Wisconsin Legislature: DIGEST OF OPINIONS

Insurance requirement waived

Where a licensing agency waives the insurance requirement under section 48.627(1)(a) and (b), Stats., it does not assume any liability beyond the limited recovery in tort claims under sections 893.80(3) and 893.82(6). 76-1

Juveniles

Section 48.31, Stats., provides counties with express authority to establish and operate juvenile detention homes and shelter care facilities. Detention homes and shelter care facilities established and operated pursuant to sec. 48.31, Stats., do not require a ch. 48 license from the Department of Health and Social Services. Counties may lease property for detention home or shelter care use. 66-50

Liability

The potential liability of placement agencies and foster parents for the torts of foster children is the same as natural parents' liability. They are only liable for property damage or physical injury which results from a failure to provide reasonable supervision. The greater exposure falls on the foster parent. Section 895.035, Stats., does not apply to placement agencies or foster parents. 66-164

Prisons and prisoners

Community-based residential facilities and child welfare agencies, facilities, or group foster homes do not necessarily become prisons or jails by reason of the placement therein of adult criminal or juvenile offenders in the custody of the State. The question whether a particular facility has become a prison or jail depends on whether the primary purpose of the facility has become penal. 69-52

Religious organizations

A facility owned and operated by a religious organization is subject to licensure and regulation under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, unless the facility is a convent, monastery or similar place where residents are all members of a religious hierarchy living in seclusion and operating under a set of religious vows or rules. The Department of Health and Social Services constitutionally license and regulate Community Based Residential Facilities (CBRFs) operated by religious organizations not exempt under sec. 50.01 (1), Stats., or sec. 50.03(9), Stats. Application of CBRF licensure and regulatory requirements to certain facilities operated by the Salvation Army discussed. 71-112

Zoning

A community living arrangement which has a capacity for eight or fewer persons and which meets all other statutory criteria is entitled to locate in any zoning district where single or multi-family residences are a permitted use. Any such community living arrangement which has a capacity of from nine to fifteen persons is entitled to locate in any zoning district where multi-family residences containing more than two families are a permitted use, and is entitled to apply for special zoning permission to locate in any zoning district where single or two family uses are permitted. Such a community living arrangement which has a capacity of more than fifteen persons is entitled to apply for special zoning permission to locate in any zoning district where single or multi-family uses are permitted. A community living arrangement which meets all applicable statutory criteria is not entitled to locate in an exclus

A local zoning ordinance which limits occupation of single family dwellings to one or more persons related by blood, adoption or marriage or not more than two unrelated persons while valid on its face, is unenforceable against a licensed foster home. Said license, whether granted directly or indirectly by the State, is an exercise of the sovereign power of the State and is immune from local zoning regulations. 66-342

Foster homes contracted for (i.e., leased) by the Department of Health and Social Services, pursuant to sec. 48.52, Stats., are immune from local zoning to the extent that the zoning conflicts with the Department's possessory use of property for purposes contemplated by ch. 48, Stats. However, immunity for leased facilities is subject to sec. 13.48(13), Stats., as amended by ch. 90, sec. 2, Laws of 1973. Section 48.64, Stats., agreements between the Department and proprietors of foster homes do not serve to immunize the proprietor's property from local zoning. County agencies providing child welfare services do not have authority to lease real property for foster home use. The Department may assert its immunity from local zoning for property it acquires a possessory interest in by virtue of a sublease pursuant to sec. 48.52(2), Stats. Property leased by the Department pursuant to sec. 48.52(2), St

Foster homes owned, operated or contracted for by the Department of Health and Social Services or a county agency are immune from local zoning ordinances. Foster homes owned, operated or contracted for by licensed child welfare agencies are not immune. All family operated foster homes are subject to local zoning. Municipal foster home licensing ordinances are unenforceable. Zoning ordinances utilizing definitions of "family" to restrict the number of unrelated persons who may live in a single family dwelling are of questionable constitutionality. 63-34

FOX VALLEY TECHNICAL INSTITUTE

Federal aid

The Fox Valley Technical Institute is not a "unit of local government" for the purpose of receiving federal Justice Assistance Act (JAA) funds. Also, JAA funds which are specified for use by local units of government for local projects cannot be used to support statewide crime prevention activities. 75-265

FOX VALLEY VOCATIONAL, TECHNICAL AND ADULT EDUCATION DISTRICT

Fiscal agent

Neither the Fox Valley Vocational, Technical and Adult Education District nor the East Central Regional Planning Commission has the authority to act as fiscal agent for the Northeast Criminal Justice Coordinating Council. 71-70

FRANCHISES

Automobile dealer

Wisconsin Fair Dealership Law, is a public policy declaration concerning the unwarranted termination of dealership. 66-10

Intoxicating liquors

Intoxicating liquors; wholesale permitees; franchise sales area statements; price discrimination. Section 176.05(1a)(b), Stats., does not prohibit a wholesaler from selling intoxicating liquor to a retailer located outside the area described in the area statement provided the sale takes place within that area. State law does not prohibit nor does it require a separate charge by a wholesaler for delivery of intoxicating liquor to a retailer. 70-25

FREEDOM OF SPEECH

Public employe

Section 19.45(12), Stats., is constitutional. 77-184

Soliciting jury duty

Sections 756.03 and 756.031, Stats., prohibiting a person from soliciting jury duty are constitutional enactments. 69-19

FUNDS

See also FEDERAL AID

Condemnation

The question of whether benefits and assistance provided by ch. 409, Laws of 1969, as amended by ch. 103, Laws of 1971, must be afforded an owner of property or his tenant where there is no threat of condemnation, but the property owner, aware that a public agency wants the property, voluntarily sells the property to the public agency requires an exercise of discretion based upon the facts of each transaction, however, the property owner or his tenant to qualify must be displaced by the project and the expenditure of public funds must be for a public purpose. 62-168

Construction of state facilities on leased land

It is constitutional for the Legislature to authorize funds to be borrowed and expended for construction of state patrol training facilities on leased land. (Unpub.). 8-1984

Contingency fund

Under section 65.90(5), Stats., a vote of two-thirds of the entire membership of the county board is needed to transfer funds from the contingency fund to use for a purpose not anticipated in the budget. 76-145

Educational Communications Board, Wisconsin

Under sec. 20.906(1), Stats., it would not be unlawful for Friends to hold funds for the ECB that were solicited through use of ECB facilities and resources. The ECB has statutory authority to contract with Friends to assist in raising funds for educational radio and television in this State. 70-163

Elections

Section 11.33, Stats., applies to persons elected to state office who are seeking reelection or election to a different office and to the use of public funds for political purposes. 69-259

General Fund

Pursuant to sec. 20.865, Stats., both segregated revenues and general purpose revenues of the General Fund are available for the payment of judgments arising out of segregated fund activities in the same proportion in which they were, or would have been, used to finance a program appropriation for the payment of such judgments; sec. 20.865(1)(a), Stats., includes authority for payment of settlements made by the Attorney General pursuant to sec. 165.25(6), Stats. (Unpub.). 18-1975

General obligation bonds

The state may use the proceeds from general obligation bonds to fund an expansion of the Petroleum Environmental Cleanup Fund Award Program. 81-114

Investments

Municipalities and other local governmental entities may only invest in certain specifically authorized bonds, securities, deposits, etc., and may not invest in mutual funds, even if the assets of such funds consist solely of statutorily-allowed bonds and securities. 77-274

Library system board

County Board cannot authorize single-county federated library system board to maintain special bank account into which are deposited system revenues and from which are paid system expenses. (Unpub.). 81-1977

Municipalities

Political fund

Section E1Bd 1.06 Wis. Adm. Code, and the forms developed to effectuate that rule, EB-11 and EB-12, which require corporations and associations to register and twice yearly report their expenditures for the establishment and administration of a political fund and for solicitation of political contributions to such fund, improperly impose substantive requirements in addition to those reasonably within the intendment of sec. 11.38(1)(a)2., Stats., and are therefore unenforceable. 67-193

Public funds

Chapter 108, Laws of 1973, contemplates the appropriation of public funds for a valid public purpose, not for works of internal improvement, and is constitutional. 62-212

Revenue bonds