Indian tribes are within the coverage of this chapter; any license issued to a tribe counts toward the local quota. 76 Atty. Gen. 80
If any provision or clause of this chapter or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
History: 2007 a. 20
Interpreting s. 990.001 (11), an unconstitutional clause was found severable. Wisconsin Wine & Spirit Institute v. Ley, 141 Wis. 2d 958
, 416 N.W.2d 914
(Ct. App. 1987).
Except as otherwise provided, in this chapter:
"Alcohol beverages" means fermented malt beverages and intoxicating liquor.
"Brewer" means any person who manufactures fermented malt beverages for sale or transportation, except that "brewer" does not include a permittee under s. 125.295
"Brewer group" means a brewer, including all premises for which the brewer holds a permit issued under s. 125.29
, together with all of the following:
All brewers that share membership with the brewer in a controlled group of brewers, as determined under 26 USC 5051
(a) (2) (B).
"Brewpub group" means a brewpub, including all premises for which the brewpub holds a permit issued under s. 125.295
, together with all of the following:
All brewpubs that share membership with the brewpub in a controlled group of brewpubs, as determined under 26 USC 5051
(a) (2) (B).
"Brewpub premises" means any premises covered by a permit issued under s. 125.295
"Brewery premises" means all land and buildings used in the manufacture or sale of fermented malt beverages at a brewer's principal place of business.
"Caterer" means any person holding a license under s. 97.30
for a restaurant who is in the business of preparing food and transporting it for consumption on premises where gatherings, meetings, or events are held, if the sale of food at each gathering, meeting, or event accounts for greater than 50 percent of the gross receipts of all of the food and beverages served at the gathering, meeting, or event.
"Chamber of commerce" means a local chamber of commerce organized under ch. 181
or a similar civic or trade organization organized under ch. 181
to promote economic growth and opportunity within a local geographical area.
"Club" means an organization, whether incorporated or not, which is the owner, lessee or occupant of a building or portion thereof used exclusively for club purposes, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent or athletic purpose but not for pecuniary gain and which only sells alcohol beverages incidental to its operation.
"Department" means the department of revenue.
"Fermented malt beverages" means any beverage made by the alcohol fermentation of an infusion in potable water of barley malt and hops, with or without unmalted grains or decorticated and degerminated grains or sugar containing 0.5 percent or more of alcohol by volume.
"Homemade," with respect to the making of wine and fermented malt beverages, means wine and fermented malt beverages made by a person's own efforts and not for a commercial purpose, but does not require that the wine or fermented malt beverages be made in the person's home.
"Hotel" means a hotel, as defined in s. 97.01 (7)
, that is provided with a restaurant.
"Intoxicating liquor" means all ardent, spirituous, distilled or vinous liquors, liquids or compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing 0.5 percent or more of alcohol by volume, which are beverages, but does not include "fermented malt beverages".
"Legal drinking age" means 21 years of age.
"License" means an authorization to sell alcohol beverages issued by a municipal governing body under this chapter.
"Manufacturer" means a person, other than a rectifier, that ferments, manufactures or distills intoxicating liquor.
"Municipality" means a city, village or town.
"Painting studio" means an establishment that is primarily engaged in the business of providing to customers instruction in the art of painting and that offers customers the opportunity to purchase food and beverages for consumption while they paint.
"Peace officer" means a sheriff, undersheriff, deputy sheriff, police officer, constable, marshal, deputy marshal or any employee of the department or of the department of justice authorized to act under this chapter.
"Permit" means any permit issued by the department under this chapter.
"Person" means a natural person, sole proprietorship, partnership, limited liability company, corporation or association or the owner of a single-owner entity that is disregarded as a separate entity under ch. 71
"Premises" means the area described in a license or permit.
"Primary source of supply" means any of the following:
With respect to fermented malt beverages, the brewer or brewpub that manufactured the fermented malt beverages or the exclusive agent designated by this brewer or brewpub.
With respect to intoxicating liquor, the manufacturer, the rectifier, or the exclusive agent designated by the manufacturer or rectifier.
"Principal business" means the primary activity as determined by analyzing the amount of capital, labor, time, attention and floor space devoted to each business activity and by analyzing the sources of net income and gross income. The name, appearance and advertising of the entity may also be taken into consideration if they are given less weight.
"Rectifier" means any one of the following:
A person that rectifies, purifies or refines distilled spirits or wines by any process other than by original and continuous distillation from mash, wort or wash, through continuous closed vessels or pipes, until the manufacture thereof is complete.
A person who possesses any still or leach tub or keeps any other apparatus for refining distilled spirits.
A person who after rectifying and purifying distilled spirits, by mixing such spirits with any materials, manufactures any spurious, imitation or compound liquors for sale.
A distiller or any person under substantially the same control as a distiller who, without rectifying, purifying or refining distilled spirits, by mixing such spirits with any materials, manufactures any spurious, imitation or compound liquors for sale under the name of "whiskey", "brandy", "gin", "rum", "spirits", "cordials" or any other name.
A person who places intoxicating liquor in bottles or other containers.
"Regulation" means any rule or ordinance adopted by a municipal governing body.
"Retailer" means any person who sells, or offers for sale, any alcohol beverages to any person other than a person holding a permit or a license under this chapter.
"Sell", "sold", "sale" or "selling" means any transfer of alcohol beverages with consideration or any transfer without consideration if knowingly made for purposes of evading the law relating to the sale of alcohol beverages or any shift, device, scheme or transaction for obtaining alcohol beverages, including the solicitation of orders for, or the sale for future delivery of, alcohol beverages.
"Underage person" means a person who has not attained the legal drinking age.
"Wholesaler" means a person, other than a brewer, brewpub, manufacturer, or rectifier, who sells alcohol beverages to a licensed retailer or to another person who holds a permit to sell alcohol beverages at wholesale.
"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 not less than 0.5 percent nor more than 21 percent of alcohol by volume.
"Wine collector" means an individual who meets the standards established by the department by rule and who is registered with the department as a collector of wine.
Department rule making. 125.03(1)(a)(a)
The department, in furtherance of effective control, may promulgate rules consistent with this chapter and ch. 139
The department shall promulgate rules providing for registration of wine collectors and establishing standards of eligibility for registration as a wine collector. The rules shall also specify the form and manner of notice required under s. 125.06 (11m)
The department may by rule prescribe the standard size, form or character of any container in which intoxicating liquor may be sold in this state except that the department may not set the size of containers in which intoxicating liquor, except wine containing not more than 21 percent of alcohol by volume, may be sold at a capacity greater than 1.75 liters (59.1752 fluid ounces).
See also s. Tax 8.41
, Wis. adm. code.
Civil liability exemption: furnishing alcohol beverages. 125.035(2)
A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person.
(3) Subsection (2)
does not apply if the person procuring, selling, dispensing or giving away alcohol beverages causes their consumption by force or by representing that the beverages contain no alcohol.
In this subsection, "provider" means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of s. 125.07 (1) (a)
(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.
In addition, sub. (2)
does apply if all of the following occur:
The underage person falsely represents that he or she has attained the legal drinking age.
The underage person supports the representation with documentation that he or she has attained the legal drinking age.
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.
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.
(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.
History: 1985 a. 47
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).
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
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
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
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
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
. See also Mueller v. McMillian Warner Insurance Company, 2005 WI App 210
, 287 Wis. 2d 154
, 704 N.W.2d 613