Chapter ATCP 73

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 [phone] or send an e-mail to [e-mail].

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.

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.

ATCP 73.06(1)(a) (a) Inspections. Under ss. 97.615 (2) and 97.65 (1), Stats., an authorized employee or agent of the department, upon presenting proper identification, may enter any bed and breakfast establishment at any reasonable time, for any of the following purposes:

ATCP 73.06(1)(a)1. 1. To inspect the bed and breakfast establishment.

ATCP 73.06(1)(a)2. 2. To determine if there has been a violation of this chapter or ss. 97.603 to 97.65, Stats.

ATCP 73.06(1)(a)3. 3. To determine compliance with previously written violation orders.

ATCP 73.06(1)(a)4. 4. To secure samples or specimens.

ATCP 73.06(1)(a)5. 5. To examine and copy relevant documents and records provided such information is related to the operation of the bed and breakfast establishment.

ATCP 73.06(1)(a)6. 6. To obtain photographic or other evidence needed to enforce this chapter.

ATCP 73.06(1)(b) (b) Reinspections.

ATCP 73.06(1)(b)1. 1. The department or its agent may reinspect a bed and breakfast establishment whenever an inspection or the investigation of a complaint reveals the existence of a violation that is potentially hazardous to the health and welfare of patrons or employees of the bed and breakfast establishment.

ATCP 73.06(1)(b)2. 2. A reinspection shall be scheduled to allow the owner a reasonably sufficient time to correct the deficiencies.

ATCP 73.06(1)(b)3. 3. A reinspection fee shall be charged for the reinspection according to Table ATCP 73.05 A or B, or applicable charges as determined by an agent of the department.

ATCP 73.06(1)(b)4. 4. If an additional reinspection is required because a violation has not been corrected in the scheduled time, the department shall assess the owner an additional fee as specified in Table ATCP 73.05 A or B as authorized under s. ATCP 73.05 (2) (d), and the department may order the owner to show just cause why the license should not be suspended or revoked under s. ATCP 73.07.

ATCP 73.06(2) (2) General orders to correct violations.

ATCP 73.06(2)(a) (a) If upon inspection of a bed and breakfast establishment, the department or agent finds that the bed and breakfast establishment is not designed, constructed, equipped, or operated as required under this chapter, the department or agent shall issue a written order to correct the violation. The order shall specify the correction needed for compliance and the time period within which the correction should be made. The time period specified in the order may be extended at the discretion of the department or agent.

ATCP 73.06(2)(b) (b) If the order to correct violations is not carried out by the expiration of the time period stated in the order, or any extension of time granted for compliance, the department or agent may issue an order under s. ATCP 73.07 to suspend or revoke the license to operate the bed and breakfast establishment.

ATCP 73.06(2)(c) (c) Under s. 97.12 (5), Stats., any person who fails to comply with an order of the department shall forfeit $50 for each day of noncompliance after the order is served upon or directed to him or her. A person may appeal a forfeiture under s. ATCP 73.08.

ATCP 73.06(3) (3) Temporary orders.

ATCP 73.06(3)(a) (a) As provided in s. 97.65, Stats., whenever the department or agent has reasonable cause to believe that an immediate danger to health or safety exists as a result of an inspection under sub. (1), the department or agent may issue a temporary order without advance notice or hearing to do any of the following:

ATCP 73.06(3)(a)1. 1. Prohibit the continued operation or method of operation of specific equipment.

ATCP 73.06(3)(a)2. 2. Require the premises to cease operations and close until remedies are applied which eliminate the immediate danger to health or safety.

ATCP 73.06(3)(b) (b)

ATCP 73.06(3)(b)1. 1. A temporary order shall take effect upon delivery to the operator or responsible supervisor. Except as provided in par. (c), the temporary order shall remain in effect for 14 days from the date of delivery, but a temporary order may be reissued for one additional 14-day period if necessary to complete any analysis or examination of samples, specimens, or other evidence.

ATCP 73.06(3)(b)2. 2. No operation or method of operation prohibited by the temporary order may be resumed without the approval of the department or agent until the order has terminated or the time period specified in subd. 1. has expired, whichever occurs first. If, upon completed analysis or examination, the department or agent determines that construction, sanitary condition, operation, or method of operation of the premises or equipment does not constitute an immediate danger to health or safety, the department or agent shall immediately notify the owner, operator or responsible supervisor in writing and the temporary order shall terminate upon receipt of the written notice.

ATCP 73.06(3)(c) (c) If the analysis or examination shows that the construction, sanitary condition, operation or method of operation of the premises or equipment constitutes an immediate danger to health or safety, the department or agent, within the effective period of the temporary order specified in par. (b) 1., shall provide written notice of the findings to the owner, operator or responsible supervisor. Upon receipt of the notice, the temporary order remains in effect until a final decision is issued under s. ATCP 73.08. The notice shall include a statement that the facility has a right to request a hearing under s. ATCP 73.08 within 15 days after issuance of the notice.

ATCP 73.06(3)(d) (d) Any person who fails to comply with a temporary order issued by the department shall forfeit $10 for each day of noncompliance after the order is served upon or directed to him or her and, under s. 97.65 (5) (a), Stats., may be fined not more than $10,000 or imprisoned not more than one year in the county jail, or both. A person may appeal a forfeiture under s. ATCP 73.08.

ATCP 73.06 History History: CR 08-073: cr. Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.06 Register June 2016 No. 726; correction in (1) (a) (intro.), (b) 3., 4., (2) (b), (c), (3) (a) (intro.), (c), (d) made under s. 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; correction in (3) (b) 1. made under s. 35.17, Stats., Register June 2016 No. 726; CR 18-019: am. (1) (b) 4., (2) (b) Register January 2020 No. 769, eff. 2-1-20.

ATCP 73.07 ATCP 73.07 Suspension or revocation of license. The department may, after a hearing under s. ATCP 73.08, suspend or revoke a license for violation of ss. 97.603 to 97.65, Stats., this chapter or an order issued by the department. The suspension or revocation order shall take effect 15 days after the date of issuance unless a hearing is requested under s. ATCP 73.08 (1).

ATCP 73.07 History History: CR 08-073: cr. Register January 2009 No. 637, eff. 2-1-09; renum. from DHS 197.07 Register June 2016 No. 726; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; CR 18-019: am. Register January 2020 No. 769, eff. 2-1-20.

ATCP 73.08 ATCP 73.08 Appeals of actions by the department.

ATCP 73.08(1) (1) 

ATCP 73.08(1)(a) (a) Except as provided in sub. (2) or (3), a request for a hearing for denial of a license, a voided license, suspension, revocation, forfeiture, or an order given under s. ATCP 73.06 (1) (b) 4. or (2) shall be submitted in writing to the department of administration’s division of hearings and appeals within 15 days after receipt of the notice of the department’s action.

ATCP 73.08(1)(b) (b) A request for hearing that is mailed to the division of hearings and appeals shall be considered filed with the division on the date of the postmark.

ATCP 73.08(1)(c) (c) A request for hearing that is hand-delivered to the division of hearings and appeals shall be considered filed on the date the request is received by the division of hearings and appeals.

ATCP 73.08(1)(d) (d) A request for hearing transmitted by facsimile to the division of hearings and appeals shall be considered filed on the date and time imprinted by the division’s facsimile machine on the transaction report that accompanies the document. Documents received by facsimile after midnight local time shall be deemed filed on the first following business day.

ATCP 73.08 Note Note: Effective 7-1-16, pursuant to 2015 Wis. Act 55 and s. 227.43 (1m), Stats., a request for hearing shall be submitted to the DATCP Secretary via e-mail at [e-mail], faxed to [phone], mailed to PO Box 8911, Madison, Wisconsin 53708-8911, or hand delivered to 2811 Agriculture Drive, Madison, Wisconsin 53718.

ATCP 73.08(1)(e) (e) As a condition for requesting a hearing under this subsection to appeal the voiding of a license, an applicant or owner shall comply with sub. (3). In an appeal concerning voiding a license, the burden is on the applicant or owner to show that the entire applicable fees, late fees and processing charges have been paid.

ATCP 73.08(2) (2) A request for hearing on a temporary order given by the department under s. ATCP 73.06 (3) shall be made in writing to the department within 15 days of receipt of the order. The department shall hold a hearing within 15 days after the department receives the written request for hearing, unless the department and the owner agree to a later date, the immediate danger to health is removed, the order is not contested or the owner and the department mutually agree that no purpose would be served by a hearing. A final decision shall be issued under s. 227.47, Stats., within 10 days following the conclusion of the hearing. The decision may order any of the following to remove the danger to health:

ATCP 73.08(2)(a) (a) Changes to or replacement of equipment or construction.

ATCP 73.08(2)(b) (b) Changes in or cessations of any operation or method of operation of the equipment or premises.

ATCP 73.08 Note Note: A request for hearing, under sub. (2), shall be submitted to the DATCP Secretary via e-mail at [e-mail], faxed to [phone], mailed to PO Box 8911, Madison, Wisconsin 53708-8911, or hand delivered to 2811 Agriculture Drive, Madison, Wisconsin 53718. The hearing may be conducted by the department secretary or designee.