Town of Whitewater, WI
Walworth County
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[1]
Editor's Note: Ord. No. 050912, §§ I — XII, adopted May 9, 2012, repealed the former art. III, §§ 3-613-71, and enacted a new art. III as set out herein. The former art. III was entitled "Wine Control Ordinance", and derived from: Ord. No. 070908, §§ I — XI, adopted July 9, 2008.
[5-9-2012 by Ord. No. 050912]
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.
[5-9-2012 by Ord. No. 050912]
The Town Board has the authority under W.S.A. § 125.10, and under its village powers under W.S.A. § 60.22(3), to regulate the sale at retail or wholesale of alcoholic 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]
ALCOHOL BEVERAGES
Fermented malt beverages, wine, and intoxicating liquor.
CONTROLLED SUBSTANCE
A drug, substance, or immediate precursor included in Schedules I to V of W.S.A. ch. 961, subch. II.
FERMENTED MALT BEVERAGE
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.
INTOXICATED PERSON
A person whose mental or physical functioning is substantially impaired as a result of the use of alcohol.
INTOXICATING LIQUOR
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.
LEGAL DRINKING AGE
Twenty-one years of age.
LICENSE
An authorization to sell alcohol beverages at retail or wholesale issued by the Town Board or its agent under this article.
LICENSED PREMISES
Any premises at which fermented malt beverages or intoxicating liquor are sold for consumption upon said premises.
LICENSEE
Any person issued a license under this article and W.S.A. ch. 125, by the town.
OPEN FOR BUSINESS
Conducting a business publicly and continuously at regular business hours during the calendar year.
PERMIT
Any permit issued by the town under this article.
PERMITTEE
Any person issued a permit by the town under this article.
PERSON
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 W.S.A. ch. 71.
PREMISES
The area described in a license or permit.
REGULATION
Any rule or ordinance adopted by a municipal governing body.
RETAIL
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 W.S.A. ch. 125. "Retailer" means 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 W.S.A. ch. 125.
SELL, SOLD, SALE, or SELLING
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.
SOFT DRINK
Any liquid capable of being used for beverage purposes containing any degree of alcohol less than 1/2 of 1% by volume.
TOWN
The Town of Whitewater, Walworth County, Wisconsin.
TOWN BOARD
The Board of Supervisors for the Town of Whitewater, Walworth County, Wisconsin, and includes designees of the board authorized to act for the board.
TOWN CHAIRPERSON
The Chairperson of the Town of Whitewater, Walworth County, Wisconsin.
TOWN CLERK
The Clerk of the Town of Whitewater, Walworth County, Wisconsin.
UNDER THE INFLUENCE
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/she or she would otherwise possess.
UNDERAGE PERSON
A person who has not attained the legal drinking age.
WHOLESALE
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.
WINE
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.
WIS. STATS.
The Wisconsin Statutes, including successor provisions to cited statutes.
[5-9-2012 by Ord. No. 050912]
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.
[5-9-2012 by Ord. No. 050912; 7-11-2012 by Ord. No. 071112]
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 re-inspection 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 alcoholic 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 alcoholic 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 American's for Disability Act.
F. 
The fee for alcoholic beverage license for premises is set forth below in section 3-69, license fees.
G. 
The alcoholic beverage license shall particularly describe the premises for which issued and is not transferable, except as provided in W.S.A. § 125.04.
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.
[7-11-2012 by Ord. No. 071112]
Pursuant to W.S.A. § 125.26(6) and W.S.A. § 125.51(10), 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 veteran's organizations and fair associations.
[7-11-2012 by Ord. No. 071112]
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 W.S.A. § 125.17, 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/she or she possesses such operator's license, or unless he/she 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 W.S.A. § 125.17. 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 W.S.A. §§ 111.321, 111.322 and 111.335. 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/she 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 his or her right to appeal the decision to the Town Board.
[5-9-2012 by Ord. No. 050912; 7-11-2012 by Ord. No. 071112]
The fees for alcoholic beverage licenses shall be as follows for the fiscal year ending June 30 of each year:
A. 
Retail Class "B" fermented malt beverage license: $100.
B. 
Reserve retail "Class B" intoxicating liquor license: $10,000.
C. 
Retail "Class B" intoxicating liquor: $500.
D. 
Retail Class "C" wine: $100.
E. 
Bona fide club or lodge. The fee for a retail reserve "Class B" intoxicating liquor license for a bona fide club or lodge situated and incorporated in the State of Wisconsin for at least six years shall be $500, not $10,000.
F. 
Prorated licenses. Licenses may be granted which shall expire on the 30th day of June, upon payment of such proration of the annual license fee as the number of months or fractions of a month remaining until June 30 bears to 12.
G. 
Operator's license: $25.
H. 
Provisional operator's license: $15.
I. 
Temporary Class "B" fermented malt beverage and wine license: $10.
J. 
Temporary operator's license: $10.
[5-9-2012 by Ord. No. 050912]
A. 
Definitions.
RESERVE "CLASS B" INTOXICATING LIQUOR LICENSE
Shall have the meaning defined in W.S.A. § 125.51(4)(a)(4).
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. W.S.A. § 125.51(3)(a)2 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 city. It is the purpose of this section to utilize revenue generated by W.S.A. § 125.51(3)(e)2, 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 Subsection 3-69C 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 attorney 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 W.S.A. ch. 125, the Town Board may take disciplinary action, including permit or license suspension for not less than 10, nor more than 90 days, or permit or license revocation or nonrenewal. Any license or permit that has been revoked shall not be re-instated 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 W.S.A. § 125.12, 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.
[5-9-2012 by Ord. No. 050912]
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 W.S.A. ch. 125, is contingent upon full compliance with this article and W.S.A. ch. 125, 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 W.S.A. chs. 125 or 139, or where persons are permitted to drink alcohol beverages in violation of this article and W.S.A. ch. 125, 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 W.S.A. § 125.12. 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/she 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 W.S.A. ch. 125, 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 alcoholic 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 W.S.A. § 961.41(1).
[2] 
Possessing, with intent to manufacture, distribute, or deliver, a controlled substance or controlled substance analog under W.S.A. § 961.41(1m).
[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 W.S.A. §§ 961.41(1) or (1m).
[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 W.S.A. §§ 961.41(1) or (1m).
(4) 
If any town committee, or local law enforcement, recommends to the Town Board denial of an operator's license or manager 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 W.S.A. ch. 125, by providing in writing the reasons for its decision to grant or not grant a license or permit. The Town Board shall comply with W.S.A. § 125.12, 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 W.S.A. ch. 125, 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.
[5-9-2012 by Ord. No. 050912]
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 or the Town Board.
[5-9-2012 by Ord. No. 050912]
A. 
The provision of W.S.A. ch. 125 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.