March/April 2017 Issue

Also in this issue: Recreational Immunity Applied When Grandparent Injured While Supervising Grandchildren at City-Owned Pool     |     Wisconsin Supreme Court Rules That The Public Can Carry Concealed Weapons On Public Transportation     |     Employer Attendance Policies and Unemployment Compensation

Court of Appeals Upholds Oshkosh Special Events Ordinance

Julia Potter | 02.28.17

In its recent decision in City of Oshkosh v. Kubiak, 2016AP804 (Feb. 15, 2017), the Wisconsin Court of Appeals held that the City of Oshkosh special events ordinance was not unconstitutionally vague because it used the term ​“organizer” without defining it.

The City of Oshkosh had a special events ordinance that attempted to defray the extra costs incurred by the City during special events. The ordinance required the ​“person or entity acting as an event organizer” to obtain a permit from the City prior to holding certain types of special events. It also allowed the City to demand reimbursement for extraordinary services provided by the City in connection with the event — for example, police protection, traffic control, or paramedic services. 

The lawsuit arose from the semi-annual Oshkosh Pub Crawl, an event during which college students patronize taverns in downtown Oskhosh en masse. Because of the increased foot traffic and intoxicated bar patrons, the City provides a number of costly extraordinary services on the night of the event. In prior years, Joseph Kubiak, through Oshkosh Pub Crawl, LLC, had applied for a permit and paid the City for extraordinary services pursuant to the ordinance. In 2014, however, the event was held without a permit and Kubiak refused to reimburse the City for the services it provided in connection with the event. The City sued Kubiak to recover its costs. 

In general, procedural due process requires that an ordinance be clear enough to provide fair notice to the public of what the ordinance prohibits and to provide reasonably clear guidelines to law enforcement and courts about how to enforce the ordinance. The Circuit Court sided with Kubiak, ruling that the ordinance, which applied to the ​“organizer” of an event but did not specifically define the term ​“organizer,” was so vague that it was impossible to determine whether Kubiak had violated it. 

The Court of Appeals disagreed, noting that ordinances are initially presumed to be constitutional. When interpreting an ordinance, a court gives an undefined, nontechnical word like ​“organizer” its ​“ordinary and accepted meaning,” which is often determined by referring to a dictionary. The court compared a number of dictionary definitions for the word ​“organizer” and concluded that the definition was sufficiently definite that ​“people of ordinary intelligence can read and sufficiently understand the requirements” of the ordinance. In addition, the court pointed to criminal statutes using the undefined term ​“organizer” which have been held by other courts to be enforceable. Ultimately, the Court of Appeals reversed the Circuit Court’s holding and concluded that the ordinance was not unconstitutionally vague and was therefore enforceable. 

Drafting a good ordinance is a balancing act. Failing to define key terms in ordinances can give rise to costly litigation, as happened in this case. However, it is neither possible nor desirable to define every single word. As this case confirms, courts will generally interpret nontechnical words according to their commonly understood definitions. 

— Julia Potter