Opinion
June 10, 1966. —
July 1, 1966.
APPEAL from a judgment of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Joseph A. Van Susteren of Appleton.
For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.
Defendant-appellant, Beatrice Ludwig, was convicted of violating sec. 66.054 (19), Stats., in that she allowed minors to frequent the barroom area of her place of business.
Sec. 66.054 (19), Stats., provides:
"PRESENCE IN PLACES OF SALE PROHIBITED; PENALTY. Every keeper of any place, of any nature or character, whatsoever, for the sale of any fermented malt beverage under a `Class B' retailer's license, who shall directly or indirectly suffer or permit any person of either sex under the age of 18 years, unaccompanied by his or her parent or guardian, who is not a resident, employe or a bona fide lodger or boarder on the premises controlled by the proprietor or licensee of such place, and of which such place consists or is a part, to enter or be on such licensed premises for any purpose, excepting the transaction of bona fide business other than amusement, the purchase, receiving or consumption of edibles or beverages, shall, for every such offense, be liable to a penalty not exceeding $250, besides costs, or imprisonment not exceeding 60 days; and any such person so entering or remaining as aforesaid, who is not a resident, employe or a bona fide lodger or boarder on such premises, or who is not accompanied by his or her parent or guardian, shall also be liable to a penalty of not more than $20, besides costs. This subsection shall not apply to hotels, drug stores, grocery stores, bowling alleys, premises in the state fair park, concessions authorized on state-owned premises in the state parks and state forests as defined or designated in chs. 27 and 28, parks owned or operated by agricultural societies receiving state aid, cars operated on any railroad, regularly established athletic fields or stadiums nor to premises operated under both a `Class B' license and a restaurant permit where the principal business conducted therein is that of a restaurant. It shall be presumed where such premises are so operated under both a `Class B' license and a restaurant permit, that the principal business conducted therein is that of the sale of fermented malt beverage, until such presumption is rebutted by competent evidence. The provisions of sub. (15) providing for punishment of violators of this section by fine and imprisonment shall not apply to this subsection. This prohibition shall apply to any person who is not a resident, employe or bona fide lodger or boarder on such premises, after the legal hour for closing."
Defendant's premises consist of a bowling alley portion, barroom portion, and restaurant portion all under one roof. It is defendant's contention that the statute is inapplicable to her premises because they constitute a bowling alley which is exempted by the statute.
The case was tried to the circuit court upon stipulated facts, photographs, and a diagram of the floor plan of the premises. The following is a portion of the stipulation of the facts:
"The defendant is the agent for Ludwig Lanes, Inc., which is licensed by the Town of Freedom as a Class B beer tavern, and that on the 18th day of October, 1963, approximately twelve (12) young men and women, of the ages sixteen and seventeen were suffered and permitted to be and remain on the premises unaccompanied by their parents or guardians, and that none of them was a resident or employee or bona fide lodger in the premises. These sixteen and seventeen year old persons were in and about the barroom for unstated periods of time and the defendant admits that some of them were in the barroom area for substantial periods of time and were not merely passing from the restaurant area to the bowling alley area. It is also stipulated that some of them at certain periods during that evening were suffered or permitted to be at the bar where beer was dispensed.
"The entire premises is under one ownership and management, and the large diagram submitted in evidence accurately portrays the relative location of the bowling alleys, the bar, and the restaurant, and all other objects indicated on the diagram. The bowling alleys are actively used by the general public and by teams of bowlers in a regularly scheduled league. Bowlers were permitted to bring their beer into the bowling alley area and the beer was served at the tables shown on the diagram, immediately to the rear of the benches provided for the bowlers.
"There is no structure indicating any division between bowling alley area and the barroom area, nor is there any interruption in the floor level or the floor covering to denote a dividing line. There is no line on the wall or floor or ceiling denoting an out-of-bounds line for anyone under the age of eighteen.
"There is no door or gate of any kind to separate the restaurant from the barroom, except that the partition wall immediately behind the bar divided the restaurant from the balance of the premises and there remains an open passageway from restaurant to barroom area at the front of the building."
The bowling alleys, barroom, and restaurant can each be reached by separate entrances from the outside of the building without passing through other parts of the premises.
The circuit court adjudged defendant guilty and fined her $200 plus costs of $69.60, or sixty days in the county jail.
The sole issue on this appeal is whether the statutory exemption of bowling alleys applies to the stipulated facts of this case so as to allow minors to frequent the barroom in question.
We are thus presented a question of law, as was the trial court.
It is the defendant's position that so long as her establishment contains bowling alleys the entire premises are covered by the bowling alley exemption in the statute. In fact, the stipulation states that "[i]n substance, the defendant contends that persons under eighteen years of age may be allowed to buy soft drinks at the bar and may actually sit there and drink them without a violation." We cannot agree with such a contention.
Rather, we agree with the trial court and its comprehensive and helpful opinion, that:
"It requires no great judicial discernment to observe that the purpose of the prohibition is to keep minors from premises where fermented malt beverages are sold.
". . .
"There is sense in the law. It does not forbid the presence of minors in a hotel, drug store, grocery store, or bowling alleys even though the owner or operator of such premises holds a license for the sale of fermented malt beverages. The predominant purpose of those establishments is to furnish lodging, food, sale of drugs and groceries, and for the recreation of bowling. Minors are not contaminated by their presence in such places. Their entry and presence on those and like exempted premises are primarily for their indulgence of their particular accommodations. The law does forbid the presence of minors, for amusement purposes, in bars and taverns where fermented malt beverages are primarily and exclusively sold, consumed or dispensed. It is no excuse that the bar premises intimately embrace a bowling alley and rely on it to extricate it from the restriction. The evil of permitting minors to loiter in bars and taverns amusement purposes, which the law seeks to avoid, is just as predominate whether the bar premises are or are not attached, integrated or combined with the bowling alley. Such proximate physical relationship does not destroy the character of the bar. The purpose of the bar is the exclusive sale of malt beverages. The purpose of the alleys is to afford the recreation of bowling. These are separate and distinct purposes, and neither is destroyed by the expediency of the physical affiliation of the accommodations.
"Permitting a minor to be at a bowling alley for recreational purposes does not grant the unrestricted leave to loiter in bar rooms however free, easy, convenient or inviting the access be."
We point out additionally that the statute is drafted in extremely broad terms and appears to us to be intended to keep minors out of "Class B" licensed premises. The exemption is narrow, including only a short list of specific instances where minors may legally be on the premises, although licensed. It is apparent that the exemption exists so as not to impose an undue burden upon the minor in his attempt to enjoy entertainment, travel, and the like.
In other words, the exemption exists so that minors may bowl, dine, watch sporting activities, buy groceries and drugs, and purchase goods from concessions according to the terms of the statute. The statute nowhere condones the presence of minors in barrooms, nor does it create a bowling alley out of that which is obviously a tavern or a barroom.
From the pictures reproduced as a part of this opinion, and others contained in the record, we conclude that there can be no question over one's presence in the barroom, the bowling alley area, or the restaurant. There is a definite doorway or archway which clearly separates the bowling alley area from the barroom. Although defendant argues that one cannot determine his presence to be in one area or the other, the language of the stipulation itself effectively contradicts this argument. Defendant stipulated that minors "were in and about the barroom." It is obvious that she had no difficulty in determining what constitutes the barroom and what does not.
In 41 Op. Atty. Gen. (1952), 340, the only authority of any kind of which we are aware on the construction of this statute, the issue was whether the statute was violated where a minor was allowed in a barroom which constituted about one fourth of a country store. The attorney general concluded that the nature of the grocery store as a grocery store was unaffected by the presence of a barroom under the same roof. And likewise, the nature of the barroom as such was unaffected by the presence of the grocery store. It was, therefore, a violation to allow a minor in the barroom.
Groceries could easily be purchased without entering the barroom. Here, too, bowling may be engaged in without entering the barroom.
We agree with the attorney general's analysis and reiterate what we said recently in Green v. Jones (1964), 23 Wis.2d 551, 558, 128 N.W.2d 1, that attorney general's opinions relating to the purposes of a statute are "persuasive guides as to the meaning and purpose of the enactment."
We therefore conclude that the trial court correctly interpreted the statute and found it applicable to the facts of this case.
By the Court. — Judgment affirmed.