AB127: Bill Text

AB127,,1 2023 ASSEMBLY BILL 127

March 24, 2023 - Introduced by Representatives Duchow, Myers, J. Anderson, Bare, Behnke, Clancy, Hong, Joers, Kitchens, Macco, Madison, Rodriguez, Schmidt, Spiros, Stubbs, Zimmerman and Haywood, cosponsored by Senators Stroebel, Roys, Ballweg, Bradley, Feyen and Nass. Referred to Committee on State Affairs.

AB127,,2 An Act to renumber and amend 125.25 (3), 125.26 (3), 125.272, 125.51 (2) (c), 125.51 (3) (d) and 125.51 (6); to amend 125.02 (20), 125.26 (2u), 125.26 (2v) (a), 125.26 (2w), 125.26 (2x), 125.51 (3) (bu), 125.51 (3) (bv) 1., 125.51 (3) (bw), 125.51 (3) (bx) and 139.25 (9); and to create 125.02 (20k), 125.07 (1) (b) 7., 125.07 (2) (c), 125.10 (6), 125.20, 125.272 (2) and (3), 125.51 (6) (b) and (c) and 139.11 (1m) of the statutes; relating to: the face-to-face requirement for retail sales of alcohol beverages and remote orders for the sale of alcohol beverages to be delivered or picked up on retail licensed premises.

AB127,,3 Analysis by the Legislative Reference Bureau

This bill allows most alcohol beverage retailers to make online or telephone sales of alcohol beverages to be picked up by the customer at parking spaces that are part of the retail licensed premises or to be delivered by the retailer or a delivery service. The bill also prohibits municipalities from imposing by ordinance additional restrictions on these sales for pickup and creates an alcohol delivery permit issued by the Department of Revenue.

Current law

Under current law, with limited exceptions, no person may sell alcohol beverages to a consumer unless the seller possesses a license or permit authorizing the sale. A Class “B” license authorizes the retail sale of fermented malt beverages (beer) for consumption on or off the premises. Except when issued to a winery, a “Class B” license authorizes the retail sale of intoxicating liquor, which includes wine and distilled spirits, for consumption on the licensed premises and, subject to certain restrictions, the retail sale of intoxicating liquor for consumption off the licensed premises. Class “A” and “Class A” licenses authorize the retail sale of, respectively, beer and intoxicating liquor in original packages for consumption off the licensed premises. Each of these retail licenses is issued by a municipality.

Also under current law, a retail license authorizes only face-to-face sales of alcohol beverages to consumers at the licensed premises. After the sale is made on the licensed premises, if the alcohol beverages are sold for off-premises consumption, the retailer may deliver the alcohol beverages to a location designated by the consumer. The sale to the consumer on the licensed premises is governed by certain requirements, including that the purchaser be of legal drinking age, that the sale be made only during certain hours, and that the licensed premises be supervised by a person holding an operator’s (bartender’s) license. The licensed premises on which the sale occurs must be particularly described in the retail license issued by the municipality, and each applicant for a retail license must identify in the application the premises where alcohol beverages will be sold.

Delivery

This bill allows a Class “A,” “Class A,” Class “B,” or “Class B” licensed retailer to process and fill an online or telephone order for the sale and delivery of alcohol beverages (remote delivery order) if all of the following apply: 1) the products ordered are delivered to the customer by the retailer, by a delivery service under common ownership with the retailer, or by a delivery service that is independent of the retailer and derives less than 50 percent of its annual revenues associated with food and beverage delivery from the delivery of alcohol beverages (third-party delivery service); 2) the retailer, delivery service under common ownership with the retailer, or third-party delivery service making delivery holds an alcohol delivery permit issued by DOR (discussed further below); 3) the products delivered are sold in original, unopened packages or containers, except that a “Class B” licensed retailer may deliver or have delivered intoxicating liquor sold in tamper-evident, licensee-sealed containers (commonly known as cocktails-to-go); 4) full payment for the order is made at the time the order is placed, although a delivery tip is permitted; 5) at the time the order is placed, the customer asserts that the customer is at least 21 years of age and not intoxicated; 6) delivery is completed during hours in which the retailer is allowed to make sales for off-premises consumption; and 7) at the time of delivery and prior to transferring possession of the alcohol beverages to the customer, the individual making delivery examines the customer’s identification, verifies visually and by using electronic scanning technology that the customer is at least 21 years of age, and creates a record of this age verification. Age verification records must be retained by the retailer that sold the alcohol beverages for three years. An individual may not deliver alcohol beverages to a customer unless the individual is at least 21 years of age and has successfully completed a responsible beverage server training course or comparable course. Alcohol beverages may not be delivered to a person who is less than 21 years of age or visibly intoxicated. If alcohol beverages are delivered by a third-party delivery service or a delivery service under common ownership with the retailer to an underage person, the delivery service is liable for the violation, and the retailer is not liable if the customer asserted when placing the order that he or she is at least age 21 and not intoxicated.

The bill also prohibits a retailer from 1) entering into an agreement with a producer or wholesaler restricting availability of, or giving availability preferences for, alcohol beverage products offered for sale and delivery by means of remote delivery orders; and 2) charging different prices for these products in comparison with the prices of the same products sold in a face-to-face transaction on the licensed premises, although a retailer may charge an additional fee for delivery.

The bill creates an alcohol delivery permit issued by DOR to retailers, delivery services under common ownership with retailers, and third-party delivery services. The permit authorizes the permittee to deliver alcohol beverages in connection with remote delivery orders. A permit is valid for one year and has an annual fee of $150 for a retailer and $300 for a third-party delivery service or delivery service under common ownership with a retailer.

Pickup

This bill provides that, if a Class “A,” “Class A,” Class “B,” or “Class B” licensed retailer receives a remote pickup order for alcohol beverages that the customer will pick up at a parking space that is part of the retailer’s licensed premises, the sale of alcohol beverages occurs at the time the customer takes possession of the alcohol beverages at the parking space, regardless of when the customer makes payment. The bill defines “remote pickup order” as an order for the sale of alcohol beverages in original unopened packages or containers, to be picked up at the retailer’s premises, that is placed by telephone or Internet by a customer who asserts at the time of placing the order that he or she is at least 21 years of age. A Class “B” or “Class B” licensee may sell alcohol beverages by remote pickup order only for consumption off the licensed premises, and the customer may take possession of the alcohol beverages only during hours in which the licensee is allowed to make sales for off-premises consumption. The bill also specifies that licensed premises identified in the retail license may include parking spaces associated with a structure described as licensed premises, even if the parking spaces are not contiguous with the remainder of the licensed premises. The bill also prohibits municipalities from adopting ordinances that impose additional restrictions on alcohol beverage sales made by these retailers pursuant to remote pickup orders.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

AB127,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB127,1 Section 1. 125.02 (20) of the statutes is amended to read:

AB127,,6 125.02 (20) “Sell”, Subject to ss. 125.272 (2) (h) 1. and (3) (b) and (c) and 125.51 (6) (b) 8. a. and (c) 2. and 3., “sell,” “sold”,,” “sale,” or “selling” means 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.

AB127,2 Section 2. 125.02 (20k) of the statutes is created to read:

AB127,,8 125.02 (20k) “Third-party delivery service” means a delivery service that is independent of a retail licensee and that derives less than 50 percent of its annual revenues associated with food and beverage delivery from the delivery of alcohol beverages.

AB127,3 Section 3. 125.07 (1) (b) 7. of the statutes is created to read:

AB127,,10 125.07 (1) (b) 7. If a licensee processes and fills a remote delivery order under s. 125.272 (2) or 125.51 (6) (b) in reliance on the customer’s assertion that the customer has attained the legal drinking age and delivery is made by a 3rd-party delivery service or a delivery service under common ownership with the licensee, the licensee is not subject to any penalty under this paragraph and the only penalty applicable if the alcohol beverages are delivered to an underage person is that specified for the 3rd-party delivery service or delivery service under common ownership with the licensee under ss. 125.272 (2) (i) 1. and 125.51 (6) (b) 9. a.

AB127,4 Section 4. 125.07 (2) (c) of the statutes is created to read:

AB127,,12 125.07 (2) (c) Exception for certain delivered alcohol beverages. If a licensee processes and fills a remote delivery order under s. 125.272 (2) or 125.51 (6) (b) in reliance on the customer’s assertion that the customer is not intoxicated, the licensee is not subject to any penalty under par. (b) unless the licensee delivers the alcohol beverages and violates s. 125.272 (2) (d) or 125.51 (6) (b) 4. at the time of delivery.

AB127,5 Section 5. 125.10 (6) of the statutes is created to read:

AB127,,14 125.10 (6) Remote pickup orders of alcohol beverages. (a) Notwithstanding sub. (1), and subject to par. (b), a municipality may not prescribe additional regulations for, or impose additional restrictions relating to, sales of alcohol beverages made pursuant to remote pickup order, as defined in s. 125.272 (3) (a), by Class “A”, “Class A”, Class “B”, or “Class B” licensees. An ordinance that is inconsistent with this paragraph may not be enforced.

AB127,,15 (b) Paragraph (a) does not limit a municipality’s authority to adopt ordinances of general application that apply to all sales by a retail licensee, including ordinances adopted under ss. 125.32 (3) (d) and 125.68 (4) (b) and (c) 3.

AB127,6 Section 6. 125.20 of the statutes is created to read:

AB127,,17 125.20 Alcohol delivery permits. (1) The department shall issue alcohol delivery permits to retail licensees, delivery services under common ownership with retail licensees, and 3rd-party delivery services that authorize the permittee to deliver alcohol beverages in connection with remote delivery orders under ss. 125.272 (2) and 125.51 (6) (b).

AB127,,18 (2) An alcohol delivery permit may be issued only to a person who holds a valid certificate issued under s. 73.03 (50). For purposes of s. 125.04 (6) (a) 2., the appointment of an agent for a permittee under this section shall vest authority in the agent with respect to all delivery operations, not limited to activities occurring on the premises covered by the permit.

AB127,,19 (3) A permit issued under this section shall be valid for one year. The annual fee for initial issuance or renewal of the permit shall be $150 for an applicant that is a retail licensee and $300 for an applicant that is a 3rd-party delivery service or a delivery service under common ownership with a retail licensee. The fee shall be paid at the time of application for initial issuance or renewal of the permit and shall be refunded to the applicant if the application is denied.

AB127,7 Section 7. 125.25 (3) of the statutes is renumbered 125.25 (3) (a) and amended to read:

AB127,,21 125.25 (3) (a) Class “A” licenses shall particularly describe the premises for which issued and. The premises for a Class “A” license may include, if described in the license application as provided in s. 125.04 (3) (a) 3., parking spaces associated with any structure described as licensed premises in the license application, even if the parking spaces are not contiguous with the remainder of the Class “A” licensed premises.

AB127,,22 (b) Class “A” licenses are not transferable, except under s. 125.04 (12).

AB127,,23 (c) A Class “A” license is subject to revocation for violation of any of the terms or provisions thereof.

AB127,8 Section 8. 125.26 (2u) of the statutes is amended to read:

AB127,,25 125.26 (2u) Notwithstanding ss. 125.04 (3) (a) 3. and (9) and 125.09 (1), in addition to the authorization specified in sub. (1), a Class “B” license issued under this section to a caterer also authorizes the caterer to provide fermented malt beverages, including their retail sale, at the National Railroad Museum in Green Bay during special events held at this museum. Notwithstanding sub. (1), a caterer may provide fermented malt beverages under this subsection at any location at the National Railroad Museum even though the National Railroad Museum is not part of the caterer’s licensed premises, as described under sub. (3) (a) in the caterer’s Class “B” license, and even if the National Railroad Museum is not located within the municipality that issued the caterer’s Class “B” license. A caterer that provides fermented malt beverages under this subsection is subject to s. 125.32 (2) as if the fermented malt beverages were provided on the caterer’s Class “B” licensed premises. This subsection does not authorize the National Railroad Museum to sell fermented malt beverages at retail or to procure or stock fermented malt beverages for purposes of retail sale. This subsection does not apply if, at any time, the National Railroad Museum holds a Class “B” license.

AB127,9 Section 9. 125.26 (2v) (a) of the statutes is amended to read:

AB127,,27 125.26 (2v) (a) Subject to pars. (b) and (c), and notwithstanding ss. 125.04 (3) (a) 3. and (9), 125.09 (1), and 125.32 (6) (a), in addition to the authorization specified in sub. (1), a Class “B” license issued under this section to a caterer also authorizes the caterer to provide fermented malt beverages, including their retail sale, on racetrack grounds, as defined in s. 125.27 (5) (a). Subject to pars. (b) and (c), and notwithstanding sub. (1) and s. 125.32 (6) (a), a caterer may provide fermented malt beverages under this paragraph at any location on racetrack grounds even though the racetrack grounds are not part of the caterer’s licensed premises, as described under sub. (3) (a) in the caterer’s Class “B” license, and even if the racetrack grounds are not located within the municipality that issued the caterer’s Class “B” license. A caterer that provides fermented malt beverages under this paragraph is subject to s. 125.32 (2) and (3) as if the fermented malt beverages were provided on the caterer’s Class “B” licensed premises.

AB127,10 Section 10. 125.26 (2w) of the statutes is amended to read:

AB127,,29 125.26 (2w) Notwithstanding ss. 125.04 (3) (a) 3. and (9) and 125.09 (1), in addition to the authorization specified in sub. (1), a Class “B” license issued under this section to a caterer also authorizes the caterer to provide fermented malt beverages, including their retail sale, at the Heritage Hill state park during special events held at this park. Notwithstanding sub. (1), a caterer may provide fermented malt beverages under this subsection at any location at the Heritage Hill state park even though the Heritage Hill state park is not part of the caterer’s licensed premises, as described under sub. (3) (a) in the caterer’s Class “B” license, and even if the Heritage Hill state park is not located within the municipality that issued the caterer’s Class “B” license. A caterer that provides fermented malt beverages under this subsection is subject to s. 125.32 (2) as if the fermented malt beverages were provided on the caterer’s Class “B” licensed premises. This subsection does not authorize the Heritage Hill state park to sell fermented malt beverages at retail or to procure or stock fermented malt beverages for purposes of retail sale. This subsection does not apply if, at any time, the Heritage Hill state park holds a Class “B” license.

AB127,11 Section 11. 125.26 (2x) of the statutes is amended to read:

AB127,,31 125.26 (2x) Notwithstanding ss. 125.04 (3) (a) 3. and (9) and 125.09 (1), in addition to the authorization specified in sub. (1), a Class “B” license issued under this section also authorizes the licensee to provide fermented malt beverages, including their retail sale, at specific locations within the Ozaukee County fairgrounds for consumption at these locations during special events held at the fairgrounds, if the Ozaukee County board adopts a resolution approving the licensee and if the licensee’s Class “B” licensed premises are located in Ozaukee County. Notwithstanding sub. (1), a licensee may provide fermented malt beverages under this subsection at the Ozaukee County fairgrounds even though the Ozaukee County fairgrounds are not part of the licensee’s licensed premises, as described under sub. (3) (a) in the licensee’s Class “B” license, and even if the Ozaukee County fairgrounds are not located within the municipality that issued the Class “B” license. A licensee that provides fermented malt beverages under this subsection is subject to s. 125.32 (2) as if the fermented malt beverages were provided on the licensee’s Class “B” licensed premises. Notwithstanding s. 125.34 (4) and (5), a wholesaler may deliver fermented malt beverages to the Ozaukee County fairgrounds to a licensee approved by the Ozaukee County board under this subsection and such an approved licensee may transport fermented malt beverages from its licensed premises to the Ozaukee County fairgrounds for purposes of selling the fermented malt beverages at the Ozaukee County fairgrounds. This subsection does not authorize Ozaukee County or any person operating or managing the Ozaukee County fairgrounds to sell fermented malt beverages at retail or to procure or stock fermented malt beverages for purposes of retail sale.

AB127,12 Section 12. 125.26 (3) of the statutes is renumbered 125.26 (3) (a) and amended to read:

AB127,,33 125.26 (3) (a) Class “B” licenses shall particularly describe the premises for which issued and. The premises for a Class “B” license may include, if described in the license application as provided in s. 125.04 (3) (a) 3., parking spaces associated with any structure described as licensed premises in the license application, even if the parking spaces are not contiguous with the remainder of the Class “B” licensed premises.

AB127,,34 (b) Class “B” licenses are not transferable, except as provided in s. 125.04 (12).

AB127,,35 (c) A Class “B” license is subject to revocation for violation of any of the terms or provisions thereof.

AB127,13 Section 13. 125.272 of the statutes is renumbered 125.272 (1) and amended to read:

AB127,,37 125.272 (1) Except as provided in subs. (2) and (3) and ss. 125.26 (2m), (2s), and (2x) and 125.27 (4) and except with respect to caterers, a retail license issued under s. 125.25 or 125.26, and a retail permit issued under s. 125.27, authorizes only face-to-face sales to consumers at the premises described in the retail license or permit.

AB127,14 Section 14. 125.272 (2) and (3) of the statutes are created to read:

AB127,,39 125.272 (2) (a) In this subsection:

AB127,,40 1. “Record” has the meaning given in s. 137.11 (12).

AB127,,41 2. “Remote delivery order” means an order for the sale and delivery of both food and alcohol beverages or alcohol beverages alone that is received by a retail licensee by means of the Internet, telephone, or any other method of communication under which the customer is not physically located on the licensed premises.

AB127,,42 (b) A retail licensee may process and fill a remote delivery order if all of the following apply:

AB127,,43 1. The licensee holds a retail license issued under s. 125.25 or 125.26, and the fermented malt beverages are sold in original, unopened packages or containers.

AB127,,44 2. The products ordered are delivered to the customer by the licensee, by a delivery service under common ownership with the licensee, or by a 3rd-party delivery service and the licensee, delivery service under common ownership with the licensee, or 3rd-party delivery service holds a permit issued under s. 125.20.

AB127,,45 3. Full payment for the order is made at the time the order is placed and no payment, other than a tip, is made at the time of delivery.

AB127,,46 4. At the time the order is placed, the customer asserts that the customer has attained the legal drinking age and is not intoxicated.

AB127,,47 5. At the time the products ordered are delivered, the individual delivering the order complies with pars. (c), (d), (e), and (f).

AB127,,48 (c) An individual may not deliver alcohol beverages to a customer under this subsection unless the individual making the delivery does all of the following at the time of delivery:

AB127,,49 1. Prior to transferring possession of the alcohol beverages to the customer, confirms the customer receiving delivery is the person who placed the order.

AB127,,50 2. Prior to transferring possession of the alcohol beverages to the customer, performs an in-person examination of the customer’s identification document containing proof of age and verifies by visual examination and by using electronic scanning technology that the customer receiving delivery of the order has attained the legal drinking age.

AB127,,51 3. Creates a record of the age verification under subd. 2.

AB127,,52 (d) An individual may not deliver alcohol beverages under this subsection to a person who is visibly intoxicated.

AB127,,53 (e) An individual may not deliver alcohol beverages to a customer under this subsection unless all of the following apply:

AB127,,54 1. The individual has attained the legal drinking age.

AB127,,55 2. The individual has successfully completed a responsible beverage server training course or comparable training course as described in s. 125.04 (5) (a) 5.

AB127,,56 (f) An individual may not deliver fermented malt beverages to a customer under this subsection unless the individual completes the delivery during the following hours:

AB127,,57 1. If the fermented malt beverages were sold by a Class “A” licensee, during hours in which the Class “A” licensee is authorized to sell fermented malt beverages under s. 125.32 (3) (b) or, if more restrictive, during hours established by ordinance by a municipality under s. 125.32 (3) (d).

AB127,,58 2. If the fermented malt beverages were sold by a Class “B” licensee, during hours in which the Class “B” licensee is authorized to sell fermented malt beverages under s. 125.32 (3) (am) or, if more restrictive, during hours established by ordinance by a municipality under s. 125.32 (3) (d).

AB127,,59 (g) A 3rd-party delivery service or delivery service under common ownership with a licensee shall provide to the retail licensee on whose behalf the delivery is made an original or duplicate of each age verification record required under par. (c) 3.