Wisconsin Legislature: 9,2485j

254.911 Definitions. In this subchapter:

(1) "Cigarette" has the meaning given in s. 139.30 (1).

(2) "Governmental regulatory authority" means the department; the local health department, state agency or law enforcement agency with which the department contracts under s. 254.916 (1) (a); or the person with whom the local health department, state agency or law enforcement agency contracts under s. 254.916 (1) (a).

(3) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

(4) "Retailer" has the meaning given in s. 134.66 (1) (g).

(5) "Retail outlet" means a place of business from which cigarettes or tobacco products are sold at retail to consumers.

(6) "State agency" has the meaning given in s. 1.12 (1) (b).

(7) "Tobacco products" has the meaning given in s. 139.75 (12).

(8) "Tobacco vending machine" is any mechanical device that automatically dispenses cigarettes or tobacco products when money or tokens are deposited in the device in payment for the cigarettes or tobacco products.

(9) "Tobacco vending machine operator" means a person who acquires tobacco products or stamped cigarettes from manufacturers, as defined in s. 134.66 (1) (e), or permittees, stores them and sells them through the medium of tobacco vending machines that he or she owns, operates or services and that are located on premises that are owned or under the control of other persons.

(10) "Tobacco vending machine premises" means any area in which a tobacco vending machine is located.

9,2485j Section 2485j. 254.916 of the statutes is created to read:

254.916 Department; authority. (1) (a) In the administration of this subchapter, the department may contract with local health departments, as agents of the department, with a state agency or with law enforcement agencies of the state, or of a county, city, village or town, to cause unannounced investigations to be conducted at least annually at retail outlets, including sites of tobacco vending machines, to survey overall levels of compliance with s. 134.66 (2) (a) and (am). A person with whom the department contracts under this paragraph may contract with another person to conduct the investigations. Except any survey conducted under 21 CFR part 897, the survey under this subsection shall cover a range of retail outlets that are not preselected on the basis of prior violations, in order to measure overall levels of compliance as well as to identify violations. The survey shall be conducted so as to provide a sample of retail outlets that reflects the distribution of minors throughout the state and the distribution of the retail outlets throughout the state where minors are likely to attempt to purchase cigarettes. The survey shall include all types of retail outlets that are required to comply with s. 134.66 (2) (a) and (am). The department shall use statistically sound sampling techniques in designing the annual surveys so as to measure overall levels of compliance and shall stratify the sample so as to measure compliance by type of retail outlet, including a private place of business other than a retail establishment , but not including a barroom, as defined in s. 125.51 (3m) (a), that is located on premises described in a license issued under s. 125.26 or 125.51 (3).

(b) The department, in consultation with retailers and governmental regulatory authorities, shall establish standards for procedures and training for conducting investigations under this section.

(c) No retailer may be subject to unannounced investigations more than twice annually unless the retailer is found to have violated s. 134.66 (2) (a) or (am) during each investigation. Investigations conducted under sub. (12) may not be considered unannounced investigations for purposes of this paragraph.

(2) With the permission of his or her parent or guardian, a person under 18 years of age, but not under 15 years of age, may buy, attempt to buy or possess any cigarette or tobacco product if all of the following are true:

(a) The person commits the act for the purpose of conducting an investigation under this section.

(b) The person is directly supervised during the conducting of the investigation by an adult employe of a governmental regulatory authority.

(c) The person has prior written authorization to commit the act from a governmental regulatory authority or a district attorney or from an authorized agent of a governmental regulatory authority or a district attorney.

(3) (a) All of the following, unless otherwise specified, apply in conducting investigations under this section:

(a) If questioned about his or her age during the course of an investigation, the minor shall state his or her true age.

(b) A minor may not be used for the purposes of an investigation at a retail outlet at which the minor is a regular customer.

(d) A photograph or videotape of the minor shall be made before or after the investigation or series of investigations on the day of the investigation or series of investigations. If a prosecution results from an investigation, the photograph or videotape shall be retained until the final disposition of the case.

(e) A governmental regulatory authority shall make a good faith effort to make known to the retailer or the retailer's employe or agent, within 72 hours after the occurrence of the violation, the results of an investigation, including the issuance of any citation by a governmental regulatory authority for a violation that occurs during the conduct of the investigation. This paragraph does not apply to investigations conducted under a grant received under 42 USC 300x-021.

(f) Except with respect to investigations conducted under 42 USC 300x-021 or 21 CFR part 897, all of the following information shall be reported to the department, and to the retailer, within 10 days after the conduct of an investigation under this section:

1. The name and position of the governmental regulatory authority employe who directly supervised the investigation.

2. The age of the minor.

3. The date and time of the investigation.

4. A reasonably detailed description of the circumstances giving rise to a violation, if any, or, if there is no violation, written notice to that effect.

5. Any other relevant information requested by the department.

(4) No results of an investigation conducted under this section may be included in the survey specified under sub. (1) if it is proved that the requirements under sub. (3) were not met in conducting the investigation.

(5) No evidence obtained during or otherwise arising from the course of an investigation under this section that is used to prosecute a person for a violation of s. 134.66 (2) (a) or (am) may be used in the prosecution of an alleged violation of s. 125.07 (3).

(6) The department shall compile the results of investigations performed under this section and shall prepare an annual report that reflects the results for submission with the state's application for federal funds under 42 USC 300x-21. The report shall be published for public comment at least 60 days before the beginning of negotiations under sub. (7).

(7) The department shall strive annually to negotiate with the federal department of health and human services realistic and attainable interim performance targets for compliance with 42 USC 300x-26.

(8) A governmental regulatory agency under this section shall meet standards established by the department of health and family services. The department shall annually evaluate the investigation program of each governmental regulatory authority. If, at any time, a governmental regulatory authority fails to meet the standards, the department of health and family services may terminate the contract under sub. (1).

(9) The department shall provide education and training to governmental regulatory authorities to ensure uniformity in the enforcement of this subchapter.

(10) This section does not limit the authority of the department to investigate establishments in jurisdictional areas of governmental regulatory authorities if the department investigates in response to an emergency, for the purpose of monitoring and evaluating the governmental regulatory authority's investigation and enforcement program or at the request of the governmental regulatory authority.

(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 that the person making an investigation 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.

(12) This section does not apply to surveys conducted by local units of government that have not entered into a contract under sub. (1), to determine overall levels of compliance with s. 134.66 (2) (a) and (am). No results obtained under such surveys may be used for the purpose of issuing warnings or citations or any other enforcement mechanism.

(13) The requirements of subs. (1) to (12) do not apply to investigations of retail establishments conducted by the city of Madison, or the local health department or law enforcement agency of the city of Madison, in its jurisdictional area to determine compliance with and to enforce s. 134.66 (2).

9,2485L Section 2485L. 254.92 (2) (b) of the statutes is created to read:

254.92 (2) (b) A person under 18 years of age, but not under 15 years of age, may purchase, attempt to purchase or possess cigarettes or tobacco products in the course of his or her participation in an investigation under s. 254.916 that is conducted in accordance with s. 254.916 (3).

9,2485t Section 2485t. 255.05 (1) (a) of the statutes is amended to read:

255.05 (1) (a) "Institution" means any hospital, nursing home, county home, county mental hospital, tuberculosis sanatorium, community-based residential facility or other place licensed or approved by the department under ss. s. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08, or 51.09, 58.06, 252.073 and 252.076.

9,2486g Section 2486g. 255.15 of the statutes is created to read:

255.15 Statewide tobacco control program. (1) Definitions. In this section, "board" means the tobacco control board.

(1m) Duties. The board shall do all of the following:

(a) Appoint an executive director within the classified service who shall employ staff within the classified service with appropriate programmatic and technical expertise.

(b) Administer the grant program under sub. (3).

(c) Promulgate rules establishing criteria for recipients of grants awarded under sub. (3), including performance-based standards for grant recipients that propose to use the grant for media efforts. The board shall ensure that programs or projects conducted under the grants are culturally sensitive.

(d) Provide a forum for the discussion, development, and recommendation of public policy alternatives in the field of smoking cessation and prevention.

(e) Provide a clearinghouse of information on matters relating to tobacco issues and how they are being met in different places throughout the nation such that both lay and professional groups in the field of government, health care and education may have additional avenues for sharing experiences and interchanging ideas in the formulation of public policy on tobacco.

(f) Develop and prepare an annual plan regarding the allocation of funding for a statewide tobacco control program based on successful tobacco control programs in other states and based on recommendations of the U.S. Centers for Disease Control regarding the allocation of funding for comprehensive tobacco control programs.

(3) Use of funds. (a) From the appropriation under s. 20.436 (1) (tc), the board shall distribute the following amounts to or for all of the following:

1. The board of regents of the University of Wisconsin System for the tobacco research and intervention center at the University of Wisconsin-Madison, $1,000,000 in each fiscal year.

2. The Thomas T. Melvin youth tobacco prevention and education program under s. 255.10, $1,000,000 in fiscal year 1999-2000 and not less than $1,000,000 in fiscal year 2000-01 and in each fiscal year thereafter.

3. A youth smokeless tobacco cessation and prevention campaign developed by the division within the department that has primary responsibility for administering public health programs, $92,000 in fiscal year 1999-2000.

4. The Medical College of Wisconsin for tobacco use prevention and cessation activities, $500,000 in fiscal year 2000-01 and in each fiscal year thereafter. Funds distributed under this subdivision may only be used for activities directly related to preventing individuals from smoking and assisting smokers to quit smoking.

(b) From the appropriation under s. 20.436 (1) (tc), the board may distribute grants for any of the following:

1. Community-based programs to reduce tobacco use.

2. Community-based programs to reduce the burden of tobacco-related diseases.

3. School-based programs relating to tobacco use cessation and prevention.

4. Enforcement of local laws aimed at reducing exposure to secondhand smoke and restricting underage access to tobacco.

5. Grants for partnerships among statewide organizations and businesses that support activities related to tobacco use cessation and prevention.

6. Marketing activities that promote tobacco use cessation and prevention.

7. Projects designed to reduce tobacco use among minorities and pregnant women.

8. Other tobacco use cessation programs.

9. Surveillance of indicators of tobacco use and evaluation of the activities funded under this section.

10. Development of policies that restrict access to tobacco products and reduce exposure to environmental tobacco smoke.

(4) Reports. Not later than July 1, 2001, and annually thereafter, the board shall submit to the governor and to the chief clerk of each house of the legislature for distribution under s. 13.172 (2) a report that evaluates the success of the grant program under sub. (3). The report shall specify the number of grants awarded during the immediately preceding fiscal year and the purpose for which each grant was made. The report shall also specify donations and grants accepted by the board under sub. (5).

(5) Funds. The board may accept for any of its purposes any donations and grants of money, equipment, supplies, materials and services from any person. The board shall include in the report under sub. (4) any donation or grant accepted by the board under this subsection, including the nature, amount and conditions, if any, of the donation or grant and the identity of the donor.

(6) Subcommittees. The board may create subcommittees to assist in its work. If the board creates subcommittees, one of the subcommittees shall address the issue of populations most adversely affected by tobacco.

9,2487 Section 2487. 281.01 (15) of the statutes is amended to read:

281.01 (15) "Solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded or salvageable materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solids or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under ch. 283, or source material, as defined in s. 254.31 (10), special nuclear material, as defined in s. 254.31 (11), or by-product material, as defined in s. 254.31 (3) (1).

9,2487p Section 2487p. 281.16 (3) (e) of the statutes is amended to read:

281.16 (3) (e) An owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under sub. (5) or s. 92.14 or 281.65 or from any other source, to the owner or operator. For the purposes of this paragraph, sub. (4) and ss. 92.07 (2), 92.105 (1), 92.15 (4) and 823.08 (3) (c) 2., the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under sub. (5) or s. 281.65 and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 92.14 or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under s. 92.07 (2), 92.105 (1) or 92.15 that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70% of the cost of compliance or is from 70% to 90% of the cost of compliance in cases of economic hardship, as defined in the rules.

9,2487r Section 2487r. 281.16 (4) of the statutes is amended to read:

281.16 (4) Application to animal feeding operations. If the department issues a notice of discharge under ch. 283 for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under sub. (3) apply to the animal feeding operation, except that if the animal feeding operation is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under sub. (5), s. 92.14 or 281.65 or from any other source.

9,2487t Section 2487t. 281.16 (5) of the statutes is repealed.

9,2487x Section 2487x. 281.165 of the statutes is created to read:

281.165 Compliance with water quality standards for wetlands. (1) Compliance; exemption. An activity shall be considered to comply with the water quality standards that are applicable to wetlands and that are promulgated as rules under s. 281.15 and is exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under s. 29.601 (3) or chs. 30, 31, 281, 283, 289 to 292 or 299 or specified under any rule promulgated, order issued or ordinance adopted under any of those sections or chapters, if the activity meets all of the requirements under either sub. (2) or (3).

(2) Trempealeau County. Subsection (1) applies to an activity that meets all of the following requirements:

(a) The wetland area that will be affected by the activity is less than 15 acres in size.

(b) The site of the activity is zoned for industrial use and is in the vicinity of a manufacturing facility.

(d) The governing body of the city adopts a resolution stating that the exemption under this section is necessary to protect jobs that exist in the city on the date of the adoption of the resolution or is necessary to promote job creation.

(e) The site of the activity is located in Trempealeau County.