"Local order" means any ordinance, order, rule or determination of any common council, board of alderpersons, board of trustees or the village board, of any village or city, a regulation or order of the local board of health, as defined in s. 250.01 (3)
, or an order or direction of any official of a municipality, upon any matter over which the department has jurisdiction.
"Order" means any decision, rule, regulation, direction, requirement or standard of the department, or any other determination arrived at or decision made by the department.
"Owner" means any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any manager, representative, officer, or other person having ownership, control or custody of any place of employment or public building, or of the construction, repair or maintenance of any place of employment or public building, or who prepares plans for the construction of any place of employment or public building. This subchapter shall apply, so far as consistent, to all architects and builders.
"Place of employment" includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade, or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade, or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in private domestic service which does not involve the use of mechanical power or in farming. "Farming" includes those activities specified in s. 102.04 (3)
, and also includes the transportation of farm products, supplies, or equipment directly to the farm by the operator of the farm or employees for use thereon, if such activities are directly or indirectly for the purpose of producing commodities for market, or as an accessory to such production. When used with relation to building codes, "place of employment" does not include any of the following:
Except for the purposes of s. 101.11
, a previously constructed building used as a community-based residential facility, as defined in s. 50.01 (1g)
, which serves 20 or fewer residents who are not related to the operator or administrator.
A home-based business, as defined by the department by rule.
"Public building" means any structure, including exterior parts of such building, such as a porch, exterior platform, or steps providing means of ingress or egress, used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants. When used in relation to building codes, "public building" does not include any of the following:
A previously constructed building used as a community-based residential facility as defined in s. 50.01 (1g)
which serves 20 or fewer residents who are not related to the operator or administrator.
A home-based business, as defined by the department by rule.
"Safe" or "safety", as applied to an employment or a place of employment or a public building, means such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants, or fire fighters, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.
"Secretary" means the secretary of safety and professional services.
"Welfare" includes comfort, decency and moral well-being.
In a safe place action by a plaintiff injured through contact with home power lines while installing aluminum trim on the premises, the power lines did not constitute a place of employment under sub. (2) (a) [now sub. (11)]. Although a "process or operation" was carried on by the transmission of electricity through the lines, no person was employed by the power company on the premises at the time of the injury. Barthel v. Wisconsin Electric Power Co. 69 Wis. 2d 446
, 230 N.W.2d 863
A vocational school was not place of employment. Korenak v. Curative Workshop Adult Rehabilitation Center, 71 Wis. 2d 77
, 237 N.W.2d 43
The right to make progress inspections and to stop construction for noncompliance with specifications is not an exercise of control sufficient to make an architect an owner under sub. (2) (i) [now sub. (10)]. Luterbach v. Mochon Schutte Hackworthy Juerisson, Inc. 84 Wis. 2d 1
, 267 N.W.2d 13
"Safe employment" and "safe place of employment" are distinguished. There is a duty to provide safe employment to employees that does not extend to frequenters, while the duty to provide a safe place of employment does extend to frequenters. Leitner v. Milwaukee County, 94 Wis. 2d 186
, 287 N.W.2d 803
A person seeking directions to the location of an intended, but unknown, destination is a frequenter under sub. (2) (d) [now sub. (6)]. When such inquiry is not made, or has concluded, and the person deviates into an area he or she is not explicitly or impliedly invited into, frequenter status is lost. Monsivais v. Winzenried, 179 Wis. 2d 758
, 508 N.W.2d 620
(Ct. App. 1993).
The duty of an owner of a multiple-unit residential dwelling under the safe place statute extends only to common areas. Antwaun A. v. Heritage Mutual Insurance Co. 228 Wis. 2d 44
, 596 N.W.2d 456
"Tenants" under sub. (12) refers to the number of units available in the building, not to the number of individuals in the building. Raymaker v. American Family Mutual Insurance Co. 2006 WI App 117
, 293 Wis. 2d 392
, 718 N.W.2d 154
Powers, duties and jurisdiction of department. 101.02(1)(1)
The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.
The department may sue and be sued.
The department shall employ, promote and remove deputies, clerks and other assistants as needed, to fix their compensation, and to assign to them their duties; and shall appoint advisers who shall, without compensation except reimbursement for actual and necessary expenses, assist the department in the execution of its duties.
The department shall collect, collate and publish statistical and other information relating to the work under its jurisdiction and shall make public reports in its judgment necessary.
The department shall conduct such investigations, hold such public meetings and attend or be represented at such meetings, conferences and conventions inside or outside of the state as may, in its judgment, tend to better the execution of its functions.
For the purpose of making any investigation with regard to any employment or place of employment or public building, the secretary may appoint, by an order in writing, any deputy who is a citizen of the state, or any other competent person as an agent whose duties shall be prescribed in such order.
In the discharge of his or her duties such agent shall have every power of an inquisitorial nature granted in this subchapter to the department, the same powers as a supplemental court commissioner with regard to the taking of depositions and all powers granted by law to a supplemental court commissioner relative to depositions.
The department may conduct any number of such investigations contemporaneously through different agents, and may delegate to such agent the taking of all testimony bearing upon any investigation or hearing. The decision of the department shall be based upon its examination of all testimony and records. The recommendations made by such agents shall be advisory only and shall not preclude the taking of further testimony if the department so orders nor preclude further investigation.
The secretary may direct any deputy who is a citizen to act as special prosecutor in any action, proceeding, investigation, hearing or trial relating to the matters within its jurisdiction.
Upon the request of the department, the department of justice or district attorney of the county in which any investigation, hearing or trial had under this subchapter is pending, shall aid the department in the investigation, hearing or trial and, under the supervision of the department, prosecute all necessary actions or proceedings for the enforcement and punishment of violations of this subchapter and all other laws of this state relating to the protection of life, health, safety and welfare.
All orders of the department in conformity with law shall be in force, and shall be prima facie lawful; and all such orders shall be valid and in force, and prima facie reasonable and lawful until they are found otherwise upon judicial review thereof pursuant to ch. 227
or until altered or revoked by the department.
All general orders shall take effect as provided in s. 227.22
. Special orders shall take effect as therein directed.
The department shall, upon application of any employer or owner, grant such time as may be reasonably necessary for compliance with any order.
Any person may petition the department for an extension of time, which the department shall grant if it finds such an extension of time necessary.
Any employer or other person interested either because of ownership in or occupation of any property affected by any such order, or otherwise, may petition for a hearing on the reasonableness of any order of the department in the manner provided in this subchapter.
Such petition for hearing shall be by verified petition filed with the department, setting out specifically and in full detail the order upon which a hearing is desired and every reason why such order is unreasonable, and every issue to be considered by the department on the hearing. The petitioner shall be deemed to have finally waived all objections to any irregularities and illegalities in the order upon which a hearing is sought other than those set forth in the petition. All hearings of the department shall be open to the public.
Upon receipt of such petition, if the issues raised in such petition have theretofore been adequately considered, the department shall determine the same by confirming without hearing its previous determination, or if such hearing is necessary to determine the issues raised, the department shall order a hearing thereon and consider and determine the matter or matters in question at such times as shall be prescribed. Notice of the time and place of such hearing shall be given to the petitioner and to such other persons as the department may find directly interested in such decision.
Upon such investigation, if it shall be found that the order complained of is unjust or unreasonable the department shall substitute therefor such other order as shall be just and reasonable.
Whenever at the time of the final determination upon such hearing it shall be found that further time is reasonably necessary for compliance with the order of the department, the department shall grant such time as may be reasonably necessary for such compliance.
Nothing contained in this subchapter may be construed to deprive the common council, the board of alderpersons, the board of trustees or the village board of any village or city, or a local board of health, as defined in s. 250.01 (3)
, of any power or jurisdiction over or relative to any place of employment or public building, provided that, whenever the department shall, by an order, fix a standard of safety or any hygienic condition for employment or places of employment or public buildings, the order shall, upon the filing by the department of a copy of the order with the clerk of the village or city to which it may apply, be held to amend or modify any similar conflicting local order in any particular matters governed by the order of the department. Thereafter no local officer may make or enforce any order contrary to the order of the department.
Any person affected by any local order in conflict with an order of the department, may in the manner provided in s. 101.02 (6) (e)
, petition the department for a hearing on the ground that such local order is unreasonable and in conflict with the order of the department. The petition for such hearing shall conform to the requirements set forth for a petition in s. 101.02 (6) (e)
Upon receipt of such petition the department shall order a hearing thereon, to consider and determine the issues raised by such appeal, such hearing to be held in the village, city or municipality where the local order appealed from was made. Notice of the time and place of such hearing shall be given to the petitioner and such other persons as the department may find directly interested in such decision, including the clerk of the municipality or town from which such appeal comes. If upon such investigation it shall be found that the local order appealed from is unreasonable and in conflict with the order of the department, the department may modify its order and shall substitute for the local order appealed from such order as shall be reasonable and legal in the premises, and thereafter the said local order shall, in such particulars, be void and of no effect.
Notwithstanding sub. (7) (a)
, no city, village or town may make or enforce any ordinance that is applied to any multifamily dwelling, as defined in s. 101.971 (2)
, and that does not conform to subch. VI
and this section or is contrary to an order of the department under this subchapter, except that if a city, village or town has a preexisting stricter sprinkler ordinance, as defined in s. 101.975 (3) (a)
, that ordinance remains in effect, except that the city, village or town may take any action with regard to that ordinance that a political subdivision may take under s. 101.975 (3) (b)
Notwithstanding sub. (7) (a)
, no city, village, or town may enact or enforce an ordinance that establishes minimum standards for constructing, altering, or adding to public buildings or buildings that are places of employment unless that ordinance strictly conforms to the applicable rules under sub. (15) (j)
, except as provided in pars. (b)
and sub. (7m)
Notwithstanding par. (a)
, a town, village, or city may enforce an ordinance establishing minimum standards for constructing, altering, or adding to public buildings or buildings that are places of employment that does not strictly conform to the applicable rules under sub. (15) (j)
if all of the following apply:
The ordinance relates to fire detection, prevention, or suppression components of buildings.
The ordinance is submitted to the department within 60 days after April 18, 2014.
The department determines that the ordinance requires standards that are at least as strict as the rules promulgated by the department.
A town, village, or city may amend an ordinance that is enforceable under par. (b)
if all of the following apply:
The amendment will not broaden the applicability of the ordinance to any building components that are not subject to the ordinance under par. (b) 3.
The amendment will not change the specific subject matter regulated by the ordinance.
The town, village, or city submits a copy of the enacted amendment to the department at least 120 days before the effective date of the amendment.
The town, village, or city publishes the enacted amendment in the manner required under s. 60.80
, or 62.11 (4)
at least 120 days before the effective date of the amendment.
The department shall maintain a list of the ordinances that are enforceable under par. (b)
and of the amendments that are enforceable under par. (c)
. The list shall be accessible to the public in electronic format, and shall include electronically photographed or scanned copies of the ordinances and amendments.
For an amendment submitted to the department under par. (c) 3.
, the department shall make it accessible as required under subd. 1.
within 10 working days after receiving the amendment.
Notwithstanding par. (a)
, a town, village, or city may enact and enforce an ordinance establishing a property maintenance code that is stricter than rules promulgated by the department under sub. (15) (j)
Notwithstanding par. (a)
, a city of the 1st or 2nd class may enact and enforce an ordinance that relates to fire suppression that requires existing buildings to be altered to comply with the rules for the construction of buildings that are promulgated by the department under sub. (15) (j)
No action, proceeding or suit to set aside, vacate or amend any order of the department or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have applied to the department for a hearing thereon at the time and as provided in s. 101.02 (6) (e)
, and in the petition therefor shall have raised every issue raised in such action.
Every order of the department shall, in every prosecution for violation thereof, be conclusively presumed to be just, reasonable and lawful, unless prior to the institution of prosecution for such violation a proceeding for judicial review of such order shall have been instituted, as provided in ch. 227
A substantial compliance with the requirements of this subchapter shall be sufficient to give effect to the orders of the department, and no order may be declared inoperative, illegal or void for any omission of a technical nature with respect to the requirements of this subchapter.
Orders of the department under this subchapter shall be subject to review in the manner provided in ch. 227
Proof by any person, firm or corporation employing a contractor to construct, repair, alter or improve any building or structure, that such contractor in performing such work has failed to comply with any applicable order or regulation of the department promulgated under this chapter shall constitute a defense to any action for payment by such contractor to the extent that it shall bar recovery for any part of the work which fails to comply. Advancements paid to the contractor for work which fails to comply as well as any reasonable amount expended to effectuate compliance with any applicable order or regulation may be recovered from such contractor by way of counterclaim or in a separate action. This section shall not apply where plans or specifications were prepared by an architect or engineer licensed to do business in this state and the contract performed in accordance therewith.
Every day during which any person or corporation, or any officer, agent or employee of a person or corporation, fails to observe and comply with any order of the department or to perform any duty specified under this subchapter shall constitute a separate and distinct violation of the order or of the requirements of this subchapter, whichever is applicable.
If any employer, employee, owner, or other person violates this subchapter, or fails or refuses to perform any duty specified under this subchapter, within the time prescribed by the department, for which no penalty has been specifically provided, or fails, neglects or refuses to obey any lawful order given or made by the department, or any judgment or decree made by any court in connection with this subchapter, for each such violation, failure or refusal, such employer, employee, owner or other person shall forfeit and pay into the state treasury a sum not less than $10 nor more than $100 for each such offense.
It shall be the duty of all officers of the state, the counties and municipalities, upon request of the department, to enforce in their respective departments, all lawful orders of the department, insofar as the same may be applicable and consistent with the general duties of such officers.
The secretary or any examiner appointed by the secretary may hold hearings and take testimony.
Each witness who appears before the department by its order shall receive for attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the secretary, and charged to the proper appropriation for the department. No witness subpoenaed at the instance of an attorney under par. (cm)
or at the instance of a party other than the department is entitled to compensation from the state for attendance or travel unless the department certifies that the testimony was material to the matter investigated.
The department or any party may in any investigation cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in circuit courts. The expense incurred by the state in the taking of such depositions shall be charged against the proper appropriations for the department.
A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4)
and must be served in the manner provided in s. 805.07 (5)
. The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
A full and complete record shall be kept of all proceedings had before the department on any investigation and all testimony shall be taken down by the stenographer appointed by the department.
The department has such supervision of every employment, place of employment and public building in this state as is necessary adequately to enforce and administer all laws and all lawful orders requiring such employment, place of employment or public building to be safe, and requiring the protection of the life, health, safety and welfare of every employee in such employment or place of employment and every frequenter of such place of employment, and the safety of the public or tenants in any such public building. This paragraph does not apply to occupational safety and health issues covered by standards established and enforced by the federal occupational safety and health administration.
The department shall administer and enforce, so far as not otherwise provided for in the statutes, the laws relating to laundries, stores, licensed occupations, school attendance, bakeries, intelligence offices and bureaus, manufacture of cigars, sweatshops, corn shredders, woodsawing machines, fire escapes and means of egress from buildings, scaffolds, hoists, ladders and other matters relating to the erection, repair, alteration or painting of buildings and structures, and all other laws protecting the life, health, safety and welfare of employees in employments and places of employment and frequenters of places of employment.
Upon petition by any person that any employment or place of employment or public building is not safe, the department shall proceed, with or without notice, to make such investigation as may be necessary to determine the matter complained of.