S-0849.1 _______________________________________________
SENATE BILL 5410
_______________________________________________
State of Washington 52nd Legislature 1991 Regular Session
By Senators Hansen, Newhouse, Barr and Bailey.
Read first time January 30, 1991. Referred to Committee on Agriculture & Water Resources.
AN ACT Relating to civil infractions; amending RCW 7.80.100, 15.58.260, 49.17.180, and 51.48.090; reenacting and amending RCW 17.21.050; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 7.80.100 and 1987 c 456 s 18 are each amended to read as follows:
(1) A hearing held for the purpose of contesting the determination that a civil infraction has been committed shall be without a jury and shall be recorded in the manner provided for in courts of limited jurisdiction.
(2) The court may consider the notice of civil infraction and any other written report made under oath submitted by the enforcement officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing. The person named in the notice may request the court for issuance of subpoena of witnesses, including the enforcement officer who issued the notice, and has the right to present evidence and examine witnesses present in court.
(3) The burden of proof is upon the state to establish the commission of the civil infraction by a preponderance of the evidence. However, for purposes of enforcing the provisions of chapters 15.58, 17.21, 49.17, 49.30, and 51.48 RCW, the burden of proof is upon the state to establish the commission of the civil infraction by clear and convincing evidence.
(4) After consideration of the evidence and argument, the court shall determine whether the civil infraction was committed. Where it has not been established that the civil infraction was committed, an order dismissing the notice shall be entered in the court's records. Where it has been established that the civil infraction was committed, an appropriate order shall be entered in the court's records.
(5) An appeal from the court's determination or order shall be to the superior court in the manner provided by the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. The decision of the superior court is subject only to discretionary review pursuant to the Rules of Appellate Procedure.
Sec. 2. RCW 15.58.260 and 1989 c 380 s 23 are each amended to read as follows:
The
director is authorized to impose a civil penalty and/or deny, suspend, or
revoke any license, registration or permit provided for in this chapter subject
to ((a hearing and in conformance with)) the provisions of chapter ((34.05))
7.80 RCW (((Administrative Procedure Act))) in any case in which
the director finds there has been a failure or refusal to comply with the
provisions of this chapter or rules adopted under this chapter.
Sec. 3. RCW 17.21.050 and 1989 c 380 s 36 and 1989 c 175 s 58 are each reenacted and amended to read as follows:
All
hearings for the imposition of a civil penalty and/or the suspension, denial,
or revocation of a license issued under the provisions of this chapter shall be
subject to the provisions of chapter ((34.05)) 7.80 RCW ((concerning
adjudicative proceedings)).
Sec. 4. RCW 49.17.180 and 1986 c 20 s 2 are each amended to read as follows:
(1)
Any employer who willfully or repeatedly violates the requirements of
RCW 49.17.060, of any safety or health standard promulgated under the authority
of this chapter, of any existing rule ((or regulation)) governing the
conditions of employment ((promulgated)) adopted by the
department, or of any order issued granting a variance under RCW 49.17.080 or
49.17.090 may be assessed a civil penalty not to exceed fifty thousand dollars
for each violation.
(2)
Any employer who has received a citation for a serious violation of the
requirements of RCW 49.17.060, of any safety or health standard promulgated
under the authority of this chapter, of any existing rule ((or regulation))
governing the conditions of employment ((promulgated)) adopted by
the department, or of any order issued granting a variance under RCW 49.17.080
or 49.17.090 as determined in accordance with subsection (6) of this section,
shall be assessed a civil penalty not to exceed five thousand dollars for each
such violation.
(3)
Any employer who has received a citation for a violation of the requirements of
RCW 49.17.060, of any safety or health standard promulgated under this chapter,
of any existing rule ((or regulation)) governing the conditions of
employment ((promulgated)) adopted by the department, or of any
order issued granting a variance under RCW 49.17.080 or 49.17.090, where such
violation is specifically determined not to be of a serious nature as provided
in subsection (6) of this section, may be assessed a civil penalty not to
exceed three thousand dollars for each such violation, unless such violation is
determined to be de minimis.
(4) Any employer who fails to correct a violation for which a citation has been issued under RCW 49.17.120 or 49.17.130 within the period permitted for its correction, which period shall not begin to run until the date of the final order of the board of industrial insurance appeals in the case of any review proceedings under this chapter initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty of not more than five thousand dollars for each day during which such failure or violation continues.
(5)
Any employer who violates any of the posting requirements of this chapter, or
any of the posting requirements of rules ((promulgated)) adopted
by the department pursuant to this chapter related to employee or employee
representative's rights to notice, including but not limited to those employee
rights to notice set forth in RCW 49.17.080, 49.17.090, 49.17.120, 49.17.130,
49.17.220(1) and 49.17.240(2), shall be assessed a penalty not to exceed three
thousand dollars for each such violation. Any employer who violates any of the
posting requirements for the posting of informational, educational, or training
materials under the authority of RCW 49.17.050(7), may be assessed a penalty
not to exceed one thousand five hundred dollars for each such violation.
(6) For the purposes of this section, a serious violation shall be deemed to exist in a work place if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such work place, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(7) The director, or his or her authorized representatives, shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the number of affected employees of the employer being charged, the gravity of the violation, the size of the employer's business, the good faith of the employer, and the history of previous violations.
(8)
Civil penalties imposed under this chapter shall be paid to the director for
deposit in the supplemental pension fund established by RCW 51.44.033. Civil
penalties may be recovered in a civil action in the name of the department
brought in the superior court of the county where the violation is alleged to
have occurred, or the department may utilize the procedures for collection of
civil penalties as set forth in chapter 7.80 RCW ((51.48.120 through
51.48.150)). For purposes of this chapter, the burden is upon the state
to establish the commission of the civil infraction by clear and convincing
evidence.
Sec. 5. RCW 51.48.090 and 1961 c 23 s 51.48.090 are each amended to read as follows:
Civil penalties to the state under this title shall be collected by civil action, as set forth in chapter 7.80 RCW, in the name of the state and paid into the accident fund unless a different fund is designated.
NEW SECTION. Sec. 6. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.