Chapter ATCP 1

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.

ATCP 1.06(3)(d) (d) Notwithstanding par. (a):

ATCP 1.06(3)(d)1. 1. A party may move for dismissal of a contested case at any point in a contested case proceeding.

ATCP 1.06(3)(d)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 1.06 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 1.06 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1), correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482, eff. 3-1-96; CR 09-054: am. (1), (3) (title), (a), r. and recr. (2), cr. (3) (d) Register December 2010 No. 660, eff. 1-1-11; CR 22-062: am. (3) (a) Register April 2023 No. 808, eff. 5-1-23.

ATCP 1.07 ATCP 1.07 Request for declaratory ruling.

ATCP 1.07(1) (1) Filing a petition. An interested person may petition the secretary for a declaratory ruling under s. 227.41, Stats., to determine the applicability to that person of any statute or rule enforced by the department. The petition shall comply with s. 227.41 (2), Stats., and shall be filed with the secretary.

ATCP 1.07 Note Note: A petition for declaratory ruling may be filed with the Secretary at the following address:

ATCP 1.07 Note Secretary
Wisconsin Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
P.O. Box 8911
Madison, WI 53708-8911

ATCP 1.07(2) (2) Response to petition. Within 30 days after a petition is filed under sub. (1), the secretary shall issue a written notice granting or denying the petition. If the petition is granted, the secretary shall initiate a contested case proceeding under s. 227.41 (1), Stats., by issuing a hearing notice under s. ATCP 1.20. If the petition is denied, the denial notice shall specify the reasons for the denial.

ATCP 1.07 Note Example: A notice denying a petition for declaratory ruling may be captioned as follows:

ATCP 1.07(3) (3) Dismissal. Notwithstanding sub. (2):

ATCP 1.07(3)(a) (a) A party may move for dismissal of a proceeding under this section at any point in the proceeding.

ATCP 1.07(3)(b) (b) The final decisionmaker may dismiss a proceeding under this section at any point in the proceeding if the final decisionmaker determines, based on the record, that the proceeding should be dismissed for lack of jurisdiction or other reasons.

ATCP 1.07 Note Note: For example, based on a party’s pre-hearing motion, the administrative law judge and final decisionmaker may conclude that a proceeding for declaratory ruling should be dismissed for jurisdictional or other reasons notwithstanding the secretary’s action under sub. (2).

ATCP 1.07 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; CR 09-054: am. (2), cr. (3) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.08 ATCP 1.08 Request for recovery proceeding.

ATCP 1.08(1) (1) Division filing. To initiate a recovery proceeding under subch. VII of ch. 126, Stats., the trade and consumer protection division shall file all of the following with the secretary:

ATCP 1.08(1)(a) (a) A written request, signed by the division administrator, asking that a recovery proceeding be initiated.

ATCP 1.08(1)(b) (b) Copies of one or more producer claims alleging a financial default, or other evidence of default under subch. VII of ch. 126, Stats.

ATCP 1.08(1)(c) (c) A proposed default claim filing order.

ATCP 1.08(2) (2) Claim filing order. Upon receiving documents from the trade and consumer protection division under sub. (1), the secretary may initiate a recovery proceeding by issuing a default claim filing order. If the secretary issues a default claim filing order, the department shall publish the default claim filing order as required by subch. VII of ch. 126, Stats.

ATCP 1.08 Note Example: A claim filing order in a dairy plant default proceeding may be captioned as follows:

ATCP 1.08(3) (3) Auditing claims; proposed decision. The trade and consumer protection division shall audit claims filed in response to the default claim filing order under sub. (2). Based on its audit, the trade and consumer protection division shall file with the secretary a proposed decision determining claims. The proposed decision shall do all of the following:

ATCP 1.08(3)(a) (a) Specify proposed findings of fact, proposed conclusions of law and a proposed order determining claims and appropriate sources for payment of claims.

ATCP 1.08(3)(b) (b) Allow or disallow each default claim according to s. 126.70 (4), Stats., and specify the amount of each allowed claim.

ATCP 1.08(3)(c) (c) Specify, for each allowed claim, the amount that the department is authorized to pay under s. 126.71, Stats.

ATCP 1.08(3)(d) (d) Specify the method, under s. 126.71, Stats., by which the department will pay the authorized amounts.

ATCP 1.08(3)(e) (e) Explain a claimant’s right under s. 126.87 (4), Stats., to seek court recovery of that portion of an authorized claim that is not paid by the department.

ATCP 1.08(3)(f) (f) Specify a date by which the contractor, claimant, surety or trade credit insurer may file written objections to the proposed decision.

ATCP 1.08(3)(g) (g) If a respondent is covered by the department’s trade credit insurance policy, specify what claimants must do to qualify for coverage under the policy.

ATCP 1.08(3)(h) (h) Include other provisions, if any, that the division finds necessary for the just and orderly determination of claims under ch. 126, Stats.

ATCP 1.08(4) (4) Notice and hearing.

ATCP 1.08(4)(a) (a) After the trade and consumer protection division files its proposed decision with the secretary under sub. (3), the department shall hold a class 2 contested case hearing on the proposed decision. To initiate the contested case proceeding, the secretary shall issue a hearing notice under s. ATCP 1.20.

ATCP 1.08(4)(b) (b) The notice under par. (a) shall include a copy of the proposed decision under sub. (3). The notice shall invite affected parties to present their objections, if any, at the contested case hearing. The notice may require affected parties to file their objections in writing before the hearing, by a specified date.

ATCP 1.08(4)(c) (c) The notice under par. (a) shall be issued to all of the following parties: