2013 - 2014 LEGISLATURE
March 7, 2013 - Introduced by Representatives Jacque,
Kleefisch, Bies, August,
Born, Endsley, Kaufert, Kuglitsch, Knodl, LeMahieu, Petersen, Ripp,
Schraa, Spiros, Swearingen and Tittl, cosponsored by Senators Gudex,
Kedzie and Moulton. Referred to Committee on State Affairs.
1An Act to create
125.07 (3) (a) 15., 125.07 (4) (bg) and 125.07 (4) (f) of the 2
statutes; relating to: alcohol beverages violations involving underage persons
3on licensed premises.
Analysis by the Legislative Reference Bureau
Under current law, an alcohol beverages licensee (retailer) may not procure for,
sell, or otherwise provide alcohol beverages to a person who has not attained the legal
drinking age of 21 and who is not accompanied by his or her parent, guardian, or
spouse who is at least age 21 (unaccompanied underage person) or, with various
exceptions, permit an unaccompanied underage person to enter or be on a retail
licensed premises (retailer underage violation). A retailer has a defense to a retailer
underage violation if the retailer shows that: 1) the underage person falsely
represented his or her age to be at least 21; 2) the appearance of the underage person
was such that an ordinary and prudent person would believe that the underage
person was at least 21; 3) the retailer acted in good faith and in reliance on the
representation and appearance of the underage person in the belief that the
underage person was at least 21; and 4) the underage person supported his or her
representation with identification showing his or her age to be at least 21.
Also under current law, an unaccompanied underage person may not: 1)
procure or attempt to procure alcohol beverages from a retailer; 2) possess or
consume alcohol beverages on licensed retail premises; 3) enter or be on licensed
retail premises, subject to various exceptions; or 4) falsely represent his or her age
to obtain alcohol beverages from a retailer (underage violation). A person who
commits an underage violation is subject to various penalties, including a forfeiture
ranging in amount from $250 to $1,000 depending on the number of prior underage
violations the person has committed.
This bill provides retailers with a private right of action against underage
persons who commit underage violations. Under the bill, a retailer may bring a civil
action against an underage person who commits an underage violation on the
retailer's licensed premises if the retailer has not been convicted of or cited for a
retailer underage violation related to the same incident giving rise to the underage
violation, unless the retailer has a defense to the retailer underage violation. If a
retailer brings a civil action against an underage person based on the underage
violation and judgment is entered in favor of the retailer, the court must award to the
retailer damages in the amount of $1,000, plus costs and reasonable attorney fees.
However, if the underage person is less than 18 years of age and not emancipated,
the retailer brings the action against the parent or legal guardian of the underage
person instead. The retailer has the burden of proving that the underage person's
conduct constituted an underage violation, but the action may be brought regardless
of whether the underage person received a citation for, or was convicted of, the
underage violation. Before a retailer may bring an action, the retailer must provide
notice of its intent to bring an action and the notice must include a demand for the
monetary relief that would be available if the action were brought.
The bill also creates an exception allowing an unaccompanied underage person
to enter or be on licensed retail premises if the underage person is employed by or
assisting a law enforcement agency in enforcing or investigating underage violations
or retailer underage violations. The bill also specifies that laws relating to underage
violations, and prohibiting an unaccompanied underage person from knowingly
possessing or consuming alcohol beverages, do not apply to an underage person
employed by or assisting a law enforcement agency in enforcing or investigating
underage violations or retailer underage violations.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
125.07 (3) (a) 15. of the statutes is created to read:
(a) 15. An underage person employed by or assisting a law 3
enforcement agency in carrying out enforcement activities to determine compliance 4
with, or investigate potential violations of, the provisions of this section.
125.07 (4) (bg) of the statutes is created to read:
(bg) Paragraphs (a) and (b) do not apply to an underage person 7
employed by or assisting a law enforcement agency in carrying out enforcement
activities to determine compliance with, or investigate potential violations of, the 2
provisions of this section.
125.07 (4) (f) of the statutes is created to read:
(f) 1. Except as provided in subd. 2., and subject to subds. 3. and 4., 5
if an underage person engages in conduct that violates par. (a) on the premises of a 6
licensee, the licensee may bring a civil action against the underage person. If 7
judgment is entered in favor of the licensee, the court shall award to the licensee 8
damages in the amount of $1,000 and, notwithstanding s. 814.04 (1), the costs of the 9
action, including reasonable attorney fees. A licensee may bring an action under this 10
paragraph regardless of whether the underage person has been convicted of, or 11
received a citation for, the violation of par. (a), but the licensee has the burden of 12
proving, by a preponderance of the evidence, that the underage person's conduct was 13
in violation of par. (a).
2. If the underage person who engages in conduct that violates par. (a) on the 15
licensee's premises is less than 18 years of age and is not an emancipated minor, the 16
licensee may bring the civil action against the underage person's parent, as defined 17
in s. 46.56 (1) (j).
3. A licensee may not bring a civil action under this paragraph unless the 19
licensee has first provided notice to the underage person or the underage person's 20
parent, as applicable, of the licensee's intent to bring the action. The notice shall be 21
mailed to the last-known address of the underage person or underage person's 22
parent, as applicable, at least 15 days prior to filing the action and shall include a 23
demand for the relief described in subd. 1. The department may, by rule, prescribe 24
a form for this notice.
4. A licensee may not bring a civil action under this paragraph if the licensee 2
has been convicted of, or received a citation for or been charged with, a violation of 3
sub. (1) or (3) related to the same incident, occurrence, or conduct giving rise to the 4
underage person's violation of par. (a), unless the licensee is entitled to a defense 5
under sub. (6). A licensee that asserts a defense under sub. (6) has the burden of 6
proving the defense by a preponderance of the evidence.
(1) The treatment of section 125.07 (4) (f) of the statutes first applies to 9
violations of section 125.07 (4) (a) of the statutes committed on the effective date of 10