AN ACT Relating to sheet metal work; adding a new chapter to Title 18 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Advisory board" means the state advisory board of sheet metal workers.

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

(3) "Director" means the director of the department or the director's authorized representative.

(4) "Journeyman sheet metal worker" means a person who has been issued a certificate of competency by the department of labor and industries as provided in this chapter.

(5) "Specialty sheet metal worker" means anyone who has been issued a specialty certificate of competency under this chapter limited to installation, maintenance, and repair of the duct work and apparatus of single-family dwellings, duplexes, and apartment buildings that do not exceed three stories.

(6) "Sheet metal work" means that craft involved in but not limited to the manufacture, fabrication, assembling, handling, erection, installation, dismantling, adjustment, alteration, repairing, and servicing of all ferrous or nonferrous metal work and all other materials used in lieu thereof and of all air-veyor systems and air handling systems.

NEW SECTION. Sec. 2. (1) No person may engage in the trade of sheet metal work without having a journeyman certificate, specialty certificate, or a temporary permit, or without being supervised by a person who has a journeyman certificate, specialty certificate, or temporary permit.

(2) No person may employ an individual in the trade of sheet metal work who does not have a journeyman certificate, specialty certificate, or temporary permit issued under this chapter.

NEW SECTION. Sec. 3. Each day in which a person engages in the trade of sheet metal work in violation of this chapter is a separate infraction. Each work site at which a person engages in the trade of sheet metal work in violation of this chapter is a separate infraction.

NEW SECTION. Sec. 4. (1) Any person desiring to be issued a certificate of competency as provided in this chapter shall deliver evidence in a form prescribed by the department affirming that said person has had sufficient experience in as well as demonstrated general competency in the trade of sheet metal work or specialty sheet metal work so as to qualify that person to make an application for a certificate of competency as a journeyman sheet metal worker or specialty sheet metal worker.

(2) Each applicant for a certificate of competency shall submit an application for the certificate on the form and in the manner the director prescribes.

NEW SECTION. Sec. 5. (1) Upon receipt of the application and evidence required under this chapter, the director shall review the same and make a determination as to whether the applicant is eligible to take an examination for the certificate of competency. To be eligible to take the examination, each applicant for a journeyman sheet metal worker certificate of competency shall furnish written evidence that he or she has either completed a course of study in the sheet metal trade, or at a school accredited by the commission for vocational education or its designee, or that he or she has had at least four years practical experience in the specialty. No other requirement for eligibility may be imposed. The director shall establish reasonable rules for the examinations to be given applicants for certificates of competency. In establishing these rules, the director shall consult with the advisory board. Upon determination that the applicant is eligible to take the examination, the director shall so notify him or her, indicating the time and place for taking the same.

(2) The department, with the advice of the advisory board, shall prepare a written examination to be administered to applicants for certificates of competency for journeyman sheet metal workers and specialty sheet metal workers. The examination shall be constructed to determine:

(a) Whether the applicant possesses varied general knowledge of the technical information and calculations that are identified with the trade of journeyman sheet metal worker or specialty sheet metal worker; and

(b) Whether the applicant is familiar with the applicable sheet metal statutes and rules of the department pertaining to sheet metal work.

!ixThe department shall administer the examination to eligible persons. All applicants shall, before taking the examination, pay to the department a fee as established by the department by rule. The department shall certify the results of the examination, and shall notify the applicant in writing whether he or she has passed or failed. Any applicant who has failed the examination may retake the examination, upon the terms and after a period of time that the director shall set by rule. The director may not limit the number of times that a person may take the examination.

(3) The department shall issue a certificate of competency to all applicants who have passed the examination and have paid the fee for the certificate. The certificate shall bear the date of issuance, and shall expire two years immediately following the date of issuance. The certificate shall be renewable every other year, upon application, on or before the birthdate of the holder. A renewal fee shall be assessed for each certificate. If a person fails to renew the certificate by the renewal date, he or she must pay a doubled fee. If the person does not renew the certificate within ninety days of the renewal date, he or she must also retake the examination and pay the examination fee.

The certificate of competency and the temporary permit provided for in this chapter grant the holder the right to engage in sheet metal work as specified in the certificate or temporary permit in accordance with the provisions of the certificate or temporary permit throughout the state and within any of its political subdivisions on any job or any employment without additional proof of competency or any other license or permit or fee to engage in the work. This section does not preclude employees from adhering to a union security clause in any employment where such a requirement exists.

(4) No examination may be required of any applicant for a certificate of competency who, on July 16, 1987, was engaged in a bona fide business or trade of sheet metal work.

NEW SECTION. Sec. 6. The department may issue temporary permits in lieu of certificates of competency whenever a sheet metal worker coming into the state of Washington from another state requests the department for a temporary permit to engage in the trade of sheet metal work as a journeyman sheet metal worker or as a specialty sheet metal worker during the period of time between filing of an application for a certificate as provided in this chapter and issuance of a certificate by the department. No temporary permit may be issued to:

(1) Any person who has failed to pass the examination for a certificate of competency;

(2) Any applicant under this chapter who has not furnished the department with the evidence required by this chapter;

(3) Any apprentice sheet metal worker.

NEW SECTION. Sec. 7. (1) The department may revoke any certificate of competency upon the following grounds:

(a) The certificate was obtained through error or fraud;

(b) The holder thereof is judged to be incompetent to carry on the trade of sheet metal work as a journeyman sheet metal worker or specialty sheet metal worker;

(2) Before any certificate of competency is revoked, the holder thereof shall be given written notice of the department's intention to do so, mailed by registered mail, return receipt requested, to said holder's last known address. Said notice shall enumerate the allegations against such holder, and shall give the holder the opportunity to request a hearing before the advisory board. At such hearing, the department and the holder shall have opportunity to produce witnesses and give testimony. The hearing shall be conducted in accordance with chapter 34.04 RCW. The board shall render its decision based upon the testimony and evidence presented, and shall notify the parties immediately upon reaching its decision. A majority of the board shall be necessary to render a decision.

NEW SECTION. Sec. 8. (1) There is created a state advisory board of sheet metal workers, to be composed of three members appointed by the director. One member shall be a journeyman sheet metal worker, one member shall be a person conducting a sheet metal business, and one member shall be a person from the general public who is familiar with the business and trade of sheet metal work.

(2) The initial and subsequent terms of the members of the advisory board shall be three years. In the case of any vacancy on the board for any reason, the director shall appoint a new member to serve out the term of the person whose position has become vacant.

(3) The advisory board shall carry out all the functions and duties enumerated in this chapter, as well as generally advise the department on all matters relative to this chapter.

(4) Each member of the advisory board shall receive travel expenses in accordance with RCW 43.03.050 and 43.03.060 for each day in which such member is actually engaged in attendance upon the meetings of the advisory board.

NEW SECTION. Sec. 9. The department shall charge fees for issuance, renewal, and reinstatement of all certificates and permits and for examinations required by this chapter. The department shall set the fees by rule.

The fees shall cover the full cost of issuing the certificates and permits, developing and administering the examinations, and enforcing this chapter. The costs shall include travel, per diem, and administrative support costs.

NEW SECTION. Sec. 10. All moneys received from certificates, permits, or other sources, shall be paid to the state treasurer as ex officio custodian thereof and placed by the treasurer in a special fund designated as the "sheet metal worker fund." The state treasurer shall pay out upon vouchers duly and regularly issued therefor and approved by the director. The treasurer shall keep an accurate record of payments into the fund, and of all disbursement therefrom. The fund shall be charged with its pro rata share of the cost of administering the fund.

NEW SECTION. Sec. 11. The director may adopt rules, make specific decisions, orders, and rulings, including therein demands and findings, and take other necessary action for the implementation and enforcement of this chapter: PROVIDED, That in the administration of this chapter the director shall not enter any controversy arising over work assignments with respect to the trades involved in the construction industry.

NEW SECTION. Sec. 12. Nothing in this chapter may be construed to require that a person obtain a permit or a certificate in order to do sheet metal work at his or her residence or farm or place of business or on other property owned by him or her. Any person performing sheet metal work on a farm may do so without having a current certificate of competency: PROVIDED, HOWEVER, That nothing in this chapter is intended to derogate from or dispense with the requirements of any valid sheet metal work code enacted by a political subdivision of the state, except that a code shall not require the holder of a certificate of competency to obtain any other license or pay any fee in order to engage in the trade of sheet metal work: AND PROVIDED FURTHER, That this chapter shall not apply to common carriers subject to Part I of the Interstate Commerce Act, nor to their officers and employees: AND PROVIDED FURTHER, That nothing in this chapter may be construed to apply to any farm, business, industrial plant, or corporation doing sheet metal work on premises it owns or operates: AND PROVIDED FURTHER, That nothing in this chapter may be construed to restrict the right of any householder to assist or receive assistance from a friend, neighbor, relative, or other person when none of the individuals doing such sheet metal work hold themselves out as engaged in the trade or business of sheet metal work.

NEW SECTION. Sec. 13. The director may, upon payment of the appropriate fees, grant a certificate of competency without examination to any applicant who is a registered journeyman sheet metal worker or specialty sheet metal worker in any other state whose requirements for registration are at least substantially equivalent to the requirements of this state.

NEW SECTION. Sec. 14. An authorized representative of the department may investigate alleged or apparent violations of this chapter. An authorized representative of the department upon presentation of credentials may inspect sites at which a person is doing sheet metal work for the purpose of determining whether that person has a certificate or permit issued by the department in accordance with this chapter or is supervised by a person who has such a certificate or permit. Upon request of the authorized representative of the department, a person doing sheet metal work shall produce evidence that the person has a certificate or permit issued by the department in accordance with this chapter or is supervised by a person who has such a certificate or permit.

NEW SECTION. Sec. 15. An authorized representative of the department may issue a notice of infraction to the employer and/or the employee if a person who is doing sheet metal work fails to produce evidence of having a certificate or permit issued by the department in accordance with this chapter or of being supervised by a person who has such a certificate or permit. A notice of infraction issued under this section shall be personally served on the person named in the notice by an authorized representative of the department.

NEW SECTION. Sec. 16. The form of the notice of infraction issued under this chapter shall 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 shall be final unless contested as provided in this chapter;

(2) A statement that the infraction is a noncriminal offense for which imprisonment shall not be imposed as a sanction;

(3) A statement of the specific infraction for which the notice was issued;

(4) A statement that a monetary penalty has been established for the infraction;

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

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

(7) A statement, which the person shall sign, that the person promises to respond to the notice of infraction in one of the ways provided in this chapter;

(8) A statement that refusal to sign the infraction as directed in subsection (7) of this section is a misdemeanor; and

(9) A statement that failure to respond to a notice of infraction as promised is a misdemeanor and may be punished by a fine or imprisonment in jail.

NEW SECTION. Sec. 17. A violation designated as an infraction under this chapter shall be heard and determined by a district court. A notice of infraction shall be filed in the district court district in which the infraction is alleged to have occurred. If a notice of infraction is filed in a court which is not the proper venue, the notice shall be dismissed without prejudice on motion of either party.

NEW SECTION. Sec. 18. 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. 19. (1) A person who receives a notice of infraction shall respond to the notice as provided in this section within fifteen days of the date the notice was served.

(2) If the person named in the notice of infraction does not wish to contest the determination, the person shall respond by completing the appropriate portion of the notice of infraction and submitting it, either by mail or in person, to the court specified on the notice. A check or money order in the amount of the penalty prescribed for the infraction must be submitted with the response. When a response which does not contest the determination is received, an appropriate order shall be entered in the court's records, and a record of the response and order shall be furnished to the department.

(3) If the person named in the notice of infraction wishes to contest the determination, the person shall respond by completing the portion of the notice of infraction requesting a hearing and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be sooner than fifteen days from the date of the notice, except by agreement of the parties.

(4) If any person issued a notice of infraction:

(a) Fails to respond to the notice of infraction as provided in subsection (2) of this section; or

(b) Fails to appear at a hearing requested pursuant to subsection (3) of this section;

the court shall enter an appropriate order assessing the monetary penalty prescribed for the infraction and shall notify the department of the failure to respond to the notice of infraction or to appear at a requested hearing.

(5) An order entered by the court under subsection (4)(b) of this section may, for good cause shown and upon such terms as the court deems just, be set aside for the same grounds a default judgment may be set aside in civil actions in courts of limited jurisdiction.

NEW SECTION. Sec. 20. It is a misdemeanor for any person who has been personally served with a notice of infraction:

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

(2) To violate wilfully 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. A person subject to proceedings under this chapter may appear or be represented by counsel. The department shall be represented by the attorney general in any proceeding under this chapter.

NEW SECTION. Sec. 22. (1) A hearing held for the purpose of contesting the determination that an infraction has been committed shall be without a jury.

(2) The court may consider the notice of infraction and any other written report made under oath submitted by the department's authorized representative who issued and served the notice in lieu of his or her personal appearance at the hearing. The person named in the notice may subpoena witnesses, including the authorized representative who issued and served the notice, and has the right to present evidence and examine witnesses present in court.

(3) 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 shall be dismissed if the defendant establishes that, at the time the notice was issued, the defendant was certified by the department or was exempt from certification.

(4) After consideration of the evidence and argument, the court shall determine whether the infraction was committed. If it has not been established that the infraction was committed, an order dismissing the notice shall be entered in the court's records. A record of the court's determination and order shall be furnished to the department.

(5) An appeal from the court's determination or order shall be to the superior court. The decision of the superior court is subject only to discretionary review pursuant to Rule 2.3 of the Rules of Appellate Procedure.

NEW SECTION. Sec. 23. The court shall, within thirty days after entry of an order under this chapter, forward a record of the court's order to the department on a form prescribed by the department.

NEW SECTION. Sec. 24. (1) A person found to have committed an infraction under this chapter shall be assessed a monetary penalty of one hundred dollars.

(2) The court may waive, reduce, or suspend the monetary penalty imposed for the infraction.

(3) Monetary penalties collected under this chapter shall be remitted as provided in chapter 3.62 RCW.

NEW SECTION. Sec. 25. Sections 1 through 24 of this act shall constitute a new chapter in Title 18 RCW.