Scott Hegwood v. City of Eau Claire

The Honorable Ruben Castillo, United States District Court å
for the Northern District of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1999
SCOTT HEGWOOD, et al.,
Plaintiffs-Appellants,
v.
CITY OF EAU CLAIRE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09 C 350—William M. Conley, Chief Judge.
ARGUED JANUARY 20, 2012—DECIDED APRIL 9, 2012
Before FLAUM and ROVNER, Circuit Judges, and CASTILLO,
District Judge.å
FLAUM, Circuit Judge. The Nasty Habit Saloon (the
“Nasty Habit”), a popular bar operating in Eau Claire,
Wisconsin, lost its liquor license after a series of alter-
cations between its employees and its customers re-

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2 No. 11-1999
quiring police intervention. The Nasty Habit’s license
was revoked pursuant to Wis. Stat. § 125.12(2)(ag)(2),
which provides that a liquor license can be revoked or
suspended if the holder “keeps or maintains a disorderly
or riotous, indecent or improper house.” Scott Hegwood,
an agent of the Nasty Habit, challenges the “disorderly
house” statute arguing that it is unconstitutionally
vague. The district court rejected Hegwood’s arguments.
For the reasons set forth below, we affirm.
I. Background
This dispute arose out of action taken by the City of
Eau Claire, Wisconsin (the “City”) against the Nasty
Habit, a popular bar among the college-aged crowd.
Despite its popularity, a number of raucous incidents
caused the City concern. Specifically, during 2005, there
were repeated disturbances involving drunk patrons
and fights between customers and Nasty Habit employ-
ees. On September 19, 2005, Hegwood met with City
officials to discuss their concerns regarding the opera-
tion of the Nasty Habit. The City’s worries included the
Nasty Habit’s failure to have uniformed employees, and
its failure to properly train its employees and main-
tain a customer head-count. After the meeting, Hegwood
agreed to make certain changes.
On November 1, 2005, police were called to intervene
in an altercation between an unruly customer and the
bar’s staff. Following that incident, on December 21, 2005,
the City sent Hegwood a letter concluding that the
Nasty Habit was a “disorderly house” as defined by

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No. 11-1999 3
Pursuant to statute, “[t]he council shall have the management 2
and control of the city property, finances, highways, navigable
(continued...)
statute, and cataloguing several incidents supporting
its conclusion. Pursuant to Wis. Stat. § 125.12(2)(ag)(2),
a liquor license holder may have its license revoked if
the license holder “keeps or maintains a disorderly or
riotous, indecent or improper house.” The letter also
noted that despite the promise of change, the bar’s
policies had not noticeably improved. The City gave an
ultimatum: voluntarily close for three weeks or the
City would seek suspension or revocation of the bar’s
alcohol license before the City’s Administrative Review
Board. Hegwood rejected the offer of a temporary sus-
pension.
Unfortunately, the situation at the Nasty Habit did
not improve. On January 23, 2006, a customer was sent to
the hospital for detoxification, and soon afterward, on
February 11, 2006, another fight broke out at the bar,
again involving both staff and patrons.
On March 1, 2006, the City issued a summons and
complaint, filed by Chief of Police Jerry Matysik and City
Attorney Stephen Nick, seeking revocation or suspen-
sion of the Nasty Habit’s Combination Class B
Intoxicating Liquor & Fermented Malt Beverage license.
The complaint alleged that Nasty Habit employees
kept a “disorderly house” as defined by Wis. Stat.
§ 125.12(2)(ag)(2), and thereby posed a threat to the
health, safety, and welfare of the public under Wis. Stat.
§ 62.11(5). The City’s complaint was based on eight2

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4 No. 11-1999
(...continued) 2
waters, and the public service, and shall have power to act for
the government and good order of the city, for its commercial
benefit, and for the health, safety, and welfare of the public,
and may carry out its powers by license, regulation, suppres-
sion, borrowing of money, tax levy, appropriation, fine, impris-
onment, confiscation, and other necessary or convenient
means. The powers hereby conferred shall be in addition
to all other grants, and shall be limited only by express lan-
guage.” Wis. Stat. § 62.11(5).
incidents which occurred between November 20, 2003
and February 11, 2006. The majority of the incidents,
however, related to events during the late spring and
summer of 2005, all of which required some level of police
intervention. The complaint primarily detailed fighting
between patrons, bouncers, and other Nasty Habit em-
ployees. The City Council conducted an administrative
hearing on the complaint, and subsequently revoked the
Nasty Habit’s alcohol license, concluding that it kept
or maintained a “disorderly house” in violation of state
law. An appeal of the revocation was filed, but dismissed
by stipulation so that Nasty Habit, Inc. could sell its
bar business.
Following the appeal’s dismissal, Hegwood filed suit
in the Western District of Wisconsin alleging retaliation,
denial of equal protection, and due process violations.
The district court granted defendants’ motion for sum-
mary judgment in its entirety. Hegwood now appeals,
but limits his challenge to his alleged due process viola-
tions.

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No. 11-1999 5
II. Discussion
We review the constitutionality of a statute, a ques-
tion of law, de novo. United States v. Moore, 644 F.3d 553
(7th Cir. 2011). Hegwood challenges the Wisconsin
statute on two grounds, arguing that the statute is uncon-
stitutionally vague both on its face, and as applied to
the Nasty Habit. Specifically, he contends that its vague
language rendered compliance impossible, and enforce-
ment arbitrary.
The void for vagueness doctrine rests on the basic
due process principle that a law is unconstitutional if
its prohibitions are not clearly defined. Sherman ex rel.
Sherman v. Koch, 623 F.3d 501, 519 (7th Cir. 2010). The
due process clause, though, does not demand “perfect
clarity and precise guidance.” Ward v. Rock Against
Racism, 491 U.S. 781, 794 (1989). Rather, a statute
is only unconstitutionally vague “if it fails to define
the offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited
and it fails to establish standards to permit enforcement
in a nonarbitrary, nondiscriminatory manner.” Fuller
ex rel. Fuller v. Decatur Public School Bd. of Educ. Sch.
Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001).
A. Vague As-Applied to The Nasty Habit
We begin and end our discussion with Hegwood’s as-
applied challenge. As this court has recognized, “it is a
proper exercise of judicial restraint for courts to
adjudicate as-applied challenges before facial ones in an

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6 No. 11-1999
Wisconsin has this authority pursuant to Wis. Stat. § 62.11(5). 3
Though we must exercise caution when consulting a dic- 4
tionary for plain meaning, United States v. Costello, 666 F.3d
1040, 1043-44 (7th Cir. 2012), we note the following defini-
tions: “riotous”—“in the nature of a riot; turbulent” ; “disor-
derly”—“conduct offensive to public order”; “indecent”—
“grossly improper or offensive”; “improper”—“not in
accord with propriety, modesty, good manners, or good
taste.” See MERRIAM-WEBSTER DICTIONARY ONLINE, Dic-
(continued...)
effort to decide constitutional attacks on the narrowest
possible grounds and to avoid reaching unnecessary
constitutional issues.” Doe v. Heck, 327 F.3d 492, 527-
28 (7th Cir. 2003) (citing Commodity Trend Serv., Inc.
v. Commodity Futures Trade Comm’n, 149 F.3d 679, 689
n. 5 (7th Cir. 1998). When we are confronted with an
as-applied challenge, we examine the facts of the case
before us exclusively, and not any set of hypothetical
facts under which the statute might be unconstitu-
tional. United States v. Phillips, 645 F.3d 859, 863 (7th
Cir. 2011).
The statute at issue, Wis. Stat. § 125.12(2)(ag)(2), delin-
eates revocation provisions regarding liquor licenses,
and articulates the state’s regulatory authority to
license and monitor those businesses which sell alcohol
in Wisconsin. Specifically, the statute states that a3
liquor license can be revoked or suspended if a liquor
license holder “keeps or maintains a disorderly or
riotous, indecent or improper house.” These terms are not
defined. The statute’s legislative purpose concerns the4

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No. 11-1999 7
(...continued) 4
tionary, http://www.merriam-webster.com (last visited April 5,
2012).
The “General Provisions” section of Wis. Stat. § 125, “Alcohol 5
Beverages”, states in part, that the legislature intended to
provide “regulatory authority. . . for the benefit of the public
health and welfare.” § 125.01.
health and safety of the public, and its enforcement
is aimed at public health.5
Reviewing the allegations in the City’s complaint
against the Nasty Habit, we are confronted with a dis-
turbing pattern of violence and disruptive behavior. In
2003 and 2004, the Nasty Habit saw two troublesome
incidents: in one instance, a Nasty Habit employee
ushered underage girls into the Nasty Habit’s base-
ment to hide from police officers conducting a bar check;
on another night, a Nasty Habit employee repeatedly
punched a customer in the face. The following year
was more tumultuous. The Nasty Habit saw trouble
twice in May 2005. First, a Nasty Habit employee
fought with a customer, refused to respond to police
officers at the scene, and was tasered. Later that
month, Nasty Habit employees violently ejected a cus-
tomer using a chokehold, resulting in a fight, and ar-
rests. Then, in July 2005, a Nasty Habit employee, again,
punched a customer in the face. Predictably, a fight
broke out. November saw more trouble. On Novem-
ber 1, 2005, one employee was involved in a fight with
a customer—when police arrived, another employee
assisted him in hiding in the basement. Soon after, in

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8 No. 11-1999
Moreover, Hegwood was put on notice that the City was 6
concerned about the events at the Nasty Habit, yet the fighting
continued and the policies that troubled the City remained
unchanged.
January 2006, a customer was over-served and taken
to the hospital for detoxification. Finally, in February
2006, there was another brawl involving Nasty Habit
employees and patrons. One customer was kicked in
the face, and there was a large pile-up of employees
and patrons; a Nasty Habit employee was arrested.
Considering this background, we cannot conclude
that the disorderly house statute was unconstitutionally
applied to the Nasty Habit. As the district court
correctly observed, under any interpretation of the
statute, the Nasty Habit is “something less than [an]
ideal candidate[ ] to challenge the boundaries of Wiscon-
sin’s disorderly house statute.” Indeed, there is no
doubt that the conduct described above was disorderly,
riotous, indecent or improper: employees fought with
patrons; brawls spilled onto the streets; underaged girls
hid in the basement to escape police detection; and a
patron required detoxification because he was over-
served. Such behavior falls squarely within the ambit6
of the statute, particularly given the public health
and safety concerns involved.
B. Facial Vagueness
To succeed on a facial vagueness challenge, a com-
plainant must demonstrate that the law is impermissibly

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No. 11-1999 9
vague in all of its applications. Village of Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).
As we have concluded that Wis. Stat. § 125.12(2)(ag)(2)
is not unconstitutionally vague in its as-applied con-
text with regard to the Nasty Habit, there is no need
to examine Hegwood’s facial attack; it cannot succeed
as we have identified that the statute is sufficiently
defined in at least one application.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment for the defendants.
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