Family Dollar, Gimbel Beat City In Court

It took more than two years, but Family Dollar and law firm Gimbel, Reilly, Guerin & Brown prevailed in their case to overturn the Common Council’s decision to close the national chain’s retail store near N. 27th St. and W. State St. The Wisconsin Court of Appeals found that the council’s 2020 votes against renewing the 16-year-old store’s license were “arbitrary, representing its will rather than its judgment.”

In a May 2020 license renewal hearing, area Alderman Robert Bauman and then-Near West Side Partners (NWSP) executive director Keith Stanley opposed the renewal of the store’s food dealer license, citing issues with loitering, shoplifting and other nuisance activities. Bauman, who lives nearby, said the national chain “could care less about how this store is operating,” and Stanley offered a similar argument, calling it “a hub” for nuisance activity. Then-area police captain Jeffrey Norman (now the chief) said the store was “a drain on police resources,” a poor communicator with the Milwaukee Police Department and subject to a 2019 nuisance designation. The committee voted to recommend nonrenewal.

Before the full council, Family Dollar attorney Joshua Gimbel raised due process violation concerns. The store’s management attributed many of the issues to the impoverished neighborhood and a nearby bar. But the council affirmed the committee’s decision on a 9-6 vote.

Family Dollar sued, securing an injunction to allow the store to continue operating and a mutually-agreed second hearing. But the November hearing and subsequent council meeting yielded the same result, nonrenewal.

The second time around the council voted 13-0 with two abstentions. In 2021, Milwaukee County Circuit Court Judge Hannah Dugan found no violation of due process, supporting the city’s case. Gimbel then appealed the matter to the higher court.

The appeals court sided with Family Dollar and raised several issues with the city’s practices. The court found that the Licenses Committee’s proceedings and fact-finding process were driven by Bauman, who is not a formal member of the committee. It determined the alderman had “prejudged” the matter and was essentially acting as an advocate for nonrenewal, which denied the company its due process right to an impartial hearing. The city, in its defense, said Bauman was being a passionate advocate for his district.

The judicial panel also cited the council’s inconsistent votes on the matter as evidence the city was acting without making a fair judgment. “This difference in voting occurred even though the witnesses and evidence introduced during the two hearings were virtually identical,” said the decision. It also cited the city’s past decisions to only issue suspensions for other businesses where violent acts had occurred and the fact that the MPD approved the store’s nuisance abatement plan.

Additionally, the appeals court took issue with the city’s license renewal notices and declared them “essentially form letters.” It said that much of the evidence used against Family Dollar wasn’t included in the notices and thus the company couldn’t prepare a defense, resulting in a violation of its due process rights.

The October 2022 written court decision remanded the matter to Dugan’s court with an instruction to overturn the city’s nonrenewal. A status conference is scheduled for March.

According to several sources, the council is expected to consider process changes due to several contested nonrenewal actions. Common Council President Jose G. Perez said in December that he expects the council to review its licensing process in 2023.

Who were the council members that flipped their votes? The May 2020 9-6 vote had Ashanti Hamilton, Cavalier Johnson, Milele A. Coggs, Khalif Rainey, Chantia Lewis and Russell W. Stamper, II voting against the nonrenewal. Coggs and Lewis abstained from voting in November 2020, but the other council members voted for non-renewal.

The store is among 16 the chain has in the city and some 8,000 nationally, and has continued to operate through the dispute at 930 N. 27th St., while Gare-Bear’s, the supposed problem bar across the street, was closed by the city in 2021. That decision, again backed by Bauman and Stanley, was not contested in court.

The appeals court judges on the case were chief judge William W. Brash III, Timothy Dugan and Maxine White.

Due to the sustained turnover in the City Attorney’s Office, the attorneys representing the city changed repeatedly since the case was first filed. Assistant city attorney Tyrone St. Junior initially oversaw the case, only to resign and be replaced by John McNally, who later resigned for a job at Gimbel. The point person for the city is currently deputy city attorney Todd Farris.

According to court records, food sales account for nearly a third of the store’s revenue and many of its customers rely on Supplemental Nutrition Assistance Program support. NWSP and Bauman have worked for several years to reduce crime and other perceived blighting influences in the area.

A copy of the decision is available on Urban Milwaukee.