The City of Oshkosh v. Pub Crawl

The ongoing fight between the City of Oshkosh and Oshkosh Pub Crawl LLC owner, Joe Kubiak, has been one that I have been interested for quite some time. Not necessarily rooting for either side in the City's ongoing struggle to hold someone financially responsible for hundreds of college students in matching t-shirts hitting the bars downtown, I certainly am entertained by the fact that no resolution ever seems to materialize.

The City's position is that Kubiak is the "organizer" of the twice-a-year pub crawl and therefore should bear the extra expense of police supervision required to insure the safety of the participants and the surrounding community. Kubiak's position is that he is just some guy selling t-shirts to students and that if he were to disappear tomorrow, pub crawl would continue, on the same dates (the 2nd weekend of April, the 2nd weekend of October) every year without him, and he therefore cannot be deemed to be the organizer.

According to the city's special events ordinance, anyone who organizes an event that requires extra services from the city, such as police protection, traffic control, paramedic services or the closure of roads or parks; offers alcohol, beverages, food and or merchandise; includes the setting up of temporary structures, such as tents; or has more than 250 people on private property.

The city has twice sued Kubiak under this statute, seeking a total of nearly $11,000 for the cost of city police and other services, plus $2,000 in fines. The city claims Kubiak "failed or refused to apply" for special events permits for three pub crawls — two in 2013 and one in 2014.

However, Winnebago County Circuit Judge Thomas Gritton dismissed the city's civil case against Kubiak. Gritton called the city's definition of "organizer" in its special events ordinance "unconstitutionally vague" and barred the city from filing another lawsuit."The city is in a Catch 22 here, I think, because it is hard to point to somebody, saying 'You're responsible for organizing this, you're responsible for making sure these extraordinary expenses, which clearly are appropriate, get paid,'" Gritton said, according to a transcript of a Feb. 3 court hearing.

This has prompted the City to rewrite the special events ordinance and from the looks of it they could not have written it more specifically to address pub crawl without formally listing the event in the statute. The new ordinance reads as follows:

The language defines the "organizer" of a special event as "any person, persons or entity that arranges, plans, coordinates or takes other substantive actions to gather persons for a special event, march or public assembly."

That language is still leaves a lot of wiggle room for Kubiak, however, there appears to be more and my guess is it falls under the "other substantive actions" provision...

The Oshkosh Northwestern Reports:

Other factors in determining whether someone is an organizer include whether the person:

  • Establishes the date of the event

  • Coordinates the activities or people associated with the event

  • Puts up temporary structures, such as tents, barricades or signs, to facilitate the event

  • Advertises or promotes the event

  • Creates or causes another to create original content related to the advertisement or promotion of the event

  • Pays any costs or expenses for the purpose of the event

  • Receives revenue from the event directly or indirectly by admissions, concessions, sales of other products or services

The city might as well have listed "sells t-shirts to event participants." If this ordinance is adopted and it passes legal tests, I believe it will effectively end Kubiak's business of selling t-shirts as it would violate number 4, number 5 and number 7 of the above listed criteria.

I suppose the next question I have is this, say it does end Kubiak's t-shirt business, but the now decade long Pub Crawl continues on as tradition, who will be getting the bill? One could potentially argue that any college student who gets a few friends together to go downtown on those weekends noted above could be deemed an organizer and get a large and hefty bill they weren't expecting. Or, perhaps, the organizer of a bar-hopping birthday or bachelor party, would be someone who establishes a date, coordinates the activities, etc etc.

I have not seen the entire text of the new ordinance, as it is awaiting City Council approval, but my concern is that it will it is rewritten narrowly to stop Kubiak, but by doing so it may be so broad that it unintentionally catches others who are not at all organizing a special event. Stay tuned for more.

Sourced from Oshkosh Northwestern

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