. Findings of Fact/ Conclusions of Law: 1. That the Licensee, G. S. Davies, Inc. and its agent Gary Davies were notified in writing of the municipality’s intention not to renew the Combination “Class B” Fermented Malt Beverage & Intoxicating Liquor License issued for Sherman House located at 1029 S. Main St., Oshkosh, Wisconsin and provided an opportunity for hearing before the Common Council for the City of Oshkosh on June 8, 2021 at 6:00 p.m. or as soon thereafter as the matter could be heard, all pursuant to the provisions of Section 125.12(3) of the Wisconsin Statutes. That the City Clerk entered into the record true and correct copies of official records from the Office of the City Clerk pertaining to the Combination “Class B” License currently held by G. S. Davies, Inc., located at 1029 S. Main St., Oshkosh, Wisconsin, 54902; with registered agent, Gary Davies. That ___________________________ appeared in person before the Council on behalf of G. S. Davies, Inc. 2. That G. S. Davies, Inc. does not possess the qualifications required under Chapter 125 Wis. Stats. to hold the license, as follows: A) That pursuant to section 125.12(3) a municipality may refuse to renew a license for the causes provided in subsection 125.12(2)(ag) Wis. Stats. B) That one of the causes specified in subsection 125.12(2)(ag) Wis. Stats. is that the person has violated the provisions of Chapter 125 Wis. Stats. or a municipal regulation adopted under section 125.10 Wis. Stats. That the City of Oshkosh has adopted the following provision pursuant to the authority granted under section 125.10 Wis. Stats.: SECTION 4-6 REQUIRED USE OF LICENSE (A) Required use of License. The following shall be a violation of this chapter. The penalty for violation of this Section shall be limited to non-renewal or revocation of the license only. (1) failure to complete the requirements that would result in the issuance of a “Class B” or Class “B” license even though such license has been granted by the Common Council during the prior license year. (2) failure to conduct license-related business on the premises for which the license was granted and/or issued for at least one (1) consecutive thirty (30) day period during any consecutive twelve (12) month period. a. For purposes of this section “license-related business” shall mean the actual sale or offering for sale of alcoholic beverages under a valid alcohol beverage license. b. For purposes of this section it shall not be deemed a violation for the premises to be closed on regularly scheduled closing days of the business (for example, holidays or Mondays where the business has typically maintained Mondays as a day that it is closed for business). C) The records in the office of the City Clerk indicate that the license was granted to G. S. Davies Inc., located at 1029 S. Main Street, Oshkosh, Wisconsin; with registered agent, Gary Davies, for license year 2020-2021, but G. S. Davies Inc. failed to complete the requirements for issuance of the license and the license was never issued by the City Clerk’s office for use at the premises contrary to section 4-6(A)(1) of the City of Oshkosh Municipal Code. D) That the records in the office of the City Clerk indicate that G. S. Davies, Inc. has failed to conduct a license-related business on the premises for which the license was issued contrary to section 4- 6(A)(2) of the City of Oshkosh Municipal Code, since at least December 2019 when the license was transferred to G. S. Davies Inc. but G. S. Davies Inc. failed to compete the requirements for issuance of the license and the license was never issued by the Clerk’s office for use at the premises for the remainder of the 2019-2020 license year. Based upon these Findings of Fact and Conclusions of Law the Combination “Class B” Fermented Malt Beverage & Intoxicating Liquor License issued to G. S. Davies, Inc. is not renewed and the City Clerk is directed to give notice of the nonrenewal to the Licensee. Dated this 8th day of June, 2021 ______________________ Mayor Lori Palmeri