S-4383 _______________________________________________
SUBSTITUTE SENATE BILL NO. 4722
_______________________________________________
State of Washington 49th Legislature 1986 Regular Session
By House Committee on Commerce & Labor (originally sponsored by Senators Warnke, Newhouse and Vognild)
Read first time 2/5/86.
AN ACT Relating to registration of contractors; amending RCW 18.27.020, 18.27.210, 18.27.230, 18.27.240, 18.27.250, 18.27.270, 18.27.300, 18.27.310, 18.27.320, 18.27.340, and 18.27.110; adding new sections to chapter 18.27 RCW; repealing RCW 18.27.330; prescribing penalties; making an appropriation; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. Section 2, chapter 77, Laws of 1963 as last amended by section 17, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.020 are each amended to read as follows:
(1) Every contractor shall register with the department.
(2) It is a misdemeanor for any contractor having knowledge of the registration requirements of this chapter to:
(a) Offer to do work, submit a bid, or perform any work as a contractor without being registered as required by this chapter;
(b) Offer to do work, submit a bid, or perform any work as a contractor when the contractor's registration is impaired; or
(c) Transfer a valid registration to an unregistered contractor or allow an unregistered contractor to work under a registration issued to another contractor.
(3) All misdemeanor actions under this chapter shall be prosecuted in the county where the infraction occurs.
Sec. 2. Section 2, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.210 are each amended to read as follows:
((An
authorized representative of the department may)) The director shall
appoint compliance inspectors to investigate alleged or apparent violations
of this chapter. If the name of the contractor allegedly or apparently in
violation of this chapter is not known, or if the name of the contractor does
not appear on the latest list of registered contractors compiled under RCW
18.27.120(1), upon presentation of credentials, ((an authorized
representative)) a compliance inspector of the department may
inspect sites at which a contractor had bid or presently is working to
determine whether the contractor is registered in accordance with this
chapter. Upon request of the ((authorized representative)) compliance
inspector of the department, a contractor or an employee of the contractor
shall provide information identifying the contractor. If the employee of an
unregistered contractor is cited by a compliance inspector, that employee is
cited as the agent of the employer-contractor, and issuance of the infraction
to the employee is notice to the employer-contractor that the contractor is in
violation of this chapter. An employee who is cited by a compliance inspector
shall not be liable for any of the alleged violations contained in the citation
unless the employee is also the contractor.
Sec. 3. Section 3, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.230 are each amended to read as follows:
The
department may issue a notice of infraction if the department reasonably
believes that the contractor required to be registered by this chapter has
failed to do so. A notice of infraction issued under this section shall be
personally served on the contractor named in the notice by ((an authorized
representative of the department)) the department's compliance inspectors
or service can be made by certified mail directed to the contractor named in
the notice of infraction. If the contractor named in the notice of
infraction is a firm or corporation, the notice may be personally served on any
employee of the firm or corporation. If a notice of infraction is personally
served upon an employee of a firm or corporation, the department shall within
four days of service send a copy of the notice by certified mail to the
contractor if the department is able to obtain the contractor's address.
Sec. 4. Section 5, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.240 are each amended to read as follows:
(((1)))
The form of the notice of infraction issued under this chapter ((shall be
prescribed by the supreme court following consultation with the department. To
the extent practicable, the notice of infraction issued under this chapter
shall conform to the notice of traffic infraction prescribed by the supreme
court pursuant to RCW 46.63.060.
(2) The
notice of infraction)) shall include the following:
(((a)))
(1) A statement that the notice represents a determination that the
infraction has been committed by the contractor named in the notice and that
the determination shall be final unless contested as provided in this chapter;
(((b)))
(2) A statement that the infraction is a noncriminal offense for which
imprisonment shall not be imposed as a sanction;
(((c)))
(3) A statement of the specific ((infraction for)) violation
which ((the notice was issued)) necessitated issuance of the
infraction;
(((d)))
(4) A statement ((that a one hundred dollar monetary penalty has been
established for each infraction)) of penalty involved if the infraction
is established;
(((e)))
(5) A statement of the options provided in this chapter for responding
to the notice and the procedures necessary to exercise these options;
(((f)))
(6) A statement that at any hearing to contest the ((determination))
notice of infraction the state has the burden of proving, by a
preponderance of the evidence, that the infraction was committed; and that the
contractor may subpoena witnesses, including the ((authorized representative))
compliance inspector of the department who issued and served the notice
of infraction;
(((g)))
(7) A statement, which the person who has been served with the notice of
infraction shall sign, that the contractor promises to respond to the notice of
infraction in one of the ways provided in this chapter;
(((h)))
(8) A statement that refusal to sign the infraction as directed in
subsection (((2)(g))) (7) of this section is a misdemeanor and
may be punished by a fine or imprisonment in jail; and
(((i)))
(9) A statement that a contractor's failure to respond to a notice of
infraction as promised is a misdemeanor and may be punished by a fine or
imprisonment in jail.
Sec. 5. Section 4, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.250 are each amended to read as follows:
A violation
designated as an infraction under this chapter shall be heard and determined by
((a district court. A notice of infraction shall be filed in the district
court district in which the infraction is alleged to have occurred. If a
notice of infraction is filed in a court which is not the proper venue, the
notice shall be dismissed without prejudice on motion of either party)) an
administrative law judge of the department. If a party desires to contest the
notice of infraction, the party shall file a notice of appeal with the
department, within twenty days of issuance of the infraction. The
administrative law judge shall conduct hearings in these cases at locations in
the county where the infraction occurred.
Sec. 6. Section 7, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.270 are each amended to read as follows:
(1) A
contractor who ((receives a notice of infraction shall respond to the notice
as provided in this section within fourteen days of the date the notice was
served)) is issued a notice of infraction shall respond within twenty
days of the date of issuance of the notice of infraction.
(2) If the
contractor named in the notice of infraction does not ((want to contest the
determination, the contractor shall respond by completing the appropriate
portion of the notice of infraction and submitting it, either by mail or in
person, to the court specified on the notice. A check or money order in the
amount of the penalty prescribed for the infraction must be submitted with the
response. When a response which does not contest the determination is
received, an appropriate order shall be entered in the court's records, and a
record of the response and order shall be furnished to the department)) elect
to contest the notice of infraction, then the contractor shall pay to the
department, by check or money order, the amount of the penalty prescribed for
the infraction. When a response which does not contest the notice of
infraction is received by the department with the appropriate penalty, the
department shall make the appropriate entry in its records.
(3) If the
contractor named in the notice of infraction ((wants to contest the
determination, the contractor shall respond by completing the portion of the
notice of infraction requesting a hearing and submitting it, either by mail or
in person, to the court specified on the notice. The court shall notify the
contractor in writing of the time, place, and date of the hearing. The date of
the hearing shall not be sooner than fourteen days from the date of the notice
of hearing, except by agreement of the parties)) elects to contest the
notice of infraction, the contractor shall respond by filing an answer of
protest with the department specifying the grounds of protest.
(4) If any
contractor issued a notice of infraction((:
(a) Fails
to respond to the notice of infraction as provided in subsection (2) of this
section; or
(b) Fails
to appear at a hearing requested pursuant to subsection (3) of this section;
the court shall enter
an appropriate order assessing the monetary penalty prescribed for the
infraction and shall notify the department of the failure of the contractor to
respond to the notice of infraction or to appear at a requested hearing.
(5) An
order entered by the court under subsection (4)(b) of this section may, for
good cause shown and upon such terms as the court deems just, be set aside for
the same grounds a default judgment may be set aside in civil actions in courts
of limited jurisdiction)) fails to respond within the prescribed response period, the
contractor shall be guilty of a misdemeanor and prosecuted in the county where
the infraction occurred.
(5) After final determination by an administrative law judge that an infraction has been committed, a contractor who fails to pay a monetary penalty within thirty days, that is not waived, reduced, or suspended pursuant to RCW 18.27.340(2), and who fails to file an appeal pursuant to RCW 18.27.310(4), shall be guilty of a misdemeanor and be prosecuted in the county where the infraction occurred.
(6) A contractor who fails to pay a monetary penalty within thirty days after exhausting appellate remedies pursuant to RCW 18.27.310(4), shall be guilty of a misdemeanor and be prosecuted in the county where the infraction occurred.
Sec. 7. Section 8, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.300 are each amended to read as follows:
A
contractor subject to proceedings under this chapter may appear or be
represented by counsel. The department shall be represented by the attorney
general in ((any proceeding)) administrative proceedings and any
subsequent appeals under this chapter.
Sec. 8. Section 9, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.310 are each amended to read as follows:
(1) ((A
hearing held to contest the determination that an infraction has been committed
shall be without a jury.
(2) The
court may consider the notice of infraction and any sworn statement submitted
by the department's authorized representative who issued and served the notice
in lieu of his or her personal appearance at the hearing. The contractor named
in the notice may subpoena witnesses, including the authorized representative
who issued and served the notice, and has the right to present evidence and
examine witnesses present in court.
(3))) The administrative law judge shall conduct
contractors' notice of infraction cases pursuant to chapter 34.04 RCW.
(2) The burden of proof is on the department to establish the commission of the infraction by a preponderance of the evidence. The notice of infraction shall be dismissed if the defendant establishes that, at the time the notice was issued, the defendant was registered by the department or was exempt from registration.
(((4)))
(3) After consideration of the evidence and argument, the ((court))
administrative law judge shall determine whether the infraction was
committed. If it has not been established that the infraction was committed,
an order dismissing the notice shall be entered ((in the court's records))
in the record of the proceedings. If it has been established that the
infraction was committed, ((an appropriate order shall be entered in the
court's records)) the administrative law judge shall issue findings of
fact and conclusions of law in its decision and order determining whether the
infraction was committed.
(((5)))
(4) An appeal from the ((court's)) administrative law judge's
determination or order shall be to the superior court. The decision of the
superior court is subject only to discretionary review pursuant to Rule 2.3 of
the Rules of Appellate Procedure.
Sec. 9. Section 13, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.320 are each amended to read as follows:
The ((court))
administrative law judge shall dismiss the notice of infraction at any
time upon written notification from the department that the contractor named in
the notice of infraction was registered at the time the notice of infraction
was issued.
Sec. 10. Section 15, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.340 are each amended to read as follows:
(1) A
contractor found to have committed an infraction under RCW 18.27.200 shall be
assessed a monetary penalty of ((one hundred dollars)) not less than
two hundred dollars and not more than three thousand dollars.
(2) The ((court))
administrative law judge may waive, reduce, or suspend the monetary
penalty imposed for the infraction only upon a showing of good cause that
the penalty would be unduly burdensome to the contractor.
(3)
Monetary penalties collected under this chapter shall be ((remitted as
provided in chapter 3.62 RCW)) deposited in the general fund.
NEW SECTION. Sec. 11. A new section is added to chapter 18.27 RCW to read as follows:
The consumers of this state have a right to be protected from unfair or deceptive acts or practices when they enter into contracts with contractors. The fact that a contractor is found to have committed a misdemeanor or infraction under this chapter shall be deemed to affect the public interest and shall constitute a violation of chapter 19.86 RCW. The surety bond shall not be liable for monetary penalties or violations of chapter 19.86 RCW.
NEW SECTION. Sec. 12. A new section is added to chapter 18.27 RCW to read as follows:
The director shall adopt rules in compliance with chapter 34.04 RCW to effect the purposes of this chapter.
NEW SECTION. Sec. 13. Section 14, chapter 2, Laws of 1983 1st ex. sess. and RCW 18.27.330 are each repealed.
Sec. 14. Section 4, chapter 126, Laws of 1967 and RCW 18.27.110 are each amended to read as follows:
No city,
town or county shall issue a construction building permit for work which is to
be done by any contractor required to be registered under chapter 77, Laws of
1963 and chapter 18.27 RCW without ((proof)) verification that
such contractor is currently registered as required by law. When such
verification is made, nothing contained in this section is intended to be, nor
shall be construed to create, or form the basis for any liability under this
chapter on the part of any city, town or county, or its officers, employees or
agents.
NEW SECTION. Sec. 15. There is appropriated from the general fund to the department of labor and industries for the biennium ending June 30, 1987, the sum of forty-five thousand dollars, or so much thereof as may be necessary, to carry out the purposes of this act.
NEW SECTION. Sec. 16. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.