concurring.
I concur in the result reached by the majority but I am compelled to write separately as I do not believe the actions of the Wauwatosa City Council deprived Baer of any constitutionally cognizable property interest.
I agree with the majority’s statement that “Baer was not really operating a licensed business.” Under section 6.84.-020(B), Baer did not need a license to sell “rifles or shotguns used for hunting purposes, target-practice weapons, or any sporting-goods item.” However, I cannot agree with the majority’s bald assertion that “[b]y repealing section 6.84.020(B) and then refusing to issue Baer a license the defendants in effect closed down an unlicensed business, and that was a deprivation of property.” I fail to understand how one gains a protected property interest in the operation of an unlicensed business. The majority attempts to justify its conclusion by drawing the following illogical analogy: “The state cannot take away your house without a hearing by passing a law that homeowners need a license for their homes and then denying you the license.”
I contend that there is a fundamental difference between the occupation of a home and the privilege of carrying on a business of selling weapons. No one disputes that the City of Wauwatosa had the power to regulate the distribution of firearms in the interest of public health'and safety. However, it is evident that the Common Council was without authority in the exercise of its governmental function to issue a license to Baer for a business enterprise specifically exempt from the requirement of such a license pursuant to section 6.84.020(B) of the Wauwatosa Code of Ordinances as codified. Cf. Edelbeck v. Town of Theresa, 57 Wis.2d 172, 177, 203 N.W.2d 694, 696 (1973). Thus Baer was not operating a “licensed business” due to the above-mentioned exemption and he cannot conceivably have gained a property interest from a license or permit which was a nullity from the date of issuance. Therefore he does not have “a legitimate claim of entitlement,” to the continued undisturbed operation of his enterprise. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
“The Supreme Court has made it clear that the [existence of a cognizable property interest] depends in large part upon the extent to which a person has been made secure in the enjoyment of the benefit as a matter of substantive state or federal law.” Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir.1981). See Reed v. Village of Shore-wood, 704 F.2d 943, 948 (7th Cir.1983). Baer is unable to point to any case law and/or legal basis in federal or state law entitling him to a continued right to operate his previously licensed gun enterprise. Nor can Baer logically be heard to complain that the Common Council of the City of Wauwatosa, Wisconsin, now in the proper exercise of its discretion sees fit to require a license to carry on the previously unregulated sale of hunting and sporting firearms within their locality.
Baer argues that the license previously issued to him under section 6.84.020(A) somehow created a property interest in the continuation of his firearms business. It is clear, however, that Baer’s license issued pursuant to section 6.84.020(A) was issued in error for section 6.84.020(B) of the Wauwatosa Code of Ordinances specifically exempted from the license requirement the sale of any “rifles or shotguns used for hunting purposes, target-practice weapons, or any sporting-goods item.” I fail to un*1127derstand how the majority can hold that an individual gains a property interest from the issuance of a license previously issued in error and therefore void from its inception.
After realizing that section 6.84.020(B) allowed Baer to operate his business without a license, the Common Council moved to adopt an ordinance requiring a license for the sale of any and all firearms in the City of Wauwatosa. The new ordinance, passed June 3, 1980, provided that “[n]o person shall engage in the business of selling or giving away any dangerous weapon or gun without obtaining a license.” Section 6.84.-030 provided, inter alia, that “[u]pon the receipt of [a license] application, the common council may direct the city clerk to issue such license to the applicant.” (emphasis added). The amended Code of Ordinances provides the Common Council with absolute authority and discretion in determining whether or not a license is to be issued to an applicant under the now adopted new Code. No citizen has a right to demand the issuance of a license to operate a firearms business enterprise within the confines of the City of Wauwatosa. The aspirations of Baer or any other citizen to obtain a firearms license are not constitutionally protected as a property interest under the Due Process Clause of the Fourteenth Amendment since they are, at best, merely a “unilateral expectation” of such receipt. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. As the Ninth Circuit Court of Appeals recognized in Erdelyi v. O’Brien, 680 F.2d 61, 63 (9th Cir. 1982), where an issuing authority retains “broad discretion to grant or deny license applications in a closely regulated field, initial applicants do not have a property right in such licenses protected by the Fourteenth Amendment.”
Furthermore, Baer cannot even legitimately claim that he has even a “unilateral expectation” of being able to continue his business because, as the majority notes, federal law prevents a convicted felon from selling firearms. Nor can he, as we pointed out earlier, rest his constitutional due process right on a license which was issued in error.