WSR 07-17-145

PERMANENT RULES

DEPARTMENT OF LICENSING


[ Filed August 21, 2007, 8:37 a.m. , effective September 21, 2007 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: To align the WACs covering brief adjudicative proceedings with WAC 308-08-525 which are authorized by chapter 18.235 RCW, the Uniform Regulation of Business and Professions Act.

Citation of Existing Rules Affected by this Order: Repealing WAC 308-29-100; and amending WAC 308-29-090, 308-29-110, and 308-29-120.

Statutory Authority for Adoption: RCW 19.16.410.

Adopted under notice filed as WSR 07-07-115 on March 20, 2007.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 2, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: August 16, 2007.

Nancy Skewis

Administrator

OTS-9627.1


AMENDATORY SECTION(Amending WSR 01-11-132, filed 5/22/01, effective 6/22/01)

WAC 308-29-090   ((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 of an applicant or licensee, or)) at the discretion of the board ((chair pursuant to RCW 34.05.482, for the categories of matters set out below)). Brief adjudicative proceedings ((may be conducted where the matter is limited solely to one or more of the following issues:

(1) Whether an applicant for licensure meets the minimum criteria for a license to practice as a collection agency, out-of-state collection agency, or collection agency branch office in this state 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 a license holder requesting renewal has submitted all required information and meets minimum criteria for renewal; and

(4) Whether a license holder meets the surety bond requirements to maintain their license and the board proposes to terminate the license)) 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 or licensee has satisfied financial security requirements by providing adequate proof of surety bonds or other proof of financial security, as required by law;

(c) Whether a sanction proposed by the board is appropriate based on the stipulated facts;

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

(e) Whether an applicant or licensee failed to cooperate in an investigation by the board;

(f) 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;

(g) Whether an applicant or licensee has defaulted on education loans;

(h) Whether an applicant or licensee has violated the terms of a final order issued by the board;

(i) Whether a licensee has committed recordkeeping violations;

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

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

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

(3) In addition to the situations enumerated in subsection (1) 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 19.16.410]. 01-11-132, 308-29-090, filed 5/22/01, effective 6/22/01.]


AMENDATORY SECTION(Amending WSR 01-11-132, filed 5/22/01, effective 6/22/01)

WAC 308-29-110   Conduct of brief adjudicative proceedings.   (((1))) Brief adjudicative proceedings shall be conducted by a presiding officer designated by the board. The presiding officer for brief adjudicative proceedings shall have agency expertise in the subject matter but shall not have personally participated in the decision to issue the initiating document.

(((2) The parties or their representatives may present written documentation. The presiding officer for brief adjudicative proceedings shall designate the date by which written documents must be submitted by the parties.

(3) The presiding officer for brief adjudicative proceedings may, in his or her discretion, entertain oral argument from the parties or their representatives.

(4) No witnesses may appear to testify.

(5) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

(6) The presiding officer for brief adjudicative proceedings shall not issue an oral order. Within ten days of the final date for submission of materials or oral argument, if any, the presiding officer for brief adjudicative proceedings shall enter an initial order.))

[Statutory Authority: [RCW 19.16.410]. 01-11-132, 308-29-110, filed 5/22/01, effective 6/22/01.]


AMENDATORY SECTION(Amending WSR 01-11-132, filed 5/22/01, effective 6/22/01)

WAC 308-29-120   Appeal process for brief adjudicative proceedings.   If you do not receive satisfaction from the brief adjudicative proceeding, you may appeal to the board for an administrative review. The board must receive your written appeal within twenty-one days after the brief adjudicative proceeding order is posted in the United States mail. The board considers your appeal and either upholds or overturns the brief adjudicative proceeding decision. The board's decision, also called an order, is mailed to you. This section does not apply to brief adjudicative proceedings conducted by the board through WAC 308-29-090(2).

[Statutory Authority: [RCW 19.16.410]. 01-11-132, 308-29-120, filed 5/22/01, effective 6/22/01.]


NEW SECTION
WAC 308-29-130   Objections to brief adjudicative proceedings and conversion to formal adjudicative hearings.   (1) At least five days before the scheduled brief adjudicative proceeding, any party to the proceeding, 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 board 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 board;

(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 section of the Washington Administrative Code is repealed:
WAC 308-29-100 Preliminary record in brief adjudicative proceedings.

Washington State Code Reviser's Office