134.65 (5) (a) Any Except as provided in par. (b), any person violating this section shall be fined not more than $100 $1,000 nor less than $25 $500 for the first offense and shall be fined not more than $200 $5,000 nor less than $25 $1,000 or imprisoned for not more than 180 days or both for the 2nd or subsequent offense. If upon such 2nd or subsequent violation, the person so violating this section was personally guilty of a failure to exercise due care to prevent violation thereof, the person shall be fined not more than $300 nor less than $25 or imprisoned not exceeding 60 days or both. Conviction Upon conviction of a 2nd or subsequent offense, the court shall immediately terminate the license of the person convicted of being personally guilty of such failure to exercise due care and the person shall not be entitled to another license hereunder for a period of 5 years thereafter, nor shall the person in that period act as the servant or agent of a person licensed hereunder for the performance of the acts authorized by such license.
SECTION 11. 134.65 (5) (b) of the statutes is created to read:
134.65 (5) (b) No penalty shall be imposed under par. (a) if any of the following apply:
1. The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.
2. The person who is subject to a penalty under par. (a) had good cause to violate this section, and such violation did not result from the person's neglect.
SECTION 12. 134.66 (2) (d) of the statutes is created to read:
134.66 (2) (d) No retailer, direct marketer, manufacturer, distributor, jobber or subjobber, no agent, employee or independent contractor of a retailer, direct marketer, manufacturer, distributor, jobber or subjobber, and no agent or employee of an independent contractor may provide cigarettes or tobacco products for nominal or no consideration to any person under the age of 18.
SECTION 13. 134.66 (3m) of the statutes is created to read:
134.66 (3m) DEFENSE OF DIRECT MARKETER. Proof of all of the following facts by a direct marketer who sells cigarettes or tobacco products to a person under the age of 18 is a defense to any prosecution for a violation under sub. (2) (a):
(a) That the direct marketer used a mechanism, approved by the department of revenue, for verifying the age of the purchaser.
(b) That the purchaser falsely represented that he or she had attained the age of 18 and presented a copy or facsimile of an identification card.
(c) That the name and birthdate of the purchaser, as indicated by the purchaser, matched the name and birthdate on the identification presented under par. (b).
(d) That the sale was made in good faith, in reasonable reliance on the mechanism described in par. (a) and the representation and identification under pars. (b) and (c), and in the belief that the purchaser had attained the age of 18.
SECTION 14. 139.30 (4n) of the statutes is repealed and recreated to read:
139.30 (4n) "Identification card" has the meaning given in s. 134.66 (1) (c).
SECTION 15. 139.30 (7) of the statutes is amended to read:
139.30 (7) "Manufacturer" means any person who directly manufactures cigarettes for the purpose of sale, including the authorized agent of a person who directly manufactures cigarettes for the purpose of sale.
SECTION 16. 139.30 (8s) of the statutes is created to read:
139.30 (8s) "Person" means any individual, sole proprietorship, partnership, limited liability company, corporation, or association, or any owner of a single-owner entity that is disregarded as a separate entity under ch. 71.
SECTION 17. 139.32 (4) of the statutes is amended to read:
139.32 (4) In lieu of stamps the secretary may authorize impressions applied by the use of meter machines. The secretary shall prescribe by rule the type of impression and the kind of machines which may be used.
SECTION 18. 139.321 (1) (intro.) of the statutes is amended to read:
139.321 (1) (intro.) It is unlawful for any person to purchase or possess cigarettes unless the required stamps are properly affixed as provided in ss. 139.32 (1) and 139.33 (4).
SECTION 19. 139.321 (1) (a) 1. of the statutes is amended to read:
139.321 (1) (a) 1. Manufacturers, bonded direct marketers, distributors or warehouse operators possessing valid permits issued by the secretary.
SECTION 20. 139.34 (1) (a) of the statutes is amended to read:
139.34 (1) (a) No person may manufacture cigarettes in this state or sell cigarettes in this state as a distributor, manufacturer, jobber, vending machine operator, direct marketer, or multiple retailer and no person may operate a warehouse in this state for the storage of cigarettes for another person without first filing an application for and obtaining the proper permit to perform such operations from the department.
SECTION 21. 139.34 (1) (b) of the statutes is repealed.
SECTION 22. 139.34 (1) (c) 1. of the statutes is repealed.
SECTION 23. 139.34 (1) (c) 1m. of the statutes is created to read:
139.34 (1) (c) 1m. The person has an arrest record or a conviction record.
SECTION 24. 139.34 (1) (c) 2. of the statutes is amended to read:
139.34 (1) (c) 2. The person has been convicted of a felony, or as a repeat or habitual offender, unless pardoned.
SECTION 25. 139.34 (1) (c) 3. of the statutes is repealed.
SECTION 26. 139.34 (1) (c) 4. of the statutes is repealed.
SECTION 27. 139.34 (1) (c) 4m. of the statutes is created to read:
139.34 (1) (c) 4m. The person is not 18 years of age or older.
SECTION 28. 139.34 (1) (c) 5. of the statutes is repealed.
SECTION 29. 139.34 (1) (c) 6. of the statutes is repealed.
SECTION 30. 139.34 (1) (c) 7. of the statutes is renumbered 139.34 (1) (c) 5m.
SECTION 31. 139.34 (1) (cm) of the statutes is created to read:
139.34 (1) (cm) The requirements under par. (c) apply to all partners of a partnership, all members of a limited liability company, all agents of a limited liability company or corporation, and all officers of a corporation.
SECTION 32. 139.34 (4) of the statutes is amended to read:
139.34 (4) A separate permit shall be required of and issued to each class of permittee and the holder of any permit shall perform only the operations thereby authorized. Such permit shall not be transferable from one person to another or from one premises to another. A separate permit shall be required for each place where cigarettes are stamped or where cigarettes are stored for sale at wholesale or, through vending machines or multiple retail outlets, or by direct marketing.
SECTION 33. 139.34 (6) of the statutes is amended to read:
139.34 (6) A vending machine operator or a multiple retailer may acquire unstamped cigarettes from the manufacturers thereof and affix the stamps to packages or other containers only if the vending machine operator or multiple retailer also holds a permit as a distributor or bonded direct marketer.
SECTION 34. 139.34 (8) of the statutes is amended to read:
139.34 (8) The holder of a warehouse permit is entitled to store cigarettes on the premises described in the permit. The warehouse permit shall not authorize the holder to sell cigarettes. Unstamped cigarettes stored in a warehouse for a manufacturer, bonded direct marketer, or distributor may be delivered only to a person holding a permit as a manufacturer or, distributor, or bonded direct marketer who is authorized by the department to purchase and affix tax stamps.
SECTION 35. 139.345 (1) (a) of the statutes is amended to read:
139.345 (1) (a) No person may sell cigarettes to consumers in this state as a direct marketer or solicit sales of cigarettes to consumers in this state by direct marketing unless the person submits to has obtained a permit from the department the person's name, trade name, address of the person's principal place of business, phone number, e-mail address, and Web site address to make such sales or solicitations. The person shall file an application for a permit under this subsection with the department, in the manner prescribed by the department.
SECTION 36. 139.345 (1) (b) of the statutes is amended to read:
139.345 (1) (b) No person may sell cigarettes as described under this section The department may not issue a permit to a person under par. (a) unless the person certifies to the department, in the manner prescribed by the department, that the person shall acquire stamped cigarettes from a licensed distributor or unstamped cigarettes from the manufacturer thereof, pay the tax imposed under this subchapter on all unstamped cigarettes and affix stamps to the cigarette packages or containers as provided under s. 139.32 (1), store such packages or containers, and sell only such packages or containers to consumers in this state by direct marketing; or acquire cigarettes from a distributor, to the packages or containers of which stamps have been affixed as provided under s. 139.32 (1), and sell only such packages or containers to consumers in this state by direct marketing.
SECTION 37. 139.345 (1) (d) of the statutes is amended to read:
139.345 (1) (d) No person may sell cigarettes as described in this section The department may not issue a permit to a person under par. (a) unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation for all shipments of cigarette sales from the person shall bear the person's name and address and the permit number of the permit ultimately issued under this subsection; and that the person shall provide the department any information the department considers necessary to administer this section.
SECTION 38. 139.345 (3) (intro.) of the statutes is amended to read:
139.345 (3) (intro.) No person may sell cigarettes to consumers a consumer in this state unless the person does all of the following:
SECTION 39. 139.345 (3) (a) (intro.) of the statutes is amended to read:
139.345 (3) (a) (intro.) Verifies the consumer's name identity and address and that the consumer is at least 18 years of age by any of the following methods:
SECTION 40. 139.345 (3) (a) 2. of the statutes is amended to read:
139.345 (3) (a) 2. The person receives from the consumer, at the time of purchase, a copy of a government issued an identification card and verifies that the name specified on the identification card matches the name of the consumer and that the birth date on the identification card indicates that the consumer is at least 18 years of age.
SECTION 41. 139.345 (7) (a) of the statutes is amended to read:
139.345 (7) (a) No person may deliver a package of cigarettes sold by direct marketing to a consumer in this state unless the person making the delivery receives a government issued an identification card from the person receiving the package and verifies that the person receiving the package is at least 18 years of age. If the person receiving the package is not the person to whom the package is addressed, the person delivering the package shall have the person receiving the package sign a statement that affirms that the person to whom the package is addressed is at least 18 years of age.
SECTION 42. 139.345 (8) of the statutes is created to read:
139.345 (8) (a) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 139.31 (1) is paid on the cigarettes and stamps are affixed to the cigarette packages or containers as provided under s. 139.32.
(b) No person may sell cigarettes to consumers in this state by direct marketing unless the cigarette brands are approved by the department and listed in the directory of certified tobacco product manufacturers and brands as provided under s. 995.12 (2) (b).
SECTION 43. 139.345 (9) of the statutes is created to read:
139.345 (9) Except as provided in sub. (12), any person who, without having a valid permit under sub. (1), sells or solicits sales of cigarettes to consumers in this state by direct marketing shall pay a penalty to the department of $5,000 or an amount that is equal to $50 for every 200 cigarettes, or fraction of 200 cigarettes, sold to consumers in this state by direct marketing, whichever is greater.
SECTION 44. 139.345 (10) of the statutes is created to read:
139.345 (10) (a) No sale of cigarettes to a consumer in this state by direct marketing may exceed 10 cartons for each invoice or 20 cartons in a 30-day period for each purchaser or address.
(b) Except as provided in sub. (12), any person who sells cigarettes in an amount that exceeds the amounts allowed under par. (a) shall pay a penalty to the department of $5,000 or an amount that is equal to $50 for every 200 cigarettes, or fraction of 200 cigarettes, sold in excess of the amounts allowed under par. (a), whichever is greater.
(c) Except as provided in sub. (12), any person who purchases cigarettes in an amount that exceeds the amounts allowed under par. (a) shall apply for a permit under s. 139.34 and shall pay a penalty to the department of $25 for every 200 cigarettes, or fraction of 200 cigarettes, purchased in excess of the amounts allowed under par. (a).
SECTION 45. 139.345 (11) of the statutes is created to read:
139.345 (11) (a) Any nonresident or foreign direct marketer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to obtaining a permit under s. 139.34 (1), appoint and continually engage the services of an agent in this state to act as agent for the service of process on whom all processes, and any action or proceeding against it concerning or arising out of the enforcement of this chapter, may be served in any manner authorized by law. That service shall constitute legal and valid service of process on the direct marketer. The direct marketer shall provide the name, address, phone number, and proof of the appointment and availability of the agent to the department.
(b) A direct marketer described under par. (a) shall provide notice to the department no later than 30 calendar days before termination of the authority of an agent under par. (a) and shall provide proof to the satisfaction of the department of the appointment of a new agent no later than 5 calendar days before the termination of an existing appointment. In the event an agent terminates an appointment, the direct marketer shall notify the department of that termination no later than 5 calendar days after the termination and shall include proof to the satisfaction of the department of the appointment of a new agent.
(c) The secretary of state is the agent in this state for the service of process of any direct marketer who has not appointed and engaged an agent as provided under par. (a), except that the secretary of state acting as the direct marketer's agent for the service of process does not satisfy the requirements imposed by par. (a).
SECTION 46. 139.345 (12) of the statutes is created to read:
139.345 (12) No penalty shall be imposed under subs. (9) and (10) if any of the following apply:
(a) The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.
(b) The person who is subject to a penalty under sub. (9) or (10) had good cause to violate sub. (9) or (10), and such violation did not result from the person's neglect.
SECTION 47. 139.37 (1) (a) of the statutes is amended to read:
139.37 (1) (a) No person shall sell cigarettes or take orders for cigarettes for resale solicit cigarette sales in this state for any manufacturer or permittee without first obtaining a unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit from the department of revenue. No manufacturer or permittee shall authorize any person to sell cigarettes or take orders for cigarettes solicit cigarette sales in this state without first having such person secure unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit. No person shall authorize the sale of cigarettes or the solicitation of cigarette sales in this state unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a valid permit under s. 139.34. The department shall issue the required number of permits to manufacturers and permittees who hold a valid certificate issued under s. 73.03 (50). Each application for a salesperson's permit shall disclose the name and address of the employer or the person for whom the salesperson is selling or soliciting and such permit shall remain effective only while the salesperson represents such named employer or person. If such salesperson is thereafter employed by another manufacturer or permittee person, the salesperson shall obtain a new salesperson's permit. Each manufacturer and permittee The employer of any such salesperson shall notify the department within 10 days after the resignation or dismissal of any such the salesperson holding a permit.
SECTION 48. 139.40 (1) of the statutes is amended to read:
139.40 (1) All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter or s. 134.65, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer. All cigarettes seized for violating s. 139.31 (4) or (5) shall be destroyed.
SECTION 49. 139.40 (2) of the statutes is amended to read:
139.40 (2) If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid Cigarettes that are so seized they as provided under sub. (1) may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, after deducting the costs of the sale and the keeping of storing the property, the proceeds of the sale shall be paid into the state treasury. If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses would otherwise be impractical, the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.
SECTION 50. 139.44 (1m) of the statutes is amended to read:
139.44 (1m) Any person who falsely or fraudulently tampers with a cigarette meter tax impression machine in order to evade the tax under s. 139.31 is guilty of a Class G felony.
SECTION 51. 139.44 (2) of the statutes is amended to read:
139.44 (2) Any person who makes or signs any false or fraudulent report or who attempts to evade the tax imposed by s. 139.31 or 139.76, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned for not more than 9 months or both, is guilty of a Class H felony.
