Opinion No. Oag 19-76, (1976) ( 1976 )

JAMES WENDLAND, District Attorney Dunn County

You have asked whether a person must have a driver's license to drive a motor vehicle on a public parking lot. The answer to your question depends upon whether a free municipal parking lot is a highway as defined in sec. 340.01 (22), Stats., for the purpose of enforcement of secs. 343.05 (1) and 343.44, Stats. In my opinion it is not.

Section 343.05 (1), Stats., provides in part:

". . . no person shall operate a motor vehicle upon a highway in this state unless such person has a license issued to him by the division . . ."

Also sec. 343.44 (1), Stats., provides in part:

"No person whose operating privilege has been duty revoked or suspended pursuant to the laws of this state shall operate a motor vehicle upon any highway in this state . . ."

Section 340.01 (22), Stats., defines the word highway as used in chs. 340 to 349, Stats., in part as follows:

"``Highway' means all public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel . . . ."

Within the meaning of this definition a public parking lot could be regarded as being a part of a public way. As such, a parking lot would be a highway.

If this conclusion were correct, the rules of the road, ch. 346, Stats., would be applicable to public parking lots. See sec.346.02 (1), Stats. But this is not the case. Section 346.61, Stats., specifically provides that the traffic regulations relating to reckless and drunken driving are applicable to conduct upon highways and "upon all premises held out to the public for use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof." It seems clear that this language is intended to make these particular rules of the road applicable also to parking lots. A similar provision is found in sec.346.66, Stats., which makes accidents occurring in parking lots reportable as required by sec. 346.70, Stats. If public parking lots were highways, these statutes, making selected rules of the road applicable in parking lots, would be unnecessary, because the rules of the road apply on highways.

Further and highly persuasive evidence of legislative intent that public parking lots are not highways for the purpose of enforcement of ch. 346, Stats., generally, is found in the committee note to sec. 346.61, Stats.:

"Most provisions of this chapter are applicable only upon highways. This section gives the sections relating to reckless and drunken driving somewhat broader applicability. They will apply in such areas as parking lots, filling stations and loading platforms." 40 Wis. Stats. Ann. 361, Legislative Committee Notes (1957) to sec. 346.61, Stats.

Moreover, for many years it has been the position of the Division of Motor Vehicles that a driver's license is not necessary to drive a motor vehicle in a public parking lot. This practical, long-continued construction of the law by the administrators charged with the duty of applying it is entitled to great weight in determining the meaning of the statute.Trczyniewski v. Milwaukee (1961), 15 Wis. 2d 236, 112 N.W.2d 275.

It is, therefore, my opinion that the legislature did not intend the word "highway," as used in secs. 343.05 (1) and343.44 (1), Stats., to include public parking lots. However, this would not be applicable to any part of a parking lot dedicated and used as a road or street.

BCL:AOH