Appellate Court confirms reversal on years of bowling alley oppression. So now what’s the difference between a bowling alley and a bowling center? Playing pool near the bar – if you’re under 21 and in Wisconsin.
Here’s a great case from behind the cheddar curtain. You know, the state where the Department of Revenue makes no bones about its right to serve law:
Can an underage person possess and consume alcohol beverages on licensed premises?
Yes. Persons under age 21 may possess and consume alcohol beverages if they are with their parents, guardians or spouses of legal drinking age; but this is at the discretion of the licensee. The licensed premises may choose to prohibit consumption and possession of alcohol beverages by underage persons. (Sec. 125.07(1), Wis. Stats.)
A Wisconsin appellate panel helped the under 21 crowd win the right to play pool at a bar in bowling centers with this opinion interpreting exceptions to Wisconsin’s statutory restriction on those under 21 entering bars. (Sec. 125.07(3), Wis. Stats.)
Just by way of reference, and for your enjoyment, here’s the statutory provision, along with the over 20 subparagraphs of exceptions and their sub-parts:
(3) Presence in places of sale; penalty.
(a) Restrictions. An underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age may not enter, knowingly attempt to enter or be on any premises for which a license or permit for the retail sale of alcohol beverages has been issued, for any purpose except the transaction of business pertaining to the licensed premises with or for the licensee or his or her employee. The business may not be amusement or the purchase, receiving or consumption of edibles or beverages or similar activities which normally constitute activities of a customer of the premises. This paragraph does not apply to:
1. An underage person who is a resident, employee, lodger or boarder on the premises controlled by the proprietor, licensee or permittee of which the licensed premises consists or is a part.
2. An underage person who enters or is on a Class “A” or “Class A” premises for the purpose of purchasing items other than alcohol beverages. An underage person so entering the premises may not remain on the premises after the purchase.
3. Hotels, drug stores, grocery stores, bowling centers, movie theaters, painting studios, billiards centers having on the premises 12 or more billiards tables that are not designed for coin operation and that are 8 feet or longer in length, indoor golf simulator facilities, indoor golf and baseball facilities on premises for which the only alcohol beverage license issued is a Class “B” license, service stations, vessels, cars operated by any railroad, regularly established athletic fields, outdoor volleyball courts that are contiguous to a licensed premises, stadiums, music festival venues during an event with a projected attendance of at least 2,500 persons, public facilities as defined in s. 125.51 (5) (b) 1. d. which are owned by a county or municipality or centers for the visual or performing arts.
3m. Premises having an indoor volleyball court that measures at least 9 meters by 18 meters in area. The exception under this subdivision does not authorize an underage person to loiter in any room that is primarily used for the sale or consumption of alcohol beverages.
3r. Any privately owned business that exists to provide recreational fishing opportunities to the public for a fee and that is registered under s. 95.60 (3m) if the sale of alcohol beverages accounts for less than 30 percent of the business’s gross receipts.
4. Premises in the state fair park, concessions authorized on state-owned premises in the state parks and state forests as defined or designated in chs. 27 and 28, and parks owned or operated by agricultural societies.
5. Ski chalets, golf courses and golf clubhouses, racetracks licensed under ch. 562, curling clubs, private soccer clubs and private tennis clubs.
6. Premises operated under both a Class “B” or “Class B” license or permit and a license under s. 97.30 for a restaurant where the principal business conducted is that of a restaurant. If the premises are operated under both a Class “B” or “Class B” license or permit and a license under s. 97.30 for a restaurant, the principal business conducted is presumed to be the sale of alcohol beverages, but the presumption may be rebutted by competent evidence.
6m. Premises operating under both a “Class C” license and a license under s. 97.30 for a restaurant.
7. An underage person who enters or remains on a Class “B” or “Class B” premises for the purpose of transacting business at an auction or market, if the person does not enter or remain in a room where alcohol beverages are sold, furnished or possessed.
8. An underage person who enters or remains in a room on Class “B” or “Class B” licensed premises separate from any room where alcohol beverages are sold or served, if no alcohol beverages are furnished or consumed by any person in the room where the underage person is present and the presence of underage persons is authorized under this subdivision. An underage person may enter and remain on Class “B” or “Class B” premises under this subdivision only if the municipality which issued the Class “B” or “Class B” license adopts an ordinance permitting underage persons to enter and remain on the premises as provided in this subdivision and the law enforcement agency responsible for enforcing the ordinance issues to the Class “B” or “Class B” licensee a written authorization permitting underage persons to be present under this subdivision on the date specified in the authorization. Before issuing the authorization, the law enforcement agency shall make a determination that the presence of underage persons on the licensed premises will not endanger their health, welfare or safety or that of other members of the community. The licensee shall obtain a separate authorization for each date on which underage persons will be present on the premises.
9. A person who is at least 18 years of age and who is working under a contract with the licensee, permittee or corporate agent to provide entertainment for customers on the premises.
10. An underage person who enters or remains on Class “B” or “Class B” licensed premises on a date specified by the licensee or permittee during times when no alcohol beverages are consumed, sold or given away. During those times, the licensee, the agent named in the license if the licensee is a corporation or limited liability company or a person who has an operator’s license shall be on the premises unless all alcohol beverages are stored in a locked portion of the premises. The licensee shall notify the local law enforcement agency, in advance, of the times underage persons will be allowed on the premises under this subdivision.
11. An underage person who enters or remains in a dance hall or banquet or hospitality room attached to Class “B” or “Class B” licensed premises for the purpose of attending a banquet, reception, dance, or other similar event.
12. An underage person who enters and remains on premises for which a temporary Class “B” license is issued under s. 125.26 (6) if the licensee is authorized by the official or body of the municipality that issued the license to permit underage persons to be on the premises under s. 125.26 (6) and if the licensee permits underage persons to be on the premises.
12m. An underage person who enters and remains on premises covered by a temporary “Class B” license issued as provided in s. 125.51 (10) (b) if all of the following apply:
a. The municipal governing body issuing the license, or an official or body authorized by the municipal governing body, authorizes the licensee to permit underage persons to be on the licensed premises for the purpose of acting as designated drivers.
b. The licensee permits, on the licensed premises, unaccompanied underage persons to be present only for the purpose of acting as designated drivers and the licensee provides a means of identification, such as a wrist band, to identify these underage persons as designated drivers.
c. The underage person is present on the licensed premises to act as a designated driver and displays the means of identification specified in subd. 12m. b.
13. An underage person who enters or remains in a banquet or hospitality room on brewery premises for the purpose of attending a brewery tour.
14. An underage person who enters or remains on licensed premises at the Eagle Ridge Festival Grounds in the city of Chippewa Falls.
15. An underage person employed by or assisting a law enforcement agency in carrying out enforcement activities to determine compliance with, or investigate potential violations of, the provisions of this section.
16. An underage person who enters or remains in a banquet or hospitality room on winery premises operated under a “Class A” or “Class B” license for the purpose of attending a winery tour.
(b) Penalties. A licensee or permittee who directly or indirectly permits an underage person to enter or be on a licensed premises in violation of par. (a) is subject to a forfeiture of not more than $500.
Seriously, why bother with the rule? Just say they can’t DRINK unaccompanied in retail spaces and be done with it.
In this case, Stoughton v. Carter et al., (link to opinion), the good folks at Viking Lanes, a bowling center in Stoughton, fought the tickets an officer issued to their establishment and their bartender for allowing an underage individual to play pool in the “bar area” of their bowling center (the record notes that nothing suggests the officer observed the underage individual purchase or consume alcohol).
At issue was the exception to the prohibition in subparagraph (a)(3) above, which states the following are excepted:
3. Hotels, drug stores, grocery stores, bowling centers, movie theaters, painting studios, billiards centers having on the premises 12 or more billiards tables that are not designed for coin operation and that are 8 feet or longer in length, indoor golf simulator facilities, indoor golf and baseball facilities on premises for which the only alcohol beverage license issued is a Class “B” license, service stations, vessels, cars operated by any railroad, regularly established athletic fields, outdoor volleyball courts that are contiguous to a licensed premises, stadiums, music festival venues during an event with a projected attendance of at least 2,500 persons, public facilities as defined in s. 125.51 (5) (b) 1. d. which are owned by a county or municipality or centers for the visual or performing arts.
You’d normally think that would be the end of it, but you know how lawyers are. There was a prior version of this statutory exception that read “bowling alleys” and not “bowling centers,” and a 1966 Wisconsin Supreme Court decision called State v. Ludwig that interpreted that prior exception for “bowling alleys” to not apply to the barrooms connected to bowling alleys (a point of contention as the City and the defendants in this case interpret that differently) – just to the lane portions – in upholding a ticket against a business that allowed minors to frequent a barroom area associated with a bowling alley. Of note from Ludwig was the particular fact that the barroom and the bowling alley were distinct and separated from each other although under the same roof. The appellate court hit home with that distinction and the change from alleys to centers under the law, and interpreted Ludwig narrowly:
“Therefore, Ludwig did not carve out a portion of the “bowling alley” from the exemption, as the City claims. It instead concluded that a barroom that was under the same roof as but distinct from a bowling alley could not take advantage of the bowling alley exemption.”
The Court also pointed out that other portions of the statutory exemption discuss loitering in portions of the exempt businesses that serve alcohol, but did not do so in discussing bowling centers.
Of note to those combating authoritarian prohibitions based on antiquated views of libations, are the Court’s final paragraphs discussing the purpose of the exemptions and balancing the rights of young people against the state’s goal of curbing underage drinking – novel, if for nothing more than an acknowledgment of the rights of youths – but better:
We now turn to the City’s arguments about the purpose of the statute. According to the City, the reason that the “bowling centers” exemption cannot extend to any portion of those centers dedicated primarily to the sale or consumption of alcohol is because the purpose of the statute is to protect underage individuals from “environments predominantly designed for the sale and consumption” of alcohol. We reject this argument for the reasons that follow.
As Ludwig explains, the purpose of WIS. STAT. § 125.07(3)(a) is not solely to prohibit underage individuals from entering places where alcohol is sold or consumed. By including exemptions, the legislature balanced that purpose against another purpose: to avoid imposing “an undue burden upon” underage individuals in their “attempt to enjoy entertainment, travel, and the like.” Ludwig, 31 Wis. 2d at 697.
The statutory history of WIS. STAT. § 125.07(3)(a) shows that the balance between these purposes has shifted since Ludwig was decided. At that time, the statute contained just ten “specific instances where minors may legally be on the premises, although licensed,” leading Ludwig to describe the exemptions as “narrow.” Ludwig, 31 Wis. 2d at 697. But since that time, the legislature has repeatedly acted to expand the list of exemptions, and the current statute’s numerous exemptions span twenty subdivisions. By greatly expanding the number of exemptions, the legislature has placed greater emphasis on the purpose of the exemptions, which is to avoid imposing an “undue burden” on underage individuals’ opportunities for travel and entertainment.
For these reasons, we are not persuaded that it would defeat the purposes of the statute to interpret “bowling centers” to include portions of those centers dedicated to the sale and consumption of alcohol. We note that our interpretation of the statute does not leave municipalities without tools to prevent underage drinking. Among other things, municipalities can issue citations to license holders that serve alcohol to underage individuals, see WIS. STAT. § 125.07(1); they can cite underage individuals for procuring or attempting to procure alcohol, see § 125.07(4)(a)1.; and they can cite underage individuals for possessing or consuming alcohol, see § 125.07(4)(a)2.
And with that, the appellate court reversed the citations against the alley and the bartender and rejected the doctrinal approach and oddly interpreted precedent that had kept barroom areas off-limits for minors in bowling centers up to now.
