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HomeMy WebLinkAbout25. 14-271 JUNE 10, 2014 14-271 RESOLUTION (CARRIED___7-0___LOST ______LAID OVER _____WITHDRAWN _______) AS AMENDED (conditions listed below) PURPOSE: APPROVAL OF COMBINATION “CLASS B” LICENSE – th WALLEYE’S (458 W 6AVENUE) INITIATED BY: CITY CLERK WHEREAS, an application for a license has been made, fees deposited, and all legal procedures have been taken as per Ordinance of the City of Oshkosh, NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the following licenses be granted: COMBINATION “CLASS B” LICENSE (JULY 1, 2014 thru JUNE 30, 2015) NAME AND ADDRESS: LOCATION OF PREMISES: WALLEYE’S PUB (Walleye‘s Pub, LLC.) ................................................ 458 W. 6th Avenue Agent: Paul E. Ulrich, 405 E. Larrabee Street, Omro AMENDED with the following conditions: That all license requirements for the issuance of the 2013-14 license year are met including those provisions of section 4-6 of the City of Oshkosh Municipal Code th That the premises located at 458 W. 6 Avenue complies with all code requirements for occupancy and operation as required by the Oshkosh Fire Department, Oshkosh Inspections Division and Winnebago County Health Department That Walleye’s Pub, LLC obtains issuance of the 2013-14 license and conducts license- related business on the premises by June 30, 2014 That if any condition specified above shall not be met or satisfactorily completed, that the combination “Class B” license shall not be granted without further action or approval of the Council required and the City Clerk shall be authorized and directed to notify the agent that the license has not been granted as of July 1, 2014. NOTICE OF INTENTION TO NOT RENEW Walleye's Pub, LLC 458 W. 6th Avenue, Oshkosh, Wisconsin Paul E. Ulrich, Agent/Member, 405 E. Larrabee Street, Omro, WI 54963 Pursuant to the direction of the Common Council for the City of Oshkosh you are hereby notified that the Common Council for the City of Oshkosh has declared its intention to not renew the license of Walleye's Pub, LLC for property located at 458 W. 6th Avenue, Oshkosh, Wisconsin for the following reasons: 1. That Walleye's Pub LLC is the current the license holder of the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued for the premises located at 458 W. 6th Avenue in the City of Oshkosh, Wisconsin. The current agent is Paul E. Ulrich, whose address is believed to be 405 E. Larrabee Street, Omro, Wisconsin 54963. 2. That Walleye's Pub LLC 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. C). That the City of Oshkosh has adopted the following provision pursuant to the authority granted under section 125.10 Wis. Stats.: Opportunity shall be given by the Common Council to any person to be heard for or against the granting of any license. Upon the approval of the applicant by the Common Council, the City Clerk shall issue to the applicant a license. Each license shall be numbered in 01 the order in which issued, and shall state the premises for which issued, the date of issuance, the fee paid, 'and the name of the licensee. (A) Required use of License. Failure to complete the requirements for issuance of a "Class B" or Class "B" license though such license has been granted by the Common Council and /or failure to conduct a license - related business on a premises for which a license shall be issued for any one year period shall be a violation of this chapter punishable by revocation of the license only. D) That Walleye's Pub LLC has failed to complete the requirements for issuance of a license for the 2013 -2014 license year even though such license was granted by failing to pay his 2012 taxes, payable in 2013, in full. No license was issued by the City Clerk's office for the 2013 -2014 license year for the property located at 643 W. 6th Avenue. F) That Walleye's Pub, LLC has failed to conduct a license - related business on the premises for which the license was issued, since July 1, 2013. F) That Walleye's Pub, LLC will be in violation of the provisions of section 4 -5(A) of the Oshkosh Municipal Code as of July 1, 2014 which is the effective date of the renewal license and therefore a license should not issue. The Common Council for the City of Oshkosh will hold a hearing on this matter on June 10, 2014 at 6:00 p.m. or as soon thereafter as the matter may be heard, pursuant to the provisions of Section 125.12(3) of the Wisconsin Statutes. You may appear before the Council at that time and present testimony and any evidence that you wish the Council to consider when making its decision. You may have an attorney help you or represent you at your own expense if you so choose. Dated this 30th day of May, 2014. 1 1' Pamela R. Ubrig, City Clerk I CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903 -1130 O OfHK01H TO: FROM DATE: RE: City of Oshkosh Honorable Mayor and Members of the Common Council Lynn A. Lorenson, May 30, 2014 City Attorne Non - renewal Hearing — Walleye's Pub, LLC Pursuant to the direction of Council, staff has notified the agent for Walleye's Pub LLC that a non - renewal hearing will be held before the Common Council on June 10, 2014. The City ordinance provides: SECTION 4 -5 GRANTING OF LICENSES: HEARING Opportunity shall be given by the Common Council to any person to be heard for or against the granting of any license. Upon the approval of the applicant by the Common Council, the City Clerk shall issue to the applicant a license. Each license shall be numbered in the order in which issued, and shall state the premises for which issued, the date of issuance, the fee paid, and the name of the licensee. (A) Required use of License. Failure to complete the requirements for issuance of a "Class B" or Class "B" license though such license has been granted by the Common Council and /or failure to conduct a license - related business on a premises for which a license shall be issued for any one year period shall be a violation of this chapter punishable by revocation of the license only. City records indicate that Walleye's Pub LLC failed to complete the requirements for issuance of its "Class B" license for the 2013 -2014 license year though the license had been granted by Council the actual license was therefore never issued for the 2013 -14 license year. In addition, City records indicate that Walleye's Pub, LLC as of July 1, 2014 will have failed to conduct a license - related business on the premises for at least one year. 0 Because the current information shows that the one year period will expire on the date for renewal of the license, the license holder may not technically be in violation of the municipal ordinance until July 1, 2014. Because the license holder is not technically in violation of the municipal code until July 1St, staff recommends a conditional granting of the renewal license conditioned upon the licensee obtaining issuance of the 2013 -14 license and conducting license - related business on the premises by June 30, 2014. The 2014 -15 license may be granted if Walleye's Pub LLC meets all license requirements. These requirements include payment of all back taxes and satisfactory completion of inspections, including Fire Department, Inspections Division and the Winnebago County Health Department. Additionally, Walleye's Pub, LLC must obtain the 2013 -14 license and operate the business by the end of the day on June 30, 2014. If all requirements are taken care of by June 30, 2014, then the 2014 -15 license will be granted effective on July 1, 2014. If these conditions are not met, the licensee will then be in violation of the municipal ordinance, the licensee will not have met the conditions for granting of the 2014 -15 license and the license for the 2014 -15 license year will not be granted. PROCEDURE ON LIQUOR LICENSE HEARING NONRENEWAL June 10, 2014 ANNOUNCEMENT OF LICENSE HEARING APPEARANCES (Licensee, any representative of Licensee) EXPLANATION OF PROCEDURE O,rHKO,f H ON THE WATER STATEMENT BY THE CITY CLERK REGARDING REASONS FOR NONRENEWAL RECOMMENDATION, NOTICE TO LICENSEE AS REQUIRED BY STATUTE SENT (Licensee may ask questions and questions by the Council) 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 • Motion to approve • "yes" vote approves license; "no" vote does not approve renewal license • To non -renew the license • Motion to approve • "yes" vote approves license; "no" vote does not approve renewal license • 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 as outlined • "yes" vote approves license as amended; "no" vote does not approve renewal license • Go Through the Findings of Fact and Conclusions of Law, make any changes necessary — can be done by consensus • 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, 2014 RETURN TO COUNCIL AGENDA Procedure on License Hearings June 10, 2014 Page 3 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 Walleye's Pub LLC, Agent Paul E. Ulrich for premises located at 458 W. 6th Avenue, Oshkosh, Wisconsin. The procedure for this hearing is as follows. The City Clerk will review the records pertaining to this property and the Notice to the Licensee. Thereafter the Licensee, or its representative, will be allowed to ask questions. The Council will then be given the opportunity to ask any questions clarifying any information that has been presented. 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. CITY HALL 215 Church Avenue P.O. Box 1130 City Oshkosh, 54903 -1130 City ®f Oshkosh Wm AL' I TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorne X* DATE: June 5, 2014 RE: Non - renewal Hearing — Walleye's Pub, LLC Attached to this memorandum is an outline for the procedure on the liquor license non - renewal hearing and two draft versions 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 Walleye's Pub, LLC. Also attached is a draft motion to amend the Resolution granting the license to Walleye's Pub, LLC should the Council determine to conditionally grant the license. The first set of Findings and Conclusions of Law is based upon the Notice of Non - Renewal that was sent to Walleye's Pub, LLC and would apply if there is evidence presented at the hearing that Walleye's has in fact been closed for longer than a one - year period. The second set of Findings and Conclusions of Law would apply if it is determined that Walleye's Pub, LLC has been closed since July 1, 2013, as appears to be currently indicated by the city's records. In this case, staff recommends a conditional renewal of the license which is reflected in the proposed findings. The Council would then make findings based upon this second set of proposed findings, with any modifications that the Council may determine to be appropriate, and would then move to amend the resolution granting the license to Walleye's Pub LLC to include the conditions as determined by the Council. The attached Findings of Fact and Conclusions of Law and proposed motion are drafts only and may be modified by the Council as evidence may indicate. They are simply intended to provide the Council with an initial framework from which to proceed. 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 Walleye's Pub, LLC has failed to conduct a license - related business upon the premises located at 458 W. 6th Avenue in the City of Oshkosh for one year or longer. BEFORE THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN In re the License of Walleye's Pub, LLC 458 W. 6th Avenue, Oshkosh, Wisconsin Paul E. Ulrich, Agent/Member, 405 E. Larrabee Street, Omro, WI 54963 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 10, 2014. Findings of Fact/ Conclusions of Law: 1. That the Licensee, Walleye's Pub, LLC and its agent/member Paul E. Ullrich were notified in writing of the municipality's intention not to renew the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued for Walleye's Pub, LLC, 458 W. 6th Avenue, Oshkosh, Wisconsin and provided an opportunity for hearing before the Common Council for the City of Oshkosh on June 10, 2014 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 appeared in person before the Council on behalf of Walleye's Pub, LLC. 2. That Walleye's Pub, LLC 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. C) That the City of Oshkosh has adopted the following provision pursuant to the authority granted under section 125.10 Wis. Stats.: SECTION GRANTING WEARING Opportunity shall be given by the Common Council to any person to be heard for or against the granting of any license. Upon the approval of the applicant by the Common Council, the City Clerk shall issue to the applicant a license. Each license shall be numbered in the order in which issued, and shall state the premises for which issued, the date of issuance, the fee paid, and the name of the licensee. (A) Required use of License. Failure to complete the requirements for issuance of a "Class B" or Class "B" license though such license has been granted by the Common Council and /or failure to conduct a license - related business on a premises for which a license shall be issued for any one year period shall be a violation of this chapter punishable by revocation of the license only. 3. That Walleye's Pub, LLC has failed to conduct a license - related business on the premises for which the license was issued for more than one (1) year prior to today's date in violation of the provisions of section 4 -5(A) of the 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 Walleye's Pub, LLC is not renewed and the City Clerk is directed to give notice of the nonrenewal to the Licensee. Dated this 10th day of June, 2014 Mayor Burk Tower DRAFT VERSION of FINDINGS of FACT and CONCLUSIONS of LAW This draft of Findings of Fact and Conclusions of Law would be applicable if the Council determines that the evidence at the hearing supports the conclusion that Walleye's Pub, LLC will, as of July 1, 2014, have failed to conduct a license - related business upon the premises located at 458 W. 6t" Avenue in the City of Oshkosh for one year or longer. BEFORE THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN In re the License of Walleye's Pub, LLC 458 W. 6th Avenue, Oshkosh, Wisconsin Paul E. Ulrich, Agent/Member, 405 E. Larrabee Street, Omro, WI 54963 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 10, 2014. Findings of Fact/ Conclusions of Law: That the Licensee, Walleye's Pub, LLC and its agent/member Paul E. Ullrich were notified in writing of the municipality's intention not to renew the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued for Walleye's Pub, LLC, 458 W. 6th Avenue, Oshkosh, Wisconsin and provided an opportunity for hearing before the Common Council for the City of Oshkosh on June 10, 2014 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 appeared in person before the Council on behalf of Walleye's Pub, LLC. 2. That as of July 1, 2014, Walleye's Pub, LLC will 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. C) That the City of Oshkosh has adopted the following provision pursuant to the authority granted under section 125.10 Wis. Stats.: SECTION 4 -5 GRANTING OF LICENSES: HEARING Opportunity shall be given by the Common Council to any person to be heard for or against the granting of any license. Upon the approval of the applicant by the Common Council, the City Clerk shall issue to the applicant a license. Each license shall be numbered in the order in which issued, and shall state the premises for which issued, the date of issuance, the fee paid, and the name of the licensee. (A) Required use of License. Failure to complete the requirements for issuance of a "Class B" or Class "B" license though such license has been granted by the Common Council and /or failure to conduct a license - related business on a premises for which a license shall be issued for any one year period shall be a violation of this chapter punishable by revocation of the license only. 3. That as of July 1, 2014, Walleye's Pub, LLC will have failed to conduct a license - related business on the premises for which the license was issued for more than one (1) year in violation of the provisions of section 4 -5(A) of the Oshkosh Municipal Code. Based upon these findings of fact and conclusions of law the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License the Common Council hereby determines to conditionally grant to Walleye's Pub, LLC a combination "Class B" license for property located at 458 W. 6th Avenue, Oshkosh, Wisconsin with the following conditions: • All license requirements for the issuance of the 2013 -14 license year are met including those provisions of section 4 -6 of the City of Oshkosh Municipal Code • That the premises located at 458 W. 6th Avenue complies with all code requirements for occupancy and operation as required by the Oshkosh Fire Department, Oshkosh Inspections Division and Winnebago County Health Department • That Walleye's Pub, LLC obtains issuance of the 2013 -14 license and conducts license - related business on the premises by June 30, 2014 That if any condition specified above shall that the combination "Class B" license shall approval of the Council required and th directed to notify the agent that the licen: 2014. Dated this 10th day of June, 2014 Mayor Burk Tower not be met or satisfactorily completed, not be granted without further action or City Clerk shall be authorized and e has not been granted as of July 1, I move to amend the Resolution 14- to require the following conditions be met prior to granting and issuance of the "Class B" license to Walleye's Pub, LLC: • That all license requirements for the issuance of the 2013 -14 license year are met including those provisions of section 4 -6 of the City of Oshkosh Municipal Code • That the premises located at 458 W. 6t" Avenue complies with all code requirements for occupancy and operation as required by the Oshkosh Fire Department, Oshkosh Inspections Division and Winnebago County Health Department • That Walleye's Pub, LLC obtains issuance of the 2013 -14 license and conducts license - related business on the premises by June 30, 2014 • That if any condition specified above shall not be met or satisfactorily completed, that the combination "Class B" license shall not be granted without further action or approval of the Council required and the City Clerk shall be authorized and directed to notify the agent that the license has not been granted as of July 1, 2014.