Wis. Dolls, LLC v. Town of Dell Prairie
| Decision Date | 05 July 2012 |
| Docket Number | No. 2010AP2900.,2010AP2900. |
| Citation | 815 N.W.2d 690,2012 WI 76,342 Wis.2d 350 |
| Parties | WISCONSIN DOLLS, LLC, Plaintiff–Appellant–Petitioner, v. TOWN OF DELL PRAIRIE and Town of Dell Prairie Town Board, Defendants–Respondents. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-appellant-petitioner, there were briefs by Matthew Fleming, Margery Tibbetts–Wakefield and Lawrence Bechler, Murphy Desmond, S.C. Madison, and oral argument by Lawrence Bechler.
For the defendants-respondents, there was a brief filed by Mark Hazelbaker and Michael R. O'Callaghan, Hazelbaker & Associates, S.C., Madison, and oral argument by Mark Hazelbaker.
An amicus curiae brief was filed by Michael J. Lawton and Kenneth Axe, Boardman & Clark, LLP, Madison, for the Tavern League of Wisconsin, Inc.
[342 Wis.2d 352]¶ 1 This is a review of a published decision of the court of appeals affirming the circuit court's dismissal of Wisconsin Dolls, LLC's (Wisconsin Dolls) certiorari action.
¶ 2 The Town of Dell Prairie (Town), in renewing the Class “B” and “Class B” alcohol beverages licenses 1 (hereinafter “license”) of Wisconsin Dolls, reduced the described “premises” of the license from the entire eight acres of Wisconsin Dolls' resort property to only the “Main Bar/ Entertainment Building” of the resort. The Adams County Circuit Court, Charles A. Pollex, Judge, dismissed Wisconsin Dolls' certiorari action challenging the reduction. The court of appeals affirmed on different grounds, holding that the original license was void because it failed to particularly describe the premises to which it applied. Wis. Dolls, LLC v. Town of Dell Prairie, 2011 WI App 141, 337 Wis.2d 431, 806 N.W.2d 449.
¶ 3 We conclude the following. First, the original license granted to Wisconsin Dolls was not void due to an insufficient description of the premises. Wisconsin Dolls asked for a license that would cover the entire eight acres of the resort, and the original license explicitly covered the entire eight acres of the resort. Second, the Town of Dell Prairie exceeded its authority when it modified the description of the premises in renewing Wisconsin Dolls' alcohol beverages license. Towns may attach conditions to an alcohol beverages license, including limitations to the described premises, when the license is initially granted. If a town later wishes to modify the premises described in the license, especially if the modification disadvantages the licensee, it must pass a valid regulation or ordinance under Wis. Stat. § 125.10(1),2 follow the procedures outlined in Wis. Stat. § 125.12, or negotiate the consent of the licensee. A town is not permitted to unilaterally reduce the description of the premises when it renews an alcohol beverages license. The Town here did not proceed on a correct theory of law, and thus its modification of the license cannot be sustained.
[342 Wis.2d 354]¶ 4 We reverse the decision of the court of appeals and remand the case to the circuit court to order the Town to restore the “all 8 acres of the resort” premises description to Wisconsin Dolls' former and current alcohol beverages licenses.
¶ 5 Wisconsin Dolls is a resort that is licensed as an Adult–Oriented Establishment under Town of Dell Prairie Ordinance No. 4–2004. The resort is located in the Town of Dell Prairie at 4179 State Highway 13, outside of Wisconsin Dells.3
¶ 6 On December 31, 2004, Wisconsin Dolls filed its original application for an alcohol beverages license with the Town of Dell Prairie. It sought both a Class “B” fermented malt beverages license and a “Class B” intoxicating liquor license. On its application form, Wisconsin Dolls listed the premises description as “ALL 8 ACRES OF RESORT.” The license was granted in January 2005.
¶ 7 On subsequent renewal applications, Wisconsin Dolls listed the following premises descriptions:
2005–06: Bar, cooler, Lg room in office all 8 acres of R[esort].
2006–07: Bar-cooler, Lg Room in office—all 8 acres of r[esort].
2007–08: BAR, COOLER, Lg ROOM IN OFFICE AND all 8 Acres of resort.
2008–09: All buildings and property comprising approximately 8 acres.
2009–10: All buildings & property comprising approx. 8 acres.
[342 Wis.2d 355]¶ 8 The Town granted a Class “B” Fermented Malt Beverages and “Class B” Intoxicating Liquors license for each year. The combined license included the following premises descriptions:
Jan. 24, 2005–June 30, 2005: Wisconsin Dolls Resort 4179 State Highway 13 All 8 acres of the resort.
2005–06 4: Wisconsin Dolls Resort 4179 State Highway 13 Wisc. Dells, WI All 8 acres of the resort.
2006–07: Wisconsin Dolls Resort 4179 State Highway 13 Wisc. Dells WI All 8 acres of the resort
2007–08: [description unavailable].5
2009–10: Wisconsin Dolls, LLC 4179 State Road 13, Wisconsin Dells, WI 53965 (Main Bar/Entertainment Building)
¶ 9 The previous owner of the property, James D. Canham, operated Arrowhead Resort/The Hill Bar & Grill. Canham had an alcohol license that described the premises as the “Bar and basement.” He surrendered that license upon selling the property.
¶ 10 On June 9 and June 13, 2009, the Town board held special meetings to discuss a number of subjects. One item addressed was “corrective liquor license applications.” The Wisconsin Dolls alcohol license was not the only license discussed at the meetings but it was the first and it generated the most discussion. After the Town discussed the address listed on the alcohol license renewal application form and a question about alcohol wholesalers, the following exchange occurred:
The Chairman: Okay. You read the article that Attorney Wood—and I also talked to the town's [sic] association and Attorney Carol, and there are—our situation in here was the—that all buildings and traffic comprising of the approximately 80 [sic] acres and what—she said that if you have all that property open, that any—anyone under 21 through there—you don't store. You don't serve alcohol on all eight acres and all of the units over there. If they need to store stuff in an additional building, that should be specified as part of the application; but otherwise, the bar building is the main building.
Now, when the original liquor license was gotten by Halbach, who had that motel for years—and he's the one that sold it to the prior owners that—they had before this and he had the bar.
He started out with a beer bar because he was serving meals and everything in the main part of the hotel complex. And so when Halbach got this and they put it into the Dolls, apparently they—they put all buildings in and all eight acres on the application. Well, the application was never shown to the board members, and there was never an approval to change it to all of this part. I was the one that started digging, and I want to see what these applications look like.
It's not that we weren't—we are not taking the license away from that portion of the—the building. It's—the fact is that all eight acres—it doesn't make sense. Okay.
Now, at the beginning of the year when they filed for the adult entertainment aspect, they asked to be allowed to have a juice bar there. Well, the purpose of a juice bar is to get the 18–year–olds to 21–year–olds to come in; but they can't drink alcohol. Now, if you have got a license running on the whole premises, there's (inaudible) that creates a—a legal problem.
Unidentified Male Speaker: (Inaudible) have the juice bar if they are going to serve alcohol on all eight acres. Anybody under 21 can't be there without a parent—
The Chairman: Right. If they—
Unidentified Male Speaker:—or on that property.
The Chairman: Right. So anyway, that is why—as far as the main building and—if they need storage in one of the other buildings of—I don't have a problem with that at all. We actually approved it subject to—but we are not—we are not approving that it covers the entire eight acres. So that is—that's where we sit on that issue. And we had the letter from—here we are really not taking away a license for his main business right there so—
And to be serving and storing and having the records in all of the buildings and on the eight acres is too big, ...
¶ 11 An unidentified speaker noted that the licenses had been granted in the past. A response suggested that previously the board did not closely review the applications. The chairman stated “there has not been many problems that I am aware of, of serving minors around the rest of the property over there.” The chairman also stated that only the main building ought to be licensed, because minors might visit the property, and possibly a storage building could be licensed: “that, I can agree with, but not the eight acres.” The chairman further explained:
[O]ur position as board members is for the health, the safety and welfare of the people in the township. Okay.
When you have an open situation like this—that you are going to have people from 19 to 21 or even other kids could come on the property, that's not in their best—the best interest of these people—to be in an establishment such as that—in the liquor—and the liquor being available—to get served alcohol and that—now, that's my—my concern right there.
¶ 12 The minutes from the June 9, 2009, Town board meeting state, in pertinent part:
Wisconsin Dolls, LLC: The address for Wisconsin Dolls, LLC on the application is different than the address listed on the Wisconsin Department of Financial Institutions website. This will need to be amended and also the description of the premises is very vague and needs to be more specific to meet the requirements of Chapter 125 in regards to covering 8 acres.
¶ 13 There is no transcript of the June 13 meeting in the record. The minutes of the June 13 meeting stated in pertinent part:
Discussion occurred in regard to the premises description on the application from Wisconsin Dolls.... Chairman Schulz made a motion to issue...
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