BRENNAN, J.
¶ 1 Questions, Inc. appeals a circuit court order affirming the City of Milwaukee Common Council's decision to renew Questions' Class B Tavern and Amusement License but to impose a twenty-five day suspension. Questions argues that the Common Council erred in: (1) permitting the Milwaukee Police Department ("MPD") to stand in opposition to Questions' license renewal despite failing to file a written opposition pursuant to Milwaukee, Wis., Ordinance § 90-11-1-b (May 4, 2010);
¶ 2 Questions is a night club owned and operated in the City of Milwaukee by Devon Reid. Questions operates with a Class B Tavern and Amusement License that the City requires be renewed on a yearly basis. When Reid applied to renew the tavern license for 2009, the City sent him a notice informing him that
The notice further informed Reid that a hearing on his application for renewal would be held on January 6, 2009, before the Common Council's Licenses Committee. Attached to the notice was a synopsis of seventy police reports compiled by the MPD, apparently detailing police contact with businesses owned by Reid, including Questions.
¶ 3 The January 6, 2009 hearing was postponed at Questions' request. However, two neighbors who appeared on January 6 were allowed to testify because they had been unaware of the change of date. David Ingvoldstad testified about an incident in which gunfire in front of his home resulted in bullets entering his living room and bedroom windows. Ingvoldstad testified that he believed the shots were related to patrons leaving Questions. He further testified that on nights when Questions was open for business there were problems with noise. Ingvoldstad's wife, Tinghong Lee, also testified about the night that bullets were fired and entered into their home and about noise in the neighborhood on nights when Questions was open.
¶ 4 The City sent Reid another notice, almost identical to the one above, notifying him of the new hearing date of January 26, 2009. The notice included an updated police report synopsis. The contacts involved a wide variety of issues from traffic congestion, noise, fighting, armed robbery, property theft, and shots fired.
¶ 5 The Licenses Committee reconvened on January 26, 2009. On that date, Reid appeared before the Licenses Committee in person and with counsel. Assistant City
¶ 6 Alderman James Bohl, chairman of the Licenses Committee, asked that the police report synopsis be read into the record. Questions objected on the basis that the report was unreliable hearsay. The Committee noted Questions' objection, yet allowed the synopsis to be read into the record.
¶ 7 Several witnesses testified during the hearing, both for and against renewal, including multiple MPD police officers assigned to Questions' neighborhood. At the conclusion of the testimony, Alderman Ashanti Hamilton opined that while there were some issues regarding Questions' use of police services and its impact on the community, a case for non-renewal had not been made. Alderman Hamilton brought a motion for renewal with a twenty-five day suspension based upon the police report synopsis and testimony at the hearing. The motion carried on a four to one vote. Alderman Bohl commented on the police report synopsis stating: "[t]here are some items that I know that I just strongly won't consider" and "there are some items that I just won't necessarily regard."
¶ 8 Assistant City Attorney Schrimpf concluded the hearing by stating that the City Attorney's Office would prepare Findings of Fact and Conclusions of Law, which would be given to Questions for review. Questions asked that the entire Licenses Committee vote on and approve the findings before submitting them to the Common Council. Questions' request was denied and the meeting was adjourned.
¶ 9 The City Attorney's Office prepared the Findings of Fact and Conclusions of Law, which included forty-two of the seventy-four incidents listed in the police report synopsis, all of which occurred at or in the area surrounding Questions. On February 10, 2009, the Findings of Fact and Conclusions of Law were presented to the Common Council; all fifteen members of the Common Council, including all of the members of the Licenses Committee, were present. The members of the Common Council were asked: "Have the members of the Common Council read the Report and Recommendations of the Licenses Committee [to wit, the Findings of Fact and Conclusions of Law drafted by the City Attorney's Office] and the exceptions filed in this matter?" All of the members indicated that they had done so.
¶ 10 On that same date, Questions filed a complaint in Milwaukee County Circuit Court alleging violations of its due process rights and the equal protection clauses of the Wisconsin and United States Constitutions, and requesting a temporary restraining order preventing the enforcement of the twenty-five day suspension until a full hearing on a temporary injunction
¶ 11 Following numerous motions, the circuit court affirmed the Common Council's decision to renew Questions' license with a twenty-five day suspension, vacated the restraining order, and denied all of Questions' other requests for relief. Questions appeals.
¶ 12 Before this court, Questions argues that: (1) the MPD's objection to Questions' license renewal during the January 26 hearing violated MILWAUKEE, WIS., ORDINANCE § 90-11-1-b; (2) the police report synopsis consisted entirely of uncorroborated hearsay and cannot constitute substantial evidence to support the Licenses Committee's factual findings; (3) the Licenses Committee's failure to review and approve the Findings of Fact and Conclusions of Law drafted by the City Attorney's Office violated Wis. STAT. § 125.12(2)(b)3. and MILWAUKEE, WIS., ORDINANCE § 90-11-2-c-2; and (4) the City did not provide Questions the requisite notice of the Licenses Committee's intention not to renew the license in violation of Wis. STAT. § 125.12(3). We address each contention in turn.
¶ 13 On certiorari review, we are 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 of record substantiates its decision. State ex rel. Ortega v. McCaughtry, 221 Wis.2d 376, 385, 585 N.W.2d 640 (Ct.App.1998). We apply these standards de novo to the Common Council's decision, reviewing that decision and not the decision of the circuit court. Kapischke v. County of Walworth, 226 Wis.2d 320, 327, 595 N.W.2d 42 (Ct. App.1999).
¶ 14 Questions first argues that the MPD's objection to Questions' license renewal at the January 26 hearing violated MILWAUKEE, WIS., ORDINANCE § 90-11-1-b. However, we conclude that not only did Questions forfeit its right to raise this issue when it failed to raise it before either the Common Council or the circuit court, but that § 90-11-1-b was not violated.
¶ 15 First, we conclude that Questions forfeited its right to raise this issue on appeal when it failed to raise it before either the Common Council or the circuit court. See State ex rel. Olson v. City of Baraboo Joint Review Bd., 2002 WI App 64, ¶ 23, 252 Wis.2d 628, 643 N.W.2d 796 ("To preserve an issue for appeal, the circuit court must be apprised of a party's objection and the basis for it."). Questions asserts in its appellate brief that before the Licenses Committee it "objected to the MPD's appearance in objection to renewal because the MPD had not filed an objection." In doing so, Questions cites to the following excerpt from the January 26 hearing transcript:
Contrary to Questions' assertion, that portion of the January 26 hearing transcript cited by Questions does not demonstrate that Questions objected to the MPD's appearance against renewal on the grounds that the MPD did not provide notice. Rather, Questions objected to the admission of the police report synopsis on hearsay grounds and to the City Attorney's Office's role in representing both the Common Council, a neutral party, and the MPD, which appeared in opposition.
¶ 16 Nor did Questions raise its MILWAUKEE, WIS., ORDINANCE § 90-11-1-b argument before the circuit court. Before the circuit court, Questions argued that the notice the City provided to Questions, pursuant to MILWAUKEE, WIS., ORDINANCE § 90-11-2 (as opposed to § 90-11-1-b, the ordinance argued on appeal), did not properly notify Questions of the MPD's opposition to license renewal.
¶ 18 Here, the plain language of MILWAUKEE, WIS., ORDINANCE § 90-11-1-b does not support Questions' claim. Section 90-11-1-b states in pertinent part:
(Emphasis added.) We have previously held that "[t]he word `may' in a[n ordinance] is generally construed as permissive unless a different construction is required by the statute to carry out the clear intent of the legislature." Heritage Farms, Inc. v. Markel Ins. Co., 2011 WI App 12, ¶ 9, 331 Wis.2d 64, 793 N.W.2d 896. In other words, the ordinance permitted, but did not require, the MPD to file a written objection. See MILWAUKEE, WIS., ORDINANCE § 90-11-1-b.
¶ 19 We also note that MILWAUKEE, WIS., ORDINANCE § 90-11-1-b does not require a party to file a written objection to renewal before objecting in person at a hearing. In fact, a written objection merely triggers a hearing, at which any number of interested individuals are permitted to testify both for and against renewal. See MILWAUKEE, WIS., ORDINANCE § 90-11-2-b. Questions' contention to the contrary is wholly without merit and ignores the plain language of the ordinance.
¶ 20 Next, Questions submits that there was no substantial evidence to support the Common Council's decision to suspend Questions' tavern license for twenty-five days because the police report synopsis consisted of uncorroborated hearsay that was controverted by in-person testimony. We disagree.
¶ 21 To begin, even assuming, without deciding, that the police report synopsis is hearsay, the Wisconsin Statutes only prohibit the admission of hearsay evidence from "proceedings in the courts of the
¶ 22 In support of its assertion that the police report synopsis was not sufficient substantial evidence to support the Common Council's decision, Questions relies on Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis.2d 111, 692 N.W.2d 572. Questions' reliance on Gehin is misplaced. Gehin stands for the proposition that an administrative agency cannot rely on uncorroborated written hearsay alone when that hearsay is otherwise controverted by in-person testimony. Id., ¶ 4. Here, the Licenses Committee properly relied on the synopsis because it was corroborated by circumstantial evidence in the record, the Licenses Committee relied on other evidence in addition to the synopsis, and the forty-two incidents summarized in the synopsis that were ultimately adopted by the Committee were not each controverted by other evidence in the record.
¶ 23 Several witnesses testified to circumstantially corroborate the forty-two incidents summarized in the police report synopsis that were adopted by the Licenses Committee. One Milwaukee police officer, assigned to the tavern enforcement car, testified that parking, congestion, and noise were all problems in the area around Questions, particularly at bar time. He testified that he had
The officer further testified that property crimes and armed robberies in the area of Questions increased around closing time, and that he had personally smelled marijuana when walking into the club, which indicated to him that illegal drug use occurred within Questions.
¶ 24 Two citizen witnesses who lived near Questions, Ingvoldstad and Lee, also testified generally about conditions in the neighborhood on nights when Questions was open. Ingvoldstad testified that one night he heard gunfire and bullets entered through both his bedroom and living room windows; he believed that the incident was "directly related to the patrons that [were] leaving [Questions]." Ingvoldstad testified that it was often "a free for all out" in front of Questions, that he had concerns about "the traffic or the way the patrons behave and the loud music that comes from the vehicles," that traffic often blocked the alleyway to his home, and that "we rarely get to bed until after things have cleared out." Lee, Ingvoldstad's wife, also testified about the noise at Questions, stating:
¶ 25 Such evidence sufficiently corroborates the forty-two incidents set forth in the police report synopsis that were adopted by the Licenses Committee, detailing traffic congestion, noise, violent crime, drugs, and shots fired, and provides additional evidence to support the Common
¶ 26 Questions argues that the police officer's testimony (and that of several other police officers who testified), as well as the testimony of Ingvoldstad and Lee, cannot corroborate the police report synopsis because they did not testify about specific incidents listed in the synopsis; rather, they testified generally about their experiences in the neighborhood surrounding Questions. However, that is simply not so. The testimony presented sufficiently demonstrated that traffic congestion, property crime, fighting, and occasional gunfire, as set forth in the synopsis, were all at times a concern. That there was no testimony directly related to each of the forty-two incidents listed in the synopsis that were adopted by the Licenses Committee simply goes toward the weight the Committee chose to give to each incident.
¶ 27 Furthermore, while Questions contends that it "offered evidence which contradicted virtually each and every incident contained [i]n the [s]ynopsis," our review of the record revealed no such evidence. Instead, in those excerpts of the January 26 transcript cited by Questions, Questions' counsel merely provided context for the forty-two incidents set forth in the synopsis that were adopted by the Licenses Committee and argued the weight that the Committee should give to each, never addressing the remainder of the items in the synopsis. Counsel never denied the veracity of each of the forty-two incidents addressed. For instance, item number thirty-six in the synopsis stated as follows:
In response, at the January 26 hearing, counsel for Questions stated:
Such statements made by counsel are not testimony and do not controvert the truth of the items in the synopsis. As such, the Common Council was free to consider the synopsis and to give those incidents listed therein whatever weight it deemed appropriate.
¶ 28 Questions argues that the Findings of Fact and Conclusions of Law submitted to the Common Council by the Licenses Committee failed to comport with the requirements of Wis. STAT. § 125.12(2)(b)3. and MILWAUKEE, WIS., ORDINANCE § 90-11-2-c-2 because they were drafted by the City Attorney's Office without input, review, or approval by the Licenses Committee, and they are inconsistent with statements made by Alderman Bohl during the January 26 hearing. Because at the outset of the February 10 Common Council meeting each member of the Licenses Committee acknowledged receiving and reviewing the Findings of Fact and Conclusions of Law, we affirm.
¶ 29 WISCONSIN STAT. § 125.12(2)(b)3. states, in pertinent part, that "[i]f the hearing is held before a committee of a city council, the committee shall submit a report to the city council, including findings of fact, conclusions of law and a recommendation as to what action, if any, the city council should take with respect to the license." MILWAUKEE, WIS., ORDINANCE § 90-11-2-c-2 repeats § 125.12(2)(b)3.'s requirements, using the same language as the statute.
¶ 30 Here, following the January 26 hearing, the City Attorney's Office drafted the Findings of Fact and Conclusions of Law and submitted them to the chairman of the Licenses Committee, Alderman Bohl, who signed them, albeit, electronically. At the Common Council meeting when the Findings of Fact and Conclusions of Law were presented to the Common Council, all of the members of the Common Council, including all of the members of the Licenses Committee, were asked if they had "read the Report and Recommendations of the Licenses Committee and the exceptions filed in this matter."
¶ 31 In other words, on the record before the Common Council, all members of the Licenses Committee acknowledged reading the Findings of Fact and Conclusions of Law drafted by the City Attorney's Office and no member of the Committee spoke up to say that they did not approve of the document as drafted. Each committee member's acknowledgement of receipt and failure to object is sufficient to demonstrate that the document accurately represented the Committee's findings and recommendations. Questions points to no statute or ordinance stating that more needed to be done to secure the committee members' approval.
¶ 33 Additionally, there was nothing preventing Alderman Bohl from reconsidering his statements before the Licenses Committee presented its findings to the Common Council. That Alderman Bohl approved of the final draft on the record before the Common Council is sufficient to satisfy the statute and ordinance. "[T]he committee ... submit[ted] a report to the city council, including findings of fact, conclusions of law and a recommendation as to what action, if any, the city council should take with respect to the license," and the report was approved by all members of the Committee on the record. See Wis. STAT. § 125.12(2)(b)3.; MILWAUKEE, WIS., ORDINANCE § 90-11-2-c-2. No more is required.
¶ 34 Finally, Questions argues that the notices the City sent to Questions, informing it of the January 6 and January 26 hearings, failed to comply with Wis. STAT. § 125.12(3) and MILWAUKEE, WIS., ORDINANCE § 90-11-2 because the notices: (1) did not properly inform Questions of the Licenses Committee's "intention not to renew"; and (2) did not include "neighborhood objections." Questions' claim is entirely without merit.
¶ 35 WISCONSIN STAT. § 125.12(3) states, in pertinent part:
MILWAUKEE WIS., ORDINANCE § 90-11-2 likewise requires that
¶ 36 Questions clings to the phrase, found in both the statute and the ordinance, that the notice must inform the applicant of the Common Council's "intention not to renew" the license, and submits that the notices sent by the City to Questions were insufficient because they merely stated that "[t]here is a possibility that
¶ 37 While Wis. STAT. § 125.12(3) and MILWAUKEE, WIS., ORDINANCE § 90-11-2 do both require the Common Council to notify the applicant of the Common Council's "intention not to renew," the statute and ordinance also require that the notice inform the applicant of a hearing at which the matter will be affirmatively decided. As the matter cannot be affirmatively decided before the hearing, it is of course only a possibility that the applicant's license will not be renewed at the time the notice is sent. If there was no possibility that the hearing would persuade the Common Council that the license should be renewed, and in fact the Common Council's intent to deny was not a mere possibility but affirmatively set in stone, Questions would be before us arguing that its due process rights had been violated. In other words, by informing Questions that "[t]here is a possibility that your application may be denied," the Common Council properly informed Questions of its "intention not to renew."
¶ 38 As for Questions second assertion, that the City's notices of the January 6 and January 26 renewal hearings were inadequate because they did not include any written neighborhood objections submitted pursuant to MILWAUKEE, WIS., ORDINANCE § 90-11-1-b, we conclude that such written objections were not necessary to trigger a hearing. The fourteen page police report synopsis properly notified Questions of the basis for the possibility of non-renewal or suspension. Questions provides no citations that suggest greater specificity is required.
Order affirmed.