A vendor who negligently sells to an underage person may be liable for acts of the intoxicated underage person. Sorensen v. Jarvis, 119 Wis. 2d 627
, 350 N.W.2d 108
A host who negligently furnished alcohol to an underage guest was negligent per se and liable for injuries to a 3rd party arising out of the guest's intoxication. Koback v. Crook, 123 Wis. 2d 259
, 366 N.W.2d 857
Sub. (1) (a) prohibits underage persons, as well as adults, from providing alcoholic beverages to underage persons. Smith v. Kappel, 147 Wis. 2d 380
, 433 N.W.2d 588
(Ct. App. 1988).
The purpose of sub. (3) is not to avoid the likelihood that a minor who enters a licensed premises will subsequently commit an off-premises assault; a licensee who violates sub. (3) is not negligent per se if such an assault occurs. Symes v. Milwaukee Mut. Ins. Co. 178 Wis. 2d 564
, 505 N.W.2d 143
(Ct. App. 1993).
Sub. (6) provides two lines of defense: the defendant can produce any factors believed relevant including those listed in pars. (a) to (d) or can produce evidence meeting all four elements of pars. (a) to (d), which if proven constitutes an absolute defense. City of Oshkosh v. Abitz, 187 Wis. 2d 202
, 522 N.W.2d 258
(Ct. App. 1994).
In order to “knowingly permit" consumption by an underage person under sub. (1) (a) 3., there must be evidence, or a reasonable inference from evidence, that the person knew or should have known that drinking would occur. Miller v. Thomack, 204 Wis. 2d 242
, 555 N.W.2d 130
(Ct. App. 1996), 95-1684
An individual who contributes money for the intent of purchasing alcohol knowing that it will be consumed by an underage person “procures" alcohol for the underage person. Miller v. Thomack, 210 Wis. 2d 650
, 563 N.W.2d 891
Underage drinkers are not accompanied by a parent for the purposes of sub. (1) (a) merely because the parent and child are on the same premises. Parents who held a party and told their son not to drink where he could be observed by the other guests and who did not know how much their son drank were neither supervising nor otherwise controlling their son when he was drinking and were thus not accompanying him. Mueller v. McMillian Warner Insurance Company, 2005 WI App 210
, 287 Wis. 2d 154
, 704 N.W.2d 613
A county's social host ordinance did not strictly comply with this section because it applied to the host's residence. Under sub. (1) (a) 3., “No adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult's control.” “Premises” is defined under s. 125.02 (14m) as “the area described in a license or permit.” The definition limits sub. (1) (a) 3. to areas described in a license or permit — not a private residence. There is no textual basis to depart from basic statutory construction: the defined term must be given effect. County of Fond du Lac v. Muche, 2016 WI App 84
, 372 Wis. 2d 403
, 888 N.W.2d 12
Liquor liability and blame-shifting defenses: Do they mix? Kelly. 69 MLR 217 (1986).
Imposition of liability on social hosts in drunk driving cases: A judicial response mandated by principles of common law and common sense. Goldberg. 69 MLR 251 (1986).
Social Host Liability for Underage Drinking. Hinkston. Wis. Law. June 2008.
Injury or death by providing alcohol beverages to a minor. 125.075(1)(1)
Any person who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to a person under 18 years of age in violation of s. 125.07 (1) (a) 1.
may be penalized as provided in sub. (2)
The person knew or should have known that the underage person was under the legal drinking age; and
In determining under sub. (1) (a)
whether a person 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 pars. (a)
. In addition, a person has a defense to criminal liability under sub. (1)
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 under par. (a)
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.
Whoever violates sub. (1)
is guilty of a Class H felony if the underage person suffers great bodily harm, as defined in s. 939.22 (14)
Whoever violates sub. (1)
is guilty of a Class G felony if the underage person dies.
The reference in sub. (1) to a single minor or underage person does not preclude its application to a defendant who procures alcohol beverages for a group of persons that the defendant knew or should have known were underage persons. It would be unreasonable to interpret sub. (1) as requiring a personal interaction between the defendant and the victim, or as requiring that the defendant have knowledge that a particular underage person would consume the alcohol procured by the defendant. State v. Wille, 2007 WI App 27
, 299 Wis. 2d 531
, 728 N.W.2d 343
In this section, “official identification card" means any of the following:
A valid operator's license issued under ch. 343
that contains the photograph of the holder.
A valid military identification card issued to a member of the U.S. armed forces, or forces incorporated as part of the U.S. armed forces, that contains the person's photograph and date of birth.
A valid identification card issued by a federally recognized American Indian tribe or band in this state that contains the card holder's photograph, full name, address, and date of birth.
No card other than the identification card authorized under this section may be recognized as an official identification card in this state. Any licensee or permittee under this chapter may require a person to present an official identification card, documentary proof of age, an operator's license issued by another jurisdiction, or any other form of identification or proof of age acceptable to the licensee or permittee before providing alcohol beverages to the person or allowing the person to enter the premises for which the license or permit has been issued. Nothing in this subsection requires a licensee or permittee to accept any form of identification that does not appear to be valid or authentic or appears altered.
Penalties for falsification of proof of age. 125.085(3)(a)1.1.
No person may make, alter or duplicate an official identification card, provide an official identification card to an underage person or knowingly provide other documentation to an underage person purporting to show that the underage person has attained the legal drinking age. No person may possess an official identification card or other documentation used for proof of age with the intent of providing it to an underage person. Except as provided in subds. 2.
, any person who violates this subdivision may be fined not less than $300 nor more than $1,250 or imprisoned for not less than 10 days nor more than 30 days or both.
Any person who violates subd. 1.
for money or other consideration is guilty of a Class I felony.
do not apply to a person who is authorized to make an official identification card under ch. 343
or under authority of a tribal government.
Any underage person who does any of the following is guilty of a violation:
Intentionally carries an official identification card not legally issued to him or her, an official identification card obtained under false pretenses or an official identification card which has been altered or duplicated to convey false information.
Makes, alters or duplicates an official identification card purporting to show that he or she has attained the legal drinking age.
Presents false information to an issuing officer in applying for an official identification card.
Intentionally carries an official identification card or other documentation showing that the person has attained the legal drinking age, with knowledge that the official identification card or documentation is false.
Any underage person who violates par. (b)
is subject to a forfeiture of not less than $300 nor more than $1,250, suspension of the person's operating privilege under s. 343.30 (6) (bm)
, participation in a supervised work program or other community service work under par. (bh)
or any combination of these penalties.
A supervised work program ordered under par. (bd)
shall be administered by the county department under s. 46.215
or by a community agency approved by the court. The court shall set standards for the supervised work program within the budgetary limits established by the county board of supervisors. The supervised work program may provide the person with reasonable compensation reflecting the market value of the work performed or it may consist of uncompensated community service work. Community service work ordered under par. (bd)
, other than community service work performed under a supervised work program, shall be administered by a public agency or nonprofit charitable organization approved by the court. The court may use any available resources, including any community service work program, in ordering the person to perform community service work under par. (bd)
The supervised work program or other community service work shall be of a constructive nature designed to promote the person's rehabilitation, shall be appropriate to the person's age level and physical ability and shall be combined with counseling from a member of the staff of the county department, community agency, public agency or nonprofit charitable organization or other qualified person. The supervised work program or other community service work may not conflict with the person's regular attendance at school. The amount of work required shall be reasonably related to the seriousness of the person's offense.
When a court suspends a person's operating privilege under par. (bd)
, the department of transportation may not disclose information concerning or relating to the suspension to any person other than a court, district attorney, county corporation counsel, city, village or town attorney, law enforcement agency, driver licensing agency of another jurisdiction, or the person whose operating privilege is suspended. A person entitled to receive information under
this paragraph may not disclose the information to any other person or agency.
A person who is under 17 years of age on the date of disposition is subject to s. 938.344
unless proceedings have been instituted against the person in a court of civil or criminal jurisdiction after dismissal of the citation under s. 938.344 (3)
A law enforcement officer investigating an alleged violation of par. (b)
shall confiscate any official identification card or other documentation that constitutes evidence of the violation.
General restrictions. 125.09(1)(1)
No owner, lessee, or person in charge of a public place may permit the consumption of alcohol beverages on the premises of the public place, unless the person has an appropriate retail license or permit. This subsection does not apply to municipalities, buildings and parks owned by counties, regularly established athletic fields and stadiums, school buildings, campuses of private colleges, as defined in s. 16.99 (3g)
, at the place and time an event sponsored by the private college is being held, churches, premises in a state fair park or clubs. This subsection also does not apply to the consumption of fermented malt beverages on commercial quadricycles except in municipalities that have adopted ordinances under s. 125.10 (5) (a)
Possession of alcohol beverages on school grounds prohibited. 125.09(2)(a)1.
“Motor vehicle" means a motor vehicle owned, rented or consigned to a school.
“School" means a public school, a parochial or private school, or a tribal school, as defined in s. 115.001 (15m)
, which provides an educational program for one or more grades between grades 1 and 12 and which is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.
“School administrator" means the person designated by the governing body of a school as ultimately responsible for the ordinary operations of a school.
“School premises" means premises owned, rented or under the control of a school.
Except as provided by par. (c)
no person may possess or consume alcohol beverages:
In a motor vehicle, if a pupil attending the school is in the motor vehicle; or
Alcohol beverages may be possessed or consumed on school premises, in motor vehicles or by participants in school-sponsored activities if specifically permitted in writing by the school administrator consistent with applicable laws, ordinances and school board policies.
A person who violates this subsection is subject to a forfeiture of not more than $200, except that ss. 125.07 (4) (c)
provide the penalties applicable to underage persons.
No person may peddle any alcohol beverage from house to house where the sale and delivery are made concurrently.
No municipality may engage in the sale of alcohol beverages, except as authorized under s. 125.26 (6)
. This subsection does not apply to municipal stores in operation on November 6, 1969.
Municipality providing identification scanners.
No municipality may provide, to any retail licensee under this chapter, any device capable of scanning an official identification card, as defined in s. 125.085 (1) (a)
This section does not prohibit the consumption of alcohol beverages by bed and breakfast proprietors, their friends, or their personal guests in areas that are off-limits to the public or to renters. 80 Atty. Gen. 218
Municipal regulation. 125.10(1)(1)
Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter. The municipality may prescribe forfeitures or license suspension or revocation for violations of any such regulations. Regulations providing forfeitures or license suspension or revocation must be adopted by ordinance. Any municipality may, by ordinance, regulate contests, competitions, or other events for the exhibition, demonstration, judging, tasting, or sampling of homemade wine or fermented malt beverages.
Regulation of underage persons.
A municipality or a county may enact an ordinance regulating conduct regulated by s. 125.07 (1)
or (4) (a)
, 125.085 (3) (b)
or 125.09 (2)
only if it strictly conforms to the statutory subsection. A county ordinance enacted under this subsection does not apply within any municipality that has enacted or enacts an ordinance under this subsection.
Except as provided in s. 125.68
, this chapter does not affect the power of municipalities to enact or enforce zoning regulations.
Regulation of closed retail premises.
A municipality may not prohibit the permittee, licensee, employees, salespersons, employees of wholesalers issued a permit under s. 125.28 (1)
or 125.54 (1)
; employees of permittees under s. 125.295
with respect to the permittee's own retail premises; or service personnel from being present on premises operated under a Class “A", “Class A" or “Class C" license or under a Class “B" or “Class B" license or permit during hours when the premises are not open for business if those persons are performing job-related activities.
Fermented malt beverages on commercial quadricycles. 125.10(5)(a)(a)
A municipality may, by ordinance, prohibit the consumption of fermented malt beverages by passengers on a commercial quadricycle within the municipality.
Notwithstanding sub. (1)
, an ordinance enacted before January 1, 2014, regulating the possession or consumption of open containers of alcohol beverages in public places may not prohibit the possession or consumption of alcohol beverages by passengers on a commercial quadricycle. An ordinance that is inconsistent with this paragraph may not be enforced.
Chapter 125 contemplates and expressly directs that regulation is to supersede competition in the retail sale of alcohol beverages. The regulatory scheme indicates a legislative intent to make state antitrust law not applicable by authorizing contrary or inconsistent conduct by granting municipalities broad statutory authority to prescribe or orchestrate anticompetitive regulation in the sale and consumption of alcohol if that regulation serves an important public interest. Private parties are eligible for antitrust immunity when they act in concert, in an anticompetitive manner, in direct response to pressure bordering on compulsion from a municipality. Eichenseer v. Madison-Dane County Tavern League, Inc. 2008 WI 38
, 308 Wis. 2d 684
, 748 N.W.2d 154
A town must renew a license, if the proper application is made and the fees are paid, unless it revokes, suspends, or non-renews the license, following the procedures outlined in s. 125.12. This section does not give towns the authority to unilaterally modify the described premises in an individual license upon renewal of that license. A town must either pass a regulation or an ordinance under this section or it must find grounds for revocation or nonrenewal under s. 125.12. Wisconsin Dolls, LLC v. Town of Dell Prairie, 2012 WI 76
, 342 Wis. 2d 350
, 815 N.W.2d 690
Impersonating an officer. 125.105(1)(1)
No person may impersonate an inspector, agent or other employee of the department or of the department of justice.
Whoever violates sub. (1)
with the intent to mislead another may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
Whoever violates sub. (1)
to commit, or abet the commission of, a crime is guilty of a Class H felony.