AN ACT Relating to crane and hoisting 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. As used in this chapter:

(1) "Crane" means any hoisting engine that lifts and rotates or moves a load horizontally, including hydraulic cranes and all friction cranes, derricks, jib hoists, gantry, or bridge cranes.

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

(3) "Director" means the director of labor and industries.

NEW SECTION. Sec. 3. LICENSE REQUIRED. (1) A crane or hoisting operators license is required for all crane operators who work in private and public construction, including utilities, in the state of Washington.

(2) Section 4 of this act notwithstanding, no person may operate any crane driven by any power when used in lowering or hoisting personnel on any construction project without a license under this chapter, and no employer may direct, compel, or permit an employee who is not the holder of a license of the proper class to operate any such crane. Such an employer is subject to the penalties prescribed in this chapter.

NEW SECTION. Sec. 4. EXEMPTIONS. The following hoisting machines do not require a licensed operator: Jib hoists, overhead hoists with no bridge or trolley, wrecker trucks, A-frame boom trucks, work platforms with controls included in the basket, and hydraulic cranes with a maximum lifting capacity of under fourteen tons.

NEW SECTION. Sec. 5. UPCONCLASS OF LICENSES. There shall be three classes of licenses as follows:

(1) Class I universal license includes all types of cranes and hoists, including electric tower cranes.

(2) Class II hydraulic crane license includes hydraulic cranes of fourteen-ton capacity or more, regardless of mounting or means of mobility.

(3) Class III restricted license includes apprentices, trainees, 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 persons meeting the following requirements:

(a) Two thousand hours of crane operation experience and a four-year class III license or four years of documented practical experience;

(b) Successful completion of a written examination; and

(2) Subsection (1) (b) and (c) of this section do not apply to an operator who applies to the department for a license within one year of the effective date of this section with six thousand hours or more of experience which has been obtained within the five years preceding the effective date of this section, on a form acceptable to the department.

(3) Licenses issued under this section shall be renewed biennially on the operators' birth dates.

NEW SECTION. Sec. 7. REQUIREMENTS FOR CLASS III LICENSE. In the first year, a class III license shall be issued upon application and payment of the license fee. In the second year, a class III license shall be issued with evidence of five hundred hours of crane operation experience and payment of the license fee. In the third year, a class III license shall be issued with evidence of one thousand hours of crane operation experience and payment of the license fee. In the fourth year, a class III license shall be issued with evidence of fifteen hundred hours of crane operation experience and payment of the license fee.

Licenses issued under this section shall be renewed annually.

NEW SECTION. Sec. 8. CRANE OR HOISTING OPERATORS LICENSING BOARD. (1) There is created the crane or hoisting operators licensing board to be composed of three members appointed by the governor. One member shall be a member of the operating engineers, one member shall be a person from the construction business, and one member shall be a person from the general public who is familiar with the operation of crane or hoisting equipment in the construction industry.

(2) The initial terms of the members of the board shall be one, two, and three years, respectively. Subsequent terms shall be for a period of three years. In the case of a vacancy on the board, the governor shall appoint a new member to serve out the term of the person whose position has become vacant.

(3) The 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 board shall be reimbursed for travel expenses under RCW 43.03.050 and 43.03.060 for each day in which the member attends a meeting of the board.

NEW SECTION. Sec. 9. FEES. The department shall charge fees for issuance, renewal, and reinstatement of all licenses 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 licenses, devising and administering the examinations, and administering and enforcing this chapter. The costs shall include travel, per diem, and administrative support costs.

NEW SECTION. Sec. 10. CRANE OR HOISTING OPERATORS FUND. The crane or hoisting operators fund is hereby established in the custody of the state treasurer. The department of labor and industries shall deposit in the fund all moneys received from licenses and penalties under this chapter. Moneys in the fund may be spent only for the purposes of this chapter. Disbursements from the fund shall be on authorization of the director of labor and industries or the director's designee. The fund is subject to the allotment procedure provided under chapter 43.88 RCW, but no appropriation is required for disbursements. The fund shall be charged with its pro rata share of the cost of administering the fund.

NEW SECTION. Sec. 11. POWERS AND DUTIES OF DIRECTOR. The director may adopt rules and take other necessary action for the implementation and enforcement of the department's duties under this chapter. 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. RECIPROCITY. The director may, upon payment of the appropriate fees, grant a license without examination to any applicant who is a registered crane or hoisting operator in any other state whose requirements for registration are substantially equivalent to the requirements of this state, and which extends the same privileges of reciprocity to crane or hoisting 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 an operator or contractor 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 operator or contractor. The order shall 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 pursuant to chapter 34.04 RCW. A request for hearing shall 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 any activity in violation of this chapter. A prima facie case for issuance of an injunction shall 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 injunctive or other appropriate relief, pending the outcome of enforcement proceedings under this chapter, or to enforce restraining orders issued by the director. If the operator or contractor fails to comply with any court order, the director shall request the attorney general to petition the superior court for an order holding the operator or contractor 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 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 operating a crane for the purpose of determining whether that person has a license issued by the department in accordance with this chapter or is supervised by a person who has such a license. 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 or is supervised by a person who has such a license.

NEW SECTION. Sec. 15. NOTICE OF INFRACTION--SERVICE. The department may issue a notice of infraction if the department reasonably believes that an operator or contractor required to have a license by this chapter is unlicensed. A notice of infraction issued under this section shall be personally served on the operator or contractor named in the notice by the department's compliance inspectors or service can be made by certified mail directed to the operator or contractor 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 shall include the following:

(1) A statement that the notice represents a determination that the infraction has been committed by the operator or contractor named in the notice and that the determination shall be final unless contested as provided in this chapter;

(2) A statement of the specific violation which 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 any 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 that the operator or contractor may subpoena witnesses, including the compliance inspector of the department who issued and served the notice of infraction;

(6) A statement, which the person who has been served with the notice of infraction shall sign, that the operator or contractor 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; and

(8) A statement that an operator's or contractor'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.

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 operator or contractor to whom the notice was issued committed the infraction.

NEW SECTION. Sec. 18. NOTICE OF INFRACTION--CONTESTING DETERMINATION--HEARING. A violation designated as an infraction under this chapter shall be heard and determined by an administrative law judge of the office of administrative hearings. 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) An operator or contractor 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 operator or contractor named in the notice of infraction does not elect to contest the notice of infraction, then the operator or contractor shall pay to the department, by check or money order, the amount of the penalty prescribed for the infraction. When a response which 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 operator or contractor named in the notice of infraction elected to contest the notice of infraction, the person or contractor shall respond by filing an answer of protest with the department specifying the grounds of protest.

(4) If any operator or contractor issued a notice of infraction fails to respond within the prescribed response period, the operator or contractor shall be guilty of a misdemeanor and prosecuted in the county in which the infraction occurred.

(5) After final determination by an administrative law judge that an infraction has been committed, a person or contractor who fails to pay within thirty days a monetary penalty that is not waived, reduced, or suspended pursuant to this chapter and who fails to file an appeal pursuant to this chapter is guilty of a misdemeanor and shall be prosecuted in the county in which the infraction occurred.

(6) An operator or contractor who fails to pay a monetary penalty within thirty days after exhausting appellate remedies pursuant to this chapter is guilty of a misdemeanor and shall be prosecuted in the county in which the infraction occurred.

NEW SECTION. Sec. 20. NOTICE OF INFRACTION--FAILURE TO SIGN OR RESPOND--MISDEMEANOR. It is a misdemeanor for any operator or contractor 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 wilfully 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. An operator or contractor subject to proceedings under this chapter may appear or be represented by counsel. The department shall be presented by the attorney general in administrative proceedings and any subsequent appeals under this chapter.

NEW SECTION. Sec. 22. INFRACTION--ADMINISTRATIVE HEARING--PROCEDURE--APPEAL. (1) The administrative law judge shall conduct operators' or contractors' notice of infraction cases pursuant to chapter 34.04 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 shall be dismissed if the defendant establishes that, at the time the notice was issued, the defendant was registered by the department or was exempt from registration.

(3) After consideration of the evidence and argument, the administrative law judge 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 record of the proceedings. If it has been 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 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. INFRACTION--DISMISSAL. The administrative law judge shall dismiss the notice of infraction at any time upon written notification from the department that the operator or contractor named in the notice of infraction was licensed at the time the notice of infraction was issued.

NEW SECTION. Sec. 24. INFRACTION--MONETARY PENALTY. (1) An operator or contractor found to have committed an infraction under this chapter shall be assessed a monetary penalty of not less than two hundred dollars and not more than 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 shall be deposited in the crane or hoisting operators fund 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. As used in this act, captions 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.