October 3, 2018 at 4:29 p.m.
Bill draft would regulate alcohol consumption at private gatherings
Swearingen says reaction is 'hair on fire'
Bill draft would regulate alcohol consumption at private gatherings
For example, according to the draft legislation, a private wedding held at a rented nonpublic venue such as a wedding barn could not allow the consumption of alcohol unless the property owner or person in charge of the property possessed the appropriate retail license or permit, and the consumption of alcohol occurred only on the portion of the property covered by the license or permit.
The draft was reviewed last week by the Legislative Council Study Committee on Alcohol Beverages Enforcement, which is chaired by state Rep. Rob Swearingen (R-Rhinelander).
Critics of the draft bill - principally this past week the conservative Wisconsin Institute for Law & Liberty - said current law does not require a license or permit to otherwise legally consume alcohol at a private event, but special interests in Madison were trying to change that in a significant way.
According to WILL, if the draft bill passes, consuming alcohol at certain private gatherings like parties at wedding barns, dinner parties at vacation rental homes, camping on leased hunting land, or cruising on a pontoon boat could be subject to new licensing requirements.
"The same folks who would've banned drinking beer while tailgating at Lambeau Field earlier this year are back at it again," WILL deputy counsel Lucas Vebber said. "But now their proposal would regulate drinking beer at private events like weddings and even at vacation homes and on pontoon boats."
Vebber said Wisconsinites would have to consult state statutes to determine if they could throw a certain party. Subjecting such private gatherings to government red tape would be costly, confusing, and counterproductive, Vebber said.
"Once again, this is an attempt by special interests in Madison to curtail freedom for Wisconsinites and use the heavy hand of government to shut down competition," he said. "What major policy problem this legislation solves continues to be a mystery to us."
But, speaking to The Lakeland Times, Swearingen disagreed, saying WILL's reaction was both absurd and alarmist. He said the idea that legislators might target tailgating or events held by nonprofit civic organizations was off the mark.
Swearingen said the scope of the draft legislation was narrow.
"We had a third meeting [of the study committee]," Swearingen said. "We had a piece of draft legislation, which was just to get the creative juices flowing that WILL got ahold of and they interpreted it as 'everything is hair on fire' and it's just a draft. It's something to talk about."
Where there's smoke
If the bill draft was meant to get people talking, it did just that, and, if WILL wasn't exactly screaming "hair on fire," it was, in a September 25 legal memo by its attorneys, at least suggesting it was smoldering.
The proposed amendment considered by the study committee, the attorneys asserted, would significantly alter the regulatory landscape.
"This proposal would dramatically increase the alcohol beverage retail licensing requirements in our state, impacting everything from private event venues to vacation cottages up north," the memo stated.
In the memo, WILL pointed out that, under current law, the consumption of alcohol beverages in a "public place" is prohibited unless done under a valid alcohol beverage retail license or permit, while a permit is not needed to consume alcohol at an event if it is not open to the public and if alcohol beverages are not sold - precisely because, WILL attorneys argued, such events are not in "public places."
Under the current statute, WILL contended, whether or not a permit or license is required to consume alcohol depends on whether the venue is a "public place" within the meaning of the statute, though the term "public place" as used in that statute is not defined, the memo stated.
However, WILL points out, in the 1990s, the state's attorney general issued a formal opinion, concluding that a purely private event at an event venue is not "public," as the general public has no right to attend.
"Since such a venue is not 'public' it does not trigger the 'public place' restrictions of [the statute], and does not need to obtain an alcohol beverage retail license or permit under that statute," the memo stated.
That analysis is consistent with the state Department of Revenue's own guidance and enforcement, as summarized by the Legislative Council, WILL's attorneys observed.
"Under that guidance, when DOR determines whether or not a license is required, they look at the nature of the event itself," the memo stated. "Specifically, DOR 'considers whether the event is limited to personally invited guests known to the host and not open to the general public.' A purely private event, limited to specifically invited guests and not open to the general public does not require an alcohol beverage retail license or permit under [the statutes]."
What's more, WILL's attorneys continued, that conclusion is bolstered by the Legislature's own recent interpretation of the statute.
"In February of this year, the Assembly passed 2017 Assembly Bill 433 on a voice vote, adopting Assembly Substitute Amendment 1 (also known as the 'tailgate ban legislation')," the memo stated. "That amendment, and subsequently the bill itself, would have made significant changes to the licensing requirements under [the law]. Specifically, the amendment would have 'prohibited the owner or person in charge of property that is not a public place from permitting the consumption of alcohol beverages on the property if the owner or person in charge of the property received payment for temporary use of the property by another person for a specific event, unless the person had an appropriate retail license or permit and the consumption of alcohol beverages occurred on that portion of the property covered by the retail license or permit.'"
The study committee's proposal contains similar language, the memo asserted. Nonetheless, the memo continued, the Legislature, in proposing to require a retail license to consume alcohol beverages at non-public venues, tacitly acknowledged that such permitting requirements do not exist under current law.
"It should be noted that this legislation did not pass last session, which can be viewed as affirmation of a preference for maintaining the status quo - that such private events do not require alcohol beverage retail licenses or permits," WILL's attorneys wrote.
A whole lotta trouble
WILL found all sorts of problems in the legal language.
First, the memo states, the draft expands licensing and permitting requirements from the "premises" of a "public place" to the "property" of a "public place."
"The significance of this change is unclear, as 'premises' is defined by statute to mean 'means the area described in a license or permit,'" the memo states. "Presumably, by changing 'premises' to 'property' the draft proposes to expand the 'public place' restriction beyond current law."
WILL also says the bill, if enacted as is, could end tailgating as we know it.
"In addition to expanding the 'public place' licensing and permit requirements from 'premises' to 'property,' the draft also expands those licensing requirements to certain property 'that is not a public place,'" the memo states. "This change is a significant expansion with regard to who needs to obtain a license or permit under state law."
Under this expansion, the attorneys wrote, and subject to several exceptions, the owner or person in charge of property that is not a public place, and who receives payment for temporary use of the property by another person for a specific event, may not permit the consumption of alcohol beverages on the property unless the person has an appropriate alcohol beverage retail license or permit.
"This legislative proposal could greatly restrict the private locations where alcohol could be consumed in Wisconsin without first obtaining an alcohol beverage retail license or permit," the memo states. "This proposal appears to be a somewhat scaled-back version of the original 'tailgate ban legislation.' This proposal would prohibit individuals from consuming alcohol at certain private events that are not open to the public unless done under a valid license or permit."
That new licensing requirement is very broad, WILL contends.
"Specifically, this legislation would prohibit the consumption of alcohol on any property 'that is not a public place' (i.e., a wedding, a birthday party, a graduation party, an anniversary party, a retirement party), where such property has been rented or leased, and the event does not qualify for one of the exemptions," the memo states. "Any venue that currently rents itself out to private individuals to host private parties that are not open to the public would be prohibited from allowing the consumption of alcohol on their property unless they first obtain an alcohol beverage retail license or permit."
Though it is scaled back from the near total ban proposed by the original tailgating ban legislation, WILL says the proposed language still creates confusion and uncertainty.
"For example, the proposal exempts out 'property within a local professional football stadium district' (Lambeau Field), and 'property within a local professional baseball district' (Miller Park), but it only exempts such property on the same day that a professional football game is held at the football stadium or a professional baseball game is held at the baseball park, and even then only if such property is used in connection with the professional football game, another term which is not defined," the memo states.
That has ominous implications, WILL contends.
"So, for example, if you want to tailgate and have a beer with your brat when the Wisconsin Badgers play Notre Dame at Lambeau Field in 2020, or when Miller Park hosts an Ed Sheeran concert in October of this year, or any other concert (Kenny Chesney has played there several times) or other sporting event besides a professional baseball game held at Miller Park in the future, those specific exemptions would not apply, while others may," the memo states.
Additionally, WILL argues, while the draft appears to exempt at least some fans of the Brewers and the Packers, there are no exemptions for other professional baseball stadiums in the state, such as minor league teams, or for property related to stadiums in any amateur leagues, such as the Northwoods League.
And while the proposal creates a blanket exemption for "property for purposes of parking," that term is undefined. WILL says the broad scope of the legislation would target vacationers in Wisconsin as well.
"For example, if you plan to rent out a two-bedroom lake house that can sleep four adults somewhere in Wisconsin, under this legislation, if you host a party at that lake house and there are more than four adults present, you cannot serve any alcohol without first obtaining an alcohol beverage retail license or permit," the memo states. "This is because the proposal requires a 'vacation rental property' to have 'sufficient beds for all guests to sleep' in order to qualify for the permitting exemption."
That is a significant restriction that could very well make it illegal to host a dinner party while on vacation in Wisconsin, the WILL attorneys wrote.
"Rented hunting land may even fall under this requirement if you plan to stay overnight; so if this proposal passes, be careful cracking a beer at deer camp after a long day in the field," the memo stated. "There is also the question of how the state would intend to enforce such requirements: Will revenue agents be knocking on doors to count beds during your next dinner party?"
All those may seem like absurd results, the memo stated, but that is what happens with shoddy drafting and special interest legislation.
Swearingen: Not targeting tailgaters
For his part, Swearingen says he has never seen a study committee get such attention.
This year, he says, there are nine study committees - after each session the joint legislative council canvasses lawmakers about what they think is unfinished business or issues really needing to be solved - and he was asked to chair a committee on alcohol enforcement.
"There has been an issue with the Department of Revenue, how they are interpreting public and private venues," Swearingen said. "The wedding barn is the best example, although it doesn't have to be a barn, it could be a warehouse or whatever."
Actually, Swearingen said, there are two types of barns.
"Some of them are properly licensed with an alcohol license, whether it's just beer or beer and spirits," he said. "And therefore they have conformed to all the inspections, and there is this other group who have found a gray area or loophole in the law with a new business model that says we have a venue and you are the bride and groom and you go to the liquor store or to Walmart or wherever and buy all the alcohol you want for your 200 or 300 guests for your event. They interpret the law to say they are public until they rent the barn or wherever and then it is a private event. So as long as they buy the alcohol over here and give it away over there, there's no sale, so if they are not selling anything, they claim they don't need the alcohol license."
The way the DOR looks at the law, Swearingen says, that's OK.
"So that opens up a big dilemma and quite a rub between everybody who is properly licensed, but, to the DOR, they are within the law, arguably," he said. "That was a big blow up near the end of the session, which had to do with a couple of other things but that was a part of it."
Swearingen reiterated that the language analyzed by WILL is just a draft.
"The committee hashed it out," he said. "There was the thought that maybe we should do some sort of consumption license. We're not trying to put these places out of business. All we're saying is if you are going to serve alcohol, you probably should be licensed."
Swearingen says the biggest concern is safety.
"There are no closing hours because they are not licensed under chapter 125," he said. "No licensed bartenders. There's no inspections, so one of the scares is public safety. If they serve an underager and they don't have any closing hours and this kid gets in his car or truck and heads out at 3 in the morning and if he piles into a tree, God forbid, and kills himself or somebody else, where's the responsibility?"
And then you get into the safety of the food, Swearingen said. "I mean, the public expects that when they go to these places, they will be safe."
Swearingen says there are some good players.
"Some of them have built some really nice venues, and they have their own policies about licensed bartenders and closing hours," he said. "All that is great and wonderful, but they are not required to."
Swearingen said he did not know if the legislation would move forward.
"Very honestly, I don't know if we are going to come to a conclusion because they've got these 'hair on fire' ideas that we are going to shut down tailgating," he said.
But that's not the case, Swearingen said.
"If you're clearly in business and you're advertising that you have an event venue, and you're dispensing alcohol, [that's who the legislation is aimed at]," he said. "We're not going after churches or the Lions Club or Kiwanis Club, or any 501C3, or any private wedding on your lawn. We can't cover every scenario, and we are having a hard time coming up with language that covers what we want to do."
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