PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 05-08-001.
Title of Rule and Other Identifying Information: Chapter 308-08 WAC, Brief adjudicative proceedings (BAPs).
Hearing Location(s): Dealer and Manufacturer Services, 2424 Bristol Court S.W., 3rd Floor Conference Room, Olympia, WA 98502, on July 26, 2005, at 10:30 a.m.
Date of Intended Adoption: August 2, 2005.
Submit Written Comments to: Kim Johnson, P.O. Box 9039, Olympia, WA 98507, e-mail kijohnson@dol.wa.gov, fax (360) 586-6703, by July 20, 2005.
Assistance for Persons with Disabilities: Contact Linda Whipple by July 20, 2005, TTY (360) 664-0116 or (360) 664-6455.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department may use brief adjudicative proceedings (BAPs) where their use will not violate any provisions of law, and where protection of the public interest does not require the department to give notice and an opportunity to participate to persons other than the parties.
Statutory Authority for Adoption: RCW 34.05.220.
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: Cal Sanders, 2424 Bristol Court, Olympia, WA 98502, (360) 664-6459; Implementation: Chuck Coach, 2424 Bristol Court, Olympia, WA 98502, (360) 664-6453; and Enforcement: Daniel Devoe, 2424 Bristol Court, Olympia, WA 98502, (360) 664-6451.
No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no small business impact.
A cost-benefit analysis is not required under RCW 34.05.328. There is no impact for the Department of Licensing or small business.
Daniel Devoe
Administrator
OTS-8167.1
NEW SECTION
WAC 308-08-535
Brief adjudicative proceedings conversion
to formal adjudicative proceedings -- Dealer and manufacturer
services.
(1) At least five days before the scheduled
issuance of either an initial or a final order, any party,
including the department, may file a written objection to
resolution of a matter by a brief adjudicative proceeding and
may request that it be converted to a formal adjudicative
proceeding. Upon receiving a timely written objection, the
presiding officer or reviewing officer, shall determine
whether the matter should be converted. Regardless of whether
any party files a timely objection, the presiding or reviewing
officer may convert any brief adjudicative proceeding to a
formal adjudicative proceeding 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 or reviewing 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 or reviewing officer deems relevant in reaching a determination.
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The department may use BAPs including, but not limited to, the following matters:
(1) Whether a surety bond (or insurance) has been exhausted or cancellation pursuant to RCW 46.70.070, 46.80.070, 46.55.030 or 88.02.060, or the insurance required in RCW 46.55.030;
(2) Whether the licensee has failed to maintain an established place of business pursuant to RCW 46.70.023, WAC 308-66-140, RCW 46.80.130, WAC 308-63-070, RCW 46.55.060, WAC 308-61-108, RCW 88.02.078, 46.79.030, or WAC 308-65-030;
(3) Whether a person has failed to comply with an order or to pay a previously assessed fine, pursuant to RCW 46.70.101, 46.55.200, 46.80.110, or 88.02.188;
(4) Whether a licensee has been selling, exchanging, offering, brokering, auctioning, soliciting, advertising new or current model vehicles without a service agreement with a manufacturer, pursuant to RCW 46.70.101 or 46.70.041;
(5) Whether a licensee had failed to promptly transfer title, pursuant to RCW 46.70.122, WAC 308-66-190, 308-56A-420, or 308-90-150;
(6) Whether a licensee had failed to notify the department of a fact in which the licensee is required to timely notify the department (e.g., WAC 308-66-210 or 308-61-108);
(7) Whether a licensee has failed to have a current certificate or registration with the department of revenue pursuant to RCW 46.70.101;
(8) Whether the applicant whose license was suspended for cause and the terms of the suspension have not been fulfilled pursuant to RCW 46.70.101;
(9) Whether the applicant having been adjudged guilty of a crime which directly relates to the business of a vehicle dealer and the time elapsed since the adjudication is less than ten years, or suffering any judgment within the preceding five years in any civil action involving fraud, misrepresentation, or conversion pursuant to RCW 46.70.101 or 46.80.110 in the case of vehicle wreckers, or RCW 46.79.070 in the case of hulk haulers or scrap processors;
(10) Whether the applicant knowingly or with reason to know made a false statement of a material fact in his or her application for license or any data attached thereto pursuant to RCW 46.70.101;
(11) Whether an applicant or licensee has sufficient education credits as required by RCW 46.70.079;
(12) Whether a person is engaging in or about to engage in the business of a licensee as referenced in RCW 46.70.115, 46.80.180, or 46.55.210;
(13) Whether an applicant or licensee is solvent within the meaning of RCW 46.70.101;
(14) Whether a licensee has failed to maintain records as required by RCW 46.70.120, WAC 308-66-180, RCW 46.55.150 or 46.80.080.
The sole issue to be heard at the adjudicative proceedings shall be whether the applicant is in compliance with the requirements set forth in subsections (1) through (14) of this section.
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