94.64(11) (11) Enforcement.

94.64(11)(a) (a) Stop sale orders. The department may issue and enforce a written or printed stop sale order to the owner or custodian of any lot or container of fertilizer distributed in violation of this section or of rules promulgated under this section. The order shall prohibit the sale or removal of the fertilizer, except as authorized by the department, until it has been brought into compliance with the law or until a plan for disposition is agreed upon with the department in writing. The stop sale order shall have the effect of a special order under s. 93.18 and shall be subject to judicial review if, within 10 days after service of the order, a request for a hearing is made to the department.

94.64(11)(b) (b) Temporary holding orders. A temporary holding order may be issued whenever the department has reason to believe any lot or container of fertilizer may not be in compliance with the law pending further evaluation or laboratory examination and analysis. A temporary holding order shall be effective for no more than 15 days but may be extended for an additional 15-day period as may reasonably be necessary to complete sampling, analysis and evaluation of the fertilizer and its labeling. The fertilizer shall be released prior to the expiration of such temporary period if found to be in compliance with the law. If found to be in violation of the law, the temporary holding order shall be extended by notice, in writing, to the owner or custodian and a stop sale order issued prohibiting the further movement or disposition of the fertilizer without consent of the department, subject to the right of hearing before the department if requested within 10 days after service of such notice and stop sale order.

94.64(11)(c) (c) Seizure, condemnation and sale. Fertilizer not in compliance with this section shall be subject to seizure on complaint of the department to a court having jurisdiction. If the court finds that the fertilizer is in violation of this section and orders the seizure thereof, it shall be disposed of as the court directs. Disposition shall not be ordered by the court without first granting the owner or custodian, at his or her request, reasonable opportunity to reprocess or relabel the fertilizer under supervision of the department to bring it into compliance with this section.

94.64(11)(d) (d) Injunction. Upon petition of the department any court having equity jurisdiction may grant a temporary or permanent injunction restraining any person from violating or continuing to violate this section or any rules thereunder notwithstanding the existence of other remedies at law.

94.64(12) (12) Penalties.

94.64(12)(a) (a) Any person who violates this section or any rule issued thereunder shall forfeit $50 for the first violation and not less than $200 nor more than $500 for any subsequent violation. Any willful violation shall constitute a misdemeanor and any person convicted thereof shall be fined not less than $250 nor more than $5,000 or imprisoned in the county jail not more than one year or both.

94.64(12)(b) (b) It is the duty of each district attorney to whom any violation is reported to cause appropriate actions or proceedings to be instituted for the collection of forfeitures or enforcement of other remedies. In any enforcement action the court may, in addition to other penalties provided in this subsection, order restitution to any party injured by the purchase of fertilizer sold in violation of the law. If the violator is convicted of a crime, restitution shall be in accordance with s. 973.20.

94.64 History History: 1977 c. 418; 1981 c. 57; 1983 a. 189 ss. 121, 329 (20); 1983 a. 410; 1985 a. 147; 1987 a. 398; 1989 a. 31; 1991 a. 39, 112; 1993 a. 16, 417, 492; 1995 a. 4, 176, 227; 1997 a. 27; 1999 a. 9, 32; 2003 a. 33; 2005 a. 25; 2007 a. 20; 2011 a. 32; 2013 a. 20; 2017 a. 59; 2017 a. 365 s. 111.

94.64 Cross-reference Cross-reference: See also ch. ATCP 40, Wis. adm. code.

94.64 Annotation A local government is not preempted by s. 94.701 (3) (a) from regulating the phosphorous content in weed and feed products. A weed and feed product is both a pesticide, which under s. 94.701 (3) (a), only the state can regulate, and a fertilizer, which local government can regulate. The definition of both “pesticide” and “fertilizer” as including a mixture of the two preserves both state regulation of pesticides and local regulation of fertilizers. The state regulates the pesticide components of the mixed products, local government the fertilizer components. Croplife America. Inc. v. City of Madison, 432 F.3d 732 (2005).

94.643 94.643 Restrictions on the use and sale of fertilizer containing phosphorus.

94.643(1) (1) Definitions. In this section:

94.643(1)(a) (a) “Fertilizer” has the meaning given in s. 94.64 (1) (e), except that “fertilizer” does not include manipulated animal or vegetable manure or finished sewage sludge product.

94.643(1)(ag) (ag) “Finished sewage sludge product” has the meaning given in s. 94.64 (1) (fm).

94.643(1)(ar) (ar) “Manipulated” means ground; pelletized; mechanically dried; packaged; supplemented with substances, including plant nutrients, that do not contain phosphorus; or otherwise treated in a manner designed to facilitate sale or distribution as a fertilizer or soil or plant additive.

94.643(1)(b) (b) “Turf” means land, including residential property, golf courses, and publicly owned land, that is planted in closely mowed, managed grass, except that “turf” does not include pasture, land used to grow grass for sod, or any other land used for agricultural production.

94.643(2) (2) Restrictions on use.

94.643(2)(a) (a) Except as provided in par. (b), no person may intentionally apply to turf fertilizer that is labeled as containing phosphorus or available phosphate.

94.643(2)(b) (b)

94.643(2)(b)1. 1. Paragraph (a) does not apply to a person who applies fertilizer in order to establish grass, using seed or sod, during the growing season in which the person began establishing the grass.

94.643(2)(b)2. 2. Paragraph (a) does not apply to a person who applies fertilizer to an area if the soil in the area is deficient in phosphorus, as shown by a soil test performed no more than 36 months before the application by a laboratory.

94.643(2)(c) (c) No person may apply fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to turf when the ground is frozen.

94.643(2)(d) (d) No person may intentionally apply turf fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to an impervious surface. A person who accidentally applies turf fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to an impervious surface shall immediately remove it.

94.643(3) (3) Restriction on sale. No person may sell at retail turf fertilizer that is labeled as containing phosphorus or available phosphate if the person knows that the purchaser intends to use the fertilizer for a purpose other than one of the following:

94.643(3)(a) (a) For establishing grass, using seed or sod, during the growing season in which the purchaser began establishing the grass.

94.643(3)(b) (b) For application to an area if the soil in the area is deficient in phosphorus, as shown by a soil test performed no more than 36 months before the application by a laboratory.

94.643(3)(c) (c) For application to pasture, land used to grow grass for sod, or any other land used for agricultural production.

94.643(4) (4) Restriction on display. No person who sells fertilizer at retail may display turf fertilizer that is labeled as containing phosphorus or available phosphate. A person who sells fertilizer at retail may post a sign advising customers that turf fertilizer containing phosphorus is available upon request for uses permitted by sub. (2) (b).