The Honorable Ruben Castillo, United States District Court 

for the Northern District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1999

SCOTT HEGWOOD, et al.,

Plaintiffs-Appellants,

v.

CITY OF EAU CLAIRE, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09 C 350—William M. Conley, Chief Judge.

ARGUED JANUARY 20, 2012—DECIDED APRIL 9, 2012

Before FLAUM and ROVNER, Circuit Judges, and CASTILLO,

District Judge.



FLAUM, Circuit Judge. The Nasty Habit Saloon (the

“Nasty Habit”), a popular bar operating in Eau Claire,

Wisconsin, lost its liquor license after a series of altercations between its employees and its customers re-
2 No. 11-1999

quiring police intervention. The Nasty Habit’s license

was revoked pursuant to Wis. Stat. § 125.12(2)(ag)(2),

which provides that a liquor license can be revoked or

suspended if the holder “keeps or maintains a disorderly

or riotous, indecent or improper house.” Scott Hegwood,

an agent of the Nasty Habit, challenges the “disorderly

house” statute arguing that it is unconstitutionally

vague. The district court rejected Hegwood’s arguments.

For the reasons set forth below, we affirm.

I. Background

This dispute arose out of action taken by the City of

Eau Claire, Wisconsin (the “City”) against the Nasty

Habit, a popular bar among the college-aged crowd.

Despite its popularity, a number of raucous incidents

caused the City concern. Specifically, during 2005, there

were repeated disturbances involving drunk patrons

and fights between customers and Nasty Habit employees. On September 19, 2005, Hegwood met with City

officials to discuss their concerns regarding the operation of the Nasty Habit. The City’s worries included the

Nasty Habit’s failure to have uniformed employees, and

its failure to properly train its employees and maintain a customer head-count. After the meeting, Hegwood

agreed to make certain changes.

On November 1, 2005, police were called to intervene

in an altercation between an unruly customer and the

bar’s staff. Following that incident, on December 21, 2005,

the City sent Hegwood a letter concluding that the

Nasty Habit was a “disorderly house” as defined by
No. 11-1999 3

Pursuant to statute, “[t]he council shall have the management

2

and control of the city property, finances, highways, navigable

(continued...)

statute, and cataloguing several incidents supporting

its conclusion. Pursuant to Wis. Stat. § 125.12(2)(ag)(2),

a liquor license holder may have its license revoked if

the license holder “keeps or maintains a disorderly or

riotous, indecent or improper house.” The letter also

noted that despite the promise of change, the bar’s

policies had not noticeably improved. The City gave an

ultimatum: voluntarily close for three weeks or the

City would seek suspension or revocation of the bar’s

alcohol license before the City’s Administrative Review

Board. Hegwood rejected the offer of a temporary suspension.

Unfortunately, the situation at the Nasty Habit did

not improve. On January 23, 2006, a customer was sent to

the hospital for detoxification, and soon afterward, on

February 11, 2006, another fight broke out at the bar,

again involving both staff and patrons.

On March 1, 2006, the City issued a summons and

complaint, filed by Chief of Police Jerry Matysik and City

Attorney Stephen Nick, seeking revocation or suspension of the Nasty Habit’s Combination Class B

Intoxicating Liquor & Fermented Malt Beverage license.

The complaint alleged that Nasty Habit employees

kept a “disorderly house” as defined by Wis. Stat.

§ 125.12(2)(ag)(2), and thereby posed a threat to the

health, safety, and welfare of the public under Wis. Stat.

§ 62.11(5). The City’s complaint was based on eight 2
4 No. 11-1999

(...continued) 2

waters, and the public service, and shall have power to act for

the government and good order of the city, for its commercial

benefit, and for the health, safety, and welfare of the public,

and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient

means. The powers hereby conferred shall be in addition

to all other grants, and shall be limited only by express language.” Wis. Stat. § 62.11(5).

incidents which occurred between November 20, 2003

and February 11, 2006. The majority of the incidents,

however, related to events during the late spring and

summer of 2005, all of which required some level of police

intervention. The complaint primarily detailed fighting

between patrons, bouncers, and other Nasty Habit employees. The City Council conducted an administrative

hearing on the complaint, and subsequently revoked the

Nasty Habit’s alcohol license, concluding that it kept

or maintained a “disorderly house” in violation of state

law. An appeal of the revocation was filed, but dismissed

by stipulation so that Nasty Habit, Inc. could sell its

bar business.

Following the appeal’s dismissal, Hegwood filed suit

in the Western District of Wisconsin alleging retaliation,

denial of equal protection, and due process violations.

The district court granted defendants’ motion for summary judgment in its entirety. Hegwood now appeals,

but limits his challenge to his alleged due process violations.
No. 11-1999 5

II. Discussion

We review the constitutionality of a statute, a question of law, de novo. United States v. Moore, 644 F.3d 553

(7th Cir. 2011). Hegwood challenges the Wisconsin

statute on two grounds, arguing that the statute is unconstitutionally vague both on its face, and as applied to

the Nasty Habit. Specifically, he contends that its vague

language rendered compliance impossible, and enforcement arbitrary.

The void for vagueness doctrine rests on the basic

due process principle that a law is unconstitutional if

its prohibitions are not clearly defined. Sherman ex rel.

Sherman v. Koch, 623 F.3d 501, 519 (7th Cir. 2010). The

due process clause, though, does not demand “perfect

clarity and precise guidance.” Ward v. Rock Against

Racism, 491 U.S. 781, 794 (1989). Rather, a statute

is only unconstitutionally vague “if it fails to define

the offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited

and it fails to establish standards to permit enforcement

in a nonarbitrary, nondiscriminatory manner.” Fuller

ex rel. Fuller v. Decatur Public School Bd. of Educ. Sch.

Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001).

A. Vague As-Applied to The Nasty Habit

We begin and end our discussion with Hegwood’s asapplied challenge. As this court has recognized, “it is a

proper exercise of judicial restraint for courts to

adjudicate as-applied challenges before facial ones in an
6 No. 11-1999

Wisconsin has this authority pursuant to Wis. Stat. § 62.11(5). 3

Though we must exercise caution when consulting a dic- 4

tionary for plain meaning, United States v. Costello, 666 F.3d

1040, 1043-44 (7th Cir. 2012), we note the following definitions: “riotous”—“in the nature of a riot; turbulent” ; “disorderly”—“conduct offensive to public order”; “indecent”—

“grossly improper or offensive”; “improper”—“not in

accord with propriety, modesty, good manners, or good

taste.” See MERRIAM-WEBSTER DICTIONARY ONLINE, Dic-

(continued...)

effort to decide constitutional attacks on the narrowest

possible grounds and to avoid reaching unnecessary

constitutional issues.” Doe v. Heck, 327 F.3d 492, 527-

28 (7th Cir. 2003) (citing Commodity Trend Serv., Inc.

v. Commodity Futures Trade Comm’n, 149 F.3d 679, 689

n. 5 (7th Cir. 1998). When we are confronted with an

as-applied challenge, we examine the facts of the case

before us exclusively, and not any set of hypothetical

facts under which the statute might be unconstitutional. United States v. Phillips, 645 F.3d 859, 863 (7th

Cir. 2011).

The statute at issue, Wis. Stat. § 125.12(2)(ag)(2), delineates revocation provisions regarding liquor licenses,

and articulates the state’s regulatory authority to

license and monitor those businesses which sell alcohol

in Wisconsin. Specifically, the statute states that a 3

liquor license can be revoked or suspended if a liquor

license holder “keeps or maintains a disorderly or

riotous, indecent or improper house.” These terms are not

defined. The statute’s legislative purpose concerns the 4
No. 11-1999 7

(...continued) 4

tionary, http://www.merriam-webster.com (last visited April 5,

2012).

The “General Provisions” section of Wis. Stat. § 125, “Alcohol

5

Beverages”, states in part, that the legislature intended to

provide “regulatory authority. . . for the benefit of the public

health and welfare.” § 125.01.

health and safety of the public, and its enforcement

is aimed at public health.

5

Reviewing the allegations in the City’s complaint

against the Nasty Habit, we are confronted with a disturbing pattern of violence and disruptive behavior. In

2003 and 2004, the Nasty Habit saw two troublesome

incidents: in one instance, a Nasty Habit employee

ushered underage girls into the Nasty Habit’s basement to hide from police officers conducting a bar check;

on another night, a Nasty Habit employee repeatedly

punched a customer in the face. The following year

was more tumultuous. The Nasty Habit saw trouble

twice in May 2005. First, a Nasty Habit employee

fought with a customer, refused to respond to police

officers at the scene, and was tasered. Later that

month, Nasty Habit employees violently ejected a customer using a chokehold, resulting in a fight, and arrests. Then, in July 2005, a Nasty Habit employee, again,

punched a customer in the face. Predictably, a fight

broke out. November saw more trouble. On November 1, 2005, one employee was involved in a fight with

a customer—when police arrived, another employee

assisted him in hiding in the basement. Soon after, in
8 No. 11-1999

Moreover, Hegwood was put on notice that the City was 6

concerned about the events at the Nasty Habit, yet the fighting

continued and the policies that troubled the City remained

unchanged.

January 2006, a customer was over-served and taken

to the hospital for detoxification. Finally, in February

2006, there was another brawl involving Nasty Habit

employees and patrons. One customer was kicked in

the face, and there was a large pile-up of employees

and patrons; a Nasty Habit employee was arrested.

Considering this background, we cannot conclude

that the disorderly house statute was unconstitutionally

applied to the Nasty Habit. As the district court

correctly observed, under any interpretation of the

statute, the Nasty Habit is “something less than [an]

ideal candidate[ ] to challenge the boundaries of Wisconsin’s disorderly house statute.” Indeed, there is no

doubt that the conduct described above was disorderly,

riotous, indecent or improper: employees fought with

patrons; brawls spilled onto the streets; underaged girls

hid in the basement to escape police detection; and a

patron required detoxification because he was overserved. Such behavior falls squarely within the ambit 6

of the statute, particularly given the public health

and safety concerns involved.

B. Facial Vagueness

To succeed on a facial vagueness challenge, a complainant must demonstrate that the law is impermissibly
No. 11-1999 9

vague in all of its applications. Village of Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).

As we have concluded that Wis. Stat. § 125.12(2)(ag)(2)

is not unconstitutionally vague in its as-applied context with regard to the Nasty Habit, there is no need

to examine Hegwood’s facial attack; it cannot succeed

as we have identified that the statute is sufficiently

defined in at least one application.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s grant of summary judgment for the defendants.

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