254.85(3)
(3) A notice issued under
sub. (2) (c) shall be accompanied by a statement which informs the permittee, owner or custodian that he or she has a right to request a hearing in writing within 15 days after issuance of the notice. The department shall hold a hearing no later than 15 days after the department receives the written request for a hearing, unless both parties agree to a later date. A final decision shall be issued under
s. 227.47 within 10 days of the conclusion of the hearing. The decision may order the destruction of food, the diversion of food to uses which do not pose a danger to health, the modification of food so that it does not create a danger to health, changes to or replacement of equipment or construction, other changes in or cessations of any operation or method of operation of the equipment or premises, or any combination of these actions necessary to remove the danger to health. The decision may order the cessation of all operations authorized by the permit only if a more limited order will not remove the immediate danger to health.
254.85(4)
(4) A proceeding under this section, or the issuance of a permit for the premises after notification of procedures under this section, does not constitute a waiver by the department of its authority to rely on a violation of this subchapter,
s. 254.47 or any rule promulgated under this subchapter or
s. 254.47 as the basis for any subsequent suspension or revocation of the permit or any other enforcement action arising out of the violation.
254.85(5)(a)(a) Except as provided in
par. (b), any person who violates this section or an order issued under this section may be fined not more than $10,000 plus the retail value of any food moved, sold or disposed of in violation of this section or the order, or imprisoned not more than one year in the county jail, or both.
254.85(5)(b)
(b) Any person who does either of the following may be fined not more than $5,000 or imprisoned not more than one year in a county jail, or both:
254.85(5)(b)1.
1. Assaults, restrains, threatens, intimidates, impedes, interferes with or otherwise obstructs a department inspector, employee or agent in the performance of his or her duties under this section.
254.85(5)(b)2.
2. Gives false information to a department inspector, employee or agent engaged in the performance of his or her duties under this section, with the intent to mislead the inspector, employee or agent.
254.85 History
History: 1983 a. 203;
1985 a. 182 s.
57;
1985 a. 332 s.
251 (1);
1987 a. 307;
1993 a. 27 s.
78; Stats. 1993 s. 254.85.
254.86
254.86
Suspension or revocation of permit. The department or a local health department designated as an agent under
s. 254.69 (2) may refuse or withhold issuance of a permit or may suspend or revoke a permit for violation of this subchapter or any rule or order of the department of health services, ordinance of the village, city or county or regulation of the local board of health.
254.86 History
History: 1975 c. 413 s.
14; Stats. 1975 s. 50.70;
1983 a. 203;
1987 a. 27;
1993 a. 27 s.
83; Stats. 1993 s. 254.86;
1995 a. 27 s.
9126 (19);
2007 a. 20 s.
9121 (6) (a).
254.87
254.87
Court review. Orders of the department shall be subject to review in the manner provided in
ch. 227.
254.87 History
History: 1975 c. 413 s.
14; Stats. 1975 s. 50.71;
1993 a. 27 s.
84; Stats. 1993 s. 254.87.
254.88
254.88
Penalty. Anyone who violates this subchapter, except
s. 254.83,
254.84 or
254.85, or any rule of the department promulgated under this subchapter shall be fined not less than $100 nor more than $1,000. Anyone who fails to comply with an order of the department under this subchapter except
s. 254.85 shall forfeit $50 for each day of noncompliance after the order is served upon or directed to him or her, and in case of action under
s. 254.87, after lapse of a reasonable time after final determination.
254.88 History
History: 1975 c. 413 ss.
13,
18; Stats. 1975 s. 50.59;
1983 a. 203;
1985 a. 332 s.
251 (1);
1989 a. 31;
1993 a. 27 s.
80; Stats. 1993 s. 254.88.
SALE OR GIFT OF CIGARETTES OR
TOBACCO PRODUCTS TO MINORS
254.911
254.911
Definitions. In this subchapter:
254.911(2)
(2) "Governmental regulatory authority" means the department, a local health department, a state agency or a state or local law enforcement agency; or a person with whom the local health department, state agency, or state or local law enforcement agency contracts to conduct investigations authorized under
s. 254.916 (1) (a).
254.911(5)
(5) "Retail outlet" means a place of business from which cigarettes, nicotine products, or tobacco products are sold at retail to consumers.
254.911(8)
(8) "Tobacco vending machine" is any mechanical device that automatically dispenses cigarettes or tobacco products when money or tokens are deposited in the device in payment for the cigarettes or tobacco products.
254.911(9)
(9) "Tobacco vending machine operator" means a person who acquires tobacco products or stamped cigarettes from manufacturers, as defined in
s. 134.66 (1) (e), or permittees, stores them and sells them through the medium of tobacco vending machines that he or she owns, operates or services and that are located on premises that are owned or under the control of other persons.
254.911(10)
(10) "Tobacco vending machine premises" means any area in which a tobacco vending machine is located.
254.916(1)(a)(a) A governmental regulatory authority may conduct unannounced investigations at retail outlets, including tobacco vending machine premises, to enforce compliance with
s. 134.66 (2) (a) and
(am) or a local ordinance adopted under
s. 134.66 (5). The department may contract with a local health department, a state agency, or a state or local law enforcement agency to conduct investigations authorized under this section, and a local health department, state agency, or state or local law enforcement agency may contract with any other person to conduct those investigations. A person who contracts to conduct investigations authorized under this section shall agree in the contract to train all individuals conducting investigations under the contract in accordance with the standards established under
par. (b) and to suspend from conducting any further investigations for not less than 6 months any individual who fails to meet the requirements of
sub. (3) (a) to
(f) and the standards established by the department.
254.916(1)(b)
(b) The department, in consultation with other governmental regulatory authorities and with retailers, shall establish standards for procedures and training for conducting investigations under this section.
254.916(1)(c)
(c) No retailer may be subjected to an unannounced investigation more than twice annually unless the retailer is found to have violated
s. 134.66 (2) (a) or
(am), or a local ordinance adopted under
s. 134.66 (5), during the most recent 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, nicotine product, 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-21.
254.916(3)(f)
(f) Except with respect to investigations conducted under a grant received under
42 USC 300x-21, 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(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) or a local ordinance adopted under
s. 134.66 (5) 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 that conducts an investigation under this section shall meet the requirements of
sub. (3) (a) to
(f) and the standards established by the department.
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) A person conducting an investigation under this section may not have a financial interest in a regulated cigarette and tobacco product retailer, a tobacco vending machine operator, a tobacco vending machine premises, or a tobacco vending machine that may interfere with his or her ability to properly conduct that investigation. A person who is investigated under this section may request the local health department or local law enforcement agency that contracted for the investigation to conduct a review under
ch. 68 to determine whether the person conducting the investigation is in compliance with this subsection or, if applicable, may request the state agency or state law enforcement agency that contracted for the investigation to conduct a contested case hearing under
ch. 227 to make that determination. The results of an investigation that is conducted by a person who is not in compliance with this subsection may not be used to prosecute a violation of
s. 134.66 (2) (a) or
(am) or a local ordinance adopted under
s. 134.66 (5).
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, nicotine product, or tobacco product.
254.92(2)
(2) No person under 18 years of age may purchase, attempt to purchase, or possess any cigarette, nicotine product, or tobacco product except as follows:
254.92(2)(a)
(a) A person under 18 years of age may purchase or possess cigarettes, nicotine products, 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, nicotine products, 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(2m)
(2m) No person may purchase cigarettes, tobacco products, or nicotine products on behalf of, or to provide to, any person who is under 18 years of age. Any person who violates this subsection may be:
254.92(2m)(a)
(a) Required to forfeit not more than $500 if the person has not committed a previous violation within 30 months of the violation.
254.92(2m)(b)
(b) Fined not more than $500 or imprisoned for not more than 30 days or both if the person has committed a previous violation within 30 months of the violation.
254.92(2m)(c)
(c) Fined not more than $1,000 or imprisoned for not more than 90 days or both if the person has committed 2 previous violations within 30 months of the violation.
254.92(2m)(d)
(d) Fined not more than $10,000 or imprisoned for not more than 9 months or both if the person has committed 3 or more previous violations within 30 months of the violation.
254.92(3)
(3) A law enforcement officer shall seize any cigarette, nicotine product, or tobacco product that has been sold to and is in the possession of a person under 18 years of age.
254.92(4)
(4) A county, town, village, or city may enact an ordinance regulating the conduct regulated by this section only if the ordinance strictly conforms to this section. A county ordinance enacted under this subsection does not apply within a town, village, or city that has enacted or enacts an ordinance under this subsection.
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),
95-0213.
