DATCP Docket No. 20-R-02
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
EMERGENCY RULE
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following emergency rule to create ATCP 134.09 (8) (d) relating to residential rental practices.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This emergency rule modifies Wis. Admin. Code ch. ATCP 134 to create a temporary prohibition on charging late rent fees or late rent penalties for any missed rent payment or any late rent payment during the current public health emergency and during the 90 days following the public health emergency. Statutes Interpreted
Statutory Authority
Wis. Stat. s. 93.07 Department duties. It shall be the duty of the department: (1)
REGULATIONS. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs. 93 to 100, which regulations shall have the force of law.The department [of Agriculture, Trade, and Consumer Protection], after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.
Wis. Stat. s. 704.95 Practices regulated by the department of agriculture, trade and consumer protection Practices in violation of s. 704.28 or 704.44 may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chapter. Related Statutes and Rules
Wis. Stat. ss. 323.10 and 323.12 (4) (d). See also Executive Order #72, dated March 12, 2020, “Relating to a Proclamation Declaring a Health Emergency in Response to the COVID-19 Coronavirus”. Plain Language Analysis
Background
This emergency rule modifies a current rule related to residential rental practices. Existing ch. ATCP 134 (Residential Rental Practices) and existing ch. 704, Stats. (Landlord and Tenant) both regulate dealings involving residential renters and their landlords. The department acted in response to Executive Order #72, dated March 12, 2020, “Relating to a Proclamation Declaring a Health Emergency in Response to the COVID-19 Coronavirus”. Item 6 directs “… all state agencies to assist as appropriate in the State’s ongoing response to the public health emergency.” Rule Content General
This emergency rule on a temporary basis suspends the ability of a landlord to charge late rent fees or late rent penalties on residential rentals in Wisconsin. The provision expires at the earliest of the following three times: 150 days after the emergency rule is published in the official state newspaper (See Wis. Stat. s. 227.24 (1) (c)); 90 days after the expiration of the public health emergency; or 90 days after recission of the proclamation of the public health emergency. Summary of and Comparison with Existing or Proposed Federal Statutes and Regulations
Federal Programs
The Department does not and cannot currently know all actions that the Federal government might take on rental housing during the COVID-19 emergency. The crisis, however, has led to negotiations focusing on a federal stimulus effort that could change the housing situation in the country. To date, the US Department of Housing and Urban Development placed a moratorium on evictions in its March 18, 2020 letter.
Surrounding State Programs
Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These laws address common topics such as rental agreements, security deposits, and other duties of landlords and tenants. States have responded differently to the ongoing COVID-19 crisis.
Illinois
Governor Pritzker issued a stay-at-home order (Executive Orders 10 and 18). In Section 2 of Executive Order 10:
Pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(2), (8), and (10), all state, county, and local law enforcement officers in the State of Illinois are instructed to cease enforcement of orders of eviction for residential premises for the duration of the Gubernatorial Disaster Proclamation. No provision contained in this Executive Order shall be construed as relieving any individual of the obligation to pay rent, to make mortgage payments, or to comply with any other obligation that an individual may have under tenancy or mortgage.
