AN ACT Relating to certificates of competency for the installation of mobile homes; amending RCW 18.27.090; 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. The legislature finds that the installation of mobile homes on sites is often done improperly, causing health and safety risks to the occupants. There are different standards and procedures that must be followed which are unique to mobile homes. Persons who prepare the site and place the mobile home on the site must be knowledgeable in these procedures and standards.

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

(1) "Advisory board" means the board described in RCW 43.22.420.

(2) "Certificate of competency" or "certificate" means a document that demonstrates a person has passed a test under this chapter.

(3) "Contractor" means the same as defined in RCW 18.27.010.

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

(5) "Install" means to prepare a site for a mobile home or to place the mobile home on the site in accordance with state and local regulations.

(6) "Installer" means a person who installs mobile homes.

(7) "Mobile home" means the same as defined in RCW 46.04.302.

NEW SECTION. Sec. 3. All persons who install mobile homes shall comply with the provisions of chapter 18.27 RCW and this chapter.

NEW SECTION. Sec. 4. (1) All installers shall qualify for and be issued a certificate of competency before installing any mobile home.

(2) 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 the expiration date. Except for initial certificates, certificates shall be valid for two years and shall expire on the birthdate of the holder. Initial certificates shall be valid for a period of at least one year and no more than two years, and shall expire on the birthdate of the holder. Fees for initial certificates shall be prorated based on the duration of the certificate. 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 shall pay a doubled fee. If the person does not renew the certificate within ninety days of the renewal date, he or she must retake the examination and pay the examination fee.

The certificate of competency provided for in this chapter grants the holder the right to engage in the work of installing mobile homes in accordance with his or her certificate 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 except as required under chapter 18.27 RCW. This section does not preclude employees from adhering to a union security clause in any employment where such a requirement exists.

(3) Persons who are properly licensed under chapter 18.27 RCW and are engaged in the business of installing mobile homes on or before the effective date of this section may continue to install mobile homes for one year after procedures have been developed by the department to issue the certificate as provided for in subsection (2) of this section without a certificate of competency.

NEW SECTION. Sec. 5. The department, with the advice of the advisory board, shall prepare a written examination to be administered to applicants for certificates of competency for installers. The examination shall be constructed to determine:

(1) Whether the applicant possesses varied general knowledge of the technical information and practical procedures that are identified with the trade of installer; and

(2) Whether the applicant is familiar with the applicable codes and the administrative rules of the department pertaining to installing.

The department shall administer the examination to eligible persons. All applicants shall, before taking the examination, pay to the department a fee.

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.

NEW SECTION. Sec. 6. The department shall charge fees for issuance, renewal, and reinstatement of all certificates 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, 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. 7. (1) The department shall make rules and set up procedures to implement this chapter.

(2) The advisory board may advise the department and resolve disputes on matters relative to this chapter.

NEW SECTION. Sec. 8. (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 installing mobile homes;

(2) Before any certificate of competency shall be 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 the holder's last known address. The notice shall enumerate the allegations against the holder, and shall give him or her the opportunity to request a hearing before the advisory board. At a hearing, the department and the holder shall have opportunity to produce witnesses and give testimony. The hearing shall be conducted in accordance with the provisions of 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. 9. The mobile home installers 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 certificates 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. 10. (1) If, upon inspection or investigation, the director or authorized 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 installation work at the job site by that person. 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 person and that the person 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 person fails to comply with any 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. 11. 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 installing for the purpose of determining whether that person has a certificate issued by the department in accordance with this chapter or is supervised by a person who has such a certificate. Upon request of the authorized representative of the department, a person installing shall produce evidence that the person has a certificate issued by the department in accordance with this chapter or is supervised by a person who has such a certificate.

NEW SECTION. Sec. 12. The department may issue a notice of infraction if the department reasonably believes that a person required to have a certificate by this chapter is uncertified. A notice of infraction issued under this section shall be personally served on the person named in the notice by the department's inspectors or service or may be by certified mail directed to the person named in the notice of infraction.

NEW SECTION. Sec. 13. 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 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; and

(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 person named may subpoena witnesses, including the inspector of the department who issued and served the notice of infraction.

NEW SECTION. Sec. 14. 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. 15. 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. 16. (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 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 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) After final determination 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 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.

(5) A person 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. 17. A person 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. 18. (1) The administrative law judge shall conduct installers' 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.

(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. 19. The administrative law judge shall dismiss the notice of infraction at any time upon written notification from the department that the person named in the notice of infraction was certified at the time the notice of infraction was issued.

NEW SECTION. Sec. 20. (1) A person 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 mobile home installers fund to help defray the costs of conducting the administrative hearing.

NEW SECTION. Sec. 21. In addition to the monetary penalties and possible revocation of the certificate of competency, a violation of this chapter shall also be a violation of RCW 18.27.117(1). Nothing in this chapter limits the application of chapter 18.27 RCW, including revocations or penalties provided for in that chapter.

NEW SECTION. Sec. 22. Sections 1 through 21 of this act shall constitute a new chapter in Title 18 RCW.

Sec. 23. Section 2, chapter 25, Laws of 1974 ex. sess. as last amended by section 1, chapter 313, Laws of 1987 and RCW 18.27.090 are each amended to read as follows:

This chapter shall not apply to:

(1) An authorized representative of the United States government, the state of Washington, or any incorporated city, town, county, township, irrigation district, reclamation district, or other municipal or political corporation or subdivision of this state;

(2) Officers of a court when they are acting within the scope of their office;

(3) Public utilities operating under the regulations of the utilities and transportation commission in construction, maintenance, or development work incidental to their own business;

(4) Any construction, repair, or operation incidental to the discovering or producing of petroleum or gas, or the drilling, testing, abandoning, or other operation of any petroleum or gas well or any surface or underground mine or mineral deposit when performed by an owner or lessee;

(5) The sale or installation of any finished products, materials, or articles of merchandise which are not actually fabricated into and do not become a permanent fixed part of a structure;

(6) Any construction, alteration, improvement, or repair of personal property, except this chapter shall apply to all mobile/manufactured housing. A mobile/manufactured home may be installed, set up, or repaired by the registered or legal owner, or by a contractor licensed under this chapter, or by a mobile/manufactured home retail dealer or manufacturer licensed under chapter 46.70 RCW who shall warranty service and repairs under chapter 46.70 RCW, although a contractor who installs or sets up a mobile/manufactured home shall also comply with chapter 18.-- RCW (sections 1 through 21 of this 1988 act);

(7) Any construction, alteration, improvement, or repair carried on within the limits and boundaries of any site or reservation under the legal jurisdiction of the federal government;

(8) Any person who only furnished materials, supplies, or equipment without fabricating them into, or consuming them in the performance of, the work of the contractor;

(9) Any work or operation on one undertaking or project by one or more contracts, the aggregate contract price of which for labor and materials and all other items is less than five hundred dollars, such work or operations being considered as of a casual, minor, or inconsequential nature. The exemption prescribed in this subsection does not apply in any instance wherein the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made into contracts of amounts less than five hundred dollars for the purpose of evasion of this chapter or otherwise. The exemption prescribed in this subsection does not apply to a person who advertises or puts out any sign or card or other device which might indicate to the public that he is a contractor, or that he is qualified to engage in the business of contractor;

(10) Any construction or operation incidental to the construction and repair of irrigation and drainage ditches of regularly constituted irrigation districts or reclamation districts; or to farming, dairying, agriculture, viticulture, horticulture, or stock or poultry raising; or to clearing or other work upon land in rural districts for fire prevention purposes; except when any of the above work is performed by a registered contractor;

(11) An owner who contracts for a project with a registered contractor;

(12) Any person working on his own property, whether occupied by him or not, and any person working on his residence, whether owned by him or not but this exemption shall not apply to any person otherwise covered by this chapter who constructs an improvement on his own property with the intention and for the purpose of selling the improved property;

(13) Owners of commercial properties who use their own employees to do maintenance, repair, and alteration work in or upon their own properties;

(14) A licensed architect or civil or professional engineer acting solely in his professional capacity, an electrician licensed under the laws of the state of Washington, or a plumber licensed under the laws of the state of Washington or licensed by a political subdivision of the state of Washington while operating within the boundaries of such political subdivision. The exemption provided in this subsection is applicable only when the licensee is operating within the scope of his license;

(15) Any person who engages in the activities herein regulated as an employee of a registered contractor with wages as his sole compensation or as an employee with wages as his sole compensation;

(16) Contractors on highway projects who have been prequalified as required by chapter 13 of the Laws of 1961, RCW 47.28.070, with the department of transportation to perform highway construction, reconstruction, or maintenance work.

NEW SECTION. Sec. 24. 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.