AB1076: Bill Text

AB1076,21,23 (11) The department shall hold a hearing under ch. 227 if any interested person, in lieu of proceeding under ch. 68, appeals to the department alleging any of the following:

AB1076,22,3 (a) A license fee established by a local health department that is designated as the department's agent under this section exceeds the reasonable costs described under sub. (5).

AB1076,22,8 (b) The person issuing, refusing to issue, suspending or revoking a license or making an investigation or inspection of the appellant has a financial interest in a regulated cigarette and tobacco product retailer, tobacco vending machine operator, tobacco vending machine premises or tobacco vending machine which may interfere with his or her ability to properly take that action.

AB1076,22,11 (12) A county, town, village or city may enact an ordinance regulating the investigations authorized by this section only if the ordinance is at least as strict as this section.

AB1076, s. 57 Section 57. 254.92 (1) (c) 1. of the statutes is created to read:

AB1076,22,15 254.92 (1) (c) 1. The tobacco vending machine is in a barroom, as defined in s. 125.51 (3m) (a), located on premises described in a license issued under s. 125.26 or 125.51 (3).

AB1076, s. 58 Section 58. 254.92 (1) (c) 2. of the statutes is created to read:

AB1076,22,19 254.92 (1) (c) 2. The tobacco vending machine is located in a portion of a factory, business, office, club or other establishment to which members of the general public and minors do not have access.

AB1076, s. 59 Section 59. 254.92 (2) (c) and (d) of the statutes are created to read:

AB1076,22,24 254.92 (2) (c) A minor who has written permission from a parent may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the conduct of undercover operations for which the minor is solicited by a local health department or a law enforcement officer as required under s. 254.916 (2).

AB1076,23,5 (d) A minor who has written permission from a parent and who is under the supervision of an adult may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the performance of governmental or nongovernmental research, as authorized by the local health department under s. 254.916 (2), to monitor compliance with this section.

AB1076, s. 60 Section 60. 254.92 (3) (b) of the statutes is created to read:

AB1076,23,20 254.92 (3) (b) Failure by the retailer or the employe or agent of the retailer to prove the facts under par. (a) 1. to 3. is conclusive evidence that the retailer has violated sub. (1) (a). Failure by the manufacturer or the employe or agent of the manufacturer to prove the facts under par. (a) 1. to 3. is conclusive evidence that the manufacturer has violated sub. (1) (a). Failure by the distributor or the employe or agent of the distributor to prove the facts under par. (a) 1. to 3. is conclusive evidence that the distributor has violated sub. (1) (a). Failure by the jobber of the agent or employe of the jobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the jobber has violated sub. (1) (a). Failure by the subjobber or the agent or employe of the subjobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the subjobber has violated sub. (1) (a). Failure by the agent or employe of an independent contractor of a retailer, manufacturer, distributor, jobber or subjobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the independent contractor has violated sub. (1) (a).

AB1076, s. 61 Section 61. 254.922 of the statutes is created to read:

AB1076,24,3 254.922 Assessment of forfeitures; appeal; judicial review. (1) The department may directly assess forfeitures provided for under s. 254.914 (7) or 254.92 (4). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, the department shall send a notice of assessment to the alleged violator. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated and shall inform the alleged violator of the right to hearing under sub. (3).

AB1076,24,5 (2) A forfeiture may be assessed for each day of the period during which the violation occurred.

AB1076,24,10 (3) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under sub. (4), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

AB1076,24,22 (4) A person who is assessed a forfeiture under sub. (1) may contest the assessment of the forfeiture by sending, within 10 days after receipt of notice of a contested action, a written request for hearing under s. 227.44 to the division of hearings and appeals in the department of administration. The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.

AB1076,25,3 (5) (a) All administrative remedies shall be exhausted before an agency determination under this subchapter shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in s. 227.52, except that any petition for review of department action under this subchapter shall be filed within 15 days after receipt of notice of the final agency determination.

AB1076,25,8 (b) The court may stay enforcement under s. 227.54 of the department's final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the party will meet the requirements of this subchapter and the rules promulgated under this subchapter during such stay.

AB1076,25,11 (c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the department.

AB1076,25,15 (6) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subchapter if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.

AB1076, s. 62 Section 62. 778.25 (1) (a) 4. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

AB1076,25,19 778.25 (1) (a) 4. Under s. 48.983 254.92 (2) brought against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

AB1076, s. 63 Section 63. Initial applicability; health and social services.

AB1076,25,24 (1) Cigarette and tobacco products retailer license. The treatment of section 134.65 (title), (1), (2) (a) and (b), (3), (4) and (5) of the statutes first applies to new or renewed licenses issued under section 254.914 of the statutes, as affected by this act, on July 1, 1996.

AB1076,26,3 (2) Penalties for certain violations. The treatment of sections 48.983 (2), 134.65 (5), 134.66 (4) and (5), 254.916 (12) and 254.922 of the statutes first applies to violations committed on the effective date of this subsection.

AB1076, s. 64 Section 64. Effective date.

AB1076,26,6 (1) This act takes effect on July 1, 1996, or on the day after publication, whichever is later.

AB1076,26,7 (End)