Cnty. of Shawano v. Plaski

Appeal from a judgment of the circuit court for Shawano County: William F. Kussel, Jr., Judge. Reversed.
¶ 1

Damien Plaski was convicted of violating a Shawano County ordinance that prohibits a transient merchant from engaging in sales in the county without first registering with the county clerk. Plaski argues the County failed to meets its burden to prove he was a transient merchant. We agree and reverse.

¶ 9 Plaski claims the evidence presented at trial was insufficient to prove by a preponderance of the evidence that he violated Shawano County Ordinance No. 8–05. In determining the sufficiency of the evidence, “[o]ur task as a reviewing court is limited to determining whether the evidence presented could have convinced a trier of fact, acting reasonably, that the appropriate burden of proof had been met.” City of Milwaukee v. Wilson, 96 Wis.2d 11, 21, 291 N.W.2d 452 (1980). We must view the facts in the light most favorable to sustain the judgment, and where more than one inference may be drawn from the evidence presented at trial, we are bound to accept the inference drawn by the fact finder. See State v. Forster, 2003 WI App 29, ¶ 2, 260 Wis.2d 149, 659 N.W.2d 144. In addition, when the circuit court acts as the fact finder, it is the ultimate arbiter of the witnesses' credibility, Gehr v. City of Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30 (1977), and its findings of fact will not be set aside unless clearly erroneous, Wis. Stat. § 805.17(2).

Plaski actually claims the County failed to prove he violated Shawano County Ordinance No. 8–05 by clear and convincing evidence. However, an ordinance violation must be proved by clear and convincing evidence only where the violation involves “acts which are also made criminal by statute[.]” City of Milwaukee v. Wilson, 96 Wis.2d 11, 21–22, 291 N.W.2d 452 (1980); see also Reinke v. Personnel Bd., 53 Wis.2d 123, 136–37, 191 N.W.2d 833 (1971) (clear-and-convincing-evidence burden “applies only to those forfeiture actions for violation of municipal ordinances, where the violation involves an ordinance which has a statutory counterpart”).

Although sales by unlicensed transient merchants were previously prohibited by Wis. Stat. § 130.065, that statute was repealed in 1989. See 1989 Wis. Act 336, § 250op. Accordingly, the County was merely required to prove Plaski violated Shawano County Ordinance No. 8–05 by a preponderance of the evidence. See Wilson, 96 Wis.2d at 21–22, 291 N.W.2d 452 (for ordinance violations that do not involve acts made criminal by statute, the lower, preponderance-of-the-evidence burden applies).

¶ 10 To prove Plaski violated Shawano County Ordinance No. 8–05, the County needed to establish that he was a transient merchant, as the ordinance defines that term. Based on the evidence presented at trial, a trier of fact, acting reasonably, could not have found by a preponderance of the evidence that Plaski met this definition. See Wilson, 96 Wis.2d at 21, 291 N.W.2d 452.

¶ 11 Specifically, there was no evidence introduced at trial that Plaski “[did] not intend to become and [did] not become a permanent merchant” of Shawano County. Shawano Cnty., Wis., Ordinances No. 8–05, § 2(A) (2005). The ordinance defines a permanent merchant as a person who has: (1) continually operated an established place of business in the local trade area for at least one year; (2) continuously resided in the local trade area for at least one year and does business from his or her residence; or (3) purchased an ongoing business from a person who qualified as a permanent merchant. Shawano Cnty., Wis., Ordinances No. 8–05, § 2(B) (2005). No evidence was introduced at trial to show that Plaski did not qualify as a permanent merchant under this definition at the time he attempted to sell seafood to Wright, nor was there any evidence that he did not “intend to become” a permanent merchant at that time. The County did not inquire, or produce any other evidence, regarding whether Plaski had operated an established place of business for over one year, had resided in the area for over one year and did business from his home, or had purchased his business from a permanent merchant.

¶ 12 Moreover, Plaski testified he has resided and operated his business in Shawano County since purchasing his home there in 2008, which supports a reasonable inference that Plaski continuously resided in the area for over one year and did business from his residence. Given Plaski's testimony, and the County's failure to present any evidence relevant to the definition of the term “permanent merchant,” a reasonable fact finder could not have concluded by a preponderance of the evidence that Plaski did not intend to become and did not become a permanent merchant of Shawano County. The County therefore failed to meet its burden of proof.

¶ 13 The County emphasizes our deferential standard of review, observing that we must defer to the circuit court's credibility determinations and accept its findings of fact unless they are clearly erroneous. Be that as it may, the circuit court's factual findings do not support a conclusion that Plaski did not intend to become and did not become a permanent merchant. The court found that Plaski went to the home of Wright, who was not a previous customer, and attempted to sell her frozen seafood. However, selling merchandise door-to-door-even when the merchant does not have a previous relationship with the customer-is not inconsistent with the ordinance's definition of a permanent merchant. In fact, the ordinance specifically exempts from registration as a transient merchant any permanent merchant who “takes orders at the home of the buyer for merchandise regularly offered for sale by such merchant within this County” and “delivers such merchandise in their regular course of business [.]” Shawano Cnty., Wis., Ordinances No. 8–05, § 3(D) (2005).

¶ 14 The circuit court also found that Plaski falsely told Copsey he had a “license.” The County claims the fact that Plaski falsely “claimed that he had a valid Transient Merchant Permit ... mitigates against a finding that [he] was a permanent merchant.” We disagree. Whether Plaski falsely indicated he had a transient merchant permit when questioned by Copsey has no bearing on whether he actually met the definition of a permanent merchant set forth in the ordinance.

In addition, although we need not decide whether the circuit court's finding that Plaski made a false statement to Copsey is clearly erroneous, we observe it is clear from Plaski's testimony that when he used the word “license,” he was actually referring to a license issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection, not a transient merchant permit issued by Shawano County. See Wis. Stat. § 97.30 (discussing licensure requirements for retail food establishments).

¶ 15 The circuit court also found it “telling” that Plaski never told Copsey he was a permanent merchant. Again, this finding is not relevant to whether Plaski met the ordinance's definition of a permanent merchant. Nothing in the ordinance requires a person to assert that he or she is a permanent merchant upon questioning by law enforcement. Whether Plaski believed he was a permanent merchant at the time he was questioned by Copsey and whether he actually met the definition of a permanent merchant are two different questions, only the latter of which is relevant to whether the County met its burden of proof.

¶ 16 Finally, the circuit court discredited the map Plaski submitted purporting to show the regular sales routes he had established over the years. The court concluded the map was not credible because all the routes were drawn using the same kind of ink. We defer to the court's determination that the map was not credible evidence of Plaski's regular sales routes. Nevertheless, for the reasons explained above, even without the map, the evidence was insufficient for a reasonable fact finder to conclude by a preponderance of the evidence that Plaski did not become and did not intend to become a permanent merchant of Shawano County.

¶ 17 In addition to highlighting the circuit court's findings of fact, the County observes that Plaski “produced no credentials of any kind” when asked to do so by Wright. Yet again, we fail to see how this fact is relevant to whether Plaski qualified as a permanent merchant under Shawano County Ordinance No. 8–05. The ordinance does not require a permanent merchant to produce any sort of “credentials” upon request.

¶ 18 For the foregoing reasons, we conclude the County failed to meet its burden to prove, by a preponderance of the evidence, that Plaski was a transient merchant. Accordingly, Plaski's conviction for violating Shawano County Ordinance No. 8–05 must be reversed.

Judgment reversed.

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