2005AP427 & 2005AP428 Shawano, LLC, et al. v. Dr. R.C. Samanta Roy Institute

Listen to this article

“[T]he Act does not specify how often price surveys must be conducted. The timing of price surveys is mentioned in a note following Wis. Admin. Code § ATCP 105.23(1): ‘The department recommends that sellers maintain daily price surveys … especially for days that they are selling motor vehicle fuel below costs ….’ Nowhere does the department require or even recommend a survey every twenty-four hours; rather, it recommends daily price surveys. It is undisputed that the Institute conducted price surveys on October 17 and October 18. Thus, the Institute performed ‘daily price surveys’ and complied with the department’s recommendation.

“Indeed, the only time constraint included in the Act is that a notice of meeting a competitor’s price must be filed ‘on the day’ the price was lowered. See Wis. Stat. § 100.30(7)(a). It is uncontested that the Institute filed a notice on October 18 and therefore complied with the Act’s time requirement.

“The competitors attempt to support their argument by relying on a department ’24-hour rule.’ However, neither the Act nor the administrative code provides or explains this rule. A department employee testified that the rule was designed to give retailers a twenty-four-hour grace period before the department would prosecute a violation of the Act. However, it is unclear from what event this twenty-four-hour grace period would run. In any event, when interpreting a statute, we owe no deference to a department rule of prosecutorial policy, especially when that rule does not comport with the plain language of the Act and the administrative code provisions.

“In summary, there is no requirement that a retailer must conduct a price survey within any particular time period, let alone twenty-four hours. There is no evidence that Kindseth delayed her price survey or set the Institute’s gasoline price with the intent to defraud or seek an unconscionable advantage. Because the competitors make no other arguments or offer no other evidence that the Institute acted in bad faith, the circuit court erred when it concluded otherwise.”

Reversed.

Recommended for publication in the official reports.

Dist III, Shawano County, Grover, J., Peterson, J.

Attorneys:

For Appellant: Sherry D. Coley, Green Bay; Winston A. Ostrow, Green Bay

For Respondent: Francis J. Slattery, Oshkosh