WSR 99-19-139

EXPEDITED ADOPTION

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed September 21, 1999, 4:01 p.m. ]

Title of Rule: Administrative procedures.

Purpose: Adopt procedural rules for license revocation and privilege suspension.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: Establishes procedural rules for revocation of licenses and suspension of licensing privileges.

Reasons Supporting Proposal: Provides clarity and surety in procedure for license revocation and suspension.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2927.

Name of Proponent: Washington State Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Procedural rules for notice, contents, appeals, grounds for reversal or modification and reinstatement will afford due process guarantees, clarity and surety in how the department revokes licenses, suspends privileges, and reinstates licensing privileges.

Proposal does not change existing rules.

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Evan Jacoby, Rules Coordinator, Washington State Fish and Wildlife, 600 Capitol Way North, Olympia, WA 98501-1091 , AND RECEIVED BY November 22, 1999.


September 21, 1999

Evan Jacoby

Rules Coordinator

OTS-3330.2

Chapter 220-125 WAC

LICENSE REVOCATION AND PRIVILEGE SUSPENSION


NEW SECTION
WAC 220-125-010
Scope of rules--Definitions.

The provisions of this chapter apply to the department's authority under chapters 77.15 and 77.16 RCW to issue orders that revoke licenses, tags, or permits issued by the department, or to suspend privileges administered by the department.

(1) "Revoke" and "revocation" mean issuance of a department order under chapter 77.15 or 77.16 RCW that takes away a license, tag, or permit. A revocation order nullifies all privileges represented by the license, tag, or permit, regardless of whether a revoked license is physically returned to the department, unless that order is withdrawn or reversed.

(2) "Suspend" and "suspension" mean issuance of a department order under chapter 77.15 or 77.16 RCW that prohibits a person from enjoying or exercising a privilege that is regulated by any licenses, tags, or permits issued by the department. When a person is subject to an order suspending privileges, then any license obtained in violation of the suspension is void.

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NEW SECTION
WAC 220-125-020
Issuing orders of revocation or suspension.

Upon a determination that there are grounds for an order of revocation or suspension provided by statute, the director, or the director's authorized designee, is authorized to issue a revocation or suspension order.

(1) Time limit for orders. An order shall be issued no later than two years from the last conviction or other event that provides the grounds for the order.

(2) Effective date of orders. An order shall not be effective until the 21st calendar day following the mailing date of the order and shall remain in effect through the entire period of suspension, or the remaining period of the revoked license, unless the order is withdrawn, or unless recipient files a timely request for an adjudicative proceeding under WAC 220-125-050 to contest the order. When there is a timely request for an adjudicative proceeding, the effective date, if any, shall be set by the final order that results from the adjudicative proceeding.

(3) Exception for orders that take effect immediately. If the director makes a finding that public health, safety, or welfare requires emergency action, the order may provide that revocation or suspension take effect immediately, or at any time prior to an adjudicative proceeding. A person subject to such an order may seek an adjudicative proceeding and that proceeding shall include an opportunity to seek expedited review of the determination that the order take effect immediately.

(4) Finality of orders. If there is no timely request for an adjudicative proceeding, then the order shall be final. An order contested in an adjudicative proceeding is final when that proceeding ends in a final order pursuant to the Administrative Procedure Act, or is otherwise dismissed. There shall be no collateral attack nor relitigation of any final order.

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NEW SECTION
WAC 220-125-040
Content of order.

An order of revocation or suspension shall include the information required by this section.

(1) A statement of material facts, such as the fact of conviction or other material facts set by statute or rule, and a statement of the legal authority that authorizes the order.

(2) A statement identifying what license, tag, or permit, or licensing privileges are revoked and/or suspended.

(3) A statement describing the beginning and end of the period of revocation and/or suspension.

(4) A statement describing rights to request an adjudicative proceeding to contest the order.

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NEW SECTION
WAC 220-125-050
Adjudicative proceedings to contest an order of revocation or suspension.

A person who is subject to an order of revocation or suspension shall have the rights provided by this section to request an adjudicative proceeding to contest the order. No person other than the recipient of the order or the recipient's legal representative shall have standing to request an adjudicative proceeding. The adjudicative proceeding shall be in compliance with provisions of the Administrative Procedure Act, except as modified by applicable rules of the department.

(1) Service by department. Service of the order by the department is valid if done in any of the following manners:

(a) Personal service on the recipient in the manner allowed by the civil rules for service of a complaint and summons;

(b) Service by mail to the last mailing address of a licensee; or

(c) Service by mail to the mailing address of a person convicted of a violation of chapter 77.15 RCW as shown by court records of the conviction.

When service is by mail, the date of service shall be shown on the department order as the date of department mailing, and may be proved by a certificate of mailing.

(2) Timing for request. An adjudicative proceeding to contest an order of revocation or suspension must be requested no later than twenty days from the date of service of the order. To be timely, the request must be physically received by the office of the director in Olympia, Washington, during normal business hours on or before the 20th day following the date of service of the order, except that if the 20th day falls on a Saturday, Sunday, or state holiday, then the request for hearing shall be timely if received on the next business day. The person requesting an adjudicative proceeding may prove that it was timely requested by obtaining a written receipt of service from the office of the director, or by providing an affidavit showing personal service on the office of the director, or by a United States mail return receipt requested service showing receipt by the department on or before the last day set by this rule.

(3) Manner and content of request. Each request for adjudicative proceeding shall substantially comply with this subsection.

(a) The request shall be in writing;

(b) The request shall identify the order that the person seeks to contest. This can be done by reference to the number of the order, by reference to the subject and date of the order, or by reference to a copy of the order attached to the request;

(c) The request shall state the grounds upon which the person contests the order. If the person contests the factual basis for the order, the person shall allege the facts that the person contends are relevant to the appeal; and

(d) The request shall identify the relief that the person seeks from the adjudicative proceeding by specifying whether the person asks to have the order vacated, or provisions of the order corrected.

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NEW SECTION
WAC 220-125-060
Grounds for reversing or modifying an order of suspension or revocation.

An adjudicative proceeding to review a department order of revocation or suspension shall reverse or modify an order only when the order was not authorized by law, or as otherwise provided in this section. Where an issue of fact is material to determining the validity of an order, then the department shall be required to prove the fact by a preponderance of evidence, except that a person contesting the order shall have the burden to prove any fact that is in the nature of an affirmative defense.

(1) Adjudicative proceedings to contest an order shall be limited to the following issues:

(a) Whether the person was in fact convicted of the relevant offenses or committed any conduct or actions that are material to the order;

(b) Whether the law authorizes the order of revocation or suspension of the particular license(s) or privilege(s);

(c) Whether the period of revocation or suspension is consistent with the period required or allowed by law; and

(d) Any other issue that the presiding officer determines is necessary to review of the order or review of the discretion exercised by the director.

(2) The presiding officer may, after appropriate conference with the person seeking review and a representative of the department, enter a prehearing order to identify the issues that will be reviewed at the adjudicative proceeding, and to set the time, place, and manner of the proceeding. A prehearing order shall control all future proceedings and issues shall not be raised except as allowed by that order, except when the presiding officer determines that there is good cause. If no prehearing order is entered, then the adjudicative proceeding may occur and review the grounds stated in the request at a time, place, and manner set by the presiding officer. When there is no substantial prejudice to the appellant's ability to contest a department order, an adjudicative proceeding under this subsection may be conducted based on written submissions.

(3) Discovery and subpoenas. Discovery is not allowed except as provided in this rule. A party wishing to engage in discovery, or to compel the attendance of witnesses at the hearing or in discovery, must file a motion with the presiding officer to obtain permission. Such motion shall be served on all parties to the proceeding, and all parties shall have at least five days to respond to the motion before the presiding officer rules, unless the presiding officer shortens time for such a motion based upon a showing of good cause. In addition to the criteria set by RCW 34.05.446(3) for such motions, the moving party shall demonstrate that he or she has attempted in writing to seek a stipulation to the fact or facts that the person seeks to prove using discovery. The presiding officer has discretion to condition or deny discovery.

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NEW SECTION
WAC 220-125-070
Orders upon adjudication.

(1) The presiding officer shall enter findings, conclusions, and an order that affirms, modifies, or vacates the original order revoking or suspending. If the presiding officer enters an order that includes any period of revocation or suspension, then the order shall expressly state the beginning and ending period of any period of revocation or suspension, and shall identify the licenses or privileges that are revoked or suspended.

(2) If the revocation or suspension was imposed with a finding of immediate effect pursuant to WAC 220-125-020, then the period shall include such time that the person has been suspended or revoked under WAC 220-125-020. However, if the revocation or suspension did not take effect due to the initiation of the adjudicative proceeding, then the period of revocation or suspension shall begin on the twenty-first day after service of the final order and continue through the period set by statute or applicable rule.

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NEW SECTION
WAC 220-125-080
Reinstatement.

There shall be no reinstatement petitions authorized for any order of revocation or suspension except as provided by this section.

(1) A person under an indefinite order of suspension or an order that prohibits issuance of licenses for an indefinite period, based on statutes in existence prior to June 11, 1998, may petition the director for reinstatement of privileges by showing that:

(a) The person has complied with an analogous period of suspension that would be imposed under chapter 77.15 RCW; and

(b) The person has not been convicted of violating any fish or wildlife laws of the state of Washington, or any laws in Title 75 or 77 RCW, since the person was suspended or subject to an order prohibiting issuance of licenses to the person.

(2) Notwithstanding subsection (1) of this section, any such indefinite order issued by the former departments of fisheries or game or wildlife, or fish and wildlife, shall expire after ten full years from the initial date of such order.

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Washington State Code Reviser's Office