ATCP 1.42 Exercise of discretion.
Ch. ATCP 1 Note
Note: Chapter Ag 1 as it existed on May 31, 1992 was repealed and new ch. Ag 1 was created effective June 1, 1992; Chapter Ag 1 was renumbered ch. ATCP 1 under s. 13.93 (2m) (b) 1., Stats.,
Register, April, 1993, No. 448.
ATCP 1.01
ATCP 1.01
Definitions. In this chapter:
ATCP 1.01(1)
(1) “Administrative law judge" means the secretary or an examiner whom the secretary appoints in writing, under s.
227.46 (1), Stats., to preside over a contested case. The secretary may appoint an examiner from the department, the department of administration, or another state agency with the agreement of that agency.
ATCP 1.01(2)
(2) “Claim filing order" means an order directing producers or depositors to file claims under subch.
VII of ch. 126, Stats.
ATCP 1.01(5)
(5) “Class 1 contested case," “class 2 contested case" or “class 3 contested case," means a class 1, class 2 or class 3 proceeding, respectively, as defined in s.
227.01 (3), Stats.
ATCP 1.01(6)
(6) “Complainant" means any of the following persons or entities that file a complaint with the secretary under this chapter:
ATCP 1.01(7)
(7) “Complaint" means a written complaint, filed with the secretary under s.
ATCP 1.05, asking the department to issue a special order against a person or persons identified in the complaint.
ATCP 1.01(9)
(9) “Department" means the state of Wisconsin department of agriculture, trade and consumer protection.
ATCP 1.01(10)
(10) “Division" means a principal subunit of the department which is headed by a division administrator. “Division" includes authorized division staff.
ATCP 1.01(11)
(11) “Division administrator" means a division head whose position is authorized under s.
230.08 (2) (e) 2., Stats. “Division administrator" includes an acting division administrator appointed by the secretary, or a person designated by a division administrator to act on the administrator's behalf in the administrator's absence.
ATCP 1.01(12)
(12) “File" means deliver in writing to any of the following:
ATCP 1.01(12)(b)
(b) The final decisionmaker, if the filing pertains to a matter which is pending before the final decisionmaker.
ATCP 1.01(12)(c)
(c) The administrative law judge, if the filing pertains to a matter which is pending before the administrative law judge.
ATCP 1.01(12)(d)
(d) A recipient designated by the department to receive filed documents.
ATCP 1.01 Note
Note: Documents intended for filing with the secretary's office may be sent to the following address:
ATCP 1.01 Note
Secretary
Wisconsin Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
P.O. Box 8911
Madison, WI 53708-8911
ATCP 1.01(13)
(13) “Final decisionmaker" means the secretary, or a person whom the secretary appoints, in writing, to issue a final decision in a contested case. “Final decisionmaker" may include an administrative law judge whom the secretary appoints as final decisionmaker.
ATCP 1.01(14)
(14) “Hearing" means a contested case hearing under ch.
227, Stats., except as otherwise provided in this chapter.
ATCP 1.01(15)
(15) “Intervenor" means an interested or affected person who files a request to be admitted, and who is admitted as a party in a contested case. “Intervenor" does not include a complainant, respondent, petitioner or claimant.
ATCP 1.01(17)
(17) “Order determining claims" means an order allowing or disallowing producer or depositor claims in a recovery proceeding.
ATCP 1.01(18)
(18) “Party" means any of the following persons or entities, unless that person or entity is dismissed as a party:
ATCP 1.01(18)(c)
(c) A respondent who has been served with a complaint or notice from the department identifying him or her as a respondent.
ATCP 1.01(19)
(19) “Person" includes a natural person, corporation, partnership, association, trust, division of the department, or other government or business entity.
ATCP 1.01(20)
(20) “Petitioner" means a person who files a request for a hearing or declaratory ruling under this chapter.
ATCP 1.01(21)
(21) “Proceeding" means a contested case proceeding before the department under ch.
227, Stats.
ATCP 1.01(22)
(22) “Recovery proceeding" means a proceeding initiated by the department under subch.
VII of ch. 126, Stats., to determine the amount of allowable producer or depositor claims against a vegetable contractor, milk contractor, grain warehouse keeper or grain dealer.
ATCP 1.01(23)
(23) “Representative" means an attorney or other person authorized by a party to represent that party in a contested case.
ATCP 1.01(24)(b)
(b) A person, other than a complainant, petitioner, claimant or intervenor, who is named as a party to a proceeding.
ATCP 1.01(25)
(25) “Secretary" means the secretary of the department.“Secretary" includes both of the following:
ATCP 1.01(25)(b)
(b) A department official whom the secretary has specifically authorized to act on the secretary's behalf.
ATCP 1.01(26)
(26) “Special order" means an enforceable or purportedly enforceable administrative order that the department issues against a named or identified person under chs.
88 to
100, Stats., or ch.
126, Stats.,or other laws administered by the department. “Special order" includes special orders identified under s.
ATCP 1.03 (1) (a). “Special order" does not include any of the actions listed under s.
ATCP 1.03 (1) (b).
ATCP 1.01(27)
(27) “Subpoena" means a command to give testimony or provide evidence.
ATCP 1.01(28)
(28) “Summary special order" means a special order which the department issues without prior notice to the order recipient, or without a prior opportunity for the order recipient to appear or contest the order.
ATCP 1.01(29)
(29) “Trade and consumer protection division" means the trade and consumer protection division of the department.
ATCP 1.01 History
History: Cr.
Register, May, 1992, No. 437, eff. 6-1-92; renum. (1) to (10) to be (2) to (11) and renum. (11) to be (1) and am., am. (12) (c) and (13),
Register, June, 1999, No. 522, eff. 7-1-99;
CR 02-113: am. (26)
Register April 2003 No. 568, eff. 5-1-03; corrections in (2), (3), (4) and (14) made under s. 13.93 (2m) b. 7., Stats.,
Register April 2003 No. 568;
CR 09-054: am. (1) to (4), r. (14), renum. (15) to (22) to be (14) to (21) and am. (17), cr. (22)
Register December 2010 No. 660, eff. 1-1-11.
ATCP 1.03(1)(a)1.
1. An order suspending, revoking or imposing conditions on a license.
ATCP 1.03(1)(a)2.
2. An administrative injunction, including any order issued under s.
88.11 (7),
94.645 (4),
94.71 (3) (c),
97.12 (3) (a),
100.19 (3),
100.20 (3),
100.201 (9) (b),
100.21 (4),
100.22 (4) (a),
100.30 (5) (a) or
126.85, Stats.
ATCP 1.03(1)(a)5.
5. A temporary holding order or stop sale order, including any order issued under s.
94.10 (2) (b),
94.46,
94.64 (11),
94.65 (10),
94.71 (2),
94.72 (13),
95.72 (4) (d),
97.12 (2),
97.42 (9) (b) 1. or
100.37 (5), Stats.
ATCP 1.03(1)(a)6.
6. An order for the quarantine, control, destruction or disposal of plants, plant pests or animals, including any order issued under s.
94.01,
94.02,
94.10 (2) (b),
94.76 (1),
95.20,
95.23 or
95.31, Stats.
ATCP 1.03(1)(a)11.
11. Animal health import requirements that the state veterinarian imposes on an import permit holder under s.
ATCP 10.07 (1) (b), unless the department has adopted those import requirements by rule.
ATCP 1.03(1)(b)4.
4. A division's nonrenewal of a license if the license holder fails to file a required renewal application or pay a required fee.
ATCP 1.03(1)(b)5.
5. A subpoena or discovery demand issued in a contested case proceeding by a party or the party's representative.
ATCP 1.03(1)(b)6.
6. An order issued by an administrative law judge or final decisionmaker in a contested case, other than an order identified under par.
(a).
ATCP 1.03(2)
(2)
Who may issue a special order. The secretary or final decisionmaker may issue a special order on behalf of the department. Except for any order described in sub.
(1) (a) 4., the secretary, in writing, may designate any division administrator, or other employee in a specified position in the department, to issue any order described in sub.
(1) (a).
ATCP 1.03(3)(a)
(a) If the department issues a summary special order against any person, that person may do any or all of the following:
ATCP 1.03(3)(a)2.
2. Request an informal hearing on the summary special order. A request for informal hearing may be made to the secretary or, if the summary special order is issued by a division, to the issuing division. The request shall be in writing. The request shall briefly identify the summary special order on which an informal hearing is requested, how the order causes or threatens substantial harm to the requester, the material facts or legal issues in dispute, and the relief requested.
ATCP 1.03(3)(b)
(b) If it is not clear whether a requester under par.
(a) is requesting a contested case hearing or an informal hearing or both, the department may require the requester to specify the type of hearing requested. A request for an informal hearing does not preclude a subsequent request for a contested case hearing.
ATCP 1.03(3)(c)
(c) The department shall hold a prompt informal hearing in response to a request under par.
(a) 2. An informal hearing is not subject to contested case hearing procedures under this chapter or ch.
227, Stats. The department shall hold the informal hearing as soon as reasonably possible, but not more than 20 days after the department receives the hearing request, unless the requester agrees to a later date. The department may hold the informal hearing in person or by telephone.
ATCP 1.03(3)(d)
(d) An informal hearing under par.
(c) shall be conducted by an individual who was not involved in the investigation of the case, or in the decision to issue the summary special order. The individual conducting the informal hearing may not act as administrative law judge in any contested case hearing conducted on the same summary special order.
ATCP 1.03(3)(e)
(e) A person conducting an informal hearing under par.
(c) may stay or modify the summary special order or, if the order was issued by the secretary or division administrator, recommend a stay or modification to the secretary or division administrator.
ATCP 1.03(3)(f)
(f) A request for hearing under par.
(a) does not automatically stay or modify a summary special order.
ATCP 1.03(4)
(4)
Special order against out-of-state person. Unless limited by statute, the department's jurisdiction to issue a special order against an out-of-state person is commensurate with the jurisdiction of a court under s.
801.05, Stats.
