Effective Date of Rule: Thirty-one days after filing.
Purpose: When this rule was adopted in February 2009, an inadvertent error in subsection (1)(l) listed the "commissioners" rather than the "presiding officer" as the person that may consider the factors listed in the rule when determining administrative penalties. This housekeeping amendment changes "commissioners" to "presiding officer."
Citation of Existing Rules Affected by this Order: Amending WAC 230-17-137.
Statutory Authority for Adoption: RCW 9.46.070.
Adopted under notice filed as WSR 09-11-089 filed on May 18, 2009, and published June 3, 2009.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: August 14, 2009.
AMENDATORY SECTION(Amending Order 641, filed 2/17/09, effective 3/20/09)
WAC 230-17-137 Guidelines for imposing penalties in disciplinary actions. (1) Without in any manner limiting the authority granted to the commission under chapter 9.46 RCW or other applicable law to impose the level and type of discipline it may deem appropriate, at the request of any party, the presiding officer may consider the following factors, along with such others as he or she deems relevant, in determining the administrative penalty to be assessed for the violation of a statute or rule:
(a) The risk posed to the public health, safety, or welfare by the violation;
(b) Whether there are special policy implications relating to the violation, for example, those regarding underage gambling;
(c) Whether, and how, the violations impacted players, for example, failure to pay a player, and player-supported jackpot violations;
(d) Whether the applicant, licensee, or permittee:
(i) Knew, or reasonably should have known, the action complained of was a violation of any law, regulation, or condition of their license;
(ii) Previously received a verbal warning, written warning, notice of infraction, notice of violation and settlement (NOVAS), or administrative charges from the commission for similar violations;
(iii) Made, or attempted to make, a financial gain from the violation;
(iv) Had an existing compliance program related to the violation; or
(v) Has subsequently initiated remedial measures to prevent similar violations from reoccurring;
(e) Whether the violations were intentional, willful, or grossly negligent;
(f) Whether requiring the applicant, licensee or permittee to implement a written self-enforcement and compliance program would assist in ensuring future compliance with relevant laws, regulations, and license conditions;
(g) If the violation was caused by an officer or employee of the applicant, licensee, or permittee:
(i) Whether the individual who caused the violation acted within the scope of authority granted to him or her by the applicant, licensee or permittee; or
(ii) Whether the individual violated company policies, procedures, or other standards;
(h) The adequacy of any relevant training programs the applicant, licensee or permittee previously offered or made available to its employees;
(i) Whether and the extent to which the applicant, licensee or permittee cooperated with the commission during the investigation of the violation;
(j) The penalties imposed on other applicants, licensees or permittees for similar violations;
(k) Whether the applicant, licensee, or permittee reasonably relied upon professional advice from an accountant or other recognized professional, which was relevant to the conduct or action resulting in the violation; or
(l) Any other aggravating or mitigating circumstances the
commissioners)) presiding officer deems relevant.
(2) A party intending to rely on any aggravating or mitigating factors must raise them at the initial hearing before the presiding officer in order to preserve them for any subsequent hearings before a reviewing officer.
(3) In the spring of 2011, staff will report to the commission on the impacts of this rule, if any.
[Statutory Authority: RCW 9.46.070. 09-05-084 (Order 641), § 230-17-137, filed 2/17/09, effective 3/20/09.]