Section 218.0116. Licenses, how denied, suspended or revoked.

 

(1)  A license may be denied, suspended or revoked on the following grounds:

(a) Proof of unfitness.

(am) Material misstatement in application for license.

(b) Filing a materially false or fraudulent income or franchise tax return as certified by the department of revenue.

(bm) Willful failure to comply with any provision of ss. 218.0101 to 218.0163 or any rule or regulation promulgated by the licensor under ss. 218.0101 to 218.0163 .

(c) Willfully defrauding any retail buyer, lessee or prospective lessee to the buyer's, lessee's or prospective lessee's damage.

(cm) Willful failure to perform any written agreement with any retail buyer, lessee or prospective lessee.

(d) Failure or refusal to furnish and keep in force any bond required.

(dm) Having made a fraudulent sale, consumer lease, prelease agreement, transaction or repossession.

(e) Fraudulent misrepresentation, circumvention or concealment through whatsoever subterfuge or device of any of the material particulars or the nature thereof required hereunder to be stated or furnished to the retail buyer, lessee or prospective lessee.

(em) Employment of fraudulent devices, methods or practices in connection with compliance with the statutes with respect to the retaking of goods under retail installment contracts or consumer leases and the redemption and resale or subsequent lease of the retaken goods.

(f) Having engaged in any unconscionable practice relating to the licensed business activity.

(fm) Having charged a finance charge in excess of the rate permitted by s. 422.201 (3) .

(g) Having sold a retail installment contract or consumer lease to a sales finance company that is not licensed under ss. 218.0101 to 218.0163 .

(gm) Having violated any law relating to the sale, lease, distribution or financing of motor vehicles.

(gr) Being a dealer who violates s. 218.0146 (4) .

(h) Being a manufacturer, importer or distributor who has coerced or attempted to coerce any motor vehicle dealer to order any commodity or service or to accept delivery of or pay for any commodity or service that the motor vehicle dealer has not ordered. This paragraph does not modify or prohibit reasonable requirements in a franchise agreement that require a dealer to market and service a representative line of new motor vehicles that the manufacturer, importer or distributor is publicly advertising.

(hm) Being a manufacturer of motor vehicles, factory branch, distributor, field representative, officer, agent or any representative of a motor vehicle manufacturer or factory branch, who has attempted to induce or coerce, or has induced or coerced, any motor vehicle dealer to enter into any agreement with the manufacturer, factory branch or representative of the motor vehicle manufacturer or factory branch, or to do any other act unfair to the dealer, by threatening to cancel any franchise existing between the manufacturer, factory branch or representative of the motor vehicle manufacturer or factory branch and the dealer.

(i)

1. In this paragraph:

a. “Due regard to the equities" means treatment in enforcing an agreement that is fair and equitable to a motor vehicle dealer or distributor and that is not discriminatory compared to similarly situated dealers or distributors.

b. “Just provocation" means a material breach by a motor vehicle dealer or distributor, due to matters within the dealer's or distributor's control, of a reasonable and necessary provision of an agreement and the breach is not cured within a reasonable time after written notice of the breach has been received from the manufacturer, importer or distributor.

2. Subject to s. 218.0132 , being a manufacturer, importer or distributor who has unfairly, without due regard to the equities or without just provocation, directly or indirectly canceled or failed to renew the franchise of any motor vehicle dealer; or being a manufacturer or importer, who has unfairly, without due regard to the equities or without just provocation, directly or indirectly canceled or failed to renew the franchise of any distributor. If there is a change in a manufacturer, importer or distributor, a motor vehicle dealer's franchise granted by the former manufacturer, importer or distributor shall continue in full force and operation under the new manufacturer, importer or distributor unless a mutual agreement of cancellation is filed with the department of transportation between the new manufacturer, importer or distributor and the dealer.

(im)

1. In this paragraph, “ bushing" means:

a. With respect to an order or contract of purchase, the practice of increasing the selling price of a motor vehicle above that originally quoted the purchaser as evidenced by a purchase order or contract which has been signed by both the purchaser and dealer licensee.

b. With respect to a consumer lease or prelease agreement, the practice of increasing the gross capitalized cost above that originally quoted the lessee or prospective lessee as evidenced by a consumer lease or prelease agreement which has been signed by both the lessee or prospective lessee and the dealer licensee.

2. Having accepted an order or contract of purchase from a buyer or a consumer lease or prelease agreement from a lessee or prospective lessee if the arrangement results in the practice of bushing.

(j) Having advertised, printed, displayed, published, distributed, broadcast or televised or caused or permitted to be advertised, printed, displayed, published, distributed, broadcast or televised in any manner whatsoever, any statement or representation with regard to the sale, lease or financing of motor vehicles which is false, deceptive or misleading.

(jm) Having set up, promoted or aided in the promotion of a plan by which motor vehicles are sold or leased to a person for a consideration and upon the further consideration that the purchaser or lessee agrees to secure one or more persons to participate in the plan by respectively making a similar purchase or lease and in turn agreeing to secure one or more persons likewise to join in the plan, each purchaser or lessee being given the right to secure money, credits, goods or something of value, depending upon the number of persons joining in the plan.

(k) Being a dealer who keeps open the dealer's place of business on Sunday for the purpose of buying, leasing or selling motor vehicles; but nothing in this paragraph shall apply to any person who conscientiously believes that the 7th day of the week, from sunset Friday to sunset Saturday, should be observed as the Sabbath and who actually refrains from conducting or engaging in the business of buying, leasing, selling or offering for lease or sale motor vehicles, or performing other secular business on that day.

(km) Being a manufacturer, importer, or distributor who violates s. 218.0121 , 218.0122 , 218.0123 , 218.0124 , 218.0125 , or 218.0128 .

(L) Being a motor vehicle dealer who, in breach of an agreement, voluntarily changes its ownership or executive management, transfers its dealership assets to another person, adds another franchise at the same location as its existing franchise, or relocates a franchise without first complying with the procedures in s. 218.0134 .

(Lm) Being a manufacturer, importer or distributor who fails to comply with the procedures in s. 218.0134 regarding a dealer's request for approval of a change of ownership or executive management, transfer of its dealership assets to another person, adding another franchise at the same location as its existing franchise, or relocation of a franchise or who fails to comply with an order of the division of hearings and appeals issued under s. 218.0134 .

(m) Having violated chs. 421 to 427 or 429 .

(mm) Being a manufacturer, factory branch, distributor, field representative, officer, agent or any representative of a manufacturer, factory branch or distributor who, notwithstanding the terms of any agreement, refuses to honor the succession to the ownership or operation of a dealership under an existing franchise agreement by a designated family member of a deceased or incapacitated dealer, except in the manner prescribed by s. 218.0131 , or who unreasonably withholds its approval of a change of ownership or executive management of the dealership after the dealer's death or incapacity.

(n) The selling of new motor vehicles for which the dealer is not franchised.

(nm) Willful failure to provide and maintain facilities and business records as required by ss. 218.0101 to 218.0163 or by any rule promulgated by the licensor pertaining to facility and business records.

(o) Being an inactive business, as evidenced by 3 or less motor vehicle purchases and sales or consumer leases during the prior year licensing period.

(om) Failure to obtain proper business zoning or failure to obtain and maintain any required additional state or local license or permit.

(p) Having violated an order issued under sub. (10) .

(pm) Being a manufacturer, factory branch or distributor who enters into a franchise agreement establishing or relocating a motor vehicle dealership, parts outlet or service outlet in a relevant market area without first complying with the procedure in sub. (7) (a) .

(q) Being a manufacturer, factory branch or distributor who engages in any action which transfers to a motor vehicle dealer any responsibility of the manufacturer, factory branch or distributor under s. 218.0171 .

(qm) Being a manufacturer, distributor or importer who does any of the following:

1. Fails to notify the department of transportation of any revision or addition to an agreement as required under s. 218.0114 (7) (a) 2.

2. Fails to revise or remove portions of an agreement that the department of transportation declares to contain provisions which are inconsistent with s. 218.0114 (9) .

3. Requires or coerces a dealer or distributor to sign an agreement, as a condition of obtaining or continuing a franchise, that contains provisions that are void or prohibited under s. 218.0114 (9) or attempts to enforce an agreement with void or prohibited provisions.

4. Requires or coerces a dealer or distributor to sign an agreement that requires arbitration as a condition of obtaining or continuing a franchise, unless the dealer or distributor has the option of signing an otherwise identical agreement without the arbitration provision or unless the agreement provides for arbitration on a case-by-case basis and only when both parties elect to refer the matter to arbitration. This subdivision does not apply to a manufacturer or distributor who enters into an agreement that creates a new franchise for a new line make of motor vehicle, if each of the following is applicable:

a. The arbitration provision was the subject of good faith negotiations with a representative group of dealers.

b. Each dealer voluntarily accepts the arbitration provision after receiving a franchise offering circular under s. 553.27 (4) that discloses the existence and effect of the arbitration provision.

c. The manufacturer or dealer files a copy of the franchise offering circular and proof of good faith negotiation and voluntary acceptance of the arbitration with any filing required under s. 218.0114 (7) (a) .

(r) Being a manufacturer, distributor or importer who fails to designate in writing the area of sales responsibility assigned to a motor vehicle dealer or who changes or attempts to change an area of sales responsibility to avoid the requirements of sub. (7) .

(rm) Being a grantor, as defined in s. 218.0133 (1) (b) , except a motorcycle grantor, as defined in s. 218.0133 (1) (c) , who fails to pay a motor vehicle dealer franchise termination benefits under s. 218.0133 or being a motorcycle grantor who fails to pay a motor vehicle dealer agreement termination benefits under s. 218.0133 .

(s) Being a manufacturer or distributor who modifies a motor vehicle dealer agreement during the term of the agreement or upon its renewal without complying with sub. (8) .

(sm) Having violated s. 218.0172 .

(t) Being a manufacturer, importer or distributor who compels a dealer, through a financing subsidiary of the manufacturer, importer or distributor, to agree to unreasonable operating requirements or who directly or indirectly cancels or fails to renew a dealer's franchise, except as allowed under par. (i) and s. 218.0132 , through the actions of a financing subsidiary of the manufacturer, importer or distributor. This paragraph does not limit the right of a financing subsidiary to engage in business practices in accordance with the usages of the trade in which it is engaged.

(tm) Being a licensee who willfully refuses or fails to participate in mediation pursuant to a demand for mediation served under s. 218.0136 (1) .

(u) Being a manufacturer, importer or distributor who uses a right of first refusal, granted to it under an agreement, to influence the consideration or other terms offered by a potential buyer for a dealership's assets or stock or to influence a potential buyer to refrain from entering into, or to withdraw from, negotiations for the purchase of a dealership's assets or stock.

(um)

1. In this paragraph, “ site control contract" means a contract that grants authority to a manufacturer, importer, or distributor or an affiliate of a manufacturer, importer, or distributor, during the term of an agreement or after the termination, cancellation, or nonrenewal of an agreement, to control the disposition or use of or to lease the dealer's dealership facilities.

2. Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer or prospective dealer of the manufacturer's, importer's, or distributor's motorcycles, who conditions entry into an agreement or renewal of an agreement or approval of the addition of a line make of motor vehicles, franchise relocation, ownership or management change, or transfer of dealership assets on the entry by the dealer or prospective dealer into a site control contract or who coerces or attempts to coerce a dealer or prospective dealer to enter into a site control contract. This subdivision does not prohibit a site control contract for which the dealer or prospective dealer receives a separate and valuable consideration. This subdivision does not apply to a site control contract that is in existence on December 21, 2011, unless the contract is amended, modified, changed, or renewed after December 21, 2011.

(v) Being a manufacturer, importer, or distributor who fails or refuses to offer for sale to its same line make franchised dealers all models manufactured or distributed for the line make. The offer for sale may be subject to the manufacturer's, importer's, or distributor's plan or system for the allocation, scheduling, and delivery of such models that complies with the requirements of s. 218.0123 . However, the failure to deliver any such motor vehicle shall not be considered a violation of this paragraph if the failure is due to a lack of manufacturing capacity, a strike or labor difficulty, a shortage of materials, a freight embargo, or other cause beyond the control of the manufacture, importer, or distributor. This paragraph does not prohibit reasonable requirements being imposed on dealers for the sale, marketing, or servicing of particular models.

(vm) Unless the technology of a motor vehicle reasonably requires improvement of dealership facilities to accommodate the adequate sale and service of the motor vehicle or the reasonable business considerations of the manufacturer and dealer justify improvement of dealership facilities, being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer or prospective dealer of the manufacturer's, importer's, or distributor's motorcycles, who conditions entry into an agreement or renewal of an agreement or approval of the addition of a line make of motor vehicles, franchise relocation, ownership or management change, or transfer of dealership assets on the improvement of dealership facilities at a substantial cost to the dealer or prospective dealer or who coerces or attempts to coerce a dealer or prospective dealer to improve dealership facilities at a substantial cost to the dealer or prospective dealer. This paragraph does not prohibit improvement of dealership facilities at a substantial cost to the dealer or prospective dealer if the dealer or prospective dealer has agreed to undertake the improvement and received a separate and valuable consideration for the improvement. The burden of proof to demonstrate the technological necessity or business justification of the facilities improvement is on the manufacturer, importer, or distributor. This paragraph does not apply to an agreement to improve dealership facilities at a substantial cost to the dealer or prospective dealer that is in existence on December 21, 2011, unless the agreement is amended, modified, changed, or renewed after December 21, 2011.

(w)

1. Being a manufacturer, importer, or distributor who performs warranty service or delivery and preparation work on a motor vehicle that it does not own or who authorizes or permits a person to perform warranty service or delivery and preparation work on a motor vehicle unless the person is a motor vehicle dealer with whom the manufacturer, importer, or distributor has entered into a franchise agreement for the sale and service of the manufacturer's, importer's, or distributor's motor vehicles. This subdivision shall not prohibit a manufacturer, importer, or distributor from:

a. Authorizing the performance of warranty service and delivery and preparation work by a fleet owner, as defined in s. 218.0116 (7) (d) 4. , on its own vehicles.

b. If warranty service is temporarily not reasonably available to one or more owners of the manufacturer's, importer's, or distributor's vehicles, performing warranty service on such vehicles or authorizing the performance of warranty service on such vehicles by a person who is not a motor vehicle dealer with whom the manufacturer, importer, or distributor has entered into a franchise agreement for the sale and service of the manufacturer's, importer's, or distributor's motor vehicles. Warranty service may be provided or authorized by a manufacturer, importer, or distributor under this subdivision only during the period that warranty service is not otherwise reasonably available.

c. Attempting to repair a nonconformity, as defined in s. 218.0171 (1) (f) , to a vehicle, if the repair is reasonably necessary to prevent the manufacturer, importer, or distributor from becoming subject to the requirements of s. 218.0171 (2) (b) .

2. Subdivision 1. does not require a manufacturer, importer, or distributor to perform warranty service, or to authorize or permit warranty service to be performed, under a warranty given by another manufacturer, importer, or distributor or component manufacturer to a retail customer.

(wm) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who unreasonably requires or coerces or attempts to coerce a dealer to provide or maintain exclusive facilities for a particular line make of motor vehicles or unreasonably refuses to permit or approve the addition of another line make to the dealership facilities of a dealer taking into consideration the reasonable business considerations of the manufacturer, importer, or distributor and the dealer. The burden of proof to demonstrate the reasonableness of the provision or maintenance of exclusive facilities or the refusal to permit or approve the addition of another line make is on the manufacturer, importer, or distributor. This paragraph does not apply to an agreement for a dealer to provide or maintain exclusive facilities for a particular line make of motor vehicles and for which the dealer has received separate and valuable consideration that is in existence on December 21, 2011, unless the agreement is amended, modified, changed, or renewed after December 21, 2011.

(x) Being a manufacturer, importer, or distributor who engages in any action or fails to engage in any action with respect to any enfranchised motor vehicle dealer in a manner that is arbitrary and causes material damage to the dealer.

(xm) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who charges back, withholds payment, denies vehicle allocation, or takes other adverse action against a dealer for charging a service fee to a retail customer in any amount that is not prohibited under ss. 218.0101 to 218.0163 or rules promulgated by the department of transportation under ss. 218.0101 to 218.0163 .

(y) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who charges back, withholds payment, denies vehicle allocation, or takes other adverse action against a dealer because a motor vehicle sold by the dealer has been exported to a foreign country unless the dealer knew or reasonably should have known that the purchaser intended to export the vehicle or resell the vehicle for export. If the motor vehicle is titled or registered in any state in this country, it is presumed that the dealer had no knowledge that the purchaser intended to export the vehicle or resell the vehicle for export. The manufacturer, importer, or distributor may rebut the presumption. The burden of proof to demonstrate that the dealer knew or reasonably should have known that the purchaser intended to export the vehicle or resell the vehicle for export is on the manufacturer, importer, or distributor.

(ym) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who requires or coerces, or attempts to require or coerce, a dealer to provide the manufacturer, importer, or distributor with information regarding the retail customers of the dealer unless the information is necessary for the sale and delivery of a new motor vehicle to a retail buyer, to validate and pay customer or dealer incentives, for warranty reimbursement substantiation under s. 218.0125 , or to enable the manufacturer, importer, or distributor to fulfill safety, recall, or other legal obligations.

(ys) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who transfers nonpublic customer information that was obtained from a dealer to another franchised dealer while the dealer from which the information was obtained remains a franchised dealer unless the dealer from which the information was obtained agrees to the transfer, or who uses any nonpublic personal information, as defined in 16 CFR 313.3 (n), obtained from a dealer unless the use falls within an exception under 16 CFR 313.14 or 313.15 .

(1g)  

(a) A license described in s. 218.0114 (14) shall be denied, restricted, limited or suspended if the applicant or licensee is an individual who fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857 .

(b) A license described in s. 218.0114 (14) (a) , (b) , (c) or (e) shall be suspended or revoked if the department of revenue certifies under s. 73.0301 that the applicant or licensee is liable for delinquent taxes or if the department of workforce development certifies under s. 108.227 that the applicant or licensee is liable for delinquent unemployment insurance contributions.

(c) No provision of ss. 218.0101 to 218.0163 that entitles an applicant or licensee to a notice or hearing applies to a denial, restriction, limitation, suspension or revocation of a license under this subsection.

(1m)  

(a) A license described in s. 218.0114 (16) shall be denied if any of the following applies:

1. The applicant fails to provide any information required under s. 218.0114 (21g) (a) .

2. The department of revenue certifies under s. 73.0301 that the applicant is liable for delinquent taxes. An applicant whose license is denied under this subdivision for delinquent taxes is entitled to a notice under s. 73.0301 (2) (b) 1. b. and hearing under s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this section.

2m. The department of workforce development certifies under s. 108.227 that the applicant is liable for delinquent unemployment insurance contributions. An applicant whose license is denied under this subdivision for delinquent unemployment insurance contributions is entitled to a notice under s. 108.227 (2) (b) 1. b. and hearing under s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this section.

3. The applicant is an individual who fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857 . An applicant whose application is denied under this subdivision is entitled to a notice and hearing under s. 49.857 but is not entitled to any other notice or hearing under ss. 218.0101 to 218.0163 .

(b) A license described in s. 218.0114 (16) shall be restricted or suspended if the licensee is an individual who fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857 . A licensee whose license is restricted or suspended under this paragraph is entitled to a notice and hearing under s. 49.857 but is not entitled to any other notice or hearing under ss. 218.0101 to 218.0163 .

(c) A license described in s. 218.0114 (16) shall be revoked if the department of revenue certifies under s. 73.0301 that the licensee is liable for delinquent taxes. A licensee whose license is revoked under this paragraph for delinquent taxes is entitled to a notice under s. 73.0301 (2) (b) 1. b. and hearing under s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this section.

(d) A license described in s. 218.0114 (16) shall be revoked if the department of workforce development certifies under s. 108.227 that the licensee is liable for delinquent unemployment insurance contributions. A licensee whose license is revoked under this paragraph for delinquent unemployment insurance contributions is entitled to a notice under s. 108.227 (2) (b) 1. b. and hearing under s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this section.

(2)  The licensor may without prior notice deny the application for a license within 60 days after receipt of the application by written notice to the applicant, stating the grounds for the denial. Within 30 days after receiving the notice, the applicant may petition the division of hearings and appeals to conduct a hearing to review the denial, and a hearing shall be scheduled with reasonable promptness.

(3)  

(a)

1. Except as provided in subd. 2. , the department of transportation shall not license an applicant as a dealer for the sale or lease of motor vehicles at retail unless the applicant owns or leases a vehicle display lot and a permanent building in which there are facilities to display motor vehicles and to repair functional and nonfunctional parts of motor vehicles, where replacement parts, repair tools and equipment to service motor vehicles are kept, and at which the books, records and files necessary to conduct the dealer's business shall be kept and maintained.

1m. A residence, tent or temporary stand is not a sufficiently permanent building within the meaning of subd. 1.

2. The requirements in subd. 1. that an applicant own or lease a vehicle display lot and that the permanent building owned or leased by the applicant contain facilities to display motor vehicles do not apply to persons who are engaged only in the leasing of motor vehicles and who do not maintain an inventory of motor vehicles offered for lease.

(b) An approved service contract with an established repair shop having the repair parts and repair facilities specified in par. (a) 1. shall serve in lieu of the applicant's owning or leasing the applicant's own repair facilities if the service connection is within a reasonable distance from the applicant's place of business and if the service connection guarantees in writing the making of the repairs or replacements ordered by the dealer.

(c) This subsection does not apply to persons who deal only in mopeds or motor bicycles.

(4)  

(a) No license may be suspended or revoked except after a hearing on the possible suspension or revocation. Except as provided in par. (b) , the licensor shall give the licensee at least 5 days' notice of the time and place of the hearing. The order suspending or revoking the license shall not be effective until after 10 days' written notice of the order to the licensee, after the hearing under this paragraph has been held.

(b) When in the licensor's opinion the best interest of the public or the trade demands it, for conduct or under circumstances specified in ss. 218.0101 to 218.0163 or in rules promulgated by the licensor, the licensor may suspend a license upon not less than 24 hours' notice of hearing and with not less than 24 hours' notice of the suspension of the license.

(c) Matters involving suspensions or revocations brought before the department of transportation shall be heard and decided upon by the division of hearings and appeals. If the department of transportation requests the division of hearings and appeals to hear a matter brought before the department of transportation under par. (b) , the division of hearings and appeals shall hear and decide the matter within 30 days after the date of the department of transportation's request.

(5)  The licensor may inspect the pertinent books, records, letters and contracts of a licensee and shall determine the cost of an examination. The cost of an examination shall be paid by the licensee so examined within 30 days after demand for the examination by the licensor. The licensor may maintain an action for the recovery of the costs of the examination in any court of competent jurisdiction.

(6)  If a licensee is a firm, corporation or limited liability company, it shall be sufficient cause for the denial, suspension or revocation of a license that any officer, director, trustee or manager of the firm, corporation or limited liability company, or any member in case of a partnership, has been guilty of any act or omission which would be cause for refusing, suspending or revoking a license to that party as an individual. Each licensee shall be responsible for the acts of any or all of his or her salespersons while acting as his or her agent, if the licensee approved of or had knowledge of the acts or other similar acts and after approving of or obtaining knowledge of the acts retained the benefit, proceeds, profits or advantages accruing from the acts or otherwise ratified the acts.

(7)  

(a)

1. A manufacturer, importer or distributor who seeks to enter into a franchise agreement establishing or relocating a motor vehicle dealership, parts outlet or service outlet within the relevant market area of an existing enfranchised dealer of the line make of motor vehicle shall first notify, in writing, the department of transportation and that existing enfranchised dealer of its intention to establish or relocate a dealership or outlet. Within 30 days of receiving the notice or within 30 days after the end of any appeal procedure provided by the manufacturer, importer or distributor, whichever is later, any existing enfranchised dealer of the same line make to whom the manufacturer, importer or distributor is required to give notice under this paragraph may file with the department of transportation and the division of hearings and appeals a complaint protesting the proposed establishment or relocation of the dealership or outlet within the relevant market area of the existing enfranchised dealer.

2. If a complaint is filed under subd. 1. , the department of transportation shall inform the manufacturer, importer or distributor that a timely complaint has been filed, that a hearing is required, and that the proposed franchise agreement may not be entered into until the division of hearings and appeals has held a hearing, nor thereafter, if the division of hearings and appeals determines that there is not good cause for permitting the proposed establishment or relocation of the dealership or outlet. In the event of multiple complaints, hearings shall be consolidated to expedite the disposition of the issue.

(b) In determining whether good cause exists for permitting the proposed establishment or relocation of a dealership or outlet, the burden of proof for showing good cause shall be on the manufacturer, importer, or distributor, and the division of hearings and appeals shall take into consideration the existing circumstances, including, but not limited to:

1. The amount of business transacted by existing enfranchised dealers of the line make of motor vehicle when compared with the amount of business available to them.

2. The permanency of the investment necessarily made and the obligations incurred by existing enfranchised dealers in the performance of their franchise agreements.

3. The effect on the retail motor vehicle business in the relevant market area.

4. Whether it is injurious to the public welfare for the proposed dealership or outlet to be established or relocated.

5. Whether the establishment or relocation of the proposed dealership or outlet would increase competition and therefore be in the public interest.

6. Whether the existing enfranchised dealers of the line make of motor vehicle are providing adequate consumer care for the motor vehicles of that line make, including the adequacy of motor vehicle service facilities, equipment, supply of parts and qualified personnel.

7. Whether the existing enfranchised dealers of the line make of motor vehicle are receiving vehicles and parts in quantities promised by the manufacturer, factory branch or distributor and on which promised quantities existing enfranchised dealers based their investment and scope of operations.

8. The effect the denial of the proposed establishment or relocation would have on the license applicant, dealer or outlet operator who is seeking to establish or relocate a dealership or outlet.

(c) The decision of the division of hearings and appeals shall be in writing and shall contain findings of fact and a determination of whether there is good cause for not permitting the proposed establishment or relocation of the dealership or outlet. The division of hearings and appeals shall deliver copies of the decision to the parties personally or by registered mail. The decision is final upon its delivery or mailing and no reconsideration or rehearing by the division of hearings and appeals is permitted.

(d) For purposes of this subsection:

1d. “Closed" means the effective date of the termination or expiration of a dealership's or outlet's license or franchise, whichever is earlier.

1h. The reopening or replacement of a dealership or outlet that has been closed for less than 2 years, at the original location or within 2 miles of the original location by the closest highway route, is not the establishment of a motor vehicle dealership or outlet, unless the location is within 4 miles, by the closest highway route, of another franchised dealer of the same line make and is closer to that dealer than the closed dealership or outlet.

1m. The reopening or replacement of a dealership or outlet that has been closed for less than 2 years at a location other than the original location and other than a location within 2 miles of the original location by the closest highway route, but within the area of sales responsibility that had been assigned to the closed dealership or outlet by the manufacturer, importer or distributor is not the establishment of a motor vehicle dealership or outlet, unless the new location is within 6 miles, by the closest highway route, of another franchised dealer of the same line make and is closer to that dealer than the closed dealership or outlet.

1q. The reopening or replacement of a dealership or outlet that has been closed for 2 or more years or that is at a location outside of the area of sales responsibility that had been assigned to the closed dealership or outlet by the manufacturer, importer or distributor is the establishment of a dealership or outlet.

2. The relocation of a dealership or outlet to a location within 2 miles of the existing location by the closest highway route and within the existing area of sales responsibility assigned to that dealership or outlet by the manufacturer, importer or distributor is not the relocation of a dealership or outlet, unless the location is within 4 miles, by the closest highway route, of another franchised dealer of the same line make and is closer to that dealer than the existing location. The relocation of a dealership or outlet to a location other than a location within 2 miles of the existing location, but within the existing area of sales responsibility assigned to that dealership or outlet by the manufacturer, importer or distributor is not the relocation of a dealership or outlet, unless the relocation site is within 6 miles, by the closest highway route, of the location of another enfranchised dealer of the same line make and is closer to that dealer than the existing location. The relocation of a dealership or outlet to a location outside the area of sales responsibility assigned to the dealership or outlet by the manufacturer is the relocation of a dealership or outlet.

3. The establishment or relocation of a service or parts outlet requires that notice be given under par. (a) to existing enfranchised dealers who are otherwise entitled to receive notice under par. (a) and who are authorized to perform work to rectify product or warranty defects or delivery and preparation obligations on the same line make as the proposed service outlet or to use a trade name, trademark or service mark that is also proposed to be used by the proposed service or parts outlet, except that the establishment or relocation of a service or parts outlet that is owned and operated by a motor vehicle dealership enfranchised by the manufacturer, importer or distributor requires that notice be given only to existing dealers who are otherwise entitled to receive notice under par. (a) and who hold a franchise to sell the same line make as the dealership that will own and operate the proposed service or parts outlet.

4. A manufacturer's, importer's or distributor's authorization of a fleet owner to perform warranty or delivery and preparation work only on the fleet owner's own vehicles is not the establishment of a service outlet. In this subdivision:

a. “Fleet owner" means a person who owns for its own use or for the use of others 10 or more motor vehicles of the current or preceding model year manufactured or sold by the manufacturer, importer or distributor who is authorizing the warranty work to be performed.

b. “Fleet owner" does not include persons engaged in the business of leasing motor vehicles to individual consumers.

5. The establishment or relocation of a motor vehicle dealership with respect to used motor vehicles under an agreement between the dealer and a manufacturer, importer or distributor is the establishment or relocation of a motor vehicle dealership.

(8)  

(a) A manufacturer or distributor may not modify a motor vehicle dealer agreement during the term of the agreement or upon its renewal if the modification substantially and adversely affects the motor vehicle dealer's rights, obligations, investment or return on investment without giving 60 days written notice of the proposed modification to the motor vehicle dealer unless the modification is required by law, court order or the licensor. Within the 60-day notice period the motor vehicle dealer may file with the department of transportation and the division of hearings and appeals and serve upon the respondent a complaint for a determination of whether there is good cause for permitting the proposed modification. The division of hearings and appeals shall promptly schedule a hearing and decide the matter. Multiple complaints pertaining to the same proposed modification shall be consolidated for hearing. The proposed modification may not take effect pending the determination of the matter.

(b) In making a determination of whether there is good cause for permitting a proposed modification, the burden of proof shall be on the manufacturer or distributor, except that the burden of proof with regard to the factor set forth in par. (b) 3. shall be on the dealer, and the division of hearings and appeals may consider any relevant factor including:

1. The reasons for the proposed modification.

2. Whether the proposed modification is applied to or affects all motor vehicle dealers in a nondiscriminating manner.

3. The degree to which the proposed modification will have a substantial and adverse effect upon the motor vehicle dealer's rights, investment, or return on investment.

4. Whether the proposed modification is in the public interest.

5. The degree to which the proposed modification is necessary to the orderly and profitable distribution of products by the respondent.

6. Whether the proposed modification is offset by other modifications beneficial to the motor vehicle dealer.

(c) The decision of the division of hearings and appeals shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed modification. The division of hearings and appeals shall deliver copies of the decision to the parties personally or by registered mail. The decision is final upon its delivery or mailing and no reconsideration or rehearing by the division of hearings and appeals is permitted.

(9)  Any person in interest aggrieved by a decision of the division of hearings and appeals or an order of the division of banking may have a review of the decision as provided in ch. 227 .

(10)  In addition to the licensor's authority to deny, suspend, or revoke a license under ss. 218.0101 to 218.0163 , the division of banking, after public hearing, may issue a special order enjoining any licensee from engaging in any act or practice which is determined by the division of banking to be in violation of any provision of sub. (1) , and the division of hearings and appeals may be petitioned to and, after notice and hearing, may issue a special order enjoining a licensee from engaging in any act or practice which the division of hearings and appeals determines to be in violation of any provision of sub. (1) .

1999 a. 31 ss. 123 to 187 , 284 to 286 ; 1999 a. 186 ; 2003 a. 77 , 326 ; 2005 a. 25 , 256 ; 2007 a. 20 ; 2011 a. 91 ; 2013 a. 36 ; 2013 a. 168 s. 21 . Cross-reference: See also chs. Trans 137 , 138 , 139 , and 140 , Wis. adm. code. “Willful" under s. 218.01 (3) (a) 6. [now sub. (1) (cm)] means intentional. Fraud and malice are not elements. The state need not prove intent to deceive the buyer under s. 218.01 (3) (a) 18. [now sub. (1) (im) 2.]. DOT v. Wisconsin Transportation Commission, 105 Wis. 2d 678 , 315 N.W.2d 371 (Ct. App. 1981). Affirmed. 111 Wis. 2d 80 , 330 N.W.2d 159 (1983). Under s. 218.01 (3) (b) [now sub. (2)] the commissioner may conduct a de novo review of a department decision and may substitute his or her own judgment for that of the department. DOT v. Office of the Commissioner of Transportation, 159 Wis. 2d 271 , 463 N.W.2d 870 (Ct. App. 1990). The legislature imposed the adjudicative responsibilities under sub.(8) (a) on the Division of Hearings and Appeals and, for purposes of adjudication, charged the Division with administration and enforcement of that statute. A court may accord deference to the division's interpretation of sub. (8) (a). Interpretation of a motor vehicle dealer agreement under sub. (8) (a) was a matter of first impression. The division lacked the requisite expertise and experience for its statutory interpretation to be accorded great weight deference. Racine Harley-Davidson, Inc. v. Division of Hearings and Appeals, 2006 WI 86 , 278 Wis. 2d 549 , 717 N.W.2d 184 , 03-2628 . The manufacturer's assignment of territory to a dealer is part of their motor vehicle dealer agreement under sub. (8). Racine Harley-Davidson, Inc. v. Division of Hearings and Appeals, 2006 WI 86 , 278 Wis. 2d 549 , 717 N.W.2d 184 , 03-2628 . Perfect performance is not required to effectuate a “cure" under sub. (1) (i) 1. b. The statutory word “cured" encompasses the meaning of “cured" in contract law: the breaching party is to stop the offending conduct and to substantially perform the contract. Only if the breach is not cured to the level of substantial performance may the injured party terminate the contract. This meaning focuses on the performance of the breaching party, rather than on matters beyond the control of the breaching party, such as the conduct of 3rd parties or on the effects of an economic recession. Volvo Trucks North America v. Wausau Truck Center, Inc. 2010 WI 15 , 323 Wis. 2d 294 , 779 N.W.2d 423 , 08-1385 . Section 218.01 (3) (a) 11. [now sub. (1) (f)] is applicable to manufacturers. Bob Willow Motors, Inc. v. General Motors Corp. 872 F.2d 788 (1989). 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).