OPEN AND SHUT CASE

City Attorney Closes the Window on Prosecuting Open Door Violations

a milwaukeeworld.com exclusive

(c) 2005 By Michael Horne

Tavern owners can ring in the New Year with open doors, since City Attorney Grant Langley will apparently not fight a challenge to the constitutionality of Section 90-27-2 of the Milwaukee Code of Ordinances. The section requires Class "B" premises -- taverns, to the rest of us -- to close their doors after 10 p.m.
The ordinance, dating to 1988, was enacted by the Common Council in response to neighborhood complaints of noise emanating from taverns after 10 p.m.
Since that time a number of taverns have beem built featuring "garage door" type facades that open entirely to the street, rendering the ordinance "arbitrary and irrational," according to a court document.
Langley wrote a letter to Anna M. Ruzinski, Deputy Inspector of Police on December 12th, 2005 saying, "under the circumstances, we believe it would be appropriate for the Milwaukee Police Department (MPD) to discontinue enforcing this ordinance until our review of this matter is completed."
It is highly unusual for the City Attorney to ask the police to stop enforcing a law while a case is in progress.
This is good news for Daniel Fitzgibbons, the owner of Fitzgibbons Pub, 1127 N. Water Street. Fitgibbons and his longtime bartender, Joan Shafer, were issued citations for having the 42-inch wide door of the tavern open after 10 p.m., even though neighboring taverns, and many others in the city with the "garage door" style facades were allowed to operate with the apertures open. The citation carried a $343 fine, and perhaps even more importantly, a notation in the files of the Milwaukee Police Department Licuense Investigation Unit, run by Sgt. Chet Ulickey.
Fitzgibbons, an old friend of mine, told me about the tickets, and we discussed the obvious unfairness of the law which allowed the garage door taverns to be entirely open to the street, while punishing him and others similarly situated with conventional walls, windows and doors.
I suggested that he bring his case, "City of Milwaukee v. Daniel Fitzgibbons, Milwaukee Municipal Court Case No. 05087040," to Attorney David Halbrooks, a former Milwaukee Assistant City Attorney and former Municipal Judge.
Halbrooks took the case, and filed a challenge to the constitutionality of the ordinance with the Milwaukee Municipal Court.
Then, one weekend evening, after 10 p.m., on a tour of several east side and downtown establishments equipped with the garage-style doors, I videotaped numerous instances of loud noise emanating from the clubs in question.
I went to Fitzgibbons, accompanied by Halbrooks, and showed him the tape.
The tape then made its way to the city attorney's office, where it apparently did its job, judging from Langley's letter.
The case is to come before Hon. James A. Gramling Jr. on January 13th at 1:30 p.m. at which time Asssistant City Attorney Hazel Mosely will move "to dismiss the above stated case, with prejudice based upon prosecutorial discretion."
Mosely then gave the city attorney's office a face-saving (and self-serving) rationale for her motion, saying, "In the interest of justice the City would like time to evaluate the subject ordinance. Dismissing this action is in the public interest and the defendants will not be harmed in any way by such dismissal on the merits."
Even Attorney General Peg A. Lautenschlager, no stranger to taverns, has decided to dodge the case.
In a letter to Milwaukee Municipal Court dated December 19, 2005, Michael R. Bauer, Assistant Attorney General, said "we have decided not to appear in this matter at this time. The attorney general may seek to appear if the issue of the constitutionality of a statute or ordinance is raised on appeal."
The city issued about 45 citations under the law, with some of them, including Fitgibbons' being multiple violations.
Although the law will not likely be prosecuted again, the city will surely be hearing from tavern owners who received tickets seeking to clear their records.