Buena Vista Hall, LLC v. City of Milwaukee

• Decision Date: 11 September 2018
• Docket Number: Appeal No. 2017AP1943
• Citation: 384 Wis.2d 415,2018 WI App 66,921 N.W.2d 528 (Table)
• Parties: BUENA VISTA HALL, LLC, Petitioner-Appellant, v. CITY OF MILWAUKEE and City of Milwaukee License Committee, Respondents-Respondents.
• Court: Wisconsin Court of Appeals

384 Wis.2d 415
921 N.W.2d 528 (Table)
2018 WI App 66

BUENA VISTA HALL, LLC, Petitioner-Appellant,
v.
CITY OF MILWAUKEE and City of Milwaukee License Committee, Respondents-Respondents.

Appeal No. 2017AP1943

Court of Appeals of Wisconsin.

DATED AND FILED September 11, 2018

PER CURIAM.

¶ 1 Upon a recommendation from the City of Milwaukee Licenses Committee (Licenses Committee), the City of Milwaukee Common Council (Common Council) denied an application for a liquor license that had been submitted by Buena Vista Hall, LLC (Buena Vista). Buena Vista sought judicial review of the Common Council’s decision, which the circuit court affirmed. On appeal, Buena Vista argues the circuit court erred by: (1) concluding Buena Vista was not entitled to a writ of mandamus; (2) denying Buena Vista’s motion to expand the scope of review; and (3) affirming the Common Council’s decision on certiorari review. We reject each of these arguments and affirm.

BACKGROUND

¶ 2 Buena Vista is a Wisconsin limited liability corporation. Elias Vidrio is its registered agent. In 2015, Buena Vista purchased a property located at 3000 South 13th Street in Milwaukee (the Property). Buena Vista asserts that, prior to its purchase, the Property had served as a "tavern and assembly hall" for over 100 years, and previous owners had successfully obtained "Class B-type" liquor licenses.¹ According to Buena Vista, the individual who owned the Property immediately before Buena Vista operated the premises "relatively trouble-free," but the individual who owned the Property before that time "had his license revoked due to poor operation, unruly customers, and criminal activities, including drug dealing."

¶ 3 Buena Vista contends that, after purchasing the Property, it performed extensive updates and repairs, the cost of which exceeded $100,000. In February 2016, Buena Vista submitted an application to the City of Milwaukee Board of Zoning Appeals to use the Property as an assembly hall. The Board approved that use, and Buena Vista applied for a Class B liquor license.

¶ 4 On September 6, 2016, the Licenses Committee held a public hearing regarding Buena Vista’s liquor license application. The five-member committee was chaired by alderman Anthony Zielinski, who represents the aldermanic district where the Property is located.

¶ 5 During the September 6 hearing, three witnesses spoke in favor of Buena Vista’s liquor license application: area business owners Alex Ferreira and William Horst; and Elias Vidrio’s daughter, Jennifer Vidrio. Three witnesses also spoke against Buena Vista’s application: Robert Montemayor, the owner of the Monterrey Market, a grocery store located next to the Property; and Monterrey Market employees Sergio Montalgo and Jorge Meraz. Montemayor opposed the application based on concerns about insufficient parking in the area. He also noted that, when the Property had previously been used as a tavern and assembly hall, its customers had damaged his store and left garbage in his parking lot. Montalgo—who also lived in the neighborhood—similarly voiced concerns about parking, street congestion, and past conduct of the Property’s patrons. Meraz, who owned a rental property in the neighborhood, also opposed the application due to concerns about parking and patrons leaving garbage on his property.

¶ 6 Upon questioning by Buena Vista’s attorney, Montemayor admitted that he had made a $200 donation to Zielinski’s campaign in 2012 and that his wife had donated $250 to Zielinski’s campaign in 2013. Buena Vista’s attorney also asserted during the hearing that campaign finance reports showed Montemayor’s wife and two of his employees had donated a total of $1388 to Zielinski’s campaign since 2012.²

¶ 7 Buena Vista subsequently requested that Zielinski recuse himself from voting on whether to recommend that the Common Council approve Buena Vista’s liquor license application. Zielinski declined to recuse himself. He instead moved to recommend the denial of Buena Vista’s application, based on the concentration of liquor licenses in the neighborhood surrounding the Property and "neighborhood ... objections." Two members of the Licenses Committee abstained from voting. The three remaining members—including Zielinski—voted to recommend denial of Buena Vista’s application. The Common Council later denied the application by a unanimous vote.³ Zielinski was one of the fifteen Common Council members who voted to deny the application.

¶ 8 Buena Vista then filed a petition for judicial review of the Common Council’s decision and for a writ of mandamus compelling the Common Council to issue it a liquor license. As relevant here, Buena Vista argued that Zielinski was biased against it, and the Licenses Committee’s decision was therefore arbitrary, capricious, and contrary to law. Buena Vista also moved the circuit court to expand the scope of review in order to permit Buena Vista to "take testimony, depositions and written interrogatories" related to Zielinski’s alleged bias.

¶ 9 Following briefing by the parties, the circuit court issued an order denying Buena Vista’s petition for a writ of mandamus, denying Buena Vista’s motion to expand the scope of review, and affirming the Common Council’s decision to deny Buena Vista’s liquor license application. As for the first issue, the court concluded a writ of mandamus was an "inappropriate" remedy "for a discretionary action like licensing," and, in any event, Buena Vista had failed to "satisfy the requirements for a writ of mandamus." With respect to the second issue, the court concluded Buena Vista was not entitled to expand the scope of review because it had failed to demonstrate a prima facie case of either actual bias or an impermissible risk of bias by Zielinski. Finally, applying certiorari review, the court determined there was no basis for it to overturn the Common Council’s decision to deny Buena Vista’s liquor license application. Buena Vista now appeals.

DISCUSSION

I. Writ of mandamus

¶ 10 Buena Vista contends the circuit court erred by denying its petition for a writ of mandamus. A writ of mandamus is an "extraordinary legal remedy," Lake Bluff Hous. Partners v. City of S. Milwaukee , 197 Wis. 2d 157, 170, 540 N.W.2d 189 (1995), that is used "to compel a public officer to perform a duty of his [or her] office presently due to be performed," State ex rel. Marberry v. Macht , 2003 WI 79, ¶ 27, 262 Wis. 2d 720, 665 N.W.2d 155. A party seeking a writ of mandamus must establish that: (1) the writ is based on a clear, specific legal right that is free from substantial doubt; (2) the duty sought to be enforced is positive and plain; (3) substantial damage will result if the duty is not performed; and (4) no other adequate remedy exists at law. Lake Bluff , 197 Wis. 2d at 170. We will uphold a circuit court’s decision to grant or deny a writ of mandamus absent an erroneous exercise of discretion. Id.⁴

¶ 11 Here, Buena Vista asked the circuit court to issue a writ of mandamus compelling the Common Council to issue Buena Vista a liquor license. We conclude the court did not erroneously exercise its discretion by denying that request. Instead, the court correctly determined that Buena Vista had failed to demonstrate the existence of three of the requirements for issuance of the writ.

¶ 12 First, the circuit court correctly concluded that Buena Vista has no clear legal right to the issuance of a liquor license. Wisconsin courts have long held that a liquor license is a privilege, not a right. Moedern v. McGinnis , 70 Wis. 2d 1056, 1066, 236 N.W.2d 240 (1975). Whether a license should be issued to a particular applicant is a matter of local concern, State ex rel. Smith v. City of Oak Creek , 139 Wis. 2d 788, 801, 407 N.W.2d 901 (1987), and is within the discretion of the licensing authority, Rawn v. City of Superior , 242 Wis. 632, 636-37, 9 N.W.2d 87 (1943). In this case, the Common Council exercised its discretion not to issue Buena Vista a liquor license.

¶ 13 While not disputing that it has no clear legal right to a liquor license, Buena Vista argues it "does have a ... clear legal right to due process and a fair and impartial hearing." It contends that right was violated because Zielinski was biased against it. However, for the reasons explained below, we reject Buena Vista’s argument that Zielinski was biased. See infra ¶¶ 20-30. In addition, even if we concluded the proceedings before the Licenses Committee violated Buena Vista’s right to due process, the remedy would not be a writ of mandamus compelling the Common Council to issue Buena Vista a liquor license. Instead, Buena Vista would simply be entitled to a remand to the Licenses Committee for a new hearing that complied with due process. See Sliwinski v. Board of Fire & Police Comm’rs of Milwaukee , 2006 WI App 27, ¶ 16, 289 Wis. 2d 422, 711 N.W.2d 271 (holding that a remand for a new hearing was the appropriate remedy for a due process violation, rather than a court order compelling the reinstatement of the plaintiff’s employment).

¶ 14 Next, the circuit court correctly concluded that Buena Vista failed to establish the second requirement for mandamus relief—the existence of a positive and plain duty to issue a liquor license. Again, whether to issue a liquor license rests within the discretion of the licensing authority. Rawn , 242 Wis. at 636-37. In this case, the Licenses Committee considered Buena Vista’s liquor license application,...