2005AP1063 Eichenseer v. Madison-Dane County Tavern League, Inc.

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Collusion between a municipality and taverns to restrain competition in the sale of alcohol does not violate the antitrust laws.

“To address the concerns cited by the court in Odelberg, the state legislature has directed that taverns be extensively regulated. The bulk of the state’s regulatory statutes relating to the sale of alcohol beverages are contained in Wis. Stat. ch. 125, where, in addition to enacting specific statewide restrictions and requirements regarding the retail sale of alcohol beverages, the legislature has also granted municipalities broad authority to do likewise. See, e.g., Wis. Stat. § 125.10(1) (‘Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter.’). Among the most important powers granted to municipalities is the power to issue licenses for the retail sale of alcohol beverages, to impose conditions on licensees and to revoke licenses for violations of these conditions. See, e.g., Wis. Stat. §§ 125.04; 125.09(1); 125.12(2).

“There can be little question that the legislature intends state and local regulation to supplant competition in the retail sale of alcohol beverages, given that many of the provisions in Wis. Stat. ch. 125 are overtly anticompetitive and are themselves ‘restraints on trade.’ See, e.g., Wis. Stat. §§ 125.05 (authorizing local referenda to prohibit all sales of alcohol beverages within a municipality), and 125.51(4) (imposing quotas on the number of ‘Class B’ (tavern) licenses that a municipality may issue). We are thus satisfied that ‘the legislature contemplated the type of anticompetitive activity engaged in by the City,’ American Med. Transp., 154 Wis. 2d at 149, that is at issue in this case—the elimination or limitation of the use of ‘drink specials’ by campus-area taverns.”

Affirmed.

Recommended for publication in the official reports.

Dist. IV, Dane County, Bartell, J., Deininger, J.

Attorneys: For Appellant: Hunt, Kay N., Hudson; Lindquist, Reid R., Minneapolis, MN; Johnson, Brent R., Minneapolis, MN; Uhr, Steven E., Minneapolis, MN; For Respondent: O’Connor, Kevin J., Madison; Harrison, Kendall W., Madison