WSR 04-20-112

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed October 6, 2004, 10:59 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-15-040.

Title of Rule and Other Identifying Information: Chapter 308-08 WAC new sections: Brief adjudicative proceedings -- When they can be used; Objections to brief adjudicative proceedings and conversion to formal adjudicative hearings, WAC 308-08-416 Petition for reconsideration of final orders amendment.

Hearing Location(s): Conference Room 212, 405 Black Lake Boulevard, Olympia, WA 98502, on November 10, 2004, at 10:00-11:00.

Date of Intended Adoption: November 15, 2004.

Submit Written Comments to: Jon Donnellan, P.O. Box 9660, Olympia, WA 98507-9660, e-mail jdonnellan@dol.wa.gov, fax (360) 586-4414, by November 9, 2004.

Assistance for Persons with Disabilities: Contact Jon Donnellan by November 8, 2004, TTY (360) 586-2788 or (360) 664-1528.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These proposed rules apply to director programs within the Business and Professions Division and establish when the director can use brief adjudicative proceedings (BAP) in place of formal adjudicative proceedings, the types of issues they can be used for, and clarify the conditions when a final order will be reconsidered. They also clarify how a party can file an objection to the BAP and request a conversion to a formal adjudicative hearing. BAPs are adjudicative proceedings under the Administrative Procedure Act, chapter 34.05 RCW that are brief in form, that should take less time, and expedite a decision for an applicant or licensee.

Reasons Supporting Proposal: This would result in reduced administrative cost to the department while ensuring independent review and expedience for the applicant or licensee.

Statutory Authority for Adoption: RCW 18.235.030, chapter 34.05 RCW.

Statute Being Implemented: Chapter 18.235 RCW.

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

Name of Proponent: Department of Licensing, governmental.

Name of Agency Personnel Responsible for Drafting and Enforcement: Linda Moran, Attorney General's Office, (360) 753-2619; and Implementation: Andrea Archer, Business and Professions Division, (360) 664-1444.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules reduce costs for licensees.

A cost-benefit analysis is not required under RCW 34.05.328. The rules should reduce costs for the department.

October 4, 2004

Jon Donnellan

Assistant Director

Business and Professions Division

as delegated by Andrea C. Archer

OTS-7597.1


AMENDATORY SECTION(Amending WSR 90-21-086, filed 10/17/90, effective 11/17/90)

WAC 308-08-416   Petition for reconsideration of final orders.   Pursuant to RCW 34.05.470, a petition for reconsideration of a final order must be filed in the Office of the Director, Department of Licensing, Highways-Licenses Building, Olympia, Washington, within ten days of service of the final order. No matter will be reconsidered unless it clearly appears from the petition for reconsideration that there is material clerical error or specific material error of fact or law in the final order. Any response to the petition shall be filed with the office of the director within ten days of the date of service of the petition.

[Statutory Authority: RCW 34.05.220 (1)(a). 90-21-086, 308-08-416, filed 10/17/90, effective 11/17/90.]

OTS-7592.1


NEW SECTION
WAC 308-08-515   Objections to brief adjudicative proceedings and conversion to formal adjudicative hearings.   (1) At least five days before the scheduled brief adjudicative proceeding, any party, including the department, may file a written objection to resolution of a matter by a brief adjudicative proceeding and may request that a matter be converted to a formal adjudicative hearing. Upon receiving a timely written objection, the presiding officer shall determine whether the matter should be converted. Regardless of whether any party files a timely objection, the presiding officer may convert any brief adjudicative proceeding to a formal adjudicative hearing whenever it appears that a brief adjudicative proceeding is insufficient to determine the issues pending before the agency.

(2) In determining whether to convert a proceeding, the presiding officer may consider the following factors:

(a) Whether witness testimony will aid the presiding officer in resolving contested issues of fact;

(b) Whether the legal or factual issues are sufficiently complex to warrant a formal adjudicative proceeding, including whether there are multiple issues of fact or law;

(c) Whether a brief adjudicative proceeding will establish an adequate record for further agency or judicial review;

(d) Whether the legal issues involved in the proceeding present questions of legal significance or are being raised for the first time before the agency;

(e) Whether conversion of the proceeding will cause unnecessary delay in resolving the issues; and

(f) Any other factors that the presiding officer deems relevant in reaching a determination.

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OTS-7593.1


NEW SECTION
WAC 308-08-525   Brief adjudicative proceedings -- When they can be used.   (1) The director adopts RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings conducted at the discretion of the director. Brief adjudicative proceedings can be used in place of formal adjudicative hearings whenever the department issues a statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleging that an applicant or licensee's conduct, act(s), or condition(s) constitute unlicensed practice or unprofessional conduct as that term is defined under chapter 18.235 RCW, the Uniform Regulation of Business and Professions Act. Brief adjudicative proceedings can also be used whenever the statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleges violations of any statute or rule that specifically governs disciplinary actions within a profession for which the applicant seeks a license or from which the licensee holds a license.

(2) Brief adjudicative proceedings may be used to determine the following issues, including, but not limited to:

(a) Whether an applicant has satisfied terms for reinstatement of a license after a period of license restriction, suspension, or revocation;

(b) Whether an applicant is eligible to sit for a professional licensing examination;

(c) Whether an applicant or licensee has satisfied financial security requirements by providing adequate proof of surety bonds or other proof of financial security, as required by law;

(d) Whether a sanction proposed by the department is appropriate based on the stipulated facts;

(e) Whether an applicant meets minimum requirements for an initial or renewal application;

(f) Whether an applicant has failed the professional licensing examination;

(g) Whether a licensee has sufficient continuing education credits when the licensee submits a renewal application;

(h) Whether an applicant or licensee failed to cooperate in an investigation by the department;

(i) Whether an applicant or licensee was convicted of a crime that should disqualify the applicant or licensee from holding the specific license sought or held;

(j) Whether an applicant or licensee has defaulted on educational loans;

(k) Whether an applicant or licensee has violated the terms of a final order issued by the director or director's designee;

(l) Whether a licensee has committed recordkeeping violations;

(m) Whether a licensee has committed trust account violations;

(n) Whether an applicant or licensee has engaged in false, deceptive, or misleading advertising; or

(o) Whether a person has engaged in unlicensed practice.

(3) In addition to the situations enumerated in subsection (2) of this section, the department may conduct brief adjudicative proceedings instead of formal adjudicative hearings whenever the parties have stipulated to the facts and the only issues presented are issues of law, or whenever issues of fact exist but witness testimony is unnecessary to prove or disprove the relevant facts.

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