Chapter ATCP 1

ATCP 1.03 ATCP 1.03 Special orders.

ATCP 1.03(1) (1) Orders included.

ATCP 1.03(1)(a) (a) A “special order,” as defined in s. ATCP 1.01 (26), includes all of the following:

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)3. 3. An order banning or restricting the sale of a hazardous consumer product or household substance, including any order issued under s. 100.37 (2) (e), 100.41 (5), 100.42 (3) or 100.43 (4) (b), Stats.

ATCP 1.03(1)(a)4. 4. An order determining claims in a recovery proceeding.

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)7. 7. An order condemning unwholesome or adulterated animal carcasses, meat or food, including any order issued under s. 95.72 (4) (d), 97.12 (2) or 97.42 (9) (b) 2., Stats.

ATCP 1.03(1)(a)8. 8. An order prohibiting the use of specified equipment or facilities, including any order issued under s. 95.72 (6) (c), 97.42 (9) or 98.05, Stats.

ATCP 1.03(1)(a)9. 9. A subpoena or formal investigative demand, except as provided under par. (b) 4. or 5.

ATCP 1.03(1)(a)10. 10. A corrective action order under s. 94.73 (2), 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)(a)12. 12. A temporary animal hold order issued under s. ATCP 10.90 or a destruction or removal order issued under s. ATCP 10.91.

ATCP 1.03(1)(b) (b) The term “special order,” as defined in s. ATCP 1.01 (26), does not include any of the following:

ATCP 1.03(1)(b)1. 1. A rule.

ATCP 1.03(1)(b)2. 2. A warning notice.

ATCP 1.03(1)(b)3. 3. A division’s denial of an initial license application.

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) (3) Summary special order; hearing.

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)1. 1. Request a contested case hearing on the summary special order, pursuant to s. ATCP 1.06.

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.

ATCP 1.03 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; cr. (1) (a) 10., Register, August, 1994, No. 464, eff. 9-1-94; am. (1) (a) 2., Register, June 1995, No. 474, eff. 7-1-95; am. (1) (b) 6. and (3) (d), Register, June, 1999, No. 522, eff. 7-1-99; cr. (1) (a) 11. and 12., am. (2) (b) 2., Register, November, 2000, No. 539, eff. 12-1-00; correction in (1) (a) 2. made under s. 13.93 (2m) (b) 7., Stats; CR 02-113: am. (1) (a) 2. Register April 2003 No. 568, eff. 5-1-03; correction in (1) (a) 12. made under s. 13.93 (2m) (b) 7., Stats., Register October 2004 No. 586; CR 06-009: am. (1) (a) 11. and 12. Register September 2006 No. 609, eff. 10-1-06; CR 09-054: am. (1) (a) 4., 12., cr. (2) (b) 3., r. and recr. (3) Register December 2010 No. 660, eff. 1-1-11; CR 16-013: renum. (2) (a) to (2) and am., r. (2) (b) Register August 2016 No. 728, eff. 9-1-16; correction in (2) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 1.04 ATCP 1.04 Final orders in contested cases. The final decisionmaker shall, on behalf of the department, issue every final decision and final order in a contested case, as provided under s. ATCP 1.31. An order dismissing any party, proceeding or cause of action is a final order under this section.

ATCP 1.04 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92.

subch. III of ch. ATCP 1 Subchapter III — Initiating a Contested Case

ATCP 1.05 ATCP 1.05 Complaint requesting special order.

ATCP 1.05(1) (1) Division complaints. To obtain a special order from the secretary or final decisionmaker, other than in a recovery proceeding, a division shall file a written complaint with the secretary. The complaint shall be signed by the division administrator or designee, or other employee in a specified position in the division when the division administrator or designee is designated to sign the final order, and shall comply with sub. (3).

ATCP 1.05(2) (2) Other complaints.

ATCP 1.05(2)(a) (a) To obtain a special order under s. 100.20 (4) or 100.201 (9) (b), Stats., a complainant authorized under s. 100.20 (4) or 100.201 (9) (f), Stats., shall file a written complaint with the secretary. The complaint shall be signed by the complainant and shall comply with sub. (3).

ATCP 1.05 Note Note: A complaint may be filed with the secretary at the following address:

ATCP 1.05 Note Secretary
Wisconsin Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
P.O. Box 8911
Madison, WI 53708-8911

ATCP 1.05(2)(b) (b) Before filing a complaint with the secretary under s. 100.20 (4), Stats., the department of justice shall provide a copy of the complaint to the trade and consumer protection division.

ATCP 1.05(3) (3) Complaint form and contents. A complaint shall be captioned as provided under s. ATCP 1.13 (2), and shall include all of the following:

ATCP 1.05(3)(a) (a) The identity of the complainant.

ATCP 1.05(3)(b) (b) The statutory authority under which the complaint is filed.

ATCP 1.05(3)(c) (c) The identity and address of each respondent against whom the complaint is filed.

ATCP 1.05(3)(d) (d) An identification of the statutes, rules or orders, if any, which each respondent allegedly violated.

ATCP 1.05(3)(e) (e) A concise statement of facts constituting the alleged violations, or forming the basis for the complaint.

ATCP 1.05(3)(f) (f) A concise statement describing the order requested of the secretary, designee, or final decisionmaker, and the department’s authority to issue that order.

ATCP 1.05(3)(g) (g) If the complainant seeks a summary special order, the additional material required under sub. (5) (b).

ATCP 1.05 Note Example: If a division seeks a special order suspending a retail food establishment license, the division’s complaint may be captioned as follows:

ATCP 1.05(4) (4) Proceedings initiated in response to complaint.

ATCP 1.05(4)(a) (a) In response to a complaint under sub. (1) or (2), the secretary shall initiate a contested case proceeding by issuing a hearing notice under s. ATCP 1.20. The department shall mail or deliver a copy of the notice, together with a copy of the complaint, to the administrative law judge, the complainant, and each respondent identified in the complaint.

ATCP 1.05(4)(b) (b) Notwithstanding par. (a):

ATCP 1.05(4)(b)1. 1. A party may move for dismissal of a contested case at any point in a contested case proceeding.

ATCP 1.05(4)(b)2. 2. The final decisionmaker may dismiss a contested case at any point in a contested case proceeding if the final decisionmaker determines, based on the record, that the proceeding should be dismissed for lack of jurisdiction or other reasons.

ATCP 1.05 Note Note: For example, based on a party’s pre-hearing motion, the administrative law judge and final decisionmaker may conclude that a contested case should be dismissed for jurisdictional or other reasons notwithstanding the secretary’s action under par. (a).

ATCP 1.05(5) (5) Request for summary special order.

ATCP 1.05(5)(a) (a) In addition to or in lieu of other relief, a complainant may ask the secretary or final decisionmaker to issue a summary special order which is authorized by law. A complainant may request a summary special order as part of a complaint under sub. (1) or (2), or may file the request in the form of a motion at any time after a complaint is filed.

ATCP 1.05(5)(b) (b) A request for a summary special order shall include all of the following:

ATCP 1.05(5)(b)1. 1. A statement of the department’s authority to issue the summary special order.

ATCP 1.05(5)(b)2. 2. A statement indicating why the summary special order is necessary and justified.

ATCP 1.05(5)(b)3. 3. An affidavit setting forth the facts which justify the summary special order.

ATCP 1.05(5)(b)4. 4. A copy of the proposed summary special order.

ATCP 1.05(6) (6) Amending or withdrawing a complaint. A complainant may, with leave from the administrative law judge, amend or withdraw a complaint at any point in a contested case proceeding. The administrative law judge may withhold leave if the amendment or withdrawal would unduly delay or disrupt the proceeding, or would work a significant injustice against any party.

ATCP 1.05 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; CR 09-054: am. (1), (6), r. and recr. (4) Register December 2010 No. 660, eff. 1-1-11; CR 16-013: am. (1), (3) (f) Register August 2016 No. 728, eff. 9-1-16.

ATCP 1.06 ATCP 1.06 Request for hearing on department action.

ATCP 1.06(1) (1) Who may request. A person adversely affected by a department action may request a contested case hearing on that action. A request for a contested case hearing shall be filed with the secretary and shall comply with sub. (2). A request for hearing on a department action does not automatically stay or modify that action.

ATCP 1.06 Note Note: See s. 227.42, Stats., and s. ATCP 1.03 (3). A request for hearing may be filed with the secretary at the following address:

ATCP 1.06 Note Secretary

ATCP 1.06 Note Wisconsin Department of Agriculture, Trade and Consumer Protection

ATCP 1.06 Note 2811 Agriculture Drive

ATCP 1.06 Note P.O. Box 8911

ATCP 1.06 Note Madison, WI 53708-8911

ATCP 1.06(2) (2) Request form and contents.

ATCP 1.06(2)(a) (a) A contested case hearing request under sub. (1) shall be in writing and shall describe all of the following:

ATCP 1.06(2)(a)1. 1. The department action on which a hearing is requested.

ATCP 1.06(2)(a)2. 2. The requester’s substantial interest claimed to be adversely affected.

ATCP 1.06(2)(a)3. 3. How the department’s action adversely affected the requester’s substantial interest.

ATCP 1.06(2)(a)4. 4. The grounds for the hearing request, including material facts or legal issues that are in dispute.

ATCP 1.06(2)(a)5. 5. The relief sought.

ATCP 1.06(2)(b) (b) The secretary may require the requester to file additional clarifying information, as necessary for the secretary to decide whether to grant or deny a hearing request.

ATCP 1.06(3) (3) Granting or denying request.

ATCP 1.06(3)(a) (a) The secretary shall grant or deny a contested case hearing request under sub. (1) within 20 days after a complete request is filed, unless the requester agrees to an extension or time. The secretary may grant a contested case hearing request if, upon preliminary review, it appears that the department has jurisdiction over the matter and that a contested case proceeding is warranted under s. 227.42, Stats., or other applicable law.

ATCP 1.06(3)(b) (b) If the secretary grants a hearing request under sub. (1), the secretary shall initiate a contested case proceeding by issuing a hearing notice under s. ATCP 1.20.

ATCP 1.06 Note Example: Acme Foods, Inc. requests a hearing on the denial of a retail food establishment license for which Acme has applied. A hearing notice granting the request may be captioned as follows:

ATCP 1.06(3)(c) (c) If the secretary denies a hearing request under sub. (1), the secretary shall issue a written denial notice to the person who requested the hearing. The denial notice shall comply with the provisions of s. ATCP 1.31. The denial is subject to judicial review, to the extent provided under ss. 227.42 (2) and 227.52, Stats.