Amendment ASA-AB150

AB150-ASA,2069,5 553.27 (2) If the commissioner division finds that the applicant has failed to demonstrate that adequate financial arrangements have been made to fulfill obligations to provide real estate, improvements, equipment, inventory, training or other items included in the offering, the commissioner division may by rule or order require the escrow of franchise fees and other funds paid by the franchisee or subfranchisor until no later than the time of opening of the franchise business, or, at the option of the franchisor, the furnishing of a surety bond as provided by rule of the commissioner division, if the commissioner division finds that such requirement is necessary and appropriate to protect prospective franchisees or subfranchisors.

AB150-ASA, s. 6820 Section 6820. 553.27 (3) of the statutes is amended to read:

AB150-ASA,2069,13 553.27 (3) The application for registration shall be accompanied by a proposed offering prospectus, which shall contain the material information set forth in the application for registration, as specified by rule of the commissioner division, and such additional disclosures as the commissioner division may require. The prospectus shall recite in bold type of not less than 10-point type that registration does not constitute approval recommendation or indorsement by the commissioner division.

AB150-ASA, s. 6821 Section 6821. 553.27 (4) of the statutes is amended to read:

AB150-ASA,2069,20 553.27 (4) No franchise subject to registration under this chapter may be sold in this state unless a copy of the offering circular in the form prescribed by rule of the commissioner division is provided to the prospective franchisee at least 10 business days prior to the execution by the prospective franchisee of any binding franchise or other agreement or at least 10 business days prior to the receipt of any consideration, whichever first occurs.

AB150-ASA, s. 6822 Section 6822. 553.27 (6) of the statutes is amended to read:

AB150-ASA,2070,4 553.27 (6) The commissioner division may accept and act upon the opinions, appraisals and reports of any engineers, appraisers or other experts which may be presented by an applicant or any interested party, on any question of fact concerning or affecting the franchises proposed to be offered and sold. In lieu of, or in addition to, such opinions, appraisals and reports, the commissioner division may have any or all matters concerning or affecting such franchises investigated, appraised, passed upon and certified to the commissioner division by engineers, appraisers or other experts selected by the commissioner division.

AB150-ASA, s. 6823 Section 6823. 553.27 (7) of the statutes is amended to read:

AB150-ASA,2070,10 553.27 (7) Any document filed under this chapter or ch. 551 may be incorporated by reference in a subsequent application filed under this chapter if it was filed within 2 years prior to the filing of such application, or is otherwise available in the files of the commissioner division, to the extent that the document is currently accurate.

AB150-ASA, s. 6824 Section 6824. 553.27 (8) of the statutes is amended to read:

AB150-ASA,2070,14 553.27 (8) The registration statement shall consist of a circular containing those items required by s. 553.26 to be disclosed to investors together with other documents which the commissioner division by rule prescribes.

AB150-ASA, s. 6825 Section 6825. 553.27 (9) of the statutes is amended to read:

AB150-ASA,2070,24 553.27 (9) Neither the fact that an application for registration under this chapter has been filed, nor the fact that such registration has become effective constitutes a finding by the commissioner division that any document filed under this chapter is true, complete or not misleading. Neither any such fact nor the fact that an exemption is available for a transaction means that the commissioner division has passed in any way upon the merits or qualifications of, or recommended or given approval to, any person, franchise or transaction. No person may make or cause to be made to any prospective purchaser or offeree any representation inconsistent with this subsection.

AB150-ASA, s. 6826 Section 6826. 553.27 (10) of the statutes is amended to read:

AB150-ASA,2071,17 553.27 (10) Every applicant for registration of an offer to sell franchises under this chapter shall file with the commissioner division, in such form as the commissioner division by rule prescribes, an irrevocable consent appointing the commissioner or the commissioner's successor in office division to be the applicant's attorney to receive service of any lawful process in any civil action against the applicant or the applicant's successor, executor or administrator, which arises under this chapter or any rule or order under this chapter after the consent has been filed, with the same force and validity as if served personally on the person filing the consent. A person who has filed a consent in connection with a previous registration under this chapter need not file another. Service may be made by leaving a copy of the process in the office of the commissioner division but it is not effective unless the plaintiff, who may be the commissioner division in an action instituted by the commissioner division, forthwith sends notice of the service and a copy of the process by registered or certified mail to the defendant or respondent at his or her last address on file with the commissioner division, and the plaintiff's affidavit of compliance with this subsection is filed in the case on or before the return day of the process, if any, or within such further time as the court allows.

AB150-ASA, s. 6827 Section 6827. 553.27 (11) (a) of the statutes is amended to read:

AB150-ASA,2071,25 553.27 (11) (a) A registrant may withdraw a registration statement, registration renewal statement or an amendment to the registration statement, and an applicant may withdraw an application for registration or an amendment to the application, if the registrant or applicant files with the commissioner division a written request for withdrawal. Except as provided in par. (b), withdrawal is effective at 12 midnight of the day on which the withdrawal request is filed with the commissioner division.

AB150-ASA, s. 6828 Section 6828. 553.27 (11) (b) of the statutes is amended to read:

AB150-ASA,2072,6 553.27 (11) (b) Withdrawal is effective at the time and upon the conditions set by the commissioner division by order if a proceeding to deny effectiveness to, or to postpone, suspend or revoke effectiveness of, the registration statement is pending when the request for withdrawal is filed or is begun within 30 days after the request for withdrawal is filed.

AB150-ASA, s. 6829 Section 6829. 553.28 (1) (intro.) of the statutes is amended to read:

AB150-ASA,2072,10 553.28 (1) (intro.) The commissioner division may issue an order denying effectiveness to, or postponing, suspending or revoking effectiveness of, any registration statement if the commissioner division finds any of the following:

AB150-ASA, s. 6830 Section 6830. 553.28 (1) (a) of the statutes is amended to read:

AB150-ASA,2072,13 553.28 (1) (a) That there has been a failure to comply with this chapter or the rules of the commissioner division pertaining thereto.

AB150-ASA, s. 6831 Section 6831. 553.28 (1) (e) of the statutes is amended to read:

AB150-ASA,2072,18 553.28 (1) (e) That the applicant or registrant has failed to pay the proper filing fee; but the commissioner division may enter only a denial order under this paragraph and the commissioner division shall vacate any such order when the deficiency has been corrected.

AB150-ASA, s. 6832 Section 6832. 553.28 (2) of the statutes is amended to read:

AB150-ASA,2072,22 553.28 (2) If the public interest and the protection of investors so require, the commissioner division may by order summarily deny, postpone, suspend or revoke the effectiveness of the registration.

AB150-ASA, s. 6833 Section 6833. 553.28 (3) of the statutes is amended to read:

AB150-ASA,2073,2 553.28 (3) The commissioner division may vacate or modify an order entered under s. 553.24 or this section if the commissioner division finds that the conditions which prompted its entry have changed or that it is otherwise in the public interest to do so.

AB150-ASA, s. 6834 Section 6834. 553.29 (1) (a) of the statutes is amended to read:

AB150-ASA,2073,8 553.29 (1) (a) Except as provided in par. (b), if no order under s. 553.24, 553.28 or 553.60 is in effect, registration of the offer of franchises becomes effective at 12 midnight of the 15th business day after the filing of the application for registration or the last amendment thereto, or at such earlier time as the commissioner division determines.

AB150-ASA, s. 6835 Section 6835. 553.29 (1) (b) of the statutes is amended to read:

AB150-ASA,2073,15 553.29 (1) (b) If the commissioner division requires the submission of additional information under s. 553.26 (20) before the registration of the offer of franchises becomes effective under par. (a) and if no order under s. 553.24, 553.28 or 553.60 is in effect, the registration becomes effective at 12 midnight of the 15th business day after the additional information is filed with the commissioner division, or at such earlier time as the commissioner division determines.

AB150-ASA, s. 6836 Section 6836. 553.29 (2) of the statutes is amended to read:

AB150-ASA,2073,19 553.29 (2) A franchise offering shall be duly registered for a period of one year from the effective date of the registration, unless the commissioner division by order or rule specifies a different period.

AB150-ASA, s. 6837 Section 6837. 553.29 (3) of the statutes is amended to read:

AB150-ASA,2073,23 553.29 (3) Registration of franchises shall be by order of the commissioner division, but the failure to issue an order shall not delay the effectiveness of a registration statement meeting the requirements of s. 553.26.

AB150-ASA, s. 6838 Section 6838. 553.30 (1) of the statutes is amended to read:

AB150-ASA,2074,8 553.30 (1) The registration statement may be renewed for additional periods of one year each, unless the commissioner division by rule or order specifies a different period, by submitting to the commissioner division a registration renewal statement no later than 15 business days prior to the expiration of the registration unless such period is waived by order of the commissioner division. If no order under this chapter is in effect, renewal of the registration statement becomes effective on the day on which the prior registration statement expires or at such earlier time as the commissioner division determines.

AB150-ASA, s. 6839 Section 6839. 553.30 (2) of the statutes is amended to read:

AB150-ASA,2074,12 553.30 (2) The registration renewal statement shall be in the form and content prescribed by the commissioner division, and shall be accompanied by 2 copies of the proposed offering prospectus.

AB150-ASA, s. 6840 Section 6840. 553.31 (1) of the statutes is amended to read:

AB150-ASA,2074,21 553.31 (1) Except as provided in sub. (3), a franchisor shall within 30 days after the happening of any material event affecting a registered franchise notify the commissioner division in writing, by an application to amend the registration statement, of any material change in the information contained in the application as originally submitted, amended or renewed. The commissioner division may by rule further define what shall be considered a material change for such purposes, and the circumstances under which a revised offering prospectus must accompany such application.

AB150-ASA, s. 6841 Section 6841. 553.31 (2) of the statutes is amended to read:

AB150-ASA,2075,2 553.31 (2) An amendment to an application filed after the effective date of the registration of the sale of franchises, if the amendment is approved by the commissioner division, is effective on the date the commissioner division determines, having due regard for the public interest or the protection of franchisees.

AB150-ASA, s. 6842 Section 6842. 553.41 (1) of the statutes is amended to read:

AB150-ASA,2075,10 553.41 (1) No person may make or cause to be made, in any document filed with the commissioner division or in any proceeding under this chapter, any statement which is, at the time and in the light of the circumstances under which it is made, false or misleading in any material respect or, in connection with any statement required to be made under s. 553.31 (1), omit to state a material fact necessary in order to make the statement made, in the light of the circumstances under which they are made, not misleading.

AB150-ASA, s. 6843 Section 6843. 553.41 (2) of the statutes is amended to read:

AB150-ASA,2075,13 553.41 (2) No person may violate any order of the commissioner division or condition therein of which the person has notice.

AB150-ASA, s. 6844 Section 6844. 553.41 (5) of the statutes is amended to read:

AB150-ASA,2075,21 553.41 (5) No person may wilfully represent to any prospective purchaser or seller of a franchise in this state that the filing of a franchise registration application or the registration of a franchise constitutes a finding by the commissioner division that any document filed under this chapter is true, complete, and not misleading, or in relation to an exemption or exception, that the commissioner division has passed in any way upon the merits of any franchise or wilfully represent in a similar manner that a franchise is registered or exempted when in fact, such is not the case.

AB150-ASA, s. 6845 Section 6845. 553.51 (4) of the statutes is amended to read:

AB150-ASA,2076,3 553.51 (4) No action may be maintained to enforce any liability under this section unless brought before the expiration of 3 years after the act or transaction constituting the violation upon which the liability is based or 90 days after delivery to the franchisee of a written notice disclosing any violation of s. 553.21 or 553.41, which notice shall be approved as to form by the commissioner division, whichever first expires.

AB150-ASA, s. 6846 Section 6846. 553.53 (1) of the statutes is amended to read:

AB150-ASA,2076,11 553.53 (1) No person may publish, distribute or use in this state any advertisement offering to sell or to purchase a franchise unless 2 true copies of the advertisement have been filed in the office of the commissioner with the division at least 5 days prior to the first publication, distribution or use thereof or such shorter period as the commissioner division by rule or order may allow, or unless the advertisement has been exempted from this section by rule of the commissioner division.

AB150-ASA, s. 6847 Section 6847. 553.53 (2) of the statutes is amended to read:

AB150-ASA,2076,14 553.53 (2) The commissioner division may by rule or order prohibit the use of advertising deemed false, fraudulent, misleading or deceptive.

AB150-ASA, s. 6848 Section 6848. 553.54 (1) of the statutes is amended to read:

AB150-ASA,2076,22 553.54 (1) The department of justice or any district attorney, upon informing the department of justice, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any act or practice constituting a violation of this chapter or any rule or order hereunder. The commissioner division may refer such evidence as is available concerning any violation to the district attorney of the county in which the violation occurred or to the attorney general who may institute proceedings under this section.

AB150-ASA, s. 6849 Section 6849. 553.54 (3) of the statutes is amended to read:

AB150-ASA,2077,6 553.54 (3) The department of justice may subpoena persons, administer oaths, take testimony, require the production of books and other documents and may request the commissioner division to exercise the commissioner's division's authority under s. 553.55 to aid in the investigation of alleged violations of this chapter. If a person fails to obey any subpoena issued by the department of justice, that person may be coerced under s. 885.12, except that no person shall be required to furnish any testimony or evidence under this subsection which might tend to incriminate that person.

AB150-ASA, s. 6850 Section 6850. 553.54 (4) of the statutes is amended to read:

AB150-ASA,2077,17 553.54 (4) In lieu of instituting or continuing an action pursuant to this section, the commissioner division or the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this chapter from the person who has engaged in such act or practice. The acceptance of such assurance by either the commissioner division or the department of justice shall be deemed acceptance by other state officials if the terms of the assurance so provide. An assurance entered into pursuant to this subsection shall not be considered evidence of a violation of this chapter, however, a violation of such an assurance constitutes a violation of this chapter and shall be subject to all penalties and remedies provided therefor.

AB150-ASA, s. 6851 Section 6851. 553.55 (1) of the statutes is amended to read:

AB150-ASA,2077,24 553.55 (1) The commissioner division may make such public or private investigations within or outside of this state as the commissioner division deems necessary to determine whether any person has violated or is about to violate this chapter or any rule or order hereunder or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder, and publish information concerning the violation of this chapter or any rule or order hereunder.

AB150-ASA, s. 6852 Section 6852. 553.55 (2) of the statutes is amended to read:

AB150-ASA,2078,7 553.55 (2) For the purpose of any investigation or proceeding under this chapter, the commissioner division or any officer designated by the commissioner division may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements or other documents or records which the commissioner division deems relevant or material to the inquiry. Failure to obey a subpoena or give evidence may be dealt with under s. 885.12.

AB150-ASA, s. 6853 Section 6853. 553.55 (3) (a) of the statutes is amended to read:

AB150-ASA,2078,18 553.55 (3) (a) No person is excused from attending and testifying or from producing any document or record before the commissioner division, or in obedience to the subpoena of the commissioner division or any officer designated by the commissioner division, or in any proceeding instituted by the commissioner division, on the ground that the testimony or evidence required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture. No individual may be prosecuted or subjected to any penalty or forfeiture for or on account of his or her testimony or evidence, after claiming his or her privilege against self-incrimination, except that the individual testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.

AB150-ASA, s. 6854 Section 6854. 553.56 (1) of the statutes is amended to read:

AB150-ASA,2078,23 553.56 (1) Except as provided by sub. (2), no order may be entered by the commissioner division under s. 553.24, 553.28 or 553.53 (2) without appropriate prior notice to all interested parties, opportunity for hearing and written findings of fact and conclusions of law.

AB150-ASA, s. 6855 Section 6855. 553.56 (2) of the statutes is amended to read:

AB150-ASA,2079,8 553.56 (2) Within 30 days after the commissioner division has issued an order summarily, an interested party may apply to the commissioner division for a hearing in respect to any matters determined by the order. Within 10 days after an interested party files a written request with the commissioner division for a hearing the matter shall be noticed for a hearing, and a hearing shall be held within 60 days after notice unless extended by the commissioner division for good cause. During the pendency of any hearing requested under this subsection, the order issued summarily shall remain in effect unless vacated or modified by the commissioner division.

AB150-ASA, s. 6856 Section 6856. 553.56 (3) of the statutes is amended to read:

AB150-ASA,2079,15 553.56 (3) After a hearing, the commissioner division may issue a final order as appropriate. The final order may affirm, vacate or modify an order issued summarily in effect during the pendency of the hearing as appropriate, or may include such other sanctions as are provided for under s. 553.24 or 553.28. An order issued summarily against a party becomes a final order if the party fails to request a hearing under sub. (2) or if the party defaults after requesting a hearing.

AB150-ASA, s. 6857 Section 6857. 553.56 (5) of the statutes is amended to read:

AB150-ASA,2079,20 553.56 (5) Orders and other official acts of the commissioner division are subject to judicial review under ch. 227 but orders originally entered without a hearing under s. 553.24, 553.28 or 553.60 may be reviewed only if the party seeking review has requested a hearing within the time provided by sub. (2).

AB150-ASA, s. 6858 Section 6858. 553.57 of the statutes is amended to read:

AB150-ASA,2080,2 553.57 Enforcement of criminal penalties. The commissioner division may refer such evidence as is available concerning any violation of this chapter or of any rule or order hereunder to the district attorney of the county in which the violation occurred, or to the attorney general, who may, with or without any reference, institute the appropriate criminal proceedings under this chapter.

AB150-ASA, s. 6859 Section 6859. 553.58 (1) of the statutes is amended to read:

AB150-ASA,2080,16 553.58 (1) The commissioner division may make, amend and rescind any rules, forms and orders that are necessary to carry out this chapter, including rules and forms governing registration statements, applications and reports, defining any terms, whether or not used in this chapter, insofar as the definitions are not inconsistent with this chapter. The commissioner division may define by rule false, fraudulent or deceptive practices in the offer and sale of franchises. The commissioner division may also adopt rules with regard to advertising utilized in connection with exempt sales under s. 553.22, 553.23 or 553.235 and which need not be filed under s. 553.53. For the purpose of rules and forms, the commissioner division may classify franchises, persons and matters within the commissioner's division's jurisdiction, and prescribe different requirements for different classes. Rules shall be made and published and all administrative procedures, including hearings under s. 553.56 and issuance of orders, shall be in accordance with ch. 227.

AB150-ASA, s. 6860 Section 6860. 553.58 (2) of the statutes is amended to read:

AB150-ASA,2080,21 553.58 (2) No rule, form or order may be made, amended or rescinded unless the commissioner division finds that the action is necessary or appropriate in the public interest or for the protection of investors. In adopting rules and forms the commissioner division may cooperate with official administrators of other states.

AB150-ASA, s. 6861 Section 6861. 553.58 (3) of the statutes is amended to read:

AB150-ASA,2081,3 553.58 (3) The commissioner division may by rule or order prescribe the form and content of financial statements required under this chapter, the circumstances under which consolidated financial statements shall be filed, and whether any required financial statements shall be certified by independent or certified public accountants. All financial statements shall be prepared in accordance with generally accepted accounting practices unless otherwise permitted by rule or order.

AB150-ASA, s. 6862 Section 6862. 553.58 (4) of the statutes is amended to read:

AB150-ASA,2081,8 553.58 (4) No provision of this chapter imposing any liability applies to any act done or omitted in good faith in conformity with any rule, form or order of the commissioner division, notwithstanding that the rule, form or order may later be amended or rescinded or be determined to be invalid for any reason.

AB150-ASA, s. 6863 Section 6863. 553.58 (5) of the statutes is amended to read:

AB150-ASA,2081,15 553.58 (5) All orders shall take effect when made and filed or at such later time as the commissioner division prescribes, and the commissioner division shall, upon making and filing such order, forthwith deliver personally or by mail a copy thereof to every person to whom such order relates at the person's last-known address as it appears on the records of the office of the commissioner division and that delivery shall constitute notice thereof.