Section 303.06. Appeals on petitions.

 

(1)   Application. The provisions of this section shall apply to appeals on any determinations made under ss. SPS 303.03 , 303.04 and 303.05 .

(2)   Request for review by the administrator.

(a) Any person whose petition for variance is denied, approved with conditions, approved as a temporary variance, or approved as an experimental variance or any person whose rights are affected by the granting of a petition for variance may request a review by the administrator. The review by the administrator shall not be considered as a contested case hearing.

(b) A person otherwise entitled to review by the administrator under par. (a) may waive a review by submitting to the secretary a written request clearly indicating the intent to waive review and requesting to proceed to a contested case hearing under sub. (6) .

(c) The request for review by the administrator shall be in writing and shall include a statement of the specific reasons why the person believes the division's decision on the petition for variance is incorrect.

(d) A review by the administrator shall be denied if the request for review is received more than 30 days after the date of the decision on the petition for variance.

(e) A review shall be denied, and the petition remanded to staff in the division, if the request for review contains significant new information not considered by the division in making the decision on the petition for variance. The administrator may remand the petition to staff in the division at any point in the review process if significant new information is presented by the petitioner or other persons seeking review by the administrator, and that information was not available to the division at the time of its decision on the petition for variance. Following a remand, the division shall issue a decision on the petition for variance within 30 days after the date the petition for variance is remanded by the administrator. Petitioners and other persons affected by a petition for variance may request a review by the administrator or a hearing by the secretary under this section following a decision by the division on remand.

(3)   Decision.

(a) If the administrator determines that insufficient reasons are provided in the request for review, the request may be denied. The denial shall be in writing and shall provide the petitioner with the reason for denial and with information about the right to appeal the decision on the petition to the secretary.

(b) If the administrator grants the request for review, the petitioner shall be notified of the date, time and place where the review will be conducted. The administrator shall schedule the review within 30 business days after the request for review, unless the person requesting the review asks for an extension.

(4)   Review conference.

(a) If a review is granted, the person requesting the review and any other interested persons shall be provided an opportunity to meet with the administrator to present statements and documents regarding the petition for variance. The administrator may require the attendance of division staff familiar with the basis for the decision on the petition for variance to explain the decision, to comment on the testimony and documents presented by the person requesting review, and to answer questions from the person requesting review.

(b) The administrator may conduct the review conference personally or may designate one or more persons to review the division's decision on the petition for variance. If a designation is made, the person requesting review shall be notified prior to the review conference who will conduct the conference and who will make the decision following the review conference.

(c) At the request of the person requesting review, the administrator may issue subpoenas under s. 101.02 (5) (c) , Stats., to compel the attendance and testimony of witnesses and the production of documents. The administrator may refuse to issue a subpoena if the information to be provided by the witness or the documents identified in the subpoena will not contribute materially to an effective review of the decision on the petition for variance.

(d) The administrator may electronically record a review conference. No transcript shall be prepared by the administrator. A person requesting review may, at his or her own expense, provide a court reporter to transcribe the proceedings or any portion thereof.

(e) The person requesting review, department staff responsible for the decision on the petition for variance, and witnesses called by the person requesting review or department staff shall provide informal statements. There shall be no sworn testimony. The person requesting review and staff designated by the administrator may ask questions of any person making a statement in a review conference. The administrator may limit questions and statements if the information being requested or provided does not contribute substantially to an understanding of the issues involved in the review.

(5)   Decision of the administrator. The administrator shall issue a written decision within 30 business days following the review conference that shall affirm, vacate, or modify the division's decision on the petition for review. The written decision shall inform the person requesting review of the right to appeal to the secretary under this section.

(6)   Hearing by the secretary.

(a) Any person adversely affected by a decision on a petition for variance may request a hearing by the secretary whether or not that person has first requested a review by the administrator.

(b) The appeal to the secretary shall be in writing and shall indicate the nature of the person's interest in the petition for variance, the identity of all other known parties who may have an interest in the decision on the petition for variance, and a statement of the reasons why the person believes the division's decision on the petition for variance is incorrect. An appeal may be returned to the petitioner for additional information, however the date the appeal was first received by the secretary shall be the date used to determine the timeliness of the appeal.

(c) No hearing by the secretary may be held if the request for hearing is received more than 30 days after the date of the division's decision on the petition for variance or the date of the administrator's decision following a review conference, whichever is later. A request for hearing may be denied under the provision of s. 101.02 (6) (g) , Stats. A denial of a hearing shall be in writing and shall contain the reasons for the denial and a statement of the person's appeal rights, if any.

(d) The hearing by the secretary shall be a contested case hearing. The hearing and decision issued after the hearing shall be governed by the provisions of ch. 227 , Stats.

History: Cr. Register, November, 1988, No. 395 , eff. 12-1-88; r. and recr. (2) to (6) and r. (7) to (10), Register, September, 2000, No. 537 , eff. 10-1-00; CR 05-049 : am. (2) (c) Register July 2006 No. 607 , eff. 8-1-06; correction in (1) made under s. 13.92 (4) (b) 7. , Stats., Register December 2011 No. 672 .

Note

Requests for a review by the administrator may be sent to Administrator, Division of Industry Services, P.O. Box 2658, Madison, WI 53701-2658. Microsoft Windows NT 6.1.7601 Service Pack 1 Requests for a contested case hearing may be forwarded to the Department of Safety and Professional Services Legal Counsel, P.O. Box 7190, Madison, WI 53707-7190. Microsoft Windows NT 6.1.7601 Service Pack 1