Walker's Lounge Events LLC v. City of Milwaukee

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 18, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1756 Cir. Ct. No. 2023CV1054

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN EX REL. WALKER’S LOUNGE EVENTS LLC AND
STATE OF WISCONSIN EX REL. FELIPE MARTINEZ, JR.,

PETITIONERS-APPELLANTS,

V.

CITY OF MILWAUKEE AND CITY OF MILWAUKEE COMMON COUNCIL,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed.

Before Donald, P.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1756

¶1 PER CURIAM. Walker’s Lounge Events LLC and Felipe
Martinez, Jr. (collectively Walker’s Lounge) appeal from an order of the circuit
court upholding a decision of the City of Milwaukee and City of Milwaukee
Common Council (collectively the Common Council) denying the renewal of
licenses for the operation of Walker’s Lounge. For the reasons set forth below, we
affirm.

BACKGROUND

¶2 Walker’s Lounge owned and operated a restaurant, lounge, and
event space located at 626 South 5th Street in Milwaukee beginning in the fall of
2019. As a requirement for operation, Walker’s Lounge held a Class B Tavern
License, a Food Dealer License, and a Public Entertainment Premises License.

¶3 Walker’s Lounge sought to renew its licensing in November 2022
and, as part of the renewal process, it received a notice for a hearing scheduled for
January 4, 2023, before the Common Council’s Licenses Committee to discuss
renewing the licensing for Walker’s Lounge.1 A copy of a report from the
Milwaukee Police Department (MPD) listing police contacts connected to
Walker’s Lounge and some photographs were attached to the notice.

¶4 Walker’s Lounge appeared before the Licenses Committee on
January 4, 2023, and the Licenses Committee rescheduled the matter for a later

1
While neither party makes mention of this fact, we note that the renewal application
contained in the record indicates that the license for Walker’s Lounge was renewed with a
suspension on a previous occasion. The Alcohol Beverage Status Sheet indicates that the license
for Walker’s Lounge was previously renewed with a ten-day suspension, and the bottom of the
Business Renewal Application indicates that the license was previously renewed with a
suspension.

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No. 2023AP1756

date, primarily to allow for investigation of a shooting that had just occurred at
Walker’s Lounge on January 1, 2023.

¶5 Walker’s Lounge received a second notice for a hearing to be held
on January 24, 2023, before the Licenses Committee. A revised MPD report and
photographs were attached to the notice. The revised MPD report contained many
of the same incidents as the original report; however, there were several additional
entries, including several reports from patrons of Walker’s Lounge of firearms
stolen from their vehicles parked on the public streets while they were at Walker’s
Lounge. Notably, the revised MPD report included the shooting from January 1,
2023. The report indicated that the incident began with a fight inside Walker’s
Lounge and ended with shots being fired both inside and directly outside of
Walker’s Lounge. The revised MPD report further indicated that MPD submitted
a notice designating Walker’s Lounge as a nuisance premises following the
January 1, 2023 shooting.2

¶6 In advance of the January 24, 2023 hearing, counsel for Walker’s
Lounge submitted a letter to the Licenses Committee describing changes Walker’s
Lounge made in response to the shooting. The changes included implementing a
dress code that prohibited certain items such as book bags and oversized coats,
hiring new security guards, and requiring routine security training. The letter
emphasized that Walker’s Lounge had been cooperative with police, and the letter
further described that Walker’s Lounge was actively engaged in the community
over the past year and met with community members and the MPD to address

2
Walker’s Lounge challenged the nuisance designation and, citing to publically
available records, indicates in its brief that this nuisance designation was overturned.

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No. 2023AP1756

several concerns related to the operation of Walker’s Lounge and similar
establishments in the area.

¶7 On January 24, 2023, the Licenses Committee took up the matter of
renewing the licensing for Walker’s Lounge. An MPD officer read the MPD
report into the record. Martinez testified for Walker’s Lounge and answered
questions from the Licenses Committee. Two residents from the neighborhood
also testified in opposition to the renewal. Both residents generally described
fighting and yelling attributed to patrons of Walker’s Lounge and other similar
establishments in the area and problems with broken glass and other garbage
littering the sidewalks. At the end of the hearing, the Licenses Committee voted
4-0 to recommend denying the renewal of the licensing for the operation of
Walker’s Lounge.

¶8 The Licenses Committee prepared a report dated January 26, 2023,
which included Findings of Fact and Conclusions of Law, for the Common
Council. In the report, the Licenses Committee summarized the contents of the
hearing and recommended denying renewal of the licensing for Walker’s Lounge.
Specifically, the Licenses Committee stated that “the evidence presented
demonstrates that the operation results in a threat to health, safety, and welfare of
the public” and licensing for the operation of Walker’s Lounge should not be
renewed.

¶9 Walker’s Lounge submitted objections to the report on February 1,
2023; however, at the time Walker’s Lounge submitted its objections, it asserted
that it had not yet received a copy of the report from the Licenses Committee. In
fact, Walker’s Lounge alleged that it did not receive a copy of the report from the

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No. 2023AP1756

Licenses Committee until February 2, 2023, the day after its objections to the
report were due.

¶10 On February 7, 2023, the Common Council took up the matter of
licensing for Walker’s Lounge. Walker’s Lounge appeared by counsel, presented
an argument, and took questions. Following discussion, the Common Council
found that the preponderance of the evidence showed that renewal was a threat to
the health, safety, and welfare of the public and denied renewal of the licensing for
Walker’s Lounge by a unanimous vote of 12-0.

¶11 On February 9, 2023, Walker’s Lounge sought certiorari review in
the circuit court, along with a temporary restraining order and injunctive relief.
The circuit court entered an order signed February 11, 2023, granting the
temporary restraining order, and then held a hearing on February 14, 2023,
addressing the issue of the injunction. At the hearing on the injunction, the circuit
court heard testimony from Martinez, an MPD officer, and the alderman for the
district for Walker’s Lounge, Alderman Jose G. Perez. Walker’s Lounge also
introduced documentation previously provided to the circuit court via affidavit
about the treatment of other businesses facing a license renewal following an
incident at the business.

¶12 On March 3, 2023, the circuit court issued a proposed order denying
the injunction, denying the writ of certiorari, and affirming the decision of the
Common Council. In response to the proposed order, Walker’s Lounge submitted
a letter to the circuit court contending that the circuit court’s order was premature
because the current issue before the circuit court dealt solely with the injunction.
Walker’s Lounge further pointed out that the circuit court could not yet rule on the
writ because the Common Council had not yet certified the record of its

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No. 2023AP1756

proceedings to the circuit court. On March 6, 2023, despite the letter from
Walker’s Lounge, the circuit court signed its proposed order denying the
injunction, denying the writ for certiorari, and affirming the decision of the
Common Council.

¶13 On March 9, 2023, the circuit court, sua sponte, vacated its order
issued on March 6, 2023, and citing a manifest error of fact and law, issued a new
order denying the injunction requested by Walker’s Lounge, reinstating the
temporary restraining order, and holding open the question of whether the writ
should be granted. The Common Council subsequently certified the record of its
proceedings to the circuit court, and the parties provided additional briefing on the
issue of whether the writ should be granted.

¶14 As a part of the additional proceedings, Walker’s Lounge sought to
have the circuit court judge recuse himself because the premature order from
March 6, 2023, was proof that the circuit court had prejudged the matter and could
no longer be impartial. The circuit court denied the request.

¶15 Ultimately, the circuit court upheld the decision to deny renewal of
the licensing for Walker’s Lounge. Walker’s Lounge appeals.

DISCUSSION

¶16 We review the final decision of a municipal board by certiorari
review. Nowell v. City of Wausau, 2013 WI 88, ¶48, 351 Wis. 2d 1, 838 N.W.2d
852. On certiorari review, our review is “limited to determining whether: (1) the
governmental body’s decision was within its jurisdiction, (2) the body acted
according to law, (3) the decision was arbitrary or oppressive, and (4) the evidence

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No. 2023AP1756

of record substantiates its decision.” State ex rel. Bruskewitz v. City of Madison,
2001 WI App 233, ¶11, 248 Wis. 2d 297, 635 N.W.2d 797.

¶17 We review de novo the decision of the municipality, not that of the
circuit court. Id. During our review, we apply a presumption of correctness and
validity to the municipality’s decision, and the petitioner bears the burden of
overcoming this presumption. Ottman v. Town of Primrose, 2011 WI 18, ¶¶48,
50, 332 Wis. 2d 3, 796 N.W.2d 411.

¶18 On appeal, Walker’s Lounge argues that the Common Council’s
decision was arbitrary, oppressive, and unreasonable because the decision is not
supported by the record and is inconsistent with the Common Council’s general
practice of using progressive discipline.

¶19 When we review a challenge to the evidence supporting a
municipality’s decision, we do not weigh the evidence but rather assess whether
substantial evidence in the record supports the municipality’s decision. Cohn v.
Town of Randall, 2001 WI App 176, ¶26, 247 Wis. 2d 118, 633 N.W.2d 674.
“Substantial evidence does not mean a preponderance of the evidence. Rather, the
test is whether, taking into account all the evidence in the record, ‘reasonable
minds could arrive at the same conclusion as the [municipality].’” Madison Gas
& Elec. Co. v. PSC, 109 Wis. 2d 127, 133, 325 N.W.2d 339 (1982) (citation
omitted). Under this standard, we uphold the municipality’s decision unless “a
reasonable trier of fact could not have reached [the decision] from all the evidence
before it[.]” Nestlé USA, Inc. v. DOR, 2011 WI 4, ¶23, 331 Wis. 2d 256, 795
N.W.2d 46.

¶20 We conclude that the Common Council’s decision was not arbitrary,
oppressive, or unreasonable, and the record reflects that the decision was

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No. 2023AP1756

supported by substantial evidence. As the Common Council points out, the
shooting incident from January 1, 2023, alone provides sufficient grounds to deny
renewal of the licensing for Walker’s Lounge. Nevertheless, there are several
other pieces of evidence contained in the record certified by the Common Council
that support the decision, including the testimony from the two neighborhood
residents opposing renewal and several additional incidents listed in the MPD
report. See Questions, Inc. v. City of Milwaukee, 2011 WI App 126, ¶¶20-26,
336 Wis. 2d 654, 807 N.W.2d 131 (discussing incidents contained in a police
report and general neighborhood opposition as evidence supporting a license
decision). From this evidence, reasonable minds could arrive at the same
conclusion that the preponderance of the evidence demonstrated that renewal of
the licenses for Walker’s Lounge was a threat to the health, safety, and welfare of
the public.3

¶21 We further reject the attempt to overturn the Common Council’s
decision as arbitrary and oppressive because it is inconsistent with a general
practice to impose progressive discipline. In making this argument, Walker’s
Lounge provides an affidavit listing several instances where it contends the
Common Council renewed the licenses of local establishments with warnings or a
brief suspension following a shooting incident similar to the shooting incident at

3
Indeed, MILWAUKEE, WIS., CODE OF ORDINANCES (MCO) § 85-4-4-c (2023), currently
states that activities including, but not limited to, disturbance of the peace, theft, assaults, battery,
excessive littering, and loud noise at times when a licensed premises is open for operation are all
grounds for nonrenewal, suspension, or revocation.

All references to the MCO are to the 2023 version unless otherwise noted.

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No. 2023AP1756

Walker’s Lounge, and by deciding nonrenewal was appropriate here, the Common
Council treated Walker’s Lounge differently from these other establishments.4

¶22 The Common Council responds that we should not consider the
additional evidence submitted by Walker’s Lounge because we are confined to the
record of the municipality’s proceedings on certiorari review and the evidence
provided via affidavit by Walker’s Lounge improperly raises evidence outside of
that record.

¶23 In general, “[w]hen conducting common law certiorari review, a
court reviews the record compiled by the municipality and does not take any
additional evidence on the merits of the decision.” Ottman, 332 Wis. 2d 3, ¶35.
Pursuant to WIS. STAT. § 125.12(2)(d) (2023-24),5 a circuit court may take
evidence related to one of the four prongs of certiorari review. Nowell, 351
Wis. 2d 1, ¶48. However, the taking of evidence permitted under § 125.12(2)(d) is
not intended to enlarge the scope of certiorari review. Nowell, 351 Wis. 2d 1, ¶48.
Moreover, the municipality record may be enlarged only in certain instances and
upon a prima facie showing of disparate treatment. See Sills v. Walworth Cnty.
Land Mgmt. Comm., 2002 WI App 111, ¶42, 254 Wis. 2d 538, 648 N.W.2d 878;
see also Nowell, 351 Wis. 2d 1, ¶48 n.8.

4
We note that, despite contrary references in the record from the Common Council,
Walker’s Lounge asserts that it has never received any discipline in the form of a warning or
suspension and this lack of any warning or suspension is the primary reason behind the argument
that Walker’s Lounge has been treated differently. However, because neither party has explained
the references in the record to a prior suspension, we do not discuss the matter further other than
to note that Walker’s Lounge would be no different from any other establishment should the
licenses have been suspended during a prior renewal period.
5
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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No. 2023AP1756

¶24 In this case, Walker’s Lounge provided an affidavit with additional
information not contained in the record provided by the municipality without also
filing a corresponding motion making a prima facie showing of disparate
treatment to enlarge the record with this additional information. Given the general
premise that court review is limited to the record certified by the municipality and
the lack of a prima facie showing of disparate treatment, we do not consider the
additional evidence provided by Walker’s Lounge, and we reject the attempt to
overturn the Common Council’s decision as arbitrary, oppressive, and
unreasonable on this basis.

¶25 Walker’s Lounge further argues that it was denied due process
because the hearing notice was not legally compliant, the municipality’s
proceedings had no reliable standards or an impartial decision maker, and the
circuit court judge was objectively biased.

¶26 As to the hearing notice, Walker’s Lounge argues that the notice it
received was insufficient and failed to comply with the following requirements of
MCO § 85-3-1-b by including in the notice: (1) “[a] statement of the common
council’s intent to revoke, suspend or not renew the license or permit if objections,
charges or allegations are found to be true”; (2) “[a] statement of the specific
reasons for revocation, suspension or nonrenewal”; and (3) “[a] statement that,
upon conclusion of a hearing before the committee, the committee will prepare a

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No. 2023AP1756

written report and recommendation to the common council, and shall provide a
copy of the report and recommendation to the applicant.”6

¶27 In the first part of its due process argument involving the notices,
Walker’s Lounge in essence argues that the notice it received was not properly
particularized. We disagree, and we conclude that the language contained in the
notices that there was a possibility of nonrenewal and the MPD reports attached to
each of the notices provided sufficient notice. See Questions, Inc., 336 Wis. 2d
654, ¶¶36-38.7

¶28 In the second part, Walker’s Lounge takes issue with its receipt of
the report from the Licenses Committee on February 2, 2023, the day after
objections to the report were due. On this point, we first note that MCO § 85-3-1-
b-7 does not provide any statement about when the Licenses Committee’s report
must be received and the receipt of the report in relation to any deadline for
objections. Nevertheless, citing to MCO § 85-3-1-b-7, Walker’s Lounge takes
issue with the timing of its receipt of the report from the Licenses Committee on
February 2, 2023, in relation to the due date of February 1, 2023, for objections to
the report.

6
Given the arguments raised by the parties, we limit our discussion to MCO § 85-3-1-b.
However, we note that prior cases involving the renewal of a Class B Tavern license, similar to
the one here, have based the discussion on the requirements of MCO § 90-11, which is the section
on license renewal in the chapter applying to liquor and tavern regulations. See, e.g., Questions,
Inc. v. City of Milwaukee, 2011 WI App 126, ¶¶34-35, 336 Wis. 2d 654, 807 N.W.2d 131. As no
argument has been raised using MCO § 90-11, we do not discuss it further.
7
To the extent that Walker’s Lounge relies on Family Dollar Stores of Wisconsin LLC
v. City of Milwaukee, No. 2021AP1432, unpublished slip op. (WI App Oct. 11, 2022), we note
that the court indicated that the notice in Family Dollar was missing the police reports that were
supposed to be attached. Id., ¶¶28-29.

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No. 2023AP1756

¶29 The Common Council responds that it was not aware prior to its
receipt of objections from Walker’s Lounge that Walker’s Lounge had not
received the report from the Licenses Committee prior to its February 1, 2023
deadline to file objections. The Common Council further responds that, had it
been aware that Walker’s Lounge had not received a copy of the report prior to the
February 1, 2023 deadline to file objections, the Common Council would have
accepted objections from Walker’s Lounge after the originally stated deadline of
February 1, 2023.

¶30 Given that Walker’s Lounge failed to inform the Common Council
that it had not received the report and yet still filed detailed and relevant objections
by the February 1, 2023 deadline, we cannot say that the process afforded to
Walker’s Lounge impaired its ability to defend itself in front of the Common
Council. See State ex rel. DeLuca v. Common Council of Franklin, 72 Wis. 2d
672, 679-80, 242 N.W.2d 689 (1976) (rejecting a due process challenge on
certiorari review when the ability to present a defense was not impaired).8

¶31 Walker’s Lounge additionally argues that it was denied due process
because it was deprived of an impartial decision maker both during the
municipality proceedings and the proceedings before the circuit court. As to the
partiality of the decision maker during the municipality proceedings, Walker’s
Lounge argues that the proceedings were entirely based on aldermanic privilege
and the opinion and preference of Alderman Perez. We disagree.

8
To the extent Walker’s Lounge argues that the notice was insufficient for failing to
include a statement about the report in the notice, we reject its argument for the same reason.

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No. 2023AP1756

¶32 The report of the Licenses Committee and the decision of the
Common Council both clearly state that the decision not to renew the licensing for
Walker’s Lounge was evaluated using the preponderance of the evidence, and
considering the MPD report and the applicant and resident testimony, the
preponderance of the evidence showed that renewal resulted in a threat to the
health, safety, and welfare of the public.9 We have already established that the
MPD report and resident testimony in opposition to the renewal was substantial
evidence supporting the Common Council’s decision, and having met that
standard, we reject the argument made by Walker’s Lounge that Alderman Perez,
as the alderman for the district, improperly exercised aldermanic privilege and
inappropriately influenced the decision in this matter.

¶33 Last, Walker’s Lounge argues that the circuit court judge was
objectively biased under WIS. STAT. § 757.19(2)(g), and should have recused
himself. See id. (requiring recusal “[w]hen a judge determines that, for any
reason, he or she cannot, or it appears he or she cannot, act in an impartial
manner”). Walker’s Lounge supports its argument using the March 6, 2023 order
in which the circuit court affirmed the decision of the Common Council before the
record of the proceedings had been certified. Walker’s Lounge then compares this
order to the final order entered by the circuit court affirming the decision of the
Common Council and contends that the near identical nature of the two orders is
evidence that the matter was prejudged.

9
The preponderance of the evidence standard has been codified in MCO § 85-4-4 since
the time of the renewal proceedings for Walker’s Lounge. Nonetheless, the record reflects that
the Licenses Committee and the Common Council applied a preponderance of the evidence
standard when evaluating the evidence submitted in this case.

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No. 2023AP1756

¶34 “The determination of a basis for disqualification here is subjective.”
Sharpley v. Sharpley, 2002 WI App 201, ¶16, 257 Wis. 2d 152, 653 N.W.2d 124.
“It does not require disqualification in a situation where one other than the judge
objectively believes there is an appearance that the judge is unable to act in an
impartial manner.” Id. “Thus, the test is a subjective one committed to the
judgment of the trial court.” Id., ¶17.

¶35 Despite the improperly issued order on March 6, 2023, the circuit
court continued with the proceedings by reviewing the record and entertaining
additional briefing from the parties before issuing a final order denying the
requested injunction and affirming the decision of the Common Council. At a
hearing to address the recusal request from Walker’s Lounge, the circuit court
stated that its “focus is obviously remaining fair and impartial and independent
and deciding the case based upon the facts and the record before [it] and the
applicable law.” The circuit court further stated, “The [c]ourt will perform its duty
by deciding this case fairly, impartially, independently, based upon the record
before [it] and the law as it is to be applied, and not based upon any previous
decision this [c]ourt may have made in this matter.” We, therefore, conclude that
the record does not demonstrate that the circuit court was objectively biased in any
way. See Sharpley, 257 Wis. 2d 152, ¶17.

¶36 Accordingly, we reject the arguments of Walker’s Lounge, and we
affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

14