HomeMy WebLinkAbout17. 17-349 JULY 11, 2017 17-349 RESOLUTION
(CARRIED LOST 0-7 LAID OVER WITHDRAWN )
PURPOSE: APPROVE OPERATOR LICENSE — COLE MUELLER
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:
OPERATOR (BARTENDER) LICENSE
(EXPIRES: JUNE 30, 2019)
Mueller, Cole W S, 3758 Summerset Way, #7
TO: Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: July 6, 2017
RE: Resolution to Issue Operator's License to Cole Wylie Steven Mueller
At its July 11, 2017 meeting, the Common Council will consider a resolution to grant/issue an
operator's license to Cole Wylie Steven Mueller. Chief Dean Smith of the Oshkosh Police
Department has recommended that the Council deny Mr. Mueller's application for an operator's
license.
BACKGROUND
Chief Smith is recommending denial of an operator's license to applicant Cole Wylie Steven
Mueller based upon Mr. Mueller's arrest and conviction for operating a motor vehicle with a
prohibited blood alcohol concentration on December 20, 2016 and upon an arrest on January 3,
2017 also for operating a motor vehicle while under the influence of an intoxicant or other drug.
The second offense is currently pending in circuit court.
No person has a fundamental legal right to receive an alcohol beverage license. A municipality
may refuse to issue a license so long as the municipality acts reasonably, uses good judgment,
and does not discriminate.
Section 125.17 of the Wisconsin Statutes provides that a municipal governing body shall issue
an operator's license to any applicant who is qualified under Section 125.04. Section 125.04(5)
provides, as relevant to this particular applicant, that licenses and permits related to alcohol
beverages may be issued only to natural persons who meet all of the requirements of that section
including that the person not have an arrest or conviction record subject to certain provisions of
Chapter 111 of the Wisconsin Statutes. Of relevance in this case, the provisions of Chapter 111
provide that the Council may not discriminate against an applicant for a license on the basis of
an arrest or conviction record unless the circumstances of the arrest or conviction substantially
relate to the circumstances of the particular licensed activity, in this case alcohol beverage
City Hall, 215 Church Avenue P.O. Box 1 130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
service. In summary, the Council must determine whether the circumstances of the arrest and
conviction noted by Chief Smith substantially relate to the operator's license sought to be
obtained and whether those circumstances, if substantially related, support the non -issuance of
the requested operator's license.
"Substantially related" is not defined within the statute, however, the City Attorney's office has
previously provided information pertaining to this determination for staff that may assist the
Council with making this determination. A copy of that information is attached to this
memorandum.
PROCEDURE
Unlike revocation and non -renewal of licenses, the statutes do not prescribe a specific procedure
for non -issuance of a license. The statute simply requires the Council to notify an applicant of
its decision not to issue the license and the reasons for the decision.
Staff has notified the applicant that the matter will come before Council. The applicant has
previously provided a letter explaining his request and we anticipate the applicant appearing
to address the Council. Although this is a resolution and typically we would ask for citizen
comments first, we are recommending in this case that the Council ask the Chief to address his
recommendation for denial of the license first and then allow the applicant to speak as it may
make more sense to understand the reasons for the recommendation first then allow the
applicant to address those reasons.
Attached to this memorandum are an outline for this particular item as well as a draft Notice of
Non -Issuance. The Notice would only be required if the Council determines not to issue the
license and may be amended by consensus of the Council but should be adopted by formal vote
when completed.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
If any member of the Council has any questions about this process please contact either City
Clerk Pamela Ubrig or me and we will be happy to answer those questions.
Res ectfully Submitted,
Lynn A. Lorenson
City Attorney
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
Licensed Activities — Substantially Related Offenses
We currently review applications for liquor licenses, bartender/operator licenses, and
taxicab drivers licenses. Applications are made to the City Clerk's office and those
applications are then forwarded to the Police Department for review. For applications
for a taxicab drivers license and bartenders licenses, a check is done of the circuit court
records for violations/convictions. For Liquor Licenses, a check is done of the agent's
records through the circuit court and a check for any calls for response to the particular
premises is completed through the Police RMS records.
If no violations are found, the application is approved and returned to the City Clerk's
Office. If violations are found, those violations are then reviewed to determine whether
the violations are substantially related to the licensed activity and whether they are of
such quality/quantity to warrant recommending denial of the license.
A substantial relationship requires a conclusion that a specific job poses an
unacceptably high risk of criminal activity / recidivism for a particular employee. The
mere possibility that someone may reoffend does not create a substantial relationship,
but taking into consideration all the factors is there a particular or greater -than -usual
opportunity for re -offense.
Wisconsin Statutes prohibit discrimination in employment or licensing based upon an
arrest or conviction record unless the circumstances of the charge substantially relate to
the circumstances of the particular job or licensed activity. See §§ 111.321, 111.322
and 111.335 Wis. Stats.
For guidance as to the appropriate considerations, we have looked at the standards
used by the State of Wisconsin and specified in the Wisconsin Administrative Code for
Health and Family. While that code is written for the purpose of conducting caregiver
background checks, they are nonetheless good guidance as to appropriate
considerations. Beginning with that code, we can develop and modify the criteria as
appropriate for the particular licensed activity being reviewed. The process is
essentially the same for every type of licensed activity that we are responsible to review
applications for.
In relation to the licensed activity we would generally consider:
(a) The nature and scope of any public contact.
(b) The nature and scope of any discretionary authority and degree of
independence in judgment relating to decisions or actions.
(c) The opportunity presented for committing similar offenses.
(d) The amount and type of supervision normally received in the type of
activity which the license is applied for.
In relation to the offense, we would generally consider the following:
(a) Whether intent is an element of the offense.
(b) Whether the elements or circumstances of the offense are substantially
related to the licensed activities.
(c) Is there a pattern of offenses?
(d) Is there any cause for concern for vulnerable individuals who may come
into contact with the license applicant in the course of the licensed activity?
(e) Whether the offense involved violence or a threat of harm.
(f) Whether the offense is of a sexual nature.
In relation to the person, we would generally consider the following:
(a) The number and type of offenses the person committed or for which the
person has been convicted.
(b) The length of time between convictions or offenses, and the date of
application for licensing.
(c) The person's participation in or completion of pertinent programs of a
rehabilitative nature, if known.
(d) The person's probation or parole status.
(e) The age of the person on the date of conviction or dates of conviction.
It is important to remember that these are the general considerations we would review and
that not all of these considerations will be present in each instance. Because each
situation is unique, other considerations may come into play or the particular
considerations may carry more or less weight in a given circumstance. For example, a
single conviction more than five years prior to the date of application may not be
considered significant unless it is part of a continued pattern of offenses, or unless it is an
offense of such a nature that even though more than five years have passed since the
conviction there remain significant questions as to whether it is appropriate to license the
individual.
City of Oshkosh
Police Department
420 Jackson Street
Oshkosh, WI 54901
Tel: 920-236-5720
Fax: 920-236-5087
dsm ith&i.oshkosh.wi. us
www.oshkoshpd.com
PROFESSIONALISM • PRIDE • INTEGRITY • TEAMWORK Dean Smith
Chief of Police
MEMORANDUM
TO: Pam Ubrig
City Clerk
FROM: Dean M. Smith
Chief of Police
DATE: June 7, 2017
REF: Cole Mueller — Denial of Alcohol Operator License
After careful consideration, I have denied approval of the Alcohol Operators License for
Cole Mueller for the following reasons.
1. Mr. Mueller was charged with Operating while intoxicated on December 20,
2016 after being involved in a motor vehicle crash and was convicted on
March 8, 2017 of operating with a prohibited blood alcohol content greater
than .08.
2. January 3, 2017, 14 days after the above charge, Mr. Mueller was charged
with Operating While Intoxicated, 2nd Offense and Operating with a
Restricted Controlled Substance, 2nd Offense. His initial court appearance on
these charges is set for June 21, 2017.
It should be noted that both of these incidents have occurred within the last 6
months and Mr. Mueller has not reached the legal age of drinking which is 21. His
actions demonstrate a pattern of behavior that clearly shows a disregard for the law.
The Mission of the Oshkosh Police Department is to promote public safety and to enhance the
quality of life in our community through innovative policing and community partnerships
To whom it may concern,
My name is Cole Mueller. Recently, the police chief of the Oshkosh Police Department has
denied my request to acquire a bartending license. It was denied on the grounds of being under 21, one
count of an OWI, and one count of OWI still being determined. I'd like to ask for an appeal for the police
chief to reconsider.
I request to acquire a bartending license so I am able to continue employment at Pantry 76- BP,
located on the intersection of Jackson and Snell in Oshkosh. I am currently a college student, attending
UW -Oshkosh and I have acquired this job to pay my legal fines and student loans. I'd like to continue my
education however, I need this form of income to do so.
recently moved from my father's house in Winneconne, WI to my mother's house in Oshkosh,
WI so that I could locate a place of employment to pay for my fines. This job is a six -minute walk from
my mother's house. Due to my one count of OWI and one pending count, I am unable to retain a drivers'
license to commute to another job that does not require a bartending license. This job is currently, the
best opportunity.
In conclusion, Pantry 76 BP is a six -minute walk from my place of residence which makes it
convenient due to my current situation. I wish to continue my employment at the Pantry 76 BP. I do not
wish to cause any trouble in this community. I am very alert of my surroundings in case any suspicious
activity may arise. Please consider my request to acquire my bartending license. Please contact me at
920-410-2937.
Thank you for your time and understanding.
Sincerely,
C',
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Cole Mueller
RSC -1 -.
J `2017
BEFORE THE COMMON COUNCIL
CITY OF OSHKOSH
PROCEDURE ON LIQUOR LICENSE
CONSIDERATION OF RECOMMENDATION TO REFUSE TO ISSUE LICENSE —
COLE WYLIE STEVEN MUELLER
July Il, 2017
CALL THE RESOLUTION
EXPLANATION OF PROCEDURE (See explanation on separate page)
STATEMENT BY CHIEF SMITH
(Council may ask questions)
STATEMENT OF LICENSEE/REPRESENTATIVE (ANY OTHER CITIZEN COMMENTS)
(Council may ask questions)
CONSIDERATION OF THE RESOLUTION / COUNCIL MEMBER DISCUSSION AND VOTE
To grant the license
o Motion to approve, Second
o "yes" vote issues license; "no" vote does not approve granting/issuance of the
license
• To not grant the license
o Motion to approve, Second
o "yes" vote issues license; "no" vote does not approve granting/issuance of the
license
o If the license is not granted/issued, then go through Notice of Determination to
Not Issue License, make any changes as necessary — can be done by consensus
o Motion to approve Notice, Second
o Vote on Notice
DIRECTIONS TO CLERK
Notify the applicant of the Council's determination
RETURN TO COUNCIL AGENDA
The purpose of this resolution is to determine whether an Operator's License should be
issued to Cole Wylie Steven Mueller under Chapter 125 of the Wisconsin Statutes. The Council has
a copy of Mr. Mueller's application in their agenda as well as a recommendation that the Council not
issue the license from Chief Dean Smith of the Oshkosh Police Department. The Council also has a
request from Mr. Mueller to issue the license despite the Chief s recommendation. The Council also
has a memorandum from City Attorney Lorenson regarding the procedure and law governing the
issuance of licenses.
For purposes of this Resolution I'm going to ask Chief Smith to first explain to the Council
the reasons that he is recommending denial of the license and then give the applicant the opportunity
to present any information to the Council that he wishes us to consider in addition to the letter he has
already submitted. The Council may ask questions of the Chief and the Applicant.
After each side has had the opportunity to address the Council and answer questions, we will
need a motion and a second to approve the Resolution to allow the Council to discuss the issue and
take a vote on whether to issue the license or not. The Council will base its decisions only on the
information that has been presented to us with the resolution and any additional information
presented tonight. If the Council determines not to issue the license we will need to give our reasons
and so we will go through the draft Notice provided by the City Attorney based upon the Police
Chief's recommendation and give further direction to the Clerk. If the Council determines to issue
the license no further actions will be necessary.
DRAFT NOTICE OF NOW ISSUANCE OPERATOR'S LICENSE
This draft Notice of Non -Issuance of Operator's License is based upon the
Recommendation to not Issue an Operator's License to Cole Wylie Steven Mueller from
Oshkosh Police Chief Dean Smith and would be applicable if the Council determines not
to issue the license to Mr. Mueller.
NOTICE OF NON -ISSUANCE OF OPERATOR'S LICENSE
In re the Issuance of an Operator's License to:
Cole Wylie Steven Mueller
This matter coming before the Council on July 11, 2017.
Findings of Fact/ Conclusions of Law:
1. That the Applicant, Cole Wylie Steven Mueller was notified verbally and in writing
of the municipality's intention not to issue an operator's license to him pursuant
to the recommendation of Chief Dean Smith of the Oshkosh Police Department
and provided an opportunity to address the Common Council for the City of
Oshkosh when the Council considered the application on July 11, 2017 at 6:00
p.m. or as soon thereafter as the matter could be heard, all pursuant to the
provisions of Section 125.12 of the Wisconsin Statutes.
That Chief Dean Smith of the Oshkosh Police Department explained his
recommendation to deny the issuance of an operator's license to Mr. Mueller.
That Cole Wylie Steven Mueller appeared in person before the Council and
also appeared and spoke on
behalf of Mr. Mueller.
2. That after careful consideration the Common Council has determined that Mr. Cole
Wylie Steven Mueller not be issued an operator's license under Chapter 125 of the
Wisconsin Statutes for the following reasons:
Mr. Mueller is not qualified for an operator's license due to a pattern of behavior
showing a disregard for the law, including an arrest in December 2016 and
subsequent on conviction March 8, 2017, for operating a motor vehicle with a
prohibited blood alcohol content greater than .08 and an arrest in January 2017 for
Operating while under the influence of an intoxicant or other drug which is currently
pending in court.
The circumstances of the two incidents are substantially related to the licensed
activity in that the license sought is related to the service of alcohol beverages; the
timing of the two previous incidents indicates a pattern of offenses pertaining to
alcohol and/or drugs and a disregard for the law; the licensed activity provides a
high degree of independence, ability to work unsupervised and discretionary
judgment in relation to access to and service of alcoholic beverages and an
opportunity for committing similar offenses or other related offenses; this pattern is
within 6 months of the date of application for the license; the applicant was under
the legal drinking age at the time the offenses were committed and is still under the
legal drinking age.
The Operator's License Application of Mr. Cole Wylie Steven Mueller is denied and the
City Clerk is directed to give notice of this Decision to the Applicant.
Dated this 11th day of July, 2017
Mayor Steve Cummings