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COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                            95-2387
†Petition for Review Filed
Complete Title
of Case:
TOWN OF WAYNE,
PLAINTIFF-RESPONDENT,†
V.
DANIEL L. BISHOP, MARK PHILLIPS AND SPECIAL
SOUVENIRS, INC.,
DEFENDANTS-APPELLANTS,
RICHARD A. CASSEL, SR. AND SCOTT PECOR, D/B/A
CASSEL-PECOR INVESTMENTS,
DEFENDANTS.
Opinion Filed:                                                       April 16, 1997
Submitted on Briefs:                                                 February 24, 1997
JUDGES:                                                              Brown, Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                           For the defendants-appellants, the cause was submitted on the briefs of
                                                                     Percy L. Julian, Jr., of Julian, Olson & Lasker, S.C., of Madison and Jeff
                                                                     Scott Olson of Madison.
Respondent
ATTORNEYS:                                                           For the plaintiff-respondent, the cause was submitted on the briefs of H.
Stanley Riffle of Arenz, Molter, Macy & Riffle, S.C., of Waukesha.




COURT OF APPEALS
DECISION
DATED AND RELEASED
                                                                                    NOTICE
April 16, 1997
A  party  may  file  with  the  Supreme  Court  a                                   This opinion is subject to further editing. If
petition  to  review  an  adverse  decision  by  the                                published, the official version will appear in
Court of Appeals.   See § 808.10 and RULE 809.62,                                   the bound volume of the Official Reports.
STATS.
No.   95-2387
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
TOWN OF WAYNE,
PLAINTIFF-RESPONDENT,
V.
DANIEL L. BISHOP,
MARK PHILLIPS AND
SPECIAL SOUVENIRS, INC.,
DEFENDANTS-APPELLANTS,
RICHARD A. CASSEL, SR. AND
SCOTT PECOR, D/B/A
CASSEL-PECOR INVESTMENTS,
DEFENDANTS.
APPEAL from a judgment of the circuit court for Washington County:
LEO F. SCHLAEFER, Judge.   Affirmed in part; reversed in part and cause remanded.
Before Brown, Nettesheim and Anderson, JJ.




No. 95-2387
BROWN, J.                                                                                                        The primary issue in the case relates to the
Town of Wayne’s attempt to prosecute adult bookstore operators for zoning and building
occupancy code violations.   All told, the circuit court imposed civil forfeitures of over
$80,000.   The defendants argued that the Town impermissibly restricted their free speech
rights  when  it  changed  the  substantive  zoning  code  to  make  it  impossible  for  the
defendants  to  get  the  otherwise  necessary  zoning  and  building  occupancy  permits,
thereby effectively banning this type of business from the Town.
The circuit court found that the defendants had no standing to raise their
constitutional claim because they did not even try to get the permits or bring a complaint
before  the  Town’s  zoning agencies.    The  court accepted the Town’s  claim that the
substantive elements of the zoning code were separate and distinct from the general
zoning and building occupancy rules within the code.
We hold, however, that the defendants did have standing to raise their
constitutional challenge and that they are correct on the merits.   We must examine the
Town’s zoning scheme as a whole.   And, when we do, we conclude that it worked as an
unconstitutional prior restraint on the defendants’ First Amendment rights.    We thus
reverse the elements of the judgment relating to the zoning and building occupancy
violations.
INTRODUCTION
The circuit court entered summary judgment against the defendants1 and
set total forfeitures at $85,480.   This total was allocated to three local code violations in
the following manner:
Description                                                                                                      Forfeiture
1   The judgment was specifically entered against Special Souvenirs, Inc., Daniel L. Bishop and Mark Phillips,
who were deemed jointly and severally liable.
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No. 95-2387
no zoning permit                                                                              $42,000     ($250 per day for 168 days)
no certificate of occupancy                                                                   16,800      ($100 per day for 168 days)
no plumbing permit                                                                            1,680       ($10 per day for 168 days)
costs of prosecution                                                                          25,000      (reasonable attorney fees)
Total                                                                                         $  85,480
The defendants have asserted a nine-prong attack on this judgment.   While we have set
out a list of all the issues that they identified in the margin,2 we do not have to address
each one to successfully gauge the merits of this controversy.    We will confine             our
analysis   to the following five issues:
2
The defendants presented the following nine issues for review:
1. Did the defendants lack standing to challenge the town’s new adult
zoning  ordinance  and  its  zoning  permit  and  occupancy  certificate
procedures because they had not applied for a conditional use permit, a
zoning permit, or an occupancy certificate under these ordinances?
2.  Was  the  town’s  new  adult  zoning  ordinance  unconstitutional  as
applied to these defendants because there was no location in the town
in which an adult use could lawfully be situated?
3. Are the town’s zoning permit and occupancy certificate ordinances
unconstitutional as applied to these defendants because they do not
include specified periods of time within which decisions must be made
on applications and because they do not afford prompt judicial review
of denials?
4. Was there any admissible evidence in the record that any defendant
performed interior plumbing work without a permit?
5.  Did  each  defendant  waive  all  objections  to  these  prosecutions
because none of them appealed to the zoning board of appeals from the
notice of non-compliance of May 7, 1993?
6. Were the individual corporate officers personally liable for ordinance
violations attributable to the corporation?
7. Did the circuit judge impose unreasonably high forfeitures?
8.  Was  it  appropriate  to  make  the  individual  defendants  and  the
defendant corporation jointly and severally liable for payment of the
forfeitures?
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No. 95-2387
1.                                                                                          Whether  the  defendants  have  standing  to  raise
their  First  Amendment  challenge  to  the  Town’s
whole zoning scheme?
2.                                                                                          Whether the Town’s whole zoning scheme worked
as an impermissible  “prior restraint” of their free
speech rights?
3.                                                                                          Whether   the   circuit   court   properly   awarded
summary judgment to the Town on the plumbing
violation?
4.                                                                                          Whether  the  circuit  court  properly  included  the
Town’s attorney’s fees as a cost of prosecution?
5.                                                                                          Whether  the  circuit  court  properly  found  the
defendants jointly and severally liable?
We will begin by setting out some pertinent background information.   Further factual
details will be forthcoming where necessary.
BACKGROUND
In December  1992, the defendants leased property in the Town.    They
planned to operate a store offering, as they termed them, “sexually explicit materials.”
At this same time, however, the Town was in the process of amending its
zoning  ordinances  to  address  the  planning  issues  associated  with  adult-oriented
businesses.   In January 1993, the Town passed an ordinance that amended the substantive
zoning code; it redefined some of the existing commercial zoning classifications and
placed special restrictions on  “commercial establishments” that sold books and films
depicting “sexual conduct” or “nudity.”   See TOWN OF WAYNE, WIS., ORDINANCE No.
93-1, § 1.26(3)(v).   The parties refer to this ordinance as “No. 93-1,” and to eliminate
possible confusion, we will also.   Number 93-1 defined the types of materials that fell
within the above two categories.   See § 1.26(3)(vi).   Moreover, No. 93-1 mandated that
stores offering these materials needed to apply for a “conditional use permit” and could
9.  Was  the  trial  court  authorized  to  award  the  plaintiff  its  actual
attorneys’ fees against the defendants?
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No. 95-2387
only locate in the commercial “B-2” district.   See § 1.26(3)(vii).   The stated policy of No.
93-1  was  to  generally  “protect  the  public  health,  safety,  welfare  and  morals  of  the
community” by restricting the  “location of defined materials and activities consistent
with  the  Town’s  interest  in  the  present  and  future  character  of  its  community
development.”   See § 1.26(3)(viii).
This new ordinance, however, created a problem for the defendants.   First,
the property they leased was located in a “B-1” district, and therefore, they could not use
it for their planned store.   In addition, although the Town designated the “B-2” district as
suitable for such a business, the Town did not designate any areas with that classification.
The net result was that the defendants had no place to permissibly operate their planned
store.
The defendants responded in two ways.   First, they filed suit in federal
district court challenging the constitutionality of No. 93-1 and seeking to enjoin the Town
from  enforcing  it.    Next,  and  more  important  to  this  controversy,  the  defendants
proceeded to open their store anyway, without bothering to get the otherwise necessary
zoning and building occupancy permits.
In  early  May                                                                                     1993,  the  Town  posted  a   “stop  work”  order  at  the
defendants’ store.   An inspection revealed that the defendants had changed the use of the
property (into an adult bookstore) without obtaining the zoning and building occupancy
permits necessary for any new business.   The Town cited the defendants for failing to
obtain a zoning permit and a certificate of occupancy.    See TOWN OF WAYNE, WIS.,
ZONING ORDINANCE § 1.01(2) and TOWN OF WAYNE, WIS., BUILDING CODE § 30.11(3).
Additionally, the Town cited the defendants for performing plumbing work without a
permit.   See TOWN OF WAYNE, WIS., PLUMBING CODE § 1.02(2).   After the defendants
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No. 95-2387
failed to cure these violations or appeal them to the local zoning agencies, the Town
initiated suit in September 1993, seeking injunctive relief and civil forfeitures.
The circuit court entered a temporary injunction on October  21.    This
order closed the store until the ongoing controversy could be resolved.   The defendants
then filed a petition with this court seeking a stay of the injunction and leave to appeal
this nonfinal order.   Here, the defendants alleged that No. 93-1, and thus the injunction,
violated their First Amendment rights.   We denied review at that time, however, noting
that the then ongoing litigation in federal district court would adequately resolve this
constitutional issue.
But by this time, the federal litigation had drawn closer to completion.
Although the parties do not elaborate on that matter in their briefs, the record reveals that
the defendants withdrew their motion for an injunction to bar the Town from enforcing
No. 93-1 after the Town stipulated that it would halt any enforcement of the ordinance
against the defendants.   Even though the federal litigation was temporarily stalled, the
defendants recast their First Amendment challenge as a counterclaim in the zoning and
building occupancy enforcement action which was still proceeding in the circuit court.
By  March  1994,  the  Town  and  the  defendants  had  each  moved  for
summary judgment.   The Town sought a permanent injunction barring the defendants
from operating this store, as well as civil forfeitures and the costs of enforcement.   On the
other side, the defendants argued that No. 93-1 was facially unconstitutional and that the
Town  was  trying  to  implicitly  enforce  it  through  the  general  zoning  and  building
occupancy codes.    The defendants separately argued that the Town had no proof to
support the plumbing code violation.   The defendants sought injunctive relief, lost profit
damages and attorney’s fees.
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No. 95-2387
The circuit court ruled for the Town.   It accepted the Town’s argument
that  the  general  zoning  and  building  occupancy  provisions  were  distinct  from  the
substantive restrictions within No. 93-1.   The court further reasoned that the defendants
waived their right to pursue their constitutional claim because they did not participate in
the Town’s administrative appeal process, which the court found was the  “exclusive
remedy” available to the defendants.   Although the court noted that No. 93-1 “might have
been found unconstitutional,” it found that the Town was merely citing the defendants for
their failure to obtain the same permits that all businesses had to obtain.   Because the
defendants had failed to comply with these administrative requirements, the court found
that they had no “standing” to argue “constitutionality.”   With regard to the plumbing
code  violation,  the  court  found  that  there  was  no  dispute  of  material  fact  that  the
defendants performed plumbing work at the store and did not have the necessary permit.
The  court  later  held  an  evidentiary  hearing  to  determine  appropriate
forfeitures.   Here, emphasizing that the defendants’ violations of the zoning and building
occupancy codes were “willful and knowing” and that the defendants “ignored the town’s
sensitivities,” the court assessed total forfeitures and costs of over $85,000.
Before we turn to the five issues raised in this appeal, we emphasize that
our analysis is confined to assessing the validity of the judgment entered against the
defendants.   Although, as we explain below, we are required to consider the merits of No.
93-1 to properly analyze this judgment, the defendants have not requested that we declare
No. 93-1 void.   In fact, the parties both represent in their briefs that they have reached a
settlement which permits the defendants to operate their store in the future.
CONSTITUTIONAL CHALLENGES TO ZONING AND
BUILDING CODE ENFORCEMENT
Our  analysis  of  the  constitutional  issues  in  this  case  requires  that  we
measure the relationship between the new substantive rules embodied in No. 93-1 and the
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No. 95-2387
provisions of the zoning, building and plumbing ordinances that the defendants actually
violated.
The defendants argue that we must look at the Town’s zoning regulations
as a whole.   Because the substantive restrictions within No. 93-1 prevented them from
opening their business anywhere within the Town, they argue that trying to comply with
the general zoning and building occupancy provisions would have been “futile.”
The Town maintains, however, that “[t]his matter involves nothing more
than enforcement of certain code provisions which are applicable to all new businesses
locating within the Town of Wayne.”   They argue that we should affirm the trial court’s
analysis and hold that the defendants cannot mount a substantive challenge to No. 93-1
because they never even tried to get a zoning or building occupancy permit.   The Town
contends  that                                                                                “[i]f  they  had  applied  for  the  necessary  permits  initially,  rather  than
opening the doors of their business in blatant disregard of the Town Code requirement,
they would have known quickly that Ordinance  #93-1 would not be applied against
them.”
Citing to various Supreme Court cases, the defendants argue that they did
not have to pursue their administrative remedies to have standing to challenge No. 93-1
because the Town’s whole zoning scheme acted as a  “prior restraint.”    See City of
Lakeview  v.  Plain  Dealer  Publ’g  Co.,  486  U.S.  750,  757  (1988).    The  defendants
describe how the Town’s zoning scheme effectively restricted individuals from engaging
in an expressive activity because an individual facing No. 93-1 would think that he or she
had to obtain the Town’s permission before opening an adult bookstore.   See id.   They
add that the Court has granted individuals standing to challenge similar ordinances even
when they never tried to obtain the required license.   See id. at 755-56.   The defendants
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No. 95-2387
further note that the Court has granted standing in these circumstances out of concern
over possible “censorship.”   See id. at 757.
What we face in this case, however, differs slightly from the  “typical”
prior  restraint  challenge.    Although  No.  93-1  established  a  permit  requirement—the
proposed operator had to obtain a special “conditional use permit,” see ORDINANCE NO.
93-1, § 1.26(3)(vii)—the Town emphasizes that it actually cited the defendants for not
having the zoning and building occupancy permits that are required for all businesses.
The Town adds that we should consider New York State Club Ass’n, Inc. v. City of New
York, 487 U.S. 1 (1988), which it asserts “set forth very stringent guidelines which must
be met before a court will consider [a facial] challenge.”
Nonetheless, the fact that the Town specifically cited the defendants for
violating the generally applicable zoning and building occupancy ordinances does not
affect our analysis of whether the defendants may challenge the substantive restrictions
within No. 93-1.   Indeed, the Supreme Court rejected similar line-drawing in FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215 (1990).   There, the Court faced a challenge to the city
of Dallas’s licensing scheme for adult-oriented businesses.   At the outset, the city of
Dallas likewise suggested that the challengers did not have standing to assert their facial
attack.    See  id.  at                                                                         223.    The  city  noted  that  it  required  all  businesses  to  obtain  a
“certificate of occupancy” and argued that requiring owners of adult-oriented businesses
to get a license did not create enough of a risk of censorship that immediate, facial
judicial scrutiny was warranted.   See id. at  225.   The Court nonetheless rejected that
argument, responding:
[E]ven assuming the correctness of the city’s representation
of its                                                                                          “general” inspection scheme, the scheme involved
here  is  more  onerous  with  respect  to  sexually  oriented
businesses than with respect to the vast majority of other
businesses.
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No. 95-2387
Id.   The Court then concluded that the challengers had standing to bring their facial attack
on the city’s licensing scheme.   See id.
We apply the reasoning within FW/PBS and hold that the defendants have
standing to raise their substantive challenge to No. 93-1 as a defense to the zoning and
building occupancy violations.   The Town created special rules for adult bookstores.   See
ORDINANCE NO.  93-1, §  1.26(3)(v). The Town required that these businesses obtain a
“conditional  use  permit.”    See  id.    And  because  the  Town  decided  to  place  adult
bookstores in a special class, under FW/PBS, the Town may not now claim that it is
simply treating these stores as it would any other business.   We reverse the circuit court’s
finding that the defendants did not have standing to raise their First Amendment-related
arguments.
The conclusion that the defendants have standing now brings us to the
merits of the defendants’ First Amendment claim.   It goes as follows.   The Supreme
Court held in Young v. American Mini Theaters, Inc., 427 U.S. 50, 71-72 (1976), that a
municipality may use its zoning ordinances to regulate the location of adult-oriented
establishments, even when those restrictions relate to the content of the speech produced
at those establishments.   But while the Young decision opened the door to this form of
municipal regulation, the defendants emphasize how the Court nonetheless limited that
holding by stating:                                                                             “[T]he First Amendment will not tolerate the total suppression of
erotic materials that have some arguably artistic value.”   Id. at 70 (emphasis added).   The
defendants accuse the Town of trying to enforce an impermissible total ban by not setting
aside any area within the Town limits where adult bookstores could permissibly operate.
The Town responds that the defendants have not proved their claim.3   It
contends that the defendants never placed evidence in the record indicating that No. 93-1
3   The Town’s brief provides:
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No. 95-2387
was ever applied against them.   In fact, the Town reports that No. 93-1 has since been
repealed and that the defendants have obtained all the necessary permits.   Finally, the
Town  again  emphasizes  that  the  code  provisions  in  question  do  not  “relate”  to  the
“suppression of ideas.”    We nonetheless reject the Town’s various arguments for the
following two reasons.
First, we observe that the Town, not the defendants, carries the burden of
proving  that  its  actions  did  not  impermissibly  infringe  on  the  defendants’  First
Amendment rights.   While a defendant normally has the burden of establishing beyond a
reasonable doubt that an ordinance is unconstitutional, when the ordinance concerns the
exercise of First Amendment rights, the burden reverses.   See Fond du Lac County v.
Mentzel, 195 Wis.2d 313, 320, 536 N.W.2d 160, 163 (Ct. App. 1995).   So contrary to the
Town’s assertion, the defendants do not have to prove that No. 93-1 would be applied to
them, nor do they have to explain exactly how No. 93-1 suppresses free speech.   Rather,
since the defendants have alleged a First Amendment violation, the Town has the burden
of  establishing  that  No.                                                                      93-1  was  a  permissible  land-use  regulation  and  not  an
impermissible prior restraint.   See Young, 427 U.S. at 71-72.
Second, even on the merits, we see that the Town is simply rekindling the
argument that we can somehow bifurcate the zoning and building occupancy violations
that the defendants were cited for from the substantive provisions within No. 93-1.   As
we explained above, however, we must look at the Town’s whole zoning scheme.   A
party facing the Town’s new ordinance could not be expected to differentiate between its
substantive portions and its enforcement provisions.
To begin with, it is clear that the Defendants have not shown to this
court  that  every  application  of  the  Town  code  would  create  an
impermissible risk of suppression of ideas.
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No. 95-2387
In sum, we reject the Town’s argument that it could rightfully enforce its
zoning and building occupancy codes against the defendants regardless of any flaws in
the substantive rules embodied in No. 93-1.   The Town stepped out beyond what it was
implicitly authorized to do under Young.    It did not set aside any area where adult
bookstores could lawfully operate and thereby manipulated its whole scheme of zoning
and building occupancy codes to achieve an impermissible total ban on the distribution
of   adult-oriented, expressive materials.   See id. at 70.   We reverse those portions of the
judgment  relating  to  the  defendants’  violation  of  the  Town’s  zoning  and  building
occupancy codes.
PLUMBING CODE VIOLATION
The defendants challenge whether the Town presented sufficient facts to
support  the  plumbing  code  violation  within  the  judgment.    They  do  not  raise  any
constitutional arguments.
We independently review the decision to award summary judgment.   See
Preloznik v. City of Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.
App. 1983).   We will start with the Town’s argument concerning why it is entitled to
judgment as a matter of law.   The subject ordinance provides:
1.02.  PLUMBING  CODE  ESTABLISHED.                                                                (1)   All
plumbing work as described in sec. 145.01(10), Wis. Stats.,
shall be done in conformity with chs. ILHR 81 to 86, Wis.
Adm. Code as amended.
(2)    No  plumbing  work,  having  a  cost  of  $200.00  or
more,  shall  be  installed  without  first  obtaining  a  Town
permit.
PLUMBING CODE § 1.02(2).   The Town argues that the defendants violated this ordinance
because they performed plumbing work at the premises and did not have a permit.
The Town supports this claim with the affidavit of its building inspector.
In  this  affidavit,  the  inspector  explains  that  the  defendants  owned  and  operated  the
12




No. 95-2387
subject bookstore and that plumbing work was performed at this property, specifically,
that the interior fixtures were connected to an exterior holding tank.   The inspector also
explains that his files show that the defendants never obtained a permit to perform this
plumbing work.
On appeal, the defendants attack the validity of the building inspector’s
affidavit.    They conducted a deposition of the inspector.    During the deposition, the
inspector admitted that his statements concerning the plumbing work were only based on
inferences  he  drew  from  a  site  inspection.    He  conceded  that  he  never  saw  them
performing this work.   Indeed, during this deposition the inspector clarified that he only
told  the  defendants  that  they  appeared  to  be  in  violation,  thus,  giving  them  the
“opportunity to tell me differently.”
The conflict between the inspector’s affidavit and his deposition testimony
presents a material dispute.   In light of the inspector’s deposition, we cannot be certain
whether the plumbing work was actually performed, and if it was performed, when it was
performed.
The Town nonetheless argues that the inspector’s deposition testimony
was never presented to the circuit court before it rendered judgment and thus we should
not consider it on appeal.   See Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146
Wis.2d  568,  573,  431 N.W.2d  721,  724  (Ct. App.  1988)  (“We address  [motions for
summary judgment] on the record as it existed when they were decided by the trial court,
not on a record expanded by the testimony at trial.”).   In reply, the defendants contend
that the necessary facts were indeed before the circuit court at the right time.   We will
therefore turn to the record to determine when the inspector’s actual deposition was
placed in the record and made available to the court.
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No. 95-2387
Our  review  shows  the  following  series  of  events.  The  defendants
conducted the inspector’s deposition on March 3, 1994.   While the defendants’ original
brief in opposition to summary judgment was also filed on March 3 (and of course makes
no mention of the inspector’s deposition), the defendants’ counsel later told the circuit
court about this deposition during a hearing on March 8, 1994.   Counsel stated that “[w]e
are actually now ready to file … that deposition with the Court.”
The court agreed to wait and permitted the parties to file supplemental
briefs  before  making  a  ruling  on  summary  judgment.    The  defendants  filed  their
supplemental brief on September 8, 1994.   This brief, moreover, plainly describes why
the court should consider the inspector’s seemingly contradictory deposition testimony in
its summary judgment analysis.
The next relevant entry in the record is the March 3, 1995 hearing where
the circuit court announced that it was awarding judgment to the Town.   In its oral ruling,
the court explained that it was relying on the building inspector’s affidavit that the Town
furnished  to  support  its  claim.     The  court  found  that  this  affidavit  conclusively
demonstrated that the defendants had violated this ordinance.
Although  the  circuit  court  did  not  discuss  the  contradictory  evidence
contained within the inspector’s deposition, it does not appear that the deposition was
placed in the record before the court issued its ruling.   This deposition is in the record
now, but the clerk of court’s date stamp reads that it was filed on April 28, 1995, almost
two months after the circuit court awarded summary judgment to the Town.
The date stamp is usually accepted as proof of the date of filing.   See
Boston Old Colony Ins. Co. v. International Rectifier Corp., 91 Wis.2d 813, 822, 284
N.W.2d  93,  97  (1979).    As the defendants have not provided us with an alternative
explanation (or proof) for why we should conclude otherwise, we hold the defendants to
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No. 95-2387
the rule that information not in the record at the time summary judgment is awarded will
not be considered by this court on appeal.   See Super Valu Stores, 146 Wis.2d at 573,
431 N.W.2d at 724.   And without the inspector’s deposition testimony, the defendants
have no evidence to rebut the Town’s claim.   We affirm the circuit court’s decision to
award summary judgment to the Town on the plumbing violation.
ATTORNEY’S FEES AS A COST OF PROSECUTION
A municipality is entitled to recover the costs of prosecution as part of the
forfeiture for an ordinance violation.   See  §§  66.12(1)(c) and  800.09(1), STATS.   The
defendants argue, however, that the circuit court made a legal error when it added to the
costs of prosecution a $25,000 award which was based on the Town’s attorney’s fees.
We agree.
We  faced  this  same  claim  in  Town  of  Mt.  Pleasant  v.  Werlien,  119
Wis.2d 90, 91, 349 N.W.2d 102, 103 (Ct. App. 1984), and held that “the imposition of
actual attorney fees was an improper item of the  ‘costs of prosecution.’”   There, the
defendant was found guilty of a town ordinance and was fined $100 plus costs, including
over $4000 for attorney’s fees.   We analyzed the statute authorizing municipalities to
recover the costs of prosecution and determined that it did not authorize the collection of
attorney’s fees as a part of such costs.   See id. at 92-93, 349 N.W.2d at 104.   The holding
of Mt. Pleasant is squarely on point and demands that we reverse the portion of the
judgment relating to the Town’s attorney’s fees.
JOINT AND SEVERAL LIABILITY
Having set aside the zoning and building occupancy code violations, and
the award related to the Town’s attorney’s fees, all that remains is the forfeiture of $1680
for the plumbing code violation.   We now address whether the circuit court properly
made the defendants jointly and severally liable for this amount.
15




No. 95-2387
Here, the defendants argue that their store was officially operated by a
corporation  4 and that the circuit court erred when it entered judgment against them
personally.   The defendants acknowledge that a court may look beyond a firm’s legal
form when the individuals in control of the business have violated the law in the name of
the business.   See State v. Kuhn, 178 Wis.2d 428, 432, 504 N.W.2d 405, 407 (Ct. App.
1993).5   Still, they contend that the circuit court had no factual basis on which to ground
that decision.
We have reviewed the record and conclude that the circuit court had a
sufficient  factual  basis.    The  Town  correctly  identifies  parts  of  the  record  where  it
showed the court that each of the defendants was personally involved with the business.
For example, at the initial evidentiary hearing to set forfeitures, the Town’s building
inspector explained how he told each of the defendants that they were operating their
store in violation of local codes.   The inspector further testified that during another site
visit, when both of the defendants were present, one of them told him that they intended
to get the necessary permits so that the store would no longer be in violation.
We conclude that the record supports the circuit court’s judgment.   The
record clearly reveals that each defendant was involved with the store’s daily operation
and that each defendant knew about the plumbing violation.   We hold that the circuit
court properly made the defendants jointly and severally liable.
CONCLUSION
4   See Note 1, supra.
5   We recognize that the panel in State v. Kuhn, 178 Wis.2d 428, 432, 504 N.W.2d 405, 407 (Ct. App. 1993),
emphasized that it was looking beyond the business form  (and holding the defendant personally liable)
because the defendant violated the “criminal” law.   There, the panel specifically used the term “criminal” to
distinguish its holding from other decisions which prohibited a court from looking beyond a business form in
private “civil” lawsuits.   See id.   While the Town has pursued the defendants in a “civil” forum, it alleges that
they are using their business form to evade public regulatory laws.  We therefore deem the discussion in Kuhn
about setting aside a firm’s business form in the criminal law context applicable to this case.
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No. 95-2387
We hold that the Town’s zoning scheme impermissibly infringed upon
the defendants’ First Amendment rights.   We therefore reverse the zoning and building
occupancy violations that were related to this invalid zoning scheme.   We also reverse
the  portion  of  the  judgment  awarding  the  Town  its  attorney’s  fees  as  a  cost  of
prosecution.    Nonetheless, we  affirm the circuit court’s  finding that the defendants
violated the Town’s plumbing code.   We uphold the circuit court’s decision to award
summary judgment to the Town on that matter and its decision to make the defendants
jointly and severally liable for the resulting forfeiture.
No costs to either party.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded.
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