Chapter ATCP 1

ATCP 1.25(1)(d) (d) The administrative law judge may on his or her own motion, or on the motion of any party, hold a hearing or any portion of a hearing by videoconferencing technology as defined in s. 885.52 (3), Stats., if all of the following apply:

ATCP 1.25(1)(d)1. 1. The administrative law judge determines that the standards and criteria set forth in ss. 885.54 and 885.56, Stats., are met.

ATCP 1.25(1)(d)2. 2. The department or the party requesting the use of videoconferencing technology agrees to pay the cost of using that technology.

ATCP 1.25(2) (2) Hearings open to public.

ATCP 1.25(2)(a) (a) Except as ordered by the administrative law judge, every contested case hearing is open to attendance by the public.

ATCP 1.25(2)(b) (b) Upon motion by any party, the administrative law judge may do either of the following:

ATCP 1.25(2)(b)1. 1. By order, prohibit the disclosure of information or restrict attendance at any portion of a proceeding if the administrative law judge determines that the order is necessary to prevent disclosure of a trade secret or other information which is protected by law from public disclosure.

ATCP 1.25(2)(b)2. 2. By order, exclude prospective witnesses from attending portions of a proceeding if the administrative law judge determines that the order will promote the interests of justice. Exclusionary orders shall conform to s. 906.15, Stats.

ATCP 1.25(2)(c) (c) The administrative law judge may, by order, prohibit any person from further attendance at a proceeding if that person engages in disruptive behavior which inhibits the orderly conduct of the proceeding.

ATCP 1.25(3) (3) Opening statements and closing arguments. Opening statements and closing arguments are optional, and do not constitute evidence. The administrative law judge may limit opening and closing arguments as the administrative law judge deems necessary.

ATCP 1.25(4) (4) Order of hearing.

ATCP 1.25(4)(a) (a) Except as provided under par. (b) or (c) or other applicable law, the party requesting a contested case hearing has the initial burden of going forward with proof at the hearing.

ATCP 1.25(4)(b) (b) If a party contests a division’s legal authority to issue an existing order, the administrative law judge may require the division to go forward with proof that it had adequate legal authority to issue the order.

ATCP 1.25(4)(c) (c) Subject to the general order of proof under par. (a), the administrative law judge may determine the order of proof in a contested case to promote an orderly presentation and consideration of the case.

ATCP 1.25(5) (5) Evidence. The receipt of testimony and other evidence in contested cases is subject to s. 227.45, Stats. The administrative law judge shall admit evidence which has reasonable probative value, but shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which lacks reasonable probative value.

ATCP 1.25(6) (6) Witnesses.

ATCP 1.25(6)(a) (a) All witness testimony shall be given under oath or affirmation. The administrative law judge shall administer the oath or affirmation to each witness.

ATCP 1.25(6)(b) (b) At the discretion of the administrative law judge under sub. (1) (c) or (d), a witness may testify by telephone or videoconferencing rather than in person.

ATCP 1.25(6)(c) (c) Cross-examination is not limited to matters covered on direct examination. The administrative law judge may limit cross-examination, as necessary, to avoid needless waste of time or undue harrassment of witnesses.

ATCP 1.25(6)(d) (d) Leading questions may not ordinarily be used in the direct examination of witnesses, but may be used in the cross-examination of witnesses. A party may use leading questions in the direct examination of either of the following:

ATCP 1.25(6)(d)1. 1. An opposing party, or an employee or agent of an opposing party.

ATCP 1.25(6)(d)2. 2. A witness who is hostile, unwilling, adverse or evasive, if the administrative law judge permits the examining party to use leading questions in the examination of that witness.

ATCP 1.25 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (a) (intro.), (b) and (c), (2), (3), (4) (b) and (c), (5), (6) (a) to (c) and (d) 2., Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: renum. (1) (b) and (c) to be (1) (c) and (b), cr. (1) (d), am. (4) (b), (c), (6) (b) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.26 ATCP 1.26 Briefs. The administrative law judge may require or permit the parties to file arguments in the form of written briefs, or in the form of a proposed decision. The administrative law judge may establish deadlines for the filing of briefs, and may refuse to consider any brief which is not filed on a timely basis.

ATCP 1.26 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. Register, June, 1999, No. 522, eff. 7-1-99.

subch. VI of ch. ATCP 1 Subchapter VI — Decisions and Judicial Review

ATCP 1.30 ATCP 1.30 Proposed decision.

ATCP 1.30(1) (1) Issued by administrative law judge. If the administrative law judge is not the final decisionmaker in a contested case, the administrative law judge shall prepare a proposed decision for consideration by the final decisionmaker. The proposed decision shall include proposed findings of fact, proposed conclusions of law, a proposed final order, and the administrative law judge’s signed opinion explaining the proposed decision. A copy of the proposed decision shall be mailed or delivered to every party to the contested case.

ATCP 1.30(2) (2) Objections by parties.

ATCP 1.30(2)(a) (a) Any party may file written objections to the administrative law judge’s proposed decision under sub. (1). Unless the final decisionmaker specifies a different time period, an objecting party shall file objections within a time period specified by the administrative law judge. The objecting party shall identify the legal or factual grounds for each objection, and may file a written brief or argument in support of the objections.

ATCP 1.30(2)(b) (b) A final decisionmaker may do either of the following:

ATCP 1.30(2)(b)1. 1. Extend or limit the time for filing objections.

ATCP 1.30(2)(b)2. 2. Permit the parties to make further oral or written arguments to the final decisionmaker.

ATCP 1.30 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) and (2) (a), Register, June, 1999, No. 522, eff. 7-1-99.

ATCP 1.31 ATCP 1.31 Final decision.

ATCP 1.31(1) (1) General. The final decisionmaker, after considering any proposed decision and objections under s. ATCP 1.30, shall issue the final decision in a contested case. The final decision shall include findings of fact, conclusions of law and an order.

ATCP 1.31(2) (2) Administrative law judge as final decisionmaker. If the administrative law judge is also the final decisionmaker, the administrative law judge may do either of the following:

ATCP 1.31(2)(a) (a) Issue a proposed decision under s. ATCP 1.30 before issuing a final decision under sub. (1).

ATCP 1.31(2)(b) (b) Issue a final decision under sub. (1) without first issuing a proposed decision under s. ATCP 1.30.

ATCP 1.31(3) (3) Identification of parties; service on parties. The department shall mail or deliver a copy of the final decision to every party in a contested case. The name and address of every party shall be included with the final decision.

ATCP 1.31(4) (4) Variance from proposed decision. If the final decision varies from the administrative law judge’s proposed decision, the final decision shall explain the reasons for the variation.

ATCP 1.31(5) (5) Petition for rehearing or judicial review; notice of rights. The following statement, or its equivalent, shall be included with the final decision pursuant to s. 227.48, Stats.:

“A party adversely affected by this final decision may file a written petition for rehearing under s. 227.49, Stats., within 20 days after he or she is served with the decision under s. 227.48. A petition for rehearing, if any, shall specify in detail the grounds for rehearing.

A party adversely affected by this final decision may also seek judicial review under ss. 227.52 and 227.53, Stats., by filing a petition for judicial review within 30 days after he or she is served with the decision under s. 227.48. In any petition for judicial review, the Wisconsin Department of Agriculture, Trade and Consumer Protection shall be named as the respondent.”

ATCP 1.31(6) (6) Motion for costs and attorneys fees; notice of rights. If a prevailing party in a contested case may be entitled to costs and attorneys fees under s. 227.485, Stats., the final decision shall include notice of the procedure for requesting an award of costs and attorneys fees under s. ATCP 1.32.

ATCP 1.31 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (2) and (4), Register, June, 1999, No. 522, eff. 7-1-99; CR 01-028: r. and recr. (2), Register September 2001 No. 549, eff. 10-1-01.

ATCP 1.32 ATCP 1.32 Award of costs and attorneys fees.

ATCP 1.32(1) (1) Motion; itemized statement. If an individual, small non-profit corporation or small business is a prevailing party in a contested case, that prevailing party may submit a motion for costs and attorneys fees under s. 227.485, Stats. A prevailing party shall submit the motion within 30 days after the administrative law judge issues a proposed decision under s. ATCP 1.30 (1) or 1.31 (2) (a) or, if the administrative law judge issues a final decision under s. ATCP 1.31 (2) (b) without issuing a proposed decision, within 30 days after the administrative law judge issues that final decision.

ATCP 1.32(2) (2) Reply. A division or state agency which is a party to the contested case, and whose action gave rise to the motion for costs and attorneys fees under sub. (1), may file a written response to that motion. The response shall be filed within 30 days after the prevailing party’s motion is filed under sub. (1).

ATCP 1.32(3) (3) Decision.

ATCP 1.32(3)(a) (a) The administrative law judge shall issue a decision granting or denying a motion for costs and attorneys fees under sub. (1). The administrative law judge may make a partial award of costs and attorneys fees, as provided under s. 227.485 (4), Stats. The administrative law judge’s decision shall include findings of fact, conclusions of law, and an order granting or denying an award. Except as provided under par. (b), the administrative law judge’s decision is final and shall comply with s. ATCP 1.31 (1) to (5).

ATCP 1.32(3)(b) (b) If the administrative law judge is not the final decisionmaker in a contested case, the administrative law judge’s decision under par. (a) shall be issued as a proposed decision. Within 30 days after the administrative law judge issues a proposed decision under this paragraph, the parties may file written objections to the proposed decision. After considering the written objections, the final decisionmaker shall issue a final decision granting or denying an award of costs and attorneys fees. The final decision shall comply with s. ATCP 1.31 (1) to (5).

ATCP 1.32(3)(c) (c) A final decision under this subsection is subject to judicial review under s. 227.52, Stats. A party may seek judicial review of a final decision granting or denying an award of costs and attorneys fees, regardless of whether the party petitions for judicial review of the department’s final decision on the merits of the contested case.

ATCP 1.32 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (3) (a) and (b), Register, June, 1999, No. 522, eff. 7-1-99; CR 01-028: am. (1), Register September 2001 No. 549, eff. 10-1-01; CR 09-054: am. (2), (3) (b) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.33 ATCP 1.33 Costs upon frivolous claim.

ATCP 1.33(1) (1) Upon motion by any party under s. ATCP 1.14, and in accordance with s. 227.483, Stats., if the administrative law judge finds that a party has initiated or pursued a frivolous action, claim or defense in a contested case, the administrative law judge may order the party to reimburse another party for the direct costs, including reasonable attorney fees, that the other party has incurred in responding to that frivolous action, claim or defense.

ATCP 1.33(2) (2) An administrative law judge may not find that an action, claim or defense is frivolous under sub. (1) unless the administrative law judge finds at least one of the following:

ATCP 1.33(2)(a) (a) The action, claim or defense was initiated or pursued in bad faith, solely for the purpose of harassing or maliciously injuring another.

ATCP 1.33(2)(b) (b) The party or party’s attorney knew or should have known that the action, claim or defense was without any reasonable basis in law or equity, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

ATCP 1.33(3) (3) If an administrative law judge issues an order under sub. (1) against a party other than a public agency, the administrative law judge may assess those costs against the party or the party’s attorney, or may allocate the cost assessment between the party and the party’s attorney.

ATCP 1.33 History History: CR 09-054: cr. Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.34 ATCP 1.34 Judicial review; certifying record to court. If a party seeks judicial review of a contested case decision under s. 227.52, Stats., the department shall certify the record of the contested case proceeding to the reviewing court as provided in s. 227.55, Stats. The administrative law judge shall, on behalf of the department, certify the contested case record to the court.

ATCP 1.34 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: renum. from ATCP 1.33 Register December 2010 No. 660, eff. 1-1-11.

subch. VII of ch. ATCP 1 Subchapter VII — Enforcement-Discretion; Small Business

ATCP 1.40 ATCP 1.40 Purpose. This subchapter describes, as required by s. 227.04 (2m), Stats., the discretion the department may exercise in the enforcement of rules against small businesses.

ATCP 1.40 History History: CR 06-028: cr. Register November 2006 No. 611, eff. 12-1-06; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2015 No. 714.

ATCP 1.41 ATCP 1.41 Definitions. In this subchapter:

ATCP 1.41(1) (1) “Minor violation” means a violation of a department rule by a small business that is not a serious violation because the violation does not cause serious harm to the public and either the violation is not willful, the violation is not likely to be repeated, there is a history of compliance by the violator, or the small business has voluntarily disclosed the violation.

ATCP 1.41(2) (2) “Small business” has the meaning given in s. 227.114 (1), Stats.

ATCP 1.41 History History: CR 06-028: cr. Register November 2006 No. 611, eff. 12-1-06; CR 12-043: r. and recr. Register May 2013 No. 689, eff. 6-1-13; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register June 2015 No. 714.

ATCP 1.42 ATCP 1.42 Exercise of discretion.

ATCP 1.42(1) (1) The department may exercise leniency in the enforcement of rules against small businesses, as compared to other regulated businesses, if all of the following apply:

ATCP 1.42(1)(a) (a) The department has statutory authority to exercise discretion.

ATCP 1.42(1)(b) (b) The exercise of discretion, in favor of small businesses, is not prohibited by s. 227.04 (2m), Stats., or other applicable law.

ATCP 1.42 Note Note: The department exercises enforcement discretion based on a wide variety of variable factors that may be relevant to each case.

ATCP 1.42(1)(c) (c) The rule violation committed by the small business is a minor violation.

ATCP 1.42(2) (2) The department may consider relevant factors in its exercise of discretion under sub. (1), including any of the following that may be relevant:

ATCP 1.42(2)(b) (b) The difficulty and cost of compliance for a small business, as compared to other businesses.

ATCP 1.42(2)(c) (c) The financial capacity of a small business, as compared to other businesses.

ATCP 1.42(2)(d) (d) The compliance options available, including options for achieving voluntary compliance.

ATCP 1.42(2)(i) (i) The level of public interest and concern.

ATCP 1.42(2)(j) (j) Whether the small business has had a reasonable opportunity to understand and comply with the rules.

ATCP 1.42(2)(k) (k) Fairness to the small business and other persons, including competitors and the public.

ATCP 1.42(3) (3) An exercise of discretion under sub. (1) may include a decision to forego formal sanctions, or to seek reduced sanctions for a small business as compared to other businesses.

ATCP 1.42 Note Note: Fines and civil forfeitures are determined and imposed by courts, not by the department.

ATCP 1.42 History History: CR 06-028: cr. Register November 2006 No. 611, eff. 12-1-06; CR 12-043: cr. (1) (c), r. (2) (a), (e) to (h), (L) Register May 2013 No. 689, eff. 6-1-13; correction in (1) (b) made under s. 13.92 (4) (b) 7., Stats., Register June 2015 No. 714.