995.12(2)(b)2.a. a. An escrow payment required under s. 995.10 (2) (b) for any period for any brand family, whether or not listed by such nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general.
995.12(2)(b)2.b. b. Any outstanding final judgment, including interest on that judgment, for a violation of s. 995.10 has not been fully satisfied for the brand family or manufacturer.
995.12(2)(b)3. 3. The attorney general shall update the directory as necessary to correct mistakes and to add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements under this paragraph.
995.12(2)(b)4. 4. Every distributor shall provide and update as necessary an electronic mail address to the attorney general for the purpose of receiving any notifications as may be required under this section.
995.12(2)(c) (c) Prohibition against stamping or sale of cigarettes not in the directory. It shall be unlawful for any person to affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory or to sell, or offer or possess for sale, in this state cigarettes of a tobacco product manufacturer or brand family not included in the directory.
995.12(3) (3)Agent for service of process.
995.12(3)(a)(a) Requirement for agent for service of process. Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to having its brand families included or retained in the directory under sub. (2) (b), appoint and continually engage the services of an agent in this state to act as agent for the service of process on whom all processes, and any action or proceeding against it concerning or arising out of the enforcement of this section and s. 995.10, may be served in any manner authorized by law. That service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number, and proof of the appointment and availability of the agent to the attorney general.
995.12(3)(b) (b) Notification of termination of agent. The nonparticipating manufacturer shall provide notice to the department and attorney general 30 calendar days before termination of the authority of an agent under par. (a) and shall provide proof to the satisfaction of the attorney general of the appointment of a new agent no less than 5 calendar days before the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the department and attorney general of that termination within 5 calendar days and shall include proof to the satisfaction of the attorney general of the appointment of a new agent.
995.12(3)(c) (c) Service on department of financial institutions. Any nonparticipating manufacturer whose cigarettes are sold in this state, who has not appointed and engaged an agent as required in this subsection, shall be considered to have appointed the department of financial institutions as that agent and may be proceeded against in courts of this state by service of process upon the department of financial institutions provided, however, that the appointment of the department of financial institutions as that agent does not satisfy the condition precedent for having the brand families of the nonparticipating manufacturer included or retained in the directory under sub. (2) (b).
995.12(4) (4)Reporting of information; escrow installments.
995.12(4)(a)(a) Reporting by distributors. Not later than 20 calendar days after the end of each calendar quarter, and more frequently if so directed by the department, each distributor shall submit a report that includes any information that the department requires to facilitate compliance with this section, including a list by brand family of the total number of cigarettes, or, in the case of roll-your-own tobacco, the equivalent stick count, for which the distributor affixed stamps during the previous calendar quarter or otherwise paid the tax due for those cigarettes. The distributor shall maintain, and make available to the department, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the department for a period of 5 years.
995.12(4)(b) (b) Disclosure of information. The department is authorized to disclose to the attorney general any information received under this section and requested by the attorney general for purposes of determining compliance with and enforcing the provisions of this section. The department and attorney general shall share with each other the information received under this section, and may share such information with other federal, state, or local agencies only for purposes of enforcement of this section, s. 995.10, or corresponding laws of other states.
995.12(4)(c) (c) Verification of qualified escrow fund. The attorney general may require at any time from the nonparticipating manufacturer proof, from the financial institution in which the manufacturer has established a qualified escrow fund for the purpose of compliance with s. 995.10, of the amount of money in that fund, exclusive of interest, the amount and date of each deposit into the fund, and the amount and date of each withdrawal from the fund.
995.12(4)(d) (d) Requests for additional information. In addition to the information required to be submitted under par. (c), the attorney general may require a distributor or tobacco product manufacturer to submit any additional information, including samples of the packaging or labeling of each brand family, as is necessary to enable the attorney general to determine whether a tobacco product manufacturer is in compliance with this section.
995.12(4)(e) (e) Quarterly escrow installments. To promote compliance with this section, the attorney general may promulgate rules requiring a tobacco product manufacturer subject to the requirements of sub. (2) (a) 3. to make the escrow deposits required in quarterly installments during the year in which the sales covered by such deposits are made. The attorney general may require production of information sufficient to enable the attorney general to determine the adequacy of the amount of the installment deposit.
995.12(5) (5)Penalties and other remedies.
995.12(5)(a)(a) License revocation and civil penalty. Upon a determination that a distributor has violated sub. (2) (c), the department may revoke or suspend the license of the distributor in the manner provided under s. 139.44 (4) and (7). Each stamp affixed and each sale of cigarettes or offer or possession to sell cigarettes in violation of sub. (2) (c) shall constitute a separate violation. For each violation the department may also impose a forfeiture in an amount not to exceed the greater of 500% of the retail value of the cigarettes or $5,000.
995.12(5)(b) (b) Contraband and seizure. Any cigarettes that have been sold, offered for sale, or possessed for sale, in this state, in violation of sub. (2) (c) shall be deemed contraband and such cigarettes shall be subject to seizure as provided under s. 139.40. All cigarettes that are seized shall be destroyed and not resold.
995.12(5)(c) (c) Injunction. The attorney general, on behalf of the department, may seek an injunction to restrain a threatened or actual violation of sub. (2) (c) or failure to comply with sub. (4) (a) or (d) by a distributor and to compel the distributor to comply with those subsections.
995.12(5)(d) (d) Unlawful sale and distribution. It shall be unlawful for a person to sell or distribute cigarettes or acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the state in violation of sub. (2) (c). Section 139.44 (7), as it applies to violations under subchs. II and III of ch. 139, applies to a violation of this paragraph.
995.12(5)(e) (e) Unfair and deceptive trade practice. A person who violates sub. (2) (c) engages in an unfair and deceptive trade practice in violation of s. 100.20.
995.12(6) (6)Notice and review of determination. A determination of the attorney general to not include or to remove from the directory under sub. (2) (b) a brand family or tobacco product manufacturer shall be subject to review in the manner prescribed under ch. 227.
995.12(7) (7)Applicants for licenses. No person shall be issued a license or granted a renewal of a license to act as a distributor unless that person has certified in writing that the person will comply fully with this section.
995.12(8) (8)Dates. For the year 2003, the first report of distributors required by sub. (4) (a) shall be due 30 calendar days after November 27, 2003; the certifications by a tobacco product manufacturer described in sub. (2) (a) shall be due 45 calendar days after that date; and the directory described in sub. (2) (b) shall be published or made available within 90 calendar days after that date.
995.12(9) (9)Promulgation of rules. The attorney general may promulgate rules necessary to effect the purposes of this section.
995.12(10) (10)Recovery of costs and fees by attorney general. In any action brought by the state to enforce this section, including an action under sub. (5) (c) the state shall be entitled to recover the costs of investigation and prosecution expert witness fees, court costs, and reasonable attorney fees.
995.12(11) (11)Transfer of profits for violations. If a court determines that a person has violated this section, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be transferred and paid to the state. Unless otherwise expressly provided, the remedies or penalties provided by this section are cumulative.
995.12(12) (12)Construction. If a court finds that the provisions of this section and of s. 995.10 conflict and cannot be harmonized, then the provisions of s. 995.10 shall control. If any part of this section causes s. 995.10 to no longer constitute a qualifying or model statute, as those terms are defined in the master settlement agreement, then that portion of this section is not valid.
995.12 History History: 2003 a. 73; 2005 a. 155 s. 32; Stats. 2005 s. 995.12; 2007 a. 156.
995.12 Cross-reference Cross-reference: See also ch. Jus 16, Wis. adm. code.
995.20 995.20 Legal holidays. January 1, January 15, the 3rd Monday in February (which shall be the day of celebration for February 12 and 22), the last Monday in May (which shall be the day of celebration for May 30), June 19, which shall be the day of observation for Juneteenth Day, July 4, the 1st Monday in September which shall be known as Labor day, the 2nd Monday in October, November 11, the 4th Thursday in November (which shall be the day of celebration for Thanksgiving), December 25, the day of holding the partisan primary election, and the day of holding the general election in November are legal holidays. On Good Friday the period from 11 a.m. to 3 p.m. shall uniformly be observed for the purpose of worship. In every 1st class city the day of holding any municipal election is a legal holiday, and in every such city the afternoon of each day upon which a primary election is held for the nomination of candidates for city offices is a half holiday and in counties having a population of 500,000 or more the county board may by ordinance provide that all county employees shall have a half holiday on the day of such primary election and a holiday on the day of such municipal election, and that employees whose duties require that they work on such days be given equivalent time off on other days. Whenever any legal holiday falls on Sunday, the succeeding Monday shall be the legal holiday.
995.20 History History: 1971 c. 226; 1973 c. 140, 333; 1977 c. 187 s. 96; Stats. 1977 s. 757.17; 1983 a. 7; 1983 a. 192 s. 257; Stats. 1983 s. 895.20; 2005 a. 155 s. 33; Stats. 2005 s. 995.20; 2009 a. 91; 2011 a. 75.
995.22 995.22 Wisconsin family month, week and Sunday. The month of November, in which the celebration of Thanksgiving occurs, is designated as Wisconsin Family Month, the first 7 days of that month are designated as Wisconsin Family Week and the first Sunday of that month is designated as Family Sunday. In conjunction therewith, appropriate observances, ceremonies, exercises and activities may be held under state auspices to focus attention on the principles of family responsibility to spouses, children and parents, as well as on the importance of the stability of marriage and the home for our future well-being; and the chief officials of local governments and the people of the state are invited either to join and participate therein or to conduct like observances in their respective localities.
995.22 History History: 1973 c. 333; 1977 c. 187 s. 96; Stats. 1977 s. 757.171; 1983 a. 192 s. 258; Stats. 1983 s. 895.22; 1987 a. 27; 2005 a. 155 s. 34; Stats. 2005 s. 995.22.
995.225 995.225 Fire Prevention Week.
995.225(1) (1) The week in October during which October 9 falls is designated Fire Prevention Week and the Saturday at the end of Fire Prevention Week is designated Wisconsin Firefighters Memorial Day. In conjunction with the week, appropriate observances, ceremonies, exercises, and activities may be held under state auspices to do all of the following:
995.225(1)(a) (a) Commemorate 2 of the most devastating fires in U.S. history, both of which started on October 8, 1871, the Peshtigo fire and the Chicago fire.
995.225(1)(b) (b) Study fire safety tips to help avoid home fires.
995.225(1)(c) (c) Recognize that well-trained, dedicated, and well-equipped fire departments are important to all of the residents of this state.
995.225(1)(d) (d) Recognize that thousands of state firefighters, both full-time and volunteer, dedicate themselves to protecting lives and property.
995.225(1)(e) (e) Express the gratitude of the residents of this state for the valuable contributions that firefighters have made to the other residents of this state.
995.225(1)(f) (f) Honor those contributions and memorialize the firefighters of this state who have died while performing their duties.
995.225(2) (2) The chief officials of local governments and the people of the state are invited either to join and participate in the observances, ceremonies, exercises, and activities under sub. (1) that may be held under state auspices or to conduct similar observances in their respective localities.
995.225 History History: 2003 a. 56, 320; 2005 a. 155 s. 35; Stats. 2005 s. 995.225; 2011 a. 185.
995.23 995.23 Indian Rights Day. July 4 is designated as "Indian Rights Day," and in conjunction with the celebration of Independence Day, appropriate exercises or celebrations may be held in commemoration of the granting by congress of home rule and a bill of rights to the American Indians. When July 4 falls on Sunday, exercises or celebrations of Indian Rights Day may be held on either the third or the fifth.
995.23 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.175; 1983 a. 192 s. 259; Stats. 1983 s. 895.23; 2005 a. 155 s. 36; Stats. 2005 s. 995.23.
995.24 995.24 William D. Hoard Day. October 10 is designated as William D. Hoard Day. Appropriate exercises and celebrations may be held on that day, William D. Hoard's birthday, to honor him and remember him as the 16th governor of Wisconsin and the leading promoter of the dairy industry through his weekly magazine, Hoard's Dairyman.
995.24 History History: 2009 a. 327; 2011 a. 260 s. 81.
995.30 995.30 Ronald W. Reagan Day. February 6 is designated as Ronald W. Reagan Day. Appropriate exercises and celebrations may be held on that day, his birthday, to honor him and remember him as the 40th President of the United States and a promoter of freedom and democracy throughout the world.
995.30 History History: 2011 a. 32.
995.50 995.50 Right of privacy.
995.50(1)(1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:
995.50(1)(a) (a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;
995.50(1)(b) (b) Compensatory damages based either on plaintiff's loss or defendant's unjust enrichment; and
995.50(1)(c) (c) A reasonable amount for attorney fees.
995.50(2) (2) In this section, "invasion of privacy" means any of the following:
995.50(2)(a) (a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
995.50(2)(b) (b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
995.50(2)(c) (c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.
995.50(2)(d) (d) Conduct that is prohibited under s. 942.09, regardless of whether there has been a criminal action related to the conduct, and regardless of the outcome of the criminal action, if there has been a criminal action related to the conduct.
995.50(3) (3) The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.
995.50(4) (4) Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof.
995.50(6) (6)
995.50(6)(a)(a) If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.
995.50(6)(b) (b) In order to find an action for invasion of privacy to be frivolous under par. (a), the court must find either of the following:
995.50(6)(b)1. 1. The action was commenced in bad faith or for harassment purposes.
995.50(6)(b)2. 2. The action was devoid of arguable basis in law or equity.
995.50(7) (7) No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under ss. 196.63 or 968.27 to 968.373.
995.50 History History: 1977 c. 176; 1987 a. 399; 1991 a. 294; 2001 a. 33; 2005 a. 155 s. 51; Stats. 2005 s. 995.50; 2013 a. 375.
995.50 Annotation Commercial misappropriation of a person's name is prohibited by Wisconsin common law. Hirsch v. S.C. Johnson & Son, Inc. 90 Wis. 2d 379, 280 N.W.2d 129 (1979).
995.50 Annotation Oral communication among numerous employees and jail inmates is sufficient to constitute publicity under sub. (2) (c). The plain meaning of "a place" in sub. (2) (a) is geographical and does not include a file of medical records. Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913 (Ct. App. 1991).
995.50 Annotation Disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Whether a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of plaintiff's relationship to the audience who received the information. Pachowitz v. LeDoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88, 02-2100.
995.50 Annotation An action for invasion of privacy requires: 1) a public disclosure of facts regarding the plaintiff; 2) the facts disclosed were private; 3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities; and 4) the party disclosing the facts acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. In order to find public disclosure, the matter must be regarded as substantially certain to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102, 273 Wis. 2d 728, 681 N.W.2d 306, 03-2198.
995.50 Annotation The recording of sounds emanating from a neighbor's home using a common recording device that was placed inside the defendant's own window was not an intrusion of a nature highly offensive to a reasonable person in violation of sub. (2) (a). Poston v. Burns, 2010 WI App 73, 325 Wis. 2d 404, 784 N.W.2d 717, 09-0463.
995.50 Annotation Sub. (2) (a) has a spatial basis — the invasion of privacy must occur in a place that a reasonable person would consider private or in a manner which is actionable for trespass. In this case, the only action that was allegedly taken by the defendant was the distribution of fliers containing information that was already available to the public. That the information may have inspired others to make phone calls, honk horns, or write letters does not mean that the defendant invaded the plaintiff's private space. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.
995.50 Annotation Sub. (2) (c) addresses situations where an individual makes public statements about the private life of another person in a highly offensive way. In order to fall under sub. (2) (c), the statements must make information public that was not previously available to the public. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.
995.50 Annotation The more reasonable interpretation of "use" in sub. (2) (b) is that it does not cover bidding on someone's name as a keyword search term. The holding is limited to the particular "non-visible" type of use at issue in this case. Habush v. Cannon, 2013 WI App 34, 346 Wis. 2d 709, 828 N.W.2d 876, 11-1769.
995.50 Annotation The right to privacy law does not affect the duties of custodians of public records under s. 19.21. 68 Atty. Gen. 68.
995.50 Annotation Surveillance of a school district employee from public streets and highways by the employer school district's agents to determine whether the employee was in violation of the district's residency policy did not violate this section. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (1992).
995.50 Annotation While the Open Records Law and this statute are related laws, they are only related in that a finding under the Open Records Law that a record should be made public would necessarily mean that "the information was available to the public as a matter of public record." This is true because both statutes apply the same common-law balancing test when determining whether a record is public. When a trial court found only that the procedures delineated in the Open Records Law were not followed, those procedures had no impact on the question of whether a record is public under this section; the procedures are merely procedural, not substantive. Hutchins v. Clarke, 661 F.3d 947 (2011).
995.50 Annotation A person's religious affiliation, standing alone, is not so private that publication would offend a reasonable person and constitute an invasion of privacy under sub. (2) (c). Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co. 978 F. Supp 1195 (1997).
995.50 Annotation The exclusivity provision of the Workers Compensation Act does not bar a claim for invasion of privacy under this section. Marino v. Arandell Corp. 1 F. Supp. 2d 947 (1998).
995.50 Annotation In drafting this section, the legislature used New York's privacy statute as a model. The text of sub. (2) (b) duplicates nearly verbatim New York law. Case law under the New York privacy statute may be particularly useful. Bogie v. Rosenberg, 705 F.3d 603 (2013).
995.50 Annotation A claim under sub. (2) (a) must show that the alleged intrusion into privacy would be highly offensive to a reasonable person. The question of what kinds of conduct will be regarded as a highly offensive intrusion is largely a matter of social conventions and expectations. The offensiveness of the intrusion itself cannot be based on the content or substance captured by virtue of the alleged intrusion. The fact that the plaintiff was embarrassed to be filmed saying something she regretted having said and later deemed offensive did not convert the filming itself into a highly offensive intrusion. Bogie v. Rosenberg, 705 F.3d 603 (2013).
995.50 Annotation Where a matter of legitimate public interest is concerned, no cause of action for invasion of privacy will lie. This newsworthiness or public interest exception should be construed broadly, covering not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest. Wisconsin courts have also incorporated the common law exception for incidental use into the statute. Bogie v. Rosenberg, 705 F.3d 603 (2013).
995.50 Annotation Court documents are matters of public interest. It follows that if court documents warrant the public interest exception, Internet search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception. To the extent that a search provider's profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so largely, and even primarily, to make a profit. Stayart v. Google Incorporated, 710 F.3d 719 (2013).
995.50 Annotation The absence of false light from the Wisconsin privacy statute. 66 MLR 99 (1982).
995.50 Annotation The tort of misappropriation of name or likeness under Wisconsin's new privacy law. Endejan, 1978 WLR 1029.
995.50 Annotation The Case for Reexamining Privacy Law in Wisconsin: Why Wisconsin Courts Should Adopt the Interpretation of the Tort of Intrusion upon Seclusion of Fisher v. Mount Olive Lutheran Church. Infield-Harm. 2004 WLR 1781.
2013-14 Wisconsin Statutes updated through 2015 Wis. Act 126 and all Supreme Court Orders entered before January 21, 2016. Published and certified under s. 35.18. Changes effective after January 21, 2016 are designated by NOTES. (Published 1-21-16)