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  • WisBar News
    October 31, 2016

    Appeals Court: County Can’t Regulate Underage Drinking at Private Residences

    Joe Forward

    Underage Drinking

    Oct. 31, 2016 – A county’s “social host ordinance” banning underage drinking at private residences did not strictly comply with a state law that regulates underage drinking. Thus, a parent fined for “hosting” an underage drinking party recently won his appeal.

    In 2015, Fond du Lac County authorities fined Stuart Muche $1,000 for hosting an underage drinking party, in violation of the county’s social host ordinance. Muche hosted a party for friends and family to celebrate his son’s graduation from high school.

    Alcoholic beverages were served at the party. Later that night, some uninvited underage drinkers showed up with beer. Muche confiscated their car keys before police arrived, but he also admitted that he did nothing to stop them from consuming alcohol.

    Muche challenged the fine. He argued that counties can’t enact their own rules on underage drinking. That is, the social host ordinance differed from state law on the same issue, and counties must “strictly comply” with state law in this area.

    The circuit court denied Muche’s motion to dismiss. But in County of Fond du Lac v. Muche, 2015AP2223 (Oct. 26, 2016), a three-judge panel for the District II Court of Appeals reversed, concluding the social host ordinance was at odds with state law.

    But only two of the panel’s three judges agreed that counties are barred from regulating underage drinking in private residences under the state law scheme. Another judge sided with Muche on different grounds, a sign this decision could be appealed.

    Ordinances Must Track State Law

    Wis. Stat section 125.10, a provision of the statutory chapter that regulates alcoholic beverages, says a municipality or county may enact ordinances that regulate underage drinking “only if it strictly conforms” with state law on the issue.

    “A county has the authority to enact an ordinance regarding underage drinking so long as it strictly conforms to the state statute,” wrote Chief Judge Lisa Neubauer, noting underage drinking is a matter of statewide concern. “Thus, the only issue before us is whether the County’s social host ordinance strictly conforms to § 125.07(1).”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    One of the provisions of section 125.07(1) says that “[n]o 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” means “the area described in a license or permit.” Muche argued that the statute does not regulate private residences and thus the county cannot regulate underage drinking at private residences – such regulation would go beyond state law.

    The county argued that the term “premises,” despite the definition in section 125.02(14m), actually means “property owned by the adult or under the adult’s control.” That could include a private residence that the adult owns, the county argued.

    The appeals court panel did not agree.

    It concluded that the decision in a previous case – Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220 – “compels the conclusion that the statute does not penalize social hosts for conduct in private residences.”

    In Nichols, the plaintiffs filed a negligence claim against two parents, alleging they were aware that underage drinking was taking place at their home and did nothing. The plaintiff’s vehicle was later involved in a car accident with one of the underage guests.

    The Wisconsin Supreme Court in Nichols discussed liability under Wis. Stat. section 125.07(1) in concluding that the parents were not liable for common law negligence.

    In light of Nichols, the appeals court concluded that “premises” means what it says in the statute: a place under permit or license to supply alcohol, not private residences.

    “In the end, the majority in Nichols does not appear to have been persuaded that the concurrence’s questions compelled a conclusion that Wis. Stat. § 125.07(1)(a)3. rendered social host conduct in a private residence unlawful,” Neubauer wrote.

    If this conclusion is “inconsistent with current public opinion on social host liability,” the panel noted, the legislature or the supreme court must consider the question, because the appeals court can’t “overrule or modify language from a supreme court case.”

    Because state law does not regulate underage drinking at private residences, the panel concluded that the ordinance, which allows the county to penalize social hosts who allow underage drinking in private residences, does not “strictly comply” with state law.

    The panel also noted that the fines associated with ordinance violations are different than penalties under state law, another departure that state law does not allow. Under the ordinance, the fine is $1,000 for a first offense. It’s $500 under state law.

    Concurrence: Judge Reilly Departs

    Judge Paul Reilly wrote a concurring opinion. He agreed that Muche should win but said the panel should have decided the case on narrow grounds – the difference in penalties – rather than focusing on what is a “premises” under the statute and prior case law.

    On the “premises” issue, Judge Reilly said the majority wrongly applied the Nichols decision to the instant case, and would have ruled the other way.

    “To conclude that Wis. Stat. § 125.07(1)(a)3. is only violated if the adult owns a liquor store or tavern and allows an underage party to occur at the store or tavern is the wrong reading of [the statute], and is clearly not what the legislature wrote or intended,” he wrote. “The legislature meant what it said – adults who host or allow an underage drinking party on property they own will face fines and, if such conduct is repeated, jail.”

    Related Article

    Social Host Liability for Underage DrinkingWisconsin Lawyer, June 2008 (discussing the Nichols case).

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