AB638: Bill Text

LRB-1915/3

PEN:pgt&jlg:jf

1999 - 2000 LEGISLATURE

1999 Assembly BILL 638

January 11, 2000 - Introduced by Representatives Cullen, La Fave, Bock, Turner, Sinicki and Riley, cosponsored by Senators Farrow and Rosenzweig. Referred to Committee on State Affairs.

AB638,1,9 An Act to renumber and amend 125.12 (2) (d), 125.26 (6) and 125.51 (10); to amend 125.04 (3) (f) 3., 125.04 (3) (g) (intro.), 125.04 (4), 125.04 (5) (d) 3. c., 125.04 (5) (d) 3. d., 125.04 (11) (b) 1., 125.07 (3) (a) 12., 125.09 (6), 125.12 (2) (b) 1., 125.12 (2) (b) 4., 125.12 (3m), 125.26 (1), 125.51 (1) (a) and 125.51 (1) (c) 2.; and to create 125.12 (2) (d) 2., 125.265 (title), 125.265 (1), 125.265 (2) (title), 125.265 (2) (b), 125.265 (3) and 125.51 (10) (b) and (c) of the statutes; relating to: judicial review of a 1st class city's alcohol beverage licensing action and creating temporary Class "A", "Class A", Class "B" and "Class B" alcohol beverage licenses.

Analysis by the Legislative Reference Bureau

Under current law, a municipality may, for specified reasons, issue, renew, suspend or revoke an annual license for the retail sale or manufacture of alcohol beverages. A municipality that suspends, revokes or refuses to issue or renew a license must specify the reasons for that action.

Under current law, any applicant for an alcohol beverage license, licensee or resident of the municipality may have a court review the municipality's action concerning an alcohol beverage license. Court review of the municipality's action proceeds like any civil lawsuit without a jury. The court receives evidence on the merits of the application, determines facts based on evidence presented to it and issues a binding but appealable decision based on those facts.

This bill changes the procedure for judicial review of a challenged alcohol beverage licensing action in 1st class cities (currently only the city of Milwaukee). Under the bill, the reviewing court may consider as evidence only the records of the proceedings of the common council and its alcohol licensing committee, if any, relating to the action being challenged. The court may not take new evidence, must defer to the committee's or common council's determination of facts and may not delay enforcement of the common council's action pending its review. A common council's lawful exercise of discretion is not reviewable. Under the bill, the reviewing court may consider only the following:

1. Whether the common council exceeded its right or power to interpret and apply the law.

2. Whether the common council proceeded according to law.

3. Whether the common council's action was arbitrary, oppressive or unreasonable and represented its will rather than its judgment.

4. Whether, taking into account all evidence in the record, reasonable minds could arrive at the same conclusion that the common council did.

Following review, the court may entirely affirm the common council's action or send the challenged action back to the common council for further proceedings, but may not modify the common council's action.

The bill also requires a 1st class city to issue a temporary Class "A", "Class A", Class "B" or "Class B" license to a person who makes a late application to renew a valid Class "A", "Class A", Class "B" or "Class B" license and pays $1,500. Class "A" licenses authorize the retail sale of beer for consumption away from the premises where sold (stores); "Class A" licenses authorize the sale of wine and intoxicating liquor for consumption away from the premises where sold; Class "B" licenses authorize the retail sale of beer for consumption on or off the premises where sold (taverns, restaurants and hotels); and "Class B" licenses authorize the retail sale of liquor for consumption on the premises where sold. The temporary licenses are valid until the city's governing body acts on the application for renewal or for a period of 60 days, whichever occurs sooner.

For further information see the state and local 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:

AB638, s. 1 Section 1. 125.04 (3) (f) 3. of the statutes is amended to read:

AB638,3,2 125.04 (3) (f) 3. For licenses issued under s. 125.26 (6) 125.265 (2) (a) for a picnic or other gathering lasting less than 4 days, the governing body of the municipality shall establish the time, prior to the granting of a license, by which an application shall be filed with the clerk.

AB638, s. 2 Section 2. 125.04 (3) (g) (intro.) of the statutes is amended to read:

AB638,3,7 125.04 (3) (g) Publication of application for license. (intro.) The municipal clerk shall publish each application for a Class "A", Class "B", "Class A", "Class B" or "Class C" license, except licenses under ss. 125.26 (6) 125.265 (2) (a) and 125.51 (10) (a), prior to its issuance in a newspaper according to the following conditions:

AB638, s. 3 Section 3. 125.04 (4) of the statutes is amended to read:

AB638,3,14 125.04 (4) List of licensees. By July 15 annually, the clerk of a municipality issuing licenses shall mail to the department a list containing the name, address and trade name of each person holding a license issued by that municipality, other than a manager's or operator's license or a license issued under s. 125.26 (6) 125.265 (2) (a), the type of license held and, if the person holding the license is a corporation or limited liability company, the name of the agent appointed under sub. (6).

AB638, s. 4 Section 4. 125.04 (5) (d) 3. c. of the statutes is amended to read:

AB638,3,18 125.04 (5) (d) 3. c. Applicants for temporary Class "B" licenses under s. 125.26 (6) 125.265 (2) (a) who are not required to hold a seller's permit under subch. III of ch. 77.

AB638, s. 5 Section 5. 125.04 (5) (d) 3. d. of the statutes is amended to read:

AB638,3,21 125.04 (5) (d) 3. d. Applicants for temporary "Class B" licenses under s. 125.51 (10) (a) who are not required to hold a seller's permit under subch. III of ch. 77.

AB638, s. 6 Section 6. 125.04 (11) (b) 1. of the statutes is amended to read:

AB638,4,2 125.04 (11) (b) 1. The municipal governing body common council or council of a 1st class city may issue a retail license for the sale of alcohol beverages at any time during a year. Each license shall be valid for one year and shall specify its date of expiration.

AB638, s. 7 Section 7. 125.07 (3) (a) 12. of the statutes is amended to read:

AB638,4,8 125.07 (3) (a) 12. An underage person who enters and remains on premises for which a temporary Class "B" license is issued under s. 125.26 (6) 125.265 (2) (a) if the licensee is authorized by the official or body of the municipality that issued the license to permit underage persons to be on the premises under s. 125.26 (6) 125.265 (2) (a) and if the licensee permits underage persons to be on the premises.

AB638, s. 8 Section 8. 125.09 (6) of the statutes is amended to read:

AB638,4,12 125.09 (6) Municipal stores. No municipality may engage in the sale of alcohol beverages, except as authorized under s. 125.26 (6) 125.265 (2) (a). This subsection does not apply to municipal stores in operation on November 6, 1969.

AB638, s. 9 Section 9. 125.12 (2) (b) 1. of the statutes is amended to read:

AB638,4,18 125.12 (2) (b) 1. If the licensee does not appear as required by the summons, the allegations of the complaint shall be taken as true and if the municipal governing body or the committee finds the allegations sufficient, the license shall be revoked. The clerk shall give written notice of the revocation to the person whose license is revoked and to each person swearing to the complaint.

AB638, s. 10 Section 10. 125.12 (2) (b) 4. of the statutes is amended to read:

AB638,4,23 125.12 (2) (b) 4. The municipal clerk shall give written notice of each suspension or revocation or any decision not to suspend, revoke or renew for cause to the person whose license is suspended or revoked licensee and to each person swearing to the complaint.

AB638, s. 11 Section 11. 125.12 (2) (d) of the statutes is renumbered 125.12 (2) (d) 1. and amended to read:

AB638,5,18 125.12 (2) (d) 1. `In general.' The action of any municipal governing body in granting or failing to grant, suspending or revoking any license, or the failure of any municipal governing body to revoke or suspend any license for good cause, may be reviewed by the circuit court for the county in which the application for the license was issued, upon application by any applicant, licensee or resident of the municipality. The procedure on review shall be the same as in civil actions instituted in the circuit court. The person desiring review shall file pleadings, which shall be served on the municipal governing body in the manner provided in ch. 801 for service in civil actions and a copy of the pleadings shall be served on the applicant or licensee. The municipal governing body, applicant or licensee shall have 45 days to file an answer to the complaint. Following filing of the answer, the matter shall be deemed at issue and hearing may be had within 5 days, upon due notice served upon the opposing party. The hearing shall be before the court without a jury. Subpoenas for witnesses may be issued and their attendance compelled. The decision of the court shall be filed within 10 days after the hearing and a copy of the decision shall be transmitted to each of the parties. The decision shall be binding unless it is appealed to the court of appeals. This subdivision does not apply to review of actions by 1st class cities.

AB638, s. 12 Section 12. 125.12 (2) (d) 2. of the statutes is created to read:

AB638,6,18 125.12 (2) (d) 2. `Judicial Review in 1st class cities.' The action of the common council or council of any 1st class city in granting or failing to grant, suspending or revoking any license, or the failure of the common council of any 1st class city to revoke or suspend any license for good cause, may be reviewed only by commencing an action seeking the remedy available by certiorari. An action for certiorari shall be commenced in the circuit court for the county in which the application for the license was issued, and may be commenced by any applicant, licensee or resident of the 1st class city. No court may issue any injunction, stay, restraining order or other order that has the effect of delaying or preventing any action under par. (b) pending completion of the court's review under this paragraph. An action for certiorari under this paragraph shall be commenced under s. 801.02 (5) within 30 days after the mailing of notice under sub. (2) (b) 1. or 4. or (3m). If a license is issued or renewed, an action shall be commenced within 45 days after filing with the municipal clerk a receipt showing payment of a license fee under s. 125.04 (8). The court may not take evidence on the merits of the case and the scope of review shall be limited to the record of the proceedings of the committee, including any report submitted under par. (b) 3. or sub. (3), and to the record of the proceedings of the common council or council of the 1st class city. If the court finds any error in the proceedings of the committee or of the common council or council of the 1st class city that renders the decision or proceedings void, the court shall remand the decision to the common council or council of the 1st class city for further proceedings in accordance with the court's determination. Any party to the certiorari proceedings may appeal the decision of the court. The decision shall be binding unless it is appealed to the court of appeals.

AB638, s. 13 Section 13. 125.12 (3m) of the statutes is amended to read:

AB638,6,24 125.12 (3m) Refusals by local authorities to issue licenses. If a municipal governing body or duly authorized committee of a city council decides not to issue a new license under this chapter, it shall notify the applicant for the new license and the person swearing to the complaint under sub. (2) (ag) of the decision not to issue the license. The notice shall be in writing and state the reasons for the decision.

AB638, s. 14 Section 14. 125.26 (1) of the statutes is amended to read:

AB638,7,8 125.26 (1) Every municipal governing body may issue Class "B" licenses for the sale of fermented malt beverages from premises within the municipality and may authorize an official or body of the municipality to issue temporary Class "B" licenses under sub. (6) s. 125.265 (2) (a). A Class "B" license authorizes retail sales of fermented malt beverages to be consumed either on the premises where sold or off the premises. A license may be issued after July 1. That license shall expire on the following June 30. Persons holding a Class "B" license may sell beverages containing less than 0.5% of alcohol by volume without obtaining a license under s. 66.053 (1).

AB638, s. 15 Section 15. 125.26 (6) of the statutes is renumbered 125.265 (2) (a) and amended to read:

AB638,8,6 125.265 (2) (a) Temporary Class "B" licenses may be issued to bona fide clubs, to county or local fair associations or agricultural societies, to churches, lodges or societies that have been in existence for at least 6 months before the date of application and to posts of veterans' organizations authorizing the sale of fermented malt beverages at a particular picnic or similar gathering, at a meeting of the post, or during a fair conducted by the fair association or agricultural society. The amount of the fee for the a license issued under this paragraph shall be determined by the municipal governing body issuing the license but may not exceed $10. An official or body authorized by a municipal governing body to issue temporary Class " B" licenses may, upon issuance under this paragraph of any temporary Class "B" license, authorize the licensee to permit underage persons to be on the premises for which the license is issued. A license issued to a county or district fair licenses the entire fairgrounds where the fair is being conducted and all persons engaging in retail sales of fermented malt beverages from leased stands on the fairgrounds. The county or district fair to which the license is issued may lease stands on the fairgrounds to persons who may engage in retail sales of fermented malt beverages from the stands while the fair is being held. A municipal governing body may issue a temporary Class "B" license for premises that are covered by a "Class B" permit issued under s. 125.51 (5) (b) 2. if the applicant meets the requirements of this subsection paragraph. No 1st class city may issue a license under this paragraph, except as provided in guidelines established under sub. (3).

AB638, s. 16 Section 16. 125.265 (title) of the statutes is created to read: