Federal Suit Seeks To Strike Down City’s Nuisance Rules

Hometown Gas Station, 3381 N. 35th St. Photo taken Feb. 21, 2023 by Jeramey Jannene.

A new federal lawsuit filed by OVB Law & Consulting on behalf of a Milwaukee gas station owner seeks to get the city’s nuisance ordinance struck down.

The ordinance allows the chief of the Milwaukee Police Department (MPD) to designate a property as a nuisance if it meets certain call thresholds, triggering the need for an abatement plan and potential fines. The designation has also been used as a reason to non-renew business licenses, effectively closing bars or gas stations.

“Imagine a world where calling 911 puts you on a fast track to being labeled a ‘nuisance.’ It sounds like a twisted ‘Choose Your Own Adventure’ game, except every choice is a trap. That’s the reality for our clients, minority and immigrant business owners in Milwaukee, who find themselves in a Kafkaesque scenario where seeking help means getting penalized,” wrote attorney Emil Ovbiagele in a LinkedIn post announcing the lawsuit.

The complaint says the city’s nuisance ordinance violates the U.S. Constitution’s first amendment and a similar provision in the Wisconsin Constitution by denying the right to petition the government for a redress of grievances.

Under the current ordinance, to qualify as a nuisance there must be a minimum of three calls for service related to “nuisance activities” in a 30-day period or two “vice, violence or gang complaints” in one year. An MPD-approved abatement plan must be submitted within 10 days of a designation. If the plan is not accepted, the property will be billed for every call to service and three or more billed calls in a year result in eligibility for a “chronic nuisance” citation for up to $5,000.

“Critically, there is no distinction between crimes committed by property owners or occupants and crimes committed against them,” says OVB’s filing challenging the ordinance. Additionally, the complaint alleges the ability of MPD to approve or deny the plan unilaterally violates the property owner’s rights.

OVB’s client in the case is Kulwant Dhillon and his Hometown gas station at 3381 N. 35th St. It’s a gas station readers might be familiar with.

In 2018, two customers filmed a pornographic film in the aisles of the attached convenience store without the owner’s consent. One of the more unusual licensing hearing processes resulted in area Alderman Khalif Rainey pushing for the businesses’ closure after dropping the memorable quote, “keep in mind, it [the sexual incident] was right next to the chips, and across from the sunflower seeds.” The council voted in 2019 and 2020 to close the business by denying renewal of its license, only for Ovbiagele to secure a November 2022 circuit court ruling that overturned the city’s actions for violating Dhillon’s due process rights.

Following the ruling, the council tweaked its licensing ordinance to require a “preponderance of evidence” be used as the basis for the nonrenewal, suspension or revocation of any license. The standard is an established principle in civil law practice. Ovbiagele endorsed the change in an interview with Urban Milwaukee, but noted he maintained concerns with the city’s licensing process, including issues with notices and the nuisance process. He’s now formally challenging the nuisance regulations.

The 35th Street gas station was most recently designated a nuisance property on May 3, following three shootings on the premises within the past year.

The gas station is far from the only property to earn the nuisance designation in recent years. Examples can be found across the city. A Walker’s Point nightclub was declared a nuisance in July and its landlord moved to evict the business, leading to its closure. A Speedway gas station in Bay View was designated a nuisance in January 2021 after it was getting robbed so frequently that clerks had to turn away would-be thieves for a lack of cash. A Family Dollar store on N. 27th Street was designated a nuisance in 2019, which was part of the basis for the city denying its license renewal and resulted in an appeals court ruling that overturned the city’s decision based on perceived issues with the hearing process. The Family Dollar case was cited in the 2022 ruling that overturned the closure of the 35th Street gas station.

Dhillon is represented by both Ovbiagele and his business partner Samantha Huddleston Baker.

“This is not just about a lawsuit; it’s about dismantling an oppressive structure that forces a choice between silence and punishment. It’s about affirming the right to call upon one’s government without fear of retribution,” wrote Ovbiagele.

The complaint was filed Nov. 7 and assigned to Judge Lynn Adelman. The city has yet to file a response.