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HomeMy WebLinkAbout31. 19-349 JUNE 11, 2019 19-349 RESOLUTION (CARRIED 6-0 LOST LAID OVER WITHDRAWN ) AS AMENDED PURPOSE: APPROVE COMBINATION "CLASS B" LICENSE /AMY MATSCHI/MATSCHI'S BAR/668 N. MAIN STREET INITIATED BY: CITY COUNCIL WHEREAS, an application and all required documentation for renewal of the combination "class B" license for Amy Matschi 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 (2019-2020) 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: Amy Matschi for premises located at 668 N. Main Street RESOLUTION CONT'D This determination is based upon the following findings of the Council: • There is an accepted offer for the property that is contingent upon maintenance of the liquor license • The applicant/Licensee testified that she has an offer for purchase of the property from a person/business who will purchase and redevelop the property into a use requiring a liquor license. • That Ms. Matschi testified that there is an interested purchaser for the property and intend to purchase and redevelop the property into a use requiring a liquor license • Closing on the property is scheduled for July 1,2019 • Redevelopment is expected to occur by June 30, 2020 • That there is sufficient evidence that redevelopment will occur For the reason(s) stated, waiver of Section 4-6 of the City of Oshkosh Municipal Code requiring use of a liquor license is appropriate. *Bold &Italics indicate amendment City fi Oshkosh TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: June 6, 2019 RE: Renewal-Amy Matschi d/b/a Matschi's Bar, 668 N. Main Street At its May 28, 2019 meeting, the Common Council directed staff to prepare documents for a non-renewal hearing for Amy Matschi d/b/a Matschi's Bar, for premises located at 668 N. Main Street in the City of Oshkosh. BACKGROUND Attached to this memorandum is a copy of the Notice of Intention to Not Renew that has been served on Amy Matschi and scheduling a hearing before the Council on June 11, 2019. The basis for nonrenewal is the failure to comply with city ordinance. State statutes provide that a municipality may refuse to renew a license for any of a specific set of causes listed within the statute. In this case, the license for this premise was identified for review based upon failure to complete the requirements for license issuance for the prior license year (2018-2019) and failure to use the license for at least one (1) consecutive thirty (30) day period during any consecutive twelve (12) month period in violation of section 4-6 of the City of Oshkosh Municipal Code, as follows: 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). PROCEDURE By statute, a municipality considering nonrenewal of a liquor license must provide notice of the intention not to renew and provide the licensee with an opportunity for a hearing. The notice is required to state the reasons for the nonrenewal. As noted above, a notice of nonrenewal was prepared and served upon Amy Matschi pursuant to the direction of Council at its May 28, 2019 meeting. The notice states the reasons for nonrenewal. The Council is now required to provide a hearing on the nonrenewal in compliance with the statute. If the licensee fails to appear at the hearing, the Council may take the allegations of the notice as true and if the Council determines that the allegations are sufficient, may nonrenew the license. If the licensee appears and denies the allegations contained in the notice, the City and the licensee may call witnesses, cross examine witnesses and be represented by counsel. In this case, staff anticipates only the testimony of Deputy City Clerk Angela Joeckel who will testify as to the facts alleged in the Notice of Intention to Not Renew the License. The license holder may then cross examine Ms.Joeckel and may present witnesses on her own behalf. Upon the conclusion of the presentation of testimony, the Council will be asked to make a determination as to the issuance or nonrenewal of the license. If the license is renewed, Council will be asked to make findings as to the reasons to waive the requirements of Section 4-6 of the City of Oshkosh Municipal Code for this premises for the current license year (2019-2020). If the license is not renewed, the Council will proceed to make findings and determinations relative to the nonrenewal. Attached to this memorandum are an outline for conducting the hearing as well as draft Findings and Determinations based upon the Notice of Intent to Not Renew. The Findings and Determinations may be amended by consensus of the Council but should be adopted by formal vote when all amendments are completed. If any member of the Council has any questions about the hearing process please contact either City Clerk Pamela Ubrig or me and we will be happy to answer those questions. Re ectfully Submitted, L A. Lorenson City Attorney City Hall,215 Church Avenue P.O.Box 1 130 Oshkosh,WI 54903-1 130 920.236.5000 http://www.ci.oshkosh.wi.us City of Oshkosh NOTICE OF INTENTION TO NOT RENEW ALCOHOL BEVERAGE LICENSE In re the Renewal of the License of: Amy Matschi 1378 Lake Breeze, Oshkosh,WI 54904 d/b/a Matschi's Bar, located at 668 N.Main Street, Oshkosh,WI 54901 You are hereby notified that the Common Council for the City of Oshkosh has declared its intention to not renew the license issued to Amy Matschi for premises located at 668 N. Main Street, Oshkosh,Wisconsin for the following reasons: 1. That Amy Matschi is the current the license holder of the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued for premises located at 668 N. Main Street in the City of Oshkosh, Wisconsin commonly known as Matschi's Bar. 2. That 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. 1 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 4-6 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). 2 D) That Amy Matschi failed to complete the requirements for issuance of a license for the 2018-2019 license year even though such license was granted by the Council. No license was issued by the City Clerk's office for the 2018-2019 license year to Amy Matschi for the premises located at 668 N. Main Street. E) That Amy Matschi has failed to conduct a license-related business on the premises for which the license was granted, since July 2017 and has failed to conduct license-related business on the premises for which the license was granted for at least one (1) consecutive thirty (30) day period during the past consecutive twelve (12) month period. F) That Amy Matschi is in violation of the provisions of section 4-6 of the Oshkosh Municipal Code related to the non-issuance and non-use of a liquor license and therefore a renewal license should not issue. The Common Council for the City of Oshkosh will hold a hearing on this matter on June 11, 2019 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 'day of June, 2019. Pamela R. Ubrig, City Jerk r19'd__044-K4M6LIC-1 BEFORE THE COMMON COUNCIL CITY OF OSHKOSH PROCEDURE FOR LIQUOR LICENSE NONRENEWAL HEARING ANNOUNCEMENT OF LICENSE HEARING APPEARANCES (Licensee, any representative of Licensee) EXPLANATION OF PROCEDURE (See explanation on separate page) TESTIMONY BY THE DEPUTY CITY CLERK REGARDING NOTICE OF INTENTION TO NOT RENEW,FACTS REGARDING LICENSE USE AND ANY COMMUNICATION FROM LICENSEE (Clerk will swear in. Licensee may ask questions and questions by the Council) TESTIMONY OF LICENSEE/REPRESENTATIVE (Clerk will swear in any witnesses. Testimony and questions by Council) ACCEPT ANY DOCUMENTS THAT HAVE BEEN PRESENTED INTO THE RECORD OF THE HEARING (Notice of Intention to Not Renew and any items presented by licensee) FINAL STATEMENT BY THE LICENSEE/REPRESENTATIVE HEARING DECLARED CLOSED COUNCIL MEMBER DELIBERATION Motions and roll call votes to renew/nonrenew license • To renew the license o Motion to approve the Resolution o If any member of council believes that the license should be approved, that member or members as may be the case, should make a motion to amend the Resolution to include the specific reason(s) that the license should be granted and the amendments should be voted upon separately o Vote on the Resolution as amended with the appropriate findings - "yes" vote approves license; "no" vote does not approve renewal license • To non-renew the license o Motion to approve the Resolution o "yes" vote approves license; "no" vote does not approve renewal license o If the license is not approved, then direct the City Attorney to assist the Council going 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 DIRECTIONS TO CLERK-Notify the applicant of the Council's determination RETURN TO REGULAR COUNCIL AGENDA The purpose of this meeting is to conduct a hearing per Section 125.12 of the Wisconsin Statutes on the decision to renew or not renew the license of Amy Matschi, for premises located at 668 N. Main Street, Oshkosh, Wisconsin. The procedure for this hearing will be as follows. The Deputy City Clerk will testify as to the records pertaining to this property and the Notice to the Licensee for this Hearing. Thereafter the Licensee, or her 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 by the Deputy City Clerk. The Licensee will then be given an opportunity to present any evidence that 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 of the Licensee and any witnesses. 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 presented at this hearing. DRAFT 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 Not Renew and would be applicable if the Council determines that the evidence at the hearing supports the conclusion that Amy Matschi is in violation of the provisions of section 4-6 of the Oshkosh Municipal Code and therefore a renewal license should not issue. BEFORE THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WINNEBAGO COUNTY,WISCONSIN FINDINGS OF FACT AND CONCLUSIONS OF LAW In re the Renewal of the License of : Amy Matschi 1378 Lake Breeze, Oshkosh, WI 54904 d/b/a Matschi's Bar, located at 668 N.Main Street, Oshkosh, WI 54901 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 11, 2019. Findings of Fact/Conclusions of Law: 1. That the Licensee, Amy Matschi was notified in writing of the municipality's intention not to renew the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued for premises located at 668 N. Main Street, Oshkosh,Wisconsin and provided an opportunity for hearing before the Common Council for the City of Oshkosh on June 11, 2019 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 licensee, Amy Matschi appeared in person before the Council or that the licensee Amy Matschi appeared by counsel, Attorney or that the licensee Amy Matschi appeared by representative and the following witnesses appeared on behalf of the licensee: 2. That Amy Matschi 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 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). D) That Amy Matschi failed to complete the requirements for issuance of a license for the 2018-2019 license year even though such license was granted by the Council. No license was issued by the City Clerk's office for the 2018-2019 license year to Amy Matschi for the premises located at 668 N. Main Street. E) That Amy Matschi has failed to conduct a license-related business on the premises for which the license was granted since July 2017 and has failed to conduct license-related business on the premises for which the license was granted for at least one (1) consecutive thirty (30) day period during the past consecutive twelve (12) month period. F) That Amy Matschi is in violation of the provisions of section 4-6 of the Oshkosh Municipal Code related to the non-issuance and non-use of a liquor license and therefore a renewal license should not issue. Based upon these Findings of Fact and Conclusions of Law the Combination "Class B" Fermented Malt Beverage & Intoxicating Liquor License issued to Amy Matschi is not renewed and the City Clerk is directed to give notice of the nonrenewal to the Licensee. Dated this 11th day of June, 2019 Mayor Lori Palmeri