An informal opinion issued by Attorney General Brad Schimel could threaten Wisconsin’s wedding barn industry. The opinion, requested by the chairman of the legislative study committee on alcohol beverages enforcement Rep. Rob Swearingen (R-Rhinelander), redefines a “public place” to include businesses that allow the public to hold private parties.
“It is obviously possible for a leased space to host events both open to the general public, and open to only invited guests, yet still remain a public place open to rent,” Schimel wrote in the letter. “The text of the statute does not indicate that a public place becomes non-public if access is temporarily limited to invited guests, but simply requires that the ‘owner, lessee or person in charge’ obtain a retail license when alcohol beverages are consumed ‘on the premises.'”
The Schimel opinion comes as Swearingen’s committee, which includes representatives of the Tavern League, is considering ways of forcing the state’s agricultural event venues (AEVs) to obtain liquor licenses if there is alcohol served at private events on the premises.
Prior to Schimel’s letter, AEVs, commonly referred to as wedding barns, were able to serve alcohol at private events provided the event was closed to the public. Invitation-only gatherings such as weddings, private corporate events, or even Green Bay Packer team events, were allowed by the Department of Revenue (DOR) to serve alcohol without getting an often hard-to-acquire liquor license and following all of the regulations that come with it.
According to Schimel, such an exception should never have been made.
“A broad ‘private event’ exception cannot be supported by the text of the statute; there is simply no portion of the statute that would support a distinction between a public place that hosts an event open to all the public, and a public place that may be rented out for a limited private event,” Schimel wrote. “The ‘place,’ in both circumstances, is ‘public’ in my view.”
Anthony Lococo, an attorney with the Wisconsin Institute for Law & Liberty (WILL), objected strongly to this possible change in state policy saying it could immediately threaten the wedding barn industry.
“WILL disagrees with the Attorney General’s opinion,” Rococo said in a statement Monday. “It represents a major threat to wedding barns. If the State of Wisconsin adopts the informal DOJ opinion for enforcement purposes, they should expect a fight.”
According to WILL, the attorney general’s opinion of what constitutes a public place is too broad and that it does not meet the traditional legal standard definition because the space is rented out on the terms of the owner, not open to the general public.
“While the Attorney General’s informal opinion suggests that event venues are ‘public’ by virtue of the fact that they are generally available for rent or lease, such a broad interpretation would mean that someone renting out their own house would have to obtain a permit before anyone could drink alcohol there,” the release from WILL stated. “State law does not mandate such an unreasonable result.”
The DOR, which is tasked with enforcing the state’s alcohol laws, is still studying Schimel’s letter. “DOR is currently in the process of reviewing what the Attorney General has referred to as his ‘informal analysis’ regarding alcohol regulation enforcement,” said Patty Mayers, the Communications Director for DOR.
Schimel’s letter is an informal opinion because it was requested by Swearingen and not by the Assembly itself or the head of a department of state government. It is also not binding on his successor, Attorney General-elect Josh Kaul.
However, the letter was quickly touted on Twitter by the Wisconsin Tavern League, who is attempting through Swearingen’s committee to crack down on what they perceive to be as competition from the wedding barn industry. “Alert for
#TLW Members!” the Tavern League said in an inaccurate Twitter post. “State A.G. @WisDOJ says, ‘Barns should be licensed.'”
Schimel’s letter actually does not say that wedding barns need to be licensed, only, “I understand that my opinion may have policy consequences, such as requiring the Department of Revenue to undertake more enforcement activities.”
WILL indicated in their statement Monday that they see the letter as a continuation of efforts by the Tavern League to use the government to stifle competition, pointing to a bill that passed the Assembly in 2018 to regulate wedding barns that would have ended the Wisconsin tradition of tailgating at most major sporting events.
“Adam Smith famously said that when people of the same business meet together, they often turn to ‘a conspiracy against the public,'” Rick Esenberg, the President of WILL, said Monday. “It’s not surprising that the Tavern League wants to hurt, or even eliminate, their competition. But the law should not help them in their contrivance. In this case it doesn’t help them and should not be read to do so.”
An email attempt to get clarification from the Wisconsin Department of Justice regarding the Schimel letter went unanswered last week.