Bangstad again hits a judicial brick wall

Minocqua Brewing Company owner Kirk Bangstad’s quixotic battle with Oneida County has perhaps reached its most chaotic level yet, but one thing’s for sure, he isn’t getting any help from the federal district court, which has again denied a preliminary injunction Bangstad sought to compel the county to issue a conditional use permit (CUP) for his establishment.

The CUP would allow Bangstad to operate a downtown beer garden legally. On Tuesday, however, district court judge James Peterson for the U.S. District Court for the Western District of Wisconsin shot down Bangstad’s motion in short order, in a short order.

Two months ago, as Peterson observed, the court denied Bangstad’s bid for a preliminary injunction to reinstate a similar CUP the county had revoked. Meanwhile Bangstad filed a completely new application for a CUP, which, on June 11, the county denied, citing a history and pattern of repeated permit violations.

That sent Bangstad back to federal court, alleging what he claimed was obvious political retaliation. On Tuesday, Peterson tossed that motion, too.

“The court denied the first motion because plaintiffs did not show a likelihood of success on the merits, which is one of the requirements for obtaining a preliminary injunction,” Peterson wrote in the latest decision. “Specifically, plaintiffs failed to adduce evidence to support their claim that the committee revoked the permit to retaliate against plaintiffs for exercising their First Amendment rights.”

Actually, Peterson continued, it was undisputed that Bangstad and MBC had failed to comply with multiple conditions in the permit, and further that they did not point to evidence suggesting the conditions themselves were unfair or pretexts for retaliation. 

“A First Amendment retaliation claim requires proof that the defendant took an adverse act against the plaintiff because of the plaintiff’s speech, so plaintiffs’ failure to show a causal connection between their speech and the permit revocation required denial of their motion for a preliminary injunction,” he wrote.

After that denial, Peterson continued, the county zoning committee denied Bangstad’s new application for a permit to operate a beer garden. 

Peterson summed up the latest Bangstad allegation: “Plaintiffs then amended their complaint to include new allegations that the committee denied the new application and that the denial was retaliation against plaintiffs for their speech.” 

In reality, Peterson continued, the new preliminary injunction motion was mostly a rehash of the first motion, relying on much of the same argument and evidence that the court had already rejected.

“Plaintiffs did not seek reconsideration of the court’s decision denying their first preliminary injunction motion, and they do not contend now that the court erred in denying their first motion, so it is not necessary to consider that evidence or argument again,” he wrote. 

MBC and Bangstad did submit two new pieces of evidence in the new motion, Peterson observed.

“The first is a declaration from plaintiffs’ counsel in this case, who was present at the June 11, 2025, hearing where the committee denied plaintiffs’ renewed request for a permit,” he wrote. “The court understands plaintiffs’ argument to be that it is reasonable to infer that defendants were retaliating against plaintiffs because, according to plaintiffs’ counsel, the county’s counsel ‘confirmed [during the hearing] that [the brewery] had come into compliance with the final unsatisfied conditions of the proposed permit.’”

In other words, Peterson explained, Bangstad and MBC contended that there would be no reasonable basis to deny the permit application once plaintiffs had satisfied the conditions of the permit.

“A threshold problem with the declaration is that counsel generally may not serve as both an advocate and a witness in the same case,” Peterson wrote. 

But even if the court considered counsel’s declaration, it does not support plaintiffs’ request for injunctive relief, Peterson asserted, stating that the declaration includes an alleged statement at the June 11 meeting by defendant Scott Holewinski, as he explained the reasons for denying the permit.

“[T]his isn’t about parking spaces or fencing or traffic markings,” Holewinski said at the meeting. “That all can be handled in conditions of the CUP. This is about an applicant refusing to follow specific conditions in the past and violating every permit he had for the past three plus years. In fact, he is currently violating a known permit right now. And this morning he, Mr. Bangstad put on social media that no matter what happens today, he will be open anyway. So it just shows that he doesn’t follow the rules. He doesn’t.”

Peterson said Bangstad and MBC used that statement as evidence of retaliatory intent because it referred to “a Facebook post from earlier that day in which Mr. Bangstad criticized defendants and other local officials.” 

“Plaintiffs did not submit the post to the court, but regardless of what the post says, Holewinski’s quoted statement says nothing about criticism against local officials,” the judge wrote. “Rather, the statement accuses plaintiffs of repeatedly violating permit conditions and disregarding the committee’s decisions. That is not a retaliatory reason for denying plaintiffs’ permit application, and plaintiffs have not submitted any evidence challenging the factual basis of the statement.”

Plaintiffs may believe that refusing a new permit because of numerous past permit violations is harsh or unfair, but that is not evidence that the reason is a pretext for retaliation, Peterson concluded.

“Plaintiffs cite no evidence that defendants have been more forgiving of other businesses with a similar history of permit violations,” he wrote.

Leave it to Beaver Dam

Peterson cited a court case to support his conclusion, Simpson v Beaver Dam Community Hospitals (BDCH), in which Michael Simpson sued for racial discrimination after BDCH rejected his application to join their medical staff.

In the case, according to court documents, Simpson, a licensed medical doctor, was recruited to apply for a family medicine position at BDCH in 2010, after which BDCH’s CEO offered Simpson the job following a staff interview.

To get the job, however — not to mention a signing bonus — Simpson had to secure medical staff privileges, which required that a credentialing committee review his application.

That committee found unsettling discoveries in Simpson’s record.

“His application stated that he was board certified with the American Board of Family Physicians and held an unrestricted license to practice medicine in Indiana and Illinois,” the court decision stated. “It also indicated that he was a defendant in two medical malpractice cases involving wrongful death, but it did not disclose that these claims were not covered by malpractice insurance. Simpson noted that he had received a professional sanction; he had been placed on academic probation during his first year of residency.”

That past record notwithstanding, Simpson argued that he was qualified and licensed to hold the position, and thus Simpson alleged the decision not to hire him was a pretext for race discrimination. 

“BDCH responds that it had legitimate, nondiscriminatory concerns about Simpson’s application because of the following: (1) his need to sit for an oral exam to obtain a Wisconsin medical license, (2) his placement on academic probation while in residency, (3) two uninsured medical malpractice claims, and (4) a negative reference received by Dr. Joel Miller from a staff member of one of Simpson’s former employers regarding Simpson’s behavior.”

But Simpson also pointed to a hospital doctor’s comments that Simpson was a “bad actor,” not on his “best behavior,” and would be a “better fit” elsewhere, citing that as evidence of racial animus. 

The court rejected that contention.

“[The comments] do not address race, do not refer to Simpson’s race, and do not hint at racial animus,” the court stated. “In order to suffice as direct evidence of discrimination, the comments must suggest that the decision-maker ‘was animated by an illegal employment criterion’ or had ‘a propensity to evaluate employees based on illegal criteria.’” 

Most relevant to the Bangstad case, the hospital was well within its rights to consider concerns about his past record, the court ruled: “Simpson offered explanations in response to the concerns, and while those explanations may have relieved any cause for concern in his eyes, it is the Credentials Committee’s assessment of his application that matters.”

The second piece of evidence Bangstad and MBC submitted was a declaration from a different lawyer who is representing plaintiffs in a state court lawsuit brought by Oneida County, Peterson stated. 

“The lawyer states that the lawsuit is about more than 100 alleged zoning violations, and he describes the procedural history of that lawsuit,” Peterson wrote. “Plaintiffs do not challenge the factual basis of the alleged violations, and they do not otherwise explain how the lawsuit supports their motion for a preliminary injunction in this court.”

In fact, Peterson stated, it is not inherently suspicious for a local government to enforce permit violations, so the declaration did not support an inference that defendants were retaliating against plaintiffs.

“Neither of the new declarations plaintiffs submitted with their renewed motion for a preliminary injunction show a likelihood of success on their retaliation claim,” Peterson concluded. “So the court will deny the motion.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.