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Seventh Circuit Kicks Eau Claire's Nasty Habit

By Robyn Hagan Cain | Last updated on

Some people will tell you that bar brawls add character to a neighborhood drinking hole. Wisconsin, however, classifies alcohol-fueled fisticuffs as grounds to yank an establishment's liquor license under the “disorderly house” statute.

When Eau Claire's Nasty Habit Saloon lost its liquor license in 2006, Scott Hegwood challenged the disorderly house statute, arguing that it was unconstitutionally vague as applied to the Nasty Habit. This week, the Seventh Circuit Court of Appeals rejected that argument, finding that face-kicking, chokeholds, and dog piles of fighting patrons epitomized a disorderly house.

The Wisconsin statute governing liquor licenses provides that a municipality may suspend or revoke a liquor license if the license holder, "keeps or maintains a disorderly or riotous, indecent or improper house." In 2005, Eau Claire sent Hegwood a letter claiming that the Nasty Habit was a disorderly house based on a number of raucous incidents, including repeated disturbances involving drunk patrons and fights between customers and Nasty Habit employees.

When the Nasty Habit didn't correct its nasty habits, the city initiated proceedings to revoke the bar's liquor license.

According to the Seventh Circuit Court of Appeals, 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."

While the Seventh Circuit noted in its opinion that the statute did not define the terms disorderly, riotous, or indecent, the court concluded that the Nasty Habit was "something less than an ideal candidate to challenge the boundaries of Wisconsin's disorderly house statute."

The court reasoned that the problems that plagued the bar -- fights with patrons, brawls spilling onto the streets, underaged girls hiding in the basement to escape police detection, and a patron requiring detoxification because he was over-served -- undoubtedly qualified as disorderly, riotous, indecent or improper conduct.

Generally, it's easier to prove that a statute is unconstitutional as specifically applied than it is prove that a statute is facially invalid. The Nasty Habit's challenge to the disorderly house statute is a rare exception.

If you're challenging a law as unconstitutionally vague as applied to your client, keep in mind that you must demonstrate that the law is impermissibly vague in all of its applications.

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