134.65 Cigarette and tobacco products retailer license.

(1) No person shall in any manner, or upon any pretense, or by any device, directly or indirectly sell, expose for sale, possess with intent to sell, exchange, barter, dispose of or give away any cigarettes or tobacco products to any person not holding a license as herein provided or a permit under ss. 139.30 to 139.41 or 139.79 without first obtaining a license from the clerk of the city, village or town wherein such privilege is sought to be exercised.

(1m) A city, village, or town clerk may not issue a license under sub. (1) unless the applicant specifies in the license application whether the applicant will sell, exchange, barter, dispose of, or give away the cigarette or tobacco products over the counter or in a vending machine, or both.

(1r) A city, village, or town clerk may not require an applicant's signature on an application for a cigarette and tobacco products retailer license to be notarized. If a city, village, town, or any department of this state prepares an application form for a cigarette and tobacco products retailer license, the form may not require an applicant's signature on the form to be notarized.

(2)

(a) Except as provided in par. (b), upon filing of a proper written application a license shall be issued on July 1 of each year or when applied for and continue in force until the following June 30 unless sooner revoked. The city, village or town may charge a fee for the license of not less than $5 nor more than $100 per year which shall be paid to the city, village or town treasurer before the license is issued.

(b) In any municipality electing to come under this paragraph, upon filing of a proper written application a license shall be issued and continue in force for one year from the date of issuance unless sooner revoked. The city, village or town may charge a fee for the license of not less than $5 nor more than $100 per year which shall be paid to the city, village or town treasurer before the license is issued.

(3) Each such license shall name the licensee and specifically describe the premises where such business is to be conducted. Such licenses shall not be transferable from one person to another nor from one premises to another.

(4) Every licensed retailer shall keep complete and accurate records of all purchases and receipts of cigarettes and tobacco products. Such records shall be preserved on the licensed premises for 2 years in such a manner as to insure permanency and accessibility for inspection and shall be subject to inspection at all reasonable hours by authorized state and local law enforcement officials.

(5) Any person violating this section shall be fined not more than $100 nor less than $25 for the first offense and not more than $200 nor less than $25 for the 2nd or subsequent offense. If upon such 2nd or subsequent violation, the person so violating this section was personally guilty of a failure to exercise due care to prevent violation thereof, the person shall be fined not more than $300 nor less than $25 or imprisoned not exceeding 60 days or both. Conviction shall immediately terminate the license of the person convicted of being personally guilty of such failure to exercise due care and the person shall not be entitled to another license hereunder for a period of 5 years thereafter, nor shall the person in that period act as the servant or agent of a person licensed hereunder for the performance of the acts authorized by such license.

(5m) Any person who knowingly provides materially false information in an application for a cigarette and tobacco products retailer license under this section may be required to forfeit not more than $1,000.

(6) Any 1st class city may revoke, suspend, or refuse to renew any license issued under this section, as provided in sub. (7).

(7)

(a) Any duly authorized employee of a 1st class city issuing licenses under this section may file a sworn written complaint, supported by reports from a law enforcement agency, with the clerk of the city alleging at least 2 separate instances of one or more of the following about a person holding a license issued under this section by the city:

1. The person has violated s. 134.66 (2) (a), (am), (cm), or (e), or a municipal ordinance adopted under s. 134.66 (5).

2. The person's premises are disorderly, riotous, indecent, or improper.

3. The person has knowingly permitted criminal behavior, including prostitution and loitering, to occur on the licensed premises.

4. The person has been convicted of any of the following:

a. Manufacturing, distributing, or delivering a controlled substance or controlled substance analog under s. 961.41 (1).

b. Possessing with intent to manufacture, distribute, or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).

c. Possessing with intent to manufacture, distribute, or deliver, or manufacturing, distributing, or delivering a controlled substance or controlled substance analog under a substantially similar federal law or a substantially similar law of another state.

d. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to s. 961.65.

5. The person knowingly allows another person who is on the licensed premises to do any of the actions described in subd. 4.

(b) Upon the filing of the complaint, the city governing body shall issue a summons, signed by the clerk and directed to any peace officer in the city. The summons shall command the person complained of to appear before the city governing body on a day and place named in the summons, not less than 3 days and not more than 10 days from the date of issuance, and show cause why his or her license should not be revoked, suspended, or not renewed. The summons and a copy of the complaint shall be served on the person complained of at least 3 days before the date on which the person is commanded to appear. Service shall be in the manner provided in ch. 801 for service in civil actions in circuit court.

(c)

1. If the person does not appear as required by the summons, the allegations of the complaint shall be taken as true, and if the city governing body finds the allegations to be sufficient grounds for revocation or nonrenewal, the license shall be revoked or not renewed. The city clerk shall give notice of the revocation or nonrenewal to the person whose license is revoked or not renewed.

2. If the person appears as required by the summons and answers the complaint, both the complainant and the person complained of may produce witnesses, cross-examine witnesses, and be represented by counsel. The person complained of shall be provided a written transcript of the hearing at his or her expense. If upon the hearing the city governing body finds the allegations of the complaint to be true, and if the city governing body finds the allegations to be sufficient grounds for suspension, revocation, or nonrenewal, the license shall be suspended for not less than 10 days nor more than 90 days, revoked, or not renewed.

3. The city clerk shall give notice of each suspension, revocation, or nonrenewal to the person whose license is suspended, revoked, or not renewed.

4. If the city governing body finds the allegations of the complaint to be untrue, the complaint shall be dismissed without cost to the person complained of.

(d) When a license is revoked under this subsection, the revocation shall be recorded by the city clerk and no other license may be issued under this section to the person whose license was revoked within the 12 months after the date of revocation. No part of the fee paid for any license that is revoked under this subsection may be refunded.

(e) The action of any city governing body in suspending, revoking, or not renewing any license under this subsection, or the failure of any city governing body to suspend, revoke, or not renew any license under this subsection for good cause, may be reviewed by the circuit court for the county in which the license was issued, upon the request of any applicant or licensee. The procedure on review shall be the same as in civil actions instituted in the circuit court. The person desiring review shall file pleadings, which shall be served on the city governing body in the manner provided in ch. 801 for service in civil actions and a copy of the pleadings shall be served on the applicant or licensee. The city governing body, applicant, or licensee shall have 20 days to file an answer to the complaint. Following filing of the answer, the matter shall be deemed at issue and hearing may be had within 5 days, upon due notice served upon the opposing party. The hearing shall be before the court without a jury. Subpoenas for witnesses may be issued and their attendance compelled. The findings and order of the court shall be filed within 10 days after the hearing and a copy of the findings and order shall be transmitted to each of the parties. The order shall be final unless appeal is taken to the court of appeals.

(8) The uniform licensing of cigarette and tobacco products retailers is a matter of statewide concern. A city, village, or town may adopt an ordinance regulating the issuance, suspension, revocation, or renewal of a license under this section only if the ordinance strictly conforms to this section. If a city, village, or town has in effect on May 1, 2016, an ordinance that does not strictly conform to this section, the ordinance does not apply and may not be enforced.

History: 1983 a. 27; 1987 a. 67; 1993 a. 482; 1997 a. 214; 2001 a. 75; 2015 a. 275; 2017 a. 289.