SB347: Bill Text

LRB-4184/1

MDK:all:kjf

2001 - 2002 LEGISLATURE

2001 Senate BILL 347

December 6, 2001 - Introduced by Law Revision Committee. Referred to Committee on Universities, Housing, and Government Operations.

SB347,2,12 An Act to repeal 440.92 (9) (title), 443.10 (2) (e) and 453.06 (2); to renumber 440.92 (2) (title), 440.92 (2) (a), 440.92 (2) (am), 440.92 (2) (b), 440.92 (2) (cm), 440.92 (2) (d), 440.92 (2) (e), 440.92 (2) (g), 440.92 (2) (h), 440.92 (6) (b) and (c) and 440.92 (6) (f); to renumber and amend 440.042 (1), 440.042 (2), 440.92 (2) (c), 440.92 (2) (f), 440.92 (2) (i), 440.92 (2) (j), 440.92 (2) (k), 440.92 (5), 440.92 (6) (title), 440.92 (6) (a), 440.92 (6) (d), 440.92 (6) (e), 440.92 (6) (g), 440.92 (6) (h), 440.92 (6) (i), 440.92 (6) (j), 440.92 (6) (k), 440.92 (7), 440.92 (9) (a), 440.92 (9) (b), 440.92 (9) (c), 440.92 (9) (d), 440.92 (9) (e), 440.92 (9) (f) and 440.92 (10); to amend 15.01 (7), 15.08 (5) (c), 15.085 (5) (c), 157.12 (2) (b), 157.19 (2) (c), 157.19 (5) (a), 157.62 (6), 227.01 (6), 227.485 (5), 423.102, 440.01 (1) (d), 440.26 (5) (b), 440.92 (1) (a), 440.95 (4) (c), 440.95 (4) (d), 440.95 (5), 443.10 (2) (b), 453.06 (4) and 455.06; and to create 440.92 (4) (a) (title) and (am) (title), 440.92 (4) (b) (title), 440.922 (1) (title), (2) (title), (4) (title), (5) (title), (6) (title) and (10) (title) and 440.926 (1) (title), (2) (title) and (3) (title) of the statutes; relating to: eliminating redundancy in statutes pertaining to license renewal requirements; limiting a credential issued by an examining board; use of the term "credential" in the statutes pertaining to the department of regulation and licensing; changing the definition of "licensing" as it relates to administrative procedure; the award of costs in a contested administrative case; persons exempt from regulation as private detectives or private security personnel; and renumbering and creating statutory titles for provisions pertaining to immunity from liability for testimony to the department of regulation and licensing and attached boards, advisory committees to the department of regulation and licensing and attached boards, and cemetery preneed sellers (suggested as remedial legislation by the department of regulation and licensing).

Analysis by the Legislative Reference Bureau

This bill makes the following changes to laws regarding the department of regulation and licensing (DRL) and boards in DRL:

1. The bill eliminates redundancy in the statutes pertaining to license renewal requirements for psychologists, veterinarians, veterinary technicians, architects, landscape architects, and professional engineers.

2. Current law authorizes examining boards to limit a credential issued by the examining board by imposing conditions and requirements upon the holder of the credential and restricting the scope of the holder's practice. The bill allows the board to impose conditions or requirements on the holder without restricting the scope of the holder's practice, and vice versa.

3. The bill updates the statutes by substituting the term "credential" for "license, permit, or certificate" in the laws relating to DRL.

4. Current law provides that the licensing requirements for private detectives, private detective agencies, and private security personnel do not apply to any person employed, directly or indirectly, by the state or by a municipality. The bill eliminates the phrase "directly or indirectly."

5. The bill renumbers and creates statutory titles for provisions under current law pertaining to immunity from liability for testimony to DRL, boards in DRL, and advisory committees, and the regulation of cemetery preneed sellers.

The bill also makes the following changes to the laws regarding administrative procedures:

1. Under current law, the definition of "licensing," used in those laws, means an agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. The bill adds "limitation" to the list of processes that are involved in licensing.

2. Under current law, if a small business, a small nonprofit corporation, or an individual is a prevailing party in a contested case administrative hearing, that prevailing party may submit a motion for costs. If that motion is submitted, the hearing examiner must award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner determines that the state agency that was the losing party was substantially justified in taking its position or that special circumstances make the award unjust. The bill clarifies some of the procedural language regarding the award of costs.

For further information, see the Notes provided by the law revision committee of the joint legislative council.

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

Law revision committee prefatory note: [This bill is a remedial legislation proposal, requested by the department of regulation and licensing and introduced by the law revision committee under s. 13.83 (1) (c) 4., stats.] After careful consideration of the various provisions of the bill, the law revision committee has determined that this bill makes minor substantive changes in the statutes, and that these changes are desirable as a matter of public policy.

SB347, s. 1 Section 1. 15.01 (7) of the statutes is amended to read:

SB347,3,7 15.01 (7) "Examining board" means a part-time body which that sets standards of professional competence and conduct for the profession under its supervision, prepares, conducts, and grades the examinations of prospective new practitioners, grants licenses credentials, investigates complaints of alleged unprofessional conduct, and performs other functions assigned to it by law. "Examining board" includes the board of nursing.

Note: Sections 1, 2 and 3 of this bill substitute "credential" for "license, permit, or certificate" to make the terminology consistent with the terms used in other laws relating to the department of regulation and licensing.

SB347, s. 2 Section 2. 15.08 (5) (c) of the statutes is amended to read:

SB347,4,2 15.08 (5) (c) May limit, suspend or revoke, or reprimand the holder of, any license, permit or certificate credential granted by the examining board.

SB347, s. 3 Section 3. 15.085 (5) (c) of the statutes is amended to read:

SB347,4,5 15.085 (5) (c) May limit, suspend or revoke, or reprimand the holder of, any license, permit or certificate credential granted by the affiliated credentialing board.

SB347, s. 4 Section 4. 157.12 (2) (b) of the statutes is amended to read:

SB347,5,15 157.12 (2) (b) The department shall supervise construction of any public mausoleum and conversion of any building to a public mausoleum. Within 30 days after receiving written notice from the cemetery authority that the construction or conversion has been completed, the department shall inspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with approved plans. If the department determines that, except for certain minor defects, the construction or conversion complies with the approved plans, the department may provide the cemetery authority with a written temporary certification of compliance that is contingent on the correction of those minor defects. A temporary certification is valid for a period designated by the department, not to exceed 6 months. No person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. ss. 440.92 and 440.922, or bury human remains in a public mausoleum unless a care fund has been established for the mausoleum under sub. (3) and the department has provided the cemetery authority with a certification or a temporary certification under this paragraph. If a cemetery authority that has been provided with a temporary certification notifies the department in writing before the date on which the temporary certification expires that the defects in the construction or conversion of the public mausoleum have been corrected, the department shall, within 30 days after receiving the notice, reinspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with the approved plans. If a cemetery authority that has been provided with a temporary certification does not receive a written certification from the department before the date on which the temporary certification expires that the construction or conversion complies with the approved plans, then, beginning on the date on which the certification expires, no person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. ss. 440.92 and 440.922, or bury human remains in the public mausoleum until the defects are corrected and the department subsequently inspects the public mausoleum and provides the cemetery authority with a certification that the construction or conversion complies with the approved plans. The department may charge a reasonable fee to the cemetery authority for each inspection and certification provided under this paragraph if the inspection and certification are provided within the applicable 30-day period prescribed under this paragraph.

Note: Sections 4, 5, 6 and 7 of this bill change statutory references to reflect the creation of titles for and the renumbering of s. 440.92, Stats., relating to regulation of cemetery preneed sellers. According to the department of regulation and licensing, the current statute is difficult to use due to its length and organization.

SB347, s. 5 Section 5. 157.19 (2) (c) of the statutes is amended to read:

SB347,6,6 157.19 (2) (c) Upon request of the financial institution, the preneed seller, as defined in s. 440.90 (8), shall furnish the financial institution with a copy of the preneed sales contract. Except as provided in s. 440.92 (2) (c), (f) and (j) and (5) ss. 440.922 (3), (5) (c), and (8) and 440.924, preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, may not be withdrawn until all obligations under the preneed sales contract have been fulfilled. The financial institution is not responsible for the fulfillment of any part of the preneed sales contract, except that the financial institution shall release the preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, as provided by the terms of the preneed sales contract. The trustee of a preneed trust fund may not be changed without the department's written approval. If the trustee or account number of a preneed trust fund is changed, the cemetery authority shall notify the department in writing within 30 days after the change.

SB347, s. 6 Section 6. 157.19 (5) (a) of the statutes is amended to read:

SB347,6,14 157.19 (5) (a) This section does not apply to care funds under s. 157.11 (9g) that are deposited with a city or county as provided under s. 157.11 (9g) (a), to care funds of a cemetery for which a certification under s. 157.63 is effective, to preneed trust funds of a cemetery for which a certification under s. 440.92 (9) (4) (am) is effective, or to care funds or preneed trust funds of a cemetery authority that is not required to be registered under s. 440.91 (1) and that is not organized or conducted for pecuniary profit.

SB347, s. 7 Section 7. 157.62 (6) of the statutes is amended to read:

SB347,6,23 157.62 (6) Audit. Except as provided in ss. 157.625, 157.63 (5) and 440.92 (9) (e) (4) (am) 5., the department may audit, at reasonable times and frequency, the records, trust funds and accounts of any cemetery authority, including records, trust funds and accounts pertaining to services provided by a cemetery authority which are not otherwise subject to the requirements under this chapter. The department may conduct audits under this subsection on a random basis, and shall conduct all audits under this subsection without providing prior notice to the cemetery authority.

SB347, s. 8 Section 8. 227.01 (6) of the statutes is amended to read:

SB347,7,3 227.01 (6) "Licensing" means an agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, or amendment of a license.

Note: Section 8 of this bill adds "limitation" to the definition of the licensing process in ch. 227, Stats. to be consistent with other laws relating to the department of regulation and licensing which include limitation as a licensing action.

SB347, s. 9 Section 9. 227.485 (5) of the statutes is amended to read:

SB347,7,17 227.485 (5) If the hearing examiner awards costs under sub. (3), he or she shall determine the costs under this subsection, except as modified under sub. (4). The decision on the merits of the case motion for costs shall be placed in a proposed decision and submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5) and include an order for payment of costs in the final decision.

Note: Section 9 of this bill specifies that if a prevailing party submits a motion for costs, the hearing examiner's decision on the motion for costs must be included in a proposed decision.

SB347, s. 10 Section 10. 423.102 of the statutes is amended to read:

SB347,7,21 423.102 Scope. This chapter applies to all consumer transactions, except that subch. II does not apply to cemetery preneed sales under s. 440.92 subch. VIII of ch. 440.

Note: Section 10 of this bill changes statutory references to reflect the creation of titles for and the renumbering of s. 440.92, Stats., relating to regulation of cemetery preneed sellers. According to the department of regulation and licensing, the current statute is difficult to use due to its length and organization.

SB347, s. 11 Section 11. 440.01 (1) (d) of the statutes is amended to read:

SB347,8,4 440.01 (1) (d) "Limit", when used in reference to limiting a credential, means to impose conditions and or requirements upon the holder of the credential, and or to restrict the scope of the holder's practice.

Note: Section 11 of this bill allows the department of regulation and licensing to impose conditions or requirements upon the holder of a credential or to restrict the scope of the holder's practice. Currently, an order to limit a holder's credential must include a provision that restricts the scope of the holder's practice. According to the department of regulation and licensing, in some cases a restriction on a holder's practice scope is not appropriate.

SB347, s. 12 Section 12. 440.042 (1) of the statutes is renumbered 440.042 and amended to read:

SB347,8,16 440.042 Advisory committees. The secretary may appoint persons or advisory committees to advise the department and the boards, examining boards and affiliated credentialing boards in the department on matters relating to the regulation of credential holders. The secretary shall appoint an advisory committee to advise the department on matters relating to carrying out the duties specified in s. 440.982 and making investigations, conducting hearings and taking disciplinary action under s. 440.986. A person or an advisory committee member appointed under this subsection section shall serve without compensation, but may be reimbursed for his or her actual and necessary expenses incurred in the performance of his or her duties.