ENFORCEMENT AND GENERAL PROVISIONS
Civil liability; sale in violation.
Investigations and subpoenas.
Hearings and judicial review.
Enforcement of criminal penalties.
Rules, forms and orders.
Administrative assessments; investor education.
Fees and expenses.
Service of process.
Open records; publication.
Administrative files and opinions.
Waivers of compliance void.
TITLE AND DEFINITIONS
This chapter shall be known and may be cited as the "Wisconsin Franchise Investment Law".
History: 1971 c. 241
Protection for consumers against unfair and deceptive business. Jeffries, 57 MLR 559.
The Wisconsin franchise investment law. Mett, 1972 WBB No. 5.
Avoiding the Accidental Franchise. Modell & Fittante. Wis. Law. May 2003.
In this chapter:
"Area franchise" means any contract or agreement between a franchisor and a subfranchisor whereby the subfranchisor is granted the right, for consideration given in whole or in part for such right, to sell or negotiate the sale of franchises in the name or on behalf of the franchisor.
"Division" means the division of securities.
"Franchise" means a contract or agreement, either express or implied, whether oral or written, between 2 or more persons by which:
A franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
The operation of the franchisee's business pursuant to such plan or system is substantially associated with the franchisor's business and trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor or its affiliate; and
The franchisee is required to pay, directly or indirectly, a franchise fee.
Unless specifically stated otherwise, "franchise" includes area franchise.
"Franchisee" means a person to whom a franchise is granted.
"Franchise fee" means any fee or charge that a franchisee or subfranchisor is required to pay or agrees to pay for the right to enter into a business under a franchise agreement, including, but not limited to, any such payment for goods and services. The following shall not be considered the payment of a "franchise fee":
The purchase or agreement to purchase goods at a bona fide wholesale price. The division may issue rules defining wholesale transactions exempt under this paragraph.
The payment of a reasonable service charge to the issuer of a credit card by an establishment accepting or honoring such credit card.
Amounts paid in connection with trading stamp promotions permitted under s. 100.15
by a person issuing trading stamps in connection with the retail sale of merchandise or service.
Any other consideration which the division by rule excludes from "franchise fee".
"Franchisor" means a person who grants a franchise.
"Fraud" and "deceit" are not limited to common law fraud or deceit.
"Offer to sell" includes every attempt to offer to dispose of, or solicitation of an offer to buy, a franchise or interest in a franchise for value. This term does not include the renewal or extension of an existing franchise where there is no interruption in the operation of the franchised business by the franchisee.
"Order" means every direction or determination of the division designated an order and made in writing by the division, except a rule as defined under s. 227.01 (13)
"Sale" or "sell" includes every contract or agreement of sale of, contract to sell, or disposition of, a franchise or interest in a franchise for value. This term does not include the renewal or extension of an existing franchise where there is no interruption in the operation of the franchised business by the franchisee.
"Subfranchisor" means a person to whom an area franchise is granted.
See also s. DFI-Sec 31.01
, Wis. adm. code.
Service stations leased to their operators under agreements under which the rent was based on the amount of gasoline sold were not franchises subject to the Wisconsin Franchise Investment Law. Clark Oil & Refining Corp. v. Leistikow, 69 Wis. 2d 226
, 230 N.W.2d 736
Franchise tie-ins and antitrust; a critical analysis. Boer. 1973 WLR 847.
REGISTRATION OF FRANCHISES
No person may sell in this state any franchise unless the franchise has been registered under this chapter or is exempted under s. 553.23
See also s. DFI-Sec 32.05
, Wis. adm. code.
A franchisor who illegally sold a franchise had no right to set off the value of "benefits conferred" upon the franchisee against the franchisor's liability for its illegal actions. Hiltpold v. T-Shirts Plus, Inc. 98 Wis. 2d 711
, 298 N.W.2d 217
(Ct. App. 1980).
Failure to register an offer of franchises under sub. (1) affords only an action for rescission and does not add any additional rights over what a plaintiff has under the law of equity. Lulling v. Barnaby's Family Inns, Inc. 499 F. Supp. 1353
This chapter does not apply to the offer or sale of the following franchises:
Any relationship if the person described in the offer as a franchisee, or any of the current directors or executive officers of that person, has been in the type of business of the franchise relationship for more than 2 years and the parties anticipated, or should have anticipated, at the time the agreement establishing the franchise relationship was reached, that the sales arising from the relationship would account for no more than 20% of the gross sales revenue of the franchisee for a period of at least one year after the franchisee begins selling the goods or services involved in the franchise.
An association of producers of agricultural products authorized by 7 USC 291
An organization that is operated on a cooperative basis by and for independent retailers and that sells goods at wholesale to, or furnishes services primarily to, its members.
History: 1995 a. 364
Private franchisee and subfranchisor sales exempted.
The sale of a franchise by a franchisee for the franchisee's own account and the sale of the entire area franchise owned by a subfranchisor for the subfranchisor's own account are exempted from s. 553.21
if the sale is not effected by or through a franchisor. A sale is not effected by or through a franchisor merely because a franchisor has a right to approve or disapprove a different franchisee or because a franchisor imposes or has the right to impose a fee or charge to reimburse the franchisor for reasonable and actual expenses incurred in connection with the sale.
Experienced franchisee exempt transactions. 553.235(1)(1)
Conditions of exemption.
Except as provided in sub. (2)
, a registration exemption is available for the sale of a franchise that meets all of the following conditions:
The immediate cash payment required by the franchisee upon purchase of the franchise is at least $100,000 and does not exceed 20% of the franchisee's net worth, excluding the franchisee's principal residence, furnishings and automobiles for personal use.
With respect to each sale in this state, the franchisor reasonably believes immediately before making the sale that the prospective franchisee, either alone or with the prospective franchisee's representative, has sufficient knowledge and experience in the type of business operated under the franchise that the prospective franchisee is capable of evaluating the merits and risks of the prospective franchise investment.
The exemption under sub. (1)
is not available for the sale of a franchise in which the franchisee would be a motor vehicle dealer or a motor vehicle distributor or wholesaler, as defined in s. 218.0101
The division may, by rule or order, withdraw or further condition the availability of the exemption under sub. (1)
Exemption proceedings. 553.24(1)
The division may by order deny or revoke any exemption under s. 553.23
with respect to the sale of a franchise for any of the grounds specified in s. 553.28 (1)
If the public interest and the protection of investors so require, the division may, by order, summarily deny or revoke any exemption under s. 553.23
with respect to the sale of a franchise.
No order under this section may operate retroactively.
A person who sells a franchise pursuant to an exemption under s. 553.23
after the exemption is denied or revoked by an order of the division does not violate s. 553.21
The person was not given notice of the order; and
The person sustains the burden of proof to establish that he or she was not given notice and did not know and, in the exercise of reasonable care, could not have known of the order.
In any proceeding under this chapter, the burden of proving an exemption or an exception from a definition is upon the person claiming it.
Within 10 days after the filing date of an application for an exemption under s. 553.25
, the division may require that additional information be filed if the division determines that the information is reasonably necessary to establish an exemption under s. 553.25
. If the division requires additional information, the exemption is not effective until 10 days after the additional information is filed with the division, unless a shorter period is permitted by the division.
Exemption by division.
The division may by rule or order exempt from registration under s. 553.21
any franchise if registration is not necessary or appropriate in the public interest or for the protection of investors.