In County of Fond du Lac v. Muche, No. 2015AP2223 (Wis. Ct. App. Oct. 26, 2016) (recommended for publication), the Wisconsin Court of Appeals, District II, invalidated Fond du Lac’s social host ordinance because it did not strictly conform with Wis. Stat. §125.07(1) regulating underage drinking.

On June 20, 2015, Muche hosted a party at his home in Fond du Lac County. Alcoholic beverages were served at the party. Eventually, “persons under the age of 21 … who were not invited by Mr. Muche, joined the gathering.” Muche had reason to believe that these underage individuals brought beer to the party and “intended to or were consuming it.” County sheriff’s deputies arrived on the scene and cited Muche for violating Fond du Lac County’s social host ordinance, which essentially prohibited adults from hosting underage drinkers in their homes.

Muche challenged the citation, arguing that the ordinance was improperly stricter than state law. The circuit court rejected this argument, found that Muche violated the social host ordinance, and imposed a $1000 civil forfeiture. Muche appealed.

The court of appeals reversed, finding the social host ordinance conflicted with state law. The court first noted that the subject of alcoholic beverages is a matter of state wide concern and, under Wis. Stat. §125.10, a county ordinance regulating underage drinking must strictly conform to state law. The County argued that its social host ordinance was in strict conformity with the state statute because its language was consistent with Wis. Stat. §125.07(1)(a)3., which states in part that “[n]o adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult's control.” Muche argued that under §125.02(14), “premises” is specifically defined as “the area described in a license or permit” and does not include a private residence.

The court agreed with Muche, citing Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220. The court in Nichols held that parents who allowed underage drinking at their home were not liable for common law negligence when one of the underage guests later caused a car accident. The court noted that Nichols “compels the conclusion that the statute does not penalize social hosts for conduct in private residences” because “premises” is a defined term that includes a place under permit or license to supply alcohol, not private residences. The court concludes that the social host ordinance that penalizes underage drinking at private residences prohibits conduct allowed under the state statute and thus does not “strictly comply” with state law.

This case essentially means that social host ordinances similar to the County’s enacted by local governments are unenforceable. Local governments may now be banned from punishing adults who host or allow underage drinking parties on their property. The County is likely to appeal this decision. Thus, a decision from the Supreme Court could clarify the status of social host ordinances enacted by local governments around the state. The decision in this case could have a significant impact on the ability of local governments to regulate underage drinkers in private residences. Please continue to watch Stafford’s blogs for updates on this case.

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