NUMB:
951847
VERS:
ORIGINAL
REF:
XXBY:
ALD. BUTLER
TITL:
An ordinance relating to night sales permits for
convenience food stores.
SECS:
81-79 cr
84-25 cr
ANLS:
- Analysis -
This ordinance requires any convenience food store
that operates between midnight and 5:00 a.m. to have
a city night sales permit. Night sales permits are
issued by the city clerk.
The city clerk furnishes a copy of each application
for a new night sales permit to the departments of
building inspection, health and police, which shall
each provide a written report to the proper licensing
committee, including department recommendation as to
whether the permit should be granted. The committee
may consider department recommendations, information
from the applicant and any neighborhood objections.
The committee decides whether to issue a new permit
and the common council adopts or rejects the
committee report.
Renewal applications are automatically granted if the
police, building inspection, and health departments
approve the renewal application, unless there are
objections from neighbors. If there are any
objections to a renewal, the proper licensing
committee holds a hearing. The permit holder receives
notice of the hearing and charges and may appear at
the hearing with counsel. The committee decides
whether to recommend renewal of the application and
the common council adopts or rejects the committee
report.
Permits are issued for the calendar year at an annual
fee of $75. Ordinance violations are punishable by a
forfeiture of $50 to $150 or, upon default,
imprisonment for 2 to 6 days.
BODY:
Whereas, Convenience food stores provide an important
service to Milwaukee residents who find them to be a
readily accessible source of necessities, food and
snacks; and
Whereas, Some convenience food stores that remain
open between midnight and 5:00 a.m. attract patrons
who create noise, litter and other nuisances which
adversely impact the public health, safety and
welfare of the neighborhood; and
Whereas, Whenever a convenience food store does not
make a concerted effort to restrict the disturbances
inflicted upon its neighbors by its late-night
operation, there is a significantly adverse impact on
the neighborhood; and
Whereas, It is proper for the city to regulate night
sales by convenience food stores so that late-night
operation of such stores does not negatively affect
the public health, safety and welfare of city
residents; now, therefore
The Mayor and Common Council of the City of Milwaukee
do ordain as follows:
Part 1. Section 81-79 of the code is created to
read:
81-79. Night Sales Permit. 1. Each night sales
permit shall be issued for the calendar year.
2. The fee for each new or renewal permit shall be
$75.
(See s. 84-25.)
Part 2. Section 84-25 of the code is created to
read:
84-25. Night Sales Permit. 1. DEFINITION.
"Convenience food store" is a store that contains
less than 5,000 square feet of retail sales space,
has as its primary business the sale of basic food
items which may include such items as dairy products,
bread products, prepared food, refrigerated food,
frozen entrees and baby food, and in addition sells
household products that may include such items as
cleaning products, paper products, baby products and
pet food. The store may or may not be associated with
a motor vehicle pumping station.
2. PERMIT REQUIRED. No owner of a convenience food
store shall operate or permit the operation of the
store at any time between the hours of midnight and
5:00 a.m. unless a night sales permit has been
obtained as provided in this section.
3. APPLICATION. A written application for a new or
renewal night sales permit shall be made to the city
clerk on forms furnished by the city clerk. The
application shall be signed by the applicant, if an
individual, or by an authorized agent or officer of a
corporation, partnership or other legal entity. The
application shall designate:
a. The name and address of the store for which a
permit is requested, including the aldermanic
district in which it is located.
b. The name of the person or company owning the
store for which a permit is requested.
c. Such other information as the city clerk or the
common council deems relevant to the application.
4. DEPOSIT OF FEE; REFUND. a. Each applicant,
before filing his or her application with the city
clerk, shall deposit with the city treasurer the fee
fixed for a night sales permit in s. 81-79. The
treasurer shall accept the deposit, issue a receipt
therefor, and cause a record to be kept of the
deposit. When a permit is granted by the common
council, the city treasurer shall apply the deposit
as full payment of the permit applied for and
granted.
b. Whenever the common council denies a permit
application or the application is withdrawn by the
applicant or by authority of the proper licensing
committee, the deposit shall be partially refunded as
provided in s. 81-1-3. The city clerk shall record on
all applications filed with him or her the amount
deposited by the city treasurer, together with the
date and number of the treasurer's receipt, and all
such applications shall be accompanied by the
treasurer's deposit receipt for the permit fee.
5. REFERRAL OF NEW APPLICATION TO COMMITTEE. a.
Whenever any applicant for a new permit has complied
with the conditions specified in this section, the
city clerk shall forward the application to the
common council at any regular or special meeting. The
application shall be referred to the proper licensing
committee of the common council.
b. The city clerk shall furnish a copy of each
application for a new night sales permit to the
department of building inspection, health department,
and the police department, each of which shall
provide a written report to the proper licensing
committee. Each such departmental report shall
include the recommendation of the department as to
whether the permit should be granted or refused.
c. Whenever a department recommends against
granting a new permit, the applicant shall be
notified in writing of the recommendation. The
applicant shall have an opportunity to appear at the
proper licensing committee meeting, be represented by
counsel, cross-examine witnesses who oppose the
granting of the permit and present evidence in favor
of granting of the permit.
d. In determining whether to issue a new permit,
the proper licensing committee may consider the
recommendations by city departments. The committee
may also consider any evidence from the applicant and
any evidence or objections from persons who live or
work near the store and who have evidence or
information relating to whether issuance of the
permit will create undesirable neighborhood problems.
6. ISSUANCE OR DENIAL OF NEW PERMIT. a. After
considering the reports of the chief of police, the
commissioner of building inspection, and the
commissioner of health and any evidence or
information from neighbors and from the applicant,
the proper licensing committee shall report its
findings and recommendations to the common council as
to whether the new permit should be issued or denied.
The committee shall furnish each applicant with the
committee findings and recommendations in writing.
b. Whenever the proper licensing committee
recommends denial of a new license, the applicant
shall be given notice of the date set for hearing by
the common council.
c. At the meeting of the common council, a roll
call vote shall be taken as to whether the
recommendation of the committee shall be accepted.
The applicant shall be provided with written notice
of the results of the common council vote.
7. ISSUANCE OR DENIAL OF RENEWAL PERMIT. a. The
city clerk shall furnish a copy of each application
for renewal of a night sales permit to the department
of building inspection, health department, and the
police department, each of which shall provide a
written report to the proper licensing committee.
Each such departmental report shall include the
recommendation of the department as to whether or not
the permit should be renewed.
b. Whenever an application is recommended for
renewal by the department of building inspection,
health department, and the police department, the
city clerk shall issue a renewal permit, unless there
is an objection to the renewal by a neighbor or any
other interested person.
c. If an application is not recommended for renewal
by a city department enumerated in par. b or if there
is an objection to renewal by a neighbor or other
interested person, the proper licensing committee
shall hold a hearing on whether or not to renew the
permit. Grounds for nonrenewal shall include
disorderly conduct on or around the store, noise
which disturbs the neighbors of the store, the
violation of any statute, ordinance or other law, or
any other good cause reasonably related to the
protection of the health, safety and welfare of the
neighborhood in which the store is located.
d. The permit holder shall receive at least 3
working days' notice of the specific charges upon
which the hearing will be conducted. The permit
holder shall have an opportunity to appear at the
hearing, be represented by counsel, cross-examine
witnesses who oppose the renewal of the permit and
present evidence in favor of renewal of the permit.
e. At the conclusion of the hearing, the committee
shall make a recommendation to the common council
concerning renewal of the permit. The committee shall
report its findings and recommendations to the common
council in writing. The committee shall furnish each
permit holder whose application is recommended for
nonrenewal with the committee's written findings and
recommendations.
f. Whenever the proper licensing committee
recommends nonrenewal of an existing license, the
applicant shall be given no less than 5 days notice
of the date set for hearing by the common council.
g. At the meeting of the common council, the
president shall allow oral argument by an applicant
who has presented written objections to the
recommendations of the proper licensing committee.
The city attorney shall also be permitted to make a
statement. Oral arguments shall be limited to 5
minutes on behalf of each party.
h. A roll call vote of the common council shall be
taken as to whether the recommendation of the
committee shall be accepted. The applicant shall be
provided with written notice of the results of the
common council vote.
8. POSTING OF PERMIT. Any new or renewal permit
issued under this section shall be posted in a
conspicuous place inside the store for which the
permit was issued.
9. PENALTY. A person who violates this section
shall be subject, for each day of violation, to a
forfeiture of not less than $50 nor more than $150
or, upon default of payment, to imprisonment in the
county jail or house of correction for not less than
2 days nor more than 6 days.
LRB:
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: _____________________
CATT:
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
___________________________________
Office of the City Attorney
Date: _____________________
ZDPT:
DFTR:
LRB96085.2
CAW
3/26/96