Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-23-021.

     Title of Rule and Other Identifying Information: Chapter 260-34 WAC, Drug and alcohol testing of licensees.

     Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98001, on March 9, 2006, at 9:30 a.m.

     Date of Intended Adoption: March 9, 2006.

     Submit Written Comments to: Robert J. Lopez, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, e-mail rlopez@whrc.state.wa.us, fax (360) 459-6461, by March 6, 2006.

     Assistance for Persons with Disabilities: Contact Patty Sorby by March 6, 2006, TTY (360) 459-6462.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: As part of the agency's regulatory reform effort this chapter has been reduced to three sections (eight sections being repealed). Changes to WAC 260-34-010 are only for clarification purposes. Changes to WAC 260-34-020 are being made to combine several sections into one section where the use of alcohol and drugs is prohibited. Finally WAC 260-34-030 is being simplified and unnecessary portions are being removed. The following eight sections are being repealed: WAC 260-34-035 Exercising the privileges of their license, 260-34-045 Violations of the privileges granted licensees, 260-34-060 Refusal to test, 260-34-070 Responsibility to report valid prescriptions, 260-34-080 Testing procedure, 260-34-090 A positive test, 260-34-100 Confidentiality of test results, and 260-34-180 Testing expense.

     Statutory Authority for Adoption: RCW 67.16.020.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Washington horse racing commission, governmental.

     Name of Agency Personnel Responsible for Drafting: Robert J. Lopez, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462; Implementation and Enforcement: Robert M. Leichner, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable.

     A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.

January 9, 2006

R. M. Leichner

Executive Secretary

OTS-8539.2

AMENDATORY SECTION(Amending WSR 05-07-066, filed 3/11/05, effective 4/11/05)

WAC 260-34-010   Primary purpose.   In order to protect the integrity of horse racing in the state of Washington, and to protect the safety of the public and all participants, the Washington horse racing commission intends to regulate the use of any illegal controlled substances and the use of alcohol by licensees at all race meets. This chapter shall be applicable to all licensees or applicants on the grounds of any ((race track)) racetrack during its licensed race meet.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-066, § 260-34-010, filed 3/11/05, effective 4/11/05; 89-13-006 (Order 89-02), § 260-34-010, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-010, filed 4/15/88.]

     (1) Be under the influence of or affected by intoxicating liquor and/or drugs, have an alcohol concentration of 0.08 percent or higher, or have within their body any illegal controlled substance while on the grounds of any licensed race meet;

     (2) Engage in the illegal sale or distribution of alcohol;

     (3) Engage in the illegal sale or distribution of a controlled substance;

     (4) Possess an illegal controlled substance;

     (5) Possess on the grounds of any licensed race meet any equipment, products or materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing an illegal controlled substance, or any equipment, products or materials of any kind, which are used or intended for use in injecting, ingesting, inhaling or otherwise introducing into the human body an illegal controlled substance; or

     (6) Refuse to submit to blood, breath and/or urine testing, when notified that such testing is conducted pursuant to the conditions of WAC 260-34-030.

     Failure to provide a blood, breath and/or urine sample when directed or intentional contamination of the sample by any person tested for the purpose of preventing accurate analysis of the sample, or other actions with intent to subvert the test, shall be considered a refusal to submit to a test.

     "Controlled substance" or "drug" as used in this chapter means any substance listed in chapter 69.50 RCW or legend drug as defined in chapter 69.41 RCW. The presence of a controlled substance or drug in any quantity measured by the testing instrument establishes the presence of that substance for the purpose of this section. The fact that a licensee or applicant is or has been entitled to use a drug under the laws of the state of Washington shall not constitute a defense against a violation for being under the influence of or affected by intoxicating liquor and/or any drug.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-066, § 260-34-020, filed 3/11/05, effective 4/11/05; 89-13-006 (Order 89-02), § 260-34-020, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-020, filed 4/15/88.]

     (a) When a steward or commission security investigator finds that there is reasonable suspicion to believe that the applicant or licensee has used or is under the influence of alcohol and/or any drug.

     (b) When an applicant or licensee has a documented history of an unexplained positive test which indicates illegal drug usage or has a documented history of violating chapter 69.41, 69.45 or 69.50 RCW, WAC 260-34-020 or similar drug-related violation within five years of conviction or release from a correctional institution.

     (c) When a steward or commission security investigator decides to test any licensee or applicant as a condition of any conditional or probationary license.

     (2) For licensees or applicants who are subject to a field screening urine test under the provisions in this chapter, and whose test shows the presence of a controlled substance or alcohol, the field screening test results shall be confirmed by a laboratory acceptable to the commission ((which shall include gas chromatography/mass spectrometry (GC/MS) procedures.

     (a) When the sample quantity permits, each test sample shall be divided into portions so that one portion may be used for the confirmation procedure and another portion may be utilized by the licensee to obtain an independent analysis of the sample. The commission shall provide for a secure chain of custody for the sample to be made available to the licensee.

     (b) All costs for the transportation and testing for the sample portion made available for the licensee shall be the financial responsibility of the requesting person. The licensee or applicant being tested shall reimburse the commission the cost of transportation and testing within thirty days of receipt of notice of the costs)).

     (3) The result of a test conducted with a preliminary breath test (PBT) instrument approved by the state toxicologist in chapter 448-15 WAC or other breath test equipment approved under chapter 448-16 WAC shall constitute evidence of a violation of these rules. The results of such a test may be considered for purposes of determining whether the licensee or applicant has consumed alcohol, the level of alcohol concentration, and whether the licensee or applicant has violated a prohibition on the use or consumption of alcohol established in a conditional license.

     (((4) Upon request of the licensee or applicant, testing may be by a blood alcohol test. The requesting licensee or applicant shall pay the cost of a blood test.))

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-066, § 260-34-030, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 67.16.040. 00-07-038, § 260-34-030, filed 3/6/00, effective 4/6/00. Statutory Authority: RCW 67.16.020 and 67.16.040. 89-13-006 (Order 89-02), § 260-34-030, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-030, filed 4/15/88.]

     The following sections of the Washington Administrative Code are repealed:

WAC 260-34-035	Exercising the privileges of their license.
WAC 260-34-045	Violations of the privileges granted licensees.
WAC 260-34-060	Refusal to test.
WAC 260-34-070	Responsibility to report valid prescriptions.
WAC 260-34-080	Testing procedure.
WAC 260-34-090	A positive test.
WAC 260-34-100	Confidentiality of test results.
WAC 260-34-180	Testing expense.