County of Fond du Lac v. Muche , 372 Wis. 2d 403 ( 2016 )

REILLY, RJ.

¶ 31. (concurring). I am in full agreement with the majority's conclusion that Fond du Lac's social host ordinance is not in strict conformity with Wis. Stat. § 125.07(1) as the $1,000 forfeiture in Fond du Lac's ordinance exceeds the $500 maximum penalty allowed by § 125.07(l)(b) for a first offense. Majority, f 29. This case should be resolved on that basis alone, which is in accord with our practice of deciding cases on the narrowest grounds. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (we decide cases on narrowest possible grounds). I believe it unwise to address the "premises" debate.

¶ 32. The majority relies on our supreme court's statement in Nichols that "[n]othing in the Wisconsin statutes renders the [social hosts'] conduct unlawful," Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 33, 308 Wis. 2d 17, 746 N.W.2d 220, as restricting the definition of "premises" to that found in Wis. Stat. § 125.02(14m). Majority, ¶¶ 13, 19. I concur that the Nichols' statement is binding upon us, although I believe it is dicta. I acknowledge that I may not determine what constitutes dicta in supreme court decisions, Zarder v. Humana Ins. Co., 2010 WI 35, ¶ 58, 324 Wis. 2d 325, 782 N.W.2d 682, however, I am allowed to express when I believe a prior case is being wrongly applied, Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

¶ 33. Nichols addressed whether a common law negligence claim may be maintained against a social host. Nichols, 308 Wis. 2d 17, ¶ 33. Wisconsin Stat. § 125.07(l)(a)3. and its application was not the focus of the court in Nichols. On public policy grounds, the Nichols court held that a common law negligence claim may not be maintained against a social host. Nichols, 308 Wis. 2d 17, ¶¶ 30, 33. The court further held that any decision on liability for social hosts should come from the legislature and not the courts. Id., ¶ 33. I agree with the rationale of Nichols. The focus of our case, however, is on § 125.07(l)(a)3. and its application. I offer that the legislature has acted and has legislatively decided that those who assist in the underage consumption of alcohol shall be punished via § 125.07(1):

1. No "person" may provide alcohol to an underage person. Sec. 125.07(l)(a)l.

2. No "licensee or permittee" may sell alcohol to an underage person. Sec. 125.07(l)(a)2.

3. No "adult" may knowingly permit underage persons to consume alcohol on "premises owned by the adult." Sec. 125.07(l)(a)3.

4. No "adult" may "intentionally encourage or contribute" to an underage person consuming or procuring alcohol either alone or from a "licensee or permittee" or consuming alcohol on "licensed premises." Sec. 125.07(l)(a)4., (4)(a)l.-2.

f 34. The legislature clearly differentiated "premises" owned by an adult in Wxs. Stat. § 125.07(l)(a)3. from "premises" of a "licensee or per-mittee" as found in § 125.07(l)(a)2. and 4. The use of the term "premises" in § 125.07(l)(a)3. is not limited to "the area described in a license or permit." See Wis. Stat. § 125.02(14m). The legislature purposefully restricted underage drinking on "premises" as defined in § 125.02(14m), but also separately utilized the word "premises" in § 125.07(l)(a)3. to encompass those places owned by an adult, such as the high school graduation parties held in the home or the bonfire in the back forty.

¶ 35. To conclude that Wis. Stat. § 125.07(1)(a)3. is only violated if the adult owns a liquor store or tavern and allows an underage party to occur at the store or tavern is the wrong reading of § 125.07(1)(a)3., and is clearly not what the legislature wrote or intended. The legislature meant what it said—adults who host or allow an underage drinking party on property they own will face fines and, if such conduct is repeated, jail. Utilizing the Nichols' dicta, "[n]othingin the Wisconsin statutes renders the [social hosts'] conduct unlawful," to eviscerate § 125.07(1)(a)3. is wrongly applying Nic hols. See Nichols, 308 Wis. 2d 17, ¶ 33. Applying Nichols literally in our situation undoes what Nichols stands for—deference to legislative decision making.