WSR 99-23-064

PROPOSED RULES

WASHINGTON STATE PATROL


[ Filed November 15, 1999, 11:33 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-20-138.

Title of Rule: Civil license fraud.

Purpose: The legislature decriminalized license fraud violations and imposed civil penalties. The decriminalization requires a process be established to contest and mitigate penalties incurred. This WAC establishes the procedures for the civil hearings.

Statutory Authority for Adoption: RCW 46.16.010, 46.68.240, 46.68.255, 46.68.230, 46.68.220, 82.48.020, 82.49.010, 82.50.400, 82.32.090.

Summary: The legislature decriminalized license fraud violations and imposed civil penalties. The decriminalization requires a process be established to contest and mitigate penalties incurred. This WAC establishes the procedures for the civil hearings.

Reasons Supporting Proposal: To comply with state law.

Name of Agency Personnel Responsible for Drafting: Lt. Dave Combs, P.O. Box 42600, Olympia, WA 98504, (360) 753-0208; Implementation: Lt. Grant Hulteen, P.O. Box 42600, Olympia, WA 98504, (360) 753-0223; and Enforcement: Lt. Fred Fakkema, P.O. Box 42637, Olympia, WA 98504, (360) 753-1118.

Name of Proponent: Washington State Patrol, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: This WAC establishes the procedures for civil hearings for license fraud violations and establishes a penalty schedule. The WAC is intended to ensure that hearing procedures are the same across the state and the public will know the steps involved in adjudicating an imposed penalty.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The new law changes how and where fines and funds originated and are deposited but under the old law there were fines and penalties, therefore the financial impact should be similar. It is hoped under the new law compliance will be higher.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Commercial Vehicle Conference Room G-21, General Administration Building, Ground Floor, 210 11th S.W., Olympia, WA 98504, on January 4, 2000, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Lt. Grant Hulteen by December 31, 1999, (360) 753-0223.

Submit Written Comments to: Lt. Grant Hulteen, P.O. Box 42600, Olympia, WA 98504.

Date of Intended Adoption: January 5, 2000.

November 9, 1999

R. M. Leichner

for Annette M. Sandberg

Chief

OTS-3561.1

Chapter 204-97 WAC

CIVIL LICENSE FRAUD


NEW SECTION
WAC 204-97-010
Purpose.

The purpose of this regulation is to provide standards and procedures for administrative reviews conducted by the Washington state patrol of alleged civil violations of RCW 46.16.010, 82.48.020, 82.49.010, 82.50.400 and/or 88.02.118 relating to illegal licensing of motor vehicles, trailers, campers, vessels, and aircraft.

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NEW SECTION
WAC 204-97-020
Definitions.

(1) The term "notice of penalty due" or "NPD" is defined as a written notice issued by a commissioned law enforcement officer when the officer determines a violation of RCW 46.16.010, 82.48.020, 82.49.010, 82.50.400 and/or 88.02.118 has occurred.

(2) The term "notice of violation and penalty due" letter or "NVPD" is defined as a written notice issued by a commissioned law enforcement officer of the Washington state patrol when the officer determines a violation of RCW 46.16.010, 82.48.020, 82.49.010, 82.50.400 and/or 88.02.118 has occurred.

(3) The "district mitigation officer" is the person designated by the chief of the Washington state patrol to adjudicate alleged civil violations of RCW 46.16.010, 82.48.020, 82.49.010, 82.50.400 and/or 88.02.118.

(4) The "administrative review officer" is the person designated by the chief of the Washington state patrol to review decisions made by the district mitigation officers regarding violations of RCW 46.16.010, 82.48.020, 82.49.010, 82.50.400 and/or 88.02.118.

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NEW SECTION
WAC 204-97-030
Procedure for civil review and payment of penalty due.

(1) Any person incurring a penalty pursuant to RCW 46.16.010, 47.68.240, 82.48.020, 82.49.010 and/or 88.02.118, shall have fifteen days from receipt of the notice of penalty due (NPD) or notice of violation and penalty due (NVPD) to pay the penalty or request a review. Any person requesting a review shall mail a written request to the administrative review officer within fifteen days. The Washington state patrol shall, within fifteen days of the request, mail the person requesting the review a copy of the state's case. After receiving the state's case, the person requesting review shall have fifteen days within which, if they so choose, to mail a rebuttal statement and any relevant evidence to the district mitigation officer.

(2) The Washington state patrol shall assemble and forward the original case report and any statements or evidence submitted by the person requesting review to the district mitigation officer. The district mitigation officer will review all submitted facts and determine by a preponderance of the evidence if the civil violation occurred. If the facts demonstrate a civil violation occurred, a monetary penalty will also be determined. To determine the amount of the penalty, district mitigation officers will:

(a) Consider any factors submitted by the interested parties relating to mitigation. Such factors may include, but are not limited to:

(i) The length of the period of noncompliance;

(ii) The number of previous warnings, violations, and/or notices of payment due issued to the violator;

(iii) The total number of vehicles, vessels, or aircraft improperly licensed by the violator;

(iv) The violator's total economic benefit from noncompliance;

(v) The existence and/or sophistication of the violator's effort to avoid detection of the improper licensing;

(vi) The length of time the violator has resided in Washington.

(b) Determine the fair market value of the improperly licensed vehicle, vessel, or aircraft.

(c) Apply the penalty determination criteria of WAC 206-97-040.

The district mitigation officer will mail a written explanation of the decision and any applicable monetary penalties within ten days of the decision. The explanation will also advise the recipient of the procedures available for further review of the penalty.

(3) When a person receives the district mitigation officer's decision upholding a civil violation and penalty, within twenty-one days of receipt the person shall pay the penalty or request an additional review (via certified mail) by the administrative review officer. If further review is not requested within twenty-one days, the district mitigation officer's decision becomes the final agency order.

(4) If the additional administrative review is requested, only the facts and evidence previously submitted to the district mitigation officer will be considered by the administrative review officer, who will:

(a) Review the determination that a violation occurred;

(b) Ensure the monetary penalty is appropriate;

(c) Ensure that the review process outlined in chapter 204-97 WAC was followed.

(5) The administrative review officer's decision must be issued within twenty days of the administrative division's receipt of a request for review. If the administrative review officer's decision is not mailed within twenty days, the penalty will be dismissed. All decisions of the administrative review officer will be explained in writing. The person receiving the decision shall pay the penalty or appeal the decision within thirty days of receipt of the administrative review officer's decision.

Any further appeal shall be to the Thurston County superior court or the superior court of the county in which the penalized person resides or does business. Notice of the right to seek superior court review of the administrative review officer's decision will be included with the administrative review officer's written explanation of the decision.

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NEW SECTION
WAC 206-97-040
Penalties.

(1) The monetary penalty for a violation of RCW 46.16.010 (1)(a), regarding failure to initially register a motor vehicle before operation on the highways of the state is three hundred fifty dollars for each violation in addition to all other penalties provided by law.

(2) The monetary penalty for a violation of RCW 46.16.010 (2)(a), regarding the registration of a vehicle in another state by a resident of this state to avoid the payment of any tax or license fee imposed in connection with registration, is ten percent of the value of the vehicle or one thousand dollars, whichever is greater, but shall not exceed ten thousand dollars.

(3) The monetary penalty for a violation of RCW 47.68.255(1) and 82.48.020 (2)(a), regarding the registration of an aircraft in another state or foreign country, by a person who is required to register the aircraft in Washington, to avoid the payment of aircraft taxes, is ten percent of the value of the aircraft or one thousand dollars, whichever is greater, but shall not exceed ten thousand dollars.

(4) The monetary penalty for a violation of RCW 82.49.010 (2)(a), regarding the registration of a vessel in another state or foreign country, by a person who is required to register the vessel in Washington, to avoid the payment of Washington watercraft taxes is ten percent of the value of the vessel or one thousand dollars, whichever is greater, but shall not exceed ten thousand dollars.

(5) The value of the vehicle, vessel, or aircraft is it's fair market value. It may be established by the actual purchase price of the vehicle/vessel/aircraft as shown by official purchase documents. The reviewing officer may also consider the manufacturers suggested retail price (MSRP) of the vehicle/vessel/aircraft, the average Kelly Blue Book value for vehicles or other similar publications for vessels and aircraft.

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Washington State Code Reviser's Office