Number
030720
Version
SUBSTITUTE 1
Sponsor
ALD. BOHL
Title
A substitute ordinance relating to centers for the visual and performing arts.
Sections
81-17.7 cr
90-1-5 rp
90-1-6 rn
90-1-7 rn
90-1-8 rn
90-1-9 rn
90-1-10 rn
90-1-11 rn
90-1-12 rn
90-1-13 rn
90-1-14 rn
90-1-15 rn
90-1-16 rn
90-1-17 rn
90-1-18 rn
90-1-19 rn
90-1-20 rn
90-1-21 rn
90-1-22 rn
90-1-23 rn
90-1-24 rn
90-1-25 rn
90-1-26 rn
90-1-27 rn
90-1-28 rn
90-1-29 rn
90-1-30 rn
90-1-31 rn
90-1-32 rn
90-37 cr
Analysis
Wisconsin state statutes provide certain exemptions from alcohol beverage regulations to "center(s) for the visual and performing arts". Pursuant to these provisions, s. 90-19-1-c of the code permits underage persons to enter centers for the visual or performing arts at times when alcohol beverages are available for sale, an otherwise prohibited practice. The statutes do not, however, define what these centers are. This ordinance defines a "center for the visual and performing arts" as a facility fulfilling all of the following criteria, as relevant :
1. A center for the visual and performing arts shall have either of the following:
a. At least one stage larger than 1,200 square feet in size.
b. A collection of recognized works of art placed on regular public display.
2. At a center for the visual and performing arts that is also a theater, the service of alcohol beverages shall be incidental to the main function of the licensed premise as evidenced by the service of alcohol beverages no earlier than 2 hours before a given day's scheduled performance, no later than 2 hours after a given day's scheduled performance and only in a designated lobby area.
Further, it requires those seeking to be designated as a center for the visual and performing arts to apply for a license from the city and provides a mechanism for the granting, denial, renewal, non-renewal and revocation of this license. No license shall be required for centers for the visual and performing arts operated by nonprofit organizations.
Premises currently designated as centers for the visual and performing arts shall comply with the terms and conditions of this ordinance no later than December 31, 2004.
Body
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 81-17.7 of the code is created to read:
81-17.7. Center for the Visual and Performing Arts. Each center for the visual and performing arts license shall be issued and shall expire on the same date as the tavern amusement license held by the same premise. The fee for each license shall be $225.
(See s. 90-37.)
Part 2. Section 90-1-5 of the code is repealed.
Part 3. Section 90-1-6 to 32 of the code is renumbered 5 to 31.
Part 4. Section 90-37 of the code is created to read:
90-37. Centers for the Visual and Performing Arts
1. FINDINGS. The Wisconsin state statutes creates the designation "centers for the visual and performing arts" and exempts them from certain restrictions relating to the presence of underage persons on licensed Class "B" alcohol beverage premises. The state statutes do not, however, provide a definition for "centers for the visual and performing arts". The prevention of the underage consumption of alcohol and the regulation of alcohol beverage premises where underage persons congregate is a primary concern of the common council, given its responsibility to protect its most vulnerable residents. The common council finds, therefore, that it is essential to define and license "centers for the visual and performing arts" to help insure the health, safety and welfare of the people of the city of Milwaukee and, in this light, to grant this license infrequently and only after careful consideration, review and deliberation.
2. LICENSE REQUIRED.
a. No premise shall be deemed a center for the visual and performing arts without first obtaining a license as required in this section, except that no license shall be required of centers for the visual and performing arts operated by nonprofit organizations which, for the purposes of this provision, shall mean a federal, state or local unit of government or agency thereof, a public or private elementary, secondary or post-secondary school, or an organization that is described in s. 501(c)(3) of the internal revenue code of the United States of America and is exempt from taxation under s. 501(a) of this code.
b. Premises designated as centers for the visual and performing arts prior to the effective date of this ordinance shall comply with the terms and conditions of this section no later than December 31, 2004.
3. MINIMUM QUALIFICATIONS. No premise shall be licensed as a center for the visual and performing arts unless it fulfills all the relevant criteria of pars. a to c.
a. The operator of the premise shall hold a valid tavern amusement license for the same premise issued pursuant to s. 90-33-1.
b. A center for the visual and performing arts shall have either of the following:
b-1. At least one stage larger than 1,200 square feet in size.
b-2. A collection of recognized works of art placed on regular public display, as testified to before the licensing committee of the common council by recognized experts or art critics.
c. At a center for the visual and performing arts that is also a theater, the service of alcohol beverages shall be incidental to the main function of the licensed premise as evidenced by the service of alcohol beverages no earlier than 2 hours before a given day's scheduled performance, no later than 2 hours after a given day's scheduled performance and only in a designated lobby area.
4. APPLICATION. a. Application for a center for a visual and performing arts license shall be filed with the city clerk on a form provided therefore. The application shall be signed by the applicant, if an individual, or by a duly authorized agent or officer of a corporation or limited liability corporation, and sworn to by the applicant.
b. The application shall require:
b-1. The name and permanent address of the applicant.
b-2. The name and address of the premise for which the license is to be granted, including the aldermanic district in which it is situated.
b-3. If the applicant is a corporation, the name of the corporation shall be set forth exactly as it is set forth in its articles of incorporation, together with the names and addresses of each of its officers, directors and designated managers, if any; the application shall be verified by an officer of the corporation.
b-4. If the applicant is a partnership, the application shall set forth the name and resident address of each of the partners, including limited partners, and the application shall be verified by each partner. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply to the corporate partners.
b-5. If the applicant is a club, association or other organization which is neither a corporation or partnership, the application shall set forth the exact name of the entity together with the names and resident addresses of all officers and be verified by an officer of the club, association, or organization.
b-6. All convictions, including ordinance violations exclusive of traffic violations, with a brief statement of the nature of the convictions and the jurisdiction in which the conviction occurred.
b-7. The date of birth of the applicant.
b-8. A completed plan of operation on a form provided therefor by the city clerk. The plan of operation shall require:
b-8-a. The planned hours of operation for the premises.
b-8-b. The number of patrons expected on a daily basis at the premises.
b-8-c. The legal occupancy limit of the premises.
b-8-d. What plans, if any, the applicant has to insure underage persons are not served alcohol beverages at the premise and that alcohol beverages are not consumed by underage persons at the premise.
b-8-e. What plans, if any, the applicant has to insure that underage persons are not on the premise in violation of the city's curfew ordinance as set forth in s. 106-23.
b-8-f. The number of off-street parking spaces available at the premises.
b-8-g. Whether or not the premises will make use of sound amplification equipment and, if so, what kind.
b-8-h. What plans, if any, the applicant has to provide security for the premises.
b-8-i. What plans, if any, the applicant has to insure the orderly appearance and operation of the premises with respect to litter and noise.
b-9. Any other licenses held by the applicant or attached to the premises.
b-10. Such other reasonable and pertinent information the common council or the proper licensing committee may from time to time require.
5. ISSUANCE. a. Applications shall be referred to the chief of police, the commissioner of neighborhood services and the commissioner of health, all of whom shall cause an investigation to be made and report their findings to the licensing committee.
b. The licensing committee shall hold a hearing on whether or not to issue each new license. If there is a possibility of denial, no hearing shall be heard unless the city clerk's office has provided written notice to the applicant. The notice shall be served upon the applicant so that the applicant has at least 3 days' notice of the hearing. The notice shall contain:
b-1. The date, time and place of the hearing.
b-2. A statement to the effect that the possibility of denial of the license application exists and the reasons for possible denial.
b-3. A statement that an opportunity will be given to the applicant to respond to and challenge any reason for denial and to present witnesses under oath and to confront and cross-examine opposing witnesses under oath.
b-4. A statement that the applicant may be represented by an attorney of the applicant's choice at the applicant's expense, if the applicant so wishes.
c. If there is a possibility of denial, at the hearing the committee chair shall open the meeting by stating that a notice was sent and read the notice into the record unless the applicant admits notice. The chair shall advise the applicant that the applicant has an option to proceed with a due process hearing, represented by counsel, with all testimony both direct and cross-examination under oath, or that the applicant may simply make a statement to the committee.
d. A due process hearing shall be conducted in the following manner:
d-1. All witnesses will be sworn in.
d-2. The chair shall ask those opposed to the granting of the license to proceed first.
d-3. The applicant shall be permitted an opportunity to cross- examine.
d-4. After the conclusion of the opponent's testimony, the applicant shall be permitted to present the applicant's own witnesses, subject to cross-examination.
d-5. Committee members may ask questions of witnesses.
d-6. Both proponents and opponents shall be permitted a brief summary statement.
e. The recommendations of the committee regarding the applicant must be based on evidence presented at the hearing. Probative evidence concerning whether or not the license should be granted may be presented on the following subjects:
e-1. Whether or not the applicant meets the municipal requirements, including those in sub. 3.
e-2. The appropriateness of the location and premises where the center for the visual and performing arts is to be located and whether the location will create undesirable neighborhood problems. Probative evidence relating to these matters may be taken from the plan of operation submitted pursuant to sub. 4-b-8, but not the content of any performance.
e-3. The applicant's record in operating similarly licensed premises.
e-4. Whether or not the applicant has been charged with or convicted of any felony, misdemeanor, municipal offense or other offense, the circumstances of which substantially relate to the licensed activity.
e-5. Any other factors which reasonably relate to the public health, safety and welfare.
f. The committee may make a recommendation immediately following the hearing or at a later date. This recommendation may include such revisions to the plan of operation submitted pursuant to sub 4-b-8 as the committee may deem necessary and which are agreed to by the applicant. Written notice of the committee's decision will be provided if the decision is made at a later date or if the applicant was not present or represented. The committee shall forward its recommendation in writing to the common council for vote at the next meeting at which such matter will be considered.
6. DEPOSIT OF FEE; REFUND. a. Prior to issuance of a license, each applicant shall deposit with the city treasurer the full amount of the fee required in s. 81-17.7 for the license or permit applied for.
b. It shall be the duty of the city treasurer to accept the deposit, issue a receipt therefor, and cause a record to be kept thereof. When a license or permit is granted by the common council, it shall be the duty of the city treasurer to apply such deposit as full payment of the license or permit fee, upon receipt of certification thereof by the city clerk.
c. It shall be the duty of the city clerk to enter on all applications filed with him or her the amount deposited with the city treasurer, the date of the deposit and the number of the treasurer's receipt.
d. Upon the withdrawal or the common council's denial of a center for the visual and performing arts license application, the amount of $50 of the application fee shall be retained by the city treasurer to defray the cost of investigation of facts and administration thereof. The remainder of the application fee and deposits on all applications denied by the common council shall be refunded by the city treasurer upon surrender of the deposit receipt certified by the city clerk, provided that the certified deposit receipt is surrendered no later than one year after the date of the license denial.
7. FEES. See s. 81-17.7 for the required permit fees and terms.
8. CHANGE IN PLAN OF OPERATION. If, after the license has been granted or issued, the licensee wishes to substantially deviate from the plan of operation as submitted with the original application, the licensee shall file a sworn, written request with the city clerk which states the nature of the change. No change shall take place until the request has been approved by the common council. The common council's approval shall be given only if it determines, in the manner set forth in sub. 5-e-2, that the change is compatible with the normal activity of the neighborhood in which the premises is located.
9. RENEWAL OF LICENSES.
a. Procedure for Renewal. Applications for the renewal of a center for the visual and performing arts license shall be made to the city clerk. The clerk shall refer the application for license renewal to the chief of police, the commissioner of neighborhood services and the commissioner of health for review. If the chief of police, the commissioner of neighborhood services and the commissioner of health indicate that the applicant still meets the licensing qualifications, the application shall be referred to the common council for approval unless a written objection has been filed with the city clerk at least 30 days prior to the date on which the license expires. This objection may be filed by any interested person. If a written objection is filed, or if a determination is made that the applicant no longer meets the licensing qualifications, the application shall be forwarded to the licensing committee for its recommendation to the common council.
b. Procedure for Non-Renewal.
b-1. If there is a possibility that the committee will not renew a license, a motion should be entertained to hold the application in committee and instruct the city clerk to forward proper notice to the applicant, unless such proper notice has already been sent, in which case the hearing shall proceed.
b-2. Prior to the date set for the hearing, the city clerk's office shall forward notice to the applicant which shall contain:
b-2-a. The date, time and place of the hearing.
b-2-b. A statement of the common council's intention not to renew the license in the event any objections to renewal are found to be true.
b-2-c. A statement of the reasons for non-renewal.
b-2-d. A statement that an opportunity will be given to respond to and challenge such reasons for non-renewal and to present witnesses under oath and to confront and cross-examine opposing witnesses under oath.
b-2-e. A statement that the applicant may be represented by an attorney of the applicant's choice at the applicant's expense, if the applicant so wishes.
c. Hearings. All hearings held and committee recommendations prepared pursuant to this subsection shall be conducted as set forth in sub. 11.
d. Disqualification. Whenever any license is denied renewal, it shall be entered on the record by the city clerk and no center for the visual and performing arts license shall be granted to the same person for that location for a period of 12 months following the date of non-renewal.
e. Surrender. When any license is surrendered in lieu of a pending non-renewal proceeding, no other center for the visual and performing arts license shall be granted to the same person for a period of 12 months following the date of its surrender.
10. REVOCATION.
a. Any license issued under this section may be revoked for cause by the common council after notice to the licensee and a hearing.
b. Revocation proceedings may be instituted by the licensing committee upon its own motion, or upon sworn written charges made and filed with the city clerk by the chief of police or upon a sworn written complaint filed with the city clerk by any city resident.
c. Whenever either sworn written charges or a sworn written complaint are filed with the city clerk setting forth specific charges against a licensee involving conduct which would violate ordinances that are grounds for revocation of a license, the city clerk shall issue notice to the licensee of the licensing committee's intention to hear the matter. The notice shall be served upon the licensee so that the licensee has at least 10 working days' notice of the hearing. The notice shall contain:
c-1. The date, time and place of the hearing.
c-2. A statement to the effect that the possibility of revocation of the license exists and the reasons for possible revocation.
c-3. A statement that an opportunity will be given to the applicant to respond to and challenge any reason for revocation and to present witnesses under oath and to confront and cross-examine opposing witnesses under oath.
c-4. A statement that the licensee may be represented by an attorney of the licensee's choice at the licensee's expense, if the licensee so wishes.
d. The licensing committee shall convene at the date and time designated in the notice for the purpose of taking evidence and making findings of fact and conclusions of law and a recommendation to the common council in connection with the proposed revocation.
e. If the licensee appears before the committee at the time designated in the summons and denies the charges contained in the complaint, an evidentiary hearing in connection with the revocation shall be conducted by the committee at that time. If the licensee does not appear, or appears but does not deny the charges contained in the complaint, the complaint shall be taken as true and the committee shall hear the arguments of the complaints and the licensee in connection with the revocation.
f. All hearings held and committee recommendations prepared pursuant to this subsection shall be conducted as set forth in sub 11.
11. HEARING PROCEDURE.
a. Authority of Licensing Committee. The licensing committee shall conduct hearings with respect to the non-renewal or revocation of a center for the visual and performing arts license pursuant to this subsection. The chair of the licensing committee shall be the presiding officer.
b. Committee Hearing Procedure.
b-1. The chair shall direct that oaths be administered and subpoenas issued upon request of either side.
b-2. The chair shall ensure that an orderly hearing is conducted in accordance with the requirements of this subsection.
b-3. The chair shall rule on objections to the admissibility of evidence. Any ruling of the chair shall be final unless appealed to the committee, and the committee shall reverse such ruling only upon the vote of a majority of its members.
b-4. At all stages of the proceedings before the committee or before the common council, the licensee shall be entitled to appear both in person and by an attorney.
c. Record. A stenographic record shall be made of all proceedings before the committee and before the common council when written exceptions have been filed. Any interested party may at any stage of the proceedings order a copy of the transcript of the record or portions thereof at his or her own expense.
d. Grounds for Non-Renewal or Revocation. The recommendation of the committee regarding the licensee must be based on evidence presented at the hearing. Probative evidence concerning non-renewal or revocation may include evidence of:
d-1. Failure of the licensee to meet the municipal qualifications.
d-2. Failure of the licensee to operate the premise in accordance with the plan of operation submitted pursuant to sub. 4-b-8.
d-3. Pending charges against or the conviction of any felony, misdemeanor, municipal offense or other offense, the circumstances of which substantially relate to the circumstances of the particular licensed activity, by the licensee, his or her employes, or patrons.
d-4. Neighborhood problems due to management or location.
d-5. Any other factor or factors which reasonably relate to the public health, safety and welfare.
e. Committee Report. The committee may make a recommendation immediately following the hearing or at a later date. The committee may recommend that the license be renewed, not renewed or revoked. All non-renewals and revocations shall be effective upon service of notice of the non-renewal or revocation upon the licensee or person in charge of the premises at the time of service.
f. Council Action.
f-1. Within 10 working days after it reaches a decision, the committee shall prepare and serve a report and recommendation on the licensee. The report and recommendations shall include specific findings of fact and conclusions of law made by the committee. The report shall be distributed to each member of the common council.
f-2. If the committee recommends that the license not be renewed or be revoked then within 7 days of the receipt of the report and recommendation of the committee, the licensee may file written exceptions to the report and recommendations of the committee.
f-3. Any exceptions filed by the licensee to the report and recommendations of the committee shall be provided to each member of the common council at least 24 hours before any vote on the question is scheduled before the full common council.
f-4. At a meeting of the common council following the receipt of the report and recommendations of the committee, the common council shall consider the report and recommendation. Not less than 5 days prior to the hearing before the common council, the city clerk shall notify the licensee and complainant by certified mail and also notify the city attorney that the common council will convene. Each member of the common council shall be asked to affirm that he or she has read the report and recommendation of the committee. When written exceptions are filed to a committee report and recommendation that the license be revoked or not renewed, each member of the common council shall be asked to affirm that he or she has read the exceptions. If members of the council have not read the recommendation and report of the committee and any exceptions that have been filed thereto, the chair shall allocate time for the members to do so. Oral argument in support of the report and recommendation presented by the city attorney, oral argument on behalf of the licensee in opposition to the report and recommendation and oral argument by the complainant objecting to the report and recommendation shall be permitted only at the discretion of the chair. If argument is permitted by the chair, argument shall be limited to 5 minutes and the arguments shall be limited to the subject matter of the report and recommendation and the written exceptions. Licensees shall appear only in person or by counsel. Corporate licensees shall appear only by the agent or by counsel. Partnerships shall be represented only by a partner or by counsel. Limited liability companies shall be represented only by the agent or by counsel. Complainants shall appear only in person or by counsel. Any person making an appearance before the council pursuant to this subsection and who requires the services of an interpreter shall obtain one at his or her own expense.
f-5. The common council shall determine by a majority vote of those in attendance and voting whether to adopt the recommendation of the committee. The vote shall be a roll call vote. If the common council finds the complaint to be true, or if there is no objection to a report recommending non-renewal or revocation with the committee's report and recommendation, the city clerk shall give notice of each revocation to the person whose license is not renewed or revoked. If the common council finds the complaint to be untrue, the proceedings shall be dismissed without cost to the accused. If the common council finds the complaint to be malicious and without probable cause, the cost shall be paid by the complainant upon invoice from the city.
12. REQUEST TO SURRENDER A LICENSE. If a licensee wishes to surrender his or her license after receiving a notice for a hearing on non-renewal or revocation, the licensee must request, in writing, permission from the licensing committee to do so prior to the commencement of the hearing. The committee may approve the request, or deny the request and proceed with the hearing.
13. ALTERATION TO PREMISES. Any alteration, change or addition resulting in expansion of a licensed premises shall be approved by the licensing committee prior to issuance of a license, pursuant to s. 200-24, by the department of city development. An applicant whose application has been denied by the committee may appeal the decision to the common council.
14. PENALTY. Any person convicted of violating this section shall be fined not less than $500 nor more than $2,000 for each violation, plus costs of prosecution, and, in default thereof, be imprisoned for a period not to exceed 80 days, or until forfeiture costs are paid.
LRB
APPROVED AS TO FORM
_________________________
Legislative Reference Bureau
Date:_____________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
________________________
Office of the City Attorney
Date:____________________
Requestor
Drafter
LRB03355-2
jro/lme
9/23/03