SB546: Bill Text

LRB-4651/2

DAK:skg:jlb

1995 - 1996 LEGISLATURE

1995 Senate BILL 546

February 14, 1996 - Introduced by Senators Buettner, Cowles, Panzer, Darling, Grobschmidt, Burke, Clausing and Rosenzweig, cosponsored by Representatives Kaufert, Dobyns, Bock, Ott, Urban, Gard, Riley, Duff, Goetsch, Notestein, Wirch, Kelso, Ryba, Boyle, Kreibich, Handrick, Grothman, Plombon, Plache, Vrakas, Huber, Meyer, Olsen, Lorge and Wasserman. Referred to Committee on State Government Operations and Corrections.

SB546,2,2 An Act to repeal 48.983 (1), 48.983 (5), 134.65 (2) (b), 134.66 (1) (k) and (L), 134.66 (2) (c) 3. and 4., 134.66 (2) (cm) 2. and 3., 134.66 (2) (d) and 134.66 (3); to renumber 134.65 (title), 134.66 (1) (a), (b), (c), (d) and (e), 134.66 (1) (h), (hm), (i) and (j) and 134.66 (2) (title); to renumber and amend 48.983 (title), 48.983 (2), 48.983 (3), 48.983 (4), 134.65 (1) and (2) (a), 134.65 (3), (4) and (5), 134.66 (title), 134.66 (1) (intro.), 134.66 (1) (g), 134.66 (2) (a), 134.66 (2) (b) 1., 134.66 (2) (b) 2., 134.66 (2) (c) 1. and 2., 134.66 (2) (cm) 1., 134.66 (2) (e), 134.66 (4) and 134.66 (5); to amend 20.435 (1) (gm), 47.03 (7), 77.54 (20) (c) 6., 111.35 (2) (d), 139.08 (3), 139.39 (1), 139.39 (5) (a), 251.04 (1) and 778.25 (1) (a) 4.; and to create 139.34 (1) (c) 8., subchapter IX (title) of chapter 254 [precedes 254.911], 254.911 (5), (11) and (13) to (15), 254.914 (1m) and (2), 254.914 (5), 254.914 (8), 254.916, 254.92 (2) (c) and (d), 254.92 (3) and 254.922 of the statutes; relating to: transferring to the department of health and family services authority for licensing cigarette and tobacco products retailers and authority to enforce certain prohibitions on the sale, gift, purchase or possession of cigarettes or tobacco products, granting rule-making authority, making an appropriation and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, yearly licenses for the retail sale of cigarettes and tobacco products are issued upon submittal of an application and payment of a $5 fee to the city, village or town in which the retail sale is sought to be conducted. Yearly permits for the manufacture or sale of cigarettes by a distributor, jobber, vending machine operator or multiple retailer and yearly permits for the storage of cigarettes by a warehouse operator are issued by the department of revenue (DOR). Unlicensed sale or gifting of cigarettes and tobacco products to a person who has neither a license nor a permit is prohibited and violators are subject to fines; if the violator is found personally guilty of failure to exercise due care, a court may terminate the license or permit for 5 years. Current law generally prohibits the purchase or possession of cigarettes or tobacco products by minors and prohibits the sale or gifting of cigarettes or tobacco products to minors by retailers, vending machine operators, manufacturers, distributors, jobbers and subjobbers. (A vending machine operator is not liable under this prohibition for the purchase of cigarettes or tobacco products by a minor if the vending machine operator was unaware of the purchase.) Retailers are restricted as to the places where they may keep a vending machine and are prohibited from placing a vending machine within 500 feet of a school. Retailers are, in addition, prohibited from selling cigarettes in a form other than as a package or container which is stamped, for tax purposes, as required by DOR. Violation of these prohibitions subject the violator to forfeitures and, for repeated violations within certain time periods, to suspension of the license of the retailer or the permit of the manufacturer, distributor, jobber or subjobber. A retailer, manufacturer or distributor may assert a defense to prosecution for sale of cigarettes or tobacco products to a minor by proving that the purchaser falsely represented that he or she had attained age 18, that the purchaser's appearance indicated that he or she had attained the age of 18 and that the sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser and the belief that he or she had attained age 18. A county, city, town or village may adopt an ordinance that regulates the sale or gifting of cigarettes or tobacco products if the ordinance strictly conforms to current law.

This bill, on July 1, 1996, transfers from cities, villages and towns to the department of health and family services (DHFS) (formerly the department of health and social services) the authority to license cigarette and tobacco products retailers and to regulate the sale or gifting of cigarettes or tobacco products to minors and the purchase or possession of cigarettes or tobacco products by minors. Under the bill, fines and misdemeanors for the unlicensed sale of cigarettes and tobacco products to persons who have neither a license nor a permit are changed to administrative forfeitures that may be imposed by DHFS. The bill prohibits a licensed retailer or the retailer's employe or agent from selling, exposing for sale, exchanging, bartering, disposing of or giving cigarettes or tobacco products to a person who is not licensed as a retailer or who does not hold a permit as a manufacturer, distributor, jobber, vending machine operator, multiple retailer or warehouse operator, unless both the retailer or his or her employe or agent and the receiver of the cigarettes or tobacco products are physically present on the retailer's licensed premises during the transaction. The bill specifies that forfeitures that may be imposed by DHFS for gifting or sale of cigarettes or tobacco products to minors that is done by a retailer, manufacturer, distributor, jobber, or subjobber or by their agents or employes apply to the retailer, manufacturer, distributor, jobber or subjobber. DHFS is authorized to designate local health departments as DHFS agents for issuance of licenses and inspections and investigations of licensed premises. Local health departments are authorized, in conducting investigations, to authorize the use of minors aged 14 to 17 to assist in the performance of research to monitor compliance with sale or gifting restrictions and to conduct undercover operations. Local health departments must annually conduct at least 2 random, unannounced inspections of licensees whose premises are not taverns and at least one such inspection of licensees whose premises are taverns. The amount of the fees for the annual licenses for retailers is changed to $50, collectible by the local health departments; of this amount, DHFS must receive $10 for its costs in setting standards, monitoring and evaluating activities of local health departments and providing education and training to local health departments. The affirmative defense of a retailer, manufacturer or distributor to prosecution for sale of cigarettes or tobacco products to a minor is changed to be proof of requesting from the minor and examining a government-issued identification card that established the minor's age as at least 18 before the sale was made. The bill permits a county, city or village to enact ordinances and a local board of health to adopt regulations for licensing and regulation of the sale or gifting of cigarettes and tobacco products that are at least as strict as the statutes or DHFS rules. Lastly, the bill prohibits DOR from granting a permit to a person as a cigarette or tobacco products manufacturer, distributor, jobber, vending machine operator, multiple retailer or warehouse operator who (or whose employe or agent) has been found at least 6 times to be in violation of the prohibitions against unlicensed sale or gifting of cigarettes or tobacco products to persons who are not licensed as retailers or permitted by DOR under certain laws.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB546, s. 1 Section 1. 20.435 (1) (gm) of the statutes, as affected by 1995 Wisconsin Acts 27, section 816m, and 98, is amended to read:

SB546,4,7 20.435 (1) (gm) Licensing, review and certifying activities. The amounts in the schedule for the purposes specified in ss. 50.135, 50.49 (2) (b), 50.52 (2) (a), 146.50 (8), 250.05 (6), 254.176, 254.178, 254.20 (5) and (8), 254.31 to 254.39, 254.47, 254.61 to 254.89 254.916 and 255.08 (2), subch. IV of ch. 50 and ch. 150. All moneys received under ss. 50.135, 50.49 (2) (b), 50.52 (2) (a), 50.93 (1) (c), 146.50 (8) (d), 150.13, 250.05 (6), 254.176, 254.178, 254.20 (5) and (8), 254.31 to 254.39, 254.47, 254.61 to 254.89 254.916 and 255.08 (2) (b) shall be credited to this appropriation.

SB546, s. 2 Section 2. 47.03 (7) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB546,4,19 47.03 (7) If the department decides that a business under sub. (4) would not be feasible and profitable in any state building, the department may contract with vending machine operators, as defined in s. 254.61 (10), to install vending machines, as defined in s. 254.61 (7), in the building, giving preference to blind operators of vending machines. The department may, under the procedures established as required under sub. (4) (b), charge the net proceeds of each business operating under this subsection. The department shall deposit the moneys from the charges made under this subsection in the appropriations under s. 20.445 (5) (h) and (hd) and shall disburse the proceeds to provide services to blind persons under sub. (4) in accordance with 20 USC 107 to 107f.

SB546, s. 3 Section 3. 48.983 (title) of the statutes is renumbered 254.92 (2) (title) and amended to read:

SB546,4,23 254.92 (2) (title) Purchase or possession of cigarettes or tobacco products by a minor prohibited.

SB546, s. 4 Section 4. 48.983 (1) of the statutes is repealed.

SB546, s. 5 Section 5. 48.983 (2) of the statutes is renumbered 254.92 (2) (a), and 254.92 (2) (a) (intro.), as renumbered, is amended to read:

SB546,5,4 254.92 (2) (a) (intro.) Except as provided in sub. (3) pars. (b), (c) and (d), no child minor may do any of the following:

SB546, s. 6 Section 6. 48.983 (3) of the statutes is renumbered 254.92 (2) (b) and amended to read:

SB546,5,9 254.92 (2) (b) A child minor may purchase or possess cigarettes or tobacco products for the sole purpose of resale in the course of employment during his or her working hours if employed by a retailer licensed under s. 134.65 (1).

SB546, s. 7 Section 7. 48.983 (4) of the statutes is renumbered 254.92 (2) (e) and amended to read:

SB546,5,14 254.92 (2) (e) A law enforcement officer or local health officer shall seize any cigarette or tobacco product involved in any violation of sub. (2) par. (a) committed in his or her presence.

SB546, s. 8 Section 8. 48.983 (5) of the statutes is repealed.

SB546, s. 9 Section 9. 77.54 (20) (c) 6. of the statutes is amended to read:

SB546,5,23 77.54 (20) (c) 6. For purposes of subd. 1., "premises" shall be construed broadly, and, by way of illustration but not limitation, shall include the lobby, aisles and auditorium of a theater or the seating, aisles and parking area of an arena, rink or stadium or the parking area of a drive-in or outdoor theater. The premises of a caterer with respect to catered meals or beverages shall be the place where served. Vending machine premises The premises of a vending machine, as defined in s. 254.61 (7), shall include the room or area in which located.

SB546, s. 10 Section 10. 111.35 (2) (d) of the statutes is amended to read:

SB546,5,25 111.35 (2) (d) Constitutes a violation of s. 48.983 254.92 (2) (a).

SB546, s. 11 Section 11. 134.65 (title) of the statutes is renumbered 254.914 (title).

SB546, s. 12 Section 12. 134.65 (1) and (2) (a) of the statutes are renumbered 254.914 (1) and (3) and amended to read:

SB546,6,11 254.914 (1) No person shall in any manner, or upon any pretense, or by any device, directly or indirectly Unless a person holds a license issued under this section, the person or the person's employe or agent may not sell, expose for sale, possess with intent to sell, exchange, barter, dispose of or give away any cigarettes or tobacco products to any person not holding a license as herein provided or anyone who is not licensed under this section or who does not hold a permit under ss. 139.30 to 139.41 or 139.79 without first obtaining a license from the clerk of the city, village or town wherein such privilege is sought to be exercised.

SB546,6,16 (3) Except as provided in par. (b), upon filing Upon receipt of a proper written application, the department shall issue a license shall be issued on July 1 of each year or when applied for and. The license shall continue in force until the following June 30 unless the license is sooner revoked. The fee for the license is $5 $50, which shall be paid to the city, village or town treasurer department before the license is issued.

SB546, s. 13 Section 13. 134.65 (2) (b) of the statutes is repealed.

SB546, s. 14 Section 14. 134.65 (3), (4) and (5) of the statutes are renumbered 254.914 (4), (6) and (7) and amended to read:

SB546,6,23 254.914 (4) Each such A license issued under this section shall name the licensee and specifically describe the premises where such on which the business is to may be conducted. Such licenses shall not be The license is not transferable from one person to another nor and is not transferable from one premises to another.

SB546,7,4 (6) Every licensed retailer shall keep complete and accurate records of all purchases and receipts of cigarettes and tobacco products. Such The records shall be preserved on the licensed premises for 2 years in such a manner as to insure ensure permanency and accessibility for inspection and shall be are subject to inspection at all reasonable hours by authorized state officials and local law enforcement and local health officials.

SB546,7,18 (7) Any person violating this section shall be fined forfeit not more than $100 nor less than $25 for the first offense and not more than $200 nor less than $25 for the 2nd or subsequent offense. If upon such the 2nd or subsequent violation, the person so violating this section was is found to be personally guilty of a failure to exercise due care to prevent the violation thereof, the person shall be fined forfeit not more than $300 nor less than $25 or imprisoned not exceeding 60 days or both. Conviction shall immediately terminate the license of the person convicted of being personally guilty of such failure to exercise due care and the person , his or her license is immediately revoked, he or she is not entitled to another license hereunder under this section for a period of 5 years thereafter, nor shall the person and he or she may not in that period act as the servant employe or agent of a person licensed hereunder under this section for the performance of the acts authorized by such a license. The 5-year period shall be measured from the date of the violation that resulted in the revocation of the license.

SB546, s. 15 Section 15. 134.66 (title) of the statutes is renumbered 254.92 (title) and amended to read:

SB546,7,22 254.92 (title) Restrictions on sale or gift or certain purchase or possession of cigarettes or tobacco products.

SB546, s. 16 Section 16. 134.66 (1) (intro.) of the statutes is renumbered 254.911 (intro.) and amended to read:

SB546,7,25 254.911 Definitions. (intro.) In this section subchapter:

SB546, s. 17 Section 17. 134.66 (1) (a), (b), (c), (d) and (e) of the statutes are renumbered 254.911 (1), (2), (3), (4) and (6).

SB546, s. 18 Section 18. 134.66 (1) (g) of the statutes is renumbered 254.911 (7) and amended to read:

SB546,8,6 254.911 (7) "Retailer" means any person licensed the holder of a license issued under s. 134.65 (1) 254.914.

SB546, s. 19 Section 19. 134.66 (1) (h), (hm), (i) and (j) of the statutes are renumbered 254.911 (8), (9), (10) and (12).

SB546, s. 20 Section 20. 134.66 (1) (k) and (L) of the statutes are repealed.

SB546, s. 21 Section 21. 134.66 (2) (title) of the statutes is renumbered 254.92 (1) (title).

SB546, s. 22 Section 22. 134.66 (2) (a) of the statutes is renumbered 254.92 (1) (a) and amended to read: