Chapter DHS 19

Chapter DHS 19

DISCRETIONARY ENFORCEMENT OF RULES AND
GUIDELINES AGAINST SMALL BUSINESSES

DHS 19.01   Authority and purpose.

DHS 19.02   Applicability.

DHS 19.03   Definitions.

DHS 19.04   Use of discretion in enforcement.

DHS 19.05   Limitations on the use of discretion.

DHS 19.01 DHS 19.01 Authority and purpose. This chapter is promulgated under the authority of s. 227.04 (2m), Stats., to describe the discretion the department may exercise in enforcement actions against small businesses regulated by the department.

DHS 19.01 History History: CR 10-003: cr. Register May 2010 No. 653, eff. 6-1-10; correction in (intro.) made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715.

DHS 19.02 DHS 19.02 Applicability. This chapter applies to the department and small businesses regulated by the department.

DHS 19.02 History History: CR 10-003: cr. Register May 2010 No. 653, eff. 6-1-10.

DHS 19.03 DHS 19.03 Definitions. In this chapter:

DHS 19.03(1) (1) “Department” means the department of health services.

DHS 19.03(2) (2) “Small business” has the meaning given in s. 227.04 (1) (b), Stats.

DHS 19.03 History History: CR 10-003: cr. Register May 2010 No. 653, eff. 6-1-10; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715.

DHS 19.04 DHS 19.04 Use of discretion in enforcement.

DHS 19.04(1) (1) The department may waive or reduce a penalty otherwise applicable to a small business that voluntarily discloses an actual or potential violation of a department rule or guideline and requests a waiver or reduction as a small business, if the department is not prohibited under s. DHS 19.05 from reducing or waiving the penalty.

DHS 19.04(2) (2) In exercising discretion under sub. (1), the department will follow the applicable department rule or guideline when taking an enforcement action against a small business, except that, on a case-by-case basis, the department may use discretion to reduce or waive a penalty based on consideration of the history of violations, the type of business, the severity of the violation and its impact on the public’s health safety and welfare, state or federal statutory requirements for enforcement, and any other relevant factor.

DHS 19.04(3) (3) 

DHS 19.04(3)(a) (a) A reduction or waiver of any penalty may not be inconsistent with any requirements established by state or federal statute or regulation.

DHS 19.04(3)(b) (b) In determining a reduction in a monetary penalty, the department may consider the small business’s ability to pay.

DHS 19.04 History History: CR 10-003: cr. Register May 2010 No. 653, eff. 6-1-10.

DHS 19.05 DHS 19.05 Limitations on the use of discretion. The department may not exercise discretion under s. DHS 19.04 (1) in the enforcement of a rule or guideline under any of the following circumstances:

DHS 19.05(1) (1) The department discovers the violation before the small business discloses the violation.

DHS 19.05(2) (2) The violation is disclosed after a department audit or inspection of the small business has been scheduled.

DHS 19.05(3) (3) The violation was identified as part of the monitoring or sampling requirements that are consistent with the requirements under an existing permit, certificate, or license.

DHS 19.05(4) (4) The violation results in a substantial economic advantage for the small business.

DHS 19.05(5) (5) The small business has repeatedly violated the same statute, rule or guideline.

DHS 19.05(6) (6) The violation may result in imminent endangerment to the environment or to public health or safety.

DHS 19.05(7) (7) A state or federal statute, federal regulation or department rule prohibits the department’s exercise of discretion.

DHS 19.05(8) (8) The business is operating without a certificate, permit, or license.

DHS 19.05(9) (9) The business fails to provide the department with credible and verifiable information that it is a small business.

DHS 19.05(10) (10) The violation was willful.

DHS 19.05 History History: CR 10-003: cr. Register May 2010 No. 653, eff. 6-1-10.