WSR 05-16-003

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed July 21, 2005, 10:00 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-04-106.

Title of Rule and Other Identifying Information: Funeral directors and embalmers, amendments to WAC 308-48-810 Application of brief adjudicative proceedings; new section [WAC 308-48-815] Objections to brief adjudicative proceedings and conversion to formal adjudicative hearings; and repealing WAC 308-48-820 and 308-48-830.

Hearing Location(s): Holiday Inn-Select, 1 South Grady Way, Renton, WA 98055, on October 13, 2005, at 10:00 a.m.

Date of Intended Adoption: November 15, 2005.

Submit Written Comments to: Jeanne Todd, P.O. Box 9012, Olympia, WA 98507, e-mail Funerals@dol.wa.gov, fax (360) 586-4414, by October 1, 2005.

Assistance for Persons with Disabilities: Contact Jeanne Todd by October 1, 2005, TTY (360) 664-8885 or (360) 664-1537.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules:

Statutory Authority for Adoption: RCW 18.139.175 and chapter 34.05 RCW.

Statute Being Implemented: Chapter 18.39 RCW.

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

Name of Proponent: The Board of Funeral Directors and Embalmers, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Dennis McPhee, 405 Black Lake Boulevard, Olympia, WA 98502, (360) 664-1551; and Enforcement: Board of Funeral Directors and Embalmers, 405 Black Lake Boulevard, Olympia, WA 98502.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There are no new costs associated with these rules.

A cost-benefit analysis is not required under RCW 34.05.328. The Department of Licensing is not one of the named agencies in RCW 34.05.328.

July 21, 2005

Joe Vincent Jr.

Administrator

OTS-8045.1


AMENDATORY SECTION(Amending WSR 97-21-063, filed 10/14/97, effective 11/14/97)

WAC 308-48-810   ((Application of)) Brief adjudicative proceedings -- When they can be used.   (1) The board adopts RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings conducted ((by request, and/or)) at the discretion of the board ((chair pursuant to RCW 34.05.482, for the categories of matters set forth below)). Brief adjudicative proceedings ((will be limited to a determination of one or more of the following issues:

(1) Whether an applicant for a license meets the minimum criteria for a license to operate a funeral establishment, branch funeral establishment, or a crematory; or to receive a prearrangement funeral service contract license; or for a license to practice as a funeral director, embalmer, apprentice funeral director, or apprentice embalmer; and the board proposes to deny the application;

(2) Whether a person is in compliance with the terms and conditions of a final order or agreement previously issued by the board;

(3) Whether an education course or curriculum meets the criteria for approval when approval by the board is required or authorized by statute or rule;

(4) Whether a license holder requesting renewal has submitted all required information and whether a license holder meets minimum criteria for renewal; and

(5) Whether a license holder has been certified by a lending agency and reported to the board for nonpayment or default on a federally or state-guaranteed educational loan or service-conditional scholarship)) can be used in place of formal adjudicative hearings whenever the board 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 board 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;

(o) Whether a person has engaged in unlicensed practice; or

(p) Whether an education course or curriculum meets the criteria for approval when approval by the board is required or authorized by statute or rule.

(3) In addition to the situations enumerated in subsection (2) of this section, the board 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.

[Statutory Authority: RCW 18.39.175(4). 97-21-063, 308-48-810, filed 10/14/97, effective 11/14/97.]


NEW SECTION
WAC 308-48-815   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 board, 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 board.

(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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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 308-48-820 Preliminary record in brief adjudicative proceedings.
WAC 308-48-830 Conduct of brief adjudicative proceedings.

Washington State Code Reviser's Office