Purpose: To amend WAC 260-34-090 A positive test because the penalties listed in this section conflict with the penalties for the same violations in WAC 260-84-060 Penalty matrixes.

     Citation of Existing Rules Affected by this Order: Amending WAC 260-34-090 A positive test.

     Statutory Authority for Adoption: RCW 67.16.020 and 67.16.040.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: The penalties for (1) being under the influence of alcohol and/or drugs; (2) for the possession or use of marijuana; and (3) for the possession or use of any illegal drug must be consistent for them to be enforceable. Without the ability to enforce these the health and safety of the participants may be compromised.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: July 14, 2005.

R. M. Leichner

Executive Secretary

OTS-8161.1

AMENDATORY SECTION(Amending WSR 05-07-066, filed 3/11/05, effective 4/11/05)

WAC 260-34-090   A positive test.   On receiving written notice of a violation of WAC 260-34-045, the presiding steward shall initiate the following procedure:

     (1) Written notice shall be given to the licensee or applicant, setting a conference before the board of stewards in accordance with WAC 260-24-510.

     (2) At the conference, the licensee or applicant shall be provided an opportunity to respond to the evidence of the violation.

     (3) If the licensee or applicant is found to be in violation of WAC 260-34-045, the board of stewards shall suspend the licensee or applicant as ((follows:

     (a) For testing positive for the illegal use of alcohol, for being under the influence of alcohol and/or drugs, or for the possession of marijuana (nonfelony):

     (i) Three days for the first violation within five years;

     (ii) Thirty days for the second violation within five years;

     (iii) One year for the third violation within five years; and

     (iv) Revocation and referral to the commission for the fourth violation within five years.

     (b) For the possession or use of any illegal drug or controlled substance, other than marijuana:

     (i) One year suspension for the first violation within five years;

     (ii) Revocation and referral to the commission)) provided in WAC 260-84-060.

     (4) The board of stewards may stay ((one of the)) a suspension((s in subsection (3)(a) of this section)) for testing positive for the illegal use of alcohol, for being under the influence of alcohol and/or drugs or for the possession of marijuana (nonfelony) if the licensee or applicant shows proof of participation in a drug rehabilitation or alcohol treatment program approved or certified by the department of social and health services. Individuals will only be allowed to participate in this program once in a five-year period. If during this time a licensee or applicant violates the provisions of this chapter, the violation for which the stay of suspension was entered will be considered as a prior violation for penalty purposes. The licensee or applicant must also agree to the following conditions:

     (a) Random drug or alcohol testing at the discretion of the board of stewards or commission security investigators for a period of twelve calendar months.

     (b) Have no further incidents of violating this chapter within the next twelve calendar months.

     (5) Upon successful completion of a drug or alcohol rehabilitation or treatment program, a licensee or applicant can request the board of stewards lift the suspension.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-066, § 260-34-090, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 67.16.020. 03-05-071, § 260-34-090, filed 2/18/03, effective 3/21/03. Statutory Authority: RCW 67.16.040. 00-07-038, § 260-34-090, filed 3/6/00, effective 4/6/00. Statutory Authority: RCW 67.16.020 and 67.16.040. 89-13-006 (Order 89-02), § 260-34-090, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-090, filed 4/15/88.]

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