This section is shown as amended by 2021 Wis. Acts 123
and as merged by the legislative reference bureau under s. 13.92 (2) (i).
If the department, an examining board, or an affiliated credentialing board promulgates rules related to telehealth, the department, the examining board, or the affiliated credentialing board shall define “telehealth” to have the meaning given in s. 440.01 (1) (hm)
History: 2021 a. 121
Voluntary surrender of license, permit, or certificate.
A person who holds a credential may voluntarily surrender that credential. The department, examining board, affiliated credentialing board, or board of the department that issued the credential may refuse to accept that surrender if a complaint has been filed or disciplinary proceeding has been commenced against the person under s. 440.20
History: 2011 a. 146
; 2017 a. 331
Disciplinary proceedings. 440.20(1)(1)
Any person may file a complaint before the department or any examining board, affiliated credentialing board or board in the department and request the department, examining board, affiliated credentialing board or board to commence disciplinary proceedings against any holder of a credential.
The burden of proof in disciplinary proceedings before the department or any examining board, affiliated credentialing board or board in the department is a preponderance of the evidence.
The department or appropriate examining board, affiliated credentialing board, or board in the department may reprimand the holder of a credential or deny, limit, suspend, or revoke the credential of any person who intentionally violates s. 252.14 (2)
or intentionally discloses the results of a blood test in violation of s. 252.15 (3m) (b)
The grounds for discipline specified under par. (a)
are in addition to any grounds for discipline specified in chs. 440
The department, or the appropriate credentialing board or other board in the department, may reprimand a credential holder, or may deny, limit, suspend, or revoke a credential, if the credential holder fails to respond, to the satisfaction of the department, credentialing board, or other board in the department, within 30 days to a request for information from the department, credentialing board, or other board in the department in connection with an investigation of alleged misconduct of the credential holder.
The grounds for discipline specified under par. (a)
are in addition to any grounds for discipline specified in chs. 440
The constitutionality of sub. (3) is upheld. Gandhi v. Medical Examining Board, 168 Wis. 2d 299
, 483 N.W.2d 295
(Ct. App. 1992).
Laches is not available in any proceeding brought by the state in its sovereign capacity to protect a public right. A disciplinary proceeding is brought by the state in its sovereign capacity to protect a right of the public-the right to have licensed psychologists comply with the requirements of their licenses. Stein v. WI Psychology Examining Board, 2003 WI App 147
, 265 Wis. 2d 781
, 668 N.W.2d 112
A hearing is not required for a complaint filed under this section. 68 Atty. Gen. 30.
The “preponderance of the evidence" burden of proof under sub. (3) does not violate the due process rights of a licensee. 75 Atty. Gen. 76
If the department or a board, examining board, or affiliated credentialing board in the department determines during an investigation that there is evidence of misconduct by a credential holder, the department, board, examining board, or affiliated credentialing board may close the investigation by issuing an administrative warning to the credential holder. The department or a board, examining board or affiliated credentialing board may issue an administrative warning under this section only if the department or board, examining board or affiliated credentialing board determines that no further action is warranted because the complaint involves a minor violation and the issuance of an administrative warning adequately protects the public by putting the credential holder on notice that any subsequent violation may result in disciplinary action. If an administrative warning is issued, the credential holder may obtain a review of the administrative warning through a personal appearance before the department, board, examining board, or affiliated credentialing board that issued the administrative warning. Administrative warnings do not constitute an adjudication of guilt or the imposition of discipline and may not be used as evidence that the credential holder is guilty of the alleged misconduct. However, if a subsequent allegation of misconduct by the credential holder is received by the department or a board, examining board or affiliated credentialing board in the department, the matter relating to the issuance of the administrative warning may be reopened and disciplinary proceedings may be commenced on the matter, or the administrative warning may be used in any subsequent disciplinary proceeding as evidence that the credential holder had actual knowledge that the misconduct that was the basis for the administrative warning was contrary to law. The record that an administrative warning was issued shall be a public record. The contents of the administrative warning shall be private and confidential. The department shall promulgate rules establishing uniform procedures for the issuance and use of administrative warnings.
History: 1997 a. 139
; 2017 a. 328
See also ch. SPS 8
, Wis. adm. code.
Enforcement of laws requiring credential. 440.21(1)(1)
The department may conduct investigations, hold hearings and make findings as to whether a person has engaged in a practice or used a title without a credential required under chs. 440
If, after holding a public hearing, the department determines that a person has engaged in a practice or used a title without a credential required under chs. 440
, the department may issue a special order enjoining the person from the continuation of the practice or use of the title.
In lieu of holding a public hearing, if the department has reason to believe that a person has engaged in a practice or used a title without a credential required under chs. 440
, the department may petition the circuit court for a temporary restraining order or an injunction as provided in ch. 813
Notwithstanding any other provision of chs. 440
relating to fines, forfeitures, or imprisonment, any person who violates a special order issued under sub. (2)
may be required to forfeit not more than $10,000 for each offense. Each day of continued violation constitutes a separate offense. The attorney general or any district attorney may commence an action in the name of the state to recover a forfeiture under this paragraph.
Notwithstanding any other provision of chs. 440
relating to fines, forfeitures, or imprisonment, any person who violates a temporary restraining order or an injunction issued by a court upon a petition under sub. (3)
may be fined not less than $25 nor more than $5,000 or imprisoned for not more than one year in the county jail or both.
See also ch. SPS 3
, Wis. adm. code.
Assessment of costs. 440.22(1)(1)
In this section, “costs of the proceeding" means the compensation and reasonable expenses of hearing examiners and of prosecuting attorneys for the department, examining board, affiliated credentialing board, or other board, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts, paralegals, real estate specialists, and investigators, and compensation and expenses of a reporter for recording and transcribing testimony.
In any disciplinary proceeding against a holder of a credential in which the department or an examining board, affiliated credentialing board, or other board in the department orders suspension, limitation, or revocation of the credential, assesses a forfeiture, or reprimands the holder, the department, examining board, affiliated credentialing board, or other board may, in addition to imposing discipline, assess all or part of the costs of the proceeding against the holder. Costs assessed under this subsection are payable to the department. Interest shall accrue on costs assessed under this subsection at a rate of 12 percent per year compounded annually beginning on the date that payment of the costs are due as ordered by the department, examining board, affiliated credentialing board, or other board. Upon the request of the department of safety and professional services, the department of justice may commence an action to recover costs assessed under this subsection and any accrued interest.
In addition to any other discipline imposed, if the department, examining board, affiliated credentialing board or board assesses costs of the proceeding to the holder of the credential under sub. (2)
, the department, examining board, affiliated credentialing board or board may not restore, renew or otherwise issue any credential to the holder until the holder has made payment to the department under sub. (2)
in the full amount assessed, together with any accrued interest.
Cancellation of credential; reinstatement. 440.23(1)(1)
If the holder of a credential pays a fee required under s. 440.05 (1)
, or 444.11
by check or debit or credit card and the check is not paid by the financial institution upon which the check is drawn or if the demand for payment under the debit or credit card transaction is not paid by the financial institution upon which demand is made, the department may cancel the credential on or after the 60th day after the department receives the notice from the financial institution, subject to sub. (2)
At least 20 days before canceling a credential, the department shall mail a notice to the holder of the credential that informs the holder that the check or demand for payment under the debit or credit card transaction was not paid by the financial institution and that the holder's credential may be canceled on the date determined under sub. (1)
unless the holder does all of the following before that date:
Pays the fee for which the unpaid check or demand for payment under the credit or debit card transaction was issued.
If the fee paid under par. (a)
is for renewal and the credential has expired, pays the applicable penalty for late renewal specified in s. 440.08 (3)
Nothing in sub. (1)
prohibits the department from extending the date for cancellation to allow the holder additional time to comply with sub. (2) (a)
A cancellation of a credential under this section completely terminates the credential and all rights, privileges and authority previously conferred by the credential.
The department may reinstate a credential that has been canceled under this section only if the previous holder complies with sub. (2) (a)
and pays a $30 reinstatement fee.
The department may seek judicial review under ch. 227
of any final disciplinary decision of the medical examining board or affiliated credentialing board attached to the medical examining board. The department shall be represented in such review proceedings by an attorney within the department. Upon request of the medical examining board or the interested affiliated credentialing board, the attorney general may represent the board. If the attorney general declines to represent the board, the board may retain special counsel which shall be paid for out of the appropriation under s. 20.165 (1) (hg)
PRIVATE DETECTIVES, PRIVATE SECURITY PERSONS
Private detectives, investigators and security personnel; licenses and permits. 440.26(1)(a)(a)
No person may do any of the following unless he or she has a license or permit issued under this section:
Advertise, solicit or engage in the business of operating a private detective agency.
Act as a private detective, investigator, special investigator or private security person.
Solicit business or perform any other type of service or investigation as a private detective or private security person.
Receive any fees or compensation for acting as any person, engaging in any business or performing any service specified in subds. 1.
The department may promulgate rules specifying activities in which a person may engage without obtaining a license or permit under this section.
In this section, “private security person" or “private security personnel" means any private police, guard, or any person who stands watch for security purposes.
Types of licenses; application; approval. 440.26(2)(a)
(a) Types of licenses.
The department may do any of the following:
Issue a private detective agency license to an individual, partnership, limited liability company or corporation that meets the qualifications specified under par. (c)
. The department may not issue a license under this subdivision unless the individual or each member of the partnership or limited liability company or officer or director of the corporation who is actually engaged in the work of a private detective is issued a private detective license under this section.
Issue a private detective license to an individual who meets the qualifications specified under par. (c)
if the individual is an owner, co-owner or employee of a private detective agency required to be licensed under this section.
The department shall prescribe forms for original and renewal applications. A partnership or limited liability company application shall be executed by all members of the partnership or limited liability company. A corporate application shall be executed by the secretary and the president or vice president and, in addition, in the case of a foreign corporation, by the registered agent.
Subject to subds. 2.
, the department shall prescribe, by rule, such qualifications as it deems appropriate, with due regard to investigative experience, special professional education and training and other factors bearing on professional competence.
An individual who has been convicted in this state or elsewhere of a felony and who has not been pardoned for that felony is not eligible for a license under this section.
The department may not issue a license under this section to an individual unless the individual is over 18 years of age.
The department, in considering applicants for license, shall seek the advice of the appropriate local law enforcement agency or governmental official, and conduct such further investigation, as it deems proper to determine the competence of the applicant.
The department may, based on rules adopted by the department, refuse to issue a license under this section to an individual who has committed any of the acts described in sub. (6) (a) 1.
Issuance of licenses; fees.
Upon receipt and examination of an application executed under sub. (2)
, and after any investigation that it considers necessary, the department shall, if it determines that the applicant is qualified, grant the proper license upon payment of the initial credential fee determined by the department under s. 440.03 (9) (a)
. No license shall be issued for a longer period than 2 years, and the license of a private detective shall expire on the renewal date of the license of the private detective agency, even if the license of the private detective has not been in effect for a full 2 years. Renewals of the original licenses issued under this section shall be issued in accordance with renewal forms prescribed by the department and shall be accompanied by the applicable fees specified in s. 440.08
or determined by the department under s. 440.03 (9) (a)
. The department may not renew a license unless the applicant provides evidence that the applicant has in force at the time of renewal the bond or liability policy specified in this section.
Rules concerning dangerous weapons.
The department shall promulgate rules relating to the carrying of dangerous weapons by a person who holds a license or permit issued under this section or who is employed by a person licensed under this section. The rules shall meet the minimum requirements specified in 15 USC 5902
(b) and shall allow all of the following:
Bonds or liability policies required.
No license may be issued under this section until a bond or liability policy, approved by the department, in the amount of $100,000 if the applicant for the license is a private detective agency and includes all principals, partners, members or corporate officers, or in the amount of $2,000 if the applicant is a private detective, has been executed and filed with the department. Such bonds or liability policies shall be furnished by an insurer authorized to do a surety business in this state in a form approved by the department. The person shall maintain the bond or liability policy during the period that the license is in effect.
In this subsection, “violation" means a violation of any state or local law that is punishable by a forfeiture.
A person who holds a license or permit issued under this section and who is convicted of a felony or misdemeanor, or is found to have committed a violation, in this state or elsewhere, shall notify the department in writing of the date, place and nature of the conviction or finding within 48 hours after the entry of the judgment of conviction or the judgment finding that the person committed the violation. Notice may be made by mail and may be proven by showing proof of the date of mailing the notice.
The requirement that a person acting as a private detective, investigator or special investigator be licensed under this section does not apply to attorneys, law students or law school graduates employed by an attorney or persons directly employed by an attorney or firm of attorneys whose work as private detective, investigator or special investigator is limited to such attorney or firm or to persons directly employed by an insurer or a retail credit rating establishment. A person who accepts employment with more than one law firm shall be subject to the licensing provisions of this section.
The license requirements of this section do not apply to any person employed directly or indirectly by the state or by a municipality, as defined in s. 345.05 (1) (c)
, or to any employee of a railroad company under s. 192.47
, or to any employee of a commercial establishment, while the person is acting within the scope of his or her employment and whether or not he or she is on the employer's premises.
An employee of any agency that is licensed as a private detective agency under this section and that is doing business in this state as a supplier of uniformed private security personnel to patrol exclusively on the private property of industrial plants, business establishments, schools, colleges, hospitals, sports stadiums, exhibits and similar activities is exempt from the license requirements of this section while engaged in such employment, if all of the following apply:
The private detective agency furnishes an up-to-date written record of its employees to the department. The record shall include the name, residence address, date of birth and a physical description of each employee together with a recent photograph and 2 fingerprint cards bearing a complete set of fingerprints of each employee.
The private detective agency notifies the department in writing within 5 days of any change in the information under subd. 2.
regarding its employees, including the termination of employment of any person.