COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

February 8, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2010AP2193-FT	Cir. Ct. No.� 2010CV66
STATE OF WISCONSIN��			IN COURT OF APPEALS
			DISTRICT III


City of Shawano, �� Plaintiff-Respondent, �� v. Darlene F. Sense, �� Defendant-Appellant.

�� APPEAL from an order of the circuit court for Shawano County:� THOMAS G. GROVER, Judge.� Affirmed; attorney sanctioned.�

�1�� PETERSON, J.[1] Darlene Sense was convicted of violating a municipal ordinance that prohibits refusal to permit inspection of premises that are subject to a liquor license.� Sense argues she could not be found guilty of the ordinance violation because:� (1)� she was cited for an action not contemplated by the ordinance; (2) there was insufficient proof she violated the ordinance; and (3) the citation was issued more than thirteen months after the alleged violation.� We reject Sense�s arguments and affirm.

BACKGROUND

�� 2�� Sense was the agent for the liquor license at the Best Western hotel in Shawano during the licensing period from July 1, 2007 to June 30, 2008.� On May 10, 2008, a social club rented the hotel for a private party, and the hotel and bar were closed to the public.� At about 11:40 p.m., Shawano police officers Scott Ruen and Bradley Rabideau arrived at the hotel to conduct a compliance check to ensure the hotel bar was operating within the parameters of its liquor license.� As the officers approached the bar, they observed that the windows were covered.� However, they could see through a gap that there were people inside. ��The officers attempted to enter the hotel to conduct the compliance check, but both the main entrance and the bar entrance were locked.

�� 3�� As the officers were preparing to leave, Sense arrived at the hotel.� Rabideau asked her if he �was going to get access to the bar for a premises check.�� According to Rabideau, Sense replied that she �had nothing to do with the bar.�� Sense testified she told Rabideau she did not have a key.� The officers then left the premises.

�� 4�� The next morning, Ruen returned to the hotel and cited the manager on duty for violating Shawano municipal ordinance � 7.01(8), which states:

It shall be a condition of any [liquor] license issued hereunder that the licensed premises may be entered and inspected at any reasonable hour by any police officer of the city without any warrant, and the application for a license hereunder shall be deemed a consent to this provision. Any refusal to permit such inspection shall automatically operate as a revocation of any license issued hereunder and shall be deemed a violation of this section.

See Shawano, Wis., Code � 7.01(8) (2010) (emphasis added), available at http://www.shawanowi.govoffice2.com/index.asp?Type=B_BASIC&SEC=%7B584F7ACA-086A-4337-967A-1CC7628463FD%7D.� On April 9, 2009, the municipal court dismissed the citation after determining it had been issued to the improper person.�

�� 5�� On June 22, 2009, the City re-issued the citation to Sense, as agent for the hotel�s liquor license.� The citation alleged Sense had violated ordinance � 7.01(8), and under �Description of Violation� it stated, �[F]ailure to allow search of license[d] premises.�� The municipal court found Sense guilty of the ordinance violation. �After a bench trial, the circuit court affirmed the judgment of conviction. �Sense now appeals.

DISCUSSION

�� 6�� Sense first argues her conviction must be reversed because she was cited for an action not prohibited by the plain language of ordinance � 7.01(8).� Specifically, Sense contends that ordinance � 7.01(8) prohibits �refusal� to permit a search of licensed premises, but she was cited for �failure� to permit a search of licensed premises.� However, Sense did not raise this argument in the circuit court, and therefore she has forfeited her right to raise it on appeal.� See Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, �23, 303 Wis. 2d 258, 735 N.W.2d 93 (�Generally, arguments raised for the first time on appeal are deemed waived.�).� In a related argument, Sense contends it is unconstitutional for the City to prosecute her for �failure� to allow a search when the ordinance does not prohibit that action.� Again, Sense has forfeited her right to raise this argument by failing to raise it in the circuit court.� See id.� Moreover, Sense�s constitutional argument is undeveloped, and we need not consider undeveloped arguments.� See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

�� 7�� Sense next argues there was insufficient proof that she violated the ordinance because the City did not prove by a preponderance of the evidence that she refused to allow the search.� See City of Milwaukee v. Wilson, 96 Wis. 2d 11, 21-22, 291 N.W.2d 452 (1980) (defendant�s guilt must be proved by a preponderance of the evidence in a civil forfeiture case, unless the ordinance violation involved acts that are also criminal offenses).� However, the evidence adduced at trial amply supports the circuit court�s determination that Sense violated the ordinance.

�� 8�� Testimony at trial established that, when police arrived at the hotel to conduct a routine compliance check, the doors were locked and they were unable to enter.� Rabideau asked Sense whether he could get access to the premises for a compliance check.� There was conflicting testimony about Sense�s reply.� Rabideau testified Sense responded that she had nothing to do with the bar, while Sense testified she told him she did not have a key.� The circuit court did not resolve this conflict.� Even accepting Sense�s version, though, the court could construe Sense�s actions as a �refusal.�� As the agent for the liquor license, Sense had �full authority and control of the premises.�� See Wis. Stat. � 125.04(6)(a)2.� She knew the officers wanted to enter the hotel to perform a compliance check, and, as the person with full authority and control, she did not do anything to let them in.� We agree with the circuit court that, under these circumstances, �Sense clearly denied access.��

�� 9�� Sense also contends the circuit court erroneously exercised its discretion by finding her guilty when the citation was issued more than thirteen months after the alleged violation.[2]� Sense also has forfeited this argument by failing to raise it in the circuit court.� See Kolupar, 303 Wis. 2d 258, �23.� Further, Sense�s argument is undeveloped. �See Pettit, 171 Wis. 2d at 646. �The citation was apparently issued within the statute of limitations, and Sense does not cite any legal authority to support her argument that the thirteen-month delay should preclude the City from prosecuting it.

�� 10�� As a final matter, we address certain deficiencies in Sense�s appellate brief.� First, Sense�s repeated references to �appellant� and �respondent� throughout her brief violate Wis. Stat. Rule 809.19(1)(i), which requires reference to the parties by name, rather than by party designation.� Second, Sense cites an unpublished case as legal authority, in violation of Wis. Stat. Rule 809.23(3).� Third, Sense�s appendix does not include �oral or written rulings or decisions showing the circuit court�s reasoning,� as required by Wis. Stat. Rule 809.19(2)(a).� The appendix merely contains the court�s order affirming the judgment of conviction, which �tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant.�� See State v. Bons, 2007 WI App 124, �23, 301 Wis. 2d 227, 731 N.W.2d 367.� Fourth, Sense�s �Certification Regarding Appendix� is incomplete, in that it does not certify that the appendix meets the content requirements of Rule 809.19(2)(a).� See Wis. Stat. Rule 809.19(2)(b).

�� 11�� Fifth and finally, Sense�s statement of facts contains several brazen assertions that are completely unsupported by the record.� For instance, Sense states that the Best Western hotel�s parent company �has been targeted repeatedly with numerous complaints and false accusations and negative publicity because the president is from India.�� Sense contends, �Local officials and specifically, [the] mayor of Shawano, � have positioned themselves against [the parent company�s president] time after time and seek every opportunity to cause harm to any businesses in Shawano connected with [the parent company].�� Sense also alleges the police�s routine compliance check was �a tactic to get into the facility during a private party to scare and intimidate guests who value their privacy � so that they might cancel their contract with the hotel �. Cancellation of their contract would have delighted City officials[.]�� Sense does not provide record citations for any of these allegations, presumably because they are completely unsupported by the record.[3]�

�� 12�� Accordingly, we sanction Attorney Rebekah M. Nett and direct that she pay $200 to the clerk of this court within thirty days of the release of this opinion.

�� By the Court.�Order affirmed; attorney sanctioned.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� This is an expedited appeal under Wis. Stat. Rule 809.17.� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2] Sense argues the court �abused its discretion.� �We have not used the term �abuse of discretion� since 1992, when our supreme court replaced �abuse of discretion� with �erroneous exercise of discretion.�� See City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992).

[3] Sense should have been on notice against making these allegations, given that the circuit court specifically pointed out there was no evidence of harassment by police or local officials.�