Chapter ATCP 1

ATCP 1.01 Note Secretary
Wisconsin Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
P.O. Box 8911
Madison, WI 53708-8911

ATCP 1.01(13) (13) “Final decisionmaker” means the secretary, or a person whom the secretary appoints, in writing, to issue a final decision in a contested case. “Final decisionmaker” may include an administrative law judge whom the secretary appoints as final decisionmaker.

ATCP 1.01(14) (14) “Hearing” means a contested case hearing under ch. 227, Stats., except as otherwise provided in this chapter.

ATCP 1.01(15) (15) “Intervenor” means an interested or affected person who files a request to be admitted, and who is admitted as a party in a contested case. “Intervenor” does not include a complainant, respondent, petitioner or claimant.

ATCP 1.01(16) (16) “License” has the meaning specified under s. 227.01 (5), Stats.

ATCP 1.01(17) (17) “Order determining claims” means an order allowing or disallowing producer or depositor claims in a recovery proceeding.

ATCP 1.01(18) (18) “Party” means any of the following persons or entities, unless that person or entity is dismissed as a party:

ATCP 1.01(18)(a) (a) A division which appears or is named as a party.

ATCP 1.01(18)(b) (b) A complainant.

ATCP 1.01(18)(c) (c) A respondent who has been served with a complaint or notice from the department identifying him or her as a respondent.

ATCP 1.01(18)(d) (d) A petitioner.

ATCP 1.01(18)(e) (e) A claimant.

ATCP 1.01(18)(f) (f) An intervenor.

ATCP 1.01(19) (19) “Person” includes a natural person, corporation, partnership, association, trust, division of the department, or other government or business entity.

ATCP 1.01(20) (20) “Petitioner” means a person who files a request for a hearing or declaratory ruling under this chapter.

ATCP 1.01(21) (21) “Proceeding” means a contested case proceeding before the department under ch. 227, Stats.

ATCP 1.01(22) (22) “Recovery proceeding” means a proceeding initiated by the department under subch. VII of ch. 126, Stats., to determine the amount of allowable producer or depositor claims against a vegetable contractor, milk contractor, grain warehouse keeper or grain dealer.

ATCP 1.01(23) (23) “Representative” means an attorney or other person authorized by a party to represent that party in a contested case.

ATCP 1.01(24) (24) “Respondent” means either of the following:

ATCP 1.01(24)(a) (a) A person against whom a complaint is filed.

ATCP 1.01(24)(b) (b) A person, other than a complainant, petitioner, claimant or intervenor, who is named as a party to a proceeding.

ATCP 1.01(25) (25) “Secretary” means the secretary of the department.“Secretary” includes both of the following:

ATCP 1.01(25)(a) (a) The deputy secretary of the department.

ATCP 1.01(25)(b) (b) A department official whom the secretary has specifically authorized to act on the secretary’s behalf.

ATCP 1.01(26) (26) “Special order” means an enforceable or purportedly enforceable administrative order that the department issues against a named or identified person under chs. 88 to 100, Stats., or ch. 126, Stats.,or other laws administered by the department. “Special order” includes special orders identified under s. ATCP 1.03 (1) (a). “Special order” does not include any of the actions listed under s. ATCP 1.03 (1) (b).

ATCP 1.01(27) (27) “Subpoena” means a command to give testimony or provide evidence.

ATCP 1.01(28) (28) “Summary special order” means a special order which the department issues without prior notice to the order recipient, or without a prior opportunity for the order recipient to appear or contest the order.

ATCP 1.01(29) (29) “Trade and consumer protection division” means the trade and consumer protection division of the department.

ATCP 1.01 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; renum. (1) to (10) to be (2) to (11) and renum. (11) to be (1) and am., am. (12) (c) and (13), Register, June, 1999, No. 522, eff. 7-1-99; CR 02-113: am. (26) Register April 2003 No. 568, eff. 5-1-03; corrections in (2), (3), (4) and (14) made under s. 13.93 (2m) b. 7., Stats., Register April 2003 No. 568; CR 09-054: am. (1) to (4), r. (14), renum. (15) to (22) to be (14) to (21) and am. (17), cr. (22) Register December 2010 No. 660, eff. 1-1-11.

subch. II of ch. ATCP 1 Subchapter II — Orders

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).