ATCP 1.33(2)
(2) An administrative law judge may not find that an action, claim or defense is frivolous under sub.
(1) unless the administrative law judge finds at least one of the following:
ATCP 1.33(2)(a)
(a) The action, claim or defense was initiated or pursued in bad faith, solely for the purpose of harassing or maliciously injuring another.
ATCP 1.33(2)(b)
(b) The party or party's attorney knew or should have known that the action, claim or defense was without any reasonable basis in law or equity, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
ATCP 1.33(3)
(3) If an administrative law judge issues an order under sub.
(1) against a party other than a public agency, the administrative law judge may assess those costs against the party or the party's attorney, or may allocate the cost assessment between the party and the party's attorney.
ATCP 1.33 History
History: CR 09-054: cr.
Register December 2010 No. 660, eff. 1-1-11.
ATCP 1.34
ATCP 1.34
Judicial review; certifying record to court. If a party seeks judicial review of a contested case decision under s.
227.52, Stats., the department shall certify the record of the contested case proceeding to the reviewing court as provided in s.
227.55, Stats. The administrative law judge shall, on behalf of the department, certify the contested case record to the court.
ATCP 1.34 History
History: Cr.
Register, May, 1992, No. 437, eff. 6-1-92; am.
Register, June, 1999, No. 522, eff. 7-1-99;
CR 09-054: renum. from ATCP 1.33
Register December 2010 No. 660, eff. 1-1-11.
ATCP 1.40
ATCP 1.40
Purpose. This subchapter describes, as required by s.
227.04 (2m), Stats., the discretion the department may exercise in the enforcement of rules against small businesses.
ATCP 1.40 History
History: CR 06-028: cr.
Register November 2006 No. 611, eff. 12-1-06; correction made under s.
13.92 (4) (b) 7., Stats.,
Register June 2015 No. 714.
ATCP 1.41
ATCP 1.41
Definitions. In this subchapter:
ATCP 1.41(1)
(1) “Minor violation" means a violation of a department rule by a small business that is not a serious violation because the violation does not cause serious harm to the public and either the violation is not willful, the violation is not likely to be repeated, there is a history of compliance by the violator, or the small business has voluntarily disclosed the violation.
ATCP 1.41 History
History: CR 06-028: cr.
Register November 2006 No. 611, eff. 12-1-06;
CR 12-043: r. and recr.
Register May 2013 No. 689, eff. 6-1-13; correction in (2) made under s.
13.92 (4) (b) 7., Stats.,
Register June 2015 No. 714.
ATCP 1.42(1)(1)
The department may exercise leniency in the enforcement of rules against small businesses, as compared to other regulated businesses, if all of the following apply:
ATCP 1.42(1)(a)
(a) The department has statutory authority to exercise discretion.
ATCP 1.42(1)(b)
(b) The exercise of discretion, in favor of small businesses, is not prohibited by s.
227.04 (2m), Stats., or other applicable law.
ATCP 1.42 Note
Note: The department exercises enforcement discretion based on a wide variety of variable factors that may be relevant to each case.
ATCP 1.42(1)(c)
(c) The rule violation committed by the small business is a minor violation.
ATCP 1.42(2)
(2) The department may consider relevant factors in its exercise of discretion under sub.
(1), including any of the following that may be relevant:
ATCP 1.42(2)(b)
(b) The difficulty and cost of compliance for a small business, as compared to other businesses.
ATCP 1.42(2)(c)
(c) The financial capacity of a small business, as compared to other businesses.
ATCP 1.42(2)(d)
(d) The compliance options available, including options for achieving voluntary compliance.
ATCP 1.42(2)(j)
(j) Whether the small business has had a reasonable opportunity to understand and comply with the rules.
ATCP 1.42(2)(k)
(k) Fairness to the small business and other persons, including competitors and the public.
ATCP 1.42(3)
(3) An exercise of discretion under sub.
(1) may include a decision to forego formal sanctions, or to seek reduced sanctions for a small business as compared to other businesses.
ATCP 1.42 Note
Note: Fines and civil forfeitures are determined and imposed by courts, not by the department.
ATCP 1.42 History
History: CR 06-028: cr.
Register November 2006 No. 611, eff. 12-1-06;
CR 12-043: cr. (1) (c), r. (2) (a), (e) to (h), (L)
Register May 2013 No. 689, eff. 6-1-13; correction in (1) (b) made under s.
13.92 (4) (b) 7., Stats.,
Register June 2015 No. 714.
