Chapter 101

101.01(12)(b) (b) An adult family home, as defined in s. 50.01 (1).

101.01(12)(c) (c) A home-based business, as defined by the department by rule.

101.01(12)(d) (d) A not-for-profit facility with the primary purpose of housing or rehabilitating abandoned, injured, or sick wildlife.

101.01(13) (13) “Safe” or “safety”, as applied to an employment or a place of employment or a public building, means such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants, or fire fighters, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.

101.01(14) (14) “Secretary” means the secretary of safety and professional services.

101.01(15) (15) “Welfare” includes comfort, decency and moral well-being.

101.01 History History: 1971 c. 185 ss. 1, 5; 1971 c. 228 ss. 15, 44; 1975 c. 413, 421; 1977 c. 29; 1983 a. 189 ss. 142, 143, 329 (4); 1985 a. 135 s. 83 (3); 1987 a. 161; 1993 a. 27, 184, 327; 1995 a. 27 ss. 3611 to 3629, 9116 (5); 1997 a. 237; 1999 a. 9; 2001 a. 16; 2007 a. 20; 2011 a. 32, 146; 2017 a. 59, 198; 2017 a. 331 s. 43.

101.01 Annotation In a safe place action by a plaintiff injured through contact with home power lines while installing aluminum trim on the premises, the power lines did not constitute a place of employment under sub. (2) (a) [now sub. (11)]. Although a “process or operation” was carried on by the transmission of electricity through the lines, no person was employed by the power company on the premises at the time of the injury. Barthel v. Wisconsin Electric Power Co., 69 Wis. 2d 446, 230 N.W.2d 863 (1975).

101.01 Annotation A vocational school was not a place of employment. Korenak v. Curative Workshop Adult Rehabilitation Center, 71 Wis. 2d 77, 237 N.W.2d 43 (1976).

101.01 Annotation The right to make progress inspections and to stop construction for noncompliance with specifications is not an exercise of control sufficient to make an architect an owner under sub. (2) (i) [now sub. (10)]. Luterbach v. Mochon, Schutte, Hackworthy, Juerisson, Inc., 84 Wis. 2d 1, 267 N.W.2d 13 (1978).

101.01 Annotation Distinguishing “safe employment” and “safe place of employment.” There is a duty to provide safe employment to employees that does not extend to frequenters, while the duty to provide a safe place of employment does extend to frequenters. Leitner v. Milwaukee County, 94 Wis. 2d 186, 287 N.W.2d 803 (1980).

101.01 Annotation An Elks Club was a “place of employment.” Schmorrow v. Sentry Insurance Co., 138 Wis. 2d 31, 405 N.W.2d 672 (Ct. App. 1987).

101.01 Annotation A person seeking directions to the location of an intended, but unknown, destination is a frequenter under sub. (2) (d) [now sub. (6)]. When such inquiry is not made, or has concluded, and the person deviates into an area the person is not explicitly or impliedly invited into, frequenter status is lost. Monsivais v. Winzenried, 179 Wis. 2d 758, 508 N.W.2d 620 (Ct. App. 1993).

101.01 Annotation The duty of an owner of a multiple-unit residential dwelling under the safe place statute extends only to common areas. Antwaun A. v. Heritage Mutual Insurance Co., 228 Wis. 2d 44, 596 N.W.2d 456 (1999), 97-0332.

101.01 Annotation “Tenants” under sub. (12) refers to the number of units available in the building, not to the number of individuals in the building. Raymaker v. American Family Mutual Insurance Co., 2006 WI App 117, 293 Wis. 2d 392, 718 N.W.2d 154, 05-1557.

101.02 101.02 Powers, duties and jurisdiction of department.

101.02(1) (1) 

101.02(1)(a) (a) In this subsection:

101.02(1)(a)1. 1. “Credential” has the meaning given in s. 440.01 (2) (a).

101.02(1)(a)2. 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).

101.02(1)(b) (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).

101.02(1)(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).

101.02(1m) (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.

101.02(1r) (1r) Notwithstanding sub. (1) (b), the department may not promulgate or enforce a rule establishing building codes that prohibit or otherwise limit the use of a refrigerant designated as acceptable for use pursuant to 42 USC 7671k, provided that any equipment containing the refrigerant is listed and installed in accordance with safety standards and use conditions imposed pursuant to the designation of the refrigerant as acceptable for use.

101.02(2) (2) The department may sue and be sued.

101.02(3) (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.

101.02(4) (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.

101.02(5) (5) 

101.02(5)(a) (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.

101.02(5)(b) (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.

101.02(5)(c) (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.

101.02(5)(d) (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.

101.02(5)(e) (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.

101.02(5)(f) (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.

101.02(6) (6) 

101.02(6)(a) (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.

101.02(6)(b) (b) All general orders shall take effect as provided in s. 227.22. Special orders shall take effect as therein directed.

101.02(6)(c) (c) The department shall, upon application of any employer or owner, grant such time as may be reasonably necessary for compliance with any order.

101.02(6)(d) (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.

101.02(6)(e) (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.

101.02(6)(f) (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.

101.02(6)(g) (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.

101.02(6)(h) (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.

101.02(6)(i) (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.

101.02(7) (7) 

101.02(7)(a) (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.

101.02(7)(b) (b) Any person affected by any local order in conflict with an order of the department, may in the manner provided in sub. (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 sub. (6) (e) to (i).

101.02(7)(c) (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.

101.02(7e) (7e) 

101.02(7e)(a) (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.

101.02(7e)(b) (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.

101.02(7m) (7m) Notwithstanding sub. (7) (a), no county, city, village, or town may enact or enforce an ordinance establishing building codes that prohibit or otherwise limit the use of a refrigerant designated as acceptable for use pursuant to 42 USC 7671k, provided that any equipment containing the refrigerant is listed and installed in accordance with safety standards and use conditions imposed pursuant to the designation of the refrigerant as acceptable for use.

101.02(7r) (7r) 

101.02(7r)(a) (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).

101.02(7r)(b) (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:

101.02(7r)(b)1. 1. The ordinance was enacted before May 1, 2013.

101.02(7r)(b)2. 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).

101.02(7r)(b)3. 3. The ordinance relates to fire detection, prevention, or suppression components of buildings.

101.02(7r)(b)4. 4. The building is not a multifamily dwelling.

101.02(7r)(b)5. 5. The ordinance is submitted to the department within 60 days after April 18, 2014.

101.02(7r)(b)6. 6. The department determines that the ordinance requires standards that are at least as strict as the rules promulgated by the department.

101.02(7r)(c) (c) A county, city, village, or town may amend an ordinance that is enforceable under par. (b) if all of the following apply:

101.02(7r)(c)1. 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.

101.02(7r)(c)2. 2. The amendment will not change the specific subject matter regulated by the ordinance.

101.02(7r)(c)3. 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.

101.02(7r)(c)4. 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.

101.02(7r)(d) (d)

101.02(7r)(d)1. 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.

101.02(7r)(d)2. 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.

101.02(7r)(e) (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).

101.02(7r)(f) (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).

101.02(7r)(g) (g)

101.02(7r)(g)1. 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.

101.02(7r)(g)2. 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.

101.02(7w) (7w) 

101.02(7w)(a) (a) In this subsection, “aesthetic considerations” means considerations relating to color and texture and design considerations that do not relate to health or safety.

101.02(7w)(b) (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.

101.02(7y) (7y) 

101.02(7y)(a) (a) In this subsection, “quarry” has the meaning given in s. 66.0441 (2) (g).

101.02(7y)(b) (b) Notwithstanding sub. (7) (a), and except as provided in this subsection and s. 66.0441 (3) (d), a city, village, town, or county may not make or enforce a local order that limits blasting at a quarry.

101.02(7y)(c) (c) A city, village, town, or county may petition the department for an order granting the city, village, town, or county the authority to impose additional restrictions and requirements related to blasting on the operator of a quarry. If a city, village, town, or county submits a petition under this paragraph because of concerns regarding the potential impact of blasting on a qualified historic building, as defined in s. 101.121 (2) (c), the department may require the operator of the quarry to pay the costs of an impact study related to the qualified historic building.

101.02(7y)(d) (d) If the department issues an order under this subsection, the order may grant the city, village, town, or county the authority to impose restrictions and requirements related to blasting at the quarry that are more restrictive than the requirements under s. 101.15 related to blasting and rules promulgated by the department under s. 101.15 (2) (e) related to blasting.

101.02(7y)(e) (e) The department may not charge a fee to a city, village, town, or county in connection with a petition submitted under par. (c).

101.02(8) (8) 

101.02(8)(a) (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 sub. (6) (e) to (i), and in the petition therefor shall have raised every issue raised in such action.

101.02(8)(b) (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.

101.02(9) (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.

101.02(10) (10) Orders of the department under this subchapter shall be subject to review in the manner provided in ch. 227.

101.02(11) (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.