Section 218.0114. Licenses, how granted; agreements, filing.

 

(1)  No motor vehicle dealer, motor vehicle wholesaler, motor vehicle salesperson, motor vehicle buyer, or sales finance company may engage in business as a motor vehicle dealer, motor vehicle wholesaler, motor vehicle salesperson, motor vehicle buyer, or sales finance company in this state without a license therefor as provided in ss. 218.0101 to 218.0163 . If any motor vehicle dealer acts as a motor vehicle salesperson, he or she shall secure a motor vehicle salesperson's license in addition to a motor vehicle dealer license. Every motor vehicle dealer shall be responsible for the licensing of every motor vehicle salesperson or motor vehicle buyer in his or her employ. Any person violating this subsection may be required to forfeit not less than $500 nor more than $5,000.

(2)  No manufacturer, importer or distributor may engage in business as a manufacturer, importer or distributor in this state without a license therefor as provided in ss. 218.0101 to 218.0163 .

(2m)  No manufacturers', distributors' or importers' vehicles shall be sold in this state unless either the manufacturer on direct dealerships of domestic vehicles, the importer of foreign manufactured vehicles on direct dealerships or the distributor on indirect dealerships of either domestic or foreign vehicles are licensed under ss. 218.0101 to 218.0163 . The obtaining of a license under ss. 218.0101 to 218.0163 shall conclusively establish that a manufacturer, distributor or importer is doing business in this state and shall subject the licensee to all provisions of the Wisconsin statutes regulating manufacturers, importers and distributors.

(3)  No factory representative or distributor representative may engage in business as a factory representative or distributor representative in this state without a license therefor as provided in ss. 218.0101 to 218.0163 .

(4)  Application for a license under this section shall be made to the licensor, at such time, in such form and with such information as the licensor shall require and shall be accompanied by the required fees. An applicant for a sales finance company license, other than a motor vehicle dealer, shall pay to the division of banking a nonrefundable $300 investigation fee in addition to the license fee under sub. (16) . If the cost of an investigation exceeds $300, the applicant shall, upon demand of the division of banking, pay the amount by which the cost of the investigation exceeds the nonrefundable fee. A licensee is not required to pay an investigation fee for the renewal of a license. The licensor may require the applicant to provide information relating to any pertinent matter that is commensurate with the safeguarding of the public interest in the locality in which the applicant proposes to engage in business, except that information relating to the applicant's solvency and financial standing may not be required for motor vehicle dealers except as provided in sub. (20) (a) . The information provided may be considered by the licensor in determining the fitness of the applicant to engage in business as set forth in ss. 218.0101 to 218.0163 .

(5)  

(a) A motor vehicle dealer or an applicant for a motor vehicle dealer license shall provide and maintain in force a bond or irrevocable letter of credit of not less than $50,000 or, if the dealer or applicant sells or proposes to sell motorcycles and not other types of motor vehicles, a bond or irrevocable letter of credit of not less than $5,000. The bond or letter of credit shall be executed in the name of the department of transportation for the benefit of any person who sustains a loss because of an act of a motor vehicle dealer that constitutes grounds for the suspension or revocation of a license under ss. 218.0101 to 218.0163 .

(b) A sales finance company or an applicant for a sales finance company license shall provide and maintain in force a bond or irrevocable letter of credit of not less than $25,000 issued by a surety company licensed to do business in this state or a federally insured financial institution, as defined in s. 705.01 (3) . The bond or letter of credit shall be payable to the state of Wisconsin for the use of the state and of any person who sustains a loss because of an act of a sales finance company that constitutes grounds for the suspension or revocation of a license under ss. 218.0101 to 218.0163 .

(c) A wholesaler or a wholesale dealer or an applicant for a wholesaler or wholesale dealer license shall provide and maintain in force a bond or irrevocable letter of credit of not less than $25,000. The bond or letter of credit shall be executed in the name of the department of transportation for the benefit of any person who sustains a loss because of an act or omission by the wholesaler or wholesale dealer.

(6)  Except as provided in this section every dealer and distributor of new motor vehicles shall, at the time of application for a license, file with the department of transportation a certified copy of the applicant's written agreement and a certificate of appointment as dealer or distributor, respectively. The certificate of appointment shall be signed by an authorized agent of the manufacturer of domestic vehicles on direct manufacturer-dealer agreements; or, where the manufacturer is wholesaling through an appointed distributorship, by an authorized agent of the distributor on indirect distributor-dealer agreements. The certificate shall be signed by an authorized agent of the importer on direct importer-dealer agreements of foreign-made vehicles; or by an authorized agent of the distributor on indirect distributor-dealer agreements. The distributor's certificate of appointment shall be signed by an authorized agent of the manufacturer; or by an agent of the manufacturer or importer of foreign manufactured vehicles.

(7)  

(a)

1. A written agreement need not be filed for each dealer or distributor if the manufacturer or importer, for direct dealerships, or distributor, for indirect dealerships, utilizes the identical basic agreement for all its dealers or distributors in Wisconsin and certifies all of the following in the certificate of appointment:

a. That the blanket agreement is on file with the department of transportation.

b. That the manufacturer's, distributor's or importer's agreement with each of its dealers or distributors, respectively, is identical to the filed blanket agreement.

c. That the manufacturer, distributor or importer has filed one basic agreement together with a list of its authorized dealers or distributors with the department of transportation.

2. A manufacturer, distributor or importer shall notify the department of transportation immediately of any of the following:

a. The appointment of any additional dealers or distributors not included in the list filed under subd. 1. c.

b. Any revisions of or additions to the basic agreement on file under subd. 1. a.

c. Any individual dealer or distributor supplements to the basic agreement on file under subd. 1. a.

3. Except as provided in par. (b) , a manufacturer, distributor or importer shall notify a dealer or distributor, forwarding a copy of the notice to the department of transportation, of the discontinuation or cancellation of the agreement of any of its dealers or distributors at least 60 days before the effective date of the discontinuation or cancellation together with the specific grounds for discontinuation or cancellation of the agreement.

(b) The manufacturer, distributor or importer shall send a notice of discontinuation or cancellation by certified mail, and forward a copy of the notice to the department of transportation, not less than 20 days before the effective date of discontinuation or cancellation of the agreement, if the dealer or distributor fails to conduct its customary sales and service operations during its customary business hours for 7 consecutive business days unless the failure is caused by an act of God, by work stoppage or delays due to strikes or labor disputes or other reason beyond the dealer's or distributor's control or by an order of the department of transportation or the division of hearings and appeals.

(c) The notice served upon a motor vehicle dealer under pars. (a) 3. and (b) is not effective unless it conspicuously displays the following statement:

NOTICE TO DEALER

YOU HAVE THE RIGHT TO: 1) MEDIATE IF YOU OPPOSE THE PROPOSED TERMINATION OR NONRENEWAL OF YOUR FRANCHISE AND 2) A HEARING BY THE DIVISION OF HEARINGS AND APPEALS IF MEDIATION DOES NOT RESOLVE THE DISPUTE. TO PRESERVE THESE RIGHTS, YOU MUST TAKE CERTAIN STEPS ON OR BEFORE THE DATE THAT THE PROPOSED TERMINATION OR NONRENEWAL TAKES EFFECT. FOR FURTHER INFORMATION, CONSULT YOUR ATTORNEY OR CALL THE DEALER SECTION, WISCONSIN DEPARTMENT OF TRANSPORTATION, AT.... (insert area code and telephone number).

(d) Any dealer or distributor discontinued or canceled may, on or before the date on which the discontinuation or cancellation becomes effective, file with the department of transportation and division of hearings and appeals and serve upon the respondent manufacturer, distributor or importer a complaint for a determination of unfair discontinuation or cancellation under s. 218.0116 (1) (i) . Allowing opportunity for an answer, the division of hearings and appeals shall schedule a hearing on and decide the matter. The burden of proof at the hearing shall be on the manufacturer, distributor, or importer to show that the discontinuation or cancellation was fair, for just provocation, and with due regard to the equities. Agreements and certificates of appointment shall continue in effect until final determination of the issues raised in the complaint. If the complainant prevails the complainant shall have a cause of action against the respondent for reasonable expenses and attorney fees incurred by the complainant in the matter.

(e) Agreements and certificates of appointment are considered to be continuing unless the manufacturer, distributor or importer has notified the department of transportation of the discontinuation or cancellation of the agreement of any of its dealers or distributors, and annual renewal of certifications filed as provided in this section is not necessary.

(8)  Within 60 days after the department of transportation issues a declaratory ruling under s. 227.41 that an agreement is inconsistent with sub. (9) , a manufacturer, distributor or importer shall remove or revise any provision of the agreement declared to be inconsistent with sub. (9) .

(9)  

(a) Except as provided in sub. (10) , provisions of an agreement which do any of the following are void and prohibited:

1. Waive a remedy or defense available to a distributor or dealer or other provision protecting the interests of a distributor or dealer under ss. 218.0101 to 218.0163 or under rules promulgated by the department of transportation under ss. 218.0101 to 218.0163 .

2. Prevent a dealer or distributor from bringing an action in a particular forum otherwise available under the law or waive the dealer's or distributor's right to a jury trial.

3. Require a motor vehicle dealer to pay the attorney fees of a manufacturer, importer or distributor.

4. Provide a manufacturer, importer, or distributor with the right or option to compel the dealer or any of its owners to sell or transfer an ownership interest in the dealer or assets of the dealer to the manufacturer, importer, or distributor or an assignee of the manufacturer, importer, or distributor.

(b)

1. Notwithstanding par. (a) 2. and subject to s. 218.0116 (1) (qm) 4. , an agreement may provide for the resolution of disputes by arbitration, including binding arbitration, if both parties to the agreement voluntarily agree to an arbitration provision. An arbitrator acting under this subdivision shall be bound by the laws of this state, including sub. (7) (d) and other provisions of ss. 218.0101 to 218.0163 .

2. No finding of an arbitrator is binding upon any person who is not a party to the agreement. A finding of an arbitrator does not bind the department of transportation with respect to enforcement of ss. 218.0101 to 218.0163 .

(c) Notwithstanding par. (a) 2. , an agreement may require a dealer or distributor to submit disputes to a nonbinding and reasonably prompt dispute resolution procedure before bringing an action in another forum.

(d) Notwithstanding par. (a) 4. , an agreement may provide a manufacturer, importer, or distributor with the right of first refusal to acquire the dealer's assets in the event of a proposed change of ownership or transfer of dealership assets if all of the requirements of s. 218.0134 (4) (c) are met.

(10)   Subsection (9) does not apply to any of the following:

(a) A settlement agreement that is entered into by a dealer or distributor voluntarily with respect to a particular dispute existing when the settlement agreement is reached.

(b) An agreement, made after a dealer receives notice under s. 218.0116 (7) (a) , which waives the dealer's right to file a complaint protesting the establishment or relocation of a dealership proposed in the notice.

(11)  A manufacturer, distributor or importer shall designate in writing the area of sales responsibility assigned to a motor vehicle dealer. A manufacturer, distributor or importer may not modify the area of sales responsibility to avoid the requirements of s. 218.0116 (7) .

(12)  

(a) Except as provided in par. (b) , all licenses shall be granted or refused within 60 days after the licensor receives the application for the license.

(b)

1. In cases where a complaint of unfair cancellation of a dealer agreement is in the process of being heard, no replacement application for the agreement may be considered until a decision is rendered by the division of hearings and appeals.

2. In cases where a complaint has been filed under s. 218.0116 (7) protesting the proposed establishment or relocation of a dealership in a relevant market area, no license may be issued until the division of hearings and appeals has rendered a decision permitting the issuance of the license.

(13)  

(a) Licenses described in sub. (16) expire on December 31 of the calendar year for which the licenses are granted.

(b) The department of transportation shall promulgate rules establishing the license period for each type of license described in sub. (14) (a) to (fm) .

(c) The department of transportation may promulgate rules establishing expiration dates for the various types of licenses described in sub. (14) (a) to (fm) .

(d) The division of banking shall promulgate rules establishing the license period for the license described in sub. (14) (g) .

(e) The division of banking may promulgate rules establishing expiration dates for licenses issued under sub. (14) (g) .

(14)  Subject to sub. (15) , the fee for licenses described in this subsection equals the number of years in a license period multiplied by whichever of the following applies:

(a) For motor vehicle dealers, to the department of transportation, $20 for each office or branch of the motor vehicle dealer, plus $1 for a supplemental license for each used motor vehicle lot within the same municipality, but not immediately adjacent to the office or to a branch.

(b) For motor vehicle manufacturers, $20; and for each factory branch in this state, $20.

(c) For distributors or wholesalers, the same as for dealers.

(d) Any person licensed under par. (b) or (c) may also operate as a motor vehicle dealer, without any additional fee.

(e) For motor vehicle salespersons, $4.

(f) For factory representative, or distributor branch representative, $4.

(fm) For motor vehicle buyers, $6. Any motor vehicle buyer who buys a motor vehicle on behalf of more than one dealership must hold a separate motor vehicle buyer license for each employing dealership.

(g)

1. Except as provided in subd. 2. , for motor vehicle dealers, to the division of banking, $10.

2. For motor vehicle dealers that operate as a sales finance company or that carry or retain retail installment contracts or consumer leases for more than 30 days, to the division of banking, the same as for sales finance companies under sub. (16) .

(15)  

(a) If the department of transportation or division of banking establishes a license period that is not evenly divisible into years, the department of transportation or division of banking shall prorate the remainder when determining the license fee under sub. (14) .

(b) If the department of transportation or division of banking grants a license described under sub. (14) during the license period, the fee for the license shall equal the applicable dollar amount under sub. (14) (a) to (g) multiplied by the number of calendar years, including parts of calendar years, during which the license remains in effect. A fee determined under this paragraph may not exceed the license fee for an entire license period under sub. (14) .

(c) No license fee is required under sub. (14) (e) , (f) , or (fm) for an individual who is eligible for the veterans fee waiver program under s. 45.44 .

(16)  The fee for licenses for sales finance companies for each calendar year, or part of a calendar year, is based on the gross volume of purchases of retail installment contracts and consumer leases of motor vehicles sold or leased in this state for the 12 months immediately preceding October 31 of the year in which the application for license is made, as follows: On a gross volume of $100,000 or less, $50; and on each $100,000 or part thereof over $100,000, an additional $15. No extra charge shall be made for branch licenses for sales finance companies. Gross volume shall be based on the unpaid balance of the retail installment contracts and the base periodic payments, as defined in s. 429.104 (4) , of the consumer leases.

(17)  The licenses of dealers, manufacturers, factory branches, distributors, distributor branches and sales finance companies shall specify the location of the office or branch and must be conspicuously displayed at that location. In case the location of the office or branch is changed, the licensor shall endorse the change of location on the license, without charge, if the new location is within the same municipality as the previous location. A change of location to another municipality shall require a new license, except for sales finance companies.

(18)  Every salesperson, factory representative, distributor representative, or motor vehicle buyer shall carry his or her license when engaged in business, and display the license upon request. The license shall name the licensee's employer or motor vehicle dealership for whom the motor vehicle buyer is buying. Upon leaving an employer, or, in the case of a buyer, terminating a buying relationship with a motor vehicle dealership, the licensee shall immediately surrender the license to his or her employer or to the dealership, who shall mail the license to the licensor. If during the license period the licensee again is employed or acts as a salesperson or motor vehicle buyer, he or she shall make application for reissue of a salesperson's or motor vehicle buyer license. There shall be no fee in connection with the subsequent application for a salesperson's license. The fee for a subsequent application for a motor vehicle buyer license is $6.

(19)  Every sales finance company shall be required to procure a salesperson's license for itself or its employees in order to sell motor vehicles repossessed by it.

(20)  

(a) If the licensor has reasonable cause to doubt the financial responsibility of the applicant or licensee or the compliance by the applicant or licensee with ss. 218.0101 to 218.0163 , the licensor may require the applicant or licensee to furnish information relating to the applicant's or licensee's solvency and financial standing.

(b) If the licensor has reasonable cause to doubt the financial responsibility of the applicant or licensee or the compliance by the applicant or licensee with ss. 218.0101 to 218.0163 , the licensor may require the applicant or licensee to furnish and maintain an additional bond in the form, amount and with the sureties it approves, but not less than $5,000, nor more than $100,000, conditioned upon the applicant or licensee complying with the statutes applicable to the licensee and as indemnity for any loss sustained by any person by reason of any acts of the licensee constituting grounds for suspension or revocation of the license under ss. 218.0101 to 218.0163 . The bonds shall be executed in the name of the department of transportation for the benefit of any aggrieved person who sustains a loss because of an act of the licensee that constitutes grounds for the suspension or revocation of his or her license under ss. 218.0101 to 218.0163 , except that the aggregate liability of the surety to all aggrieved persons shall, in no event, exceed the amount of the bond. The bonding requirements in this paragraph shall not apply to manufacturers, factory branches, and their agents and is in addition to the bond or letter of credit required of a motor vehicle dealer under sub. (5) (a) .

(c) An applicant or licensee furnishing information under par. (a) may designate the information as a trade secret, as defined in s. 134.90 (1) (c) , or as confidential business information. The licensor shall notify the applicant or licensee providing the information 15 days before any information designated as a trade secret or as confidential business information is disclosed to the legislature, a state agency, as defined in s. 13.62 (2) , a local governmental unit, as defined in s. 605.01 (1) , or any other person. The applicant or licensee furnishing the information may seek a court order limiting or prohibiting the disclosure, in which case the court shall weigh the need for confidentiality of the information against the public interest in the disclosure. A designation under this paragraph does not prohibit the disclosure of a person's name or address, of the name or address of a person's employer or of financial information that relates to a person when requested under s. 49.22 (2m) by the department of children and families or a county child support agency under s. 59.53 (5) .

(21)  Application for dealers' licenses shall be submitted to the department of transportation in duplicate and shall contain such information as the licensors require. Application for sales finance company licenses shall contain such information as the division of banking requires. No motor vehicle dealer or sales finance company, unless so licensed, shall be permitted to register or receive or use registration plates under ss. 341.47 to 341.57 . The department of transportation shall transmit the duplicate copy of each application for a dealer's license to the division of banking with the fee required under sub. (14) (g) . The division of banking may not refund the fee required under sub. (14) (g) . The division of banking shall approve a sales finance company license for a dealer if no prior sales finance company license has been suspended or revoked, and if the applicant meets the requirements of ss. 218.0101 to 218.0163 relating to sales finance companies.

(21e)  

(a) In addition to any other information required under this section and except as provided in par. (c) , an application by an individual for the issuance or renewal of a license described in sub. (14) shall include the individual's social security number and an application by a person who is not an individual for the issuance or renewal of a license described in sub. (14) (a) , (b) , (c) or (e) shall include the person's federal employer identification number. The licensor may not disclose any information received under this paragraph to any person except the department of children and families for purposes of administering s. 49.22 , the department of revenue for the sole purpose of requesting certifications under s. 73.0301 , and the department of workforce development for the sole purpose of requesting certifications under s. 108.227 .

(b) The licensor shall deny an application for the issuance or renewal of a license if the information required under par. (a) is not included in the application.

(c) If an applicant for the issuance or renewal of a license described in sub. (14) is an individual who does not have a social security number, the applicant, as a condition of applying for or applying to renew the license, shall submit a statement made or subscribed under oath or affirmation to the licensor that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. Any license issued or renewed in reliance upon a false statement submitted by an applicant under this paragraph is invalid.

(21g)  

(a) In addition to any other information required under this section and except as provided in par. (c) , an application for a license described in sub. (16) shall include the following:

1. In the case of an individual, the individual's social security number.

2. In the case of a person that is not an individual, the person's federal employer identification number.

(b) The licensor may not disclose any information received under par. (a) to any person except as follows:

1. The licensor may disclose information under par. (a) to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 and to the department of workforce development for the sole purpose of requesting certifications under s. 108.227 .

2. The licensor may disclose information under par. (a) 1. to the department of children and families in accordance with a memorandum of understanding under s. 49.857 .

(c) If an applicant for the issuance or renewal of a license described in sub. (16) is an individual who does not have a social security number, the applicant, as a condition of applying for or applying to renew the license, shall submit a statement made or subscribed under oath or affirmation to the licensor that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. Any license issued or renewed in reliance upon a false statement submitted by an applicant under this paragraph is invalid.

(22)  A motor vehicle dealer licensed in accordance with the provisions of ss. 218.0101 to 218.0163 shall make reports to the licensor at such intervals and showing such information as the licensor may require.

(23)  After the receipt of an application in due form, properly verified and certified, and upon the payment of the $5 examination fee, the secretary, deputy secretary or any salaried employee of the department of transportation designated by the secretary shall, within a reasonable time and in a place reasonably accessible to the applicant for a license, subject each first-time applicant for license and, if the secretary deems necessary, any applicant for renewal of license to a personal written examination as to competency to act as a motor vehicle salesperson. The secretary shall issue to an applicant a resident or nonresident motor vehicle salesperson's license if the application and examination show that the applicant meets all of the following requirements:

(a) Intends in good faith to act as a motor vehicle salesperson.

(b) Is of good reputation.

(c) Has had experience or training in, or is otherwise qualified for, selling or leasing motor vehicles.

(d) Is a resident of this state, unless application is for a nonresident motor vehicle salesperson's license.

(e) Is reasonably familiar with the motor vehicle sales or consumer lease laws or contracts that the applicant is proposing to solicit, negotiate or effect.

(f) Is worthy of a license.

(24)  

(a) Words and phrases defined in s. 218.0121 (1m) have the same meaning in this subsection.

(b) The department may not issue a dealer license under ss. 218.0101 to 218.0163 , unless the department has determined that no factory will hold an ownership interest in or operate or control the dealership or that one of the exceptions under s. 218.0121 (3m) applies.

(c) If the applicant asserts that s. 218.0121 (3m) (b) applies, the department shall require the applicant to provide a copy of the written agreement described in s. 218.0121 (3m) (b) 4. for examination by the department to ensure that the agreement meets the requirements of s. 218.0121 (3m) (b) .

(d) If the division of hearings and appeals determines, after a hearing on the matter at the request of the department or any licensee, that a factory holds an ownership interest in a dealership or operates or controls a dealership in violation of s. 218.0121 the division shall order the denial or revocation of the dealership's license.

1999 a. 31 ss. 57 to 104 ; 1999 a. 186 ; 2003 a. 76 , 77 , 215 , 216 , 327 ; 2005 a. 256 ; 2007 a. 20 ; 2011 a. 209 ; 2013 a. 36 . Cross-reference: See also chs. DFI-Bkg 76 and Trans 137 , 138 . 139, 140, and 144, Wis. adm. code. Section 180.847 (1) [now s. 180.1502 (1)], prescribing that no foreign corporation transacting business in the state without a certificate of authority shall be permitted to maintain or defend a civil action until it obtains a certificate of authority, and s. 218.01 (2) (bd) 3. [now 218.0114 (2m)]), providing that obtaining a license under the motor vehicle dealers law conclusively establishes that a distributor is doing business in this state, have entirely different purposes and meanings. Nagle Motors v. Volkswagen North Central Distributor, Inc. 51 Wis. 2d 413 , 187 N.W.2d 374 (1971). A dealer's refusal to sell the manufacturer's products after filing a complaint under s. 218.01 (2) (bd) 2. [now 218.0114 (7) (d)] is a violation of that provision, and consequently of s. 218.01 (3) (a) 4. [now 218.0116 (1) (bm)], entitling the manufacturer to treble damages under s. 218.01 (9) (am) [now s. 218.0163]. American Suzuki Motor Corp. v. Bill Kummer, Inc. 65 F.3d 1381 (1995).