2023 - 2024 LEGISLATURE
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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.
1 AN ACT to renumber and amend 125.25 (3), 125.26 (3), 125.272, 125.51 (2) (c),
2 125.51 (3) (d) and 125.51 (6); to amend 125.02 (20), 125.26 (2u), 125.26 (2v) (a),
3 125.26 (2w), 125.26 (2x), 125.51 (3) (bu), 125.51 (3) (bv) 1., 125.51 (3) (bw),
4 125.51 (3) (bx) and 139.25 (9); and to create 125.02 (20k), 125.07 (1) (b) 7.,
5 125.07 (2) (c), 125.10 (6), 125.20, 125.272 (2) and (3), 125.51 (6) (b) and (c) and
6 139.11 (1m) of the statutes; relating to: the face-to-face requirement for retail
7 sales of alcohol beverages and remote orders for the sale of alcohol beverages
8 to be delivered or picked up on retail licensed premises.
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
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ASSEMBLY BILL 127
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
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ASSEMBLY BILL 127
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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 125.02 (20) of the statutes is amended to read:
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ASSEMBLY BILL 127 SECTION 1
1 125.02 (20) “Sell", Subject to ss. 125.272 (2) (h) 1. and (3) (b) and (c) and 125.51
2 (6) (b) 8. a. and (c) 2. and 3., “sell,” “sold",,” “sale," or “selling" means any transfer of
3 alcohol beverages with consideration or any transfer without consideration if
4 knowingly made for purposes of evading the law relating to the sale of alcohol
5 beverages or any shift, device, scheme or transaction for obtaining alcohol beverages,
6 including the solicitation of orders for, or the sale for future delivery of, alcohol
7 beverages.
8 SECTION 2. 125.02 (20k) of the statutes is created to read:
9 125.02 (20k) “Third-party delivery service” means a delivery service that is
10 independent of a retail licensee and that derives less than 50 percent of its annual
11 revenues associated with food and beverage delivery from the delivery of alcohol
12 beverages.
13 SECTION 3. 125.07 (1) (b) 7. of the statutes is created to read:
14 125.07 (1) (b) 7. If a licensee processes and fills a remote delivery order under
15 s. 125.272 (2) or 125.51 (6) (b) in reliance on the customer's assertion that the
16 customer has attained the legal drinking age and delivery is made by a 3rd-party
17 delivery service or a delivery service under common ownership with the licensee, the
18 licensee is not subject to any penalty under this paragraph and the only penalty
19 applicable if the alcohol beverages are delivered to an underage person is that
20 specified for the 3rd-party delivery service or delivery service under common
21 ownership with the licensee under ss. 125.272 (2) (i) 1. and 125.51 (6) (b) 9. a.
22 SECTION 4. 125.07 (2) (c) of the statutes is created to read:
23 125.07 (2) (c) Exception for certain delivered alcohol beverages. If a licensee
24 processes and fills a remote delivery order under s. 125.272 (2) or 125.51 (6) (b) in
25 reliance on the customer's assertion that the customer is not intoxicated, the licensee
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1 is not subject to any penalty under par. (b) unless the licensee delivers the alcohol
2 beverages and violates s. 125.272 (2) (d) or 125.51 (6) (b) 4. at the time of delivery.
3 SECTION 5. 125.10 (6) of the statutes is created to read:
4 125.10 (6) REMOTE PICKUP ORDERS OF ALCOHOL BEVERAGES. (a) Notwithstanding
5 sub. (1), and subject to par. (b), a municipality may not prescribe additional
6 regulations for, or impose additional restrictions relating to, sales of alcohol
7 beverages made pursuant to remote pickup order, as defined in s. 125.272 (3) (a), by
8 Class “A”, “Class A”, Class “B”, or “Class B” licensees. An ordinance that is
9 inconsistent with this paragraph may not be enforced.
10 (b) Paragraph (a) does not limit a municipality's authority to adopt ordinances
11 of general application that apply to all sales by a retail licensee, including ordinances
12 adopted under ss. 125.32 (3) (d) and 125.68 (4) (b) and (c) 3.
13 SECTION 6. 125.20 of the statutes is created to read:
14 125.20 Alcohol delivery permits. (1) The department shall issue alcohol
15 delivery permits to retail licensees, delivery services under common ownership with
16 retail licensees, and 3rd-party delivery services that authorize the permittee to
17 deliver alcohol beverages in connection with remote delivery orders under ss.
18 125.272 (2) and 125.51 (6) (b).
19 (2) An alcohol delivery permit may be issued only to a person who holds a valid
20 certificate issued under s. 73.03 (50). For purposes of s. 125.04 (6) (a) 2., the
21 appointment of an agent for a permittee under this section shall vest authority in the
22 agent with respect to all delivery operations, not limited to activities occurring on the
23 premises covered by the permit.
24 (3) A permit issued under this section shall be valid for one year. The annual
25 fee for initial issuance or renewal of the permit shall be $150 for an applicant that
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1 is a retail licensee and $300 for an applicant that is a 3rd-party delivery service or
2 a delivery service under common ownership with a retail licensee. The fee shall be
3 paid at the time of application for initial issuance or renewal of the permit and shall
4 be refunded to the applicant if the application is denied.
5 SECTION 7. 125.25 (3) of the statutes is renumbered 125.25 (3) (a) and amended
6 to read:
7 125.25 (3) (a) Class “A" licenses shall particularly describe the premises for
8 which issued and. The premises for a Class “A” license may include, if described in
9 the license application as provided in s. 125.04 (3) (a) 3., parking spaces associated
10 with any structure described as licensed premises in the license application, even if
11 the parking spaces are not contiguous with the remainder of the Class “A” licensed
12 premises.
13 (b) Class “A” licenses are not transferable, except under s. 125.04 (12).
14 (c) A Class “A" license is subject to revocation for violation of any of the terms
15 or provisions thereof.
16 SECTION 8. 125.26 (2u) of the statutes is amended to read:
17 125.26 (2u) Notwithstanding ss. 125.04 (3) (a) 3. and (9) and 125.09 (1), in
18 addition to the authorization specified in sub. (1), a Class “B" license issued under
19 this section to a caterer also authorizes the caterer to provide fermented malt
20 beverages, including their retail sale, at the National Railroad Museum in Green
21 Bay during special events held at this museum. Notwithstanding sub. (1), a caterer
22 may provide fermented malt beverages under this subsection at any location at the
23 National Railroad Museum even though the National Railroad Museum is not part
24 of the caterer's licensed premises, as described under sub. (3) (a) in the caterer's
25 Class “B" license, and even if the National Railroad Museum is not located within the
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1 municipality that issued the caterer's Class “B" license. A caterer that provides
2 fermented malt beverages under this subsection is subject to s. 125.32 (2) as if the
3 fermented malt beverages were provided on the caterer's Class “B" licensed
4 premises. This subsection does not authorize the National Railroad Museum to sell
5 fermented malt beverages at retail or to procure or stock fermented malt beverages
6 for purposes of retail sale. This subsection does not apply if, at any time, the National
7 Railroad Museum holds a Class “B" license.
8 SECTION 9. 125.26 (2v) (a) of the statutes is amended to read:
9 125.26 (2v) (a) Subject to pars. (b) and (c), and notwithstanding ss. 125.04 (3)
10 (a) 3. and (9), 125.09 (1), and 125.32 (6) (a), in addition to the authorization specified
11 in sub. (1), a Class “B" license issued under this section to a caterer also authorizes
12 the caterer to provide fermented malt beverages, including their retail sale, on
13 racetrack grounds, as defined in s. 125.27 (5) (a). Subject to pars. (b) and (c), and
14 notwithstanding sub. (1) and s. 125.32 (6) (a), a caterer may provide fermented malt
15 beverages under this paragraph at any location on racetrack grounds even though
16 the racetrack grounds are not part of the caterer's licensed premises, as described
17 under sub. (3) (a) in the caterer's Class “B" license, and even if the racetrack grounds
18 are not located within the municipality that issued the caterer's Class “B" license.
19 A caterer that provides fermented malt beverages under this paragraph is subject
20 to s. 125.32 (2) and (3) as if the fermented malt beverages were provided on the
21 caterer's Class “B" licensed premises.
22 SECTION 10. 125.26 (2w) of the statutes is amended to read:
23 125.26 (2w) Notwithstanding ss. 125.04 (3) (a) 3. and (9) and 125.09 (1), in
24 addition to the authorization specified in sub. (1), a Class “B" license issued under
25 this section to a caterer also authorizes the caterer to provide ferment