SB313: Bill Text Engrossed

LRB-4387/1

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1997 - 1998 LEGISLATURE

Engrossed 1997 Senate BILL 313

November 24, 1997 - Printed by direction of Assembly Chief Clerk.

SB313-engrossed,1,7 An Act to repeal 134.66 (2) (cm) 2. and 3. and 938.983 (1) (b); to renumber and amend 134.66 (2) (cm) 1.; to amend 134.65 (1), 134.66 (2) (a), 134.66 (2) (e), 134.66 (3) (intro.), 134.66 (4) (a) 2. (intro.), 938.983 (2) (intro.) and 938.983 (4); to repeal and recreate 134.66 (2) (c); and to create 134.65 (2) (c), 134.66 (2) (cm) 1m., 134.66 (4) (am), 938.343 (11), 938.983 (2m) and 938.983 (3m) of the statutes; relating to: restrictions on the sale or giving away of cigarettes or tobacco products and providing a penalty.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 1997 Senate Bill 313 consists of the following documents adopted in the senate on November 19: the bill as affected by Senate Amendment 1, Senate Amendment 2, Senate Amendment 3, Senate Amendment 8, Senate Amendment 9, Senate Amendment 13, Senate Amendment 16 and Senate Amendment 18. Items 5 and 7 of Senate Amendment 13 could not be given effect because Senate Amendment 8 had earlier deleted that text from the bill.

Content of Engrossed 1997 Senate Bill 313:

Under current law, a person engaged in the retail sale of cigarettes or tobacco products must be licensed by the city, village or town in which the privilege is exercised. The annual fee for the license is $5. This bill authorizes the city, village or town to charge the licensee an additional fee to be used by the city, village or town or its agent for the purpose of determining compliance by retailers with the state law or local ordinance that prohibits the sale of cigarettes or tobacco products to persons under the age of 18. If a city, village or town elects not to charge the fee, the bill authorizes the county in which the retailer is located to charge the licensee a fee to be used by the county or its agent for the purpose of determining compliance by retailers with the state law or local ordinance that prohibits the sale of cigarettes or tobacco products to persons under the age of 18.

Under current law, a retailer, manufacturer or distributor of cigarettes or tobacco products is prohibited from selling or giving such products to any person under the age of 18, except in the circumstance where the person handles cigarettes or tobacco products in the course of employment. A vending machine operator is immune from liability under this prohibition if cigarettes or tobacco products are obtained from his or her vending machine by a person under the age of 18 if the vending machine operator was unaware of the purchase. Additionally, current law recognizes a defense to the violation of the prohibition against sales to persons under the age of 18, if the retailer, manufacturer or distributor of cigarettes or tobacco products proves all of the following: 1) that the purchaser falsely represented that he or she had attained the age of 18 and presented an identification card; 2) that the appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser had attained the age of 18; and 3) the sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser and in the belief that the purchaser had attained the age of 18.

The bill prohibits vending machine sales unless the vending machine is located in a place where the retailer or vending machine operator ensures that no person younger than 18 years of age is present, or permitted to enter, unless the person is accompanied by a parent, guardian or adult spouse.

Except for the limited authority to sell cigarettes from a vending machine accessible only to adults, the bill prohibits a retailer from offering for sale cigarettes or tobacco products in a manner that results in their being accessible to the public. The bill also prohibits a retailer or retailer's employe or agent from selling, bartering or exchanging cigarettes or tobacco products to another person unless the retailer or his or her employe or agent assists that person in obtaining the cigarettes or tobacco products. The bill exempts facilities where the retailer ensures that no persons under the age of 18 are permitted to enter. The bill specifically prohibits employes and agents of retailers from selling or giving cigarettes to persons under the age of 18 and imposes a forfeiture of $250 for these violations.

Under current law, a retailer is prohibited from selling cigarettes in a form other than as a package or a container on which a cigarette tax stamp has been affixed. Although tax stamps are usually affixed to packages of 20 cigarettes, state law does not preclude the purchase and affixing of tax stamps to packages with fewer than 20 cigarettes. The bill prohibits a retailer, manufacturer, distributor, jobber or vending machine operator from selling or giving away cigarettes in a package or container with fewer than 20 cigarettes.

Under current law, a person who is younger than 18 years of age is prohibited from: buying or attempting to buy a cigarette or tobacco product; falsely representing his or her age for the purpose of receiving any cigarette or tobacco product; and possessing any cigarette or tobacco product. Such a person is permitted, however, to 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 licensed retailer. The bill creates an additional exemption from these prohibitions that permits a person under the age of 18 to buy, attempt to buy, possess or falsely represent his or her age orally for the purpose of determining whether or not a retailer is in compliance with the prohibition against selling or giving cigarettes or tobacco products to persons under the age of 18. The exemption applies if the person has the permission of his or her parent or guardian and the written approval to engage in this compliance check from a law enforcement agency, the department of health and family services, a local health department or a district attorney. A local health department, however, may authorize a person under the age of 18 to engage in a compliance check only if the local health department is permitted to under a local ordinance or if a law enforcement agency approves that authorization.

Lastly, in addition to the various penalties that currently apply to a juvenile who violates any of the prohibitions against the purchase, attempt to purchase or possession of cigarettes or tobacco products, the bill permits a court to order the offender to attend a course relating to the health risks associated with the use of cigarettes or tobacco products, if such a course is available within a reasonable distance from his or her residence. The bill also specifies that the penalties that apply to a juvenile, that is, a person under 17 years of age, who violates any of these prohibitions also apply to a person under 18 years of age who violates any of these prohibitions. Under current law, the penalties specified in the juvenile justice code for a violation of any of these prohibitions only apply to a "juvenile", as defined in current law. Thus 17-year-olds are not currently included.

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

SB313-engrossed, s. 1g Section 1g. 134.65 (1) of the statutes is amended to read:

SB313-engrossed,3,7 134.65 (1) No person shall, or the person's agent or employe, may in any manner, or upon any pretense, or by any device, directly or indirectly 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 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.

SB313-engrossed, s. 1m Section 1m. 134.65 (2) (c) of the statutes is created to read:

SB313-engrossed,4,7 134.65 (2) (c) In addition to the fee under par. (a), the city, village or town may charge the licensee a fee to be used by the city, village or town or its agent for the purposes of determining and enforcing compliance with s. 134.66 (2), or an ordinance enacted under s. 134.66 (5), by retailers. If a city, village or town elects not to charge a fee, the county in which the retailer is located may charge the licensee a fee to be used by the county or its agent for these purposes.

SB313-engrossed, s. 2 Section 2. 134.66 (2) (a) of the statutes is amended to read:

SB313-engrossed,4,14 134.66 (2) (a) No retailer, or employe or agent of a retailer, manufacturer or distributor may sell or give cigarettes or tobacco products to any a person under who has not attained the age of 18 years, except as provided in s. 938.983 (3). A vending machine operator is not liable under this paragraph for the purchase of cigarettes or tobacco products from his or her vending machine by a person under the age of 18 if the vending machine operator was unaware of the purchase.

SB313-engrossed, s. 3 Section 3. 134.66 (2) (c) of the statutes is repealed and recreated to read:

SB313-engrossed,4,17 134.66 (2) (c) 1. No retailer may offer for sale cigarettes or tobacco products in a manner that results in their being directly accessible to the public.

SB313-engrossed,4,20 2. No retailer or retailer's employe or agent may sell, exchange or barter cigarettes or tobacco products to another person unless the retailer or his or her employe or agent assists that person in obtaining the cigarettes or tobacco products.

SB313-engrossed,4,22 3. Subdivisions 1. and 2. do not apply to the sale of cigarettes or tobacco products from vending machines that are in compliance with par. (cm).

SB313-engrossed,4,25 4. Subdivisions 1. and 2. do not apply to the sale of cigarettes or tobacco products in facilities in which the retailer ensures that no person under the age of 18 years is present, or is able to enter, at any time.

SB313-engrossed, s. 4 Section 4. 134.66 (2) (cm) 1. of the statutes is renumbered 134.66 (2) (cm) 2. and amended to read:

SB313-engrossed,5,4 134.66 (2) (cm) 2. Notwithstanding par. (c) subd. 1m., no retailer may place a vending machine within 500 feet of a school.

SB313-engrossed, s. 5 Section 5. 134.66 (2) (cm) 1m. of the statutes is created to read:

SB313-engrossed,5,11 134.66 (2) (cm) 1m. A retailer or vending machine operator may not sell cigarettes or tobacco products from a vending machine unless the vending machine is located in a place where the retailer or vending machine operator ensures that no person younger than 18 years of age is present or permitted to enter unless he or she is accompanied by his or her parent or guardian or by his or her spouse who has attained the age of 18 years.

SB313-engrossed, s. 6 Section 6. 134.66 (2) (cm) 2. and 3. of the statutes are repealed.

SB313-engrossed, s. 7 Section 7. 134.66 (2) (e) of the statutes is amended to read:

SB313-engrossed,5,18 134.66 (2) (e) No retailer may sell cigarettes in a form other than as a package or container on which a stamp is affixed under s. 139.32 (1). No retailer, manufacturer, distributor, jobber or vending machine operator, or their employes or agents, may sell or give away cigarettes in a package or container with fewer than 20 cigarettes.

SB313-engrossed, s. 7q Section 7q. 134.66 (3) (intro.) of the statutes is amended to read:

SB313-engrossed,5,23 134.66 (3) Defense of retailer, manufacturer and distributor. (intro.) Proof of all of the following facts by a retailer, an employe or agent of a retailer, a manufacturer or a distributor who sells cigarettes or tobacco products to a person under the age of 18 is a defense to any prosecution for a violation of sub. (2) (a):

SB313-engrossed, s. 8g Section 8g. 134.66 (4) (a) 2. (intro.) of the statutes is amended to read:

SB313-engrossed,6,2 134.66 (4) (a) 2. (intro.) A person, other than an employe or agent of a retailer, who commits a violation is subject to a forfeiture of:

SB313-engrossed, s. 8m Section 8m. 134.66 (4) (am) of the statutes is created to read:

SB313-engrossed,6,6 134.66 (4) (am) 1. In this paragraph, "violation" means a violation of sub. (2) (a), (c), (d) or (e) or a local ordinance that strictly conforms to sub. (2) (a), (c), (d) or (e).

SB313-engrossed,6,8 2. An agent or employe of a retailer who commits a violation is subject to a forfeiture of not more than $250.

SB313-engrossed, s. 9 Section 9. 938.343 (11) of the statutes is created to read:

SB313-engrossed,6,13 938.343 (11) If the violation is of s. 938.983 (2) or an ordinance enacted under s. 938.983 (5), order the juvenile to attend a course relating to the health risks associated with the use of cigarettes or tobacco products if such a course is available within a reasonable distance from the juvenile's residence.

SB313-engrossed, s. 10 Section 10. 938.983 (1) (b) of the statutes is repealed.

SB313-engrossed, s. 11 Section 11. 938.983 (2) (intro.) of the statutes is amended to read:

SB313-engrossed,6,17 938.983 (2) (intro.) Except as provided in sub. subs. (3) and (3m), no person under 18 years of age may do any of the following:

SB313-engrossed, s. 12 Section 12. 938.983 (2m) of the statutes is created to read: