SB546: Bill Text

SB546,16,13 (2) A local health department that is designated as the department's agent under this section, in conducting inspections authorized under sub. (1), may authorize the use of minors aged 14 to 17, who are supervised by an adult, to assist in performance of governmental or nongovernmental research to monitor compliance with s. 254.92. The local health department or a law enforcement officer may solicit minors aged 14 to 17 to conduct undercover operations to purchase or attempt to purchase cigarettes or tobacco products. The local health department or a law enforcement officer shall inspect signs or notices required under s. 254.92 (1) (b) and the placement of tobacco vending machines as required under s. 254.92 (1) (c). The local health department shall annually conduct all of the following random, unannounced inspections:

SB546,16,14 (a) On licensees whose premises are not taverns, at least 2 inspections.

SB546,16,15 (b) On licensees whose premises are taverns, at least one inspection.

SB546,16,22 (3) A local health department that is designated as the department's agent under this section shall meet standards promulgated, by rule, by the department of health and family services. The department shall annually evaluate the licensing, investigation and inspection program of each local health department that is designated as the department's agent. If, at any time, a local health department that is designated as the department's agent fails to meet the standards, the department of health and family services may revoke the designation as agent.

SB546,16,25 (4) The department shall provide education and training to agents designated under this section to ensure uniformity in the enforcement of this subchapter and rules promulgated under this subchapter.

SB546,17,8 (5) Except as provided in sub. (6), a local health department that is designated as the department's agent under this section shall establish and collect the license fee for each applicant under s. 254.914 (3). The local health department may establish separate fees for preinspections of new applicants and for preinspections of existing licensees for which a person intends to be the new operator. Separate fees may not exceed the local health department's reasonable costs of making inspections and preinspections and providing education, training and technical assistance to the applicants or licensees.

SB546,17,13 (6) A local health department that is designated as the department's agent under this section may contract with the department of health and family services for the department of health and family services to collect fees and issue licenses. The department shall collect from the local health department the actual and reasonable cost of providing the services.

SB546,17,19 (7) Unless sub. (6) or (8) applies, the department shall receive $10 of each license fee paid under s. 254.914 (3) for its costs related to setting standards under this subchapter and monitoring and evaluating the activities of, and providing education and training to, agent local health departments. Agent local health departments shall collect the fees and reimburse the department for the amount required under this subsection.

SB546,18,2 (8) If, under this section, a local health department becomes an agent or its agent designation is revoked during a licensee's license year, the department of health and family services and the local health department shall divide any license fee paid by the licensee for that license year according to the proportions of the license year occurring before and after the local health department is designated as agent or the designation is revoked. No additional fee may be required during the license year due to the change in agent designation.

SB546,18,15 (9) Except as provided in s. 254.92 (5), a county, town, village or city may enact ordinances and a local board of health may adopt regulations regarding the licensees and premises over which the department or the local health department that is the department's designated agent under this section has jurisdiction, for which the requirements are at least as strict as this subchapter or rules promulgated by the department of health and family services under this subchapter. Such an ordinance shall provide for civil forfeitures instead of the forfeitures that may be imposed by the department under s. 254.914 (7) and shall require a court to act in place of the department under s. 254.914 (7) and to notify the department and, if applicable, the local health department of the court action. Under such an ordinance, only one charge may result from each violation. A county ordinance enacted under this subsection does not apply within any town, village or city that has enacted or enacts an ordinance under this subsection.

SB546,18,21 (10) This section does not limit the authority of the department to inspect establishments in jurisdictional areas of local health departments that are designated as the department's agents if the department inspects in response to an emergency, for the purpose of monitoring and evaluating the local health department's licensing, inspection and enforcement program or at the request of the local health department.

SB546,18,24 (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 any of the following:

SB546,19,3 (a) A license fee established by a local health department that is designated as the department's agent under this section exceeds the reasonable costs described under sub. (5).

SB546,19,8 (b) The person issuing, refusing to issue, suspending or revoking a license or making an investigation or inspection 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.

SB546, s. 45 Section 45. 254.92 (2) (c) and (d) of the statutes are created to read:

SB546,19,13 254.92 (2) (c) A minor aged 14 to 17 may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the conduct of undercover operations for which the minor is solicited by a local health department as authorized under s. 254.916 (2).

SB546,19,17 (d) A minor aged 14 to 17 who is under the supervision of an adult may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the performance of governmental or nongovernmental research, as approved by the local health department, to monitor compliance with this section.

SB546, s. 46 Section 46. 254.92 (3) of the statutes is created to read:

SB546,20,16 254.92 (3) Defense of retailer, manufacturer, distributor, jobber or subjobber. It is an affirmative defense to any prosecution for the sale of cigarettes or tobacco products to a minor in violation of sub. (1) (a) that a retailer, manufacturer, distributor, jobber or subjobber or the employe or agent of a retailer, manufacturer, distributor, jobber or subjobber who sold cigarettes or tobacco products to a minor had requested from the minor and had examined an identification card that established the minor's age as at least 18 before selling the cigarettes or tobacco products to the minor. Failure by the retailer or the employe or agent of the retailer to request from a minor and examine such an identification card before selling cigarettes or tobacco products to the minor is conclusive evidence that the retailer has violated sub. (1) (a). Failure by the manufacturer or the employe or agent of the manufacturer to request from a minor and examine such an identification card before selling cigarettes or tobacco products to the minor is conclusive evidence that the manufacturer has violated sub. (1) (a). Failure by the distributor or the employe or agent of the distributor to request from a minor and examine such an identification card before selling cigarettes or tobacco products to the minor is conclusive evidence that the distributor has violated sub. (1) (a). Failure by the jobber of the agent or employe of the jobber to request from a minor and examine such an identification card before selling cigarettes or tobacco products to the minor is conclusive evidence that the jobber has violated sub. (1) (a). Failure by the subjobber or the agent or employe of the subjobber to request from a minor and examine such an identification card before selling cigarettes or tobacco products to the minor is conclusive evidence that the subjobber has violated sub. (1) (a).

SB546, s. 47 Section 47. 254.922 of the statutes is created to read:

SB546,20,24 254.922 Assessment of forfeitures; appeal; judicial review. (1) The department may directly assess forfeitures provided for under s. 254.914 (7) or 254.92 (4). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, the department shall send a notice of assessment to the alleged violator. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated and shall inform the alleged violator of the right to hearing under sub. (3).

SB546,21,2 (2) A forfeiture may be assessed for each day of the period during which the violation occurred.

SB546,21,7 (3) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under sub. (4), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

SB546,21,19 (4) A person who is assessed a forfeiture under sub. (1) may contest the assessment of the forfeiture 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 in the department of administration. 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 after 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. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.

SB546,21,25 (5) (a) All administrative remedies shall be exhausted before an agency determination under this subchapter shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in s. 227.52, except that any petition for review of department action under this subchapter shall be filed within 15 days after receipt of notice of the final agency determination.

SB546,22,5 (b) The court may stay enforcement under s. 227.54 of the department's final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the party will meet the requirements of this subchapter and the rules promulgated under this subchapter during such stay.

SB546,22,8 (c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the department.

SB546,22,12 (6) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subchapter if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.

SB546, s. 48 Section 48. 778.25 (1) (a) 4. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB546,22,16 778.25 (1) (a) 4. Under s. 48.983 254.92 (2) brought against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

SB546, s. 49 Section 49. Initial applicability; health and social services.

SB546,22,20 (1) Cigarette and tobacco products retailer license. The treatment of section 134.65 of the statutes first applies to new or renewed licenses issued under section 254.914 of the statutes, as affected by this act, on July 1, 1996.

SB546,22,23 (2) Penalties for certain violations. The treatment of sections 48.983 (2), 134.65 (5), 134.66 (4) and (5) and 254.922 of the statutes first applies to violations committed on the effective date of this subsection.

SB546, s. 50 Section 50. Effective date.

SB546,23,2 (1) This act takes effect on July 1, 1996, or on the day after publication, whichever is later.

SB546,23,3 (End)