2009 WISCONSIN ACT 3
An Act to amend 49.857 (1) (d) 10., 73.0301 (1) (d) 3m., 103.005 (10), 111.322 (2m) (a), 111.322 (2m) (b) and 321.60 (1) (a) 10.; and to create 60.33 (8p), 61.25 (6p), 62.09 (11) (L) and 103.34 of the statutes; relating to: the regulation of traveling sales crews, requiring the exercise of rule-making authority, and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
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Section
1. 49.857 (1) (d) 10. of the statutes is amended to read:
49.857 (1) (d) 10. A certificate issued under s. 103.275, 103.34, 103.91, or 103.92.
3,1g
Section 1g. 60.33 (8p) of the statutes is created to read:
60.33 (8p) Traveling sales crew worker permits. Stamp or endorse traveling sales crew worker permits at the request of an employer under s. 103.34 (11) (c).
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Section 1m. 61.25 (6p) of the statutes is created to read:
61.25 (6p) To stamp or endorse traveling sales crew worker permits at the request of an employer under s. 103.34 (11) (c).
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Section 1r. 62.09 (11) (L) of the statutes is created to read:
62.09 (11) (L) The clerk shall stamp or endorse traveling sales crew worker permits at the request of an employer under s. 103.34 (11) (c).
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Section
2. 73.0301 (1) (d) 3m. of the statutes is amended to read:
73.0301 (1) (d) 3m. A license or certificate issued by the department of workforce development under s. 102.17 (1) (c), 103.275 (2) (b), 103.34 (3) (c), 103.91 (1), 103.92 (3), 104.07 (1) or (2), or 105.13 (1).
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Section
3. 103.005 (10) of the statutes is amended to read:
103.005 (10) Except as provided in ss. 103.275 (2) (bm) and (br), 103.34 (10) (b) and (c), 103.91 (4) (b) and (c), 103.92 (6) and (7), 104.07 (5) and (6), and 105.13 (2) and (3), orders of the department under chs. 103 to 106 shall be subject to review in the manner provided in ch. 227.
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Section
4. 103.34 of the statutes is created to read:
103.34 Regulation of traveling sales crews. (1) Definitions: In this section:
(a) "Certificate of registration" means a certificate of registration issued under this section authorizing a person to employ traveling sales crew workers.
(am) "Consumer" means an individual to whom a seller sells, offers to sell, or advertises or promotes the sale of consumer goods or services. "Consumer" does not include an individual who purchases goods or services in a business or governmental capacity or for resale to others.
(ap) "Consumer goods or services" means goods or services, including personal investment opportunities, personal business opportunities, and personal training courses, that are typically used for personal, family, or household purposes.
(b) "Disqualifying offense" means any of the following:
1. A violation of s. 125.07 (1) (a), (2) (a) 1. or 2., or (4) (a) or (b), 125.085 (3) (a) or (b), 125.09 (2), 961.41 (1) or (1m), 961.573, 961.574, or 961.575, of a substantially similar federal law or law of another state, or of a local ordinance that strictly conforms to any of those statutes, if the violation was committed in connection with or incident to any traveling sales crew activities.
2. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.07, 940.08. 940.09, 940.10, 940.19 (2), (4), (5), or (6), 940.21, 940.225 (1), (2), or (3), 940.23, 940.235, 940.24, 940.25, 940.30, 940.302, 940.305, 940.31, 943.02, 943.03, 943.04, 943.10, 943.30, 943.31, 943.32, 944.32, 944.33 (2), 944.34, 946.10, 948.02 (1) or (2), 948.025, 948.03 (2) or (3), 948.04, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (1), or 948.30 or of a substantially similar federal law or law of another state.
3. A violation of s. 943.20, 943.201, 943.203, 943.21, 943.23, 943.24 (2), 943.34, 943.50, 943.61, 943.62, or 943.70 or of a substantially similar federal law or law of another state, if the value of the property misappropriated is $2,500 or more.
4. A violation of s. 100.18 or 100.195, of an order issued under s. 100.20, or of a substantially similar federal law or law of another state.
(c) "Hazardous material" has the meaning given in
49 USC 5102 (2).
(d) "Traveling sales crew" means 2 or more individuals who are employed as salespersons or in related support work, who travel together in a group, and who are absent overnight from their permanent places of residence for the purpose of selling consumer goods or services to consumers from house to house, on any street, or in any other place that is open to the public. "Traveling sales crew" does not include 2 or more individuals who are traveling together for the purpose of participating in a trade show or convention or 2 or more immediate family members who are traveling together for the purpose of selling consumer goods or services.
(e) "Traveling sales crew activities" means the sale of consumer goods or services to consumers from house to house, on any street, or in any other place that is open to the public or related support work. "Traveling sales crew activities" does not include the sale of consumer goods or services from a fixed location at a concert, festival, carnival, street fair, public exhibition, or other similar special event with the permission of the organizer of the special event.
(f) "Traveling sales crew worker" means a member of a traveling sales crew.
(2) Registration required. No person may employ, offer to employ, or otherwise recruit an individual to work as a traveling sales crew worker without first obtaining a certificate of registration from the department. To obtain a certificate of registration, a person shall complete an application under sub. (3) (a), meet the minimum requirements specified in sub. (3) (c) for issuance of a certificate of registration, and pay a registration fee determined by the department by rule promulgated under sub. (13). A certificate of registration is valid for 12 months unless sooner suspended, restricted, or revoked and is nontransferable. A registrant may renew a certificate of registration by submitting an application under sub. (3) (a) and paying the registration fee not less than 30 days before the expiration date of the certificate of registration.
(3) Application for registration. (a) To obtain a certificate of registration, a person shall complete an application that contains all of the following information:
1. The name of the applicant, the address and telephone number of the applicant's principal place of business, and, if the applicant is engaged in sales activities on behalf of a principal, the name, address, and telephone number of the principal.
2. If the applicant is a corporation, the date and place of the applicant's incorporation or, if the applicant is a limited liability company, the date and place of the applicant's organization.
3. The names and permanent home addresses of the proprietors, managing partners, managers, or principal officers of the applicant, together with proof of identification of those individuals, which may be in the form of a birth certificate, a valid operator's license issued under ch. 343 or under a comparable law of another state that contains a photograph of the license holder, or an identification card issued under s. 343.50 or under a comparable law of another state that contains a photograph of the person identified.
4. The names, permanent home addresses, motor vehicle operator's license numbers, and dates of birth of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers, together with proof of identification of those individuals, as provided under subd. 3.
5. Information regarding the conviction record of all proprietors, managing partners, managers, or principal officers of the applicant, and of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers, and information regarding any violation by any of those individuals of s. 100.18 or 100.195, of an order issued under s. 100.20, or of a substantially similar federal law or law of another state.
6. The social security number or federal employer identification number of the applicant as provided in sub. (10) (a).
7. The type of sales activities to be performed and the nature of the consumer goods or services to be sold by the traveling sales crew workers of the applicant. If the goods to be sold are magazine subscriptions, the applicant shall provide the names, addresses, and telephone numbers of the publishers of those magazines.
8. A statement identifying each motor vehicle that will be used to transport the applicant's traveling sales crew workers, including the type and license number of each motor vehicle, and documentation showing that each motor vehicle is in compliance with all state and federal safety standards that are applicable to the motor vehicle as provided in sub. (7) (a).
9. A statement indicating whether the duties of the applicant's traveling sales crew workers will include the storage, handling, or transportation of hazardous materials or may result in any other exposure of those workers to hazardous materials and, if so, documentation showing that the applicant is in compliance with all state and federal safety standards that are applicable to the storage, handling, and transportation of the hazardous materials as provided in sub. (7) (b).
10. Any document required by the department to prove that the applicant has complied with the proof of financial responsibility requirement under sub. (4), the disclosure statement requirement under sub. (5), and the proof of insurance requirement under sub. (8).
11. Any other information that the department considers relevant to the protection of the health, safety, and welfare of the traveling sales crew workers employed by the applicant.
(b) 1. On receipt of an application under par. (a) and payment of the registration fee under sub. (2), the department of workforce development shall investigate the applicant to determine whether the applicant is qualified under par. (c) to receive a certificate of registration. That investigation shall include a criminal history search by the department of justice of all proprietors, managing partners, managers, or principal officers of the applicant, and of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers. That investigation shall also include a search by the department of workforce development to determine whether any of those individuals has committed a violation of s. 100.18 or 100.195, of an order issued under s. 100.20, or of a substantially similar federal law or law of another state.
2. If the person being investigated is, or at any time within the 5 years preceding the date of the application has been, a nonresident or if the department of workforce development determines that any information obtained as a result of the investigation under subd. 1. provides a reasonable basis for further investigation, the department of workforce development may require the person being investigated to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identification of the person and obtaining the person's criminal conviction record. The department of workforce development shall keep confidential all information received from the department of justice and the federal bureau of investigation under this subdivision.
(c) Subject to par. (d) and sub. (10) (b) and (c), after completing the investigation under par. (b), the department shall issue a certificate of registration to the applicant if the department determines that the applicant meets the minimum requirements under this section and rules promulgated under sub. (13) for issuance of a certificate of registration and is satisfied that the applicant will comply with this section and those rules.
(d) The department may deny, suspend, revoke, restrict, or refuse to renew a certificate of registration if the department determines that any of the following apply:
1. The applicant or registrant is not the real party in interest with respect to the application or certificate of registration, and the real party in interest has previously been denied issuance or renewal of a certificate of registration, has had a certificate of registration suspended, revoked, or restricted, or is not qualified to receive a certificate of registration under par. (c).
2. A proprietor, managing partner, manager, or principal officer of the applicant, or an employee, agent, or representative of the applicant who supervises or transports traveling sales crew workers has been convicted of a disqualifying offense within the 5 years preceding the date of the application.
3. The applicant or registrant has made a material misrepresentation or false statement in the application for the certificate of registration.
4. The applicant or registrant has failed to notify the department of any change in the information submitted in the application as required under par. (e).
5. The applicant or registrant has failed to maintain proof of financial responsibility as required under sub. (4); failed to comply with the written disclosure statement requirements under sub. (5) (b); failed to pay wages, provide a statement, or keep, preserve, or furnish records as required under sub. (6); violated a safety standard under sub. (7); failed to maintain insurance coverage as required under sub. (8); engaged in a practice prohibited under sub. (9); employed a traveling sales crew worker in violation of sub. (11) (a) or (c) or failed to keep or furnish records as required under sub. (11) (b); failed to pay a penalty imposed under sub. (12) or to comply with an order of the department imposed as a result of a violation of this section or any rule promulgated under sub. (13); or otherwise failed to comply with this section or any rule promulgated under sub. (13).
(e) If any change occurs in any of the information submitted to the department under par. (a), the registrant shall notify the department of that change within 30 days after the change occurs.
(f) A registrant and all employees, agents, or representatives of a registrant who supervise or transport traveling sales crew workers shall carry at all times while engaging in traveling sales crew activities a copy of the registrant's certificate of registration and shall exhibit that copy upon the request of any deputy of the department, law enforcement officer, or person with whom the registrant, employee, agent, or representative is doing business. Failure to exhibit that copy upon that request is prima facie evidence of a violation of this section.
(4) Financial responsibility. (a) An applicant shall establish proof of its ability to pay any compensation owed to a traveling sales crew worker employed by the applicant and any penalties that may be imposed under sub. (12).
(b) An applicant shall prove its ability to pay under par. (a) by maintaining one of the following commitments in an amount approved by the department, but not less that $10,000, and in a form approved by the department:
1. A bond.
2. A certificate of deposit.
