943.212 Fraud on hotel or restaurant keeper, recreational attraction, taxicab operator, or gas station; civil liability.

(1) Any person who incurs injury to his or her business or property as a result of a violation of s. 943.21 may bring a civil action against any adult or emancipated minor who caused the loss for all of the following:

(a) The retail value of the beverage, food, lodging, accommodation, ticket or other means of admission, gasoline or diesel fuel, transportation, or service involved in the violation. A person may recover under this paragraph only if he or she exercises due diligence in demanding payment for the beverage, food, lodging, accommodation, ticket or other means of admission, gasoline or diesel fuel, transportation, or service.

(b) Any property damages not covered under par. (a).

(2) In addition to sub. (1), if the person who incurs the injury prevails, the judgment in the action may grant any of the following:

(a) Exemplary damages of not more than 3 times the amount under sub. (1) (a) and (b). No additional proof is required for an award of exemplary damages under this paragraph. Exemplary damages may not be granted for conduct that was the subject of a judgment for violation of s. 943.21 or an ordinance adopted in conformity with that section.

(b)

1. Notwithstanding the limitations of s. 814.04, reasonable attorney fees for actions commenced under ch. 801.

2. Attorney fees under s. 799.25 for actions commenced under ch. 799.

(3) Notwithstanding sub. (2), the total amount awarded for exemplary damages and attorney fees may not exceed $300.

(4)

(a) At least 20 days prior to commencing an action, as specified in s. 801.02, under this section, the plaintiff shall notify the defendant, by mail, of his or her intent to bring the action and of the acts constituting the basis for the violation of s. 943.21. The plaintiff shall send the notice by regular mail supported by an affidavit of service of mailing or by a certificate of mailing obtained from the U.S. post office from which the mailing was made. The plaintiff shall mail the notice to the defendant's last-known address or to the address provided on the check or order. If the defendant pays the amount due for the beverage, food, lodging, accommodation, ticket or other means of admission, transportation, or service prior to the commencement of the action, he or she is not liable under this section.

(b) This subsection does not apply to an action based on acts that constitute a violation of s. 943.21 (1m) (d).

(5) The plaintiff has the burden of proving by a preponderance of the evidence that a violation occurred under s. 943.21. A conviction under s. 943.21 is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this section.

(6) A person is not criminally liable under s. 943.30 for any civil action brought in good faith under this section.

(7) Nothing in this section precludes a plaintiff from bringing the action under ch. 799 if the amount claimed is within the jurisdictional limits of s. 799.01 (1) (d).

History: 1991 a. 65; 1995 a. 160; 2003 a. 80, 252, 327; 2005 a. 253.