STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

REGINA R RHYNE, Complainant

THE TOWN OF MADISON BOARD, Respondent

 FAIR EMPLOYMENT DECISION
ERD Case No. CR200003781


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 22, 2003
rhynere . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her twenty-one page submission to the commission, the complainant makes numerous arguments in support of reversal. The commission will address the most significant of those arguments herein.

The complainant makes several arguments about the process to which she was subjected when requesting a loan from the respondent's Economic Development Advisory Committee, and about the respondent's ultimate conclusion that she failed to show an adequate capital commitment to make the business a success. First, the complainant contends that she provided the Committee with evidence of Mr. Bishop's finances, and suggests that any additional financial information regarding Mr. Bishop should have already been on file with the Committee, since he had been operating a business in the Town of Madison, Selective Video, for a few years. The complainant further argues that it was not Mr. Bishop who was requesting a license, and that she should not have been denied a license based upon a lack of additional information from Mr. Bishop. Finally, she maintains that she could have had enough money to start a business, but the respondent kept raising the bar. These arguments are without merit. In the first place, the commission's review of the record reveals nothing which would suggest that the complainant's loan request was subjected to undue scrutiny by the Economic Development Advisory Committee, or, as the complainant has suggested, that it continuously "raised the bar" by imposing new and additional requirements. It is certainly not unreasonable that, prior to recommending that a loan be granted, the Committee would wish to see some evidence regarding the collateral a would-be borrower intends to offer. Where, as here, the borrower intends to secure the loan by having a third party co-sign, the Committee is well within its rights in demanding some information regarding the financial circumstances of that third party. The complainant did not allege at the hearing that the Committee had access to Mr. Bishop's recent financial records and tax statements, and the commission sees no reason to believe this would have been the case. Even if true, however, the Committee's request that the complainant provide it with such information was not unreasonable, and the complainant has not adequately explained why she failed to do so. Where the complainant was unwilling to provide the Committee with the information it needed to recommend granting a loan, and where she lacked sufficient financial resources to satisfy the respondent that her business would not be under-capitalized, the respondent was justified in concluding that the complainant showed an inadequate capital commitment to make the business a success, and could reasonably rely on that rationale as a basis to deny the license application.

Next, the complainant argues that the respondent's other stated reasons to deny her license were "bogus, at best." The complainant maintains that the area in question already has high traffic at certain times of the day and that, by the time her place would have closed, most of those complaining about traffic would be fast asleep. The complainant also argues that there is no reason to assume her business would increase demand on police resources and questions the basis for the police chief's opinion on this point. The complainant observes that, although there have been police calls to the location while vacant, everyone knows that a vacant building would create more problems for police than one containing a thriving business. However, these contentions are speculative and are based solely upon the complainant's personal opinion. While the complainant may disagree with the Town Board, local residents and business owners, and the chief of police regarding the impact her business would have on traffic and police resources, she has not demonstrated that their concerns were unwarranted or irrational, nor has she shown them to be a pretext for discrimination.

The complainant makes the argument that other establishments have been granted alcohol licenses, and suggests that they were treated more favorably based upon the races of the owners of those businesses. (1)   In support of this argument, the complainant maintains that in June of 2001 some Middle Eastern individuals were granted a license to sell alcohol, wine and beer in a convenience store setting, that a Chinese restaurant located in the same building where the complainant hopes to open her establishment had been granted a license to serve alcohol, and that there are at least three bars in the Town of Madison run by white people, to which the police are regularly called to oversee conflicts. Again, the complainant's arguments fail. The commission initially notes that the complainant submitted no evidence at the hearing regarding the convenience store in question, in spite of the fact that the evidence would have been available to her at the time, as the license was allegedly granted prior to the date of the hearing. Moreover, even if such evidence were in the record, a convenience store at which alcohol can be purchased and removed unopened is not comparable to a night club or bar and does not require the same liquor license. Regarding the complainant's allegations that the previous tenant, a Chinese restaurant, had an alcohol license, again a distinction must be drawn between a restaurant at which alcohol is served and which closes at 10:00 p.m., and a nightclub or bar at which food is served and which is open until 2:00 a.m. The emphasis in the former is on the food, while in the latter it is on the alcohol. Any differences in the respective treatment of the license requests for these two establishments can be explained by virtue of the distinct nature of the ventures in question. Finally, the record contains no competent evidence with respect to the complainant's assertion that there are other bars in the Town of Madison owned by white people to which the police are frequently called, and assuming such bars exist, the complainant has not indicated when their alcohol licenses were granted. Consequently, there is no basis to conclude that the respondent willingly grants new alcohol licenses to white individuals, nor even that it renews such licenses without question. The commission further notes that if, in fact, the respondent has several bars in its jurisdiction to which the police are frequently called, it stands to reason that it would be hesitant to license yet another drinking establishment.

Finally, the complainant's petition contains arguments regarding the demeanor of the members of the public who attended the board meeting at which her license was denied. The complainant characterizes that meeting as a "shame and disgrace to humanity" attended by "angry residents who performed as if we were at a public lynching with hatred in their eyes and hearts." However, while the complainant may harbor personal suspicions about the motivations of the speakers at the meeting, nothing in the record suggests that those objecting to the granting of the license did so for discriminatory reasons, and the gist of their comments related to such concerns as traffic, litter, and noise. There is no reason to believe that these individuals, who consisted of neighborhood residents and the operators of nearby businesses, would have been any more receptive to the opening of a nightclub or bar in that location had the complainant been of a different race. Moreover, as the administrative law judge explained in her opinion, even if there were a basis to conclude that some of those attending the meeting objected to the license for discriminatory reasons, it was the Town of Madison Board which made the ultimate decision in this case, not the individual attendees at the meeting.

There is no right to an alcoholic beverage license, and the ultimate question of whether to issue such a license is a matter of local concern. State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 801, 407 N.W. 2d 901 (1987). The commission agrees with the administrative law judge that the respondent presented legitimate, nondiscriminatory reasons for its decision to deny the complainant the license, and the complainant failed to demonstrate that those reasons were a pretext for discrimination. Accordingly, the dismissal of the complaint is affirmed.

 


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Footnotes:

(1)( Back ) While the complainant's complaint is based on both race and sex, her arguments at the hearing and to the commission are limited to race.

 


uploaded 2003/09/02