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Scott Hegwood, et al v. City of Eau Claire

April 9, 2012

SCOTT HEGWOOD, ET AL., PLAINTIFFS-APPELLANTS,
v.
CITY OF EAU CLAIRE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Wisconsin. No. 09 C 350-William M. Conley, Chief Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED JANUARY 20, 2012

Before FLAUMand ROVNER, Circuit Judges, and CASTILLO, District Judge.*fn1

The Nasty Habit Saloon (the "Nasty Habit"), a popular bar operating in Eau Claire, Wisconsin, lost its liquor license after a series of altercations between its employees and its customers re- quiring police intervention. The Nasty Habit's license was revoked pursuant to Wis. Stat. § 125.12(2)(ag)(2), which provides that a liquor license can be revoked or suspended if the holder "keeps or maintains a disorderly or riotous, indecent or improper house." Scott Hegwood, an agent of the Nasty Habit, challenges the "disorderly house" statute arguing that it is unconstitutionally vague. The district court rejected Hegwood's arguments.

For the reasons set forth below, we affirm.

I. Background

This dispute arose out of action taken by the City of Eau Claire, Wisconsin (the "City") against the Nasty Habit, a popular bar among the college-aged crowd. Despite its popularity, a number of raucous incidents caused the City concern. Specifically, during 2005, there were repeated disturbances involving drunk patrons and fights between customers and Nasty Habit employees. On September 19, 2005, Hegwood met with City officials to discuss their concerns regarding the operation of the Nasty Habit. The City's worries included the Nasty Habit's failure to have uniformed employees, and its failure to properly train its employees and maintain a customer head-count. After the meeting, Hegwood agreed to make certain changes.

On November 1, 2005, police were called to intervene in an altercation between an unruly customer and the bar's staff. Following that incident, on December 21, 2005, the City sent Hegwood a letter concluding that the Nasty Habit was a "disorderly house" as defined by statute, and cataloguing several incidents supporting its conclusion. Pursuant to Wis. Stat. § 125.12(2)(ag)(2), a liquor license holder may have its license revoked if the license holder "keeps or maintains a disorderly or riotous, indecent or improper house." The letter also noted that despite the promise of change, the bar's policies had not noticeably improved. The City gave an ultimatum: voluntarily close for three weeks or the City would seek suspension or revocation of the bar's alcohol license before the City's Administrative Review Board. Hegwood rejected the offer of a temporary sus-pension.

Unfortunately, the situation at the Nasty Habit did not improve. On January 23, 2006, a customer was sent to the hospital for detoxification, and soon afterward, on February 11, 2006, another fight broke out at the bar, again involving both staff and patrons.

On March 1, 2006, the City issued a summons and complaint, filed by Chief of Police Jerry Matysik and City Attorney Stephen Nick, seeking revocation or suspension of the Nasty Habit's Combination Class B Intoxicating Liquor & Fermented Malt Beverage license. The complaint alleged that Nasty Habit employees kept a "disorderly house" as defined by Wis. Stat. § 125.12(2)(ag)(2), and thereby posed a threat to the health, safety, and welfare of the public under Wis. Stat. § 62.11(5).*fn2 The City's complaint was based on eight incidents which occurred between November 20, 2003 and February 11, 2006. The majority of the incidents, however, related to events during the late spring and summer of 2005, all of which required some level of police intervention. The complaint primarily detailed fighting between patrons, bouncers, and other Nasty Habit employees. The City Council conducted an administrative hearing on the complaint, and subsequently revoked the Nasty Habit's alcohol license, concluding that it kept or maintained a "disorderly house" in violation of state law. An appeal of the revocation was filed, but dismissed by stipulation so that Nasty Habit, Inc. could sell its bar business.

Following the appeal's dismissal, Hegwood filed suit in the Western District of Wisconsin alleging retaliation, denial of equal protection, and due process violations. The district court granted defendants' motion for sum-mary judgment in its entirety. Hegwood now appeals, but limits his challenge to his alleged due process violations.

II. Discussion

We review the constitutionality of a statute, a question of law, de novo. United States v. Moore, 644 F.3d 553 (7th Cir. 2011). Hegwood challenges the Wisconsin statute on two grounds, arguing that the statute is unconstitutionally vague both on its face, and as applied to the Nasty Habit. Specifically, he contends that its vague language rendered compliance impossible, and enforcement arbitrary.

The void for vagueness doctrine rests on the basic due process principle that a law is unconstitutional if its prohibitions are not clearly defined. Sherman ex rel. Sherman v. Koch, 623 F.3d 501, 519 (7th Cir. 2010). The due process clause, though, does not demand "perfect clarity and precise guidance." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Rather, a statute is only unconstitutionally vague "if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a ...


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