Chapter 292 Intoxicating Liquor and Fermented Malt Beverages

No person, except as provided by § 125.56, Wis. Stats., shall within the City of Oconto Falls, Wisconsin, distribute, vend, sell, serve, or offer to keep for sale at retail or wholesale, deal or traffic in, or, for the purpose of evading any law or ordinance, give away any intoxicating liquor or fermented malt beverage or cause the same to be done without having procured a license as provided in this chapter, or without complying with all provisions of this chapter and the statutes, ordinances, and regulations of the state and City applicable thereto.

Except for licensed public warehouses, a license shall be required for each location or premises which is in direct connection or communication with each other where intoxicating liquor or fermented malt beverages are stored, sold or offered for sale.

Form and expiration of license. All licenses shall be numbered in the order in which they are issued. The date of issuance, the fee paid, and the name of the licensee shall appear on said license. All retail licenses shall expire on June 30 following issuance unless sooner revoked or not renewed.[1]

License applications. Licenses under this section shall be granted only to persons qualified pursuant to § 125.04, Wis. Stats. Licenses may be granted subject to any additional reasonable and lawful condition of the Common Council at the time of the granting, renewing, or reviewing of the license.

Qualifications of licensees shall generally be reviewed on a yearly basis at the time of licensing. If, however, allegations come to the attention of the Common Council that a licensee or premises is no longer qualified, the Common Council may order a hearing to consider the revocation of such license.

When the Common Council grants a license under this section subject to condition, such condition becomes a qualification, and upon allegations that a licensee or premises fails to meet such condition, the Common Council may order a hearing to consider the suspension or revocation of such license.

Form of license. Each applicant for a retail beer or liquor license, request for transfer, or renewal shall submit the required form, fully completed, to the City Clerk.

All temporary or picnic licenses shall require application to the City Clerk seven working days prior to the effective date of the license.

Nonapproval. In case of nonapproval, a signed statement by the head of the department involved (or a designee) shall accompany the form set out in Subsection B(2) detailing the reasons therefor.

Renewals. All renewal applications are subject to the qualifications, review proceedings, and time constraints provided by state law and in this chapter.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Inoperative or unissued license.

A license which has been granted but not issued, or issued but not in continuous use in a manner indicating an on-going business, for a period in excess of six months is presumed invalid and shall be subject to review by the Common Council for the possible scheduling of a hearing as provided in this Code, to consider if the license should be revoked.

Where a license has been granted and issued to a premises described on the license but the licensee has not engaged in the sale or distribution of fermented malt beverages, wines or intoxicating liquors, the licensee may, at the discretion of the Council, continue to hold said license for its unexpired term and shall also be eligible to apply for and receive one normal one-year renewal thereof, it being the intent and purpose of this subsection to require the licensee or his/her heirs to consummate bona fide rental or sale of the business assets involved during the interim.[2]

[2]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 292-4 Issuance of license; fees. [1]

The City Clerk, or his/her deputy, shall issue licenses to those applicants approved by the Common Council. Notwithstanding any other provisions in this chapter, the City Clerk, or his/her deputy, shall be authorized to issue a special event or picnic license upon receipt of proper application. The Clerk shall not issue a license until the fee has been paid. Alcohol license fees are listed in the City's Fee Schedule.

§ 292-6 Procedures for granting or transferring licenses.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 292-5 Transfer of license.

As to ownership. No license shall be transferable to a different licensee except as provided by § 125.04(12), Wis. Stats. Upon effectuating such transfer (for example, as in the case of sale of a business), the City Clerk will require the licensee requesting the transfer to fill out a form to help in the administration and reissuance of such license. The granting of the transferred license to the new licensee is to be reviewed in the same manner as the granting of a new license by the Common Council as provided in § 292-6.

As to physical location. Licenses issued pursuant to this chapter may be transferred as provided in § 125.04, Wis. Stats. Application for such transfer shall be made on blanks furnished by the State Department of Revenue, Council review proceedings for transfer shall be had as provided at § 292-6.

Purpose. The purpose of this section is to establish an equitable procedure for the granting of Class B licenses which are limited in number pursuant to a quota system established and controlled by state statute. As such, the following procedures are to be implemented when granting an available license. The procedures in Subsection B below shall not apply to routine renewals nor to applications involving the sale of a business to which a license is then presently issued as described in § 292-5.

As of January 1, 1997, the State Department of Revenue has permitted the City to grant eight Class B licenses under the following formula:

Six based upon the 1939 quota law found in § 125.51(4), Wis. Stats.

Two based on the provisions of law that permitted the operation of beer bars from 1973 to 1979.

When the number of Class B licenses granted by the City falls under the quota noted in Subsection B above or is reduced in any fashion, the Clerk shall notify the Common Council of such circumstances. The Council shalt acknowledge the report of the Clerk on the number of Class B licenses granted by motion in its official record. This report will be published in the normal manner as part of the Council proceedings in the City's official newspaper in the usual manner.

Applications for available Class B licenses shall include the following information:

A State of Wisconsin Alcoholic Beverage License Application (State Form AT-106 or AT-115).

All other supplementary information that may be required by the state, including but not limited to:

Auxiliary Questionnaire (State Form At-103).

Schedule for Appointment of Agent by Corporation/Nonprofit Organization or Limited Liability Company (State Form AT-104).

All supplementary license information that may be required by the Common Council.

One of the following that demonstrates ownership of a properly zoned building or a parcel of real estate upon which a building can be constructed:

A lease on a building which is properly zoned to house the venture.

An option to purchase property which is properly zoned for the venture.

(c)

An option to lease property which is properly zoned for the venture.

§ 292-7 Suspension, revocation and nonrenewal of licenses.

All other information that may be required by the Common Council to determine whether the premises is properly zoned for the purpose intended and demonstrates that the premises meets all state, county and municipal building codes.

Failure of a licensee to supply any of the information required in Subsection D above may result in refusal to grant or transfer or renew a license pursuant to this section.

The Common Council shall determine if the establishment is in harmony with and complementary to the surrounding neighborhood or other proposed or adopted plans for community development.

Intent. No license granted hereunder shall be suspended, revoked, or not renewed without first affording the license holder an opportunity for a public evidentiary hearing.

Hearing form. The Common Council shall conduct any hearing or prehearing as described in this section.

Grounds. Licenses may be the subject of hearings as described in this section for any violation of Ch. 125, Wis. Stats., or the City of Oconto Falls Code, including but not limited to the following:

The running of a disorderly house as proscribed by § 125.12, Wis. Stats.

Licensee or operator directly interfering with police officers or otherwise violating the law in a manner substantially related to the operation of the licensed facility.

Any violation of any health code provision of this Code dealing with public health, welfare, and safety.

Any building, electrical, or plumbing code violation of this Code dealing with public health, welfare, and safety.

Any liquor-related violation involving juveniles as proscribed by Ch. 125, Wis. Stats. (specifically § 125.07, Wis. Stats.).

Any violation of general statutory restrictions pertaining to licensed premises and operations as proscribed by Ch. 125, Wis. Stats.

(7)

Any failure to maintain the qualifications required of all license holders as detailed by § 125.04, Wis. Stats., and as modified by the conditions of this Code or as a condition of granting or renewing a license.

(8)

Any violation of any restriction, stipulation, or agreement made by the licensee and the Common Council of the City of Oconto Falls.

Prehearing. Notwithstanding the provisions of § 125.12, Wis. Stats., or Subsection F of this section, any state or City committee, board, commission, authority, municipal officer or agency may, by communication to the Ordinance Committee, bring allegations of any violation of state liquor laws or any violation listed above before the Ordinance Committee for prehearing as an item in the regular meeting of said Committee. Conduct of such prehearing shall be informal, allowing the Committee an opportunity to hear the allegations and permitting the accused licensee to respond if he so wishes. The purpose of such prehearing will be to determine if the allegations are of such magnitude, importance, or otherwise of such nature to require a formal evidentiary hearing as provided by Subsection E below. After hearing the allegations and any response, the Committee shall determine whether to recommend to the Common Council that a formal evidentiary hearing be held; a letter of warning to become part of the licensee's permanent file be issued; or no action be taken. In determining the appropriate course of action, the Committee shall consider:

The licensee's history of convictions, charges, or complaints and the relationship of such history to licensed activities.

The length of time since such conviction, charge, or complaint.

The circumstances and seriousness surrounding the complaint(s) before the Committee.

The degree of personal rehabilitation since the last incident involving the licensee.

The community's standards or interests to be protected.

The need for formal hearing to clarify the facts in regard to factors listed above.

Council-ordered hearing. If a prehearing is conducted, as provided in Subsection D, and a formal evidentiary hearing is ordered by the Common Council by recommendation of the Ordinance Committee, the City Attorney's office shall draft a formal complaint and see to it that such complaint is served with a summons as provided in Subsection F below. The complaint may include any alleged violation of state or municipal alcoholic beverage law occurring in the preceding license year which was not the subject of a hearing under this section. Such complaint shall be issued in the name of the complainant and shall state specific violations complained of and may include any other violations involving the licensee in the past two license years which have not been the subject of a formal hearing. The complaint shall be served with a summons as provided in Subsection F below. Any formal evidentiary hearing shall be held in conformity with the procedures in Subsection F below.

Hearing procedures.

Upon a verified complied filed with the City Clerk that any person licensed hereunder has violated the provisions of Ch. 125, Wis. Stats., the criminal code of the State of Wisconsin, or any provision of the Oconto Falls Code, including those listed in Subsection C above, or any other provision of this chapter or Ch. 125, Wis. Stats., the Common Council shall issue a summons signed by the Clerk directed to any peace officer or constable therein commanding the person so complained of to appear before the Ordinance Committee on a day and at a place named in such summons, not less than three days nor more than 10 days from its date, and show cause why the license should not be suspended, revoked, or not renewed. Such summons shall be served at least three days before the time in which such person is commanded to appear and shall be served as provided in Ch. 801, Wis. Stats.

The licensee may be represented by counsel, present and examine witnesses, and have prepared at the licensee's expense a transcript of the hearing.

The provisions of § 125.12, Wis. Stats., shall govern the conduct of the hearing hereunder.

Recommendations. At the conclusion of the evidentiary hearing, which may be held in open or executive session depending on the nature of the evidence to be produced, the Committee, following deliberation in open or executive session, shall consider the factors listed at Subsection D above and shall thereupon make specific findings of fact and conclusions of law and forward one or more of the following recommendations to the Common Council:

No action should be taken due to insufficiency of the evidence.

No action should be taken at present because an accommodation on the part of the license holder has been reached.

A warning letter should be issued and the original thereof retained in the licensee's file kept in the office of the City Clerk.

A suspension of not less than 10 days nor more than 90 days should be imposed.

The license should be revoked, not renewed, or invalidated.

§ 292-8 General license conditions and restrictions.

The licensee should be placed on probation, and the Committee shall set conditions therefor.

(7)

The complaint should be tabled pending disposition of pending criminal or Municipal Court code violations, at which time the matter will be considered and a recommendation made.

Council action. The Common Council shall consider and take action on the recommendation of the Ordinance Committee within 45 days after the Committee adjourns the hearing. The Common Council may adopt, reject, modify, or remand the recommendation to the Committee for further deliberations.

Appeal. Appeal from the decision of the Common Council shall be to the Circuit Court for Oconto County.

Any license granted pursuant to this chapter to sell intoxicating liquor or fermented malt beverages shall be subject to the regulations, conditions, and restrictions imposed by Ch. 125, Wis. Stats. In addition, the City of Oconto Falls, pursuant to the authority of § 125.10, Wis. Stats., adopts certain other restrictions and requirements specifically by this section.

Consent of entry. Every applicant procuring a license thereby consents to the entry of police or other duly authorized representatives of the City at all reasonable hours for the purpose of inspection and search, and consents to the removal from said premises of all articles there had in violation of City ordinances or state laws, and consents to the introduction of such things and articles in evidence in any prosecution that may be brought for such offenses.

Location. No retail "Class A," "Class B," Class "A" or Class "B" license shall be issued for premises the main entrance of which is less than 300 feet from the main entrance of any established public school, parochial school, hospital, or church. Such distance shall be measured by the shortest route along the highway from the closest point of the main entrance of such school, church, or hospital to the main entrance to such premises. This subsection shall not apply to any premises licensed as such prior to the occupation of real property within 300 feet thereof by any school building, hospital building, or church building.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Health and sanitary requirements. A retail "Class B" or Class "B" license shall not be issued for any premises which does not conform to the sanitary, safety, and health requirements of the State Department of Commerce and its successor agency pertaining to buildings and plumbing, to the rules and regulations of the State Department of Health and Family Services applicable to restaurants, and to all such ordinances and regulations adopted by the City. Should a licensed premises fall below such standards, the license may be revoked or suspended pursuant to § 292-7.[2]

[2]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Improper exhibitions. It shall be unlawful for any person to perform or for any license or manager or agent of the license to permit any employee, entertainer or patron to engage in any live act, demonstration, dance or exhibition on the licensed premises which:

Exposes his or her genitals, pubic hair, buttocks, perineum, anal region or pubic hair region;

Exposes any device, custom or covering which gives the appearance of or simulates genitals, pubic hair, buttocks, perineum, anal region or pubic hair region;

Exposes any portion of the female breast at or below the areola thereof; or

Engages in or simulates sexual intercourse and/or any sexual contact, including the touching of any portion of the female breast or the male and/or female genitals.

Delinquent payment. The City Clerk shall not issue a license to any applicant occupying a premises for which real or personal property taxes or special assessments are delinquent and unpaid or to an applicant otherwise indebted to the City, the City's utilities, or the county, state or federal government unless such applicant shall make arrangements satisfactory to the Clerk to pay such debts not less than 30 days before the expiration of the license.

Clubs. No club shall sell or give away any intoxicating liquors except to bone fide members and guests invited by members.

Closing hours. No premises for which an alcohol beverage license has been issued shall remain open for the sale of alcohol beverages:

If a wholesale license, between 5:00 p.m. and 8:00 a.m. (local time), except on Saturday when the closing hour shall be 9:00 p.m. (local time).

If a retail "Class A" license, between 9:00 p.m. and 8:00 a.m.[3]

[3]

Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

If a retail Class "A" license, between 12:00 midnight and 8:00 a.m. (local time).

If a retail "Class B," Class "B" or "Class C" license, between 2:00 a.m. and 6:00 a.m., Monday through Friday, and between 2:30 a.m. and 6:00 a.m. on Saturday and Sunday, except that:[4]

No package, container or bottle sales may be made after 12:00 midnight (local time).

On January 1, "Class B" and Class "B" licensed premises are not required to close, but the prohibition on sales for off-premises consumption after 12:00 midnight remains in effect.

(c)

On the Sunday that daylight saving time begins as specified in § 175.095(2), Wis. Stats., no premises may remain open between 3:30 a.m. and 6 a.m.

[4]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Hotels and restaurants whose principal business is the furnishing of food or lodging to patrons may remain open for the conduct of their regular business, but no intoxicating liquors, wines or fermented beverages shall be sold, dispensed, or served during prohibited hours. In determining whether or not an establishment is open for a purpose other then selling alcoholic beverages, the burden shall be on the licensee.

No person shall loiter in a licensed establishment after closing hours.

Disorderly house.

Duty to maintain order. A licensee under this chapter shall have a duty to maintain order and peace in and around the licensed premises. This duty shall extend to and include any adjacent parking lot or facility adjacent to and servicing the licensed premises.

Police power to close licensed premises.

Police Department. The Police Department may order any disorderly house closed until 8:00 a.m. the following day when, in the reasonable view of the Department, the licensee or person in charge failed to maintain peace and order as per Subsection H(1) of this section or the Department otherwise believes that the public peace and safety are served by such closing by reason of threat to the bodily security, property, or peaceful repose of any member of the general public.

The Building Inspector, Fire Chief, or Health Officer may request the Police Chief to order the temporary suspension of a restaurant and beverage license where an imminent health hazard exists on licensed premises pending a hearing pursuant to § 292-7. Such closing may act as grounds for suspension or revocation of a liquor license privilege under this chapter.

Outdoor premises.

Retail licensee. A retail licensee may include in the license an outdoor area immediately adjacent to the licensed premises by describing the outdoor premises in detail on the license application. Such premises shall be reviewed by the Ordinance Committee and granted in the same manner as any other retail license.

Licensee responsibility. Any outdoor area licensed is subject to all regulations of this chapter and Ch. 125, Wis. Stats.

Nonlicensed outdoor area. An unlicensed area adjacent to licensed premises which is used in conjunction with the licensed premises shall not be used for the purpose of serving or consuming alcoholic beverages.

The licensee shall maintain peace and order over any outdoor area adjacent to and used in conjunction with a licensed premises, whether or not said outdoor area is licensed. In the event that the Police Department receives two complaints concerning noise emanating from such outdoor area, or a complaint concerning disorderly activity in the outdoor area, or any agent or representative of the Police Department personally observes disorderly or unduly loud activity, the Police Department shall make all deliberate effort to contact the person in charge of the licensed premises and inform him/her of the complaint(s). If the activity complained of continues, the licensee is acting in violation of this section. Continued violations of this section may result in the Police Department exercising its authority under Subsection H(2) of this section and ordering any outdoor premises, or the entire licensed area, closed in the public interest. In exercising its authority under this subsection, the Police Department shall consider:

Time of day.

Ability of the licensee or an agent to control the situation.

(c)

The number of complaints registered.

(d)

Any previous warnings.

(e)

Presence of unruly or disorderly activity and the ability of the licensee and/or Police Department to control such activity.

(f)

Cooperation of the licensee.

(g)

The amount of noise emanating from the area.

(h)

The proximity of residences, places of business, or other members of the public to the complained of activity.

(i)

The likelihood of bodily harm or property damage to the licensee, any members of the general public, or public property.

(j)

Amount or likelihood of disturbance of public peace and repose.

Restrictions on use of picnic license. No person holding a picnic license, as defined in § 292-1, shall permit the sale of fermented malt beverages unless a person holding an operator's license, also issued under this chapter, is in direct supervision and control of the area(s) in which the sale of fermented malt beverages is occurring. Where two areas of sale are used, at least one licensed operator must be present and in supervision of each area of sale.[5]

[5]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Off-premises sales. No licensee shall sell or offer to sell or serve any fermented malt beverage or intoxicating liquor upon any public street, alley, sidewalk or other public way or area open to the public in the City of Oconto Falls without specific authorization of the Common Council.[6]

[6]

Editor's Note: Original § 71.08(12), Consumption on premises, which immediately followed this subsection, has been moved to § 365-15 of this Code at the request of the City.

Residential locations. No license shall be issued to any person for the purpose of possessing, distributing, vending, selling, serving, or offering to keep for sale at retail or wholesale, deal or traffic in, or, for the purpose of evading any law or ordinance, give away any intoxicating liquor or fermented malt beverage, or cause the same to be done, in any dwelling house, flat or residential apartment or accessory building located on the same lot as a dwelling house, flat or residential apartment.

Revocation of license. Whenever any license has been revoked:

At least 60 days from the time of such revocation shall elapse before another license shall be granted for the same premises; and

Twelve months shall elapse before another license shall be granted to the person whose license was revoked.

Voting stock. No license shall be granted to any corporation, cooperative, partnership, or organization when more than 50% of the voting stock interest, legal interest, or beneficial interest is held by any person or persons not eligible for a license under state statutes or municipal ordinance.

Residency. No license hereunder shall be granted to any person under 18 years of age, and the applicant must be of good moral character and a resident of the State of Wisconsin for 90 continuous days prior to the date of filing application.

Convictions.

No retail "Class A," "Class B," Class "A," Class "B" or "Class C" license shall be issued to any person who has been convicted of violation of any federal or state liquor or fermented malt beverage law or the provisions of this chapter during one year prior to such application. A conviction of an individual controlling more then 50% of the voting stock interest, legal interest, or beneficial interest of a corporation, cooperative, partnership, or other organization shall make the corporation, cooperative, partnership, or other organization ineligible for such a license for one year.[7]

[7]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

No license shall be issued to any person who has been convicted of any offense against this state, punishable by imprisonment in the state prison, unless the person so committed has been duly pardoned.

Violations by agents and employees. A violation of this section by an authorized agent or employee of a licensee shall constitute a violation by the licensee.

§ 292-9 Operator's license.

Application.

Application for an operator's license shall be made to the City Clerk on a form supplied by the City Clerk's office. All applications shall be completed and submitted to the City Clerk at least seven days in advance of a regular Common Council meeting.

All applications shall be accurately completed in their entirety or shall be rendered void by the City Clerk.

Upon receipt of an application, the City Clerk shall forward the application to the Police Department for verification of the veracity of the application as well as research into the qualifications of the applicant in accordance with the requirements of § 125.04, Wis. Stats.

The license fee set out in § 292-4 shall be submitted with the application.

No operator's license shall be issued prior to a regular meeting of the Common Council or a special meeting of the Common Council for such purpose.

The operator's license may be granted by the Common Council without further review in the event that the Police Department approves of the application.

(7)

The license shall be issued for a period of one or two license years.

Provisional license. The City Clerk shall be authorized to issue a provisional operator's license upon receipt of the regular operator's license application. A provisional license shall expire within 30 days of issuance. The requirements and provisions of § 125.17, Wis. Stats., relating to a provisional operator's license, except for those addressing the length of validity for a provisional license, are hereby adopted and made part of this chapter as if set forth fully herein. Future amendments are also adopted prospectively, incorporated herein, and are intended to become a part of this chapter.

Denial of operator's license.

If the Police Department determines that any portion of the application is false or that the applicant, subject to § 111.322, Wis. Stats., does not possess the qualifications under § 125.04, Wis. Stats., the license may be denied by the Police Department.

The Clerk's office shall notify any applicant so denied.

Any applicant whose application has been denied may appeal such determination to the Ordinance Committee. Upon appeal, the Ordinance Committee shall, subject to § 111.322, Wis. Stats., determine if the applicant possesses the qualifications of § 125.04, Wis. Stats. After making such determination, the Ordinance Committee shall forward its recommendation to the Common Council.

Issuance of license. The City Clerk shall not issue any operator's license until all the requirements above have been satisfied.

§ 292-10 Dry bar regulations.

Notification. Any licensee wishing to operate as a dry bar shall notify the City Police Department of such operation a minimum of 24 hours in advance of the commencement of such operation. The notification shall include information as to any live band or disc jockey to be used during the dry bar operation.

Removal of alcohol. During the operation of the dry bar, all liquor, wine, or fermented malt beverages must be removed from the room where the operations are conducted in advance of the dry bar operations.

Closing time. While operating as a dry bar, the closing time shall be 10:00 p.m. (local time) Sunday through Thursday and 12:00 midnight (local time) Friday and Saturday.

Possession of alcohol. Any person in the possession of liquor, wine or fermented melt beverage while entering the premises during the operation of a dry bar shall be immediately removed from the premises and readmitted only if he/she no longer is in possession of said alcoholic beverages.

§ 292-11 Violations and penalties.

Any person who violates §§ 292-8 and 292-10 of this chapter shall, upon conviction thereof, be subject to a penalty as provided in § 1-9 of this Code.[1]