1999 Wisconsin Act 9

(a) The issuance, modification, suspension, termination and revocation of specific licenses under sub. (1) (a) under the standards specified in s. 254.34 (1) (a).

(b) The requirements for a general license under sub. (1) (b).

(5) Fees and charges. (a) The department may assess fees, the amounts of which are prescribed by the department by rule, for any of the following:

1. Issuance of an initial or renewal specific license under sub. (1) (a).

2. Annual license maintenance.

3. Issuance of a license amendment.

4. Termination of a license.

5. Issuance of reciprocal recognition of a license for radioactive materials of another state or the U.S. nuclear regulatory commission.

(b) The department may assess a late payment charge of 25% of the specific license renewal fee, in addition to the fee under par. (a) for renewal of a specific license, if payment for renewal of a specific license is not made within 30 days after the license expiration date.

(6) Denial, suspension or revocation of licensure. The department may, after a hearing under ch. 227, refuse to issue a license or suspend or revoke a license for failure by the licensee to comply with this subchapter, rules promulgated by the department under this subchapter or any condition of the license.

(7) Exemption. The department may exempt from licensing requirements of this section radioactive material that the department finds is without undue radiation hazard.

9,2477 Section 2477. 254.37 (1) of the statutes is renumbered 254.37 (1) (intro.) and amended to read:

254.37 (1) Notification of violation and order of abatement. (intro.) Whenever the department or the department of commerce finds, upon inspection and examination, that a source of radiation as constructed, operated or maintained results in a violation of this subchapter or of any rules promulgated under this subchapter, it the department shall notify do all of the following:

(a) Notify the person in control that is causing, allowing or permitting the violation as to the nature of the violation and order.

(b) Order that, prior to a specified time, the person in control shall cease and abate causing, allowing or permitting the violation and take such action as may be necessary to have the source of radiation constructed, operated, or maintained in compliance with this subchapter and rules promulgated under this subchapter.

9,2478 Section 2478. 254.37 (2) of the statutes is amended to read:

254.37 (2) Orders. The department or the department of commerce shall issue and enforce such orders or modifications of previously issued orders as may be required in connection with proceedings under this subchapter. The orders shall be subject to review by the department upon petition of the persons affected. Whenever the department or the department of commerce finds that a condition exists which that constitutes an immediate threat to health due to violation of this subchapter or any rule or order promulgated under this subchapter, it may issue an order reciting the existence of the threat and the findings pertaining to the threat. The department or the department of commerce may summarily cause the abatement of the violation.

9,2479 Section 2479. 254.37 (3) of the statutes is amended to read:

254.37 (3) Rules. The department shall promulgate and enforce the rules pertaining to ionizing radiation in establishments principally engaged in furnishing medical, surgical, chiropractic and other health services to persons and animals. The department of commerce shall enforce the rules pertaining to ionizing radiation in industrial establishments. The department shall notify the department of commerce and deliver to it a copy of each new registration and at such time a decision shall be made as to which state agency shall enforce the rules pertaining to ionizing radiation.

9,2480 Section 2480. 254.37 (4) of the statutes is amended to read:

254.37 (4) Enforcement Jurisdiction. All orders issued under this subchapter shall be enforced by the attorney general. The circuit court of Dane county shall have jurisdiction to enforce the orders by injunctional and other appropriate relief.

9,2481 Section 2481. 254.38 (title) of the statutes is created to read:

254.38 (title) Emergency authority.

9,2482 Section 2482. 254.38 of the statutes is renumbered 254.38 (1) and amended to read:

254.38 (1) Impounding materials. The department or department of commerce may impound or order the sequestration of sources of radiation in the possession of any person who is not equipped to observe or who fails to observe safety standards to protect health that are established in rules promulgated by the department or the department of commerce.

9,2483 Section 2483. 254.38 (2) of the statutes is created to read:

254.38 (2) Emergency orders. If the department finds that an emergency exists concerning a matter subject to regulation under this subchapter that requires immediate action to protect the public health or safety, the department may issue an emergency order without notice or hearing that recites the existence of the emergency and requires such action as is necessary to mitigate the emergency. Any person to whom the order is issued shall immediately comply with the order. A person to whom an emergency order is issued shall be afforded a hearing within 30 days after receipt by the department of a written request for the hearing. An emergency order is effective upon issuance and remains in effect for up to 90 days after issuance, except that the order may be revoked or modified based on the results of the hearing.

9,2484 Section 2484. 254.39 (2) of the statutes is amended to read:

254.39 (2) This subchapter does not apply to on-site activities of any nuclear reactor plant licensed by the nuclear regulatory commission U.S. nuclear regulatory commission.

9,2485 Section 2485. 254.45 of the statutes is repealed and recreated to read:

254.45 Penalties. (1) General. (a) Any person who violates this subchapter or a rule promulgated under this subchapter or a condition of a license or registration issued by the department under this subchapter may be required to forfeit not less than $100 nor more than $100,000. Each day of continued violation constitutes a separate offense.

(b) The amount of the forfeiture assessed under par. (a) shall be determined by considering all of the following:

1. The wilfulness of the violation.

2. The person's previous violations, if any, of this subchapter, rules promulgated under this subchapter or conditions of a license or registration issued by the department under this subchapter.

3. The potential danger or actual or potential injury to the environment or to public health caused by the violation.

4. The actual or potential costs of the damage or injury caused by the violation.

(2) Assessment of forfeitures; notice. The department may directly assess forfeitures provided for in sub. (1). If the department determines that a forfeiture should be assessed for a particular violation, the department shall send a notice of assessment to the person. The notice shall specify the amount of the forfeiture assessed and the violation and the statute or rule alleged to have been violated and shall inform the person of the right to hearing under sub. (3).

(3) Hearing. A person upon whom a forfeiture is imposed may contest the action 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 created under s. 15.103 (1). 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 of 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.

(4) Forfeiture payment and disposition. (a) A person against whom the department has assessed a forfeiture shall pay the forfeiture to the department within 10 days after receipt of the notice under sub. (2) or, if the person contests the assessment, within 10 days after receipt of the final decision after exhaustion of administrative review. If the person petitions for judicial review under ch. 227, the person shall pay the forfeiture within 10 days after receipt of the final judicial decision.

(b) The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(5) Enforcement. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid as required under sub. (4). The only issue to be contested in an action under this subsection is whether the forfeiture has been paid.

9,2485g Section 2485g. Subchapter IX (title) of chapter 254 [precedes 254.911] of the statutes is created to read:

Chapter 254

Subchapter IX
Investigations of the sale or
gift of cigarettes or
tobacco products to minors

9,2485h Section 2485h. 254.911 of the statutes is created to read:

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.

(c) The appearance of a minor may not be materially altered so as to indicate greater age.

(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: