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HomeMy WebLinkAbout01. 21-393AUGUST 10, 2021 21-393 RESOLUTION (CARRIED________LOST _______ LAID OVER _______ WITHDRAWN _______) PURPOSE: APPROVE COMBINATION “CLASS B” LICENSE / PAUL WINTER / BRASS RAIL / 1812 ALGOMA BOULEVARD INITIATED BY: CITY COUNCIL WHEREAS, an application and all required documentation for renewal of the combination “class B” license for Paul Winter/Brass Rail 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: Brass Rail / Paul Winter – Individual for premises located at 1812 Algoma Boulevard 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: August 5, 2021 RE: Non-renewal Hearing – Paul Winter 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 Paul Winter for premises located at 1812 Algoma Boulevard. The Findings and Conclusions of Law are based upon the Notice of Non-Renewal that was sent to Mr. Winter and would apply if there is evidence presented at the hearing and Council finds that Mr. Winter has not used the license granted to it in compliance with sections 4-3 and 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 August 10, 2021 ANNOUNCEMENT OF LICENSE HEARING / EXPLANATION OF PROCEDURE - See attached Exhibit “A” APPEARANCES (Licensee, any representative of Licensee) STATEMENT BY THE CITY CLERK REGARDING NON-RENEWAL NOTICE TO LICENSEE AND RECORDS OF HER OFFICE; CERTIFICATE OF SERVICE (Licensee may ask any questions, as may council. If there are questions of the City Clerk, the City Attorney will swear in the City Clerk prior to her testifying) ACCEPT THE NOTICE OF HEARING; AFFIDAVIT OF THE CLERK; AND CERTIFICATE OF SERVICE INTO THE HEARING RECORD. TESTIMONY OF LICENSEE/REPRESENTATIVE (Clerk will swear in the licensee and any witnesses. 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 (Motions are always made in the affirmative so that “yes means yes – renewal; no means the license will not be renewed)  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  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 If License is not renewed – City Attorney will go through the Findings of Fact and Conclusions of Law, make any changes necessary – this can be done by consensus of Council Motion to approve Findings of Fact and Conclusions of Law DIRECTIONS TO CLERK Notify the applicant of the Council’s determination 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 Paul Winter for premises located at 1812 Algoma Boulevard, 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 Paul Winter has failed to conduct a license-related business upon the premises located at 1812 Algoma Boulevard 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 ______________________________________________________________________ ______ Paul Winter (Brass Rail) 1812 Algoma Boulevard, Oshkosh, Wisconsin 54901 Home Address: Paul Winter, 205 N. 6th Street, Winneconne, WI Findings of Fact, Conclusions of Law and Determination of the City Council for the City of Oshkosh: This matter coming before the Council on August 10, 2021. Findings of Fact/ Conclusions of Law: 1. That the Licensee, Paul Winter was notified in writing of the municipality’s intention not to renew the Combination “Class B” Fermented Malt Beverage & Intoxicating Liquor License issued to Mr. Winter for premises located at 1812 Algoma Boulevard, Oshkosh, Wisconsin 54901 and provided an opportunity for hearing before the Common Council for the City of Oshkosh on August 10, 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. Notice was provided by personal service. 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 Paul Winter for premises located at 1812 Algoma Boulevard, Oshkosh, Wisconsin, 54901; with Mr. Winter’s home address as listed on his application being 205 N 6th Street, Winneconne, Wisconsin. The City Clerk’s Office noted that Mr. Winter had previously listed his address as 205 N. 6th Avenue in Winneconne and Notices and documents reflected both addresses. That Paul Winter appeared in person/ did not appear before the Council. That ______________ appeared in person before the Council to give testimony. 2. That Paul Winter 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 provisions pursuant to the authority granted under section 125.10 Wis. Stats.: SECTION 4-3 APPLICATION FOR LICENSE (A) Form Applications for a license to sell or deal in intoxicating liquor shall be made in writing on the form prescribed by law, and shall be sworn to by the applicant, as provided within chapter 125 of the Wisconsin Statutes, and shall be filed with the City Clerk not less than fifteen (15) days prior to the granting of such license. (B) Time for Filing All renewal applications for licenses will be issued on July 1st of any year and all original applications for such licenses to be issued on July 1st of any year shall be executed and filed with the City Clerk not later than April 15th preceding. (C) Payment of License Fee No license for the sale of alcohol beverages may be delivered to the applicant until the applicant files with the City Clerk a receipt showing payment of the prescribed license fee to the Treasurer. The applicant shall pay the prescribed license fee at least fifteen (15) days prior to the date the license is to be issued. (D) Proof of Seller’s Permit Applications shall be accompanied by proof of application for or a copy of the applicant’s current Wisconsin State Seller’s permit. If the application is accompanied by an application for the seller’s permit the license may be conditionally granted to the applicant and a copy of a current permit must be provided to the City Clerk’s office prior to the issuance of the license. (E) Publication Said application shall be accompanied by the cost of the publication in the amount as provided for within chapter 125 of the Wisconsin Statutes. Prior to the granting of such license notice of the application shall be published in the official newspaper at least three (3) times successively. Such publication shall include the name and address of the applicant, and kind of license applied for, and the location of the premises to be licensed. 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) That the application submitted to the office of the City Clerk by Paul Winter did not comply with the requirements of Section 4-3 in relation to renewal of his license. Mr. Winter did not file paperwork for renewal of his license for 2021-22 until June 28, 2021. That the paperwork filed by Mr. Winter is incomplete in that Mr. Winter failed to file a copy of a Wisconsin Seller’s Permit or a completed application therefor as required by §125.04(5)(a)(4) Wisconsin Statutes and section 4-3(B) of the City of Oshkosh Municipal Code. That Mr. Winter filed a Wisconsin Business Tax Registration Certificate with “Sellers Permit” handwritten across the top of the Certificate and with a portion of the form scratched out to be made purposefully illegible. That Mr. Winter has failed to file a complete form with no redacted information and failed to file either a Seller’s or Use Tax Permit or application for such permit as required by section 4-3(B) of the City Municipal Code. That Mr. Winter also failed to pay the $20 publication fee required under section 4-3(E) of the City Municipal Code. D) The records in the office of the City Clerk indicate that the Common Council approved transferring the license to Paul Winter on August 13, 2019, but that Mr. Winter 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 in that license year contrary to section 4- 6(A)(1) of the City of Oshkosh Municipal Code. E) The records in the office of the City Clerk indicate that the license was granted to Paul Winter for license year 2020-2021, but Mr. Winter 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 in that license year contrary to section 4-6(A)(1) of the City of Oshkosh Municipal Code. F) That the records in the office of the City Clerk indicate that Paul Winter has failed to conduct a license-related business on the premises for which the license was issued, since at least August 13, 2019 contrary to section 4-6(A)(2) of the City of Oshkosh Municipal Code. Based upon these Findings of Fact and Conclusions of Law the Combination “Class B” Fermented Malt Beverage & Intoxicating Liquor License issued to Paul Winter is not renewed and the City Clerk is directed to give notice of the nonrenewal to the Licensee. Dated this 10th day of August, 2021 ______________________ Mayor Lori Palmeri