State ex rel. Smith v. City of Oak Creek

• Decision Date: 26 June 1987
• Docket Number: No. 85-1470,85-1470
• Parties: STATE of Wisconsin, ex rel., Patrick SMITH, d/b/a Rawson Development Group Ltd., Petitioner-Appellant-Petitioner, v. CITY OF OAK CREEK, a Municipal corporation, the Common Council of the City of Oak Creek, and LaVerne C. Gutknecht, City of Oak Creek Clerk, Respondents.
• Court: Wisconsin Supreme Court

Page 901

407 N.W.2d 901

139 Wis.2d 788

STATE of Wisconsin, ex rel., Patrick SMITH, d/b/a Rawson

Development Group Ltd., Petitioner-Appellant-Petitioner, v. CITY OF OAK CREEK, a Municipal corporation, the Common

Council of the City of Oak Creek, and LaVerne C.

Gutknecht, City of Oak Creek Clerk, Respondents.

No. 85-1470.

Supreme Court of Wisconsin.

Argued May 28, 1987.

Decided June 26, 1987.

Thomas P. Lyons, Milwaukee (argued), for petitioner-appellant-petitioner, Michael J. Cohen and Cunningham, Lyons, Steele & Cramer, S.C., Milwaukee, on brief.

Lawrence J. Haskin, City Atty. for Oak Creek.

HEFFERNAN, Chief Justice.

This is a review of a published decision of the court of appeals ¹ which affirmed orders of the circuit court for Milwaukee county, Rudolph T. Randa, circuit judge. The circuit court had dismissed Petitioner Smith's petition for certiorari review of a decision of the Common Council of Oak Creek (Council). We affirm the court of appeals decision.

The Council voted unanimously to deny Smith's request for renewal of an alcoholic beverage license on the ground that he was a habitual law offender. Smith requested a hearing. After hearing, the Council voted not to renew Smith's license. Smith then petitioned for circuit court review of the Council's decision. He also requested a mandatory injunction ordering the Council to renew his license, as well as a temporary injunction pending the circuit court's decision. The circuit court dismissed the writ of certiorari and the motion for a temporary injunction, and denied the motion for a mandatory injunction. The court of appeals affirmed the order of the circuit court. Because the court of appeals correctly concluded that Smith is a habitual law offender and, as such, may not be issued an alcoholic beverage license under sec. 125.04(5), Stats., ² we affirm the decision of the court of appeals.

Smith owns 50 percent of Rawson Development Group Ltd., a corporation organized under this state's laws for the purpose of owning and operating the "On the Border" tavern in the City of Oak Creek. Smith has "owned" the property since February, 1982. For the license periods of 1982-83, 1983-84, and 1984-85, the Council issued Smith a "Class B" liquor license for the tavern.

On May 13, 1985, Smith applied for renewal of his liquor license. The Council's decision not to renew was based on events revealed in Smith's testimony as a witness in the trial of former Milwaukee Police Detective Glenn Lewis. ³ Smith testified under a grant of immunity. In the course of his testimony, Smith admitted that he had used, purchased, and sold illegal drugs on several occasions. He also acknowledged in his testimony that he might lose his alcoholic beverage license because of this conduct.

On June 6, 1985, Smith was notified that his license would not be renewed because of the facts revealed by his testimony in the Lewis case. At Smith's request, a public hearing was held.

Portions of Smith's testimony in the Lewis trial were read at the hearing. Smith also spoke. He admitted that he had used and sold drugs in the past but stressed that he had never done so at the bar. ⁴ He stated that he had never been convicted of any drug-related offenses, and that, after the Lewis trial, he had voluntarily sought rehabilitation treatment for his drug problem. After the hearing, the Council voted not to renew Smith's license because it found he was a habitual law offender.

Smith sought review in the circuit court. He asserted that the Council's decision was arbitrary, capricious, and discriminatory. Smith's writ of certiorari was dismissed by the circuit court. Its order held that the decision of the Common Council to deny Smith a liquor license because he was a habitual law offender "was not arbitrary, capricious and unreasonable." In the course of its oral decision, the court also stated that, even if Smith were not a habitual law offender, his admissions were sufficient grounds for the Council to decide not to grant the license for reasons of "moral turpitude." The court denied the request for a permanent injunction and dismissed the request for a temporary injunction.

The court of appeals affirmed the circuit court's order. It held that a person could be a "habitual law offender" without having been convicted of a crime. Because Smith admitted under oath to illegal acts, the court of appeals said the Council could reasonably conclude that Smith's license should not be renewed.

A determination of whether the phrase, "habitually been a law offender," includes individuals who have not actually been convicted of crimes poses a question of statutory interpretation, a question of law. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673 (1985). This court decides questions of law independently, without deference to the conclusion of the court of appeals or of the circuit court. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984). Nor does this court owe deference to the Oak Creek Common Council's construction of the phrase, "habitually been a law offender."

The primary source for construction of a statute is its language. Northwest General Hospital v. Yee, 115 Wis.2d 59, 63, 339 N.W.2d 583 (1983). Thus, this court must look first to the words of the statute at issue in order to ascertain the meaning of the phrase, "habitually been a law offender," and to determine whether the phrase is ambiguous.

Common and approved usage of words in a statute may be established by definitions contained in a recognized dictionary. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47 (1981). Webster's Third New International Dictionary, in part, defines "habitual" as follows:

"1: of the nature of a habit: according to habit: established by or repeated by force of habit: customary ... 2: doing, practicing, or acting in some manner by force of habit: customarily doing a certain thing...."

The word, "offender," is, in part, defined by the same dictionary as:

"1: one that offends: one that violates a law, rule, or code of conduct: one that commits an offense...."

A person who has "habitually been a law offender," then, is someone who has committed several offenses or has repeatedly violated the law. The phrase, "habitually been a law offender," does not require that there has been a trial or conviction for each or any offense. What is required is that the offenses were committed, that the law has been violated, and that the fact of such violations can be shown.

Further support for this construction of this phrase is evident from the face of the statute. According to the statute, there are two categories of persons who may not be issued an alcoholic beverage license: Those who have "habitually been a law offender" and those who have "been convicted of a felony." While these two categories may be interpreted to be either mutually exclusive or overlapping, they cannot be completely co-extensive, because such a construction would make one of the categories surplusage. There must be either no overlap or partial overlap between those persons in the "habitual law offender" category and those in the "convicted felon" category; if the terms are construed to mean the same thing, the categories are redundant and superfluous. Statutes should be construed in a manner which will avoid a construction that makes a word or phrase superfluous. Green Bay Broadcasting Co. v. Redevelopment Authority of City of Green Bay, 116 Wis.2d 1, 19, 342 N.W.2d 27 (1983), reconsidered and modified, 119 Wis.2d 251, 349 N.W.2d 478 (1984). Thus, a habitual law offender must be someone other than a convicted felon.

Petitioner Smith argues that habitual law offenders can only be persons who have been convicted of misdemeanors or ordinance violations. He also contends that a requirement of an actual conviction is implied and must be read into the statute in question, because such a requirement is present in other statutes that govern "habitual" violators. ⁵

The statute in question, however, neither mentions misdemeanants and ordinance violators, nor states that a conviction is required before a person can be a habitual law offender. Had the legislature intended the phrase to assure only that those who had been convicted of misdemeanors and ordinance violations would, like felons, be prohibited from obtaining alcoholic beverage licenses, it could have provided that "no license ... may ... be issued under this chapter to any natural person who has been convicted of a felony or who has been convicted of multiple misdemeanors or ordinance violations...." The statute does not so provide, nor does the statute contain the phrase, "convicted law offender," or any other indication that a conviction is always required before a person may be found to be a law offender. There is no cross-reference to any other statute dealing with habitual violators or containing a definition of "habitual offender." Indeed, the fact that the legislature has indicated in other statutes that a conviction is required, but has not done so here, validates the premise that a conviction is not always required under sec. 125.04(5), Stats.

That the phrase, "habitually been a law offender" covers all persons who are shown to have habitually violated the law, not just those persons who have been convicted on multiple occasions, is clear from the face of the statute. If the meaning of a statute is clear and unambiguous, resort to extrinsic aids, such as legislative history, for the purpose of statutory construction is inappropriate. State v. Denter, 121 Wis.2d 118, 123, 357 N.W.2d 555 (1984). ⁶ In addition, legislative history cannot be used for the purpose of rendering an otherwise clear statute ambiguous. State v. Derenne, 102 Wis.2d 38, 45-6, 306 N.W.2d 12 (1981). Accordingly, we do not address the legislative history of sec. 125.04(5), Stats.

In most cases, the applicant's conviction record will indicate whether the person...