WSR 08-19-098



[ Filed September 16, 2008, 4:51 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-15-177.

Title of Rule and Other Identifying Information: WAC 230-17-010 Requesting and scheduling a hearing.

Hearing Location(s): DoubleTree Hotel Seattle Airport, 18740 International Boulevard, Seattle, WA 98188, on November 14, 2008, at 9:30 a.m.

Date of Intended Adoption: November 14, 2008.

Submit Written Comments to: Susan Arland, P.O. Box 42400, Olympia, WA 98504-2400, e-mail, fax (360) 486-3625, by November 1, 2008.

Assistance for Persons with Disabilities: Contact Gail Grate, Executive Assistant, by November 1, 2008, TTY (360) 486-3637 or (360) 486-3453.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Staff proposes removing subsections (4)(a) and (b) from this rule to make it consistent with the Administrative Procedure Act (APA).

This rule outlines the notice of hearing timeline and the requirements for any extensions. In some circumstances, the current version of the rule provides a shorter timeline than what the APA requires. RCW 34.05.419, APA, requires, in part, for the agency to commence an adjudicative proceeding after receipt of the application for an adjudicative proceeding. During the rules simplification project, we rewrote this rule to clarify that we must issue a notice of hearing within ninety days of the request/application for a hearing or get an extension. The extension must be in writing and made a part of the permanent record of the proceeding.

Case law has interpreted the ninety-day requirement as satisfied by scheduling a prehearing conference or a hearing. The current version of the rule adds more stringent requirements beyond the APA because it does not recognize the prehearing conferences satisfy the APA requirement. Also, the communications and legal division typically receive a waiver of the ninety days from licensees/applicants, if settlement negotiations are ongoing or the licensee/applicant is working with staff to get into compliance with our rules.

Statutory Authority for Adoption: RCW 9.46.070.

Statute Being Implemented: Not applicable.

Name of Proponent: Washington state gambling commission, governmental.

Name of Agency Personnel Responsible for Drafting: Susan Arland, Rules Coordinator, Lacey, (360) 486-3466; Implementation: Rick Day, Director, Lacey, (360) 486-3446; and Enforcement: Mark Harris, Assistant Director, Lacey, (360) 486-3579.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement has not been prepared pursuant to RCW 19.85.025 because the change would not impose additional costs on businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state gambling commission is not an agency that is statutorily required to prepare a cost-benefit analysis under RCW 34.05.328.

August 20, 2008

Susan Arland

Rules Coordinator


AMENDATORY SECTION(Amending Order 615, filed 10/24/07, effective 1/1/08)

WAC 230-17-010   Requesting and scheduling a hearing.   (1) Applicants, licensees, or permittees may request a hearing using the form we provide.

(2) We must receive the request from the applicant, licensee, or permittee at our administrative office within:

(a) Twenty-three days after we mail by regular mail the notice of administrative charges; or

(b) Twenty days after they receive by certified mail the notice of administrative charges; or

(c) Twenty days after we personally serve the notice of administrative charges.

(3) If applicants, licensees, or permittees do not file requests in the time required, then they waive their right to a hearing. They are in default, as defined in RCW 34.05.440, and the commissioners may take action against them up to the maximum penalty stated in the notice of administrative charges.

(4) The director, director's designee, or the presiding officer of the hearing must issue a notice of hearing which meets the requirements of RCW 34.05.434(2).

(((a) The notice must be issued within ninety days from the date on which we receive the request from the licensee, applicant, or permittee, unless all parties agree to or the presiding officer orders an extension beyond the ninety days.

(b) Any change of the ninety-day requirement must be:

(i) In writing; and

(ii) Made a part of the permanent record of the proceeding.))

[Statutory Authority: RCW 9.46.070. 07-21-156 (Order 615), 230-17-010, filed 10/24/07, effective 1/1/08.]

Washington State Code Reviser's Office