A judge may force New Ulm city fathers to issue beer and setup license to Leon Olsen for 121 S. Valley, the former Beyer’s Bar.

Olsen’s license applications were turned down in June and he took the city to court.

District Court Judge Walter Mann said Monday that the city had used possible future problems at 121 S. Valley as a basis for refusing the licenses.

The issue is whether this basis is allowable under state law, Mann said at the end of a two-hour court hearing on the matter. His ruling is expected sometime this month.

The City Council had said a cooling off period was needed for the location because of many complaints and two arrests for prostitution under previous owners.

“NO ONE could argue,” the judge said, “that it wouldn’t be a good idea for such a place to close down so the persons using it as their headquarters would disband. But that isn’t the question here.”

Mann said the council’s discretion on issuing licenses must be exercised within the elements specified in the state law. The law says an applicant must be 18 years old, a U.S. citizen, have no convictions for serious crimes in the past five years and be of good moral character.

“Has the legislature said you can consider what may occur in the future?” he asked. “Logically a cooling off period is called for, no question, but does the council have the right under law to do this?

“WE’RE NOT a nation of men,” Mann said. “No matter how moral their purposes may be, just because the council is acting in good faith doesn’t make that action right. We’re a nation of laws. The city has no more power than the legislative branch gives it.”

The judge said arguments by the city in favor of a probationary period before a beer or setup license was issued should be made to the legislature, not the court, to get such a provision enacted into law.

“It sounds like a good idea,” he said.

Mann said the council could have challenged the fitness of the applicant himself, but the council hadn’t done that.

“This court feels the police power of the council must be limited to what the legislative body enacted,” the judge said.

MAYOR CARL Wyczawski, Council President William Gafford, Police Chief Richard Gulden and Leon Olsen testified at Monday’s hearing.

Olsen said he and Anthony Kauffenberg got money from their parents to take over the contract for deed for the building from the previous owners, with attorney William O’Connor drawing up the papers. He said Kauffenberg is not a partner but rather an employee.

Olsen’s establishment, called The Entertainer, is now open with mechanical games but not with live music. Soda pop sales don’t pay for bands, Kauffenberg said after the court hearing.

GULDEN AND Wyczawski testified they refused to endorse an application for a setup license June 18 because the council had already refused the beer license June 17. They also thought an applicant should be in business up to a year to see what kind of establishment he runs before granting a setup license, they said.

Judge Mann asked Gulden the basis of his belief that he had the right to withhold his signature on the setup license until the business had been in operation one year.

The police chief said he thought it was a discretionary power which extended into possible future conduct.

“On that basis you would never issue a license for anyone who had never been in business in New Ulm?” the judge asked.

Gulden said that was right, if he didn’t know what kind of business would be run there –dancing, entertainment or what. He said if it were a restaurant this wouldn’t apply.

The mayor said of Beyer’s before it closed, “It’s pretty much word of mouth but I’ve heard we were getting a lot of unsavory characters from a radius of 30 to 50 miles who knew this was the place to go to have fun and heard the police were allowing it.”

OLSEN’S ATTORNEY, Pat Moriarty, argued,” The action of the council and mayor was classically arbitrary and capricious. None of the qualifications of Olsen or requirements of the law were considered. The council has applied other criteria which are not part of its discretion.”

City Atty. Terence Dempsey argued, “We’d be sticking our heads in the sand like ostriches if we didn’t expect the same clientele to flock back if we issue the license.

“This is a test of the good judgment of those five men on the council to decide what’s best for the whole community, not just for Mr. Olsen,” Dempsey said.

The city attorney has a week to come up with citations of prior cases backing up the city’s action. If he produces the citations Olsen’s attorney has a week to respond. The judge said he would issue his decision within 10 days after receiving Moriarty’s response, barring any unusual problems.

New Ulm Daily Journal

July 8, 1975