A state appeals court Tuesday reversed an Eland man’s violation of Shawano County’s transient merchant ordinance and $783 forfeiture, concluding he has operated a regular food sales route for years.
Damien T. Plaski, 39, stopped at Janice Wright’s Wescott residence in September 2013 and offered to sell her frozen seafood. Plaski had not sold to Wright before and could not show her a sales permit when she asked for his “credentials,” according to the court’s written opinion.
Wright called the Sheriff’s Department, and Deputy Shawn Copsey stopped Plaski and asked for his transient merchant permit. Plaski had an expired sales permit issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection and but no transient permit. Since neither the county nor the town of Wescott had issued Plaski a permit, Copsey issued Plaski a citation.
Plaski represented himself at trial before Shawano-Menominee Circuit Court Judge William Kussel Jr., who rejected Plaski’s claim that he was permanent merchant by virtue of his selling meat and seafood door-to-door since 2008.
Plaski testified that he “run(s) ads in the paper,” and “anybody that’s ever … dealt with me know exactly where I’m at,” according to the opinion.
Instead, Kussel found Plaski in violation of the transient merchant ordinance and fined him $783.
Plaski hired James Connell, a Wausau attorney, to appeal the violation, arguing the county had not proven Plaski was a transient merchant.
In a brief to the court Connell wrote: “This case involves a confusing, badly drafted ordinance which was itself copied from a state statute … repealed in 1989. It involves an appellant who made the unwise decision to represent himself at trial. Despite these circumstances, an examination of the record as a whole establishes a failure of proof on the issue of whether Damien Plaski was a transient merchant.”
Assistant District Attorney Catharine White argued on appeal that at trial, Plaski did not claim he was a permanent merchant. Plaski falsely stated he had a valid transient merchant permit, which Kussel said amounted to making an untrue statement to Copsey.
However, the District III Court of Appeals found that the county was required to prove that Plaski was a transient merchant and failed to do so.
Plaski’s testimony at trial showed he met the ordinance’s definition of a permanent merchant which requires an individual to continually operate a business for at least a year and do business from his residence also for at least one year, according to the opinion.
“Given Plaski’s testimony, and the county’s failure to present any evidence relevant to the definition of the term ‘permanent merchant,’ a reasonable fact finder could not have concluded by a preponderance of the evidence that Plaski did not intend to become and did not become a permanent merchant of Shawano County,” wrote Judge Lisa Stark in the nine-page opinion.
Stark also found that whether or not Plaski made an untrue statement to Copsey about being a licensed merchant was irrelevant to Plaski’s meeting the definition of permanent merchant.
Calls to White and Connell were not returned before deadline.
Plaski, who operates the meat products business A Cut Above, said he had to establish sales routes north and west of Shawano County after he was found in violation of the transient merchant ordinance.
“I’m like the Schwans guy … and none of them have (county sales permits),” he said.
Plaski said he would revisit prior customers in the county and was pleased with the appeals decision.
“It shows the justice system works for a small business guy like me,” he said.
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