101.02 Powers, duties and jurisdiction of department.
(1)
(a) In this subsection:
1. “Credential” has the meaning given in s. 440.01 (2) (a).
2. “Occupational license” means a license, permit, certificate, registration, or other approval for an occupation, trade, or profession issued by the department under this chapter, under ch. 145, under rules promulgated under this chapter or ch. 145, or under s. 167.10 (6m).
(b) The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings, subject to par. (c).
(c) If the department promulgates rules under s. 440.03 (1) defining uniform procedures to be used by the department for receiving, filing, and investigating complaints against holders of credentials, for commencing disciplinary proceedings against holders of credentials, and for conducting hearings on matters relating to credentials, the department's rules under par. (b) with respect to occupational licenses shall conform with the rules promulgated under s. 440.03 (1).
(1m) Notwithstanding sub. (1) (b), the department may not promulgate or enforce a rule related to fire safety that prohibits the seasonal placement of a Christmas tree in the rotunda of the state capitol building or in a church.
(2) The department may sue and be sued.
(3) The department shall employ, promote and remove deputies, clerks and other assistants as needed, to fix their compensation, and to assign to them their duties; and shall appoint advisers who shall, without compensation except reimbursement for actual and necessary expenses, assist the department in the execution of its duties.
(4) The department shall collect, collate and publish statistical and other information relating to the work under its jurisdiction and shall make public reports in its judgment necessary.
(5)
(a) The department shall conduct such investigations, hold such public meetings and attend or be represented at such meetings, conferences and conventions inside or outside of the state as may, in its judgment, tend to better the execution of its functions.
(b) For the purpose of making any investigation with regard to any employment or place of employment or public building, the secretary may appoint, by an order in writing, any deputy who is a citizen of the state, or any other competent person as an agent whose duties shall be prescribed in such order.
(c) In the discharge of his or her duties such agent shall have every power of an inquisitorial nature granted in this subchapter to the department, the same powers as a supplemental court commissioner with regard to the taking of depositions and all powers granted by law to a supplemental court commissioner relative to depositions.
(d) The department may conduct any number of such investigations contemporaneously through different agents, and may delegate to such agent the taking of all testimony bearing upon any investigation or hearing. The decision of the department shall be based upon its examination of all testimony and records. The recommendations made by such agents shall be advisory only and shall not preclude the taking of further testimony if the department so orders nor preclude further investigation.
(e) The secretary may direct any deputy who is a citizen to act as special prosecutor in any action, proceeding, investigation, hearing or trial relating to the matters within its jurisdiction.
(f) Upon the request of the department, the department of justice or district attorney of the county in which any investigation, hearing or trial had under this subchapter is pending, shall aid the department in the investigation, hearing or trial and, under the supervision of the department, prosecute all necessary actions or proceedings for the enforcement and punishment of violations of this subchapter and all other laws of this state relating to the protection of life, health, safety and welfare.
(6)
(a) All orders of the department in conformity with law shall be in force, and shall be prima facie lawful; and all such orders shall be valid and in force, and prima facie reasonable and lawful until they are found otherwise upon judicial review thereof pursuant to ch. 227 or until altered or revoked by the department.
(b) All general orders shall take effect as provided in s. 227.22. Special orders shall take effect as therein directed.
(c) The department shall, upon application of any employer or owner, grant such time as may be reasonably necessary for compliance with any order.
(d) Any person may petition the department for an extension of time, which the department shall grant if it finds such an extension of time necessary.
(e) Any employer or other person interested either because of ownership in or occupation of any property affected by any such order, or otherwise, may petition for a hearing on the reasonableness of any order of the department in the manner provided in this subchapter.
(f) Such petition for hearing shall be by verified petition filed with the department, setting out specifically and in full detail the order upon which a hearing is desired and every reason why such order is unreasonable, and every issue to be considered by the department on the hearing. The petitioner shall be deemed to have finally waived all objections to any irregularities and illegalities in the order upon which a hearing is sought other than those set forth in the petition. All hearings of the department shall be open to the public.
(g) Upon receipt of such petition, if the issues raised in such petition have theretofore been adequately considered, the department shall determine the same by confirming without hearing its previous determination, or if such hearing is necessary to determine the issues raised, the department shall order a hearing thereon and consider and determine the matter or matters in question at such times as shall be prescribed. Notice of the time and place of such hearing shall be given to the petitioner and to such other persons as the department may find directly interested in such decision.
(h) Upon such investigation, if it shall be found that the order complained of is unjust or unreasonable the department shall substitute therefor such other order as shall be just and reasonable.
(i) Whenever at the time of the final determination upon such hearing it shall be found that further time is reasonably necessary for compliance with the order of the department, the department shall grant such time as may be reasonably necessary for such compliance.
(7)
(a) Nothing contained in this subchapter may be construed to deprive the common council, the board of alderpersons, the board of trustees or the village board of any village or city, or a local board of health, as defined in s. 250.01 (3), of any power or jurisdiction over or relative to any place of employment or public building, provided that, whenever the department shall, by an order, fix a standard of safety or any hygienic condition for employment or places of employment or public buildings, the order shall, upon the filing by the department of a copy of the order with the clerk of the village or city to which it may apply, be held to amend or modify any similar conflicting local order in any particular matters governed by the order of the department. Thereafter no local officer may make or enforce any order contrary to the order of the department.
(b) Any person affected by any local order in conflict with an order of the department, may in the manner provided in s. 101.02 (6) (e) to (i), petition the department for a hearing on the ground that such local order is unreasonable and in conflict with the order of the department. The petition for such hearing shall conform to the requirements set forth for a petition in s. 101.02 (6) (e) to (i).
(c) Upon receipt of such petition the department shall order a hearing thereon, to consider and determine the issues raised by such appeal, such hearing to be held in the village, city or municipality where the local order appealed from was made. Notice of the time and place of such hearing shall be given to the petitioner and such other persons as the department may find directly interested in such decision, including the clerk of the municipality or town from which such appeal comes. If upon such investigation it shall be found that the local order appealed from is unreasonable and in conflict with the order of the department, the department may modify its order and shall substitute for the local order appealed from such order as shall be reasonable and legal in the premises, and thereafter the said local order shall, in such particulars, be void and of no effect.
(7e)
(a) Notwithstanding sub. (7) (a), no county, city, village, or town may enact or enforce an ordinance related to fire safety that prohibits the seasonal placement of a Christmas tree in the rotunda of the state capitol building or in a church.
(b) If a county, city, village, or town has in effect on April 1, 2016, an ordinance that prohibits the seasonal placement of a Christmas tree in the rotunda of the state capitol building or in a church, the ordinance does not apply and may not be enforced.
(7r)
(a) Notwithstanding sub. (7) (a), no county, city, village, or town may enact or enforce an ordinance that establishes minimum standards for constructing, altering, or adding to public buildings or buildings that are places of employment unless that ordinance strictly conforms to the applicable rules under sub. (15) (j), except as provided in pars. (b) to (d).
Note: Par. (a) is shown as affected by 2017 Wis. Acts 330 and 331 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
(b) Notwithstanding par. (a), a county, city, village, or town may enforce an ordinance establishing minimum standards for constructing, altering, or adding to public buildings or buildings that are places of employment that does not strictly conform to the applicable rules under sub. (15) (j) if all of the following apply:
1. The ordinance was enacted before May 1, 2013.
2. The ordinance was published by the county, city, village, or town in the manner required under s. 59.14, 60.80, 61.50, or 62.11 (4).
3. The ordinance relates to fire detection, prevention, or suppression components of buildings.
4. The building is not a multifamily dwelling.
5. The ordinance is submitted to the department within 60 days after April 18, 2014.
6. The department determines that the ordinance requires standards that are at least as strict as the rules promulgated by the department.
(c) A county, city, village, or town may amend an ordinance that is enforceable under par. (b) if all of the following apply:
1. The amendment will not broaden the applicability of the ordinance to any building components that are not subject to the ordinance under par. (b) 3.
2. The amendment will not change the specific subject matter regulated by the ordinance.
3. The county, city, village, or town submits a copy of the enacted amendment to the department at least 120 days before the effective date of the amendment.
4. The county, city, village, or town publishes the enacted amendment in the manner required under s. 59.14, 60.80, 61.50, or 62.11 (4) at least 120 days before the effective date of the amendment.
(d)
1. The department shall maintain a list of the ordinances that are enforceable under par. (b) and of the amendments that are enforceable under par. (c). The list shall be accessible to the public in electronic format, and shall include electronically photographed or scanned copies of the ordinances and amendments.
2. For an amendment submitted to the department under par. (c) 3., the department shall make it accessible as required under subd. 1. within 10 working days after receiving the amendment.
(e) Notwithstanding par. (a), a county, city, village, or town may enact and enforce an ordinance establishing a property maintenance code that is stricter than rules promulgated by the department under sub. (15) (j).
(f) Notwithstanding par. (a), a city of the 1st or 2nd class may enact and enforce an ordinance that relates to fire suppression that requires existing buildings to be altered to comply with the rules for the construction of buildings that are promulgated by the department under sub. (15) (j).
(g)
1. The department shall promulgate rules that establish procedures for the administration of the rules promulgated by the department under this subchapter. For purposes of this paragraph, “administration” includes the process an owner must follow when applying for a permit for constructing, altering, or adding to a public building or a building that is a place of employment.
2. Notwithstanding sub. (7) (a), no county, city, village, or town may enact or enforce an ordinance that establishes minimum standards for the administration of the rules promulgated by the department under this subchapter unless that ordinance strictly conforms to the rules promulgated by the department under subd. 1.
(7w)
(a) In this subsection, “aesthetic considerations” means considerations relating to color and texture and design considerations that do not relate to health or safety.
(b) Notwithstanding subs. (7) (a) and (7r), no city, village, or town may enact or enforce an ordinance, or otherwise impose any requirement, that includes aesthetic considerations for purposes of inspection criteria for the interior of any structure or part of a structure that is used or intended to be used as a home, residence, or sleeping place.
(8)
(a) No action, proceeding or suit to set aside, vacate or amend any order of the department or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have applied to the department for a hearing thereon at the time and as provided in s. 101.02 (6) (e) to (i), and in the petition therefor shall have raised every issue raised in such action.
(b) Every order of the department shall, in every prosecution for violation thereof, be conclusively presumed to be just, reasonable and lawful, unless prior to the institution of prosecution for such violation a proceeding for judicial review of such order shall have been instituted, as provided in ch. 227.
(9) A substantial compliance with the requirements of this subchapter shall be sufficient to give effect to the orders of the department, and no order may be declared inoperative, illegal or void for any omission of a technical nature with respect to the requirements of this subchapter.
(10) Orders of the department under this subchapter shall be subject to review in the manner provided in ch. 227.
(11) Proof by any person, firm or corporation employing a contractor to construct, repair, alter or improve any building or structure, that such contractor in performing such work has failed to comply with any applicable order or regulation of the department promulgated under this chapter shall constitute a defense to any action for payment by such contractor to the extent that it shall bar recovery for any part of the work which fails to comply. Advancements paid to the contractor for work which fails to comply as well as any reasonable amount expended to effectuate compliance with any applicable order or regulation may be recovered from such contractor by way of counterclaim or in a separate action. This section shall not apply where plans or specifications were prepared by an architect or engineer licensed to do business in this state and the contract performed in accordance therewith.
(12) Every day during which any person or corporation, or any officer, agent or employee of a person or corporation, fails to observe and comply with any order of the department or to perform any duty specified under this subchapter shall constitute a separate and distinct violation of the order or of the requirements of this subchapter, whichever is applicable.
(13)
(a) If any employer, employee, owner, or other person violates this subchapter, or fails or refuses to perform any duty specified under this subchapter, within the time prescribed by the department, for which no penalty has been specifically provided, or fails, neglects or refuses to obey any lawful order given or made by the department, or any judgment or decree made by any court in connection with this subchapter, for each such violation, failure or refusal, such employer, employee, owner or other person shall forfeit and pay into the state treasury a sum not less than $10 nor more than $100 for each such offense.
(b) It shall be the duty of all officers of the state, the counties and municipalities, upon request of the department, to enforce in their respective departments, all lawful orders of the department, insofar as the same may be applicable and consistent with the general duties of such officers.
(14)
(a) The secretary or any examiner appointed by the secretary may hold hearings and take testimony.
(b) Each witness who appears before the department by its order shall receive for attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the secretary, and charged to the proper appropriation for the department. No witness subpoenaed at the instance of an attorney under par. (cm) or at the instance of a party other than the department is entitled to compensation from the state for attendance or travel unless the department certifies that the testimony was material to the matter investigated.
(c) The department or any party may in any investigation cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in circuit courts. The expense incurred by the state in the taking of such depositions shall be charged against the proper appropriations for the department.
(cm) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
(d) A full and complete record shall be kept of all proceedings had before the department on any investigation and all testimony shall be taken down by the stenographer appointed by the department.
(15)
(a) The department has such supervision of every employment, place of employment and public building in this state as is necessary adequately to enforce and administer all laws and all lawful orders requiring such employment, place of employment or public building to be safe, and requiring the protection of the life, health, safety and welfare of every employee in such employment or place of employment and every frequenter of such place of employment, and the safety of the public or tenants in any such public building. This paragraph does not apply to occupational safety and health issues covered by standards established and enforced by the federal occupational safety and health administration.
(b) The department shall administer and enforce, so far as not otherwise provided for in the statutes, the laws relating to laundries, stores, licensed occupations, school attendance, bakeries, intelligence offices and bureaus, manufacture of cigars, sweatshops, corn shredders, woodsawing machines, fire escapes and means of egress from buildings, scaffolds, hoists, ladders and other matters relating to the erection, repair, alteration or painting of buildings and structures, and all other laws protecting the life, health, safety and welfare of employees in employments and places of employment and frequenters of places of employment.
(c) Upon petition by any person that any employment or place of employment or public building is not safe, the department shall proceed, with or without notice, to make such investigation as may be necessary to determine the matter complained of.
(d) After such hearing as may be necessary, the department may enter such order relative thereto as may be necessary to render such employment or place of employment or public building safe.
(e) Whenever the department shall learn that any employment or place of employment or public building is not safe it may of its own motion, summarily investigate the same, with or without notice, and enter such order as may be necessary relative thereto.
(f) The department shall investigate, ascertain and determine such reasonable classifications of persons, employments, places of employment and public buildings, as shall be necessary to carry out the purposes of this subchapter.
(g) The secretary or any deputy of the department may enter any place of employment or public building, for the purpose of collecting facts and statistics, examining the provisions made for the health, safety and welfare of the employees, frequenters, the public or tenants therein and bringing to the attention of every employer or owner any law, or any order of the department, and any failure on the part of such employer or owner to comply therewith. No employer or owner may refuse to admit the secretary or any deputy of the department to his or her place of employment or public building.
(h) The department shall investigate, ascertain, declare and prescribe what safety devices, safeguards or other means or methods of protection are best adapted to render the employees of every employment and place of employment and frequenters of every place of employment safe, and to protect their welfare as required by law or lawful orders.
(i) The department shall ascertain and fix such reasonable standards and shall prescribe, modify and enforce such reasonable orders for the adoption of safety devices, safeguards and other means or methods of protection to be as nearly uniform as possible, as may be necessary to carry out all laws and lawful orders relative to the protection of the life, health, safety and welfare of employees in employments and places of employment or frequenters of places of employment.
(j) The department shall ascertain, fix and order such reasonable standards or rules for constructing, altering, adding to, repairing, and maintaining public buildings and places of employment in order to render them safe.
(jm) Paragraphs (a) to (j) do not apply to public employee occupational safety and health issues covered under s. 101.055.
(k) Every employer and every owner shall furnish to the department all information that the department requires to administer and enforce this subchapter, and shall provide specific answers to all questions that the department asks relating to any information that the department requires.
(L) Any employer receiving from the department any form requesting information that the department requires to administer and enforce this subchapter, along with directions to complete the form, shall properly complete the form and answer fully and correctly each question asked in the form. If the employer is unable to answer any question, the employer shall give a good and sufficient reason for his or her inability to answer the question. The employer's answers shall be verified under oath by the employer, or by the president, secretary or other managing officer of the corporation, if the employer is a corporation, and the completed form shall be returned to the department at its office within the period fixed by the department.
(16) The department shall comply with the requirements of ch. 160 in the administration of any program, responsibility or activity assigned or delegated to it by law.
(18) The department may establish a schedule of fees for publications and seminars provided by the department for which no fee is otherwise authorized, required or prohibited by statute. Fees established under this subsection for publications and seminars provided by the department may not exceed the actual cost incurred in providing those publications and seminars.
(19)
(a) The department shall, after consulting with the department of health services, develop a report form to document contact with blood or body fluids that constitutes a significant exposure, for use under s. 252.15 (5g) (c). The form shall contain the following language for use by a person who may have had a significant exposure: “REMEMBER — WHEN YOU ARE INFORMED OF AN HIV TEST RESULT BY USING THIS FORM, IT IS A VIOLATION OF THE LAW FOR YOU TO REVEAL TO ANYONE ELSE THE IDENTITY OF THE PERSON WHO IS THE SUBJECT OF THAT TEST RESULT. (PENALTY: POSSIBLE JAIL AND UP TO $50,000 FINE)".
(b) The department shall determine whether a report form that is not the report form under par. (a) that is used or proposed for use to document significant exposure to blood or body fluids, is substantially equivalent to the report form under par. (a).
(22)
(a) In this subsection, “insulating concrete form" means a hollow expandable polystyrene form that is filled with concrete.
(b) Except as provided in par. (c), no later than April 1, 2007, the department shall provide a designation on every standard building permit form prescribed by the department under this chapter to indicate whether insulating concrete forms are being used in the construction of the building for which the permit is issued.
(c) No later than June 1, 2006, the department shall provide the designation described under par. (b) on all electronic versions of every standard building permit form prescribed by the department under this chapter.
(23) The department shall include the following language on every standard building permit form prescribed by the department under this chapter: “YOU ARE RESPONSIBLE FOR COMPLYING WITH STATE AND FEDERAL LAWS CONCERNING CONSTRUCTION NEAR OR ON WETLANDS, LAKES, AND STREAMS. WETLANDS THAT ARE NOT ASSOCIATED WITH OPEN WATER CAN BE DIFFICULT TO IDENTIFY. FAILURE TO COMPLY MAY RESULT IN REMOVAL OR MODIFICATION OF CONSTRUCTION THAT VIOLATES THE LAW OR OTHER PENALTIES OR COSTS. FOR MORE INFORMATION, VISIT THE DEPARTMENT OF NATURAL RESOURCES WETLANDS IDENTIFICATION WEB PAGE OR CONTACT A DEPARTMENT OF NATURAL RESOURCES SERVICE CENTER."
(25) The department may promulgate rules prescribing procedures for approving new building materials, methods, and equipment.
History: 1971 c. 185 ss. 1 to 5, 7; 1971 c. 228 ss. 16, 42; Stats. 1971 s. 101.02; 1975 c. 39, 94; 1977 c. 29; 1981 c. 360; 1983 a. 410; 1985 a. 182 s. 57; 1987 a. 343; 1989 a. 31, 56, 139; 1991 a. 39, 269; 1993 a. 27, 184, 252, 414, 492; 1995 a. 27 ss. 3631 to 3649r, 9126 (19); 1995 a. 215; 1997 a. 191, 237; 1999 a. 9; 2001 a. 61; 2005 a. 251, 456; 2007 a. 20 ss. 2609 to 2613, 9121 (6) (a); 2007 a. 63, 203; 2009 a. 16, 28, 209, 373; 2011 a. 32, 120, 146; 2013 a. 20, 36; 2013 a. 151 s. 28; 2013 a. 168, 270; 2015 a. 55, 176, 333; 2017 a. 59, 317, 330; 2017 a. 331 ss. 11 to 20, 47; s. 13.92 (2) (i).
Cross-reference: See s. 66.0119 for a provision authorizing special inspection warrants.
Safety rules promulgated under sub. (15) (h) applied to a frequenter of a new home construction site. Failure to instruct the jury that a violation of a safety standard constituted negligence per se was reversible error. Nordeen v. Hammerlund, 132 Wis. 2d 164, 389 N.W.2d 878 (Ct. App. 1986).
Every infrequent business-related activity in the home does not subject the homeowner to liability under the safe place statute. Geiger v. Milwaukee Guardian Insurance Co. 188 Wis. 2d 333, 524 N.W.2d 909 (Ct. App. 1994).
When an inspector determines that there is a violation of safety orders and a condition of extreme and imminent danger to a worker's life exists, the inspector may seek the assistance of a local law enforcement officer. The local law enforcement officer has a duty to render assistance unless in the officer's opinion other priority assignments take precedence. 59 Atty. Gen. 12.
The department's authority to adopt rules covering the safety of frequenters engaged in recreational activities at youth camps is limited to orders relating to the construction of public buildings on the premises, but only as to the structural aspects thereof, and to places of employment, but only as to those camps operated for profit. 59 Atty. Gen. 35.
The department has the power to promulgate reasonable safety standards for the protection of employees while working in and around motor vehicles used on the job. 59 Atty. Gen. 181.
The department may inspect those parts of boarding homes designed for 3 or more persons where employees work or those used by the public, but not interiors of private dwellings. It has no authority to license or register boarding homes nor to charge an inspection fee based upon the number of beds or rooms. 62 Atty. Gen. 107.
The department cannot enact a rule that would alter the common law rights and duties of adjoining landowners with respect to lateral support, although the department may specify 30 days as the minimum safety period in which an excavating owner must give notice to a neighbor of an intent to excavate. 62 Atty. Gen. 287.