The title of this article is the "Town of Whitewater Alcohol
Control Ordinance." The purpose of this article is for the Town to
regulate specific actions at or near any alcohol beverage retail locations
in the Town.
The Town Board has the authority under § 125.10, Wis.
Stats., and under its village powers under § 60.22(3), Wis.
Stats., to regulate the sale at retail or wholesale of alcohol beverages
at premises in the Town to the extent that Town regulations are not
in conflict with state statutes, specifically including the regulation
of underage and intoxicated persons at alcohol beverage retail sale
licensed premises in the Town and the issuance, renewal, revocation,
suspension, and regulation of alcohol retail sale or wholesale sale
licenses or permits, along with the penalties for violations of this
article.
[5-9-2012 by Ord. No.
050912]
The Town Board, by this article adopted by a majority of the
Town Board on a roll call vote with a quorum present and voting and
proper notice having been given, provides for the regulation of actions
and activities at or near alcohol retail sales premises located in
the Town and for regulatory and enforcement authority noted in this
article.
[5-9-2012 by Ord. No.
050912]
As used in this article, the following terms shall have the
meanings indicated:
Fermented malt beverages, wine, and intoxicating liquor.
A drug, substance, or immediate precursor included in Schedules
I to V of Ch. 961, Subch. II, Wis. Stats.
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% or more of alcohol by volume.
A person whose mental or physical functioning is substantially
impaired as a result of the use of alcohol.
All ardent, spiritous, distilled, or vinous liquors, liquids,
or compounds, whether medicated, proprietary, patented or not, and
by whatever name called, containing 0.5% or more of alcohol by volume,
that are beverages, but does not include fermented malt beverages
that contain less than 5% of alcohol by weight.
Twenty-one years of age.
An authorization to sell alcohol beverages at retail or wholesale
issued by the Town Board or its agent under this article.
Any premises at which fermented malt beverages or intoxicating
liquor are sold for consumption upon said premises.
Any person issued a license under this article and Ch. 125,
Wis. Stats., by the Town.
Conducting a business publicly and continuously at regular
business hours during the calendar year.
Any permit issued by the Town under this article.
Any person issued a permit by the Town under this article.
A natural person, sole proprietorship, partnership, limited
liability, company, corporation, association, or the owner of a single-owner
entity that is disregarded as a separate entity under Ch. 71, Wis.
Stats.
The area described in a license or permit.
Any rule or ordinance adopted by a municipal governing body.
The sale of any alcohol beverages in the Town to any person
other than a person holding a permit or a license under this article
and Ch. 125, Wis. Stats.
Any person who sells, or offers for sale, any alcohol beverages
in the Town to any person other than a person holding a permit or
a license under this article and Ch. 125. Wis. Stats.
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.
Any liquid capable of being used for beverage purposes containing
any degree of alcohol less than 1/2 of 1% by volume.
The Town of Whitewater, Walworth County, Wisconsin.
The Board of Supervisors for the Town of Whitewater, Walworth
County, Wisconsin, and includes designees of the Board authorized
to act for the Board.
The Chairperson of the Town of Whitewater, Walworth County,
Wisconsin.
The Clerk of the Town of Whitewater, Walworth County, Wisconsin.
Not only all the well-known and easily recognized conditions
and degrees of intoxication, but any abnormal mental or physical condition
that is the result of indulging to any degree in alcohol beverages
and that tends to deprive a person of the clearness of intellect and
control of himself or herself that he or she would otherwise possess.
A person who has not attained the legal drinking age.
The sale, other than by a brewer, manufacturer, or rectifier,
of alcohol beverages to a licensed retailer in the Town or to another
person who holds a permit or license to sell alcohol beverages in
the Town at wholesale.
Products obtained from the normal alcohol fermentation of
the juice or must of sound, ripe grapes, other fruits, or other agricultural
products, imitation wine, and compounds sold as wine, vermouth, cider,
perry, mead, and sake, if such products contain 0.5% or more of alcohol
by volume.
The Wisconsin Statutes, including successor provisions to
cited statutes.
This article is divided into sections which may be divided into
subsections. Subsections may be divided into paragraphs designated
by numbers. Reference to a "section," "subsection," "paragraph," or
"subdivision" includes all divisions of the referenced section, subsection,
paragraph, or subdivision.
A.
Application for an alcohol beverage retail license for any premises
shall be made on the standard forms promulgated by the Wisconsin Department
of Revenue and filed with the Town Clerk.
B.
The Town Clerk upon receiving an application shall notify the Town
Chairperson and the Sheriff of Walworth County of the application,
and these officials shall have the right to inspect or cause to be
inspected each application and the premises to determine whether the
applicant and the premises sought to be licensed comply with the state
regulations, local ordinances, and laws applicable thereto. These
officials shall furnish to the Town Board in writing the information
derived from such investigation, accompanied by a recommendation as
to whether a license shall be granted or refused. No license shall
be renewed without a reinspection of the premises.
C.
In determining the suitability of the applicant, consideration shall
be given to the moral character and financial responsibility of the
applicant, appropriateness of the location and premises where such
licensed business is to be conducted, and generally the applicant's
fitness for the license.
D.
No retail alcohol beverage license shall be issued unless the premises
to be licensed conforms to the sanitary, safety and health requirements
of the Wisconsin Building and Plumbing Codes, and the rules and regulations
of the Wisconsin Board of Health applicable to restaurants, and also
conform to all ordinances and regulations adopted by the Town.
E.
Each premises for which a alcohol beverage license is granted must
be connected with adequate well water and sanitary sewerage facilities,
must be properly lighted and ventilated and supplied with separate
sanitary toilet and lavatory facilities equipped with running water
for each sex, and complying with the Americans with Disabilities Act
(ADA).
G.
The alcohol beverage license shall particularly describe the premises
for which issued and is not transferable, except as provided in § 125.04,
Wis. Stats.
H.
Provisional retail license. An applicant for a Class "B" fermented
malt beverage license, "Class B" intoxicating liquor license, or "Class
C" wine license, who demonstrates to the Town Clerk to be a person
of good reputation and financially solvent, and from all appearances
to be a viable candidate for such retail license or licenses, may
be issued a provisional retail alcohol beverage license by the Town
Clerk. The provisional license expires 60 days after issuance or when
the applicant is issued the retail alcohol beverage license. The license
may be revoked by the Town Clerk if the Clerk discovers the holder
made false or misleading statements in the application. The Town Clerk
may not issue a provisional "Class B" intoxicating liquor license
if the quota for the Town prohibits the issuance of such a license.
No person may hold more than one provisional retail license for each
type of license applied for per fiscal year.
Pursuant to §§ 125.26(6) and 125.51(10), Wis.
Stats., the Town Clerk is authorized to issue temporary Class "B"
fermented malt beverage and wine licenses to bona fide clubs, lodges,
societies, and churches which have been in existence for at least
six months or to veterans' organizations and fair associations.
A.
There shall be upon premises operated under a retail alcohol beverage
license, at all times, the licensee or some person who has an operator's
license under § 125.17, Wis. Stats., and who is responsible
for the acts of all persons serving any alcohol beverage to customers.
No person other than the licensee and his immediate family shall serve
alcohol beverages in any place operated under a retail alcohol beverage
license unless he or she possesses such operator's license, or
unless he or she is under the immediate supervision of the licensee
or a person holding an operator's license who is at the time
of such service upon the premises.
B.
The Town Clerk may issue an operator's license, a temporary
operator's license or provisional operator's license in
accordance with the provisions of § 125.17, Wis. Stats.
Such licenses shall be granted only upon application in writing on
the standard forms promulgated by the Wisconsin Department of Revenue
and filed with the Town Clerk. Applicants must be 18 years of age
or over who do not have an arrest or conviction record subject to
§§ 111.321, 111.322 and 111.335, Wis. Stats. Applicants
for an operator's license, unlike applicants for temporary operator's
licenses, must successfully complete a beverage server training course
prior to the issuance of the license. Provisional operator's
licenses may be issued to persons enrolled in a beverage server training
course who show proof of enrollment and who have applied for a regular
operator's license. A provisional license may also be issued
to a person who held an operator's license in another municipality
and has applied for an operator's license in the Town of Whitewater.
A provisional operator's license shall expire 60 days after its
issuance or when an operator's license is issued to the holder,
whichever is sooner. A provisional operator's license is nonrenewable.
The licenses shall be issued only after the Clerk has had sufficient
time to ascertain that the applicant qualifies for the license. The
temporary operator's license shall be valid only for the particular
dates of the temporary beverage license. The Clerk may revoke a license
if he or she discovers the holder of the license made a false statement
on the application. If the Clerk refuses to issue the license applied
for, the applicant shall be advised in writing of the refusal and
of his or her right to appeal the decision to the Town Board.
The fees for alcohol beverage licenses, as set forth in the
fee schedule that shall be kept on file with the Town Clerk, shall
be for the fiscal year ending June 30 of each year.
A.
RESERVE "CLASS B" INTOXICATING LIQUOR LICENSE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
Shall have the meaning defined in § 125.51(4)(a)(4),
Wis. Stats.
B.
Findings and purpose. The Town Board finds that businesses such as
restaurants, hotels, and taverns make important contributions to the
Town's economy. These establishments serve important public purposes,
including increasing the Town's property tax base, providing
employment and promoting tourism. Excess license fees deter new and
continuing businesses and are contrary to the above-stated public
purposes. Section 125.51(3)(e)2, Wis. Stats., imposes upon municipalities
the duty to establish a minimum issuance fee of $10,000 for each reserve
"Class B" intoxicating liquor license issued. Since the new issuance
fee far exceeds the actual cost of licensing the activity, additional
revenue will be available to the Town. It is the purpose of this section
to utilize revenue generated by § 125.51(3)(e)2, Wis. Stats.,
to assist new reserve "Class B" licensees achieve the important public
purposes identified herein.
C.
Grants. Following the issuance of an original reserve "Class B" intoxicating liquor license, and upon application, the Town Board may provide a grant to the licensee in an amount not to exceed the amount actually paid by the licensee to the Town of Whitewater for issuance of the new reserve "Class B" intoxicating liquor license, less the amount under § 3-69 for an ordinary "Class B" intoxicating liquor license. Prior to awarding any grant hereunder, the Town Board shall make such findings and establish such conditions to insure that any funds awarded hereunder further the important public purposes identified herein. In determining the amount of the grant, the Town Board shall take into consideration the cost incurred by the Town, including reasonable attorneys' fees, in processing the application for a license and the grant.
[5-9-2012 by Ord. No.
050912]
A.
In the event any alcohol beverage retail or wholesale sale licensee or permittee violates this article or Ch. 125, Wis. Stats., the Town Board may take disciplinary action, including permit or license suspension for not less than 10 days nor more than 90 days, or permit or license revocation or nonrenewal. Any license or permit that has been revoked shall not be reinstated within the following 12 months. Any disciplinary action taken by the Town Board shall follow notice to the licensee or permittee prior to a hearing in accordance with Subsection B. The hearing notice shall include the reason for the hearing. The hearing decision of the Town Board shall be sent by first class mail to the licensee's last known address or personally served, at the Town Chairperson's option.
B.
In the event disciplinary action is taken against an alcohol beverage
retail or wholesale sale licensee or permittee, the procedure mandated
under § 125.12, Wis. Stats., or its successor, will be followed.
C.
There shall be no refund of any alcohol beverage retail or wholesale
sale license or permit fee paid to a party whose license is revoked
or suspended under this article.
D.
In lieu of a hearing, the Board may accept surrender of the alcohol
beverage retail or wholesale sale license or permit, and the Board
shall then determine the time period before another application for
the same type of license or permit will be accepted from the former
licensee or permittee.
E.
Evidence and testimony at the hearing shall be given in open session.
The Town Clerk shall post or arrange to post the hearing notice or
publish in a format acceptable to the Town Chairperson.
F.
Unless no disciplinary action, including reprimand or probation,
is ordered by the Town Board, the alcohol retail sale or wholesale
licensee or permittee shall reimburse the Town for costs of personal
service, mailing, faxing, copies, and any per diem paid for a Town
officer to attend the hearing or other meeting due to a license violation.
Unpaid costs assessed under this subsection shall accrue interest
at the rate of 5% per annum if unpaid after 30 days. Payment is required
before any future alcohol retail or wholesale sale license or permit
is issued or reinstated to the license or permit holder.
A.
It is unlawful for any person to sell or keep for sale at wholesale
or retail, or permit to be sold or kept for sale at wholesale or retail,
within the Town any alcohol beverage or soft drink, except in strict
accordance with the provisions of this article and state law. The
issuance of any license or permit to any person under this article
and Ch. 125, Wis. Stats., is contingent upon full compliance with
this article and Ch. 125, Wis. Stats., by the licensee or permittee.
Any building or place where alcohol beverages or alcohol is sold,
possessed, stored, brewed, bottled, manufactured, or rectified without
a valid permit or license issued under this article or Ch. 125 or
139, Wis. Stats., or where persons are permitted to drink alcohol
beverages in violation of this article and Ch. 125, Wis. Stats., is
a public nuisance and may be closed until the activity in violation
of this article is abated. When the activity is abated, the building
or place may be used for any lawful purpose.
B.
It is unlawful for a licensee, permittee, or any employee, operator,
or manager of a licensed premises or permitted establishment to be
under the influence of an intoxicant or a controlled substance, or
a combination of an intoxicant and a controlled substance, while performing
services on the licensed or permitted premises of the Town.
C.
It is unlawful for any person, including any owner, tenant, employee,
operator, or manager of a licensed premises, who has engaged in violent,
abusive, indecent, profane, boisterous, unreasonably loud, or otherwise
disorderly conduct in a licensed premises under circumstances in which
that conduct tended to cause or provoke a disturbance and who has
been ordered by the Town Board or a law enforcement officer not to
enter or to remain in a licensed premises or permitted establishment
to so enter or remain during any period after having been ordered
not to enter or remain by a law enforcement officer. An order prohibiting
entry under this subsection may prohibit entry for a period up to
six months.
D.
As a condition of maintaining and keeping an alcohol beverage retail
sale license for a licensed premises in the Town, any licensee of
a licensed premises must stay open for business and continue in business
and demonstrate business continuance satisfactory to the Town Board.
Issuance or retention of a license by a party not open for business
and not demonstrating business continuation is declared by this article
to be against public policy of the Town. A determination by the Town
Board that a person is not demonstrating business continuation establishes
grounds for suspension or revocation of the alcohol beverage retail
sale license. The Town Board shall issue a summons and set a hearing
to determine whether the license shall be suspended or revoked under
this subsection. The hearing shall be held not later than 30 days
after it is issued. The Town Board may elect to make its decision
effective on a later date. The procedure for the hearing shall be
in accordance with § 125.12, Wis. Stats. Testimony of any
party, any eviction notice, court documentation, or other valid evidence
of such actions may be presented. All testimony shall be under oath.
A person who was licensed or permitted for the licensed premises for
an alcohol beverage retail licensed tavern is not demonstrating business
continuation if any of the following is demonstrated:
(1)
The person has not done business in the licensed premises for at
least 60 consecutive days.
(2)
The person has voluntarily vacated the premises more than 60 days
before the hearing held under this subsection.
(3)
The person was ordered by a court of competent jurisdiction to vacate
the premises at least 60 days before the hearing held under this subsection.
E.
A license or permit shall not be denied on the grounds that the applicant
lacks good moral character, unless there is evidence that the applicant
would, if granted an initial or renewed license or permit, pose a
threat to the safety or welfare of patrons of the licensed or permitted
establishment in which he or she would be employed. The following
will be considered grounds for a determination that an applicant lacks
good moral character:
(1)
Suspension or revocation of a Class A, Class B, operator's,
or manager's license under Ch. 125, Wis. Stats., or this article,
or dismissal from a bartending job if all of the following apply:
(a)
There is a relationship between the reasons for the suspension,
revocation, or dismissal and the applicant's ability to competently
tend bar without endangering the safety or welfare of the patrons
of the premises where the applicant will tend bar under the authority
of the applied-for license or permit.
(b)
The suspension, revocation or dismissal occurred within a year
of the date of the application, or there has been more than one such
suspension, revocation or dismissal within three years of the date
of the application.
(2)
Conduct exhibiting the use, within three years of the date of the
application, of alcohol beverages or controlled substances to an extent
or in a manner dangerous to any other person, or to an extent that
such use would impair the applicant's ability to competently
tend the tavern business.
(3)
Criminal history.
(a)
The applicant has habitually been a law offender or has been
convicted of a felony, and the circumstances of the crime or crimes
substantially relate to the circumstances of the permitted or licensed
activity, unless the person has been legally pardoned.
(b)
The applicant is subject to a pending criminal charge, and the
circumstances of the charge substantially relate to the circumstances
of the permitted or licensed activity.
(c)
The applicant has been convicted of one or more of the following:
[1]
Manufacturing, distributing, or delivering a controlled substance
or controlled substance analog under § 961.41(1), Wis. Stats.
[2]
Possessing, with intent to manufacture, distribute, or deliver,
a controlled substance or controlled substance analog under § 961.41(1m),
Wis. Stats.
[3]
Possessing, with intent to manufacture, distribute, or deliver,
or manufacturing, distributing, or delivering a controlled substance
or controlled substance analog under a federal law that is substantially
similar to § 961.41(1) or (1m), Wis. Stats.
[4]
Possessing, with intent to manufacture, distribute, or deliver,
or manufacturing, distributing, or delivering a controlled substance
or controlled substance analog under the law of another state that
is substantially similar to § 961.41(1) or (1m), Wis. Stats.
(4)
If any Town committee or local law enforcement recommends to the
Town Board denial of an operator's license or manager's license
or other license or permit on the basis provided under this article,
the applicant shall be given the opportunity to present evidence of
rehabilitation. Such evidence may include, but is not limited to,
letters of recommendation, evidence of family stability or educational
advancement, satisfactory work performed, professional counseling,
and participation in community activities.
(5)
If a license or permit is denied by the Town Board, the applicant
shall have the right to file an appeal with the Town Clerk within
30 days of the date of the decision and to appear and be represented
by legal counsel before the Town Board, to be heard, to present evidence
in favor of the granting of the license or permit, and to rebut the
evidence presented in opposition to the granting of the license or
permit. The hearing on the appeal shall be held within 40 days of
the filing of the appeal. Notice of the time and place of the hearing
on the appeal shall be mailed by the Town Clerk to the applicant by
certified mail at least 10 days before the date of the hearing. The
Town Board shall, after the hearing, comply with Ch. 125, Wis. Stats.,
by providing in writing the reasons for its decision to grant or not
grant a license or permit. The Town Board shall comply with § 125.12,
Wis. Stats., in the denial, revocation, suspension or nonrenewal of
a license or permit.
F.
It is a condition of any license or permit issued under this article
that the licensed or permitted premises, delivery vehicles, and any
of the business books of account, bank statements, billings, invoices
and any other documents relating specifically to the licensed or permitted
business may be entered and inspected at any reasonable hour by any
law enforcement officer of the Town without any warrant, and application
for a license or permit under this article shall be deemed a consent
to this provision. Any refusal to permit such inspection shall automatically
operate as a revocation of any license or permit issued under this
article and shall be deemed a violation of this subsection.
G.
No licenses or permits may be granted under this article or under
Ch. 125, Wis. Stats., unless the Town Board, by a vote of the majority
of the members-elect of the Town Board, authorizes the issuance of
the license or permit. The Town Board shall meet not later than May
15 of each year and be in session from day to day thereafter so long
as it may be necessary for the purpose of action upon applications
for licenses and permits as may be presented to them on or before
April 15, and all applications for licenses so filed shall be granted
or denied not later than June 15 for the ensuing license year.
A.
Sale of alcohol beverages to underage persons; restrictions.
(1)
No person may procure for or sell, dispense, or give away any alcohol
beverages to any underage person not accompanied by his or her parent,
guardian, or spouse who has attained the legal drinking age.
(2)
No licensee or permittee may sell, vend, deal, or traffic in alcohol
beverages to or with any underage person not accompanied by his or
her parent, guardian, or spouse who has attained the legal drinking
age.
(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. This
subsection does not apply to alcohol beverages used exclusively as
part of a religious service.
B.
Intoxicated persons.
(1)
No person may procure for or sell, dispense, or give away alcohol
beverages to an intoxicated person.
(2)
No licensee or permittee may sell, vend, deal, or traffic in alcohol
beverages to or with an intoxicated person.
(3)
No licensee or permittee may permit an intoxicated person to be on
a licensed or permitted premises.
C.
Disorderly house. No licensee or permittee in charge and control
of a licensed or permitted premises shall keep or maintain a disorderly
or riotous, indecent, or improper tavern or licensed or permitted
establishment.
D.
After hours. No licensee or permittee shall permit any person to
be present on the 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 unless these
persons are performing job-related activities.
E.
Unsanitary or unsafe conduct. No licensee or permittee in charge
and control of a tavern shall fail to keep or maintain a tavern or
other licensed or permitted premises in a sanitary and safe condition
after written notice by the State of Wisconsin Department of Health
and Family Services[1] or the Town Board.
[1]
Editor's Note: Sanitation in restaurants now falls under the
State Department of Agriculture, Trade and Consumer Protection. See
Ch. ATCP 75, Wis. Adm. Code.
A.
The provisions of Ch. 125, Wis. Stats., and also all acts amendatory
thereof and supplementary thereto, relating to penalties are adopted
as a portion of this article so far as applicable. Any person who
violates any provision of this article for which a specific penalty
is provided shall be subject to a forfeiture of:
(1)
Not less than $100, nor more than $200, plus court costs, if the
person has not committed a previous violation within 12 months of
the violation;
(2)
Not less than $200, nor more than $500, plus court costs, if the
person has committed a violation within 12 months of the violation;
(3)
Not less than $500, nor more than $1,000, plus court costs, if the
person committed two previous violations within 12 months of the violation;
(4)
Not less than $1,000 nor more than $5,000, plus court costs, for
the fourth and subsequent offenses within one year.
B.
For purposes of determining whether a previous violation has occurred,
if more than one violation occurs at the same time, all those violations
shall be counted as one violation.
C.
Any person that fails to comply with the provisions of this article
shall, upon conviction, pay a forfeiture, plus the applicable surcharges,
assessments, and costs for each violation. Each day a violation exists
or continues constitutes a separate offense under this article. In
addition, the Town Board may seek injunctive relief from a court of
record to enjoin further violations.
