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Alcohol Licensing and Policy in Wisconsin—The Basics Attorney Nina J. Emerson Alcohol Licensing and Policy in Wisconsin—The Basics Attorney Nina J. Emerson

There is no right to an alcohol license in Wisconsin. There is no right to an alcohol license in Wisconsin.

Ch. 125 Alcohol Beverage Laws n n n Defined by state statute Controlled on Ch. 125 Alcohol Beverage Laws n n n Defined by state statute Controlled on a local basis Liquor licenses issued by the municipality, typically, the City Clerk

State Statutes n http: //www. legis. state. wi. us/rsb/stats. html State Statutes n http: //www. legis. state. wi. us/rsb/stats. html

Municipalities Rule! n n n When it comes to licensing liquor, YOU RULE Municipality Municipalities Rule! n n n When it comes to licensing liquor, YOU RULE Municipality runs the show You make the rules

Ordinances http: //wilawlibrary. gov/topics/ordinances. php Ordinances http: //wilawlibrary. gov/topics/ordinances. php

Sec. 125. 10 Municipal regulation n Any municipality may enact regulations incorporating any part Sec. 125. 10 Municipal regulation n Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter. The municipality may prescribe forfeitures or license suspension or revocation for violations of any such regulations. Regulations providing forfeitures or license suspension or revocation must be adopted by ordinance.

Sec. 6 -81. State law adopted The provisions of Wis. Stats. Ch. 125 and Sec. 6 -81. State law adopted The provisions of Wis. Stats. Ch. 125 and all acts amendatory thereof and supplementary thereto, relating to the sale of intoxicating liquors, are adopted as a portion of this article, so far as applicable to the city, except as otherwise provided by ordinance.

LICENSING LICENSE -- A license is a privilege granted by local authorities (city, village LICENSING LICENSE -- A license is a privilege granted by local authorities (city, village or township) to run a particular place for a particular time period. • may “extend” premises with approval of governing body only

LICENSING An alcohol license, like a drivers license, can only be used by the LICENSING An alcohol license, like a drivers license, can only be used by the person to whom it is issued. A municipality may refuse to issue licenses as long as it uses good judgment and doesn’t discriminate.

LICENSING State law 139. 08(4) provides that licensed premises are subject to inspection at LICENSING State law 139. 08(4) provides that licensed premises are subject to inspection at “all reasonable hours” -inspection may include books, papers and records -refusal to permit inspection may result in suspension or revocation of license. -inspection may be conducted by DOR, DOJ, sheriff, police, marshal or constables.

LICENSING n Individual or Partnership -Doe or John & Jane Doe John (Actual persons) LICENSING n Individual or Partnership -Doe or John & Jane Doe John (Actual persons) n Corporation -- n Limited Liability Company -- ABC Corporation (Must appoint an “Agent”: Real person who is responsible) LLC (Must also appoint an “Agent”) ABC

TYPES OF ALCOHOL LICENSES n Class A -- “away” n Sale for consumption off TYPES OF ALCOHOL LICENSES n Class A -- “away” n Sale for consumption off premises. • Current law allows a Class A to permit wine and beer sampling n n n Class B -- “bar” Sale for consumption on premises or off premises. (Any sale to go off premise must be in the original, unopened container)

Liquor Licenses Class A can be for beer only, liquor only or a combination Liquor Licenses Class A can be for beer only, liquor only or a combination of both. Class B liquor only may not be issued

TYPES OF ALCOHOL LICENSES n n n Class C -- allows restaurants to sell TYPES OF ALCOHOL LICENSES n n n Class C -- allows restaurants to sell wine only. Temporary Licenses allows bona fide clubs to sell beer or wine at short duration gatherings. “Picnic Licenses”

State Statutes = Minimum Standards ü ü Municipalities may adopt additional criteria not in State Statutes = Minimum Standards ü ü Municipalities may adopt additional criteria not in conflict with state law. e. g. , No licensed establishments within 1, 000 feet of school or park. A municipality may refuse to issue or grant license for any reason that is not discriminatory or arbitrary and provided in writing to the applicant. e. g. , We don’t need another bar in Ourtown, Wisconsin.

Application Process State Required Steps: 1. Sworn application form filed w/city clerk at least Application Process State Required Steps: 1. Sworn application form filed w/city clerk at least 15 days in advance. 2. Municipal publication of application information in local newspaper. 3. Vote by municipal governing body.

Municipalities may require more n n www. cityofmadison. com/clerk Supplemental Class A License Application Municipalities may require more n n www. cityofmadison. com/clerk Supplemental Class A License Application Supplemental Class B License Application Must contact the Alder, Neighborhood Association & Police Department Sector prior to the ALRC meeting

There is no right to an alcohol license in Wisconsin. There is no right to an alcohol license in Wisconsin.

Alcohol License Quotas n n Wisconsin imposes a quota on the number of Class Alcohol License Quotas n n Wisconsin imposes a quota on the number of Class B (taverns, bars restaurants licensed to sell both fermented malt beverages and distilled spirits for onpremises consumption) in each municipality based on population. There is no state quota on the number of types of retailers selling alcohol for offpremises consumption: grocery stores, gas stations and other retailers.

Alcohol License Quotas ü ü There is no state quota on the number of Alcohol License Quotas ü ü There is no state quota on the number of establishments licensed to sell and serve only beer and wine. A municipality may impose more restrictive limits on the number or type of alcohol outlets than the state does.

OPERATOR’S LICENSES Every licensed premises must have on the premises in the sales someone OPERATOR’S LICENSES Every licensed premises must have on the premises in the sales someone with an operator’s license or privilege of an operator’s license area.

Who has a privilege of an operator’s license? . Licensee n Immediate family of Who has a privilege of an operator’s license? . Licensee n Immediate family of the licensee n

OPERATOR’S LICENSES § A premises licensed to sell alcohol may not be open for OPERATOR’S LICENSES § A premises licensed to sell alcohol may not be open for business without a licensed operator being present. • Only Exception: Class A beer license, during hours when alcohol sales prohibited by law.

OPERATOR’S LICENSES ü ü Anyone serving alcohol must have an operator’s license or privilege OPERATOR’S LICENSES ü ü Anyone serving alcohol must have an operator’s license or privilege of one OR Be under immediate visual supervision of someone who does have one.

OPERATOR’S LICENSES • • A person must be at least 18 years old to OPERATOR’S LICENSES • • A person must be at least 18 years old to sell or serve alcohol An Operator’s License is valid only within the municipality where issued --can be used anywhere in that municipality

Community Criteria for Operators n n Communities can establish specific internal criteria for operators, Community Criteria for Operators n n Communities can establish specific internal criteria for operators, not in conflict with state statute. Most communities conduct background checks prior to issuing operators’ permits.

MUNICIPAL REGULATION Statute 125. 10 authorizes municipalities to enact additional regulations for the sale MUNICIPAL REGULATION Statute 125. 10 authorizes municipalities to enact additional regulations for the sale of alcohol so long as they are not in conflict with Ch. 125. Municipalities may also prescribe forfeitures or license suspensions or revocations for violations of any such enacted regulations.

HOURS OF SALE - Class A’s…. . may not sell: Beer Midnight to 8: HOURS OF SALE - Class A’s…. . may not sell: Beer Midnight to 8: 00 am Liquor 9: 00 pm to 8: 00 am - Municipalities MAY impose MORE restrictive hours - Municipalities MAY NOT impose LESS restrictive hours - Class B’s…. . . may not sell: Beer & Liquor 2: 00 am - 6: 00 am Monday - Friday Beer & Liquor 2: 30 am - 6: 00 am Sat. & Sun. -To-go sales must cease at 12: 00 am (Sale v Carry out) - Municipalities MAY impose MORE restrictive carryout hours

Sec. 125. 07(2) n n No person may sell, dispense or give away alcohol Sec. 125. 07(2) n n No person may sell, dispense or give away alcohol to an intoxicated person No licensee may sell, vend, deal or traffic in alcohol to an intoxicated person

Penalties n n Fined not less than $100 nor more than $500 Or imprisoned Penalties n n Fined not less than $100 nor more than $500 Or imprisoned for not more than 60 days or both

REVOCATION/SUSPENSION PROCESS [Sec. 125. 12] Initiated by a sworn written complaint by any resident REVOCATION/SUSPENSION PROCESS [Sec. 125. 12] Initiated by a sworn written complaint by any resident of the municipality, including municipal officials with municipal clerk: Alleges one or more of the following : 1. Violated Chapter 125 or municipal regulations adopting 2. Disorderly or riotous, indecent or improper house 3. Sold or given away alcohol to known habitual drunkards 4. Person does not possess the qualifications to hold license 5. Controlled substance violations

Sec. 125. 12(3) n n n Nonrenewable requires the same steps as suspension or Sec. 125. 12(3) n n n Nonrenewable requires the same steps as suspension or revocation. Revocation, non-renewal and suspension can be expensive and time consuming. Municipal criteria consistently applied to prevent problems later.

REVOCATION/SUSPENSION PROCESS n n n After complaint filed; summons issued to appear Licensee must REVOCATION/SUSPENSION PROCESS n n n After complaint filed; summons issued to appear Licensee must appear before issuing body If licensee does not appear, license shall be revoked If licensee appears, hearing is held If complaint is TRUE, license shall be suspended not less than 10 days nor more than 90 days or revoked

Hearing Procedure n n If the licensee appears & denies the complaint, Both complainant Hearing Procedure n n If the licensee appears & denies the complaint, Both complainant and licensee may produce witnesses, cross-examine witnesses and be represented by counsel A written transcript is provided licensee at his or her expense Check your local ordinance for procedure--if none, state statute controls

License Transfers Changes in Location n n Licenses are transferred when the location changes. License Transfers Changes in Location n n Licenses are transferred when the location changes. When the ownership changes it is processed as if it was a new license, although quota or density issues may not be applicable for an existing establishment.

Parental Exception n Sec. 125. 07(1)(a) An underage person may legally be served alcohol Parental Exception n Sec. 125. 07(1)(a) An underage person may legally be served alcohol provided Accompanied by his or her parent, guardian or spouse who has attained the legal drinking age

RETAINING PROOFS OF AGE A retailer may retain a document presented as proof of RETAINING PROOFS OF AGE A retailer may retain a document presented as proof of age for a “reasonable length of time” in a good faith effort to determine whether the person who presented the document is underage, OR……. . .

RETAINING PROOFS OF AGE A retailer may retain a proof of age to notify RETAINING PROOFS OF AGE A retailer may retain a proof of age to notify a law enforcement authority of a suspected violation of fake ID laws.

Who can alcohol be sold to? -If in doubt, a sale does NOT have Who can alcohol be sold to? -If in doubt, a sale does NOT have to be made! -Alcohol may be sold to an underage person who is accompanied by a parent, guardian or spouse of legal drinking age. - An ID Register is another safeguard.

What can be sold? NON-ALCOHOL BEERS Products such as O’Douls, Sharps and others are What can be sold? NON-ALCOHOL BEERS Products such as O’Douls, Sharps and others are not considered alcohol beverages under Wisconsin Law. They may be sold to anyone.

MORE ALCOHOL LAWS… n n No person may “sell” alcohol without holding the appropriate MORE ALCOHOL LAWS… n n No person may “sell” alcohol without holding the appropriate license. No person may “give away” alcohol to evade any law relating to the sale of alcohol.

MORE ALCOHOL LAWS…. • Wisconsin law defines “sale” or “sell” to include ANY TRANSFER MORE ALCOHOL LAWS…. • Wisconsin law defines “sale” or “sell” to include ANY TRANSFER of alcohol or any shift, scheme, device or transaction to obtain alcohol beverages. (Buying a cup, buying the mix, trespass fee) SELL = DISPENSE

Sale without license n n n Sec. 125. 66(1) No person may sell or Sale without license n n n Sec. 125. 66(1) No person may sell or possess with intent to sell intoxicating liquor unless that person holds the appropriate license or permit Whoever violates this subsection may be fined not more than $10, 000 or imprisoned for not more than 9 months or both.

Yappy Hour Yappy Hour

Evading provisions of law by giving away intoxicating liquor n n n Sec. 125. Evading provisions of law by giving away intoxicating liquor n n n Sec. 125. 67 No person may give away intoxicating liquor or use any other means to evade any law of this state relating to the sale of intoxicating liquor. Whoever violates this subsection may be fined not more than $10, 000 or imprisoned for not more than 9 months or both.

NUISANCE STATUTE 125. 14(5) Any building or place where alcohol beverages are sold/stored/ possessed NUISANCE STATUTE 125. 14(5) Any building or place where alcohol beverages are sold/stored/ possessed without a valid permit or license or where persons are permitted to drink alcohol beverages in violation of alcohol laws is deemed a public nuisance, and may be closed until the activity in violation is abated.

“BAR CHECKS” n n n Police may enter a licensed premise during all “reasonable “BAR CHECKS” n n n Police may enter a licensed premise during all “reasonable hours” to inspect books, papers, records & look for alcohol violations. Refusal = grounds for license revocation License must be on display: framed & posted Licensed operators must be present Any criminal activity “in plain view” is fair game

ID REGISTERS Sec. 125. 07(7) provides that every retail alcohol licensee MAY keep a ID REGISTERS Sec. 125. 07(7) provides that every retail alcohol licensee MAY keep a book for the purpose of defense of proof of age. (Was formerly required; no longer is) May be used to record any suspect documentary proof of age May be used to document any person alleging to be a parent, spouse or guardian of an underage person IS NOT INTENDED AS A SUBSTITUTE FOR PROOF OF AGE!

Residents Rule! n n Any resident of a municipality issuing liquor licenses May file Residents Rule! n n Any resident of a municipality issuing liquor licenses May file a sworn complaint w/city clerk Alleging one or more violations of Ch. 125 Seeking license revocation or suspension

Sec. 125. 12(2) Allegations n n The person (w/the liquor license) violated this chapter Sec. 125. 12(2) Allegations n n The person (w/the liquor license) violated this chapter or ordinance violations adopted under 125. 10 The person keeps or maintains a disorderly or riotous, indecent or improper house

Sec. 125. 12(2) n n The person has sold or given away alcohol to Sec. 125. 12(2) n n The person has sold or given away alcohol to known habitual drunkards The person does not possess the qualifications required under ch. 125 to hold a license

Sec. 125. 12(2)5 n The person has been convicted of manufacturing, distributing or delivering Sec. 125. 12(2)5 n The person has been convicted of manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961. 41(1); of possessing, with intent to manufacture, distribute or deliver, a controlled substance…under a substantially similar federal law or a law of another state

Sec. 125. 12(2)5 m n The person has been convicted of possessing any of Sec. 125. 12(2)5 m n The person has been convicted of possessing any of the materials listed in s. 961. 65 with intent to manufacture methamphetamine under that subsection or under a federal law or a law of another state that is substantially similar to s. 961. 65

Sec. 125. 12(2)6 n The person knowingly allows another person, who is on the Sec. 125. 12(2)6 n The person knowingly allows another person, who is on the premises for which the license under this chapter is issued, to possess, with intent to manufacture, distribute or deliver, or to manufacture, distribute or deliver a controlled substance or controlled substance analog.

Sec. 125. 12(2)6 m n The person knowingly allows another person, who is on Sec. 125. 12(2)6 m n The person knowingly allows another person, who is on the premises for which the license under this chapter is issued, to possess any of the materials listed in s. 961. 65 with intent to manufacture methamphetamine

Real Examples Real Examples

Jocko’s Rocket Ship n n n Secretly operated as a drug house for over Jocko’s Rocket Ship n n n Secretly operated as a drug house for over a decade Owner Robert Schuh was convicted of maintaining a drug house b/c he Allowed dealers to sell drugs at Jocko’s

Jocko’s Rocket Ship n n Schuh surrendered Jocko’s liquor license (or let it expire) Jocko’s Rocket Ship n n Schuh surrendered Jocko’s liquor license (or let it expire) Federal narcotics investigation also involved 7 firefighters, never criminally charged

Blue Velvet Lounge n n n Blue Velvet applied for and was granted a Blue Velvet Lounge n n n Blue Velvet applied for and was granted a liquor license in Aug 2000 Same year Jocko’s liquor license was surrendered City Atty was “happy to see it closed. ”

“Excessively Loud Music” n n Resident called police to report “excessively loud music” coming “Excessively Loud Music” n n Resident called police to report “excessively loud music” coming from the American Legion at 11: 30 p. m. Concerned about the large size of the gathering

Later that same night… n n Intoxicated individual was ringing the doorbell of the Later that same night… n n Intoxicated individual was ringing the doorbell of the resident who made the noise complaint 3: 00 a. m. call to police to respond— person taken into custody

Just read sec. 125. 12 n n Contacted City Clerk & Police Chief Followed Just read sec. 125. 12 n n Contacted City Clerk & Police Chief Followed w/an email describing history of problems Itemized concerns & requested specific actions Filed a sworn written complaint

The Outcome n n American Legion kept its liquor license with the provision that The Outcome n n American Legion kept its liquor license with the provision that it not have activities that impede with residents “So far so good!”

The Procedure n n n Summons will be issued by the City Clerk to The Procedure n n n Summons will be issued by the City Clerk to the licensee to appear before the municipal authority Not less than 3 days nor more than 10 days from the date of issuance To show cause why the license should not be revoked or suspended

Procedure on Hearing n n n If licensee does not appear, the allegations will Procedure on Hearing n n n If licensee does not appear, the allegations will be taken as true If the governing body finds the allegations sufficient, License will be revoked

Procedure on Hearing n n n If licensee appears & denies the allegations, both Procedure on Hearing n n n If licensee appears & denies the allegations, both complainant & licensee may produce witnesses & be represented by counsel A transcript will be provided to licensee at expense If governing body finds complaint true, license will be suspended or revoked (≤ 10 days or ≥ 90 days)

Procedure on Hearing n n If hearing before a committee, it will submit a Procedure on Hearing n n If hearing before a committee, it will submit a report to city council with Findings of fact, conclusions of law & recommendations for action Complainant & licensee may file an objection w/opportunity to present arguments If city council finds the complaint to be true, the license shall be suspended or revoked

If complaint found untrue n n n Proceeding shall be dismissed w/out cost to If complaint found untrue n n n Proceeding shall be dismissed w/out cost to the accused If the complaint is found to be malicious & without probable cause, costs shall be paid by complainant Municipal governing body may require complainant to provide security for costs before issuing summons

Right to Judicial Review n n n Municipality’s action may be reviewed in circuit Right to Judicial Review n n n Municipality’s action may be reviewed in circuit court upon Application of the applicant, licensee or resident Pleadings shall be served, respondent has 20 days to reply

Judicial Review n n Matter will be heard w/in 5 days of an answer Judicial Review n n Matter will be heard w/in 5 days of an answer being filed Hearing before ct without a jury Subpoenas for witnesses issued Ct decision to be made w/in 10 days

Nowell v. City of Wausau 2012 WI App 100 n n Wausau wanted to Nowell v. City of Wausau 2012 WI App 100 n n Wausau wanted to non-renew IC Willy’s license 51 police calls in 8 months cited as justification Willy’s requested a hearing City did not renew

Nowell v. City of Wausau 2012 WI App 100 n n Willy’s sought judicial Nowell v. City of Wausau 2012 WI App 100 n n Willy’s sought judicial review Court decided the matter on the record Willy’s appealed requesting de novo review Ct. App. held that the statute requires a circuit court to independently determine whether a licensee is entitled to renewal

Nowell v. City of Wausau 2012 WI App 100 n n Ct reasoned: “Licensing Nowell v. City of Wausau 2012 WI App 100 n n Ct reasoned: “Licensing can become a ‘hot potato, ’ pitting certain segments of a community against tavern owners with little political clout. ”

Wisconsin Supreme Court accepted review n n Oral argument 9/18/2013 Issue: whether judicial review Wisconsin Supreme Court accepted review n n Oral argument 9/18/2013 Issue: whether judicial review of a city’s decision to revoke a license is de novo or by certiorari review of the record

Complaint Starts the Process n n n May be resolved by agreement of the Complaint Starts the Process n n n May be resolved by agreement of the parties Stipulation to the allegations and license suspension Based on improvements to the premises

Check Your Local Ordinances n n n Process may differ by municipality Find out Check Your Local Ordinances n n n Process may differ by municipality Find out what your city requires before proceeding Start the conversation

Additional Information Roger Johnson n WI Alcohol & Tobacco Enforcement Section n Roger. Johnson@revenue. Additional Information Roger Johnson n WI Alcohol & Tobacco Enforcement Section n Roger. [email protected] wi. gov n 608 -266 -6757 n