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1
2 CITY OF MILWAUKEE
3 UTILITIES & LICENSES COMMITTEE
4 September 9, 2003
5
6 * * * * * * * * * * * * * * * * * * * * * * * * * * *
In the Matter of Legislative Agenda Item 4
7
Centers for the Visual and Performing Arts
8 File No.
9
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10
COMMITTEE MEMBERS
11 ALD. JAMES BOHL - Chairman
ALD. FREDERICK GORDON
12 ALD. JOSEPH A. DUDZIK
ALD. TERRY WITKOWSKI
13
14 LICENSING DIVISION by JAMES COPELAND
LEGISLATIVE REFERENCE BUREAU by JAMES OWCZARSKI
15 POLICE DEPARTMENT by DEPUTY INSPECTOR RAYMOND SUCIK
OFFICE OF THE CITY ATTORNEY by ATTORNEY BRUCE SCHRIMPF
16
17
18 Proceedings had in the above-entitled
19 matter, before the UTILITIES & LICENSES COMMITTEE OF
20 THE CITY OF MILWAUKEE, on the 9th day of September,
21 2003.
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1 P R O C E E D I N G S
2 CHAIRMAN BOHL: The final item on our
3 legislative agenda this morning is Item No. 4, File
4 No. 030720, an ordinance relating to the Centers for
5 the Visual and Performing Arts, and we are joined by
6 - - again by Mr. Owczarski from the Legislative
7 Reference Bureau, and Deputy Raymond Sucik from the
8 Milwaukee Police Department.
9 Mr. Owczarski, we will let you start off on
10 this.
11 MR. OWCZARSKI: Thank you, Mr. Chairman.
12 The committee members who were here at the time will
13 remember that we introduced into Section 90 or Chapter
14 90 of our code, a definition of a Center for the
15 Visual and Performing Arts some week ago. Currently
16 in state statutes there is this concept called Center
17 for the Visual and Performing Arts. Unfortunately,
18 the statutes does not provide a definition. That is
19 important, because being a Center for the Visual and
20 Performing Arts confers certain benefits on the
21 operator of a Class B establishment relating to the
22 presence of underage persons on the premises. They
23 can be there mingling with adults, with people who can
24 drink in a situation which they otherwise could not
25 be. Concerns were expressed by Licensing Division, by
00003
1 individual alderpersons, that this was an unacceptable
2 set of circumstances. So our first effort was to try
3 and craft a definition. Unfortunately, after further
4 consultation with the City Attorney's office, there
5 was a concern about due process, making sure that
6 people were treated fairly on the legal - - and
7 frankly in a court defensible manner. And so we went
8 back to the drawing table and result is the ordinance
9 you see in front of you. What it does is requires any
10 person who wishes to be so designated for their
11 establishment to present themselves for an
12 application, they have to submit a plan of operation,
13 they have to demonstrate, according to the terms you
14 see set forth in analysis, that they met that
15 criterion. These are reflective of what was
16 originally put into our definition, and then we afford
17 them the opportunity of a due process hearing in front
18 of this body and in front of the Common Council. It
19 is hoped, therefore, that everyone who would want this
20 would have a fair shot of getting it. However, I
21 would note that there are two exemptions. One is
22 non-profit organizations that operate a Center for the
23 Visual and Performing Arts will not have to get this
24 license. And in addition, those organizations that
25 are now designated as Centers for the Visual and
00004
1 Performing Arts will have until December 31st of 2004
2 to comply with the terms of this ordinance. They
3 will, however, at that time have to be in compliance.
4 CHAIRMAN BOHL: Okay. Thank you Mr.
5 Owczarski.
6 Mr. Schrimpf, before we get to any
7 questions, certainly your hand is heavily weighed in
8 this. Is there anything else that you would like to
9 add?
10 ATTORNEY SCHRIMPF: I guess that put some of
11 the blame on me. No, I have no other comment. I
12 think Mr. Owczarski has summed it up quite well.
13 CHAIRMAN BOHL: Mr. Owczarski, we've sort of
14 bantered this draft around and there are a couple of
15 changes from the previous draft that was floating
16 around, and if you could just take a moment and
17 expound on them. I know that the stage is - - the
18 size of stage that would be required, as one of the
19 two criteria, along with the either/or works of art.
20 MR. OWCZARSKI: Yes.
21 CHAIRMAN BOHL: The additional thing is in
22 terms of licensing fees for non-profit organizations
23 has been omitted. Can you just expound on that?
24 Briefly.
25 MR. OWCZARSKI: By all means. The original
00005
1 definition, the one that in fact you will see in
2 Chapter 90 of our code right now says that you must
3 now have an eleven hundred foot stage to qualify - -
4 or a thousand foot stage - - square foot to qualify
5 for this. We have increased that to twelve hundred
6 square feet in size. Frankly, there was a concern
7 that one thousand square feet was not normative for a
8 center like this. If you follow the legislative
9 intent of the statute, it was clearly intended to deal
10 with such things as the Marcus Center for the
11 Performing Arts and the Riverside Theater, which are
12 well in compliance with that. A thousand foot stage,
13 although no small thing, we felt it was simply
14 inadequate to encompass what was intended by a Center
15 of the Visual and Performing Arts.
16 As the Chairman said, we have also crafted a
17 exemption, as I mentioned earlier, for non-profit
18 organizations, and we are defining them as the
19 Internal Revenue does, as 501C3 corporations, trying
20 to provide them an exemption.
21 And one of the other things that we took
22 a look at and decided to - - there was some concern
23 expressed about the "either/or" and this is a little
24 tricky to follow, and I do apologize for that. But
25 the way it works is you must fulfill these criterion.
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1 You must have either that stage or a collection of
2 works of art recognized by a panel. In addition, you
3 must demonstrate that if you are a theater and a
4 Center for the Visual and Performing Arts, that
5 alcohol is incidental to what you are doing. You
6 can't be a bar that incidentally has performances.
7 You are supposed to be a Center for the Visual and
8 Performing Arts that incidentally serves alcohol.
9 How do we demonstrate that? Well, in the
10 code it indicates that the service of alcohol
11 beverages no earlier than two hours before - - before
12 a given day's scheduled performance, and no later than
13 two hours after a given day's scheduleD performance,
14 and only in a designated lobby.
15 ATTORNEY SCRIMPF: Mr. Chairman, if I could
16 - -
17 CHAIRMAN BOHL: Go ahead.
18 ATTORNEY SCRIMPF: - - - - can just chime
19 in one more thing on that.
20 CHAIRMAN BOHL: Sure.
21 ATTORNEY SCRIMPF: I do believe there is a
22 requirement that anyone seeking one of these licenses
23 has also obtained a cabaret license.
24 MR. OWCZARSKI: That is correct.
25 CHAIRMAN BOHL: And essentially these two
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1 parallel themselves, hand in hand?
2 ATTORNEY SCRIMPF: Right.
3 CHAIRMAN BOHL: Are there questions - -
4 questions by anyone of the committee of Mr. Owczarski
5 or Schrimpf at this point?
6 ALDERMAN GORDON: Mr. Chairman?
7 CHAIRMAN BOHL: Go ahead, Alderman Gordon.
8 ALDERMAN GORDON: Thank you. I just had a
9 question as to the origin of the definition of a
10 Center of the Visual and Performing Arts. Is that
11 clarified in a statute, and is there any specific
12 definition that is being relied on with this
13 legislation?
14 MR. OWCZARSKI: Quite candidly, Alderman, if
15 there were one, we wouldn't been here. The state
16 statute mentions Centers for the Visual and Performing
17 Arts. It does not provide us any definition. One of
18 the first things I did, at the request of Mr.
19 Copeland of the License Division, was to conduct a
20 survey across the country trying to find out how other
21 agencies deal with this. Well, the fact is, we have a
22 unique situation in the State of Wisconsin because of
23 this concept that exists in the statutes. It simply
24 sits in a section of the statute and is undefined.
25 ATTORNEY SCRIMPF: Mr. Chairman, if I could
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1 chime in on that - -
2 CHAIRMAN BOHL: Go ahead Mr. Schrimpf.
3 ATTORNEY SCRIMPF: - - just a bit. The
4 definitional qualities of the Center for the Visual or
5 Performing Arts exist really in two places in the
6 statutes. One is in 125.07 which generally prohibits
7 underage persons from being on a Class B premises, and
8 then the "or" Center for Visual and Performing Arts
9 exist as an exception to the otherwise stated policy
10 of no underage persons on a Class B. The other place
11 that it exists in the statute is in 125.51, and there
12 again it's an exception. 125.51 creates intoxicating
13 liquor, Class Bs, and once again, it's one of the
14 those exception that exist. So parallel with that
15 policy that this is an exception to an otherwise
16 general policy, 125.10 of the statutes gives authority
17 to governing bodies of local municipalities to create
18 other regulations not inconsistent with Chapter 125,
19 therefore, using the Council's power under 125.10 you
20 can create a definition that does not otherwise exist
21 in state statutes. Now, if the state were to come
22 along and create a definition, then obviously our
23 legislation would have to either comply with that or
24 fall under it or be appropriately amended.
25 CHAIRMAN BOHL: Alderman Gordon, does that
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1 adequately address that for you?
2 ALDERMAN GORDON: Yes.
3 ALDERMAN DUDZIK: Mr. Chair?
4 CHAIRMAN BOHL: Alderman Dudzik.
5 ALDERMAN DUDZIK: If I may, Mr. Owczarski
6 you spoke of a panel to decide what is a collection of
7 recognizable art.
8 MR. OWCZARSKI: If the general consensus
9 was, and if you take a look at the actual definition,
10 it's a collection of recognized works of art placed on
11 regular public display, and if you take a look on page
12 3 of the ordinance and Section 3, minimum
13 qualifications, that is again 3B.2, a collection of
14 recognized works of art placed on regular public
15 display as testified to before the licensing committee
16 by recognized experts or art critics.
17 ALDERMAN DUDZIK: So we don't really have a
18 panel at this point in time?
19 MR. OWCZARSKI: Correct.
20 ALDERMAN DUDZIK: Thank you.
21 CHAIRMAN BOHL: We do have an arts board,
22 but one person's recognized piece of art is another
23 person's junk.
24 ALDERMAN DUDZIK: That's just what I wanted
25 to get to. Okay, thank you.
00010
1 ATTORNEY SCRIMPF: My wife tells me that
2 all the time.
3 CHAIRMAN BOHL: I am sure of that. I am
4 sure of that.
5 Other questions by committee at this point?
6 And just for the committee's edification, one of the
7 reasons why we need to do this is because otherwise we
8 do certainly risk having dance clubs, gentleman clubs,
9 all sorts of other type of liquor license venues open
10 up the slippery slope where we co-mingle 18 through
11 21-year-olds with those who are eligible to drink
12 alcohol. And it could run the gamut.
13 So Deputy Inspector, you have been patient.
14 DEPUTY INSPECTOR SUCIK: Good morning, Mr.
15 Chairman.
16 CHAIRMAN BOHL: Good morning to you.
17 DEPUTY RAYMOND SUCIK: Deputy Inspector
18 Raymond Sucik on behalf of the police department. We
19 have and continue to have concerns about the Centers
20 for the Visual and Performing Arts. In particular,
21 now that my questions about art have been somewhat
22 addressed, but it's underage drinking, quite clearly.
23 With the best intention of even the premises who
24 continue to now enjoy this privilege granted, not
25 every adult person can be watched to ensure that they
00011
1 don't make a purchase and then supply to an underage.
2 This particular ordinance doesn't even cite an age
3 where theoretically then someone from infancy through
4 the age of 20 years and three hundred sixty-four days
5 can be there and being supplied with alcoholic
6 beverages by a reasonable - - not a responsible adult,
7 but an adult. In a perfect world, one would expect
8 when confronting a juvenile or someone underage with
9 alcohol, that they would admit it was supplied by
10 someone else, but invariably I would suspect that they
11 are going to be pointing their finger toward the
12 premises, saying that's where we got it. In the past
13 year, over 75 premises have been found to service
14 underage individuals resulting in numerous citations.
15 So the - - this concern that we do have is directly
16 related to underage drinking.
17 CHAIRMAN BOHL: Okay. Mr. Owczarski, would
18 you concur with me and in terms of addressing some of
19 the concerns expressed by Deputy Inspector Sucik is
20 that our hands are essentially tied by the state in
21 this regard and this is, simply speaking, an attempt
22 to try to regulate or provide a definition so as to,
23 in many respects, avoid and avert some of the
24 co-mingling and efforts that inevitably may happen
25 based on the rather broad and efficientless,
00012
1 definitionless legislation that we have sitting there
2 from the State of Wisconsin.
3 MR. OWCZARSKI: From the first time I was
4 asked to do a research project on this piece, Mr.
5 Chairman, it has been my understanding that all things
6 being equal, the City of Milwaukee has not desired to
7 get in the business of defining this, to get in the
8 business of regulating this and to leave the Marcus
9 Amphitheaters and Riverside Theaters and wherever
10 else, to go about their business as they have been and
11 very successfully and - - and legally. Unfortunately,
12 there have been other establishments that I believe--
13 it's been my understanding, are beginning to force the
14 City's hand, that are attempting to take advantage, as
15 you say, this lack of definition of statutes and are
16 fairly well forcing us to this end.
17 ATTORNEY SCRIMPF: Mr. Chairman, if I
18 could - -
19 CHAIRMAN BOHL: Go ahead Mr. Schrimpf.
20 ATTORNEY SCRIMPF: - - expand on that just
21 a bit. First of all, I certainly concur with the
22 remarks of Deputy Inspector Sucik and Mr. Owczarski.
23 The issue always in this matter is the regulation and
24 prohibition of underage drinking, and it is certainly
25 true that by creating this exemption in the statutes,
00013
1 which is otherwise undefined, it puts the City of
2 Milwaukee in a case - - in a position where without
3 some sort of standards in place to guide the
4 committee decision making and Council decision making,
5 you run the risk of standardless decisions, which is a
6 per se violation of law. And this is some effort,
7 perhaps not the - - not the easiest to understand,
8 perhaps not even the most creative that we can arrive
9 at, to put standards where none exist, and to address
10 exactly those concerns. Make certain, and I think
11 there is something in this particular ordinance that
12 specifically says it is the intention that this
13 designation shall be infrequently and rarely
14 determined and given out. As further guidance to
15 committee and the Council that this is a rare thing,
16 that there are obviously some places like the Marcus
17 Center and Riverside Theater and those sort of places,
18 that very clearly would fall under this definition,
19 and the problem is to try to come up with a definition
20 of the closer cases and to give the committee and the
21 Council some guidance on that and to express the
22 policy that this is not something to be willy-nilly
23 given out to anybody who files an application. That
24 it is a rare thing and that it is precisely aimed at
25 the business of prohibiting underage drinking, which
00014
1 is the general policy of the state law.
2 CHAIRMAN BOHL: Thank you. Any other
3 questions by committee at this point?
4 Is there a motion?
5 ALDERMAN GORDON: I'd move approval at this
6 time.
7 CHAIRMAN BOHL: Okay, the motion by Alderman
8 Gordon is to pass the ordinance.
9 Is there any objection to that? Hearing
10 none, so ordered.
11 * * * * *
00015
1 STATE OF WISCONSIN)
2 MILWAUKEE COUNTY )
3
4 I, JEAN M. BARINA, of Milwaukee Reporters
5 Associated, Inc., do certify that the foregoing
6 transcript was reduced to writing under my direction
7 and that it is a true and accurate transcription of
8 the audio tape from the Utilities and Licensing
9 Hearing Item No. 4 held on September 9, 2003.
10
11
12
JEAN M. BARINA - COURT REPORTER
13
Dated this day of October, 2003.
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15