LRB-4805/2
GMM:rs&kmg&cjs:pg
2001 - 2002 LEGISLATURE
February 12, 2002 - Introduced by Representatives Lippert, Urban, Suder,
Shilling, Jeskewitz, Albers, Hundertmark, Hines, McCormick, Ryba,
Vrakas, Wasserman, Krawczyk, Kreibich, Walker, Ott, Staskunas, Berceau,
Miller, Turner, Underheim, La Fave
and J. Lehman, cosponsored by Senators
Robson, Roessler, Cowles and Darling. Referred to Committee on Public
Health.
AB805,2,2 1An Act to repeal 134.66 (2) (d) and 254.916 (4); to amend 134.66 (2) (b) 2., 134.66
2(3) (intro.), 134.66 (4) (a) 1., 134.66 (5), subchapter IX (title) of chapter 254
3[precedes 254.911], 254.911 (2), 254.916 (1) (b), 254.916 (1) (c), 254.916 (3) (e),
4254.916 (3) (f) (intro.), 254.916 (5), 254.916 (8) and 254.916 (11); to repeal and
5recreate
254.916 (title) and 254.916 (1) (a); and to create 134.65 (1m), 134.66
6(2m), 254.92 (4) and 778.25 (1) (a) 4. of the statutes; relating to: investigations
7to determine compliance with certain prohibitions against selling or giving
8cigarettes and tobacco products to minors, requiring retailers to provide
9training to their employees on compliance with those prohibitions, authorizing
10counties and municipalities to enact ordinances prohibiting minors from
11purchasing or possessing cigarettes and tobacco products, requiring certain
12information to be included on an application for a license to sell, expose for sale,
13possess with intent to sell, exchange, barter, dispose of, or give cigarettes or

1tobacco products to a person, and providing an exemption from rule-making
2procedures.
Analysis by the Legislative Reference Bureau
Under current law, a person is prohibited from directly or indirectly selling,
exposing for sale, possessing with intent to sell, exchanging, bartering, disposing of,
or giving cigarettes or tobacco products to any person unless the person is licensed
by a city, village, or town clerk.
Under this bill, a city, village, or town clerk may not issue a license to sell,
exchange, barter, dispose of, or give away cigarettes or tobacco products unless the
applicant specifies in the license application whether the applicant will sell,
exchange, barter, dispose of, or give away the cigarette or tobacco products over the
counter or in a vending machine, or both.
Current law prohibits a retailer, manufacturer, distributor, jobber, subjobber,
or independent contractor, or the agent or employee of any of these persons, from
selling or giving cigarettes or tobacco products to a minor unless the minor purchased
or possessed the cigarettes or tobacco products in the course of the minor's
employment. In addition, these persons are prohibited from giving cigarettes or
tobacco products to any person unless the cigarettes or tobacco products are provided
in a place where minors are not permitted to enter. Current law authorizes a county,
town, city, or village to adopt an ordinance regulating the sale or gift of cigarettes or
tobacco products to a minor as long as the ordinance strictly conforms to these
statutory prohibitions.
This bill requires a retailer, at the time the retailer hires a new employee whose
duties will include the sale of cigarettes or tobacco products, to provide the employee
with training in compliance with these prohibitions against the unlawful selling or
giving of cigarettes or tobacco products to a minor and the unlawful giving of
cigarettes or tobacco products to any person, including the penalties for
noncompliance with these prohibitions. That training requirement, however, does
not apply to an employee who has received that training as part of a responsible
beverage server training course, which is a course offered by a technical college
district that a person must successfully complete as a prerequisite for the issuance
of any license relating to alcohol beverages. The bill also requires the technical
college system board to include the training required under the bill in the curriculum
guidelines specified by that board for the responsible beverage server training
course.
Under the bill, if an employee who has not received the training required under
the bill unlawfully sells or gives cigarettes or tobacco products to a minor or
unlawfully gives cigarettes or tobacco products to any person, the department of
health and family services (DHFS), a local health department, or a law enforcement
agency (governmental regulatory authority) may issue a citation based on that
violation only to the retailer that hired the employee and not to the employee.
Conversely, if an employee who has received that training unlawfully sells or gives

cigarettes or tobacco products to a minor or unlawfully gives cigarettes or tobacco
products to any person and a governmental regulatory authority issues a citation to
the retailer that hired the employee, the governmental regulatory authority must
also issue a citation based on that violation to the employee.
Under current federal law, as a condition of receiving certain substance abuse
prevention and treatment block grant funds, this state must prohibit
manufacturers, retailers, or distributors of tobacco products from selling or
distributing tobacco products to minors, must conduct random unannounced
investigations of retail outlets where cigarettes or tobacco products are sold, and
must report annually to the federal department of health and human services on
these enforcement activities and the success of these activities.
Current law authorizes DHFS to contract with governmental regulatory
authorities, as agents of DHFS, to conduct unannounced investigations of retail
outlets where cigarettes or tobacco products are sold to survey overall levels of
compliance with the prohibitions against selling cigarettes or tobacco products to
minors. Current law authorizes governmental regulatory authorities to use, as part
of the governmental regulatory authority's unannounced investigations, a minor
who is at least 15 years of age to buy, attempt to buy, or possess cigarettes or tobacco
products if the minor has the permission of his or her parent or guardian, is directly
supervised by an adult employee of the governmental regulatory authority, and has
prior written authorization to participate in the investigation from the governmental
regulatory authority, authorized agent of the governmental regulatory authority, or
district attorney.
Current law also requires that an unannounced investigation comply with
standards established by DHFS and meet all of the following requirements:
1. A minor, if asked his or her age during the course of an investigation, must
give his or her age.
2. A governmental regulatory authority may not use a minor in an
investigation if the minor is a regular customer at the retail outlet that is the subject
of the investigation.
3. The appearance of a minor who is used in an investigation may not be
materially altered to indicate greater age.
4. A photograph or videotape of the minor must be made on the day of the
investigation and, if a prosecution results from the investigation, the governmental
regulatory authority must retain the photograph or videotape until the final
disposition of the case.
5. If a violation of the prohibition against selling or providing cigarettes or
tobacco products to minors occurs during the investigation, the governmental
regulatory authority conducting the investigation is required to make a good faith
effort to notify a retailer of the violation and to issue a citation, if any, within 72 hours
after the investigation.
6. Within ten days after an investigation, the governmental regulatory
authority conducting the investigation must report to the retailer the name and
position of the governmental regulatory authority employee who supervised the

investigation, the age of a minor used in the investigation, the date and time of the
investigation, and the results of the investigation.
Finally, with respect to investigations of retail outlets, current law prohibits a
governmental regulatory authority from subjecting a retailer to more than two
investigations annually unless both of the investigations reveal that the retailer
violated the prohibition against selling or giving cigarettes or tobacco products to
minors.
This bill permits DHFS or another governmental regulatory authority, without
first contracting with DHFS, to conduct unannounced investigations at retail outlets
to enforce compliance with the statutory prohibitions against selling or giving
cigarettes or tobacco products to minors, or a local ordinance that strictly conforms
to the statutory prohibitions. The bill requires that any investigation that is
conducted comply with the current statutory requirements for investigations and
any standards established by DHFS. The bill also requires a person who contracts
to conduct investigations to agree to train all individuals conducting investigations
under the contract in accordance with those standards and to suspend from
conducting any further investigations for not less than six months an individual who
fails to meet those requirements and standards.
In addition, under this bill a governmental regulatory authority may not
conduct more than two investigations annually at a retail outlet unless the most
recent investigation reveals that the retailer violated the prohibition against selling
or giving cigarettes or tobacco products to minors.
Finally, under current law, a minor may not purchase, attempt to purchase, or
possess cigarettes or tobacco products except in the course of the minor's employment
or in the course of an investigation that is conducted in accordance with the statutory
requirements and standards established by DHFS for those investigations. This bill
permits a county, city, village, or town to enact an ordinance prohibiting a minor from
purchasing, attempting to purchase, or possessing cigarettes or tobacco products as
long as the ordinance strictly conforms to those statutory prohibitions.
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:
AB805, s. 1 1Section 1. 134.65 (1m) of the statutes is created to read:
AB805,4,52 134.65 (1m) A city, village, or town clerk may not issue a license under sub. (1)
3unless the applicant specifies in the license application whether the applicant will
4sell, exchange, barter, dispose of, or give away the cigarette or tobacco products over
5the counter or in a vending machine, or both.
AB805, s. 2
1Section 2. 134.66 (2) (b) 2. of the statutes is amended to read:
AB805,5,62 134.66 (2) (b) 2. A vending machine operator shall attach a notice in a
3conspicuous place on the front of his or her vending machines stating that the
4purchase of any cigarette or tobacco product by a person under the age of 18 is
5unlawful under s. 254.92 and that the purchaser is subject to a forfeiture of not to
6exceed $25
$50.
AB805, s. 3 7Section 3. 134.66 (2) (d) of the statutes is repealed.
AB805, s. 4 8Section 4. 134.66 (2m) of the statutes is created to read:
AB805,5,249 134.66 (2m) Training. (a) Except as provided in par. (b), at the time a retailer
10hires or contracts with an agent, employee, or independent contractor whose duties
11will include the sale of cigarettes or tobacco products, the retailer shall provide the
12agent, employee, or independent contractor with training on compliance with sub.
13(2) (a) and (am), including training on the penalties under sub. (4) (a) 2. for a violation
14of sub. (2) (a) or (am). The department of health and family services shall make
15available to any retailer on request a training program developed or approved by that
16department that provides the training required under this paragraph. A retailer
17may comply with this paragraph by providing the training program developed or
18approved by the department of health and family services or by providing a
19comparable training program approved by that department. At the completion of the
20training, the retailer and the agent, employee, or independent contractor shall sign
21a form provided by the department of health and family services verifying that the
22agent, employee, or independent contractor has received the training, which the
23retailer shall retain in the personnel file of the agent, employee, or independent
24contractor.
AB805,6,16
1(b) Paragraph (a) does not apply to an agent, employee, or independent
2contractor who has received the training described in par. (a) as part of a responsible
3beverage server training course or a comparable training course, as described in s.
4125.04 (5) (a) 5., successfully completed by the agent, employee, or independent
5contractor. The department of health and family services shall make the training
6program developed or approved by that department under par. (a) available to the
7technical college system board, and that board shall include that training program
8or a comparable training program approved by that department in the curriculum
9guidelines specified by that board under s. 125.04 (5) (a) 5. The department of health
10and family services shall also make the training program developed or approved by
11that department under par. (a) available to any provider of a comparable training
12course, as described in s. 125.04 (5) (a) 5., on request, and the department of revenue
13or the educational approval board may approve a comparable training course under
14s. 125.04 (5) (a) 5. only if that training course includes the training program
15developed or approved by the department of health and family services under par.
16(a) or a comparable training program approved by that department.
AB805,7,317 (c) If an agent, employee, or independent contractor who has not received the
18training described in par. (a) commits a violation of sub. (2) (a) or (am), a
19governmental regulatory authority, as defined in s. 254.911 (2), may issue a citation
20based on that violation only to the retailer that hired or contracted with the agent,
21employee, or independent contractor and not to the agent, employee, or independent
22contractor who has not received that training. If an agent, employee, or independent
23contractor who has received the training described in par. (a) commits a violation of
24sub. (2) (a) or (am) for which a governmental regulatory authority issues a citation
25to the retailer that hired or contracted with the agent, employee, or independent

1contractor, the governmental regulatory authority shall also issue a citation based
2on that violation to the agent, employee, or independent contractor who has received
3that training.
AB805, s. 5 4Section 5. 134.66 (3) (intro.) of the statutes is amended to read:
AB805,7,105 134.66 (3) Defense of retailer, manufacturer and distributor; sale to minor .
6(intro.) Proof of all of the following facts by a retailer, manufacturer or, distributor,
7jobber, or subjobber, an agent, employee, or independent contractor of a retailer,
8manufacturer, distributor, jobber, or subjobber, or an agent or employee of an
9independent contractor
who sells cigarettes or tobacco products to a person under the
10age of 18 is a defense to any prosecution for a violation of sub. (2) (a):
AB805, s. 6 11Section 6. 134.66 (4) (a) 1. of the statutes is amended to read:
AB805,7,1412 134.66 (4) (a) 1. In this paragraph, "violation" means a violation of sub. (2) (a),
13(am), (cm), (d) or (e) or a local ordinance which strictly conforms to sub. (2) (a), (am),
14(cm), (d) or (e).
AB805, s. 7 15Section 7. 134.66 (5) of the statutes is amended to read:
AB805,7,2416 134.66 (5) A county, town, village, or city may adopt an ordinance regulating
17the conduct regulated by this section only if it strictly conforms to this section. A
18county ordinance adopted under this subsection does not apply within any town,
19village, or city that has adopted or adopts an ordinance under this subsection. If a
20county, town, village, or city conducts unannounced investigations of retail outlets,
21as defined in s. 254.911 (5), to determine compliance with an ordinance adopted
22under this subsection, as authorized under s. 254.916 (1), the investigations shall
23meet the requirements of s. 254.916 (3) (a) to (f) and any standards established by
24the department of health and family services under s. 254.916 (1) (b).
AB805, s. 8
1Section 8. Subchapter IX (title) of chapter 254 [precedes 254.911] of the
2statutes is amended to read:
AB805,8,33 CHAPTER 254
AB805,8,74 SUBCHAPTER IX
5INVESTIGATIONS OF THE SALE OR
6 GIFT OF CIGARETTES OR
7 TOBACCO PRODUCTS TO MINORS
AB805, s. 9 8Section 9. 254.911 (2) of the statutes is amended to read:
AB805,8,139 254.911 (2) "Governmental regulatory authority" means the department; the,
10a
local health department, a state agency, or a state or local law enforcement agency
11with which the department contracts under s. 254.916 (1) (a); or the a person with
12whom the local health department, state agency, or state or local law enforcement
13agency contracts to conduct investigations authorized under s. 254.916 (1) (a).
AB805, s. 10 14Section 10. 254.916 (title) of the statutes is repealed and recreated to read:
AB805,8,15 15254.916 (title) Investigations.
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