AB1076: Bill Text

LRB-5606/3

DAK/MGG:kmg:ch

1995 - 1996 LEGISLATURE

1995 Assembly BILL 1076

March 21, 1996 - Introduced by Representatives Walker, Dobyns, Kreibich, Harsdorf, Ladwig, Olsen, Kelso, Urban, Duff and Freese, cosponsored by Senators Buettner, Drzewiecki, Rude, Rosenzweig, Schultz, Clausing, Darling, Cowles and Grobschmidt. Referred to Calendar.

AB1076,2,6 An Act to repeal 48.983 (1), 48.983 (5), 101.123 (1) (dg), 134.65 (2) (b), 134.66 (1) (k) and (L), 134.66 (2) (c) 3. and 4., 134.66 (2) (cm) 2. and 3. and 134.66 (2) (d); to renumber 134.65 (title), 134.66 (1) (a), (b), (c), (d) and (e), 134.66 (1) (hm), (i) and (j), 134.66 (2) (title) and 134.66 (5) (title); to renumber and amend 48.983 (title), 48.983 (2), 48.983 (3), 48.983 (4), 134.65 (1) and (2) (a), 134.65 (3), (4) and (5), 134.66 (title), 134.66 (1) (intro.), 134.66 (1) (g), 134.66 (1) (h), 134.66 (2) (a), 134.66 (2) (b) 1., 134.66 (2) (b) 2., 134.66 (2) (c) 1. (intro.), 134.66 (2) (c) 2., 134.66 (2) (cm) 1., 134.66 (2) (e), 134.66 (3) (title), 134.66 (3), 134.66 (4) and 134.66 (5); to consolidate, renumber and amend 134.66 (2) (c) 1. a. and b.; to amend 20.435 (1) (gm), 47.03 (7), 77.54 (20) (c) 6., 101.123 (1) (c), 101.123 (2) (am) 1., 101.123 (2) (am) 2., 111.35 (2) (d), 139.08 (3), 139.30 (14), 139.39 (1), 139.39 (5) (a), 251.04 (1) and 778.25 (1) (a) 4.; and to create 101.123 (1) (ah), 101.123 (2) (am) 3., 139.34 (1) (c) 8., subchapter IX (title) of chapter 254 [precedes 254.911], 254.911 (5), (6m), (11) and (13) to (15), 254.914 (1m) and (2), 254.914 (5), 254.914 (8), 254.916, 254.92 (1) (c) 2., 254.92 (1) (c) 3., 254.92 (1) (c) 4., 254.92 (1) (c) 5., 254.92 (2) (c) and (d), 254.92 (3) (b), 254.92 (5) (b) and 254.922 of the statutes; relating to: transferring to the department of health and family services authority for licensing cigarette and tobacco products retailers and authority to enforce certain prohibitions on the sale, gift, purchase or possession of cigarettes or tobacco products, locations and control of tobacco vending machines, prohibiting smoking in health care provider offices and in certain government buildings, granting rule-making authority, making an appropriation and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, yearly licenses for the retail sale of cigarettes and tobacco products are issued upon submittal of an application and payment of a $5 fee to the city, village or town in which the retail sale is sought to be conducted. Yearly permits for the manufacture or sale of cigarettes by a distributor, jobber, vending machine operator or multiple retailer and yearly permits for the storage of cigarettes by a warehouse operator are issued by the department of revenue (DOR). Unlicensed sale or gifting of cigarettes and tobacco products to a person who has neither a license nor a permit is prohibited and violators are subject to fines; if the violator is found personally guilty of failure to exercise due care, a court may terminate the license or permit for 5 years. Current law generally prohibits the purchase or possession of cigarettes or tobacco products by minors and prohibits the sale or gifting of cigarettes or tobacco products to minors by retailers, vending machine operators, manufacturers, distributors, jobbers and subjobbers. (A vending machine operator is not liable under this prohibition for the purchase of cigarettes or tobacco products by a minor if the vending machine operator was unaware of the purchase.) Retailers may place vending machines in public places open to minors only where the machines are under the retailers' control or the control of their employes. Retailers are prohibited from placing a vending machine within 500 feet of a school. Retailers are, in addition, prohibited from selling cigarettes in a form other than as a package or container which is stamped, for tax purposes, as required by DOR. Violation of these prohibitions subject the violator to forfeitures and, for repeated violations within certain time periods, to suspension of the license of the retailer or the permit of the manufacturer, distributor, jobber or subjobber. A retailer, manufacturer or distributor may assert a defense to prosecution for sale of cigarettes or tobacco products to a minor by proving that the purchaser falsely represented that he or she had attained age 18, that the purchaser's appearance indicated that he or she had attained the age of 18 and that the sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser and the belief that he or she had attained age 18. A county, city, town or village may adopt an ordinance that regulates the sale or gifting of cigarettes or tobacco products if the ordinance strictly conforms to current law.

This bill, on July 1, 1996, transfers from cities, villages and towns to the department of health and family services (DHFS) (formerly the department of health and social services) the authority to license cigarette and tobacco products retailers and to regulate the sale or gifting of cigarettes or tobacco products to minors and the purchase or possession of cigarettes or tobacco products by minors. Under the bill, fines and misdemeanors for the unlicensed sale of cigarettes and tobacco products to persons who have neither a license nor a permit are changed to administrative forfeitures that may be imposed by DHFS. The bill prohibits a licensed retailer or the retailer's employe or agent from selling, exposing for sale, exchanging, bartering or disposing of cigarettes, or from selling, exposing for sale, exchanging, bartering, disposing of or giving tobacco products other than cigars, to a person who is not licensed as a retailer or who does not hold a permit as a manufacturer, distributor, jobber, vending machine operator, multiple retailer or warehouse operator, unless both the retailer or his or her employe or agent and the receiver of the cigarettes or tobacco products are physically present on the retailer's licensed premises during the transaction. The bill prohibits licensees from giving away cigarettes to anyone and prohibits the sale of single cigarettes. The bill expands prohibitions on the sale or gifting of cigarettes or tobacco products to minors to include sale or gifting by independent contractors of retailers, manufacturers, distributors, jobbers or subjobbers or by the independent contractor's agents or employes; further, the bill specifies that forfeitures that may be imposed by DHFS for gifting or sale of cigarettes or tobacco products to minors that is done by a retailer, manufacturer, distributor, jobber, subjobber or independent contractor or by their agents or employes apply to the retailer, manufacturer, distributor, jobber, subjobber or independent contractor. DHFS is authorized to designate local health departments as DHFS agents for issuance of licenses and inspections and investigations of licensed premises.

Local health departments, in cooperation with local law enforcement authorities, and law enforcement officers (under municipal ordinances) are required to conduct at least one random, unannounced investigation every 2 years to ensure compliance with the laws prohibiting the sale and gifting of cigarettes and tobacco products. Local health departments must, in conducting the investigations, authorize the use of minors who have written permission from a parent to assist in the performance of research to monitor compliance with sale or gifting restrictions and to conduct undercover operations. Except for the purposes of these investigations using minors, however, local health departments may not, however, contract or subcontract their regulation of restrictions on the sale or gifting of cigarettes or tobacco products. The bill permits a county, city, town or village to enact ordinances for these investigations that are at least as strict as the statutes. Local health departments must annually conduct at least one random, unannounced inspection of licensees. The amount of the fees for the annual licenses for retailers is changed to $50, collectible by the local health departments; of this amount, DHFS must receive $10 for its costs in setting standards, monitoring and evaluating activities of local health departments and providing education and training to local health departments. The affirmative defense of a retailer, manufacturer or distributor to prosecution for the sale of cigarettes or tobacco products to a minor is extended to a jobber, subjobber or independent contractor. The bill permits a local board of health to adopt regulations concerning licensing requirements that are in strict conformity with the laws governing licensing or rules promulgated by DHFS. The bill permits a county, city, town or village to enact ordinances for regulation of the sale or gifting of cigarettes and tobacco products that are in strict conformity with the statutes or DHFS rules. The bill changes the definition of tobacco vending machine to include deposit of money or tokens in the machine. The bill allows vending machines to be placed in establishments such as factories, offices and clubs in areas that are not accessible to the general public or to minors, and on certain premises where fermented malt beverages or intoxicating liquor are sold. The overall prohibition against placing a vending machine within 500 feet of a school remains unchanged, except that the prohibition under the bill specifically prohibits the placement of a vending machine within a school. Lastly, the bill prohibits DOR from granting a permit to a person as a cigarette or tobacco products manufacturer, distributor, jobber, vending machine operator, multiple retailer or warehouse operator who (or whose employe or agent) has been found at least 6 times to be in violation of the prohibitions against unlicensed sale or gifting of cigarettes or tobacco products to persons who are not licensed as retailers or permitted by DOR under certain laws.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1076, s. 1 Section 1. 20.435 (1) (gm) of the statutes, as affected by 1995 Wisconsin Act 27, section 816m, and 1995 Wisconsin Act 98, is amended to read:

AB1076,4,9 20.435 (1) (gm) Licensing, review and certifying activities. The amounts in the schedule for the purposes specified in ss. 50.135, 50.49 (2) (b), 50.52 (2) (a), 146.50 (8), 250.05 (6), 254.176, 254.178, 254.20 (5) and (8), 254.31 to 254.39, 254.47, 254.61 to 254.89 254.916 and 255.08 (2), subch. IV of ch. 50 and ch. 150. All moneys received under ss. 50.135, 50.49 (2) (b), 50.52 (2) (a), 50.93 (1) (c), 146.50 (8) (d), 150.13, 250.05 (6), 254.176, 254.178, 254.20 (5) and (8), 254.31 to 254.39, 254.47, 254.61 to 254.89 254.916 and 255.08 (2) (b) shall be credited to this appropriation.

AB1076, s. 2 Section 2. 47.03 (7) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

AB1076,5,12 47.03 (7) If the department decides that a business under sub. (4) would not be feasible and profitable in any state building, the department may contract with vending machine operators, as defined in s. 254.61 (10), to install vending machines, as defined in s. 254.61 (7), in the building, giving preference to blind operators of vending machines. The department may, under the procedures established as required under sub. (4) (b), charge the net proceeds of each business operating under this subsection. The department shall deposit the moneys from the charges made under this subsection in the appropriations under s. 20.445 (5) (h) and (hd) and shall disburse the proceeds to provide services to blind persons under sub. (4) in accordance with 20 USC 107 to 107f.

AB1076, s. 3 Section 3. 48.983 (title) of the statutes is renumbered 254.92 (2) (title) and amended to read:

AB1076,5,16 254.92 (2) (title) Purchase or possession of cigarettes or tobacco products by a minor prohibited.

AB1076, s. 4 Section 4. 48.983 (1) of the statutes is repealed.

AB1076, s. 5 Section 5. 48.983 (2) of the statutes is renumbered 254.92 (2) (a), and 254.92 (2) (a) (intro.), as renumbered, is amended to read:

AB1076,5,21 254.92 (2) (a) (intro.) Except as provided in sub. (3) pars. (b), (c) and (d), no child minor may do any of the following:

AB1076, s. 6 Section 6. 48.983 (3) of the statutes is renumbered 254.92 (2) (b) and amended to read:

AB1076,6,3 254.92 (2) (b) A child minor may purchase or possess cigarettes or tobacco products for the sole purpose of resale in the course of employment during his or her working hours if employed by a retailer licensed under s. 134.65 (1).

AB1076, s. 7 Section 7. 48.983 (4) of the statutes is renumbered 254.92 (2) (e) and amended to read:

AB1076,6,8 254.92 (2) (e) A law enforcement officer or local health officer shall seize any cigarette or tobacco product involved in any violation of sub. (2) committed in his or her presence par. (a).

AB1076, s. 8 Section 8. 48.983 (5) of the statutes is repealed.

AB1076, s. 9 Section 9. 77.54 (20) (c) 6. of the statutes is amended to read:

AB1076,6,17 77.54 (20) (c) 6. For purposes of subd. 1., "premises" shall be construed broadly, and, by way of illustration but not limitation, shall include the lobby, aisles and auditorium of a theater or the seating, aisles and parking area of an arena, rink or stadium or the parking area of a drive-in or outdoor theater. The premises of a caterer with respect to catered meals or beverages shall be the place where served. Vending machine premises The premises of a vending machine, as defined in s. 254.61 (7), shall include the room or area in which located.

AB1076, s. 10 Section 10. 101.123 (1) (ah) of the statutes is created to read:

AB1076,6,19 101.123 (1) (ah) "Health care provider" means any of the following:

AB1076,6,20 1. A nurse licensed under ch. 441.

AB1076,6,21 2. A dentist licensed under ch. 447.

AB1076,6,22 3. A physician licensed under ch. 448.

AB1076,6,24 4. A partnership of any providers specified under subds. 1. to 3. that provides health care services.

AB1076,7,2 5. A corporation or limited liability company of any providers specified under subds. 1. to 3. that provides health care services.

AB1076, s. 11 Section 11. 101.123 (1) (c) of the statutes is amended to read:

AB1076,7,7 101.123 (1) (c) "Office" means any area, whether publicly or privately owned or occupied, that serves as a place of work at which the principal activities consist of professional, clerical or administrative services, including any service offered by health care providers.

AB1076, s. 12 Section 12. 101.123 (1) (dg) of the statutes is repealed.

AB1076, s. 13 Section 13. 101.123 (2) (am) 1. of the statutes is amended to read:

AB1076,7,15 101.123 (2) (am) 1. Notwithstanding par. (a) and sub. (3) and except as provided in subd. subds. 2. and 3., no person may smoke in a motor bus, in a hospital or in a physician's office, in an office of a health care provider or in any enclosed, indoor area of a state, county, city, village or town building in which health care services are delivered to children or pregnant women, except that jails and lockup facilities are subject to sub. (4).

AB1076, s. 14 Section 14. 101.123 (2) (am) 2. of the statutes is amended to read:

AB1076,7,21 101.123 (2) (am) 2. Notwithstanding subd. 1., a A person who is an adult patient of a hospital or unit of a hospital that has as its primary purpose the care and treatment of mental illness, alcoholism or drug abuse and who has the written permission of a physician may smoke in a room that is designated as a smoking area under sub. (4) (a) 2.

AB1076, s. 15 Section 15. 101.123 (2) (am) 3. of the statutes is created to read:

AB1076,8,2 101.123 (2) (am) 3. The prohibition of smoking in a state, county, city, village or town building under subd. 1 does not apply to such a building while it is being used for a private function, if the arrangements for the function are under the control of the sponsor of the function.

AB1076, s. 16 Section 16. 111.35 (2) (d) of the statutes is amended to read:

AB1076,8,4 111.35 (2) (d) Constitutes a violation of s. 48.983 254.92 (2) (a).

AB1076, s. 17 Section 17. 134.65 (title) of the statutes is renumbered 254.914 (title).

AB1076, s. 18 Section 18. 134.65 (1) and (2) (a) of the statutes are renumbered 254.914 (1) and (3) and amended to read:

AB1076,8,16 254.914 (1) No person shall in any manner, or upon any pretense, or by any device, directly or indirectly Unless a person holds a license issued under this section, the person or the person's employe or agent may not sell, expose for sale, possess with intent to sell, exchange, barter, or dispose of or give away any cigarettes or, and may not sell, expose for sale, possess with intent to sell, exchange, barter, dispose of or give away any tobacco products, to any person not holding a license as herein provided or anyone who is not licensed under this section or who does not hold a permit under ss. 139.30 to 139.41 or 139.79 without first obtaining a license from the clerk of the city, village or town wherein such privilege is sought to be exercised.