January 24, 2014 - Introduced by Representatives Kapenga, Born, Craig, Hutton,
Kulp, LeMahieu, Murphy, Murtha, Schraa and Tittl, cosponsored by
Senators Gudex, Petrowski, L. Taylor, Grothman and Olsen. Referred to
Committee on Small Business Development.
AB657,1,6 1An Act to repeal 227.04 (2) (b), 895.59 (1) and 895.59 (2) (a) to (c); to renumber
2227.04 (2) (a), (c) and (d), 895.59 (2) (d), 895.59 (2) (e) and 895.59 (2) (f); to
3renumber and amend
227.04 (2) (intro.) and 895.59 (2) (intro.); to amend
4227.04 (1); and to create 227.04 (1) (a), 227.04 (2m) (b) and 227.04 (2m) (d) of
5the statutes; relating to: agency discretion in imposing penalties for minor
6violations of rules by small businesses and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, public agencies are required to provide assistance to small
businesses to help those small businesses comply with the rules promulgated by
those agencies. Public agencies are required under current law to establish a rule
that creates reduced fines and enforcement mechanisms for minor violations of
agency rules by small businesses. Current law requires public agencies to consider
the appropriateness of a written warning, a reduced fine, or an alternative penalty
if the small business violates a rule, that small business has made a good faith effort
to comply with the rule, and the minor violation does not pose a threat to public
health, safety, or welfare.
In addition, under current law, each public agency is required to promulgate a
rule that discloses in advance the discretion that the agency will follow in the
enforcement of rules against a small business. The rule promulgated shall include
a reduction or waiver of a penalty if the small business voluntarily discloses a rule

violation, and may include consideration of the small business's ability to pay when
determining the penalty. Current law prohibits any discretion in the enforcement
of a rule if certain conditions apply, including if the agency discovers the violation
first, the violation resulted in a substantial economic advantage to the small
business, the small business has repeatedly violated the rule, or the violation may
result in an imminent endangerment to public health or safety.
This bill continues to require public agencies to promulgate a rule that discloses
in advance the discretion that the public agency will follow in the enforcement of
rules against a small business that commits a minor violation of a rule, but limits the
conditions when such discretion is not allowed to minor violations involving a small
business that has repeatedly violated the rule, to minor violations that result in a
substantial economic advantage for the small business, and to minor violations that
may result in an imminent endangerment to public health or safety.
The bill also specifies that the public agency shall consider a number of criteria
for allowing discretion in the enforcement of a rule or assessment of a penalty for a
minor violation, including the following:
1. The difficulty and cost to a small business of complying with a rule.
2. The financial capacity of the small business, including the ability of the small
business to pay the amount of the possible penalty.
3. The compliance options available.
4. The level of public interest and concern.
5. The opportunities available to the small business to understand and comply
with a rule.
6. Fairness to the small business and to others, including competitors and the
public.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB657,1 1Section 1. 227.04 (1) of the statutes is amended to read:
AB657,2,22 227.04 (1) In this section, "small :
AB657,2,3 3(b) "Small business" has the meaning given in s. 227.114 (1).
AB657,2 4Section 2. 227.04 (1) (a) of the statutes is created to read:
AB657,2,85 227.04 (1) (a) "Minor violation" means a rule violation that does not cause
6serious harm to the public, is committed by a small business, and the violation is not
7willful, the violation is not likely to be repeated, there is a history of compliance by
8the violator, or the small business has voluntarily disclosed the violation.
AB657,3
1Section 3. 227.04 (2) (intro.) of the statutes is renumbered 227.04 (3) (intro.)
2and amended to read:
AB657,3,43 227.04 (3) (intro.) Consistent with the requirements under s. 895.59 sub. (2m)
4and, to the extent possible, each agency shall do all of the following:
AB657,4 5Section 4. 227.04 (2) (a), (c) and (d) of the statutes are renumbered 227.04 (3)
6(a), (c) and (d).
AB657,5 7Section 5. 227.04 (2) (b) of the statutes is repealed.
AB657,6 8Section 6. 227.04 (2m) (b) of the statutes is created to read:
AB657,3,139 227.04 (2m) (b) The rule promulgated under this subsection shall specify the
10situations in which the agency will allow discretion in the enforcement of a rule
11against a small business that has committed a minor violation. The rule shall
12consider the following criteria for allowing discretion in the enforcement of the rule
13and the assessment of a penalty, including a forfeiture, fine, or interest:
AB657,3,1414 1. The difficulty and cost of compliance with the rule by the small business.
AB657,3,1615 2. The financial capacity of the small business, including the ability of the small
16business to pay the amount of any penalty that may be imposed.
AB657,3,1817 3. The compliance options available, including options for achieving voluntary
18compliance with the rule.
AB657,3,1919 4. The level of public interest and concern.
AB657,3,2120 5. The opportunities available to the small business to understand and comply
21with the rule.
AB657,3,2322 6. Fairness to the small business and to other persons, including competitors
23and the public.
AB657,7 24Section 7. 227.04 (2m) (d) of the statutes is created to read:
AB657,4,2
1227.04 (2m) (d) A rule promulgated under this subsection applies to minor
2violations committed after the effective date of the rule.
AB657,8 3Section 8. 895.59 (1) of the statutes is repealed.
AB657,9 4Section 9. 895.59 (2) (intro.) of the statutes is renumbered 227.04 (2m) (a) and
5amended to read:
AB657,4,136 227.04 (2m) (a) Each agency shall promulgate a rule that requires the agency
7to disclose in advance the discretion that the agency will follow in the enforcement
8of rules and guidelines against a small business that has committed a minor
9violation
. The rule promulgated under this subsection shall may include the
10reduction or waiver of penalties for a voluntary disclosure, by a small business, of
11actual or potential violations of rules or guidelines. The rule promulgated under this
12subsection may include the consideration of the violator's ability to pay when
13determining the amount of any monetary penalty, or assessment, or surcharge
.
AB657,4,17 14(c) The rule promulgated under this subsection shall specify when the
15situations in which
the agency will not allow discretion in the enforcement of a rule
16or guideline against small businesses that have committed minor violations and
17shall include all of the following situations in which discretion is not allowed:
AB657,10 18Section 10. 895.59 (2) (a) to (c) of the statutes are repealed.
AB657,11 19Section 11. 895.59 (2) (d) of the statutes is renumbered 227.04 (2m) (c) 1.
AB657,12 20Section 12. 895.59 (2) (e) of the statutes is renumbered 227.04 (2m) (c) 2.
AB657,13 21Section 13. 895.59 (2) (f) of the statutes is renumbered 227.04 (2m) (c) 3.
AB657,4,2222 (End)
Loading...
Loading...