The Seventh Circuit Court of Appeals upheld a district court’s denial of an injunction against a planning and development committee that had revoked a conditional use permit to operate an outdoor beer garden. Minocqua Brewing Company v. Daniel Hess.
In 2021, the owner of a microbrewery and pub applied for and was issued an administrative permit allowing the operation of a retail outlet accessory to the brewery. That permit expressly prohibited any outdoor operations. A year later, the owner applied for a conditional use permit to operate an outdoor beer garden which would require use of land owned by the town. The committee denied the conditional use permit, which the owner did not appeal. Later, the brewery submitted a revised application for the beer garden. In the meantime, the brewery was violating its retail outlet permit by operating outdoors, and the owner was criticizing town and county officials on social media and in public hearings. The committee ultimately decided to revoke the retail outlet permit because of the open and ongoing violations of the permit, but granted a conditional use permit for the outdoor beer garden conditioned on the owner meeting all of the conditions prior to the start of operation.
The owner opened the beer garden but did not meet all of the conditions required for the permit. Ultimately, the committee suspended the outdoor beer garden permit for 90 days. The owner ignored the suspension and continued to operate the beer garden, and the committee then revoked the permit. The owner appealed the revocation to the board of adjustments which denied his appeal. The owner then filed a new conditional use application, while he continued to operate the beer garden without a permit. The owner also posted on social media that he would continue to operate without a permit regardless of the committee’s decision on his new application. After a public hearing on the conditional use application, the committee denied the permit, citing the repeated violations and the brewery’s continued operation without a valid permit.
The owner of the brewery sued, arguing that the committee retaliated against the owner and brewery for their political speech in violation of the First Amendment when it revoked the permit and denied a new permit. The court rejected their claims, finding that they failed to show a likelihood of success on the merits of the First Amendment retaliation claims. The court noted that any reasonable permit-issuing body would have revoked and denied permits given the owner’s past and present willful violations of the permit requirements, as well as his promise of future violations. The court held that there can be no First Amendment retaliation if the adverse action (revocation and denial) would have occurred even in the absence of the protected speech.
