Wisconsin Legislature: ATCP 73.02(2)

Ch. ATCP 73 Note Note: Chapter HSS 197 was renumbered chapter HFS 197 under s. 13.93 (2m) (b) 1., Stats., corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, January, 1997, No. 493. Chapter HFS 197 was renumbered chapter DHS 197 effective February 1, 2009, and corrections made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637. Chapter DHS 197 was renumbered chapter ATCP 73 under s. 13.92 (4) (b) 1., Stats., Register June 2016 No. 726.

ATCP 73.01 ATCP 73.01 Authority and purpose. Section 97.625, Stats., gives the department authority to prescribe rules for bed and breakfast establishments and to enforce these rules for the purpose of protecting public health and safety.

ATCP 73.01 History History: Cr. Register, June, 1985, No. 354, eff. 7-1-85; correction made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1995, No. 469; CR 08-073: renum. from HFS 197.01 Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.01 Register June 2016 No. 726; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2016 No. 726.

ATCP 73.02 ATCP 73.02 Scope.

ATCP 73.02(1)(1) Applicability. The provisions of this chapter apply to the operator of any bed and breakfast establishment.

ATCP 73.02(2) (2) Approved comparable compliance. When it appears to the department that strict adherence to a provision of this chapter is impractical for a particular bed and breakfast establishment, the department may approve a modification in that rule for that facility if the department is provided with satisfactory proof that the grant of a variance will not jeopardize the public's health, safety, or welfare.

ATCP 73.02 History History: Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 08-073: renum. from HFS 197.02 Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.02 Register June 2016 No. 726.

ATCP 73.03 ATCP 73.03 Definitions. In this chapter:

ATCP 73.03(1) (1) “Agent" means the city or county designated by the department to issue licenses to and make investigations or inspections of bed and breakfast establishments.

ATCP 73.03(2) (2) “Approved" means acceptable to the department, based on its determination of conformance to this chapter and good public health practices.

ATCP 73.03(3) (3) “Bed and breakfast establishment" means any place of lodging that provides 8 or fewer rooms for rent to no more than a total of 20 tourists or other transients for more than 10 nights in a 12-month period, is the owner's personal residence, is occupied by the owner at the time of rental, and in which the only meal served to guests is breakfast.

ATCP 73.03(4) (4) “Department" means the department of agriculture, trade and consumer protection.

ATCP 73.03(5) (5) “Furnishings" means, in connection with the operation of a bed and breakfast establishment, linens, beds, bedding, chairs, tables, shelves, drapes, carpeting, curtains, decorations, fixtures, and similar items provided in the sleeping rooms and common areas of the facility.

ATCP 73.03(6) (6) “Potentially hazardous food" means any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients, including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. “Potentially hazardous food" does not include clean, whole, uncracked, and odor-free shell eggs or foods which have a pH level of 4.6 or below or a water activity (aw) value of 0.85 or less.

ATCP 73.03(7) (7) “Premises means the tract of land on which the bed and breakfast establishment is located.

ATCP 73.03(7m) (7m) “Tourist or transient" means a person who travels to a location away from his or her permanent address for a short period of time for vacation, pleasure, recreation, culture, business, or employment.

ATCP 73.03(8) (8) “Utensil" means any kitchenware, tableware, glassware, cutlery, container, or similar item with which food or drink comes in contact during storage, preparation or serving.

ATCP 73.03 History History: Cr. Register, June, 1985, No. 354, eff. 7-1-85; am. (3), cr. (7m), Register, November, 1986, No. 371, eff. 12-1-86; CR 08-073: renum. from HFS 197.03 and am. (4) Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.03 Register June 2016 No. 726; correction in (4) made under s. 13.92 (4) (b) 6., Stats., Register June 2016 No. 726; CR 18-019: am. (1) Register January 2020 No. 769, eff. 2-1-20.

ATCP 73.04 ATCP 73.04 Licenses.

ATCP 73.04(1)(1) License required.

ATCP 73.04(1)(a)(a) No bed and breakfast establishment may be opened to the public until the operator of the bed and breakfast establishment has obtained a license from the department or its agent by submitting an application under sub. (4) and paying the applicable fee specified in s. ATCP 73.05. A separate license is required for each bed and breakfast establishment.

ATCP 73.04(1)(b) (b) A new initial license is required if a license holder sells or otherwise transfers ownership or operation of a bed and breakfast establishment to another person, except as provided in sub. (3).

ATCP 73.04(2) (2) License duration and renewal.

ATCP 73.04(2)(a) (a) Each license issued under this chapter expires on June 30, except that a license initially issued during the period beginning on April 1 and ending on June 30 expires on June 30 of the following year.

ATCP 73.04(2)(b) (b) Each license shall be renewed annually as provided in sub. (4) (b).

ATCP 73.04(3) (3) Transferability of licenses. An individual may transfer a license to an immediate family member, as defined in s. 97.605 (4) (a) 2., Stats., if the individual is transferring operation of the bed and breakfast establishment. A sole proprietorship that reorganizes as a business entity, as defined in s. 180.1100 (1g), Stats., or a business entity that reorganizes as a sole proprietorship or a different type of business entity may transfer a license to the newly formed business entity or sole proprietorship if the bed and breakfast establishment remains at the location for which the license was issued and at least one individual who had an ownership interest in the sole proprietorship or business entity to which the license was issued has an ownership interest in the newly formed sole proprietorship or business entity. Except as provided in this subsection, no license issued under this chapter is transferable from one premise to another or from one person or entity to another.

ATCP 73.04 Note Note: Under s. 97.605 (4) (a) 2., Stats., “Immediate family member" means a spouse, grandparent, parent, sibling, child, stepchild, or grandchild or the spouse of a grandparent, parent, sibling, child, stepchild, or grandchild. Under ss. 97.605 (4) (a) 1. and 180.1100 (1g), Stats., a “business entity" means: a corporation, as defined in s. 180.0103 (5), Stats., a limited liability company, as defined in s. 183.0102 (10), Stats., a limited partnership, or a corporation, as defined in s. 181.0103 (5), Stats., a foreign limited liability company, as defined in s. 183.0102 (8), Stats., a foreign limited partnership, a foreign corporation, as defined in s. 180.0103 (9), Stats., or a foreign corporation, as defined in s. 181.0103 (13), Stats.

ATCP 73.04(4) (4) License application.

ATCP 73.04(4)(a) (a) Initial license. Application for an initial or new license shall be made on an application form furnished by the department or its agent and shall be accompanied by all of the following:

ATCP 73.04(4)(a)1. 1. The applicable fees specified under s. ATCP 73.05 and any fees previously due to the department or its agent.

ATCP 73.04(4)(a)2. 2. Documentation that the department of safety and professional services has approved plans and specifications for the bed and breakfast, if required.

ATCP 73.04(4)(a)3. 3. Information, as determined by the department or its agent, indicating that the bed and breakfast establishment will be maintained and operated in compliance with applicable federal and state laws and that rules have been implemented for the operation of the bed and breakfast establishment that will protect the health, safety, and welfare of the public.

ATCP 73.04 Note Note: To obtain a copy of the a bed and breakfast establishment operator license application form, or to determine which agent to contact for an application form, call (608) 224-4923 or send an e-mail to datcpdfslicensing@wi.gov.

ATCP 73.04(4)(b) (b) Renewal license. To renew the license of the bed and breakfast establishment, the operator shall pay the department, the applicable establishment license fee specified under s. ATCP 73.05 before the license expires. If the payment to renew the license of a bed and breakfast establishment is not made to the department before the expiration date of the establishment license, the late fee specified under s. ATCP 73.05 shall be paid in addition to the license fee.

ATCP 73.04 Note Note: Local health departments that are agents for the department have authority under s. 97.615 (2) (d), Stats., to establish and collect fees for license issued by the local health department. If your establishment was licensed by a local health department, contact the local health department for its license fee schedule.

ATCP 73.04(5) (5) Department action on license application.

ATCP 73.04(5)(a)(a) The department or its agent shall issue or deny a license within 30 days after receiving a complete application, all applicable fees, and the other information required under sub. (4).

ATCP 73.04(5)(b) (b) Except as provided in s. 93.135, Stats., the initial issuance, renewal, or continued validity of a license issued under this subsection may be conditioned upon the requirement that the license holder correct a violation of this chapter, ss. 97.603 to 97.65, Stats., or ordinances adopted under s. 97.615 (2) (g), Stats., within a period of time specified. If the condition is not met within the specified time or after an extension of time as approved by the department, the license is void. No person may operate a bed and breakfast establishment after a license has been voided under this paragraph, and any person who does so shall be subject to the penalties under ss. 97.72 and 97.73, Stats. An owner whose license is voided under this paragraph may appeal the decision under s. ATCP 73.08.

ATCP 73.04(5)(c) (c) The department or its agent may refuse to issue or renew a license to operate a bed and breakfast establishment under any of the following circumstances:

ATCP 73.04(5)(c)1. 1. The department or its agent has not conducted a preinspection of the bed and breakfast establishment for which an initial or new license is required under sub. (1).

ATCP 73.04(5)(c)2. 2. The owner of a bed and breakfast establishment has not corrected a condition for which the department or agent has issued a written health or safety–related order.

ATCP 73.04(5)(c)3. 3. All applicable fees under s. ATCP 73.05 have not been paid, including the license fee, preinspection fee, reinspection fee, or other applicable fees.

ATCP 73.04(5)(c)4. 4. The owner has modified, repaired or maintained the bed and breakfast establishment in a manner that is not in accordance with what the department recognizes as safe practice as outlined in this chapter.

ATCP 73.04(5)(c)5. 5. The owner, applicant, or license holder has failed to provide the department or its agent with information required under sub. (4).

ATCP 73.04(5)(c)6. 6. The owner or applicant has violated ch. 97, Stats., this chapter, or any order, ordinance, or regulation created by a village, city, county, or local board of health having jurisdiction, provided such violation is related to the operation of the bed and breakfast establishment.

ATCP 73.04(5)(d) (d) If the department or its agent denies an application for a license, the applicant shall be given reasons, in writing, for the denial and information regarding appeal rights under s. ATCP 73.08.

ATCP 73.04(6) (6) Voided license for failure to pay fees. If an applicant or owner fails to pay all applicable fees, late fees and processing charges under s. ATCP 73.05 within 15 days after the applicant or owner receives notice of an insufficiency under s. ATCP 73.05, or within 45 days after the expiration of the license, whichever occurs first, the license is void. An owner whose license is voided under this subsection may appeal the decision under s. ATCP 73.08. In an appeal concerning a voided license under this subsection, the burden is on the license applicant or owner to show that the entire applicable fees, late fees and processing charges have been paid. During any appeal process concerning a payment dispute, operation of the bed and breakfast establishment is deemed to be operation without a license and is subject to the fees under s. ATCP 73.05 (2) in addition to the fees otherwise due, unless the applicant or owner meets its burden of proof under this subsection.

ATCP 73.04(7) (7) License posting. A current license issued by the department shall be posted in a place visible to the public. A license may not be altered or defaced.

ATCP 73.04 History History: Cr. Register, June, 1985, No. 354, eff. 7-1-85; emerg. am. (1), cr. (1m), eff. 7-1-94; am. (1), cr. (1m), Register, January, 1995, No. 469; emerg. am. (1m), eff. 7-1-96; am. (1m), Register, January, 1997, No. 493, eff. 2-1-97; am. (1m), cr. (1m) (e), Register, August, 1998, No. 512, eff. 9-1-98; CR 01-016: am. (1m) (a) and (d) and r. (1m) (e) Register May 2002 No. 557, eff. 6-1-02; CR 08-073: renum. from HFS 197.04, r. and recr. Register January 2009 No. 637, eff. 2-1-09; correction in (4) (a) 2. made under s. 13.92 (4) (b) 6., Stats., Register January 2012 No. 673; renum. from DHS 197.04 Register June 2016 No. 726; correction in (1) (a), (3), (4) (a) 1., (b), (5) (b), (c) 3., 6., (d), (6) made under s. 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; CR 18-019: am. (title), (1) to (3), (4) (title), (a) (intro.), (b), (5) (title), (a), (b), (c) (intro.), 1., 3., 5., (d), (6), (7) Register January 2020 No. 769, eff. 2-1-20; correction in (4) (b) made under s. 35.17, Stats., Register January 2020 No. 767; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register February 2023 No. 806.

ATCP 73.05 ATCP 73.05 Department fees.

ATCP 73.05(1)(1) Fee schedules. The fees listed in Table ATCP 73.05 A shall apply to licenses issued from April 1, 2009 through March 31, 2011. The fees listed in Table ATCP 73.05 B shall apply to licenses issued on or after April 1, 2011.

ATCP 73.05 Note Note: Local health departments that are agents for the department have authority under s. 97.615 (2) (d), Stats., to establish and collect fees for licenses issued by the local health department. If your establishment was licensed by a local health department, contact the local health department for its license fee schedule.

ATCP 73.05(2) (2) Types of fees.

ATCP 73.05(2)(a) (a) Preinspection fee. The owner of a bed and breakfast establishment shall, pursuant to sub. (1), pay the applicable preinspection fee listed in Table ATCP 73.05 A or B to the department before an initial or new license is issued under s. ATCP 73.04.

ATCP 73.05(2)(b) (b) License fee. The owner of a bed and breakfast establishment shall, pursuant to sub. (1), pay the applicable license fee listed in Table ATCP 73.05 A or B to the department for each bed and breakfast establishment that the operator applies for a license to operate under s. ATCP 73.04 (1) or (2).

ATCP 73.05(2)(c) (c) Late fee. If the license fee for a license renewal is not paid before the expiration date of the license, the owner of the bed and breakfast establishment shall pay to the department a late fee of $85.00 in addition to the renewal license fee.

ATCP 73.05(2)(d) (d) Reinspection fee. If the department conducts a reinspection of a bed and breakfast establishment under s. ATCP 73.06 (1) (b) 1. and 2., the owner shall, pursuant to s. sub. (1), pay to the department the applicable reinspection fee listed in Table ATCP 73.05 A or B. The department shall assess an additional fee as specified in Table ATCP 73.05 A or B, whichever is applicable, for any additional reinspection conducted under s. ATCP 73.06 (1) (b) 4.

ATCP 73.05(2)(e) (e) Fees for operating without a license. Any bed and breakfast establishment found to be operating without a license shall pay to the department an amount of $749.00, in addition to all applicable fees and any processing charges under s. ATCP 73.04 (6).

ATCP 73.05 Note Note: Anyone operating a bed and breakfast establishment without a license is also subject to a fine of not less than $100 nor more than $1,000 under s. 97.72, Stats.

ATCP 73.05(2)(f) (f) Duplicate license. The department shall charge the operator of a bed and breakfast establishment $15 for a duplicate license.

ATCP 73.05(2)(g) (g) Fees for special condition inspections. For inspection or consultation activities that are not directly related to the department's licensing responsibilities, the departments shall charge the operator or the entity requesting the inspection or consultation $175.00.

ATCP 73.05(3) (3) Method of payment. If the payment for an initial or renewal license is by check or other draft drawn upon an account containing insufficient funds, the applicant or owner shall, within 15 days after receipt of notice from the department of the insufficiency, pay all applicable fees under sub. (1) and the financial institution's processing charges by cashier's check or other certified draft, money order, or cash. - See PDF for table

- See PDF for table

ATCP 73.05 History History: CR 08-073: cr. Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.05 Register June 2016 No. 726; correction in (1), (2) (a), (b), (d), (e) Tables A, B made under s. 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; CR 18-019: am. (1), (2) (a) to (c), (e) to (g), (3) Register January 2020 No. 769, eff. 2-1-20; corrections in Table ATCP 73.05 A, B made under s. 35.17, Stats., Register January 2020 No. 769.

ATCP 73.06 ATCP 73.06 Enforcement.

ATCP 73.06(1)(1) Inspections and access to the premises.