125.035(4)(b)
(b) Subsection (2) does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party. In determining whether a provider knew or should have known that the underage person was under the legal drinking age, all relevant circumstances surrounding the procuring, selling, dispensing or giving away of the alcohol beverages may be considered, including any circumstance under
subds. 1. to
4. In addition,
sub. (2) does apply if all of the following occur:
125.035(4)(b)1.
1. The underage person falsely represents that he or she has attained the legal drinking age.
125.035(4)(b)2.
2. The underage person supports the representation with documentation that he or she has attained the legal drinking age.
125.035(4)(b)3.
3. The alcohol beverages are provided in good faith reliance on the underage person's representation that he or she has attained the legal drinking age.
125.035(4)(b)4.
4. The appearance of the underage person is such that an ordinary and prudent person would believe that he or she had attained the legal drinking age.
125.035(5)
(5) Subsection (2) does not apply to civil forfeiture actions for violation of any provision of this chapter or any local ordinance in conformity with any provision of this chapter.
125.035 History
History: 1985 a. 47.
125.035 Annotation
Whether an alleged activity arising out of the act of procuring alcohol is a tort itself, a conspiracy to commit a tort, or aiding and abetting a tort, this section provides immunity. Greene v. Farnsworth,
188 Wis. 2d 365,
525 N.W.2d 107 (Ct. App. 1994).
125.035 Annotation
The distinction that this statute draws between providers of alcohol to underage and other drinkers does not violate the constitutional guarantees of equal protection. Doering v. WEA Ins. Group,
193 Wis. 2d 118,
532 N.W.2d 432 (1995).
125.035 Annotation
A person who provides alcohol to an underage person, when the alcohol is a substantial factor in causing injury to a third party, is not immune from liability in a suit by that third party solely because that third party, also underage, illegally consumed alcohol. Miller v. Thomack,
204 Wis. 2d 242,
555 N.W.2d 130 (Ct. App. 1996),
95-1684.
125.035 Annotation
An individual who provides alcohol to an underage person that is a substantial factor in causing an accident that ultimately injures the individual cannot be a third party under sub. (4) (b) and cannot take advantage of the exception to immunity for providers of alcohol in order to pursue an action against other providers. Meier v. Champ's Sport Bar & Grill, Inc.
2001 WI 20,
241 Wis. 2d 605,
623 N.W.2d 94,
00-0589.
125.035 Annotation
A person who agreed to be a designated driver, freeing a bartender to serve a possibly intoxicated person more alcohol, brought about the acquisition of the alcohol, "procuring" it for purposes of sub. (2), but was immune from liability when he later did not provide a ride and the intoxicated person drove and caused a fatal collision. Stephenson v. Universal Metrics, Inc.
2002 WI 30,
251 Wis. 2d 171,
641 N.W.2d 158,
00-1397.
125.035 Annotation
If an injured claimant is a 3rd party to the transaction by which the defendant provided alcohol to an underage person, and the alcohol was a substantial factor in causing the 3rd-party claimant's injury, the exception to immunity under sub. (4) (b) applies and the defendant may be liable. A 3rd person's contributory liability for providing alcohol to himself or herself does not affect the immunity determination, although the injured person's contributory fault may bear upon a defendant's ultimate liability. Anderson v. American Family Mutual Insurance Company,
2003 WI 148,
267 Wis. 2d 121,
671 N.W.2d 651,
02-0980. See also Mueller v. McMillian Warner Insurance Company,
2005 WI App 210,
287 Wis. 2d 154,
704 N.W.2d 613,
05-0121, affirmed on other grounds,
2006 WI 54,
290 Wis. 2d 571,
714 N.W.2d 183,
05-0121.
125.035 Annotation
Liquor Vendors and Social Hosts: Are They Immune From Civil Liability? Chapin. Wis. Law. Dec. 1992.
125.035 Annotation
Liquor Vendors and Social Hosts: Are They Still Immune from Serving Adults? Chapin. Wis. Law. Dec. 1995.
125.035 Annotation
Another Look at Dram Shop Liability. Emerson & Stroebel. Wis. Law. Aug. 2000.
125.035 Annotation
Social Host Liability for Underage Drinking. Hinkston. Wis. Law. June 2008.
125.037
125.037
Civil liability exemption for municipalities. No municipality, as defined in
s. 67.01 (5), or municipal governing body, committee, official or employee is civilly liable for damage to any person or property caused by the consumption of alcohol beverages by that person or any other person, by reason of any of the following:
125.037(1)
(1) Issuing a license to sell alcohol beverages.
125.037(2)
(2) Allowing the holder of a license or permit to sell, dispense or give away alcohol beverages on property owned or leased by the municipality.
125.037(3)
(3) Failing to monitor or supervise the activities of the licensee or permittee.
125.037 History
History: 1985 a. 47;
1989 a. 253.
125.039
125.039
Civil liability exemption for retaining proofs of age. No person who holds a license or permit and no employee of such a person is civilly liable for retaining 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 an underage person or to notify a law enforcement authority of a suspected violation of
s. 125.085 (3) (a) or
(b).
125.039 History
History: 1997 a. 27.
125.04
125.04
General licensing requirements. 125.04(1)
(1)
License or permit; when required. No person may sell, manufacture, rectify, brew or engage in any other activity for which this chapter provides a license, permit, or other type of authorization without holding the appropriate license, permit or authorization issued under this chapter.
125.04(2)
(2) Licenses or permits issued in violation of chapter. No license or permit may be issued to any person except as provided in this chapter. Any license or permit issued in violation of this chapter is void.
125.04(3)
(3) Applications for licenses and permits. 125.04(3)(a)(a)
Contents. The department shall prepare an application form for each kind of license, other than a manager's or operator's license, and for each kind of permit issued under this chapter. Each form shall require all of the following information:
125.04(3)(a)1.
1. A history of the applicant relevant to the applicant's fitness to hold a license or permit.
125.04(3)(a)2.
2. The kind of license or permit for which the applicant is applying.
125.04(3)(a)3.
3. The premises where alcohol beverages will be sold or stored or both.
125.04(3)(a)4.
4. If the applicant is a corporation, the identity of the corporate officers and agent.
125.04(3)(a)4L.
4L. If the applicant is a limited liability company, the identity of the company members or managers and agent.
125.04(3)(a)4m.
4m. If the applicant is a cooperative organized under
ch. 185, the identity of the cooperative members, board of directors, and agent.
125.04(3)(b)
(b)
Application for renewing. The department may prepare a simplified application form for renewal of each kind of license or permit which requires only information pertinent to renewal.
125.04(3)(c)
(c)
Distribution. The department shall make one copy of each kind of license application that it prepares available to each municipality.
125.04(3)(d)1.1. An application form prepared by the department shall be used by each applicant for a permit.
125.04(3)(d)2.
2. A replica of an application form prepared by the department shall be used by each applicant for a license, other than a manager's or operator's license.
125.04(3)(e)1.1. Each application for a license, other than a manager's or operator's license, shall be sworn to by the applicant. The applicant shall file the application for a license with the municipal clerk of the intended place of sale.
125.04(3)(e)2.
2. The applicant shall file the application for a permit with the department.
125.04(3)(f)1.1. Except as provided in
subds. 2. and
3., all applications for licenses to sell alcohol beverages shall be filed with the clerk of the municipality in which the premises are located at least 15 days prior to the granting of the license.
125.04(3)(f)2.
2. In counties having a population of 500,000 or more, 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.
125.04(3)(f)3.
3. For licenses issued under
s. 125.26 (6) 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.
125.04(3)(g)
(g)
Publication of application for license. 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) and
125.51 (10), prior to its issuance in a newspaper according to the following conditions:
125.04(3)(g)1.
1. The publication shall include the name and address of the applicant, the kind of license applied for and the location of the premises to be licensed.
125.04(3)(g)2.
2. The newspaper utilized for publication shall have been regularly published, on a daily or weekly basis for a period of not less than 2 years before the date of publication in the municipality in which is located the premises to be licensed.
125.04(3)(g)3.
3. If the municipality in which the premises is located has no newspaper, the newspaper utilized for publication shall be one having circulation in the municipality and designated by the governing body. If no designation is made, publication shall be in the newspaper having the largest circulation in the municipality.
125.04(3)(g)4.
4. The newspaper utilized for publication shall be one that is published on a daily basis, except that a weekly newspaper may be utilized if a daily newspaper is not published in the municipality.
125.04(3)(g)5.
5. The publication shall be printed in a daily newspaper on 3 successive occasions, or if a weekly newspaper is utilized, it shall be printed at least once.
125.04(3)(g)6.
6. At the time the application is filed, the applicant shall pay to the clerk the cost of publication as determined under
s. 985.08.
125.04(3)(h)
(h)
Subsequent changes. Within 10 days of any change in any fact set out in an application for a license or permit to sell alcohol beverages, the licensee or permittee shall file with the issuing authority a written description of the changed fact.
125.04(3)(i)1.1. Any person may inspect applications for licenses to sell alcohol beverages.
125.04(3)(i)2.
2. The clerk of the municipality shall retain all applications made to it for licenses to sell alcohol beverages.
125.04(3)(i)3.
3. The clerk of the municipality may destroy all applications more than 4 years old which have been retained under
subd. 2.
125.04(4)
(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), 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).
125.04(5)
(5) Qualifications for licenses and permits. 125.04(5)(a)(a)
Natural persons. Licenses and permits related to alcohol beverages, issued to natural persons under this chapter, may be issued only to persons who fulfill all of the following requirements:
125.04(5)(a)2.
2. Have been residents of this state continuously for at least 90 days prior to the date of application.
125.04(5)(a)5.
5. Have successfully completed within the 2 years prior to the date of application a responsible beverage server training course at any location that is offered by a technical college district and that conforms to curriculum guidelines specified by the technical college system board or a comparable training course that is approved by the department or the educational approval board. This subdivision does not apply to an applicant who held, or who was an agent appointed and approved under
sub. (6) of a corporation or limited liability company that held, within the past 2 years, a Class "A", "Class A" or "Class C" license or a Class "B" or "Class B" license or permit or a manager's or operator's license.
125.04(5)(b)
(b)
Criminal offenders. No license or permit related to alcohol beverages may, subject to
ss. 111.321,
111.322 and
111.335, be issued under this chapter to any person who has habitually been a law offender or has been convicted of a felony unless the person has been duly pardoned.
125.04(5)(c)
(c)
Corporations and limited liability companies. No license or permit may be issued to any corporation or limited liability company unless that entity meets the qualifications under
pars. (a) 1. and
4. and
(b), unless the agent of the entity appointed under
sub. (6) and the officers and directors, or members or managers, of the entity meet the qualifications of
pars. (a) 1. and
3. and
(b) and unless the agent of the entity appointed under
sub. (6) meets the qualifications under
par. (a) 2. and
5. The requirement that the entity meet the qualifications under
pars. (a) 1. and
(b) does not apply if the entity has terminated its relationship with all of the individuals whose actions directly contributed to the conviction.
125.04(5)(d)1.1. Paragraph (a) 2. does not apply to applicants for operators' licenses issued under
s. 125.17 or to applicants for managers' licenses issued under
s. 125.18. Managers' licenses may be issued only to applicants who are residents of this state at the time of issuance.
125.04(5)(d)2.
2. Paragraph (a) 3. does not apply to applicants for operators' licenses under
s. 125.17. Operators' licenses may be issued only to applicants who have attained the age of 18.
125.04(6)
(6) Licenses to corporations and limited liability companies; appointment of agents. 125.04(6)(a)(a)
Agent. No corporation or limited liability company organized under the laws of this state or of any other state or foreign country may be issued any alcohol beverage license or permit unless:
125.04(6)(a)1.
1. The entity first appoints an agent in the manner prescribed by the authority issuing the license or permit. In addition to the qualifications under
sub. (5), the agent must, with respect to character, record and reputation, be satisfactory to the issuing authority.
125.04(6)(a)2.
2. The entity vests in the agent, by properly authorized and executed written delegation, full authority and control of the premises described in the license or permit of the entity, and of the conduct of all business on the premises relative to alcohol beverages, that the licensee or permittee could have and exercise if it were a natural person.
125.04(6)(b)
(b)
Successor agent. A corporation or limited liability company may cancel the appointment of an agent and appoint a successor agent to act in the agent's place, for the remainder of the license year or until another agent is appointed, as follows:
125.04(6)(b)1.
1. The successor agent shall meet the same qualifications required of the first appointed agent.
125.04(6)(b)2.
2. The entity shall immediately notify the issuing authority, in writing, of the appointment of the successor agent and the reason for the cancellation and new appointment.
125.04(6)(c)
(c)
Authority of successor. A successor agent shall have all the authority, perform all the functions and be charged with all the duties of the previous agent of the corporation or limited liability company until the next regular or special meeting of the issuing authority if a license is held. However, the license of the corporation or limited liability company shall cease to be in force if, prior to the next regular or special meeting of the issuing authority, the clerk of the licensing authority receives notice of disapproval of the successor agent by a peace officer of the municipality issuing the license.
125.04(6)(d)
(d)
Approval of successor. The license of the corporation or limited liability company shall not be in force after the next regular or special meeting of the licensing authority unless and until the successor agent or another qualified agent is appointed and approved by the licensing authority.
125.04(6)(e)
(e)
Fee. The corporation or limited liability company shall, following the approval of each successor agent or another qualified agent by the licensing authority, pay to the licensing authority a fee of $10.
