Ephraim Beer and Wine Referendum Will Be Binding, For Now

The April 5 referendum on beer and wine licenses will last for two years before the Ephraim Village Board has the power to rescind or uphold the will of the voters. Ephraim Village Attorney Jim Kalny said the vote will be binding for the two-year life of the referendum.

“After two years, the board is free to revert,” said Kalny. “In my opinion, it’s binding for two years if it passes.”

A bill on Governor Scott Walker’s desk brings forth this legal loophole in Ephraim’s vote. Assembly Bill 624 will repeal the referendum process for alcohol licensing under state statute 125.05. Hugh Mulliken followed the law that will be repealed when he petitioned for questions of beer and wine licenses to be added to the April 5 ballot.

State Representative Joel Kitchens met with the bill’s author, David Steffen (R-Green Bay), after fielding calls from Ephraim residents about the effects of the bill on the village’s vote.

“That bill was never really intended to affect Ephraim,” said Kitchens. “Ephraim came up in the discussion and they did not want to affect their referendum.”

So Kitchens and Steffen asked Walker to not sign the bill until after the April 5 vote. Before being approached, Walker was expected to sign the bill on March 30, possibly repealing the binding nature of the April 5 referendum vote. By waiting until after the referendum, Walker allows the vote to be binding for the life of the referendum.

All referendums on a single issue in Wisconsin can only be brought to vote every two years. After Walker signs Assembly Bill 624, that referendum process for alcohol licensing will no longer exist, giving the power on alcohol licensing to the village board.

But at the time of the vote, the referendum process will still be state law, requiring the village to comply with the will of a majority of voters. After two years, that referendum can typically be brought to vote again following the same petition process. But since the process will be repealed, the power to allow or prohibit alcohol licenses will go straight to the village board.

Kalny said a vote for allowing beer and wine licenses does not force the board to issue licenses, but gets the administrative work in place.

“Is it a requirement that they issue them? No there isn’t,” said Kalny. “But they would measure the public interest. It’s a little bit harder to say it’s not in the public interest when the public has said it is in the public interest with their vote.”

If Ephraim votes in favor of alcohol licenses, the board will be required to begin preparing an application process for businesses to apply for licenses. The village will receive a license application from the Department of Revenue (DOR) and make changes to its zoning ordinance, which currently prohibits the sale of alcohol. The village can also adopt ordinances on setting a quota for the number of licenses administered and the times in which alcohol can be sold.

The board is not explicitly required by state law to issue any licenses, but Kalny believes that if the referendum is in favor of alcohol licenses, then there is an expectation that licenses will be issued.

A 1942 Wisconsin Supreme Court Case (Rawn v. Superior) judged that a municipality could only refuse to issue an alcohol license if it used good judgment and did not discriminate. As long as an application is properly filled out and the majority of voters in Ephraim are in favor of allowing alcohol licenses in the village, the board will be compelled to issue that license.

The arrival of the bill on Walker’s desk that is having such a profound affect on the Ephraim vote was just coincidental timing. The alcohol industry supported the bill to eliminate the local option of restricting alcohol licenses.

Under current state law, neighborhoods of between 100 and 750 people within a municipality can petition to prohibit alcohol licenses from operating in their neighborhood through the same petition process that was used in Ephraim. This “residence district remonstrance” provision would also be removed in the bill along with the referendum process, lifting some boundaries on alcohol licensing.

“I think it was something that has been in the statutes that hasn’t really been utilized for the most part and I think it was just thinking, ‘Let’s clean this up if we’re not using it’,” said Scott Stenger, legal representation for the Tavern League of Wisconsin. “Instead of having municipalities dealing with referendums, we think the power should lie with the municipal board or mayor or president. It doesn’t take away the option for the municipality to be dry if they choose to be, it just takes away that very seldom used process of a referendum.”

But the referendum process will be used one more time in Ephraim.