DATCP Docket No. 22-R-08 Preliminary Rule Draft November 19, 2024
THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal and recreate ATCP 72, relating to the regulation of hotels, motels, and tourist rooming houses.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) proposes an order to repeal and recreate Wis. Admin. Code ch. ATCP 72 Hotels, Motels, and Tourist Rooming Houses, formerly Wis. Admin. Code ch. DHS 195. Wis. Admin. Code ch. DHS 195 had not been significantly modified by the Wisconsin Department of Health Services since 1985. Chapter ATCP 72 has also not been significantly modified since the program was brought to the Department on July 1, 2016. This new rule, if adopted, will bring Wisconsin into substantial accord with the current industry technology, innovations, and tourism experiences. Statutes Interpreted
Statutes Interpreted: Sections 93.07(1) “Department of agriculture, trade and consumer protection;” 97.605 “Lodging and vending licenses;” 97.607 “Pre-licensing inspection;” 97.613 “Fees;” 97.615 “Agent status for local health departments;” 97.62 “Health and safety; standard;” 97.625 “Powers of the department and local health departments;” 97.638 “Hotel rates posted; rate charges; special rates;” 97.65 “Enforcement;” and 227.11 (2) (a) “Agency rule-making authority,” Stats. Statutory Authority
Statutory Authority: Sections 93.07 (1), 97.605, 97.607, 97.613, 97.615, 97.62, 97.625, 97.638, 97.65, and 227.11 (2) (a), Stats. Explanation of Statutory Authority
The department has broad general authority, pursuant to s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The department has specific authority for the requirements to issue lodging and vending licenses, pursuant to s. 97.605, Stats. The department and agent health department have specific authority to conduct pre-licensing inspections at lodging facilities, pursuant to s. 97.607, Stats. The department has specific authority to promulgate rules that establish fees, pursuant to s. 97.613, Stats. The department and agent health departments have specific authority to enter into a written agreement to inspect hotels and tourist rooming houses, pursuant to s. 97.615, Stats. The department has the authority to ensure that lodging facilities are operated and maintained with a strict regard to public health and safety, pursuant to 97.62, Stats. The department and agent health departments have the power to administer and enforce rules, pursuant to s. 97.625, Stats. The department may enforce the posting of hotel rates, pursuant to s. 97.638, Stats. The department has specific authority to enter any premises for which is a license is required, pursuant to s. 97.65, Stats. The department has specific authority for rule making, pursuant to s. 227.11 (2) (a), Stats. Related Statutes and Rules
The department has regulated hotels, motels, and tourist rooming houses since the transfer of several programs from the Wisconsin department of health services to the department on July 1, 2016. Lodging facilities are regulated, pursuant to ch. 97, Stats., as well as, interwoven with other Wisconsin department administrative rules. Wisconsin Admin. Code chs. NR 140, 149, 809, 812 rules relating to water supply and drinking water standards as enforced by the Wisconsin department of natural resources are referenced in Wis. Admin. Code ch. ATCP 72. References to the Wisconsin department of safety and professional services rules are present in Wis. Admin. Code ch. ATCP 72 for construction standards of buildings, plumbing, and private onsite wastewater treatment systems per ss. 101 and 145, Stats., and Wis. Admin. Code chs. SPS 300-399 as enforced by the Wisconsin department of safety and professional services. Provisions for the installation and maintenance of carbon monoxide and smoke alarms are closely modeled after ss. 101.145 and 101.149, Stats., to ensure basic life safety protection in public buildings and structures with fuel-burning appliances. Plain Language Analysis
The department and its agent health departments license approximately 12,500 hotels, motels, and tourist rooming houses throughout the state. According to the 2023 Wisconsin Department of Tourism Economics Report, the lodging industry generated an estimated $3.4 billion in direct business sales and $1.2 billion in labor income. The lodging options available to tourists has drastically expanded beyond the typical hotel or motel room and occasional lakeside cabin that was available 40 years ago. The advent of online home rental services has added to the lodging market with new and unique overnight accommodations options for visitors inspired to experience Wisconsin.
The department is proposing to modernize the antiquated Wis. Admin. Code ch. ATCP 72 with a repeal and recreation that will significantly overhaul the definitions section, modernize smoke alarm, and carbon monoxide alarm placement, address slip, trip, and fall hazards, update the licensing and fee structure, and enhance existing provisions to ensure a safe lodging experience and environment. Modernization also reflects gender inclusion considerations with the proposed revised language using the term “per person” in place of “male” or “female.” The proposed updates to Wis. Admin. Code ch. ATCP 72 contain an overhaul of definitions that includes amendments, modernization and expansion of terms used in the rule for clarification. Expansion of the definitions section includes over 80 newly defined terms. This expansion is beneficial because it creates clarity, efficiency, and an opportunity for both small business and authorized representatives conducting inspections to speak the same language used within the rule. The proposed fees and licensing structure for lodging establishments will address several critical issues. As the lodging industry evolves with new business models and technologies, the existing framework has become increasingly misaligned with current practices and economic realities. The current fees do not accurately reflect the costs of regulatory oversight needed to inspect the growing industry which can create inefficiencies and delays, impacting both regulators and businesses. The licensing structure will include three license types: tourist rooming house, hotel or motel, and specialty lodging. Each lodging type will then have multiple fee options based on the number of individually keyed units being offered for overnight sleeping accommodations. A single tourist rooming house, or vacation rental, will take more time to inspect than a single hotel room which is reflected in the associated fee. In addition, the draft rule addresses facilities that expand after receiving their initial lodging license. The rule will allow for these expanded areas to be inspected for compliance and allow for the costs to complete the work to be recouped. Lastly, the rule has introduced the specialty lodging option to adapt to more primitive lodging experiences offered in other parts of the country. Updating these elements is essential to ensure a fair and effective regulatory environment, promote industry growth, and improve the overall quality of lodging services.
The proposed rule will add an annual sampling frequency for bacteriological testing of private wells which is consistent with public water systems found at other lodging facilities. The annual testing of private wells for bacteria, such as total coliform and Escherichia coli, is also consistent with other recreational programs regulated by the department. In addition to bacteria, the proposed rule is also intending to include an annual sampling frequency for nitrate testing of private wells which is also consistent with public water systems at other lodging facilities. According to the Wisconsin department of health services, nitrate is one of the most common groundwater contaminants in Wisconsin and studies estimate that at least 10% of private wells in Wisconsin have high levels of nitrate. The Wisconsin department of health services also indicates high nitrates in drinking water can affect infants, pregnant individuals, and may increase the risk of thyroid disease and may increase the risk of colon cancer in all individuals.
The proposed regulation includes the current installation and maintenance requirements for carbon monoxide alarms as reflected in s. 101.149, Stats., and most recently updated in 2017 Wisconsin Act 330. The updated statute language replaced the prior requirements for carbon monoxide alarms in residential buildings with standards which are similar to those in International Building Codes. The installation focus changed to put an emphasis on sleeping areas. The proposed rule includes installation and maintenance requirements for smoke alarms consistent with s. 101.145, Stats. The areas of installation will include every floor, at the top of any stairway, outside of each sleeping area and within each sleeping room. The department and its agent health departments have routinely observed potential slip, trip, and fall hazards at lodging facilities during pre-licensing inspections. Most often these hazards are observed at tourist rooming houses and the structures oftentimes predate any building code requirements. The proposed language will address very basic, but essential, safeguards to address the commonly observed slip, trip, and fall hazards. Items such as handrails for staircases, guards on elevated decks, balconies, lofts or other elevated surfaces, and the addition of slip-resistant materials or bathmats in bathtubs or showers that have smooth basins would be addressed in the proposed language.
The rule has proposed language to address waterborne outbreaks and additional requirements for those outbreaks involving the bacteria Legionella spp. The department has been involved in 14 suspected outbreaks over the course of eight years at lodging facilities involving Legionella bacteria which has resulted in 33 illnesses and one death. According to the United States centers for disease control and prevention, Legionella bacteria cause Legionnaires’ disease and Pontiac fever which are spread to people through building water systems. Legionnaires’ disease is a severe type of pneumonia that can lead to lung failure and even death. If a lodging facility has a confirmed Legionella outbreak, then the operator will be required to develop a Legionella water management program to control and prevent future outbreaks. The United States centers for disease control and prevention has free online resources and a toolkit to assist operators in the development of a Legionella water management program.
The proposed rule text has incorporated similar language that is currently used in the Minnesota Lodging Code which may require a lodging operator to hire or consult with a licensed pest control operator in cases of an extensive infestation. The proposed rule still preserves current methods of allowing an operator to self-treat using non-restricted use pesticides for more manageable infestations.
The proposed language includes a new requirement for reporting death, injury, or food, waterborne or other communicable illnesses that requires an emergency medical service (EMS) response relating to the operation or maintenance of the lodging facility. For example, an EMS response for a guest that tripped and fell down the stairs would be reported to the department. However, an EMS response for a guest that suffers a heart attack would not be required to be reported. This data will assist in designing effective outreach and meaningful interventions and the data collected may help support future rule development. This data will be mutually beneficial to both small business and the department as they make continuous improvements in keeping guests safe and healthy.
The proposed language incorporates criticality methodology initially developed by the United States food and drug administration for their model food code to create a risk-based inspection system. This risk-based methodology seeks to identify those provisions that are more critical for protecting public health and to designate a risk level of hazards. Each code provision will be assigned as a core item, priority foundation item or priority item. Core items are typically designated for cleanliness or maintenance procedures. Priority foundation items, if left uncorrected over time, or in conjunction with other priority foundation items, may lead to illness or injury. Lastly, priority items, if uncorrected or are missing at the time of inspection, could significantly contribute to an increased risk for injury or illness; a nonfunctional or absent smoke alarm as an example. The criticality method provides clarity to industry by identifying those provisions which are more likely to cause illness or injury and supports a risk-based inspection approach. The criticality method has been adopted and is used in Wis. Admin. Code ch. ATCP 75, Wisconsin food code, Wis. Admin. Code ch. ATCP 76, Wisconsin pool code, and Wis. Admin. Code ch. ATCP 78 Wisconsin recreational education camp code. The above-mentioned rule adjustments are needed to address outdated regulatory practices, adapt to evolving industry standards, overall growth, and to ensure a continued fair and efficient oversight of the lodging industry. Current regulations do not fully reflect modern business models or accurately cover the costs for enforcement of the rule. The updated proposed rule will streamline processes, enhance compliance, and support industry growth by aligning regulations with current needs and practices.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
There are no existing or proposed federal regulations that address the sanitation and maintenance of operational activities at lodging facilities to be regulated by this proposed rule.
