Amendment ASA1-AB100

AB100-ASA1,777,9 (c) Subject to pars. (d) 1. and (dm), if no request for an evidentiary hearing is made under par. (b), within 60 days of receiving any response under par. (b) or, if no response is made, within 60 days of the date on which a response or request for hearing is due under par. (b), the department shall make a written decision as to whether a violation has occurred and either dismiss the complaint or take action under par. (e). Any decision under this paragraph shall include findings of fact and conclusions of law and shall state all reasons for the decision. The department shall provide a copy of the decision to the complainant and to any wholesaler against whom allegations are made.

AB100-ASA1,777,17 (cm) Subject to pars. (d) 2. and (dm), if a request for an evidentiary hearing is made under par. (b), the hearing shall be conducted in the manner specified for a contested case under ss. 227.44 to 227.50, except that the hearing shall be conducted within 45 days of receiving the request for hearing under par. (b) and the department shall make its written decision, including whether a violation has occurred and whether the complaint is dismissed or action is taken under par. (e), within 15 days after the hearing. In addition to service of the decision as provided under s. 227.48, the department shall provide a copy of the decision to the complainant.

AB100-ASA1,777,23 (d) 1. If no request for an evidentiary hearing is made under par. (b), within 60 days of receiving any response under par. (b) or, if no response is made, within 60 days of the date on which a response or request for hearing is due under par. (b), the department may extend the time period for making a decision under par. (c) by an additional 60 days if the department provides notice within the time period specified in par. (c) that an additional 60 days is necessary for investigation.

AB100-ASA1,778,3 2. If a request for an evidentiary hearing is made under par. (b), within 45 days of receiving the request for hearing under par. (b), the department may extend the time period for conducting the hearing by an additional 45 days if the department provides notice within 45 days of receiving the request for hearing under par. (b) that an additional 45 days is necessary for investigation.

AB100-ASA1,778,12 (dm) Within 45 days of receiving any response or request for hearing under par. (b) or, if no response or request for hearing is made, within 45 days of the date on which a response or request for hearing is due under par. (b), the department may elect to file a complaint in circuit court under sub. (4) that includes all allegations of the complaint under par. (a) for which the department determines there is cause to find that a violation of s. 125.54 (7) (a) has occurred. If the department files a complaint in circuit court as provided under this paragraph, the department shall not conduct a hearing under par. (cm) or make a written decision under par. (c), but shall proceed with the matter as provided under sub. (4).

AB100-ASA1,778,16 (e) If the department finds the allegations under par. (a) true and sufficient, the department shall either suspend for not less than 10 days nor more than 90 days or revoke the wholesaler's permit, and give notice of the suspension or revocation to the wholesaler.

AB100-ASA1,778,19 (f) A revocation or suspension proceeding under this subsection is a contested case under ch. 227, except that ss. 227.44 to 227.50 apply to a proceeding under this subsection only if a request for an evidentiary hearing is made under par. (b).

AB100-ASA1, s. 1922 Section 1922. 125.145 of the statutes is amended to read:

AB100-ASA1,778,25 125.145 Prosecutions by attorney general or department. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this chapter. The department may represent this state in prosecuting any violation of s. 125.54 (7) (a) or (b) and shall bring any such action in the circuit court for Dane County.

AB100-ASA1, s. 1923 Section 1923. 125.15 of the statutes is created to read:

AB100-ASA1,779,6 125.15 Actions against intoxicating liquor wholesalers. (1) An intoxicating liquor wholesaler, intoxicating liquor retail licensee or permittee, or intoxicating liquor trade association that makes a written complaint to the department under s. 125.12 (6) of a violation of s. 125.54 (7) (a) may bring an action to enforce the provisions of s. 125.54 (7) if any of the following apply:

AB100-ASA1,779,8 (a) The department has not rendered a decision within the time periods specified in s. 125.12 (6) (c) to (d).

AB100-ASA1,779,12 (b) The department has rendered a decision under s. 125.12 (6) in which the department has determined that a violation has occurred but no action has been brought in circuit court by the department, attorney general, or a district attorney to prosecute the violation.

AB100-ASA1,779,16 (2) An intoxicating liquor wholesaler, intoxicating liquor retail licensee or permittee, or intoxicating liquor trade association that brings an action under sub. (1) shall be entitled to recover reasonable attorney fees if found to be the prevailing party.

AB100-ASA1, s. 1924 Section 1924. 125.54 (7) of the statutes is created to read:

AB100-ASA1,779,23 125.54 (7) Bona fide wholesalers. (a) 1. The premises described in a permit issued under this section shall be capable of warehousing intoxicating liquor. Any intoxicating liquor sold by the permittee shall be physically unloaded at the premises described in the permit, or at any warehouse premises for which the permittee under this section also holds a permit issued under s. 125.19, prior to being delivered to a retail licensee or permittee or to another wholesaler.

AB100-ASA1,780,5 2. A permittee under this section shall annually sell and deliver intoxicating liquor to at least 10 retail licensees or permittees that do not have any direct or indirect interest in each other or in the permittee under this section. The department shall not issue a permit under this section unless the applicant represents to the department an intention to satisfy this requirement, and shall not renew a permit issued under this section unless the permittee demonstrates that this requirement has been satisfied.

AB100-ASA1,780,8 (b) No intoxicating liquor retail licensee or permittee may receive a benefit from a violation under par. (a) with knowledge of the circumstances giving rise to the violation.

AB100-ASA1,780,13 (c) 1. A wholesaler who violates this subsection shall be fined not more than $10,000. In addition, a court shall order the wholesaler to forfeit an amount equal to any profit gained by the wholesaler or by a retail licensee or permittee that violates par. (b), or by both, resulting from the violation, and the court shall further order that the wholesaler's permit be revoked.

AB100-ASA1,780,17 2. A court shall order a retail licensee or permittee who violates this subsection to forfeit an amount equal to any profit gained by the retail licensee or permittee resulting from the violation, and the court shall further order that the retail license or permit be revoked.

AB100-ASA1,780,20 3. This paragraph shall not affect the authority of any municipality or the department to revoke, suspend, or refuse to renew or issue a license or permit under s. 125.12.

AB100-ASA1,781,4 (d) The department shall promulgate rules to administer and enforce the requirements under this subsection. The rules shall ensure coordination between the department's issuance and renewal of permits under this section and its enforcement of the requirements of this subsection, and shall require that all applications for issuance or renewal of permits under this section be processed by department personnel generally familiar with activities of intoxicating liquor wholesalers. The department shall establish by rule minimum requirements for warehouse facilities on premises described in permits issued under this section and for periodic site inspections by the department of such warehouse facilities.

AB100-ASA1, s. 1924m Section 1924m. 125.68 (10) (bs) of the statutes is amended to read:

AB100-ASA1,781,7 125.68 (10) (bs) No individual may resell wine received under par. (bm) or receive more than 9 27 liters of wine annually under par. (bm).

AB100-ASA1, s. 1930 Section 1930. 134.66 (1) (a) of the statutes is amended to read:

AB100-ASA1,781,9 134.66 (1) (a) "Cigarette" has the meaning given in s. 139.30 (1) (1m).

AB100-ASA1, s. 1931 Section 1931. 134.66 (1) (am) of the statutes is created to read:

AB100-ASA1,781,11 134.66 (1) (am) "Direct marketer" has the meaning given in s. 139.30 (2n).

AB100-ASA1, s. 1932 Section 1932. 134.66 (2) (a) of the statutes is amended to read:

AB100-ASA1,781,21 134.66 (2) (a) 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 sell or provide for nominal or no consideration cigarettes or tobacco products to any person under the age of 18, except as provided in s. 254.92 (2) (a). A vending machine operator is not liable under this paragraph for the purchase of cigarettes or tobacco products from his or her vending machine by a person under the age of 18 if the vending machine operator was unaware of the purchase.

AB100-ASA1, s. 1933 Section 1933. 134.66 (2) (am) of the statutes is amended to read:

AB100-ASA1,782,5 134.66 (2) (am) No retailer, direct marketer, manufacturer, distributor, jobber, 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 for nominal or no consideration cigarettes or tobacco products to any person except in a place where no person younger than 18 years of age is present or permitted to enter unless the person who is younger than 18 years of age is accompanied by his or her parent or guardian or by his or her spouse who has attained the age of 18 years.

AB100-ASA1, s. 1935 Section 1935. 134.66 (2) (e) of the statutes is amended to read:

AB100-ASA1,782,8 134.66 (2) (e) No retailer or direct marketer may sell cigarettes in a form other than as a package or container on which a stamp is affixed under s. 139.32 (1).

AB100-ASA1, s. 1946 Section 1946. 139.06 (1) (a) of the statutes is amended to read:

AB100-ASA1,782,16 139.06 (1) (a) The taxes imposed under s. 139.03 (intro.) on intoxicating liquor at the rates under s. 139.03 (2m) shall be paid to, and a monthly return filed with, the department of revenue on or before the 15th of the month following the month in which the tax liability is incurred. An administrative fee of 3 11 cents per gallon on intoxicating liquor taxed at the rates under s. 139.03 (2m) is imposed, shall be paid along with the taxes and shall be deposited in the appropriation under s. 20.566 (1) (ha).

AB100-ASA1, s. 1948 Section 1948. 139.30 (1) of the statutes is renumbered 139.30 (1m).

AB100-ASA1, s. 1949 Section 1949. 139.30 (1d) of the statutes is created to read:

AB100-ASA1,782,23 139.30 (1d) "Bonded direct marketer" means any person who acquires unstamped cigarettes from the manufacturer thereof, affixes stamps to the packages or other containers, stores them and sells them by direct marketing to consumers for their own personal use and who may also acquire stamped cigarettes from manufacturers or distributors for such sales.

AB100-ASA1, s. 1950 Section 1950. 139.30 (1s) of the statutes is created to read:

AB100-ASA1,783,3 139.30 (1s) "Consumer" means any individual who receives cigarettes for his or her personal use or consumption or any individual who has title to or possession of cigarettes for any purpose other than for sale or resale.

AB100-ASA1, s. 1951 Section 1951. 139.30 (2n) of the statutes is created to read:

AB100-ASA1,783,6 139.30 (2n) "Direct marketer" means a bonded direct marketer or a nonbonded direct marketer.

AB100-ASA1, s. 1952 Section 1952. 139.30 (2p) of the statutes is created to read:

AB100-ASA1,783,11 139.30 (2p) "Direct marketing" means publishing or making accessible an offer for the sale of cigarettes to consumers in this state, or selling cigarettes to consumers in this state, using any means by which the consumer is not physically present at the time of sale on a premise that sells cigarettes.

AB100-ASA1, s. 1954b Section 1954b. 139.30 (4n) of the statutes is created to read:

AB100-ASA1,783,14 139.30 (4n) "Government issued identification" includes a valid driver's license, state identification card, passport, or military identification.

AB100-ASA1, s. 1956 Section 1956. 139.30 (8d) of the statutes is created to read:

AB100-ASA1,783,18 139.30 (8d) "Nonbonded direct marketer" means any person who acquires stamped cigarettes from the manufacturers or distributors, stores them, and sells them by direct marketing to consumers for their own personal use.

AB100-ASA1, s. 1958 Section 1958. 139.30 (10) of the statutes is amended to read:

AB100-ASA1,783,22 139.30 (10) "Retailer" means any person who sells, exposes for sale or possesses with intent to sell to consumers any cigarettes has the meaning given in s. 134.66 (1) (g).

AB100-ASA1, s. 1959 Section 1959. 139.32 (1) of the statutes is amended to read:

AB100-ASA1,784,5 139.32 (1) The tax imposed by s. 139.31 (1) shall be paid. To evidence the payment, the department shall provide stamps. A person who has paid the tax shall affix stamps of the proper denomination to each package in which cigarettes are packed, prior to the first sale within this state. First sale does not include a sale by a manufacturer to a distributor or to a bonded direct marketer or by a distributor to a permittee who has obtained department approval as provided for in s. 139.321 (1) (a) 2. The tax shall be paid only once on each package or container.

AB100-ASA1, s. 1961 Section 1961. 139.32 (5) of the statutes is amended to read:

AB100-ASA1,784,9 139.32 (5) Manufacturers, bonded direct marketers, and distributors having a permit from the secretary who are authorized by the department to purchase tax stamps shall receive a discount of 1.6% of the tax paid on stamp purchases.

AB100-ASA1, s. 1962 Section 1962. 139.32 (5m) of the statutes is amended to read:

AB100-ASA1,784,12 139.32 (5m) Distributors, bonded direct marketers, and manufacturers shall pay to the department the cost of printing and shipping those stamps.

AB100-ASA1, s. 1963 Section 1963. 139.32 (6) of the statutes is amended to read:

AB100-ASA1,784,18 139.32 (6) Manufacturers, bonded direct marketers, and distributors having a permit from the secretary who are authorized by the department to purchase tax stamps may purchase stamps on credit. The secretary may require manufacturers, bonded direct marketers, and distributors who purchase stamps on credit to file under the conditions prescribed by the secretary by rule.

AB100-ASA1, s. 1964 Section 1964. 139.321 (1) (intro.) of the statutes is amended to read:

AB100-ASA1,784,22 139.321 (1) (intro.) It is unlawful for any person to possess in excess of 400 cigarettes unless the required stamps are properly affixed as provided in ss. 139.32 (1) and 139.33 (4).

AB100-ASA1, s. 1966 Section 1966. 139.33 (3) of the statutes is amended to read:

AB100-ASA1,785,13 139.33 (3) No person other than a member of the armed forces, as specified in this subsection, a licensed distributor, or a bonded direct marketer who is authorized by the department to purchase and affix tax stamps may import into this state more than 400 cigarettes on which the excise tax imposed by s. 139.31 has not been paid and the container of which does not bear proper stamps. Within 15 days, any such person importing cigarettes shall file a declaration of such cigarettes imported and shall remit therewith the tax on such cigarettes imposed by this section. Members of the armed forces shall not be required to report or pay the tax on cigarettes in their possession if such cigarettes are issued to them by the U.S. government or any of its subdivisions or were purchased in any armed forces post exchange or service store for their personal use or consumption. If the use tax imposed by this section is not paid when due, it shall become delinquent and the person liable for it shall pay, in addition, a penalty of $25 for each 200 cigarettes. Interest on the delinquent tax and penalty shall accrue at the rate of 1.5% per month or each fraction of a month from the date the tax became due until paid.

AB100-ASA1, s. 1975 Section 1975. 139.34 (3) of the statutes is amended to read:

AB100-ASA1,785,19 139.34 (3) No distributor or bonded direct marketer may affix stamps to cigarette packages, as provided in s. 139.32, unless the distributor or bonded direct marketer certifies to the department, in a manner prescribed by the department, that the distributor or bonded direct marketer purchases cigarettes directly from a manufacturer.

AB100-ASA1, s. 1979b Section 1979b. 139.345 of the statutes is created to read:

AB100-ASA1,785,24 139.345 Direct marketing. (1) (a) (intro.) No person may sell cigarettes to consumers in this state as a direct marketer unless the person submits to 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.

AB100-ASA1,786,10 (b) No person may sell cigarettes as described under this section 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.

AB100-ASA1,786,16 (d) No person may sell cigarettes as described in this section 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 that the person shall provide the department any information the department considers necessary to administer this section.

AB100-ASA1,786,18 (2) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 77.52 or 77.53 is paid on the sale of such cigarettes.

AB100-ASA1,786,20 (3) No person may sell cigarettes to consumers in this state unless the person does all of the following:

AB100-ASA1,786,22 (a) Verifies the consumer's name and address and that the consumer is at least 18 years of age by any of the following methods:

AB100-ASA1,786,24 1. The person uses a database that includes information based on public records.

AB100-ASA1,787,2 2. The person receives from the consumer, at the time of purchase, a copy of a government issued identification.

AB100-ASA1,787,4 3. The person uses a mechanism, other than a mechanism specified under subd. 1. or 2., that is approved by the department.

AB100-ASA1,787,6 (b) Obtains from the consumer, at the time of purchase, a statement signed by the consumer that confirms all of the following:

AB100-ASA1,787,7 1. The consumer's name, address, and birth date.

AB100-ASA1,787,10 2. That the consumer understands that no person who is under 18 years of age may purchase or possess cigarettes or falsely represent his or her age for the purpose of receiving cigarettes, as provided under s. 254.92.

AB100-ASA1,787,18 3. That the consumer understands that any person who, for the purpose of obtaining credit, goods, or services, intentionally uses, attempts to use, or possesses with intent to use, any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her, is guilty of a Class H felony, as provided under s. 943.201.

AB100-ASA1,787,21 (4) Any person who makes a sale of cigarettes by means of the Internet shall, at the time of purchase, obtain the purchaser's electronic mail address and shall receive payment for the sale by credit card, debit card, or check prior to shipping.

AB100-ASA1,787,24 (5) The invoice for any shipment of cigarettes sold to consumers in this state by direct marketing shall specify the name and address of the seller and any valid permit issued under s. 139.34 that is held by the seller.

AB100-ASA1,788,2 (6) All packages of cigarettes shipped to consumers in this state shall be clearly labelled "CIGARETTES" on the outside of such packages.

AB100-ASA1,788,10 (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 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.

AB100-ASA1,788,15 (b) No person may deliver a package of cigarettes to a consumer in this state unless the seller of the cigarettes provides proof to the person making the delivery that the seller has complied with all requirements under this subchapter. A seller shall have no course of action against any person who refuses to deliver cigarettes as provided under this subdivision.

AB100-ASA1, s. 1980 Section 1980. 139.35 (1) of the statutes is amended to read:

AB100-ASA1,788,21 139.35 (1) Transfers. No person may give, sell or lend any stamps to another and no person may accept, purchase or borrow any stamps from another. All sales and transfers of stamps may be made only by the secretary to permit holding manufacturers and, distributors, and bonded direct marketers who are authorized by the department to purchase and affix tax stamps.

AB100-ASA1, s. 1980m Section 1980m. 139.362 of the statutes is created to read:

AB100-ASA1,789,4 139.362 Bad debt deductions. (1) In this section, "bad debt" means an amount that is equal to the purchase price of cigarettes, if such amount may be claimed as a deduction under section 166 of the Internal Revenue Code. "Bad debt" does not include financing charges, interest on the wholesale price of cigarettes, uncollectible amounts on property that remains in the seller's possession until the full purchase price is paid, expenses incurred in attempting to collect any debt, debts sold or assigned to 3rd parties for collection, and repossessed property.

AB100-ASA1,789,18 (2) A person who pays the taxes imposed under this subchapter may claim as a deduction on a return under s. 139.38, and against the purchase of stamps under s. 139.32, the amount of any such taxes that are attributable to bad debt that the person writes off as uncollectible in the person's books and records and that is eligible to be deducted as bad debt for federal income tax purposes, regardless of whether the person is required to file a federal income tax return. A person who claims a deduction under this section shall claim the deduction on the return under s. 139.38 that is submitted for the period in which the person writes off the amount of the bad debt as uncollectible in the person's books and records and in which such amount is eligible to be deducted as bad debt for federal income tax purposes. If the person subsequently collects in whole or in part any bad debt for which a deduction is claimed under this section, the person shall submit to the department the portion of the deduction related to the amount collected, in the manner prescribed by the department and for the period in which the amount is collected.