AB795: Bill Text

Analysis by the Legislative Reference Bureau

Under current law, the Department of Revenue (DOR) issues various permits related to intoxicating liquor (which includes wine), including winery permits, manufacturer's permits, rectifier's permits, wholesaler's permits, and out-of-state shipper's permits. Wine may be produced and distributed under a winery permit, manufacturer's permit, or rectifier's permit.

This bill makes changes to the way in which wine may be produced and distributed in this state, including the following:

1. Direct shipments of wine to consumers. Under current law, a winery located outside this state may ship wine into this state without an out-of-state shipper's permit and directly to an individual if the winery is located in a state that has a reciprocal agreement with this state pertaining to out-of-state shipments of wine to individuals in the respective states (reciprocal agreement) and if certain other conditions are met. An individual in this state may not receive more than 27 liters of wine annually from out-of-state wineries. Also, a winery located in this state that holds a winery permit, as well as a person in this state holding an intoxicating liquor manufacturer's or rectifier's permit, may ship wine from this state to individuals in another state under authorization of a reciprocal agreement if certain conditions are met. DOR is required to negotiate and, if possible, enter into reciprocal agreements with other states. Currently this state is a party to such a reciprocal agreement only with California. Current law also does not authorize intrastate shipments of wine directly to consumers.

This bill repeals the reciprocal agreement system for authorizing interstate wine shipments directly to consumers and replaces it with a new permit system available for both interstate and intrastate shipments of wine directly to consumers. The bill requires DOR to issue a new permit called a direct wine shipper's permit that authorizes the permittee to ship wine directly to an individual in this state who is of the legal drinking age, who acknowledges receipt of the wine shipped, and who is not intoxicated at the time of delivery. A direct wine shipper's permit may be issued to any person that manufactures and bottles wine on premises covered by a winery, manufacturer's, or rectifier's permit issued by DOR, a winery permit issued by another state, or a federal winery permit. Containers of wine shipped to an individual in this state must be clearly labeled to indicate that the package may not be delivered to an underage person or to an intoxicated person. No individual may resell, or use for a commercial purpose, wine that the individual receives by direct shipment under the permit. No individual in this state may receive more than 108 liters of wine annually that is shipped under authority of the permit. Holders of direct wine shippers' permits must report quarterly to DOR specified information related to wine shipments made under authority of the permit and must include the amount of the occupational tax in the sales price of the wine and pay the sales or use tax on the sale of the wine shipped under authority of the permit.

2. Distribution of intoxicating liquor to other licensees and permittees, except by cooperative wholesalers. Under current law, a winery permit authorizes a winery to manufacture and bottle wine on the winery premises for sale at wholesale to other licensees or permittees, such as retailers, other wholesalers, and manufacturers. A manufacturer's permit or rectifier's permit authorizes a manufacturer or rectifier to manufacture, bottle, and wholesale wine on the manufacturing or rectifying premises. A rectifier's permit authorizes the rectifier to sell its own intoxicating liquor to retailers.

This bill eliminates the authorization of wineries, manufacturers, and rectifiers to sell wine at wholesale and eliminates the authorization of rectifiers to sell intoxicating liquor directly to retailers. Under the bill, wineries, manufacturers, and rectifiers may not sell wine directly to retailers. A winery may only sell wine to wholesalers. A manufacturer or rectifier may only sell intoxicating liquor, including wine, to wholesalers, wineries, and other manufacturers and rectifiers.

Under current law, an out-of-state shipper's permit authorizes a person located outside this state to sell or ship intoxicating liquor into this state to a person holding a manufacturer's, rectifier's, wholesaler's, industrial alcohol, or medicinal alcohol permit.

Under this bill, a person holding an out-of-state shipper's permit may only sell or ship intoxicating liquor into this state to a person holding a wholesaler's permit or, if shipped from a manufacturer or rectifier in another state, to a person holding a manufacturer's or rectifier's permit or a winery permit.

The bill also requires each wholesaler to negotiate in good faith with any manufacturer, rectifier, or winery that seeks to sell its products through the wholesaler. All wholesalers must work diligently to ensure that distribution channels are available for the sale of intoxicating liquor products through wholesalers to retailers in this state.

3. Distribution of wine by cooperative wholesalers. The bill allows certain wineries holding a winery permit and certain out-of-state wineries to form a cooperative for purposes of wholesaling their wine. However, the bill requires any such cooperative to be created between October 1, 2008, and December 31, 2008, and limits the total number of these cooperatives to six.

Under the bill, a winery that produces and bottles less than 25,000 gallons of wine in a calendar year (small winery) may organize with other small wineries as a cooperative known as a small winery cooperative wholesaler (cooperative wholesaler). The principal purpose of a cooperative wholesaler is to sell and distribute wine produced and bottled by the members of the cooperative wholesaler. The membership of a cooperative wholesaler must consist exclusively of small wineries that hold direct shippers' permits and that are certified as small wineries by DOR. To form the cooperative, three or more individuals, at least one of whom must be a resident of this state and all of which must be owners of small wineries, must sign and file articles of incorporation with the Department of Financial Institutions. A cooperative wholesaler may not employ any owner or employee of its member wineries, but such an owner or employee may act as a volunteer to assist the cooperative wholesaler.

Under the bill, no cooperative wholesaler may operate without a wholesaler's permit issued by DOR. Within seven days after filing its articles of incorporation as a cooperative, a cooperative wholesaler must apply to DOR for a wholesaler's permit. DOR may issue only one wholesaler's permit to any cooperative wholesaler. DOR may not issue more than a total of six wholesalers' permits to cooperative wholesalers and DOR may not issue any new wholesaler's permit to a cooperative wholesaler after December 31, 2008. A cooperative wholesaler issued a wholesaler's permit is authorized to sell and distribute only wine, including blended or mixed products sold as wine. A cooperative wholesaler may not sell or distribute any product other than wine. A cooperative wholesaler may not purchase wine from any person other than a member and may not resell or distribute wine unless it has been purchased on consignment from a member. A cooperative wholesaler may only sell or distribute wine to a retailer or to another wholesaler.

Under the bill, a member of a cooperative wholesaler may not sell its wine directly to any other wholesaler or directly to a retailer; it must make its wine available to retailers and other wholesalers only through the cooperative wholesaler.

Under the bill, a cooperative wholesaler is not subject to certain provisions of current law requiring a wholesaler to physically unload intoxicating liquor at a warehouse location prior to distribution and requiring a wholesaler to annually sell and deliver intoxicating liquor to at least ten retailers that do not have any direct or indirect interest in each other or in the wholesaler. Neither a cooperative wholesaler nor its winery members are subject to certain provisions of current law restricting common ownership interests in wineries and wholesalers. Except as provided in the bill, all provisions of law that apply to a wholesaler also apply to a cooperative wholesaler.

The bill requires DOR to certify applicants as small wineries if the applicant is a winery that produces and bottles less than 25,000 gallons of wine in a calendar year, holds a direct shipper's permit, and submits any other information that DOR determines is necessary to certify that the winery is operating as a small winery and is eligible for membership in a cooperative wholesaler. In certifying a winery as a small winery, DOR must classify the winery as either a Wisconsin winery or an out-of-state winery. A cooperative wholesaler may not give preferential treatment to a member that is a Wisconsin winery or discriminate against a member that is an out-of-state winery.

The bill requires the board of directors of a cooperative wholesaler, at least once every six months, to meet in person with DOR and the University of Wisconsin Center for Cooperatives. The bill specifies various requirements related to these meetings, including that publicly available reports be prepared by DOR and the Center for Cooperatives as a result of these meetings. The bill also requires each cooperative wholesaler to annually file a report with DOR that includes specified information.

Under the bill, any winery that sells or distributes its wine directly to a retailer, rather than through a wholesaler or cooperative wholesaler, is subject to a fine of not more than $10,000 and revocation of the permits issued to it by DOR. Any cooperative wholesaler that provides preferential treatment to a Wisconsin winery or discriminates against an out-of-state winery is subject to a fine of not more than $10,000 and revocation of its wholesaler's permit.

4. Blending or mixing wine or distilled spirits. Current law is unclear as to whether a winery operating under a winery permit may mix or blend wine with other intoxicating liquor to produce fortified wine and whether a winery may receive shipments of bulk wine or other intoxicating liquor directly from out-of-state producers holding an out-of-state shipper's permit.

This bill clarifies that a winery operating under a winery permit may, without obtaining a rectifier's permit, possess intoxicating liquor and mix or blend intoxicating liquor to produce wine sold to wholesalers. The bill also clarifies the definition of "wine" by specifying that wine contains not more than 21 percent of alcohol by volume.

The bill specifically authorizes wholesalers to sell intoxicating liquor to wineries, manufacturers, and rectifiers for production purposes. The bill also specifies that an out-of-state shipper's permittee may sell or ship intoxicating liquor into this state directly to a winery.

5. Face-to-face retail sales. The bill specifies that an intoxicating liquor or fermented malt beverages retail license or permit, with limited exceptions, authorizes only face-to-face sales to consumers at the premises described in the retail license or permit.

6. Common ownership interests. The bill specifies that certain restrictions on common ownership interests that apply under current law to manufacturers, rectifiers, and wholesalers also apply to wineries and out-of-state shipper permittees. The bill further provides that rectifiers, wineries, and out-of-state shipper permittees may not hold any direct or indirect interest in any wholesale permit or establishment and that, except for a retail license issued to a winery, no retail licensee may hold any direct or indirect interest in any manufacturer, rectifier, winery, or out-of-state shipper permittee.

Under current law, an exception to the common ownership restrictions allows a winery to hold one retail license, which may be a "Class A" license or a "Class B" license. The bill clarifies this exception, including specifying that the retail licensed premises may be on the winery premises or on real estate owned or leased by the winery and that the winery may distribute its own wine to its own retail premises without going through a wholesaler.

7. DOR industry reports. The bill requires DOR to publish monthly reports containing specified information related to the intoxicating liquor industry.

8. Effective date. The general effective date of the bill is October 1, 2008. Notwithstanding any other provision of the bill, a winery holding a winery permit issued prior to the bill's effective date may continue to sell its wine at wholesale, in the manner authorized under current law, until June 30, 2009.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB795, s. 1 Section 1. 20.566 (1) (ha) of the statutes is amended to read:

AB795,6,11 20.566 (1) (ha) Administration of liquor tax and alcohol beverages enforcement. The amounts in the schedule for computer, audit, and enforcement costs incurred in administering the tax under s. 139.03 (2m) and for costs incurred in enforcing the 3-tier system for alcohol beverages production, distribution, and sale under ch. 125. All moneys received from the administration fee under s. 139.06 (1) (a) and any permit fee under s. 125.535 (2) shall be credited to this appropriation. Notwithstanding s. 20.001 (3) (a), at the end of each fiscal year, the unencumbered balance of this appropriation account, minus an amount equal to 10% of the sum of the amounts expended and the amounts encumbered from the account during the fiscal year, shall lapse to the general fund.

AB795, s. 2 Section 2. 36.11 (40) of the statutes is amended to read:

AB795,6,15 36.11 (40) Center for cooperatives. The board shall maintain a center for cooperatives at the University of Wisconsin-Madison. The center shall comply with the requirements specified in s. 125.545 (5) (a).

AB795, s. 3 Section 3. 77.61 (16) of the statutes is created to read:

AB795,6,20 77.61 (16) A winery that receives intoxicating liquor under s. 125.58 (1) is not liable for paying the taxes imposed under this subchapter on the receipt of such intoxicating liquor, if the intoxicating liquor is mixed or blended to produce wine for resale.

AB795, s. 4 Section 4. 125.01 of the statutes is amended to read:

AB795,7,13 125.01 Legislative intent. This chapter shall be construed as an enactment of the legislature's support for the 3-tier system for alcohol beverages production, distribution, and sale that, through uniform statewide regulation, provides this state regulatory authority over the production, storage, distribution, transportation, sale, and consumption of alcohol beverages by and to its citizens, for the benefit of the public health and welfare and this state's economic stability. Without the 3-tier system, the effective statewide regulation and collection of state taxes on alcohol beverages sales would be seriously jeopardized. It is further the intent of the legislature that without a specific statutory exception, all sales of alcohol beverages shall occur through the 3-tier system, from manufacturers to licensed wholesalers to retailers to consumers. Face-to-face retail sales at licensed premises directly advance the state's interest in preventing alcohol sales to underage or intoxicated persons and the state's interest in efficient and effective collection of tax.

AB795, s. 5 Section 5. 125.02 (22) of the statutes is amended to read:

AB795,7,19 125.02 (22) "Wine" means products obtained from the normal alcohol fermentation of the juice or must of sound, ripe grapes, other fruits or other agricultural products, imitation wine, compounds sold as wine, vermouth, cider, perry, mead and sake, if such products contain 0.5% or more not less than 0.5 percent nor more than 21 percent of alcohol by volume.

AB795, s. 6 Section 6. 125.04 (3) (a) 4m. of the statutes is created to read:

AB795,7,22 125.04 (3) (a) 4m. If the applicant is a cooperative organized under ch. 185, the identity of the cooperative members, board of directors, and agent.

AB795, s. 7 Section 7. 125.12 (5) of the statutes is amended to read:

AB795,8,6 125.12 (5) Revocations or suspensions of, or refusals to renew, permits by the department. The department may, after notice and an opportunity for hearing, revoke, suspend or refuse to renew any retail permit issued by it for the causes provided in sub. (4) and any other permit issued by it under this chapter for any violation of this chapter or ch. 139, except that, for a violation of sub. (4) (ag) 6. with respect to a license issued under s. 125.51 (4) (v) or a violation of s. 125.535 or 139.035, the department shall revoke the license or permit. A revocation, suspension or refusal to renew is a contested case under ch. 227.

AB795, s. 8 Section 8. 125.272 of the statutes is created to read:

AB795,8,11 125.272 Face-to-face retail sales. Except as provided in s. 125.26 (2m) and (2s) and except with respect to caterers, a retail license issued under s. 125.25 or 125.26, and a retail permit issued under s. 125.27, authorizes only face-to-face sales to consumers at the premises described in the retail license or permit.

AB795, s. 9 Section 9. 125.51 (6) of the statutes is created to read:

AB795,8,16 125.51 (6) Face-to-face retail sales. Except as provided in sub. (3) (bm) and (bs) and except with respect to caterers, a retail license or permit issued under this section authorizes only face-to-face sales to consumers at the premises described in the retail license or permit.

AB795, s. 10 Section 10. 125.52 (1) of the statutes is amended to read:

AB795,9,6 125.52 (1) Authorized activities. The department shall issue manufacturers' and rectifiers' permits which authorize the manufacture or rectification, respectively, of intoxicating liquor on the premises covered by the permit. A person holding a manufacturer's or rectifier's permit may manufacture, and bottle or wholesale wine, pursuant to the terms of the permit, without procuring a winery permit. A manufacturer's or rectifier's permit entitles the permittee to sell intoxicating liquor to wholesalers holding a permit under s. 125.54, to wineries holding a permit under s. 125.53, and to other manufacturers and rectifiers holding a permit under this section, from the premises described in the permit. Holders of rectifiers' permits may sell intoxicating liquor rectified by the permittee to retailers without any other permit. No sales may be made for consumption on the premises of the permittee. Possession of a permit under this section does not authorize the permittee to sell tax-free intoxicating liquor and wines brought into this state under s. 139.03 (5).

AB795, s. 11 Section 11. 125.52 (6) of the statutes is repealed.

AB795, s. 12 Section 12. 125.52 (8) of the statutes is repealed.

AB795, s. 13 Section 13. 125.53 (1) of the statutes is amended to read:

AB795,9,24 125.53 (1) The department shall issue only to a manufacturing winery in this state that holds a valid certificate issued under s. 73.03 (50) a winery permit authorizing the manufacture and bottling of wine on the premises covered by the permit for sale at wholesale to other licensees or permittees to wholesalers holding a permit under s. 125.54. A winery permit also authorizes the permittee to, on the winery premises and without obtaining a rectifier's permit, possess intoxicating liquor and mix or blend intoxicating liquor to produce wine sold to wholesalers holding a permit under s. 125.54. A permittee winery holding a permit under this section may offer on the premises taste samples of wine manufactured on the premises to persons who have attained the legal drinking age. A permittee under this section may also have either a one "Class A" license or one "Class B" license, but not both. The "Class A" license or "Class B" license may either be issued for the winery premises or for real estate owned or leased by the winery. If a "Class A" or "Class B" liquor license has also been issued to the winery, the winery may provide wine manufactured, mixed, or blended on the winery premises directly to the "Class A" or "Class B" premises and may offer the taste samples on the "Class A" or "Class B" premises.

AB795, s. 14 Section 14. 125.53 (3) of the statutes is repealed.

AB795, s. 15 Section 15. 125.535 of the statutes is created to read:

AB795,10,9 125.535 Direct wine shippers' permits. (1) Authorized activities. The department shall issue direct wine shippers' permits authorizing the permittee to ship wine directly to an individual in this state who is of the legal drinking age, who acknowledges receipt of the wine shipped, and who is not intoxicated at the time of delivery.

AB795,10,12 (2) Annual permit fee. The department may, by rule, establish an annual fee, not to exceed $100, for each permit issued under this section. All fees collected under this subsection shall be credited to the appropriation account under s. 20.566 (1) (ha).

AB795,10,15 (3) Persons eligible. (a) A direct wine shipper's permit may be issued under this section to any person that manufactures and bottles wine on premises covered by any of the following:

AB795,10,16 1. A manufacturer's or rectifier's permit under s. 125.52.

AB795,10,17 2. A winery permit under s. 125.53.

AB795,10,19 3. A winery license, permit, or other authorization issued to the winery by any state from which the winery will ship wine into this state.

AB795,10,20 4. A federal basic permit for a winery under 27 USC 203 and 204.

AB795,10,22 (b) A winery located outside of this state is eligible for a direct wine shipper's permit under par. (a) 3. or 4. if all of the following apply:

AB795,10,24 1. The winery holds a valid business tax registration certificate issued under s. 73.03 (50).

AB795,11,4 2. The winery submits to the department, with any initial application or renewal for a certificate under s. 73.03 (50) or a permit under par. (a) 3. or 4., a copy of any current license, permit, or authorization issued to the winery by the state from which the winery will ship wine into this state or the winery's federal basic permit.

AB795,11,13 (c) Notwithstanding s. 125.04 (5) (a), natural persons obtaining direct wine shippers' permits are not required to be residents of this state. Notwithstanding s. 125.04 (5) (a) 5., a person is not required to complete a responsible beverage server training course to be eligible for a permit under this section. Corporations and limited liability companies obtaining direct wine shippers' permits are subject to s. 125.04 (6) and any other person, including any natural person or cooperative, obtaining a direct wine shipper's permit shall appoint an agent, and be subject to all provisions of s. 125.04 (6), in the same manner applicable to corporations and limited liability companies.

AB795,11,16 (4) Labels. Containers of wine shipped to an individual in this state under this section shall be clearly labeled to indicate that the package may not be delivered to an underage person or to an intoxicated person.

AB795,11,18 (5) Restrictions. No individual may resell, or use for a commercial purpose, wine received by the individual that is shipped under authority of this section.

AB795,11,23 (6) Annual limit. No individual in this state may receive more than 108 liters of wine annually shipped under authority of this section. Each individual shall be responsible for compliance with this annual limit. An individual who violates this annual limit is subject to s. 125.11 (1). This subsection does not apply to purchases made under a permit issued under s. 125.61.

AB795, s. 16 Section 16. 125.54 (1) of the statutes is amended to read:

AB795,12,10 125.54 (1) Authorized activities. The department shall issue wholesalers' permits authorizing the permittee to sell, from the premises described in the permit, intoxicating liquor at wholesale from the premises described in the permit. Except as provided under s. 125.69 (1) (b) 3., the to retailers and wholesalers, as well as to manufacturers, rectifiers, and wineries for production purposes. The permittee may not sell intoxicating liquor for consumption on the premises. If a wholesale permit is issued to a brewery that holds a "Class B" license, the permit shall authorize the wholesale sale of wine only. Possession of a permit under this section does not authorize the permittee to sell tax-free intoxicating liquor and wine brought into this state under s. 139.03 (5).

AB795, s. 17 Section 17. 125.54 (7) (e) of the statutes is created to read:

AB795,12,13 125.54 (7) (e) This subsection does not apply to a cooperative wholesaler under s. 125.545.

AB795, s. 18 Section 18. 125.54 (8) of the statutes is created to read:

AB795,12,19 125.54 (8) Duty to work in good faith. Each wholesaler has an obligation to negotiate in good faith with any manufacturer, rectifier, or winery that seeks to sell its products in this state through the wholesaler. To this end, all wholesalers shall work diligently to ensure that distribution channels are available for the sale of intoxicating liquor products through wholesalers to retailers in this state.

AB795, s. 19 Section 19. 125.545 of the statutes is created to read:

AB795,12,22 125.545 Small winery cooperative wholesalers. (1) Definitions. In this section:

AB795,12,25 (a) "Member" means a small winery that meets the requirements established under this section for membership in a cooperative wholesaler and that has been qualified and accepted for membership in a cooperative wholesaler.

AB795,13,2 (b) "Out-of-state winery" means a winery that is located in a state other than this state and that holds a valid direct shipper's permit issued under s. 125.535.

AB795,13,4 (c) "Retailer" means any person holding a "Class A", "Class B", or "Class C" license or "Class B" permit issued under s. 125.51.

AB795,13,6 (d) "Small winery" means any winery that produces and bottles less than 25,000 gallons of wine in a calendar year.

AB795,13,8 (e) "Small winery cooperative wholesaler" or "cooperative wholesaler" means an entity established under this section.

AB795,13,10 (f) "Wisconsin winery" means a winery operating under a permit issued under s. 125.53.

AB795,13,17 (2) Creation and organization. (a) 1. A cooperative wholesaler may only be created as provided under s. 185.043 (2) and this section. Each cooperative wholesaler operating under authority of this section shall be organized under ch. 185 but shall be subject to the limitations on such cooperatives imposed by this section. Subject to subd. 3., only small wineries may be members of a cooperative wholesaler. The principal purpose of a cooperative wholesaler shall be to sell and distribute wine manufactured, blended, or mixed, and also bottled, by its members.

AB795,13,20 2. Notwithstanding s. 185.08 (1), a cooperative wholesaler shall include in its articles of incorporation under ch. 185 a single location for its agent and principal office, which location shall be in this state.

AB795,13,22 3. A small winery may become a member of a cooperative wholesaler only if all of the following apply:

AB795,13,23 a. The small winery holds a direct shipper's permit under s. 125.535.

AB795,13,25 b. The small winery is certified by the department under sub. (6) (a) as a small winery.

AB795,14,6 (b) In addition to the requirements specified in s. 185.31 for the board of directors of a cooperative wholesaler, a director representing a member that is a Wisconsin winery shall be either an owner or an employee of that Wisconsin winery. If any out-of-state winery is a member of the cooperative wholesaler, at least one director shall be either an owner or an employee of an out-of-state winery that is a member of the cooperative wholesaler.