STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MDP MAXIMIZE DEALER PERFORMANCE LTD, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 590346, Hearing No. S0700135EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, MDP Maximize Dealer Performance Ltd. is liable for contributions to the Unemployment Reserve Fund for the calendar years 2002 and 2003, the first, third and fourth quarters of 2004, and the first quarter of 2005, as set forth in the department's initial determination.

Dated and mailed December 11, 2009
mdpllc . ssd : 110 : EE 410 EE 407 410.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This status (UI tax liability) case involves the question of whether 39 individuals who perform services related to automobile sales, did so as employees of the petitioner, MDP Maximize Dealer Performance Ltd. ("MDP") during certain calendar quarters (all of 2002 and 2003, quarters 1, 3 and 4 of 2004, and quarter 1 of 2005).

MDP operated a business whereby it would contract with various auto dealerships to conduct automobile "super sales." These super sales would involve an aggressive advertising campaign designed to entice customers to come to the dealerships for the sales that lasted four to five days. As part of its agreement with the dealerships, MDP would agree to provide certain workers for the sales. These workers included salespeople, a finance manager, a desk manager, and a closing manager.

MDP has stipulated that the individuals in question provided services for pay for it within the meaning of Wis. Stat. § 108.02(12)(a), and that it thus bears the burden to rebut the presumption of employee status by establishing that at least seven out of the ten conditions in Wis. Stat. § 108.02(12)(bm) are met.

At the hearing, only 8 of the individuals whose status was at issue actually testified. (1)   The other testimony was provided by Roy Roberg, one of the owners of MDP; Bruce Crotteau, formerly the owner of a dealership that had once contracted with MDP, and then after that the national sales director for MDP; and David Bernier, another owner of MDP.

The ALJ found that none of the individuals met any more than five of the statutory standards, and he therefore affirmed the determination of the Department that all of them were providing services as "employees" during the calendar quarters in question. A significant part of the ALJ's rationale was the lack of testimony from many of the individuals. Thus, he noted specifically with respect to conditions 1, 2, 3, 4, 5, and 9, that there was a lack of competent testimony as to facts that would be relevant to whether the particular individual(s) met those conditions and that in view of this it could not be found that they were established.

The commission's analysis and application of the relevant statutory conditions in Wis. Stat. § 108.02(12)(bm) are set out below.
 

1. The individual holds or has applied for an employer identification number with the federal internal revenue service -- The ALJ found that this condition was met as to only 13 of the 39 different individuals who provided services at one time or another during the calendar quarters at issue.

MDP's argument on this factor is tied in with an argument on another matter: the question of whether the individuals at issue were incorporated, and of whether any such incorporations were induced or arranged by MDP. The tie-in has to do with a distinction between an individual having a FEIN, and a corporation created by that individual having an FEIN. In a footnote, the ALJ noted that MDP had stated at hearing that it did not dispute that the workers were individuals providing services within the meaning of Wis. Stat. § 108.02(12)(a). He then continued by stating that even if MDP had disputed this, on the grounds of individuals being incorporated, it would still be appropriate to find them to be individuals because MDP had required them to become incorporated, going so far as to assist them in this, in order to try to avoid liability for unemployment insurance. This, he stated, was reason to "pierce the corporate veil", under the rationale of Wisconsin Cheese Service v. DILHR, 108 Wis. 2d 482, 322 N.W.2d 495 (Ct. App. 1982). In its brief, MDP acknowledges that it stipulated that the persons in question were "employees" within the meaning of § 108.02(12)(a), but it then disputes the rationale stated in the ALJ's footnote, and argues it had not required the individuals to incorporate in order to avoid UI liability and that Wisconsin Cheese is inapplicable.

The commission believes that the ALJ's discussion of what analysis would have been appropriate if MDP had disputed, rather than stipulated, that the workers were individuals providing services within the meaning of Wis. Stat. § 108.02(12)(a), was in the nature of dicta. Because MDP stipulated that the individuals in question were individuals providing services within the meaning of § 108.02(12)(a), that question is resolved.

With respect to the issue of whether the FEIN test in § 108.02(12)(bm)1. was met, the ALJ's decision did not actually turn on this corporate status issue. He seems to have accepted MDP's argument that if an individual had incorporated and the corporation then got an FEIN, this could be considered an FEIN of the individual sufficient to meet this test. The problem was that as to 26 of the individuals there was no proof that either they, or a corporation they had created, had an FEIN.

MDP argues that it was "under the impression that the Department had stipulated to the fact that all workers had FEINs". It also argues that finding some of the individuals to be "representative" of the others is supported by Hauden & Scholl Builders (LIRC, Aug. 31, 1998) and Sure Value Auto Sales (LIRC, Feb. 12, 2007).

Neither argument is persuasive. While the Department's counsel did offer a stipulation on behalf of the Department connected with this matter, what he stipulated to was limited. In the context of an unresolved discussion about the question of whether an individual's corporation's FEIN was equivalent to the individual having an FEIN, the Department's counsel offered a stipulation to the admission of documents, such as they might be, which might show individuals' corporations having FEINs. (See, T. 322-23). This was not a stipulation of fact that there were such documents for every individual or that all the individuals (or their corporations) had FEINs.

With regard to the "representative capacity" argument, the Department correctly argues in its brief that Hauden & Scholl is distinguishable. That case concerned building trades workers. Some who did not appear at hearing were nevertheless found to have satisfied the applicable "free from the employing unit's control or direction" test, "based on testimony regarding the crew members in general." The extent to which an employer exercises control and direction over individuals performing services for it is something that can be determined from the employer's evidence, which distinguishes it from something like possession of a FEIN, which is by its nature specific to the individual. The commission has not found the FEIN test to be satisfied as to an individual based on the fact that some other individual, deemed "representative", had met that test. MDP's citation to Sure Value Auto is also unpersuasive, as that decision contained no holding that any individual(s) could be found to have satisfied any test based on the fact that some other individual, deemed "representative" or something of the like, had done so.

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

2. The individual has filed business or self-employment income tax returns with the federal internal revenue service based on such services in the previous year -- The ALJ found that this condition was met as to only 8 of the 39 individuals at issue.

MDP argues that "as the evidence in the record establishes that all of the workers held FEINs, the logical conclusion that can be drawn from this fact is that all of the workers also filed self-employed or business tax returns in the name of their corporation." However, as noted above, the evidence in the record does not establish that all of the individuals held FEINs. Also, the fact that an individual has applied for or holds an FEIN does not necessarily establish that the individual files self-employment or business tax returns. Similarly, the fact that an individual is sent a 1099 form does not necessarily establish that the individual has filed or must file a Schedule C (business tax return) or SE (self-employment tax schedule); the income reported on a 1099 can be reported on the 1040 or 1040A. Receiving a 1099 is simply not evidence that an individual filed the returns required for this test to be met. See, Gamble v. American Benefit Ltd (LIRC, Feb. 15, 2005).

MDP repeats its "representative capacity" argument here, asserting that the 8 individuals who testified were "in all respects similarly-situated to the 31 workers who did not testify" and that findings should be made as to all based on the testimony of those 8. MDP again cites Hauden & Scholl Builders as support for this argument. The argument is as unavailing here as it was in regard to the first test; whether a person files a standard return, or a business return, is a specific individual trait which cannot be generally controlled by the putative employer and may vary from person to person, and is therefore not amenable to a "representative capacity" argument. The commission has not found the business/self-employment tax return test to be satisfied as to an individual based on the fact that some other individual, deemed "representative", had met that test.

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

3. The individual maintains a separate business with his or her own office, equipment, materials and other facilities -- The ALJ found that this condition was not met as to any of the subject individuals. He found it to have been unsatisfied with respect to the individuals who did not testify, based simply on a complete lack of competent evidence as to their particular situations and characteristics. As to the 8 who testified, his rationales were that:

Saari did not advertise or hold himself out as operating a business separate from MDP, and his home office was not used by him in connection with his services for MDP;

Walsh's home office was not used by him in connection with his services for MDP;

Hinman did not advertise or hold himself out as operating a business separate from MDP, never actually performed similar services for another entity, and it appeared he was not really operating a separate business apart from MDP;

Koenig never actually performed similar services for another entity, and given how closely tied he was to MDP, it cannot be held that he was operating a separate business;

Plante did not have his own office;

Wasserman's "home office" had no real office equipment apart from what might be found in any home (a desk, file cabinet and calendar) and the only work he did there involving MDP was to use his calendar to plan his scheduling;

The office which Himmler rented was not used by him for anything connected with the services he performed for MDP, and he did not advertise or hold himself out as operating a business separate from MDP; and

Tollers, while he had a home office with a computer he purchased in order to use it in connection with the services he performed for MDP, did not advertise or hold himself out as operating a business separate from MDP, and never actually performed similar services for another entity.

MDP's argument relies on an assertion that the majority of the individuals performed event sales work for other dealers, and maintained home offices with equipment such as computers, cell phones, fax machines and printers. It argues that under Hauden & Scholl Builders, where a worker is "known" within the business community there is no need for advertising, that one does not need an office to be engaged in an independent business if an office is neither expected nor required in a line of work, and that where a worker performs services for compensation rather than as a hobby or charitable undertaking it can be assumed they are engaged in an independent business.

DWD's argument starts with the proposition that the focus of this test is on whether a separate business, created and existing apart from the relationship with the employer, was being maintained with the worker's own resources. It principally relies on the "lack of a separate business" rather than on the particular indicia (i.e., office, equipment, etc.). It attempts to deflect the argument regarding some individuals having performed similar services for others, by asserting that this does not necessarily reflect anything more than "different employments."

MDP's argument relying on Hauden & Scholl concerning advertising, ignores the fact that the specific holding in that decision on which it relies, was in fact related to the old "independently established" test, not the "separate business" test of § 108.02(12)(bm)3. A number of LIRC decisions have reflected the view that advertising is an indicator of an actual "separate business", and so is relevant under § 108.02(12)(bm)3. See, e.g., Quality Communications Specialists Inc. (LIRC, July 30, 2001), Gary Hanks v. Americable Media Group (LIRC, April 28, 2004), Lisko & Erspamer SC (LIRC, Feb. 24, 2004).

The factors cited by the ALJ in concluding that none of the 8 individuals who testified met this condition - whether there was a home office used in connection with the services, whether similar services were performed by others, whether the individual advertised or held out the availability of their services - are all consistent with past interpretations of this condition.

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

4. The individual operates under contracts to perform specific services for specific amounts of money under which the individual controls the means and methods of performing such services -- The ALJ found that this condition was not met as to any of the subject individuals.

As to the first element of this two-part (i.e., contracts to perform specific services for specific amounts of money; control of means and methods) condition, and regarding the 31 individuals who did not testify, the ALJ rejected as insufficient the hearsay testimony that they performed similar services for others. While this condition can be satisfied with multiple contracts with the same entity, the ALJ found that there was no negotiation or re-negotiation of rates between the individuals and MDP, but rather an acceptance of offered rates and the provision of services in the course of a continuing relationship. Thus, as to the 31 individuals who did not testify, the "contracts" portion of this condition was not met. As to the 8 individuals who testified, the ALJ found that 5 (Walsh, Saari, Hinman, Wasserman and Plante) performed services for other companies sufficient to allow a conclusion that they satisfied the "contracts to perform specific services" element.

However, the ALJ also concluded that none of the individuals at issue met the second element of this condition, control of means and methods, because of significant controls on them: they had to be at the dealerships during designated hours and days, had to dress according to certain specifications, were subject to the control of the dealerships on the pricing of vehicles, and were subject to other restrictions. The ALJ correctly noted in this respect, that under the statute it does not matter that some of the controls over the individuals come from third parties rather than the putative employer, since the statute simply inquires into whether the individuals at issue have control of means and methods.

MDP's argument with respect to the first element of this test (multiple contracts) is that "the majority of the workers provided services for other entities while working for MDP." DWD argues that the only evidence supporting that, is hearsay. That is correct; the only evidence offered was testimony by employer witnesses that some of the individuals had told them that they were doing similar work for others. MDP's argument with respect to the second element of this test (control of means and methods) primarily focuses on certain things as to which the individuals could make their own decisions (such as whether to work a sale at all, which actually does not involve "means or methods" of working a sale once one has decided to) and things as to which MDP did not exercise control. MDP does not specifically dispute the ALJ's findings as to the elements of control held by entities (either MDP, or the dealers) other than the individuals at question.

The commission agrees with the ALJ that the level of control exercised over the whole sale process by entities other than the individuals at issue supports a conclusion that the "controls means and methods" element of this condition was not met. It therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

5. The individual incurs the main expenses related to the services that he or she performs under contract -- The ALJ found that this condition was not met as to any of the subject individuals.

As the ALJ notes, deciding whether this condition is met requires a determination of (1) what services are performed under the contract, (2) what expenses are related to the performance of those services, (3) which of those expenses are borne by the person whose status is at issue, and (4) whether those expenses constitute the main expense. As is often the case, the problematic part here is step 2. The ALJ concluded that the cost of the automobiles being sold was not an expense "related to" the services of selling those automobiles, but that the expenses of the advertising run in connection with "super sales" done by MDP, was an expense "related to" the services of selling the vehicles. In this he relied on Sure Value Auto Sales Inc. (LIRC, Feb. 12, 2007), a case involving a situation in which the services involved the purchase of used vehicles at auction, arranging for repairs, and the re-sale of the vehicles. The expenses of advertising the vehicles was found in that case to be an expense "related to" the services performed. The ALJ's conclusion here regarding advertising expense is reasonable, especially given Sure Value. Because the expense of advertising far outstripped other identifiable expenses, even in the case of the individuals who testified  (2),  the ALJ concluded this condition was not met.

MDP argues that the "most important" expense associated with the auto sales is the expense for the license which the individuals must hold in order to sell motor vehicles. licensure, referring to a license that, according to testimony at hearing, costs $14 and must be renewed every four or five years.  (3) It also cites expenses for travel and lodging expenses and cell phone and laptop expenses, borne by the individuals at issue. Acknowledging the ALJ's rationale, that the main expense related to the services performed under the contracts was advertising, MDP argues that advertising, "per industry standard," was the responsibility of the individual dealer and was not an expense normally borne by a car salesman. It equates this to the expense of lumber found, in Hauden & Scholl, to be something which was per industry standard provided by the general contractor and was not an expense borne by a rough carpentry contractor.

DWD relies entirely on the ALJ's reasoning.

The commission believes that the ALJ's conclusion that advertising for the "super sales" is an expense "related to" the services performed by the individuals under their contracts, is reasonable. It is hard to equate advertising in this context, to lumber in the building construction context. Here, the services are selling cars. Basically, advertising is selling: it is communication intended to persuade others to buy. Thus, it is closely connected with the services the salespeople perform.

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

6. The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services -- The ALJ found that this condition was not met as to any of the subject individuals.

MDP had argued that if a salesperson made a mistake as a result of which a sale had to be cancelled the salesperson could be required to return the commission he had received. However, that is simply the equivalent of not being paid for work if the result was unsatisfactory. As the ALJ noted, this condition has been construed as requiring more than this. MDP also argues, in its brief to LIRC, that if a salesperson's performance was poor, they might not be asked back to work on any future "super sales." Again, though, this condition has been interpreted as requiring more than this. See, e.g., St. Clair v. Rylan & Co, Inc. (LIRC, June 7, 2000) (potential loss of future business does not make the claimant liable for failing to satisfactorily complete his work).

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

7. The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis -- The ALJ found that this condition was met to all of the individuals. This condition is not at issue; the department stipulated that all of the subject individuals were paid by commission.
 

8. The individual may realize a profit or suffer a loss under contracts to perform such services -- The ALJ found that this condition was met as to all of the subject individuals. The ALJ's rationale on this factor, which was that the individuals faced the possibility of a "loss" because they had expenses which might not be covered by earnings if they did not make enough in commissions, is consistent with past interpretations of this factor. See, e.g., First Wisconsin Lending, Inc. (LIRC, Jan. 30, 2009). This condition is not at issue; in its brief, the Department states that it does not dispute this finding.
 

9. The individual has recurring business liabilities or obligations -- The ALJ found that this condition was met as to only 2 of the 39 individuals. His rationale was that there was not sufficient testimony from most of the workers to satisfy this factor, in that many of them did not testify at all and of those who did only two provided evidence of the kind of ongoing expense (in their cases, liability insurance) which would continue regularly even if the individuals were not earning any income from their services.

MDP argues that all the individuals had recurring expenses necessary to maintain their home offices. However, there was a virtually complete lack of actual evidence to support this. Certainly this is so as to the individuals who did not testify. As to those who did testify, MDP offers no citation to any evidence as to specific, ongoing expenses borne by them. Its argument that they necessarily had travel expenses is not relevant, because this condition contemplates the type of "overhead" expenses that recur regularly even if the individual is not performing any work. Here, travel expenses will only be incurred if there is a work assignment.

MDP also argues that this condition was satisfied because the salespersons all had a recurring expense for necessary licensure to sell cars. DWD argues, in response, that this kind of expense is "not what the statute intended or what LIRC has held."  (4)   It also asserts that "most liability insurances including that in Quality Communications Specialists are about at least $300 to $600," thus implicitly arguing that the licensure expense is de minimis.

The ALJ did not address the question of whether the expense for necessary licensure satisfied this condition.

It is clear from both the testimony in the record, and the relevant statutes of which the commission takes notice, that the requirement for licensure as a motor vehicle salesperson did exist and apply to the individuals at issue who performed motor vehicle sales services, that the license had to be periodically renewed, and that there was at least some monetary fee for obtaining such licensure initially and for renewing it. It was therefore a recurring liability or obligation. This, however, does not necessarily end the inquiry. The question remains, whether an expense as small as the one involved here - described by MDP's owner as $14 for a license lasting 4 or 5 years, and characterized by him as "not much" - can be considered to satisfy this condition.

In Dane County Hockey Officials Assoc. Inc. (LIRC, Feb. 22, 2000), the commission said:

While the need to maintain memberships in DCHOA, WHOA and USA Hockey is a recurring financial obligation necessary to continuing the activity of officiating hockey games, it is, in addition to being de minimis ($100/year), not the kind of "business" liability or obligation that is contemplated by this standard. There are a number of occupations in which membership in certain dues-requiring organizations is required for anyone who wants to engage in that occupation, whether they are self-employed or acting as an employe of another. The fact that a person incurs such an expense is not necessarily an indication that they are engaged in an independent business.

Thus, Dane County Hockey Officials at least acknowledges the potential applicability of a de minimis analysis to condition 9. The $100 per year expense found there to be insufficient to satisfy condition 9, would be equivalent to a monthly expense of less than $9, a sum which can reasonably be described as de minimis.

In Quality Communications Specialists, Inc. (LIRC, July 30, 2001), a case involving individuals who connected, disconnected and serviced cable television connections at television subscribers' homes, the commission stated that

the "recurring business liabilities or obligations" test does not involve a quantitative comparison, and. ...therefore lack of definite evidence as to the amount of an insurance expense is not critical.

While an analysis that dispenses with quantification of a recurring business liability might be seen as suggesting that even a de minimis expense would suffice, the context of the holding must be considered. In Quality Communications Specialists the expense being considered was maintaining Workers Compensation insurance, liability insurance, and insurance on the vehicles the individuals used to get to worksites. While the exact amount of this expense was not definite, the range was. The expense of the liability insurance involved in that case, found to satisfy condition 9, was in the range of $200 to $300 per month, by no means a de minimis sum.

In Dibbles & Dibbles Inc. (LIRC, Jan. 12, 2005), the commission considered a question of whether a recurring expense to maintain liability insurance satisfied the "recurring business liabilities or obligations" condition. Again, while the commission repeated the above-quoted holding from Quality Communications Specialists, and stated that "the statutory language does not require that the recurring business liability or obligation meet a certain dollar minimum," that must be understood in the context of the facts of the case. The expense of the liability insurance involved in that case, found to satisfy condition 9, was $400 to $800 per year, equivalent to $33 to $67 per month.

By the standards of Dane County Hockey Officials, Quality Communications Specialists, and Dibbles & Dibbles, the expenses involved in this case for maintaining a motor vehicle salesperson's license -- $14 over 4 or 5 years, equivalent to mere pennies per month - would seem too small. However, several more recent commission decisions have found condition 9 satisfied on facts which involve very small liabilities. Thus, in Preferred Financial of Wisconsin, Inc. (LIRC, Oct. 23, 2008), the commission rejected an argument by the Department that a $100 annual cost for maintaining a load originator's license was de minimis and therefore should not satisfy condition 9. It explained this by citing the above-quoted holdings of Dibbles & Dibbles (no certain dollar minimum required) and Quality Communications Specialists (no quantitative comparison required). Similarly, in Sure Value Auto Sales Inc. (LIRC, July 29, 2008), the commission held that an annual expense of about $10 to maintain an automobile buyer's license satisfied condition 9, citing Quality Communications Specialists as support.

After careful consideration, the commission concludes that the application of condition 9 in Preferred Financial of Wisconsin and Sure Value Auto went too far, in allowing amounts as insignificant as the ones involved there to satisfy condition 9.   A proper reading of Dane County Hockey Officials, Quality Communications Specialists, and Dibbles & Dibbles, taking into account the actual facts involved in those decisions, suggests that in Preferred Financial of Wisconsin and Sure Value Auto the amounts involved should have been seen as too small to satisfy condition 9.  (5)   For these reasons, the commission rejects MDP's argument that condition 9 was satisfied here based on the recurring expense for necessary licensure to sell cars. 

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

10. The success or failure of the individual's business depends on the relationship of business receipts to expenditures -- The ALJ found that this condition was not met as to any of the subject individuals. His rationale was that it was not established that any of the individuals put a significant investment at risk. In this, he relied on the proposition articulated in Dane County Hockey Officials (LIRC, Feb. 22, 2000), that this condition contemplates the existence of a genuine business or endeavor, and involves putting a significant investment at risk such that there is the potential for real "success", in the sense of the growth of the value of the investment, or "failure", in the sense of the actual loss of the investment.

MDP argues, in effect, that this condition was met because in good times these individuals could make a lot of money and in bad times they could make very little. This, however, ignores the essence of this condition, as explained in Dane County Hockey Officials. It is not about the presence or absence of an income stream; the "success" or "failure" of the individual's business with which this condition is concerned is about the actual capital value of the business. The elements noted in Hockey Officials -- a significant capital investment put at risk such that there is the potential for real "success", in the sense of the growth of the value of that investment, or "failure", in the sense of the actual loss of that investment, is simply not involved here.

The commission therefore concludes that the ALJ's findings and conclusions on this condition are supported by the record.
 

Conclusion - For the reasons discussed above, the commission agrees with the ALJ that none of the individuals at issue were shown to have satisfied a sufficient number of the statutory conditions to rebut the presumption that they provided their services to MDP as employees. Therefore, the commission affirms the decision of the ALJ.

cc:
Atty. Victoria L. Seltun, Weld, Riley, Prenn Ricci SC
Bureau of Legal Affairs, DWD UI Division


Appealed to Circuit Court.  Appeal dismissed, May 18, 2010.     [Summary of Circuit Court decision]

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Footnotes:

(1)( Back ) These 8 were Michael Saari, Paul Walsh, Daniel Hinman, James Koening, Richard Plante, Steven Wasserman, Jeffrey Himmler, and Adam Tollers.

(2)( Back ) The ALJ noted that, as to the individuals who did not testify, the fact that their individual expenses were not specifically established could not be quantified meant that this condition could not be considered met as to any of them.

(3)( Back ) The commission infers that the licensure which was testified about at the hearing was the license required by Wis. Stat. 218.0114, which states in relevant part, "No . . . motor vehicle salesperson . . . may engage in business as a . . . motor vehicle salesperson . . . in this state without a license therefor as provided in ss. 218.0101 to 218.0163," the requirements and fees for which are specified in Wis. Stat. 218.0114 (14) and (23).

(4)( Back ) DWD also argues that, as to the individuals who did not testify, there is no evidence that they ever actually paid the fee necessary to be licensed. However, this condition expressly looks simply at whether individuals have recurring business liabilities or obligations. It is apparently not disputed that the individuals doing sales are legally required to have this licensure. It is thus a liability or obligation. In creating this condition, the legislature chose to use language which asks only of the liability or obligation exists, and which does not expressly inquire into whether, if it does, the individual is keeping current in actually meeting that liability or obligation.

(5)( Back ) The commission would note that, in both Preferred Financial of Wisconsin and Sure Value Auto, the evidence and conclusions regarding the other statutory conditions was such that the ultimate result in the cases would not have been altered by a different outcome on condition 9.

 


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