Cnty. of Fond Du Lac v. Muche
| Decision Date | 26 October 2016 |
| Docket Number | No. 2015AP2223.,2015AP2223. |
| Citation | 888 N.W.2d 12,372 Wis.2d 403 |
| Parties | COUNTY OF FOND DU LAC, Plaintiff–Respondent, v. Stuart D. MUCHE, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Alexander L. Ullenberg and Kevin M. Lastres of Ullenberg Law Offices SC, Fond du Lac.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Curtis A. Borsheim, assistant district attorney of Fond du Lac.
A nonparty brief was filed by Andrew T. Phillips and Patrick C. Henneger of von Briesen & Roper, S.C. of Milwaukee, for Wisconsin Counties Association.
Before NEUBAUER, C.J., REILLY, P.J., and HAGEDORN, J.
¶ 1 This appeal addresses whether Fond du Lac County's social host ordinance is in strict conformity with WIS. STAT. § 125.07(1), which establishes restrictions relating to alcohol and underage persons. We hold that it is not. We reverse and remand for dismissal of the forfeiture imposed upon Stuart D. Muche.
¶ 2 Muche was found to have violated the County's social host ordinance, and the parties stipulated to the following facts. On June 20, 2015, Muche hosted a party for friends and family at his home in Van Dyne, Wisconsin, located in Fond du Lac County, to celebrate his son's high school graduation. Alcoholic beverages were served at the party. Toward the end of the evening, at 11:02 p.m., "persons under the age of 21 ... who were not invited by Mr. Muche, joined the gathering." Muche had reason to believe that these underage individuals brought beer to the party and "intended to or were consuming it." Muche confiscated their keys shortly before county sheriff's deputies arrived on the scene. Muche admitted that he did nothing to stop the underage individuals from drinking the alcohol they brought to the party, but he maintains that he did not host an underage drinking party. Muche was cited for violating Fond du Lac County Ordinance § 6–5, the social host ordinance.
¶ 3 The social host ordinance provides:
It is unlawful for any person(s) to host or allow [2 ]an event or gathering [3 ]at any residence, premises or on any other private or public property [4 ]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).
Fond du Lac County, Wis., Social Host Ordinance § 6–5(d) (Mar. 20, 2012). An individual may also be held responsible for violating the ordinance "if the person intentionally aids, advises, hires, counsels or conspires with or otherwise procures another to commit the prohibited act" or even if the individual who hosts the event or gathering is not present at the time.5 Ord. § 6–5(d)(1)–(2).
¶ 4 Muche filed a motion to dismiss the citation, arguing that Wisconsin counties cannot enact their own rules proscribing conduct related to underage alcohol consumption and, further, that any ordinance must strictly conform to state statute WIS. STAT. § 125.07(1).
¶ 5 The circuit court denied Muche's motion, noting that the court was not convinced that the legislature's purpose under WIS. STAT. ch. 125 was to completely occupy the regulatory field of alcoholic beverages. The court questioned whether counties actually have no authority to pass further regulation. The court found that Muche violated the social host ordinance and imposed a $1000 civil forfeiture. Muche appeals.
¶ 6 The issue presented is one of statutory interpretation: is Fond du Lac County Ordinance § 6–5 in strict conformity with WIS. STAT. § 125.07(1) ? Interpretation and application of statutes are questions of law that we review de novo. Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶ 36, 319 Wis.2d 1, 768 N.W.2d 615.
¶ 7 Our legislature has declared that the regulation of alcoholic beverages is a matter of statewide concern that requires "uniform statewide regulation."
WIS. STAT. § 125.01. In Wisconsin, a county, as a "creature[ ] of the Legislature," has only those powers that the State chooses to delegate. State ex rel. Teunas v. County of Kenosha, 142 Wis.2d 498, 504, 418 N.W.2d 833 (1988) (citation omitted). Wisconsin counties are granted broad statutory home rule power6 under WIS. STAT. § 59.03, which provides that "[e]very county may exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county." (Emphasis added.)
¶ 8 The County agrees that the subject of alcoholic beverages is a statewide concern,7 and the parties agree that WIS. STAT. § 125.10(2) grants counties the power to enact legislation in concert with WIS. STAT. § 125.07(1) under certain circumstances. Specifically, § 125.10(2) states: "A municipality or a county may enact an ordinance regulating conduct regulated by [§ ] 125.07(1) or (4)(a), (b) or (bm)... only if it strictly conforms to the statutory subsection." (Emphasis added.) A county has the authority to enact an ordinance regarding underage drinking so long as it strictly conforms to the state statute. Thus, the only issue before us is whether the County's social host ordinance strictly conforms to § 125.07(1).
¶ 9 When a statute addressing an issue of statewide concern requires strict conformity, local governments cannot enact ordinances that go beyond the scope of the state regulation nor can the penalty accompanying the ordinance exceed the fine or civil forfeiture imposed by the state statute. In Janesville v. Walker, 50 Wis.2d 35, 183 N.W.2d 158 (1971), our supreme court held that a city ordinance was invalid because it prohibited an act allowed under a state statute requiring strict conformity. The statute prohibited knowing possession of any intoxicating liquor or fermented malt beverage by a person under the age of twenty-one years when there is a minor passenger under the age of eighteen years in the car, whereas the ordinance prohibited simple possession of a fermented malt beverage by a person under or over the age of twenty-one years when there is a passenger under the age of twenty-one years in the car. Id. at 37–39, 183 N.W.2d 158. Our supreme court concluded that, pursuant to the statutory strict conformity requirement, "while a traffic ordinance may be less severe in coverage or penalty than a state statute, it cannot be more severe or go beyond the statute and prohibit an act therein allowed or increase the amount of a penalty." Id. at 39, 183 N.W.2d 158.
¶ 10 In U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis.2d 333, 336–37, 544 N.W.2d 589 (Ct.App.1996), the issue involved an ordinance aimed at restricting teenagers' access to tobacco products by banning self-service displays. The court found that the sale of tobacco products was of statewide concern, and it applied the strict conformity test found within the applicable state statutes. Id. at 341–42, 346, 544 N.W.2d 589. The court declined "to assign talismanic significance to the ‘strict conformity’ language and adopt a per se rule that this term always preempts local rulemaking power." Id. at 348, 544 N.W.2d 589. It determined, however, that "the ‘strictly conforms' language within the tobacco regulations must be read as withdrawing municipalities' ability to act outside of state mandates." Id. at 349, 544 N.W.2d 589. The comprehensive scheme and strict conformity language indicated the legislature's intent to preclude local rulemaking authority when the state statute was silent, not enable it. Id. at 348–50, 544 N.W.2d 589.
¶ 11 The legislature carefully crafted the restrictions against underage drinking to address various scenarios. As relevant here, the statute provides:
¶ 12 The County bases its argument that its social host ordinance is in strict conformity with the state statute on the only provision that explicitly penalizes knowledge and inaction, WIS. STAT. § 125.07(1)(a)3.
¶ 13 WISCONSIN STAT. § 125.07(1)(a)3. states in pertinent part: "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 WIS. STAT. § 125.02(14m) as "the area described in a license or permit."
¶ 14 Muche contends that the defined term limits WIS. STAT. § 125.07(1)(a)3. to areas described in a license or permit—not a private residence.
¶ 15 The Wisconsin Counties Association (WCA), which filed an amicus curiae brief in this case, counters that "premises" means "property," and, thus, the social host ordinance is in conformity with WIS. STAT. § 125.07(1)(a)3. Specifically, the WCA argues that the word "premises" as it is used in subsec. (1)(a) 3. simply means "property owned by the adult or under the adult's control."
¶ 16 Although the supreme...
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