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Defense win! County’s social host ordinances violates sec. 125.07(1)

County of Fond du Lac v. Stuart D. Muche, 2016 WI App 84; case activity (including briefs)

Muche threw a high school graduation party  for his son and (gasp!) some of the underage guests brought beer to it. Sheriff’s deputies showed up and cited Muche for violation of Fond du Lac County’s social host ordinance, which resulted in a forfeiture of $1,000. This decision dismisses the forfeiture and, according to the Journal Sentinel, could require changes to “dozens of social host ordinances aimed at combatting underage drinking.” In short, this decision is SCOW bait.

Section 125.07(1)(a)3 provides that: “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.” (Emphasis added.) “Premises” is defined under §125.02(14m) as “the area described in a license or permit.” That’s doesn’t sound like a home.

Fond du Lac County Ord. § 6-5(d), in contrast, is much broader, it provides:

It is unlawful for any person(s) to host or allow  an event or gathering at any residence, premises or on any other private or public property where alcohol or alcoholic beverages are present when the person knows that an underage person will or does consume any alcohol or alcoholic beverage or will or does possess any alcohol or alcoholic beverage with the intent to consume it and the person fails to take reasonable steps to prevent possession or consumption by the underage person(s).

The legislature has declared that regulation of alcoholic beverages is a matter of statewide concern and that a county may enact an ordinance regarding underage drinking only if it strictly conforms to statute. Wis. Stat. §125.10(2). According to the court of appeals, the ordinance at issue in this case “forbids what the statute does not forbid and in that respect creates liability beyond the scope of the statute.” Slip op. ¶28.  The court of appeals points to Nichols v. Progressive Ins. Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220, where SCOW held that a common law negligence claim may not be maintained against a social host, to support its understanding that “premises” means areas described in licenses or permits, not to property like a residence.

To assure the reader that it had no choice but to interpret §125.07(1)(a)3 this way, the court of appeals added:

26 . . . To the extent that this conclusion is statutorily questionable or arguably inconsistent with current public opinion on social host liability, the clarification of whether a county may interpret “premises” as “property” under the control of an adult, so as to be in strict conformity with § 125.07(1)(a)3., must come either from the legislature, or from our supreme court, as we have no authority to overrule or modify language from a supreme court case.  (citation omitted).

The court of appeals also held that the ordinance’s penalties were not in strict conformity with §125.07(1)(b). The former authorizes a forfeiture of not less than $1,000 or more than $5,000. The latter provides graduated penalties with with a $500 maximum forfeiture for the first offense.

Judge Riley, concurring, would have resolved this case on the penalty issue alone. He argues that the majority incorrectly applied Nichols to the “premises” issue.

¶34 . . . The legislature purposefully restricted underage drinking on “premises” as defined in § 125.02(14m), but also separately utilized the word “premises” in § 125.07(1)(a)3. to encompass those places owned by an  adult, such as the high school graduation parties held in the home or the bonfire in the back forty.

¶35 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 § 125.07(1)(a)3., and is clearly not what the legislature wrote or intended. 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. Utilizing the Nichols’ dicta, “[n]othing in the Wisconsin statutes renders the [social hosts’] conduct unlawful,” to eviscerate § 125.07(1)(a)3. is wrongly applying Nichols. See Nichols, 308 Wis. 2d 17, ¶33. Applying Nichols literally in our situation undoes what Nichols stands for— deference to legislative decision making.

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{ 1 comment… add one }
  • Sonya Bice November 17, 2016, 1:44 pm

    “Applying Nichols literally in our situation undoes what Nichols stands for— deference to legislative decision making.” It seems to me that Judge Reilly’s concurrence got this one right.

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