Chapter VE 3

VE 3.64 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.66 VE 3.66 Hearing to show cause.

VE 3.66(1) (1) A hearing to show cause shall be scheduled for a date no later than 20 days after the filing of the request for hearing with the board, unless a later time is requested by or agreed to by the respondent.

VE 3.66(2) (2) Unless the parties otherwise agree, no discovery is permitted, except for the taking and preservation of evidence as provided in ch. 804, Stats., with respect to witnesses described in s. 227.45 (7) (a) to (d), Stats. A respondent may inspect records under s. 19.35, Stats., the public records law.

VE 3.66(3) (3) At the hearing to show cause, the disciplinary counsel may call, examine and cross-examine witnesses, or present other evidence in order sustain its burden to show, by a preponderance of the evidence, why the summary suspension or limitation order should be continued. The respondent may testify, call, examine and cross-examine witnesses, and offer other evidence to rebut disciplinary counsel’s showing.

VE 3.66(4) (4) Immediately upon conclusion of the hearing to show cause the board shall make findings and an order on the record. If it is determined that the summary suspension or limitation order should not be continued, the suspended credential shall be immediately restored, and any limitation shall be lifted.

VE 3.66 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.68 VE 3.68 Delegation.

VE 3.68(1) (1) The board may delegate authority to preside over and rule in a hearing to show cause to an administrative law judge employed by the division.

VE 3.68(2) (2) A delegation of authority under sub. (1) may be continuing.

VE 3.68 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.70 VE 3.70 Commencement of disciplinary proceeding.

VE 3.70(1) (1) A complaint, under s. VE 3.26, commencing a disciplinary proceeding against the respondent shall be issued no later than 20 days following the issuance of the summary suspension or limitation order or the suspension or limitation shall lapse at the end of the tenth subsequent day, meaning the thirtieth day following the issuance of the summary suspension or limitation order. The formal disciplinary proceeding shall be determined promptly.

VE 3.70(2) (2) If at any time the disciplinary proceeding is not advancing with reasonable promptness, the respondent may make a motion to the administrative law judge for an order granting relief.

VE 3.70(3) (3) If it is found that the disciplinary proceeding is not advancing with reasonable promptness, and the delay is not as a result of the conduct of respondent or respondent’s counsel, a remedy, as would be just, shall be granted including:

VE 3.70(3)(a) (a) An order immediately terminating the summary suspension or limitation.

VE 3.70(3)(b) (b) An order compelling that the disciplinary proceeding be held and determined by a specific date.

VE 3.70 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

subch. V of ch. VE 3 Subchapter V — Administrative Injunctions

VE 3.72 VE 3.72 Scope; kinds of proceedings. This subchapter governs procedures for public hearings before the department to determine whether a person has engaged in a practice or used a title without a credential required under ch. 89, Stats., and whether to issue a special order for an administrative injunction.

VE 3.72 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.74 VE 3.74 Pleadings to be captioned. All pleadings, notices, orders, and other papers filed in an administrative injunction proceeding shall be captioned: “BEFORE THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION” and shall be entitled: “IN THE MATTER OF A PETITION FOR A SPECIAL ORDER TO ENJOIN _________________, RESPONDENT.”

VE 3.74 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.76 VE 3.76 Petition for administrative injunction. Department counsel, on behalf of the division, may petition for a special order from the department to issue an administrative injunction, which shall allege that a person has engaged in a practice or used a title without a credential required under ch. 89, Stats. A petition may be made on information and belief and shall contain:

VE 3.76(1) (1) The name and address of the respondent and the name and address of the department attorney who is prosecuting the petition.

VE 3.76(2) (2) A short statement in plain language of the basis for the belief that the respondent has engaged in a practice or used a title without a credential required under ch. 89, Stats., and specifying the statute or rule alleged to have been violated.

VE 3.76(3) (3) A request in essentially the following form: “Wherefore, the petitioner requests that a public hearing be held and that the department issue a special order enjoining the person from the continuation of the practice or use of the title.”

VE 3.76(4) (4) The signature of the petitioner.

VE 3.76 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.78 VE 3.78 Service and filing of petition.

VE 3.78(1) (1) The petition and other papers required to be served on a respondent may be served by mailing a copy of the paper to the respondent at the last known address of the respondent, by any procedure described in s. 801.14 (2), Stats., or by electronic transmission if agreed to by the respondent or respondent’s attorney. Service by mail is complete upon mailing.

VE 3.78(2) (2) Any paper required to be filed with the department may be mailed to the department secretary’s office and, if an administrative law judge has been designated to preside in the matter, to the administrative law judge and shall be deemed filed on the date of the postmark. Materials submitted by personal service or by inter-departmental mail shall be considered filed on the date they are received at the department secretary’s office or by the administrative law judge. Papers required to be filed may instead be filed and served by facsimile transmission or by electronic mail. For materials transmitted by facsimile, the date received shall determine the date of filing. For materials transmitted by electronic mail, the filing date shall be the date that the electronic mail was sent.

VE 3.78 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.80 VE 3.80 Answer.

VE 3.80(1) (1) An answer to a petition shall state in short and plain terms the defenses to each cause asserted and shall admit or deny the allegations upon which the complainant relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of the allegation, the respondent shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. The respondent shall make denials as specific denials of designated allegations or paragraphs but if the respondent intends in good faith to deny only a part or a qualification of an allegation, the respondent shall specify so much of it as true and material and shall deny only the remainder.

VE 3.80(2) (2) The respondent shall set forth affirmatively in the answer any matter constituting an affirmative defense.

VE 3.80(3) (3) Allegations in a petition are admitted when not denied in the answer.

VE 3.80(4) (4) An answer to a petition shall be filed within 20 days from the date of service of the petition.

VE 3.80 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.82 VE 3.82 Administrative law judge.

VE 3.82(1) (1) Designation. The department may request DHA assign an administrative law judge to preside over any administrative injunction proceeding.

VE 3.82(2) (2) Authority and duties. An administrative law judge may, on behalf of the department, do all of the following:

VE 3.82(2)(a) (a) Gain permission from parties for service of all documents to be via electronic transmission, or other means if necessary.

VE 3.82(2)(b) (b) Require parties to clarify positions or issues.

VE 3.82(2)(c) (c) Hold prehearing conferences and issue memoranda for the record, summarizing all actions taken and agreements reached.

VE 3.82(2)(d) (d) Make procedural rulings and issue scheduling orders, including for motions, date, time and location of hearing, discovery, identification of witnesses and evidence for hearing, stipulations by the parties for hearing and other matters aiding in the orderly disposition of the proceedings.

VE 3.82(2)(e) (e) Hold motion hearings.

VE 3.82(2)(f) (f) Adjourn or postpone proceedings.

VE 3.82(2)(g) (g) Grant continuances or extensions of time.

VE 3.82(2)(h) (h) Issue subpoenas to compel the witness attendance and document production.

VE 3.82(2)(i) (i) Regulate discovery proceedings, and issue orders to compel or limit discovery.

VE 3.82(2)(j) (j) Select the location of the hearing.

VE 3.82(2)(k) (k) Preside over hearings and regulate the course of hearings.

VE 3.82(2)(L) (L) Administer oaths and affirmations.

VE 3.82(2)(m) (m) Make evidentiary rulings and receive relevant evidence.

VE 3.82(2)(n) (n) Impose sanctions on disobedient parties.

VE 3.82(2)(o) (o) Require or permit the parties to file written briefs and arguments.

VE 3.82(2)(p) (p) Supervise the required creation of a stenographic or electronic record of the portion of the proceedings conducted under the auspices of the administrative law judge.

VE 3.82(2)(q) (q) If required, order and supervise the preparation of a written transcript of proceedings conducted before the administrative law judge.

VE 3.82(2)(r) (r) Issue proposed decisions.

VE 3.82(2)(s) (s) Issue final decisions and orders, if requested by the department.

VE 3.82(3) (3) Limits on authority. The administrative law judge may not exercise any authority which is reserved to the department, except as delegated in writing under sub. (2) (s).

VE 3.82(4) (4) Impartiality.

VE 3.82(4)(a) (a) An administrative law judge shall withdraw from a contested case if the administrative law judge determines that there is a conflict of interest or other circumstance which prevents the administrative law judge from acting impartially, or which creates an undue appearance of bias.

VE 3.82(4)(b) (b) If an administrative law judge receives an ex parte communication which violates s. 227.50 (1), Stats., the administrative law judge shall deal with the ex parte communication as provided in s. 227.50 (2), Stats.

VE 3.82 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22; correction in (3) made under s. 13.92 (4) (b) 7., Stats., and correction in (4) (b) made under s. 35.17, Stats., Register July 2022 No. 799

VE 3.84 VE 3.84 Settlements. At any point in a proceeding, the parties may agree to settle the case. Parties wishing to settle a case shall file both a written stipulation, signed by the respondent and any representative, and the division representative and department counsel, setting forth the agreed terms of settlement, and a proposed final order disposing of the case, for approval by the department. No stipulation disposing of a petition filed under this subchapter shall be effective or binding in any respect until the final order is approved and signed by the department.

VE 3.84 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.86 VE 3.86 Conduct of public hearing.

VE 3.86(1) (1) Record. A stenographic, electronic or other record shall be made of all hearings in which the testimony of witnesses is offered as evidence.

VE 3.86(2) (2) Evidence. The respondent shall have the right to appear in person or by counsel, and both parties have the right to call, examine, and cross-examine witnesses and to introduce evidence into the record.

VE 3.86(3) (3) Briefs. The administrative law judge may require or permit the filing of briefs.

VE 3.86(4) (4) Motions. All motions, except those made at hearing, shall be in writing, filed by the date set by the administrative law judge, with a copy served upon the opposing party.

VE 3.86(5) (5) Summary judgment. The parties may use the summary judgment procedure provided in s. 802.08, Stats.

VE 3.86(6) (6) Adjournments. The administrative law judge may, for good cause, grant continuances, adjournments and extensions of time.

VE 3.86(7) (7) Subpoenas.

VE 3.86(7)(a) (a) Subpoenas for the attendance of any witness at a hearing in the proceeding may be issued in accordance with s. 885.01, Stats. Service shall be made in the manner provided in s. 805.07 (5), Stats. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.

VE 3.86(7)(b) (b) An administrative law judge may issue protective orders according to the provision the provisions of s. 805.07, Stats.

VE 3.86 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.88 VE 3.88 Witness fees and costs. Witnesses subpoenaed at the request of the department shall be entitled to compensation from the state for attendance and travel as provided in ch. 885, Stats.

VE 3.88 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.90 VE 3.90 Record of proceedings, transcripts.

VE 3.90(1) (1) Record of oral proceedings. Oral proceedings in an administrative injunction case shall be electronically recorded unless the administrative law judge determines that a stenographic record is necessary.

VE 3.90(2) (2) Electronic recording; copies. If an oral proceeding in an administrative injunction case is electronically recorded, a copy of the recording shall be furnished at cost to any party who requests a copy.

VE 3.90(3) (3) Stenographic recording; copies.

VE 3.90(3)(a) (a) If a stenographic recording is made, the reporting service who recorded the proceeding may charge a fee for an original transcription and for copies. Fees are identified in the state operational purchasing bulletin for reporting services and fees allowed to be charged.

VE 3.90(3)(b) (b) A person who is without means and who requires a transcript for appeal or other reasonable purposes shall be furnished with a transcript without charge upon the filing of a petition of indigency signed under oath.

VE 3.90 History History: CR 21-062: cr. Register July 2022 No. 799, eff. 8-1-22.

VE 3.92 VE 3.92 Decision. The administrative law judge shall prepare a proposed decision for consideration by the department or a final decision, if designated as final decision maker. The decision, whether proposed or final, shall include findings of fact, conclusions of law, and an order, with a signed opinion explaining the decision.