DHS 198.01
DHS 198.01
Authority and purpose. Section
254.74, Stats., gives the department authority to prescribe rules for vending machine commissaries and vending machines and their location and servicing, and to enforce these rules for the purpose of protecting the public health.
DHS 198.01 History
History: Cr.
Register, June, 1985, No. 354, eff. 7-1-85; correction made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 1995, No. 469;
CR 08-073: renum. from HFS 198.01
Register January 2009 No. 637, eff. 2-1-09.
DHS 198.02(1)(1)
Applicability. The provisions of this chapter apply to any vending machine commissary and to any self-service food vending machine offered for public use, except a vending machine which dispenses only bottled, prepackaged or canned soft drinks, candy, gum, nuts, nut meats, cookies, crackers, pastry items which have a pH level of 4.6 or below or a water activity (aw) value of 0.85 or less under standard conditions, or prepackaged Grade A pasteurized milk or milk products.
DHS 198.02(2)
(2) Approved comparable compliance. When it appears to the department that strict adherence to a provision of this chapter appears to be impractical for a particular vending machine commissary or vending machine operator, the department may approve a modification in that rule for that facility if the department is provided with satisfactory proof that the grant of a variance will not jeopardize the public's health, safety or welfare.
DHS 198.02 History
History: Cr.
Register, June, 1985, No. 354, eff. 7-1-85;
CR 08-073: renum. from HFS 198.02
Register January 2009 No. 637, eff. 2-1-09.
DHS 198.03
DHS 198.03
Definitions. In this chapter:
DHS 198.03(1)
(1) "Adulterated" means the condition of a food if it bears or contains any poisonous or deleterious substance in a quantity which may be injurious to health; if it bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established under U.S. food and drug administration regulations, or in excess of the tolerance if one has been established; if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for human consumption; if it has been processed, prepared, packed or held under unsanitary conditions, whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; if it is in whole or in part the product of a diseased animal, or an animal which has died otherwise than by slaughter; or if its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health.
DHS 198.03(2)
(2) "Agent" means the city or county designated by the department to make investigations or inspections of vending machines, vending machine operations and vending machine commissaries for compliance with this chapter.
DHS 198.03(3)
(3) "Approved" means acceptable to the department, based on its determination of conformance with this chapter and good public health practices.
DHS 198.03(4)
(4) "Closed" means fitted together snugly, leaving no openings large enough to permit the entrance of vermin.
DHS 198.03(5)
(5) "Department" means the department of health services.
DHS 198.03(6)
(6) "Food" means any raw, cooked or processed edible substance, beverage, ice, water, or ingredient used or intended for use in whole or in part for human consumption.
DHS 198.03(7)
(7) "Food contact surfaces" means those surfaces of equipment and utensils with which food normally comes in contact and those surfaces with which food may come in contact and drain back onto surfaces normally in contact with food.
DHS 198.03(8)
(8) "Hot liquid food or beverage" means liquid food or beverage, the temperature of which at the time of service to the consumer is at least 150°F. (66°C.).
DHS 198.03(9)
(9) "Milk and milk products" means grade A milk and grade A milk products.
DHS 198.03(10)
(10) "Person" means an individual, partnership, association, firm, company, corporation, city, village, county or town, whether tenant, owner, lessee or licensee, or the agent, heir or assignee of any of these.
DHS 198.03(11)
(11) "Potentially hazardous food" means any food that consists in whole or in part of milk, milk products, eggs, meat, poultry, fish, shellfish, edible crustacea or any other ingredients, including synthetic ingredients, which are in forms capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms."Potentially hazardous food" does not include clean, whole uncracked, and odor-free shell eggs or foods which have a pH level of 4.6 or below or a water activity (aw) value of 0.85 or less under standard conditions.
DHS 198.03(12)
(12) "Sealed" means free of cracks or other openings which permit the entry or passage of moisture.
DHS 198.03(13)
(13) "Single-service article" means a cup, container, lid or closure, plate, knife, fork, spoon, stirrer, paddle, straw, place mat, napkin, doily, wrapping material, or any similar article which is constructed wholly or in part from paper, paperboard, molded pulp, foil, wood, plastic, synthetic or other readily destructible material, and which is intended by the manufacturer and generally recognized by the public as for one usage only and then to be discarded.
DHS 198.03(14)
(14) "Vending machine" means any self-service device offered for public use which, upon insertion of a coin or token, or by other means, dispenses unit servings of food or beverage either in bulk or in package, without the necessity of replenishing the device between each vending operation. "Vending machine" does not include a device which dispenses only bottled, prepackaged or canned soft drinks, a one cent vending device, a vending machine dispensing only candy, gum, nuts, nut meats, cookies or crackers, or a vending machine dispensing only prepackaged grade A pasteurized milk or milk products.
DHS 198.03(15)
(15) "Vending machine commissary" means any building, room or place in the state at which foods, containers, transport equipment or supplies for vending machines are kept, handled, prepared or stored by a vending machine operator, except a place at which the operator is licensed to manufacture, distribute or sell food products under
ch. 97, Stats.
DHS 198.03(16)
(16) "Vending machine location" has the meaning in s.
254.61 (9), Stats., namely, the room, enclosure, space or area where one or more vending machines are installed and operated.
DHS 198.03(17)
(17) "Vending machine operator" or "operator" has the meaning prescribed in s.
254.61 (10), Stats., namely, the person maintaining a place of business in the state and responsible for the operation of one or more vending machines.
DHS 198.03 History
History: Cr.
Register, June, 1985, No. 354, eff. 7-1-85; correction in (16) and (17) made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 1995, No. 469;
CR 08-073: renum. from HFS 198.03 and am. (5)
Register January 2009 No. 637, eff. 2-1-09.
DHS 198.04(1)(a)(a) No person may operate a vending machine, vending machine commissary, or vending machine commissary storage unless the person, the vending machine, vending machine commissary, or vending machine commissary storage has a permit from the department. To receive an operator's permit or a permit for a vending machine, vending machine commissary, or vending machine commissary storage, the operator shall submit an application under
sub. (4) and pay the applicable fee specified in Table DHS 198.05. A separate permit is required for each vending machine, vending machine commissary, or vending machine commissary storage.
DHS 198.04(1)(b)
(b) If a vending machine operator sells or otherwise transfers ownership or operation of a vending machine, vending machine commissary, or vending machine commissary storage except as provided under
sub. (3), a new permit is required and the vending machine, vending machine commissary, or vending machine commissary storage may not be opened until the department has issued a new permit.
DHS 198.04(2)(a)(a) Each permit issued under this chapter expires on June 30, except that a permit initially issued during the period beginning on April 1 and ending on June 30 expires on June 30 of the following year.
DHS 198.04(3)
(3) Transferability of permits. An individual may transfer a permit to an immediate family member, as defined in s.
254.64 (4) (a) 2., Stats., if the individual is transferring operation of a vending machine, vending machine commissary, or vending machine commissary storage. A sole proprietorship that reorganizes as a business entity, as defined in s.
179.70 (1), Stats., or a business entity that reorganizes as a sole proprietorship or a different type of business entity may transfer a permit to the newly formed business entity or sole proprietorship if the vending machine, vending machine commissary, or vending machine commissary storage remains at the location for which the permit was issued and at least one individual who had an ownership interest in the sole proprietorship or business entity to which the permit was issued has an ownership interest in the newly formed sole proprietorship or business entity. Except as provided in this subsection, no permit issued under this chapter is transferable from one premise to another or from one person or entity to another.
DHS 198.04 Note
Note: Under s.
254.64 (4) (a) 2., Stats., "Immediate family member" means a spouse, grandparent, parent, sibling, child, stepchild, or grandchild or the spouse of a grandparent, parent, sibling, child, stepchild, or grandchild. Under s.
254.64 (4) (a) 1. and s.
179.70 (1), Stats., a "business entity" means: a corporation, as defined in s.
180.0103 (5), Stats., a limited liability company, as defined in s.
183.0102 (10), Stats., a limited partnership, or a corporation, as defined in s.
181.0103 (5), Stats., a foreign limited liability company, as defined in s.
183.0102 (8), Stats., a foreign limited partnership, a foreign corporation, as defined in s.
180.0103 (9), Stats., or a foreign corporation, as defined in s.
181.0103 (13), Stats.
DHS 198.04(4)(a)(a)
Initial permit. Application for an initial or new permit shall be made on an application form furnished by the department and shall be accompanied by all of the following:
DHS 198.04(4)(a)2.
2. Information, as determined by the department, indicating that the vending machine, vending machine commissary, or vending machine storage will be maintained and operated in compliance with applicable federal and state laws and that rules have been implemented for the operation of the vending machine or vending machine commissary that will protect the health, safety, and welfare of the public.
DHS 198.04 Note
Note: To obtain a copy of the application form for a permit to operate a vending machine or vending machine commissary, write or phone: Bureau of Environmental and Occupational Health (BEOH), P.O. Box 2659, Madison, Wisconsin 53701-2659 (608-266-2835). You may also contact the BEOH at
www.dhs.wi.gov/fsrl.
DHS 198.04(4)(b)
(b)
Renewal permit. To renew the permit of an establishment, the operator shall pay the department, the applicable establishment permit fee specified under
s. DHS 198.05 before the permit expires. If the payment to renew the permit of an establishment is not made to the department before the expiration date of the establishment permit, the late fee specified under
s. DHS 198.05 (2) (c) shall be paid in addition to the permit fee.
DHS 198.04(5)
(5) Department or agent action on permit application. DHS 198.04(5)(a)(a) The department shall issue or deny a permit within 30 days after receiving a complete application, all applicable fees, and the other information required under
sub. (4).
DHS 198.04(5)(b)
(b) Except as provided in ss.
250.041 and
254.115, Stats., the initial issuance, renewal or continued validity of a permit issued under this subsection may be conditioned upon the requirement that the permit holder correct a violation of this chapter, ss.
254.61 to
254.88, Stats., or ordinances adopted under s.
254.69 (2) (g), Stats., within a period of time specified. If the condition is not met within the specified time or after an extension of time as approved by the department, the permit is void. No person may operate a vending machine, vending machine commissary, or vending machine commissary storage after the permit for the operator, vending machine, vending machine commissary, or vending machine commissary storage has been voided under this paragraph, and any person who does so shall be subject to the penalties under s.
254.88, Stats. An owner whose permit is voided under this subsection may appeal the decision under
s. DHS 198.08.
DHS 198.04(5)(c)
(c) The department may refuse to issue or renew a permit to operate a vending machine commissary or vending machine commissary storage under any of the following circumstances:
DHS 198.04(5)(c)1.
1. The department or its agent has not conducted a preinspection of the vending machine commissary or vending machine commissary storage for which an initial or new permit is required under
sub. (1).
DHS 198.04(5)(c)2.
2. The operator of a vending machine, vending machine commissary, or vending machine commissary storage has not corrected a condition for which the department or agent has issued a written a health or safety-related order.
DHS 198.04(5)(c)3.
3. All applicable fees under
s. DHS 198.05 have not been paid, including the permit fee, preinspection fee, reinspection fee, or other applicable fees.
DHS 198.04(5)(c)4.
4. The vending machine operator has modified, repaired or maintained the vending machine, vending machine commissary, or vending machine commissary storage in a manner that is not in accordance with what the department recognizes as safe practice as outlined in this chapter.
DHS 198.04(5)(c)5.
5. The vending machine operator, applicant, or permit holder has failed to provide the department or its agent with information required under
sub. (4).
DHS 198.04(5)(c)6.
6. The vending machine operator or applicant has violated
ch. 254, Stats., this chapter, or any order, ordinance, or regulation created by a village, city, county, or local board of health having jurisdiction, provided such violation is related to the operation of the vending machine, vending machine commissary, or vending machine commissary storage.
DHS 198.04(5)(d)
(d) If the department denies an application for a permit, the applicant shall be given reasons, in writing, for the denial and information regarding appeal rights under
s. DHS 198.08.
DHS 198.04(6)
(6) Voided permit for failure to pay fees. If an applicant or vending machine operator fails to pay all applicable fees, late fees and processing charges under
s. DHS 198.05 within 15 days after the applicant or operator receives notice of an insufficiency under
s. DHS 198.05 (3), or within 45 days after the expiration of the permit, whichever occurs first, the permit is void. An operator whose permit is voided under this subsection may appeal the decision under
s. DHS 198.08. In an appeal concerning a voided permit under this subsection, the burden is on the permit applicant or operator to show that the entire applicable fees, late fees and processing charges have been paid. During any appeal process concerning a payment dispute, operation of the vending machine, vending machine commissary, or vending machine commissary storage is deemed to be operation without a permit and is subject to the fees under
s. DHS 198.05 (2) (e) in addition to the fees otherwise due, unless the applicant or operator meets its burden of proof under this subsection.
DHS 198.04(7)
(7) Permit posting. A current permit issued by the department shall be posted in a place visible to the public. A permit may not be altered or defaced.
DHS 198.04 History
History: Cr.
Register, June, 1985, No. 354, eff. 7-1-85; emerg. am. (1), cr. (1m), eff. 7-1-94; am. (1), cr. (1m),
Register, January, 1995, No. 469, eff. 2-1-95; emerg. am. (1m) (a) 1., (b) 1., (c) and (e), eff. 7-1-96; am. (1m),
Register, January, 1997, No. 493, eff. 2-1-97; am. (1m), cr. (1m) (f),
Register, August, 1998, No. 512, eff. 9-1-98;
CR 01-016: r. and recr. (1) and (1m)
Register May 2002 No. 557, eff. 6-1-02;
CR 08-073: renum. from HFS 198.04, r. and recr.
Register January 2009 No. 637, eff. 2-1-09; corrections in (3) and (4) (b) made under s.
13.92 (4) (b) 7., Stats.,
Register January 2009 No. 637.
DHS 198.05(1)(1)
Fee schedules. The fees listed in Table DHS 198.05 A shall apply to permits issued from April 1, 2009 through March 31, 2011. The fees listed in Table DHS 198.05 B shall apply to permits issued on or after April 1, 2011.
DHS 198.05(2)(a)(a)
Preinspection fee. The operator of a vending machine commissary or vending machine commissary storage shall, pursuant to
sub. (1), pay the applicable preinspection fee listed in Table DHS 198.05 A or B to the department before an initial or new permit is issued under
s. DHS 198.04.
DHS 198.05(2)(b)
(b)
Permit fee. The operator of a vending machine, vending machine commissary, or vending machine commissary storage shall, pursuant to
sub. (1), pay the applicable permit fee listed in Table DHS 198.05 A or B to the department for each vending machine, vending machine commissary, or vending machine commissary storage that the operator applies for a permit to operate under
s. DHS 198.04 (1) or
(2).
DHS 198.05(2)(c)
(c)
Late fee. If the permit fee for an operator's, vending machine commissary, or vending machine commissary storage permit renewal is not paid before the expiration date of the permit, the operator of the vending machine commissary or vending machine commissary storage shall pay to the department a late fee of $85.00 in addition to the renewal permit fee for each permit for which the department receives after the expiration date of the permit.
DHS 198.05(2)(d)
(d)
Reinspection fee. If the department conducts a reinspection of a vending machine commissary or vending machine commissary storage under
s. DHS 198.06 (1) (b) 1. and
2., the vending machine operator shall pursuant to
sub. (1), pay to the department the applicable reinspection fee listed in Table DHS 198.05 A or B. The department shall assess an additional reinspection fee equal to the reinspection fee listed in Table DHS 198.05 A or B, whichever is applicable, for any additional reinspection conducted under
s. DHS 198.06 (1) (b) 4.
DHS 198.05(2)(e)1.1. For any operator, or vending machine commissary, or vending machine commissary storage found to be operating without a permit, the operator shall pay to the department $749 in addition to all applicable fees and processing charges under
s. DHS 198.04 (6).
DHS 198.05(2)(e)2.
2. For any vending machine found to be operating without a permit, the operator shall pay to the department 3 times the annual vending machine permit fee listed in Table DHS 198.05, in addition to all applicable fees and processing charges under
s. DHS 198.04 (6).
DHS 198.05 Note
Note: Anyone operating a vending machine, vending machine commissary, or vending machine commissary storage without a permit is also subject to a fine of not less than $100 nor more than $1,000 under s.
254.88, Stats.
DHS 198.05(2)(f)
(f)
Duplicate permit. The department shall charge the operator of a vending machine commissary or vending machine commissary storage $15 for a duplicate permit.
DHS 198.05(2)(g)
(g)
Fees for special condition inspections. For inspection or consultation activities that are not directly related to the department's permitting and licensing responsibilities, the departments shall charge the operator or the entity requesting the inspection or consultation $175.
DHS 198.05(3)
(3) Method of payment. If the payment for an initial or renewal permit is by check or other draft drawn upon an account containing insufficient funds, the applicant or owner shall, within 15 days after receipt of notice from the department of the insufficiency, pay all applicable fees under
sub. (1) and the financial institution's processing charges by cashier's check or other certified draft, money order, or cash.
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See PDF for table 
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See PDF for table DHS 198.05 History
History: CR 08-073: cr.
Register January 2009 No. 637, eff. 2-1-09; correction in (2) (e) 2. made under s.
13.92 (4) (b) 7., Stats.,
Register January 2009 No. 637.
DHS 198.06(1)(a)(a)
Inspections. Under ss.
254.69 (2) and
254.85 (1), Stats., an authorized employee or agent of the department, upon presenting proper identification, may enter any vending machine, vending machine commissary, or vending machine commissary storage at any reasonable time, for any of the following purposes:
DHS 198.06(1)(a)1.
1. To inspect the vending machine, vending machine commissary, or vending machine commissary.
DHS 198.06(1)(a)5.
5. To examine and copy relevant documents and records provided such information is related to the operation of the vending machine, vending machine commissary, or vending machine commissary.
DHS 198.06(1)(a)6.
6. To obtain photographic or other evidence needed to enforce this chapter.
DHS 198.06(1)(b)1.1. The department or its agent may reinspect a vending machine, vending machine commissary, or vending machine commissary storage whenever an inspection or the investigation of a complaint reveals the existence of a violation that is potentially hazardous to the health and welfare of patrons or employees of the vending machine, vending machine commissary, vending machine commissary storage.
DHS 198.06(1)(b)2.
2. A reinspection shall be scheduled to allow the operator a reasonably sufficient time to correct the deficiencies.
DHS 198.06(1)(b)3.
3. A reinspection fee shall be charged for the reinspection according to Table DHS 198.05 A or B, or applicable charges as determined by an agent of the department.
DHS 198.06(1)(b)4.
4. If an additional reinspection is required because a violation has not been corrected in the scheduled time, the department shall assess the operator an additional reinspection fee equal to the reinspection fee in Table DHS 198.05 A or B, as applicable, as authorized under
s. DHS 198.05 (2) (d), and the department may order the owner to show just cause why the permit should not be suspended or revoked under
s. DHS 198.07.
DHS 198.06(2)(a)(a) If upon inspection of a vending machine, vending machine commissary, or vending machine commissary storage, the department or agent finds that the vending machine, vending machine commissary, vending machine commissary storage is not designed, constructed, equipped or operated as required under this chapter, the department or agent shall issue a written order to correct the violation. The order shall specify the correction needed for compliance and the time period within which the correction should be made. The time period specified in the order may be extended at the discretion of the department or agent.
DHS 198.06(2)(b)
(b) If the order to correct violations is not carried out by the expiration of the time period stated in the order, or any extension of time granted for compliance, the department or agent may issue an order under
s. DHS 198.07 to suspend or revoke the permit to operate the vending machine or vending machine commissary.
DHS 198.06(2)(c)
(c) Under s.
254.88, Stats., any person who fails to comply with an order of the department shall forfeit $50 for each day of noncompliance after the order is served upon or directed to him or her. A person may appeal a forfeiture under
s. DHS 198.08.
DHS 198.06(3)(a)(a) As provided in s.
254.85, Stats., whenever the department or agent has reasonable cause to believe that an immediate danger to health or safety exists as a result of an inspection under
sub. (1), the department or agent may issue a temporary order without advance notice or hearing to do any of the following:
