254.916(1)(a)(a) In the administration of this subchapter, the department may contract with local health departments, as agents of the department, with a state agency or with law enforcement agencies of the state, or of a county, city, village or town, to cause unannounced investigations to be conducted at least annually at retail outlets, including sites of tobacco vending machines, to survey overall levels of compliance with
s. 134.66 (2) (a) and
(am). A person with whom the department contracts under this paragraph may contract with another person to conduct the investigations. Except any survey conducted under
21 CFR part 897, the survey under this subsection shall cover a range of retail outlets that are not preselected on the basis of prior violations, in order to measure overall levels of compliance as well as to identify violations. The survey shall be conducted so as to provide a sample of retail outlets that reflects the distribution of minors throughout the state and the distribution of the retail outlets throughout the state where minors are likely to attempt to purchase cigarettes. The survey shall include all types of retail outlets that are required to comply with
s. 134.66 (2) (a) and
(am). The department shall use statistically sound sampling techniques in designing the annual surveys so as to measure overall levels of compliance and shall stratify the sample so as to measure compliance by type of retail outlet, including a private place of business other than a retail establishment.
254.916(1)(b)
(b) The department, in consultation with retailers and governmental regulatory authorities, shall establish standards for procedures and training for conducting investigations under this section.
254.916(1)(c)
(c) No retailer may be subject to unannounced investigations more than twice annually unless the retailer is found to have violated
s. 134.66 (2) (a) or
(am) during each investigation.
254.916(2)
(2) With the permission of his or her parent or guardian, a person under 18 years of age, but not under 15 years of age, may buy, attempt to buy or possess any cigarette or tobacco product if all of the following are true:
254.916(2)(a)
(a) The person commits the act for the purpose of conducting an investigation under this section.
254.916(2)(b)
(b) The person is directly supervised during the conducting of the investigation by an adult employee of a governmental regulatory authority.
254.916(2)(c)
(c) The person has prior written authorization to commit the act from a governmental regulatory authority or a district attorney or from an authorized agent of a governmental regulatory authority or a district attorney.
254.916(3)
(3) All of the following, unless otherwise specified, apply in conducting investigations under this section:
254.916(3)(a)
(a) If questioned about his or her age during the course of an investigation, the minor shall state his or her true age.
254.916(3)(b)
(b) A minor may not be used for the purposes of an investigation at a retail outlet at which the minor is a regular customer.
254.916(3)(c)
(c) The appearance of a minor may not be materially altered so as to indicate greater age.
254.916(3)(d)
(d) A photograph or videotape of the minor shall be made before or after the investigation or series of investigations on the day of the investigation or series of investigations. If a prosecution results from an investigation, the photograph or videotape shall be retained until the final disposition of the case.
254.916(3)(e)
(e) A governmental regulatory authority shall make a good faith effort to make known to the retailer or the retailer's employee or agent, within 72 hours after the occurrence of the violation, the results of an investigation, including the issuance of any citation by a governmental regulatory authority for a violation that occurs during the conduct of the investigation. This paragraph does not apply to investigations conducted under a grant received under
42 USC 300x-021.
254.916(3)(f)
(f) Except with respect to investigations conducted under
42 USC 300x-021 or
21 CFR part 897, all of the following information shall be reported to the retailer within 10 days after the conduct of an investigation under this section:
254.916(3)(f)1.
1. The name and position of the governmental regulatory authority employee who directly supervised the investigation.
254.916(3)(f)4.
4. A reasonably detailed description of the circumstances giving rise to a violation, if any, or, if there is no violation, written notice to that effect.
254.916(4)
(4) No results of an investigation conducted under this section may be included in the survey specified under
sub. (1) if it is proved that the requirements under
sub. (3) were not met in conducting the investigation.
254.916(5)
(5) No evidence obtained during or otherwise arising from the course of an investigation under this section that is used to prosecute a person for a violation of
s. 134.66 (2) (a) or
(am) may be used in the prosecution of an alleged violation of
s. 125.07 (3).
254.916(6)
(6) The department shall compile the results of investigations performed under this section and shall prepare an annual report that reflects the results for submission with the state's application for federal funds under
42 USC 300x-21. The report shall be published for public comment at least 60 days before the beginning of negotiations under
sub. (7).
254.916(7)
(7) The department shall strive annually to negotiate with the federal department of health and human services realistic and attainable interim performance targets for compliance with
42 USC 300x-26.
254.916(8)
(8) A governmental regulatory agency under this section shall meet standards established by the department of health and family services. The department shall annually evaluate the investigation program of each governmental regulatory authority. If, at any time, a governmental regulatory authority fails to meet the standards, the department of health and family services may terminate the contract under
sub. (1).
254.916(9)
(9) The department shall provide education and training to governmental regulatory authorities to ensure uniformity in the enforcement of this subchapter.
254.916(10)
(10) This section does not limit the authority of the department to investigate establishments in jurisdictional areas of governmental regulatory authorities if the department investigates in response to an emergency, for the purpose of monitoring and evaluating the governmental regulatory authority's investigation and enforcement program or at the request of the governmental regulatory authority.
254.916(11)
(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 that the person making an investigation 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 that may interfere with his or her ability to properly take that action.
254.916 History
History: 1999 a. 9,
84,
185.
254.92
254.92
Purchase or possession of cigarettes or tobacco products by person under 18 prohibited. 254.92(1)(1) No person under 18 years of age may falsely represent his or her age for the purpose of receiving any cigarette or tobacco product.
254.92(2)
(2) No person under 18 years of age may purchase, attempt to purchase or possess any cigarette or tobacco product except as follows:
254.92(2)(a)
(a) A person under 18 years of age 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.
254.92(2)(b)
(b) A person under 18 years of age, but not under 15 years of age, may purchase, attempt to purchase or possess cigarettes or tobacco products in the course of his or her participation in an investigation under
s. 254.916 that is conducted in accordance with
s. 254.916 (3).
254.92(3)
(3) A law enforcement officer shall seize any cigarette or tobacco product that has been sold to and is in the possession of a person under 18 years of age.
254.92 History
History: 1987 a. 336;
1991 a. 32,
95,
315;
1995 a. 352, s.
20; Stats. 1995 s. 938.983;
1999 a. 9 ss.
2485L,
3176m,
3176p to
3176s.
254.92 Annotation
The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac,
199 Wis. 2d 333,
544 N.W.2d 589 (Ct. App. 1995).
