SB347: Bill Text

3. The bill updates the statutes by substituting the term "credential" for "license, permit, or certificate" in the laws relating to DRL.

4. Current law provides that the licensing requirements for private detectives, private detective agencies, and private security personnel do not apply to any person employed, directly or indirectly, by the state or by a municipality. The bill eliminates the phrase "directly or indirectly."

5. The bill renumbers and creates statutory titles for provisions under current law pertaining to immunity from liability for testimony to DRL, boards in DRL, and advisory committees, and the regulation of cemetery preneed sellers.

The bill also makes the following changes to the laws regarding administrative procedures:

1. Under current law, the definition of "licensing," used in those laws, means an agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. The bill adds "limitation" to the list of processes that are involved in licensing.

2. Under current law, if a small business, a small nonprofit corporation, or an individual is a prevailing party in a contested case administrative hearing, that prevailing party may submit a motion for costs. If that motion is submitted, the hearing examiner must award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner determines that the state agency that was the losing party was substantially justified in taking its position or that special circumstances make the award unjust. The bill clarifies some of the procedural language regarding the award of costs.

For further information, see the Notes provided by the law revision committee of the joint legislative council.

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

Law revision committee prefatory note: [This bill is a remedial legislation proposal, requested by the department of regulation and licensing and introduced by the law revision committee under s. 13.83 (1) (c) 4., stats.] After careful consideration of the various provisions of the bill, the law revision committee has determined that this bill makes minor substantive changes in the statutes, and that these changes are desirable as a matter of public policy.

SB347, s. 1 Section 1. 15.01 (7) of the statutes is amended to read:

SB347,3,7 15.01 (7) "Examining board" means a part-time body which that sets standards of professional competence and conduct for the profession under its supervision, prepares, conducts, and grades the examinations of prospective new practitioners, grants licenses credentials, investigates complaints of alleged unprofessional conduct, and performs other functions assigned to it by law. "Examining board" includes the board of nursing.

Note: Sections 1, 2 and 3 of this bill substitute "credential" for "license, permit, or certificate" to make the terminology consistent with the terms used in other laws relating to the department of regulation and licensing.

SB347, s. 2 Section 2. 15.08 (5) (c) of the statutes is amended to read:

SB347,4,2 15.08 (5) (c) May limit, suspend or revoke, or reprimand the holder of, any license, permit or certificate credential granted by the examining board.

SB347, s. 3 Section 3. 15.085 (5) (c) of the statutes is amended to read:

SB347,4,5 15.085 (5) (c) May limit, suspend or revoke, or reprimand the holder of, any license, permit or certificate credential granted by the affiliated credentialing board.

SB347, s. 4 Section 4. 157.12 (2) (b) of the statutes is amended to read:

SB347,5,15 157.12 (2) (b) The department shall supervise construction of any public mausoleum and conversion of any building to a public mausoleum. Within 30 days after receiving written notice from the cemetery authority that the construction or conversion has been completed, the department shall inspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with approved plans. If the department determines that, except for certain minor defects, the construction or conversion complies with the approved plans, the department may provide the cemetery authority with a written temporary certification of compliance that is contingent on the correction of those minor defects. A temporary certification is valid for a period designated by the department, not to exceed 6 months. No person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. ss. 440.92 and 440.922, or bury human remains in a public mausoleum unless a care fund has been established for the mausoleum under sub. (3) and the department has provided the cemetery authority with a certification or a temporary certification under this paragraph. If a cemetery authority that has been provided with a temporary certification notifies the department in writing before the date on which the temporary certification expires that the defects in the construction or conversion of the public mausoleum have been corrected, the department shall, within 30 days after receiving the notice, reinspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with the approved plans. If a cemetery authority that has been provided with a temporary certification does not receive a written certification from the department before the date on which the temporary certification expires that the construction or conversion complies with the approved plans, then, beginning on the date on which the certification expires, no person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. ss. 440.92 and 440.922, or bury human remains in the public mausoleum until the defects are corrected and the department subsequently inspects the public mausoleum and provides the cemetery authority with a certification that the construction or conversion complies with the approved plans. The department may charge a reasonable fee to the cemetery authority for each inspection and certification provided under this paragraph if the inspection and certification are provided within the applicable 30-day period prescribed under this paragraph.

Note: Sections 4, 5, 6 and 7 of this bill change statutory references to reflect the creation of titles for and the renumbering of s. 440.92, Stats., relating to regulation of cemetery preneed sellers. According to the department of regulation and licensing, the current statute is difficult to use due to its length and organization.

SB347, s. 5 Section 5. 157.19 (2) (c) of the statutes is amended to read:

SB347,6,6 157.19 (2) (c) Upon request of the financial institution, the preneed seller, as defined in s. 440.90 (8), shall furnish the financial institution with a copy of the preneed sales contract. Except as provided in s. 440.92 (2) (c), (f) and (j) and (5) ss. 440.922 (3), (5) (c), and (8) and 440.924, preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, may not be withdrawn until all obligations under the preneed sales contract have been fulfilled. The financial institution is not responsible for the fulfillment of any part of the preneed sales contract, except that the financial institution shall release the preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, as provided by the terms of the preneed sales contract. The trustee of a preneed trust fund may not be changed without the department's written approval. If the trustee or account number of a preneed trust fund is changed, the cemetery authority shall notify the department in writing within 30 days after the change.

SB347, s. 6 Section 6. 157.19 (5) (a) of the statutes is amended to read:

SB347,6,14 157.19 (5) (a) This section does not apply to care funds under s. 157.11 (9g) that are deposited with a city or county as provided under s. 157.11 (9g) (a), to care funds of a cemetery for which a certification under s. 157.63 is effective, to preneed trust funds of a cemetery for which a certification under s. 440.92 (9) (4) (am) is effective, or to care funds or preneed trust funds of a cemetery authority that is not required to be registered under s. 440.91 (1) and that is not organized or conducted for pecuniary profit.

SB347, s. 7 Section 7. 157.62 (6) of the statutes is amended to read:

SB347,6,23 157.62 (6) Audit. Except as provided in ss. 157.625, 157.63 (5) and 440.92 (9) (e) (4) (am) 5., the department may audit, at reasonable times and frequency, the records, trust funds and accounts of any cemetery authority, including records, trust funds and accounts pertaining to services provided by a cemetery authority which are not otherwise subject to the requirements under this chapter. The department may conduct audits under this subsection on a random basis, and shall conduct all audits under this subsection without providing prior notice to the cemetery authority.

SB347, s. 8 Section 8. 227.01 (6) of the statutes is amended to read:

SB347,7,3 227.01 (6) "Licensing" means an agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, or amendment of a license.

Note: Section 8 of this bill adds "limitation" to the definition of the licensing process in ch. 227, Stats. to be consistent with other laws relating to the department of regulation and licensing which include limitation as a licensing action.

SB347, s. 9 Section 9. 227.485 (5) of the statutes is amended to read:

SB347,7,17 227.485 (5) If the hearing examiner awards costs under sub. (3), he or she shall determine the costs under this subsection, except as modified under sub. (4). The decision on the merits of the case motion for costs shall be placed in a proposed decision and submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5) and include an order for payment of costs in the final decision.

Note: Section 9 of this bill specifies that if a prevailing party submits a motion for costs, the hearing examiner's decision on the motion for costs must be included in a proposed decision.

SB347, s. 10 Section 10. 423.102 of the statutes is amended to read:

SB347,7,21 423.102 Scope. This chapter applies to all consumer transactions, except that subch. II does not apply to cemetery preneed sales under s. 440.92 subch. VIII of ch. 440.

Note: Section 10 of this bill changes statutory references to reflect the creation of titles for and the renumbering of s. 440.92, Stats., relating to regulation of cemetery preneed sellers. According to the department of regulation and licensing, the current statute is difficult to use due to its length and organization.

SB347, s. 11 Section 11. 440.01 (1) (d) of the statutes is amended to read:

SB347,8,4 440.01 (1) (d) "Limit", when used in reference to limiting a credential, means to impose conditions and or requirements upon the holder of the credential, and or to restrict the scope of the holder's practice.

Note: Section 11 of this bill allows the department of regulation and licensing to impose conditions or requirements upon the holder of a credential or to restrict the scope of the holder's practice. Currently, an order to limit a holder's credential must include a provision that restricts the scope of the holder's practice. According to the department of regulation and licensing, in some cases a restriction on a holder's practice scope is not appropriate.

SB347, s. 12 Section 12. 440.042 (1) of the statutes is renumbered 440.042 and amended to read:

SB347,8,16 440.042 Advisory committees. The secretary may appoint persons or advisory committees to advise the department and the boards, examining boards and affiliated credentialing boards in the department on matters relating to the regulation of credential holders. The secretary shall appoint an advisory committee to advise the department on matters relating to carrying out the duties specified in s. 440.982 and making investigations, conducting hearings and taking disciplinary action under s. 440.986. A person or an advisory committee member appointed under this subsection section shall serve without compensation, but may be reimbursed for his or her actual and necessary expenses incurred in the performance of his or her duties.

Note: Section 12 of this bill changes "subsection" to "section" to conform to the renumbering of s. 440.042, Stats., relating to advisory committees to the department of regulation and licensing.

SB347, s. 13 Section 13. 440.042 (2) of the statutes is renumbered 440.043 and amended to read:

SB347,9,9 440.043 Immunity from liability. Any person who in good faith testifies before the department or any examining board, affiliated credentialing board or board in the department or otherwise provides the department or any examining board, affiliated credentialing board or board in the department with advice or information on a matter relating to the regulation of a person holding a credential is immune from civil liability for his or her acts or omissions in testifying or otherwise providing such advice or information. The good faith of any person specified in this subsection section shall be presumed in any civil action and an allegation that such a person has not acted in good faith must be proven by clear and convincing evidence.

Note: Section 13 of this bill changes "subsection" to "section" and creates a statutory title to conform to the renumbering of s. 440.042, Stats., pertaining to immunity from liability for testimony before the department of regulation and licensing or any examining board.

SB347, s. 14 Section 14. 440.26 (5) (b) of the statutes is amended to read:

SB347,9,16 440.26 (5) (b) The license requirements of this section do not apply to any person employed directly or indirectly by the state or by a municipality, as defined in s. 345.05 (1) (c), or to any employee of a railroad company under s. 192.47, or to any employee of a commercial establishment, while the person is acting within the scope of his or her employment and whether or not he or she is on the employer's premises.

Note: Section 14 of this bill eliminates the phrase "directly or indirectly" from the exemption to the license requirement for private detectives, private detective agencies and private security personnel. According the department of regulation and licensing, the term "indirectly" is not defined, which causes difficulty in interpreting the law.

SB347, s. 15 Section 15. 440.92 (1) (a) of the statutes is amended to read:

SB347,9,20 440.92 (1) (a) Except as provided in subs. sub. (4), (9) (a) and (10) s. 440.928, every individual who sells or solicits the sale of cemetery merchandise or an undeveloped space under a preneed sales contract and, if the individual is employed by or acting as an agent for a cemetery authority or any other person, that cemetery authority or other person is required to be registered under this subsection.

Note: Sections 15, 16 to 53, 54, 55, 56 and 57 reflect the creation of statutory titles for and the renumbering of s. 440.92, Stats., pertaining to the regulation of cemetery preneed sellers. According to the department of regulation and licensing, the current statute is difficult to use due to its length and organization.

SB347, s. 16 Section 16. 440.92 (2) (title) of the statutes is renumbered 440.922 (title).

SB347, s. 17 Section 17. 440.92 (2) (a) of the statutes is renumbered 440.922 (1) (a).

SB347, s. 18 Section 18. 440.92 (2) (am) of the statutes is renumbered 440.922 (2).

SB347, s. 19 Section 19. 440.92 (2) (b) of the statutes is renumbered 440.922 (1) (b).

SB347, s. 20 Section 20. 440.92 (2) (c) of the statutes is renumbered 440.922 (3) and amended to read:

SB347,10,14 440.922 (3) Voiding of contracts. Except as provided in par. (cm) sub. (4), a preneed sales contract shall provide that if the purchaser voids the preneed sales contract at any time within 10 days after the date of the initial payment the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser for cemetery merchandise that has not been supplied or delivered and for the mausoleum space.

SB347, s. 21 Section 21. 440.92 (2) (cm) of the statutes is renumbered 440.922 (4).

SB347, s. 22 Section 22. 440.92 (2) (d) of the statutes is renumbered 440.922 (5) (a).

SB347, s. 23 Section 23. 440.92 (2) (e) of the statutes is renumbered 440.922 (5) (b).

SB347, s. 24 Section 24. 440.92 (2) (f) of the statutes is renumbered 440.922 (5) (c) and amended to read:

SB347,10,23 440.922 (5) (c) If a preneed sales contract is voided under par. (e) (b), the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under s. 138.04.

SB347, s. 25 Section 25. 440.92 (2) (g) of the statutes is renumbered 440.922 (6).

SB347, s. 26 Section 26. 440.92 (2) (h) of the statutes is renumbered 440.922 (10).

SB347, s. 27 Section 27. 440.92 (2) (i) of the statutes is renumbered 440.922 (7) and amended to read:

SB347,11,12 440.922 (7) Trusting requirements. If a preneed sales contract includes provisions for the sale of cemetery merchandise or an undeveloped space that is subject to the trusting requirements under sub. s. 440.92 (3) (a) and (b) and for the sale of other goods or services that are not subject to the trusting requirements under sub. s. 440.92 (3) (a) and (b), the sale price of the goods or services that are not subject to the trusting requirements may not be inflated for the purpose of allocating a lower sale price to the cemetery merchandise or undeveloped space that is subject to the trusting requirements.

SB347, s. 28 Section 28. 440.92 (2) (j) of the statutes is renumbered 440.922 (8) and amended to read:

SB347,12,5 440.922 (8) Contract requirements. A preneed sales contract shall be in writing. The preneed seller shall provide the purchaser with a copy of the preneed sales contract at the time that the preneed sales contract is entered into. A provision in a written preneed sales contract that limits the terms of the transaction to those included in the written preneed sales contract and that disclaims any oral agreements pertaining to the transaction creates a rebuttable presumption that no oral preneed sales contract pertaining to the transaction exists. A preneed sales contract that is not in writing may not be voided by the preneed seller, but may be voided by the purchaser at any time before all of the cemetery merchandise purchased has been delivered, before the plans for constructing the mausoleum have been approved under s. 157.12 (2) (a) or, if the mausoleum is a public mausoleum, before the construction of the mausoleum has been certified under s. 157.12 (2) (b). If a preneed sales contract is voided under this paragraph subsection, the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under s. 138.04.

SB347, s. 29 Section 29. 440.92 (2) (k) of the statutes is renumbered 440.922 (9) and amended to read:

SB347,12,14 440.922 (9) Notice of rights. A preneed sales contract shall include the following language in not less than 10-point boldface type: "SECTION 440.92 (2) 440.922 OF THE WISCONSIN STATUTES SPECIFIES THE RIGHTS OF THE PURCHASER UNDER THIS CONTRACT. DEPENDING ON THE CIRCUMSTANCES, THESE MAY INCLUDE THE RIGHT TO VOID THE CONTRACT AND RECEIVE A REFUND OR THE RIGHT TO ASSIGN AN INTEREST IN THE CONTRACT TO ANOTHER PERSON."

SB347, s. 30 Section 30. 440.92 (4) (a) (title) and (am) (title) of the statutes are created to read:

SB347,12,17 440.92 (4) (a) (title) Trusts; delivery guarantees.

SB347,12,18 (am) (title) Cemetery affiliated with religious society.

SB347, s. 31 Section 31. 440.92 (4) (b) (title) of the statutes is created to read:

SB347,12,20 440.92 (4) (b) (title) Refunds.

SB347, s. 32 Section 32. 440.92 (5) of the statutes is renumbered 440.924 and amended to read:

SB347,13,10 440.924 Use of preneed trust funds to cover costs of construction or partial performance. (1) Before the construction of a mausoleum for which a preneed trust fund has been established is certified under s. 157.12 (2) (b), the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller and the person who is constructing the mausoleum, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller and the person who is constructing the mausoleum, certifying that the specified amount does not exceed the amount charged to the preneed seller by the person who is constructing the mausoleum for labor that has actually been performed and materials that have actually been used in the construction of the mausoleum, and does not include any cost for which preneed trust funds have been previously released under this paragraph subsection.

SB347,13,20 (2) Before all of the terms of a preneed sales contract for the sale of cemetery merchandise are fulfilled, the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller, certifying that the specified amount does not exceed the actual cost to the preneed seller for any cemetery merchandise that has actually been supplied or delivered and for any cemetery services that have actually been performed, and does not include any cost for which preneed trust funds have been previously released under this paragraph subsection.

SB347, s. 33 Section 33. 440.92 (6) (title) of the statutes is renumbered 440.926 (title) and amended to read:

SB347,13,24 440.926 (title) Reporting; Preneed seller reporting and record keeping; audits.

SB347, s. 34 Section 34. 440.92 (6) (a) of the statutes is renumbered 440.926 (1) (a) and amended to read:

SB347,14,8 440.926 (1) (a) Every preneed seller registered under sub. s. 440.92 (1) shall file an annual report with the department. The report shall be made on a form prescribed and furnished by the department. The report shall be made on a calendar-year basis unless the department, by rule, provides for other reporting periods. The report is due on or before the 60th day after the last day of the reporting period.

SB347, s. 35 Section 35. 440.92 (6) (b) and (c) of the statutes are renumbered 440.926 (1) (b) and (c).

SB347, s. 36 Section 36. 440.92 (6) (d) of the statutes is renumbered 440.926 (2) (c) and amended to read:

SB347,14,18 440.926 (2) (c) All records described under pars. sub. (1) (b) 2. and (c) and maintained by the department are confidential and are not available for inspection or copying under s. 19.35 (1). This paragraph does not apply to any information regarding the name, address, or employer of or financial information related to an individual that is requested under s. 49.22 (2m) by the department of workforce development or a county child support agency under s. 59.53 (5).

SB347, s. 37 Section 37. 440.92 (6) (e) of the statutes is renumbered 440.926 (1) (d) and amended to read:

SB347,14,22 440.926 (1) (d) The department shall review each report filed under par. (a) to determine whether the preneed seller is complying with this section subchapter.

SB347, s. 38 Section 38. 440.92 (6) (f) of the statutes is renumbered 440.926 (1) (e).

SB347, s. 39 Section 39. 440.92 (6) (g) of the statutes is renumbered 440.926 (2) (a), and 440.926 (2) (a) 1. and 2., as renumbered, are amended to read:

SB347,15,2 440.926 (2) (a) 1. The records needed to prepare the reports required under par. sub. (1) (a).