AB258: Bill Text

LRB-0174/2

GMM&MGG:kg:jf

1999 - 2000 LEGISLATURE

1999 Assembly BILL 258

March 30, 1999 - Introduced by Representatives Staskunas, La Fave, Klusman and Ladwig, cosponsored by Senator Darling. Referred to Committee on State Affairs.

AB258,1,9 An Act to repeal 778.25 (1) (a) 4.; to amend 134.66 (4) (a) 1., 134.66 (4) (a) 2. (intro.), 134.66 (4) (a) 2. a., 134.66 (4) (a) 2. b., 134.66 (4) (a) 3. a., 134.66 (4) (a) 3. b., 134.66 (4) (a) 3. c., 778.25 (1) (a) 1., 895.035 (6), 938.17 (2) (c), 938.17 (2) (d), 938.17 (2) (e), 938.344 (title), 938.344 (2r) (a), 938.344 (3), 938.45 (1r) (b) and 938.983 (2r) (a); and to create 134.66 (4) (a) 2. c., 134.66 (4) (a) 2. d., 938.344 (2r), 938.983 (2r), 938.983 (2t) and 938.983 (2v) of the statutes; relating to: the dispositions that may be imposed on a person under 18 years of age who possesses cigarettes or tobacco products, the sale and distribution of cigarettes and tobacco products to minors and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, no person under 18 years of age may buy or attempt to buy any tobacco product, falsely represent his or her age for the purpose of receiving any tobacco product or possess any tobacco product. Currently, a person under 18 years of age who commits any of those acts may be ordered to pay a forfeiture of not more than $50, placed in a teen court program, ordered to participate in a supervised work program or other community service work or ordered to undergo any combination of those dispositions. In addition, the parent of such a person may also be ordered to pay the forfeiture. This bill increases the maximum amount of a forfeiture that may be imposed on a person under 18 years of age who commits any of those acts and on the parent of such a person to $250. The bill also permits a court assigned to exercise jurisdiction under the juvenile justice code (juvenile court) or a municipal court to order such a person to attend a course relating to the health risks associated with the use of tobacco products.

The bill also increases the penalties for violations by retailers and others who are prohibited from selling, or distributing for free, tobacco products to minors. The increases include raising the maximum penalty amounts, changing the penalties for subsequent violations from forfeitures to fines and increasing the maximum number of days that a license or permit to sell or distribute tobacco products may be suspended.

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:

AB258, s. 1 Section 1. 134.66 (4) (a) 1. of the statutes is amended to read:

AB258,2,6 134.66 (4) (a) 1. In this paragraph, "violation" means a violation of sub. (2) (a), (cm), (d) or (e) or a local ordinance which strictly conforms to sub. (2) (a), (cm), (d) or (e). For purposes of determining previous violations under subds. 2. and 3., the 30-month periods shall be measured from the date of the violations that resulted in an imposition of a forfeiture or a conviction.

AB258, s. 2 Section 2. 134.66 (4) (a) 2. (intro.) of the statutes is amended to read:

AB258,2,9 134.66 (4) (a) 2. (intro.) A person who commits a violation is subject to a forfeiture of:

AB258, s. 3 Section 3. 134.66 (4) (a) 2. a. of the statutes is amended to read:

AB258,2,12 134.66 (4) (a) 2. a. Not A forfeiture of not more than $500 if the person has not committed a previous violation within 12 30 months of the violation; or

AB258, s. 4 Section 4. 134.66 (4) (a) 2. b. of the statutes is amended to read:

AB258,3,2 134.66 (4) (a) 2. b. Not less than $200 nor A fine of not more than $500 $750 if the person has committed a previous violation within 12 30 months of the violation;

AB258, s. 5 Section 5. 134.66 (4) (a) 2. c. of the statutes is created to read:

AB258,3,5 134.66 (4) (a) 2. c. A fine of not more that $1,000 if the person has committed 2 previous violations within 30 months of the violation; or

AB258, s. 6 Section 6. 134.66 (4) (a) 2. d. of the statutes is created to read:

AB258,3,8 134.66 (4) (a) 2. d. A fine of not more that $5,000 if the person has committed 3 or more previous violations within 30 months of the violation.

AB258, s. 7 Section 7. 134.66 (4) (a) 3. a. of the statutes is amended to read:

AB258,3,11 134.66 (4) (a) 3. a. Not more than 3 10 days, if the court finds that the person committed a violation within 12 30 months after committing one previous violation;

AB258, s. 8 Section 8. 134.66 (4) (a) 3. b. of the statutes is amended to read:

AB258,3,15 134.66 (4) (a) 3. b. Not less than 3 10 days nor more than 10 30 days, if the court finds that the person committed a violation within 12 30 months after committing 2 other violations; or

AB258, s. 9 Section 9. 134.66 (4) (a) 3. c. of the statutes is amended to read:

AB258,3,19 134.66 (4) (a) 3. c. Not less than 15 10 days nor more than 30 90 days, if the court finds that the person committed the violation within 12 30 months after committing 3 or more other violations.

AB258, s. 10 Section 10. 778.25 (1) (a) 1. of the statutes is amended to read:

AB258,3,24 778.25 (1) (a) 1. Under s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 938.983, 961.573 (2), 961.574 (2) or 961.575 (2) or under a local ordinance strictly conforming to one of those statutes brought against an adult in circuit court or against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

AB258, s. 11 Section 11. 778.25 (1) (a) 4. of the statutes is repealed.

AB258, s. 12 Section 12. 895.035 (6) of the statutes is amended to read:

AB258,4,8 895.035 (6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.45 (1r) (a). Any recovery of a forfeiture under this section shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8), 938.343 (2), 938.344 (2r) (a) or 938.45 (1r) (b). Any recovery of a surcharge under this section shall be reduced by the amount recovered as a surcharge under s. 938.34 (8d).

AB258, s. 13 Section 13. 938.17 (2) (c) of the statutes is amended to read:

AB258,4,22 938.17 (2) (c) The citation procedures described in ch. 800 shall govern proceedings involving juveniles in municipal court, except that this chapter shall govern the taking and holding of a juvenile in custody and par. (cg) shall govern the issuing of a summons to the juvenile's parent, guardian or legal custodian. When a juvenile is before the court assigned to exercise jurisdiction under this chapter and ch. 48 upon a citation alleging the juvenile to have violated a civil law or municipal ordinance, the procedures specified in s. 938.237 shall apply. If a citation is issued to a juvenile, the issuing agency shall notify the juvenile's parent, guardian and legal custodian within 7 days. The agency issuing a citation to a juvenile who is 12 to 15 years of age for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 938.983, 961.573 (2), 961.574 (2) or 961.575 (2) or an ordinance conforming to one of those statutes shall send a copy to an intake worker under s. 938.24 for informational purposes only.

AB258, s. 14 Section 14. 938.17 (2) (d) of the statutes is amended to read:

AB258,5,13 938.17 (2) (d) If a municipal court finds that the juvenile violated a municipal ordinance other than an ordinance enacted under s. 118.163 or an ordinance that conforms to s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 938.983, 961.573 (2), 961.574 (2) or 961.575 (2), the court shall enter any of the dispositional orders permitted under s. 938.343 that are authorized under par. (cm). If a juvenile fails to pay the forfeiture imposed by the municipal court, the court may not impose a jail sentence but may suspend any license issued under ch. 29 for not less than 30 days nor more than 5 years, or suspend the juvenile's operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than 5 years. If a court suspends a license or privilege under this section, the court shall immediately take possession of the applicable license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which shall thereupon return the license to the person.

AB258, s. 15 Section 15. 938.17 (2) (e) of the statutes is amended to read:

AB258,5,18 938.17 (2) (e) If a municipal court finds that a juvenile violated a municipal ordinance that conforms to s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 938.983, 961.573 (2), 961.574 (2) or 961.575 (2), the court shall enter a dispositional order under s. 938.344 that is authorized under par. (cm).

AB258, s. 16 Section 16. 938.344 (title) of the statutes is amended to read:

AB258,5,21 938.344 (title) Disposition; certain intoxicating liquor, beer, tobacco and drug violations.

AB258, s. 17 Section 17. 938.344 (2r) of the statutes is created to read:

AB258,6,2 938.344 (2r) If a court finds that a juvenile has committed a violation of s. 938.983 (2) or a local ordinance enacted under s. 938.983 (5), the court, in addition to counseling the person and his or her parent or guardian, shall order the person to do any one or more of the following:

AB258,6,14 (a) Pay a forfeiture not to exceed $250. Any such order shall include a finding that the person alone is financially able to pay and shall allow up to 12 months for the payment. If a person fails to pay the forfeiture, the court may suspend any license issued under ch. 29 or suspend the person's operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than 5 years. The court shall immediately take possession of the suspended license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which will thereupon return the license to the person. Any recovery under this subsection shall be reduced by the amount recovered as a forfeiture under s. 938.45 (1r) (b).

AB258,6,15 (b) Participate in a teen court program if all of the following conditions apply:

AB258,6,19 1. The chief judge of the judicial administrative district has approved a teen court program established in the person's county of residence and the judge determines that participation in the teen court program will likely benefit the person and the community.

AB258,6,22 2. The person admits or pleads no contest in open court, with the person's parent, guardian or legal custodian present, to the allegations that the person violated s. 938.983 (2) or the ordinance enacted under s. 938.983 (5).

AB258,6,25 3. The person has not successfully completed participation in a teen court program during the 2 years before the date of the alleged violation of s. 938.983 (2) or the ordinance enacted under s. 938.983 (5).

AB258,7,2 (c) Participate in a supervised work program or other community service work under s. 938.983 (2t).

AB258,7,5 (d) Attend a course relating to the health risks associated with the use of cigarettes or tobacco products if such a course is available within a reasonable distance from the person's residence.

AB258, s. 18 Section 18. 938.344 (2r) (a) of the statutes, as created by 1999 Wisconsin Act .... (this act), is amended to read:

AB258,7,19 938.344 (2r) (a) Pay a forfeiture not to exceed $250. Any such order shall include a finding that the person alone is financially able to pay and shall allow up to 12 months for the payment. If a person fails to pay the forfeiture, the court may suspend any license issued under ch. 29 or suspend the person's operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than 5 2 years. The court shall immediately take possession of the suspended license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which will thereupon return the license to the person. Any recovery under this subsection shall be reduced by the amount recovered as a forfeiture under s. 938.45 (1r) (b).

AB258, s. 19 Section 19. 938.344 (3) of the statutes is amended to read:

AB258,8,6 938.344 (3) If the a juvenile who is alleged to have committed the a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2) or 938.983, or of a local ordinance that strictly conforms to one of those statutes, is within 3 months of his or her 17th birthday, the court assigned to exercise jurisdiction under this chapter and ch. 48 may, at the request of the district attorney or on its own motion, dismiss the citation without prejudice and refer the matter to the district attorney for prosecution under s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2) or 938.983 or a local ordinance that strictly conforms to one of those statutes. The juvenile is entitled to a hearing only on the issue of his or her age. This subsection does not apply to violations under s. 961.573 (2), 961.574 (2) or 961.575 (2) or a local ordinance that strictly conforms to one of those statutes.

AB258, s. 20 Section 20. 938.45 (1r) (b) of the statutes is amended to read:

AB258,8,18 938.45 (1r) (b) In a proceeding in which the court has determined under s. 938.34 (8) or, 938.343 (2) or 938.344 (2r) (a) that the imposition of a forfeiture would be in the best interest of the juvenile and in aid of rehabilitation, the court may order a parent who has custody, as defined in s. 895.035 (1), of the juvenile to pay the forfeiture. The amount of any forfeiture ordered under this paragraph may not exceed the amount specified in s. 799.01 (1) (d). Any order under this paragraph shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and shall allow up to 12 months after the date of the order for the payment. Any recovery under this paragraph shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8) or, 938.343 (2) or 938.344 (2r) (a).

AB258, s. 21 Section 21. 938.983 (2r) of the statutes is created to read:

AB258,8,21 938.983 (2r) Subject to sub. (2v), any person who violates sub. (2) is subject to counseling by the court and to any one or more of the following dispositions:

AB258,9,8 (a) A forfeiture not to exceed $250. Any such order shall include a finding that the person alone is financially able to pay and shall allow up to 12 months for the payment. If a person fails to pay the forfeiture, the court may suspend any license issued under ch. 29 or suspend the person's operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than 5 years. The court shall immediately take possession of the suspended license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which will thereupon return the license to the person. Any recovery under this paragraph shall be reduced by the amount recovered as a forfeiture under s. 938.45 (1r) (b).

AB258,9,9 (b) Placement in a teen court program if all of the following conditions apply:

AB258,9,13 1. The chief judge of the judicial administrative district has approved a teen court program established in the person's county of residence and the judge determines that participation in the teen court program will likely benefit the person and the community.

AB258,9,16 2. The person admits or pleads no contest in open court, with the person's parent, guardian or legal custodian present, to the allegations that the person violated sub. (2) or the ordinance enacted under sub. (5).

AB258,9,19 3. The person has not successfully completed participation in a teen court program during the 2 years before the date of the alleged violation of sub. (2) or the ordinance enacted under sub. (5).

AB258,9,23 (c) Participation in a supervised work program administered by the county department or a community agency approved by the court or other community service work administered by a public agency or nonprofit charitable organization approved by the court as described in sub. (2t).

AB258,10,3 (d) Attendance at a course relating to the health risks associated with the use of cigarettes or tobacco products if such a course is available within a reasonable distance from the person's residence.

AB258, s. 22 Section 22. 938.983 (2r) (a) of the statutes, as created by 1999 Wisconsin Act .... (this act), is amended to read:

AB258,10,17 938.983 (2r) (a) A forfeiture not to exceed $250. Any such order shall include a finding that the person alone is financially able to pay and shall allow up to 12 months for the payment. If a person fails to pay the forfeiture, the court may suspend any license issued under ch. 29 or suspend the person's operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than 5 2 years. The court shall immediately take possession of the suspended license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which will thereupon return the license to the person. Any recovery under this paragraph shall be reduced by the amount recovered as a forfeiture under s. 938.45 (1r) (b).

AB258, s. 23 Section 23. 938.983 (2t) of the statutes is created to read:

AB258,10,25 938.983 (2t) (a) The court shall set standards for the supervised work program under sub. (2r) (c) within the budgetary limits established by the county board of supervisors. The supervised work program may provide the person with reasonable compensation reflecting a reasonable market value of the work performed or it may consist of uncompensated community service work. The court may use any available resources, including any community service work program, in ordering the person to perform community service work under sub. (2r).

AB258,11,8 (b) The supervised work program or other community service work shall be of a constructive nature designed to promote the person's rehabilitation, shall be appropriate to the person's age level and physical ability and shall be combined with counseling from a member of the staff of the county department, community agency, public agency or nonprofit charitable organization or other qualified person. The supervised work program or other community service work may not conflict with the person's regular attendance at school. The amount of work required shall be reasonably related to the seriousness of the person's offense.

AB258, s. 24 Section 24. 938.983 (2v) of the statutes is created to read:

AB258,11,13 938.983 (2v) A person who is under 17 years of age on the date of disposition is subject to s. 938.344 unless proceedings have been instituted against the person in a court of civil or criminal jurisdiction after dismissal of the citation under s. 938.344 (3).

AB258, s. 25 Section 25 . Initial applicability.

AB258,11,19 (1) The treatment of section 134.66 (4) (a) 2. (intro.), a., b., c. and d. and 3. a., b. and c. of the statutes first applies to violations committed on the effective date of this subsection, but does not preclude the counting of other violations for which a sentence was received before the effective date of this subsection as previous violations for sentencing a person.

AB258,11,24 (2) (a) The treatment of sections 778.25 (1) (a) 1. and 4., 895.035 (6), 938.17 (2) (c), (d) and (e), 938.344 (title) and (3), 938.45 (1r) (b) and 938.983 (2t) and (2v) of the statutes and the creation of sections 938.344 (2r) and 938.983 (2r) of the statutes first apply to a violation of section 938.983 (2) of the statutes occurring on the effective date this paragraph.