Plain Language in Oshkosh Special Events Ordinance Prevails

Published by Susan Allen, Holly J. Wilson on

Many municipal ordinances do not define each term in each section. Instead, municipalities may rely on a common meaning to define an ordinance term. The Wisconsin Court of Appeals in City of Oshkosh v. Kubiak, 2016AP804 (Wis. Ct. App. Feb. 15, 2017) (unpublished opinion) (recommended for publication), affirmed this fact. In Kubiak, the Wisconsin Court of Appeals reversed a circuit court ruling that the meaning of “organizer” in the City’s special events ordinance was unconstitutionally vague.

For many years, college students in the Oshkosh area have participated in the semi-annual (April and October) Oshkosh Pub Crawl where students walk downtown Oshkosh and patronize the local taverns. On January 1, 2011, the City of Oshkosh enacted a special events ordinance. The ordinance required an event organizer to obtain a permit before holding a special event. The ordinance also required the applicant to reimburse the City for any costs incurred by the City for providing extraordinary services for the event. For the semi-annual pub crawls in 2011, 2012, and 2013, the defendant, Joseph Kubiak, through Oshkosh Pub Crawl, LLC, applied for a permit and made the required payments for extraordinary services in accordance with the ordinance. However, in April and October 2014, Kubiak did not get a permit for the Pub Crawl.

The City filed suit in circuit court against Kubiak for failing to apply for a permit. The City argued that Kubiak was the organizer of the event under the ordinance. Kubiak disagreed. The circuit court dismissed the lawsuit, ruling that the meaning of “organizer” was unconstitutionally vague.

The court of appeals reversed, holding that the term “organizer” in the ordinance was not unconstitutionally vague. The court held that “people of ordinary intelligence can read and sufficiently understand the requirements of the [o]rdinance.” Id. ¶ 14. The court pointed to the standard definition of organizer for guidance and stated that “an organizer must have some direct effect on arranging the event.” Id. The court concluded that the ordinance restricts its applicability to those who take an active role in the special event, not merely those who encourage others to attend. Thus, the court remanded this action to the circuit court to determine whether Kubiak was an organizer under the ordinance and, if so, whether he violated that ordinance.

This case reinforces the idea that when drafting an ordinance a municipality need not define every term, or even most terms. The municipality should be aware that if ordinance terms are not defined, courts may interpret terms according to the term’s ordinary meaning often found in a recognized dictionary.

Filed Under: Wisconsin Court of Appeals

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