Register November 2011 No. 671
Chapter SPS 3
ADMINISTRATIVE INJUNCTIONS
SPS 3.02 Scope; kinds of proceedings. SPS 3.04 Pleadings to be captioned. SPS 3.05 Petition for administrative injunction. SPS 3.06 Notice of hearing. SPS 3.07 Service and filing of petition, notice of hearing and other papers. SPS 3.09 Administrative law judge. SPS 3.10 Prehearing conference. SPS 3.14 Conduct of hearing. SPS 3.15 Witness fees and costs. SPS 3.16 Transcription fees. SPS 3.01 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671. SPS 3.02SPS 3.02 Scope; kinds of proceedings. The rules in this chapter govern procedures in public hearings before the department to determine and make findings as to whether a person has engaged in a practice or used a title without a credential required under chs. 440 to 459, Stats., and for issuance of an administrative injunction. SPS 3.02 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.03SPS 3.03 Definitions. In this chapter: SPS 3.03(1)(1) “Administrative injunction” means a special order enjoining a person from the continuation of a practice or use of a title without a credential required under chs. 440 to 459, Stats. SPS 3.03(2)(2) “Credential” means a license, permit, or certificate of certification or registration that is issued under chs. 440 to 459, Stats. SPS 3.03(3)(3) “Department” means the department of safety and professional services. SPS 3.03(4)(4) “Division” means the division of legal services and compliance in the department. SPS 3.03(6)(6) “Respondent” means the person against whom an administrative injunction proceeding has been commenced and who is named as respondent in a petition. SPS 3.03 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction in (3), (5) made under s. 13.92 (4) (b) 6., 7., Stats., Register November 2011 No. 671; CR 14-019: am. (4) Register August 2014 No. 704, eff. 9-1-14. SPS 3.04SPS 3.04 Pleadings to be captioned. All pleadings, notices, orders, and other papers filed in an administrative injunction proceeding shall be captioned: “BEFORE THE DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES” and shall be entitled: “IN THE MATTER OF A PETITION FOR AN ADMINISTRATIVE INJUNCTION INVOLVING _________________, RESPONDENT.” SPS 3.04 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction made under s. 13.92 (4) (b) 6., Stats., Register November 2011 No. 671. SPS 3.05SPS 3.05 Petition for administrative injunction. A petition for an administrative injunction shall allege that a person has engaged in a practice or used a title without a credential required under chs. 440 to 459, Stats. A petition may be made on information and belief and shall contain: SPS 3.05(1)(1) The name and address of the respondent and the name and address of the attorney in the division who is prosecuting the petition for the division; SPS 3.05(2)(2) A short statement in plain language of the basis for the division’s belief that the respondent has engaged in a practice or used a title without a credential required under chs. 440 to 459, Stats., and specifying the statute or rule alleged to have been violated; SPS 3.05(3)(3) A request in essentially the following form: “Wherefore, the division demands that a public hearing be held and that the department issue a special order enjoining the person from the continuation of the practice or use of the title;” and, SPS 3.05(4)(4) The signature of an attorney authorized by the division to sign the petition. SPS 3.05 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.06(1)(1) A notice of hearing shall be sent to the respondent by the division at least 10 days prior to the hearing, except in the case of an emergency in which shorter notice may be given, but in no case may the notice be provided less than 48 hours in advance of the hearing. SPS 3.06(2)(2) A notice of hearing to the respondent shall be essentially in the form shown in Appendix I and signed by an attorney in the division. SPS 3.06 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.07SPS 3.07 Service and filing of petition, notice of hearing and other papers. SPS 3.07(1)(1) The petition, notice of hearing, all orders and other papers required to be served on a respondent may be served by mailing a copy of the paper to the respondent at the last known address of the respondent or by any procedure described in s. 801.14 (2), Stats. Service by mail is complete upon mailing. SPS 3.07(2)(2) Any paper required to be filed with the department may be mailed to the administrative law judge designated to preside in the matter and shall be deemed filed on receipt by the administrative law judge. An answer under s. SPS 3.08, and motions under s. SPS 3.14 may be filed and served by facsimile transmission. A document filed by facsimile transmission under this section shall also be mailed to the department. An answer or motion filed by facsimile transmission shall be deemed filed on the first business day after receipt by the department. SPS 3.07 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671. SPS 3.08(1)(1) An answer to a petition shall state in short and plain terms the defenses to each allegation asserted and shall admit or deny the allegations upon which the division relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of the allegation, the respondent shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. The respondent shall make denials as specific denials of designated allegations or paragraphs but if the respondent intends in good faith to deny only a part or to provide a qualification of an allegation, the respondent shall specify so much of it as true and material and shall deny only the remainder. SPS 3.08(2)(2) The respondent shall set forth affirmatively in the answer any matter constituting an affirmative defense. SPS 3.08(3)(3) Allegations in a petition are admitted when not denied in the answer. SPS 3.08(4)(4) An answer to a petition shall be filed within 20 days from the date of service of the petition. SPS 3.08 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.09SPS 3.09 Administrative law judge. SPS 3.09(1)(1) Designation. Administrative injunction proceedings shall be presided over by an administrative law judge. The administrative law judge shall be an attorney in the department designated by the department general counsel, an employee borrowed from another agency pursuant to s. 20.901, Stats., or a person employed as a special project or limited term employee by the department. The administrative law judge may not be an employee in the division. SPS 3.09(2)(2) Authority. An administrative law judge designated under this section has the authority described in s. 227.46 (1), Stats. Unless otherwise directed under s. 227.46 (3), Stats., an administrative law judge shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted by the department as the final decision in the case. SPS 3.09(3)(3) Service of proposed decision. The proposed decision shall be served by the administrative law judge on all parties with a notice providing each party adversely affected by the proposed decision with an opportunity to file with the department objections and written argument with respect to the objections. A party adversely affected by a proposed decision shall have at least 10 days from the date of service of the proposed decision to file objections and argument. SPS 3.09 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.10SPS 3.10 Prehearing conference. In any matter pending before the department, the division and the respondent may be directed by the administrative law judge to appear at a conference or to participate in a telephone conference to consider the simplification of issues, the necessity or desirability of amendments to the pleading, the admission of facts or documents which will avoid unnecessary proof and such other matters as may aid in the disposition of the matter. SPS 3.10 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.11SPS 3.11 Settlements. No stipulation or settlement agreement disposing of a petition or informal petition shall be effective or binding in any respect until reduced to writing, signed by the respondent and approved by the department. SPS 3.11 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.12SPS 3.12 Discovery. The division and the respondent may, prior to the date set for hearing, obtain discovery by use of the methods described in ch. 804, Stats., for the purposes set forth therein. Protective orders, including orders to terminate or limit examinations, orders compelling discovery, sanctions provided in s. 804.12, Stats., or other remedies as are appropriate for failure to comply with such orders may be made by the administrative law judge. SPS 3.12 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. SPS 3.13SPS 3.13 Default. If the respondent fails to answer as required by s. SPS 3.08 or fails to appear at the hearing at the time fixed therefor, the respondent is in default and the department may make findings and enter an order on the basis of the petition and other evidence. The department may, for good cause, relieve the respondent from the effect of the findings and permit the respondent to answer and defend at any time before the department enters an order or within a reasonable time thereafter. SPS 3.13 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671. SPS 3.14(1)(1) Administrative law judge. The hearing shall be presided over by an administrative law judge designated pursuant to s. SPS 3.09. SPS 3.14(2)(2) Record. A stenographic, electronic or other record shall be made of all hearings in which the testimony of witnesses is offered as evidence. SPS 3.14(3)(3) Evidence. The division and the respondent shall have the right to appear in person or by counsel, to call, examine, and cross-examine witnesses and to introduce evidence into the record. SPS 3.14(4)(4) Briefs. The administrative law judge may require the filing of briefs. SPS 3.14(5)(a)(a) How made. An application to the administrative law judge for an order shall be by motion which, unless made during a hearing or prehearing conference, shall be in writing, state with particularity the grounds for the order, and set forth the relief or order sought. SPS 3.14(5)(b)(b) Filing. A motion shall be filed with the administrative law judge and a copy served upon the opposing party not later than 5 days before the time specified for hearing the motion. SPS 3.14(5)(c)(c) Supporting papers. Any briefs or other papers in support of a motion, including affidavits and documentary evidence, shall be filed with the motion. SPS 3.14(6)(6) Adjournments. The administrative law judge may, for good cause, grant continuances, adjournments and extensions of time. SPS 3.14(7)(a)(a) Subpoenas for the attendance of any witness at a hearing in the proceeding may be issued in accordance with s. 885.01, Stats. Service shall be made in the manner provided in s. 805.07 (5), Stats. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. SPS 3.14(7)(b)(b) An administrative law judge may issue protective orders according to the provisions of s. 805.07, Stats. SPS 3.14(8)(8) Location of hearing. All hearings shall be held at the offices of the department in Madison unless the administrative law judge determines that the health or safety of a witness or of a party or an emergency requires that a hearing be held elsewhere. SPS 3.14 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671. SPS 3.15SPS 3.15 Witness fees and costs. Witnesses subpoenaed at the request of the division shall be entitled to compensation from the state for attendance and travel as provided in ch. 885, Stats. SPS 3.15 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93.
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Department of Safety and Professional Services (SPS)
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administrativecode/SPS 3.03(1)
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