BP BHEAD INT S

AN ACT Relating to crane operators licensing; adding a new chapter to Title 18 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. PURPOSE. In the interest of job safety and to protect life, limb, and property, the legislature intends to establish a licensing procedure for all crane and hoist operators engaged in the construction industry so that only those persons who demonstrate the knowledge and skill to operate cranes and hoists in a safe manner will be licensed.

NEW SECTION. Sec. 2. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Crane" means a power driven hoisting engine that lifts and rotates or moves a load horizontally, including a hydraulic crane and a friction crane, derrick, gantry, or bridge crane.

(2) "Department" means the department of labor and industries.

(3) "Director" means the director of labor and industries or the director's designee.

(4) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

NEW SECTION. Sec. 3. LICENSE REQUIRED. (1) A crane operator's license is required for all crane operators who work in private or public construction in the state of Washington. A person may not operate a crane unless the person holds and is in immediate possession of a valid crane operator's license.

(2) A person may not operate a crane or hoisting machine when used in lowering or hoisting personnel on a construction project without a license under this chapter.

(3) An employer may not direct, compel, or permit a person who does not hold and possess a license of the class required under this chapter to operate a crane or hoisting machine.

NEW SECTION. Sec. 4. EXEMPTIONS. Except as provided in section 3(2) of this act, the following hoisting machines do not require a licensed operator: Jib hoists; overhead hoists with no bridge or trolley; wrecker trucks; truck mounted cranes; and work platforms with controls included in the basket.

NEW SECTION. Sec. 5. CLASSES OF LICENSES. There are three classes of licenses as follows:

(1) Class I universal license including all types of cranes, including tower cranes and hydraulic cranes of ninety-ton capacity or more;

(2) Class II hydraulic crane license including all telescopic boom cranes regardless of mounting or means of mobility;

(3) Class III restricted license including apprentices, trainees, maintenance personnel, or oilers working under the direct supervision of an operator holding a current license of the appropriate class.

NEW SECTION. Sec. 6. REQUIREMENTS FOR CLASS I AND II LICENSES. (1) The department shall issue a license of the appropriate class, upon application, to a person meeting the following requirements:

(a) Two thousand hours of crane operation experience, or one thousand five hundred hours of crane operating experience and eighty hours of crane training;

(b) Successful completion of a written examination;

(d) Proof of certification of a physical examination or waiver, as required by 49 C.F.R. 391.41 through 391.49, including an eye examination.

(2) Persons with two thousand hours or more of crane operation experience or one thousand five hundred hours of crane operating experience and eighty hours of crane education may apply for a temporary license under this section within six months of the effective date of this act. The temporary license will be valid for a period of one year, during which time the person must satisfy the requirements of this chapter.

(3) Licenses issued under this section must be renewed biennially on the person's birth date. At the time of renewal, persons must provide proof of certification of a physical examination or waiver, as required by 49 C.F.R. 391.41 through 391.49, and such continuing education requirements as may be adopted by the department.

NEW SECTION. Sec. 7. REQUIREMENTS FOR CLASS III LICENSE. (1) The department shall issue a class III license, upon application, to a person meeting the following requirements:

(a) Successful completion of a written examination; and

(b) Proof of certification of a physical examination, or waiver, as referenced by 49 C.F.R. 391.41 through 391.49.

(2) Persons with less than two thousand hours of crane operation experience or less than one thousand five hundred hours of crane operation experience and eighty hours of crane education may apply for a temporary license under this section within six months of the effective date of this act. The temporary license will be valid for a period of one year, during which time the person must satisfy the requirements of this chapter.

NEW SECTION. Sec. 8. EXAMINATIONS. In consultation with the construction industry, both management and labor representatives, the department shall prepare examinations to be administered to applicants for licenses.

(1) The written examinations must be constructed to determine whether the applicant possesses varied general knowledge of the technical information and practical procedures that are identified with the status of the appropriate class of operator and must test knowledge of safe personnel hoisting procedures.

(2) The practical examinations must be constructed to determine whether the applicant possesses sufficient skills and training to operate machinery in the applicable class.

(3) The department may enter into a contract with an approved testing agency to develop, administer, and score operator licensure examinations. If the department enters into a contract under this subsection, the department must approve the examination and the testing and scoring procedures before the examination may be administered to applicants.

NEW SECTION. Sec. 9. FEES. The department shall charge fees for issuance, renewal, and reinstatement of all licenses and examinations.

The fees must cover the full cost of issuing the licenses, devising and administering the examinations, and administering and enforcing this chapter.

NEW SECTION. Sec. 10. CRANE OPERATORS ADMINISTRATION ACCOUNT. The crane operators administration account is created in the state treasury. All receipts from the administration or enforcement of this chapter shall be deposited into the account. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for administration, investigation, and enforcement proceedings under this chapter.

NEW SECTION. Sec. 11. AUTHORITY OF DIRECTOR. The director may:

(1) Adopt, amend, and rescind such rules, in accordance with chapters 34.05 and 49.17 RCW, as are deemed necessary to carry out this chapter;

(2) Investigate all violations as defined in this chapter and hold hearings as provided in this chapter;

(3) Issue subpoenas and administer oaths in connection with an investigation, hearing, or proceeding held under this chapter;

(4) Take or cause depositions to be taken and use other discovery procedures as needed in an investigation, hearing, or proceeding held under this chapter;

(5) Compel attendance of witnesses at hearings;

(6) In the course of investigating a complaint, conduct practice reviews;

(7) Take emergency action ordering summary suspension of a license, or restriction or limitation of the licensee's practice pending proceedings by the disciplining authority;

(8) Use the office of administrative hearings as authorized in chapter 34.12 RCW to conduct hearings. However, the director or the director's designee shall make the final decision in the hearing;

(9) Enter into contracts for professional services determined to be necessary for adequate enforcement of this chapter;

(10) Deny, suspend, revoke, or reinstate a license or impose sanctions against a license applicant or license holder for failure of the holder to comply with any requirement of this chapter;

(11) Employ such investigative, administrative, and clerical staff as are necessary for the enforcement of this chapter; and

(12) Convene settlement conferences for the purpose of expediting the compliance process.

NEW SECTION. Sec. 12. RECIPROCITY. The director may, upon payment by the applicant of the appropriate fees, grant a license without examination to an applicant who is a registered crane operator in another state whose requirements for registration are substantially equivalent to the requirements of this state and that extends the same privileges of reciprocity to crane operators registered in this state.

NEW SECTION. Sec. 13. VIOLATIONS‑-RESTRAINING ORDERS‑-INJUNCTIONS. (1) If, upon inspection or investigation, the director or authorized compliance inspector reasonably believes that a person has failed to comply with this chapter or the rules adopted under this chapter, the director shall issue an order immediately restraining further construction work at the job site by the person. The order must describe the specific violation that necessitated issuance of the restraining order. The person to whom the restraining order is directed may request a hearing before an administrative law judge under chapter 34.05 RCW. A request for hearing must not stay the effect of the restraining order.

(2) In addition to and after having invoked the powers of restraint vested in the director in subsection (1) of this section, the director, through the attorney general, may petition the superior court of the state of Washington to enjoin an activity in violation of this chapter. A prima facie case for issuance of an injunction must be established by affidavits and supporting documentation demonstrating that a restraining order was served upon the contractor and that the contractor continued to work after service of the order. Upon the filing of the petition, the superior court may grant an injunction or other appropriate relief, pending the outcome of enforcement proceedings under this chapter, or enforce restraining orders issued by the director. If the person fails to comply with a court order, the director shall request the attorney general to petition the superior court for an order holding the person in contempt of court and for any other appropriate relief.

NEW SECTION. Sec. 14. VIOLATIONS‑-INVESTIGATIONS‑-EVIDENCE OF COMPLIANCE. An authorized representative of the department may investigate an alleged or apparent violation of this chapter. An authorized representative of the department upon presentation of credentials may inspect a site at which a person is operating a crane for the purpose of determining whether that person has a license issued by the department in accordance with this chapter. Upon request of the authorized representative of the department, a person operating a crane shall produce evidence that the person has a license issued by the department in accordance with this chapter.

NEW SECTION. Sec. 15. NOTICE OF INFRACTION‑-SERVICE. The department may issue a notice of infraction if the department reasonably believes that a person required to have a license under this chapter is unlicensed. The department's compliance inspectors shall personally serve on the person named in the notice a notice of infraction issued under this section or service may be made by certified mail directed to the person named in the notice of infraction. If the contractor named in the notice of infraction is a firm or corporation, the notice may be personally served on any employee of the firm or corporation. If a notice of infraction is personally served upon an employee of a firm or corporation, the department shall within four days of service send a copy of the notice by certified mail to the contractor if the department is able to obtain the contractor's address.

NEW SECTION. Sec. 16. NOTICE OF INFRACTION‑-FORM‑-CONTENTS. The form of the notice of infraction issued under this chapter must include the following:

(1) A statement that the notice represents a determination that the infraction has been committed by the person named in the notice and that the determination is final unless contested as provided in this chapter;

(2) A statement of the specific violation that necessitated issuance of the infraction;

(3) A statement of penalty involved if the infraction is established;

(4) A statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these options;

(5) A statement that at a hearing to contest the notice of infraction the state has the burden of proving, by a preponderance of evidence, that the infraction was committed, and a statement that the person may subpoena witnesses, including the compliance inspector of the department who issued and served the notice of infraction;

(6) A statement, that the person who has been served with the notice of infraction must sign, that the person promises to respond to the notice of infraction in one of the ways provided in this chapter;

(7) A statement that refusal to sign the infraction as directed in subsection (6) of this section is a misdemeanor and may be punished by a fine or imprisonment in jail;

(8) A statement that a person's failure to respond to a notice of infraction as promised is a misdemeanor and may be punished by a fine or imprisonment in jail; and

(9) A statement that an operator's failure to respond to a notice of infraction as promised may result in suspension of the operator's license.

NEW SECTION. Sec. 17. NOTICE OF INFRACTION‑-DETERMINATION INFRACTION COMMITTED. Unless contested in accordance with this chapter, the notice of infraction represents a determination that the person to whom the notice was issued committed the infraction.

NEW SECTION. Sec. 18. NOTICE OF INFRACTION‑-CONTESTING DETERMINATION‑-HEARING. An administrative law judge of the office of administrative hearings shall hear and determine a violation designated as an infraction under this chapter. If a party desires to contest the notice of infraction, the party shall file a notice with the department within twenty days of issuance of the infraction. The administrative law judge shall conduct hearings in these cases at locations in the county where the infraction occurred.

NEW SECTION. Sec. 19. NOTICE OF INFRACTION‑-RESPONSE‑-FAILURE TO RESPOND, APPEAR, OR PAY MONETARY PENALTIES. (1) A person who is issued a notice of infraction shall respond within twenty days of the date of issuance of the notice of infraction.

(2) If the person named in the notice of infraction does not elect to contest the notice of infraction, then the person shall pay to the department, by check or money order, the amount of the penalty prescribed for the infraction. When a response that does not contest the notice of infraction is received by the department with the appropriate penalty, the department shall make the appropriate entry in its records.

(3) If the person named in the notice of infraction elected to contest the notice of infraction, the person shall respond by filing an answer of protest with the department specifying the grounds of protest.

(4) If a person issued a notice of infraction fails to respond within twenty days, the citation becomes a final order. If the person fails to respond within twenty days, the person is guilty of a misdemeanor and must be prosecuted in the county in which the infraction occurred. The department shall suspend an operator's license if the operator fails to respond within twenty days.

(5) After final order has been issued by an administrative law judge that an infraction has been committed, a person who fails to pay within thirty days a monetary penalty that is not waived, reduced, or suspended under this chapter and who fails to file an appeal under this chapter is guilty of a misdemeanor and must be prosecuted in the county in which the infraction occurred. The department shall suspend an operator's license if the operator fails to pay within thirty days a monetary penalty that is not waived, reduced, or suspended, and who fails to file an appeal under this chapter.

(6) After final determination by an administrative law judge that an infraction has been committed, the department shall suspend the license of an operator who fails to pay within thirty days a monetary penalty that is not waived, reduced, or suspended under this chapter and who fails to file an appeal under this chapter. The department may reinstate the operator's license upon certification that the operator has paid the monetary penalty. The department may not renew the license of an operator whose license was suspended under this section, unless the operator provides certification that the operator has paid the monetary penalty.

(7) A person who fails to pay a monetary penalty within thirty days after exhausting appellate remedies under this chapter is guilty of a misdemeanor and must be prosecuted in the county in which the infraction occurred. The department shall suspend the license of an operator who fails to pay a monetary penalty within thirty days after exhausting appellate remedies under this chapter.

NEW SECTION. Sec. 20. NOTICE OF INFRACTION‑-FAILURE TO SIGN OR RESPOND‑-MISDEMEANOR. It is a misdemeanor for a person who has been personally served with a notice of infraction to:

(1) Refuse to sign a written promise to respond to the notice; or

(2) Willfully violate the written promise to respond to a notice of infraction as provided in this chapter, regardless of the ultimate disposition of the infraction.

NEW SECTION. Sec. 21. REPRESENTATION BY ATTORNEY‑-DEPARTMENT REPRESENTED BY ATTORNEY GENERAL. A person subject to proceedings under this chapter may appear or be represented by counsel. The attorney general shall represent the department in administrative proceedings and subsequent appeals under this chapter.

NEW SECTION. Sec. 22. INFRACTION‑-ADMINISTRATIVE HEARING‑-PROCEDURE‑-APPEAL. (1) The administrative law judge shall conduct notice of infraction cases under chapter 34.05 RCW.

(2) The burden of proof is on the department to establish the commission of the infraction by a preponderance of the evidence. The notice of infraction must be dismissed if the defendant establishes that, at the time the notice was issued, the defendant was licensed by the department.

(3) After consideration of the evidence and argument, the administrative law judge shall determine whether the infraction was committed. If it is established that the infraction was committed, an order dismissing the notice must be entered in the record of the proceedings. If it is not established that the infraction was committed, the administrative law judge shall issue findings of fact and conclusions of law in its decision and order determining whether the infraction was committed.

(4) An appeal from the administrative law judge's determination or order must be to the superior court. The decision of the superior court is subject only to discretionary review under rule 2.3 of the rules of appellate procedure.

NEW SECTION. Sec. 23. INFRACTION‑-DISMISSAL. The administrative law judge shall dismiss the notice of infraction upon written notification from the department that the person named in the notice of infraction had complied with this chapter at the time the notice of infraction was issued.

NEW SECTION. Sec. 24. INFRACTION‑-MONETARY PENALTY. (1) A person found to have committed an infraction under this chapter must be assessed a monetary penalty of at least two hundred dollars and at most five thousand dollars.

(2) The administrative law judge may waive, reduce, or suspend the monetary penalty imposed for the infraction only upon a showing of good cause that the penalty would be unduly burdensome.

(3) Monetary penalties collected under this chapter must be deposited in the crane operators administration account to help defray the costs of conducting the administrative hearing.

NEW SECTION. Sec. 25. SEVERABILITY. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 26. CAPTIONS. Captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 27. LEGISLATIVE DIRECTIVE. Sections 1 through 24 of this act shall constitute a new chapter in Title 18 RCW.