WSR 97-13-080

PROPOSED RULES

DEPARTMENT OF LICENSING

[Filed June 18, 1997, 10:12 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 96-13-015, 96-12-090, and 96-20-006.

Title of Rule: Chapter 308-17 WAC, Private detective agencies and private detectives.

Purpose: Establishes fee amounts for transfer of a license and renewal of a certified trainer's license. Adopts brief adjudicative hearings, deletes outdated information, and updates physical office address for the licensing program.

Statutory Authority for Adoption: Chapter 18.170 RCW, RCW 43.24.086, 34.05.482.

Statute Being Implemented: Chapter 18.165 RCW.

Summary: The additional changes bring the WACs up-to-date with the changes made to the laws in 1995 and as ordered by federal law (brief adjudicative hearings).

Reasons Supporting Proposal: The transfer fee and certified trainer renewal fee will recover the cost of processing and issuing new licenses for transfer applicants and certified trainers.

Name of Agency Personnel Responsible for Drafting: Pat Brown, 405 Black Lake Boulevard S.W., Olympia, WA, (360) 664-2356; Implementation: Toni Ortiz, 405 Black Lake Boulevard S.W., Olympia, WA, (360) 664-9072; and Enforcement: Tim Baker, 405 Black Lake Boulevard S.W., Olympia, WA, (360) 664-9073.

Name of Proponent: Department of Licensing, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The rule changes allow the agency to clean up housekeeping issues like address changes and deletion of information that was time sensitive and no longer applies. Updates the WAC to reflect changes passed such as the nonrefundable fee for license applications. Adopts brief adjudicative proceedings to use in resolving disputes.

The certified trainer renewal fee will be used to process the renewal and issue a new license for certified trainers.

The transfer fee will be used to process a transfer application and issue a new license.

Proposal Changes the Following Existing Rules: Changes the rule to reflect RCW regarding nonrefundable application fees, deletes outdated information, and updates the department's office location.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Costs of compliance with the rules for the transfer fee and the certified trainer's renewal fee are below the threshold in the table of minor and negligible impact as defined by the Business Assistance Center's Guide to Facilitating Regulatory Fairness.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Labor and Industries Auditorium, 7273 Linderson Way S.W., Tumwater, WA 98501, on August 1, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Toni Ortiz by July 28, 1997, TDD (360) 586-2788, or (360) 664-9072.

Submit Written Comments to: Department of Licensing, Private Investigator Licensing Program, P.O. Box 9045, Olympia, WA 98507-9045, FAX (360) 753-3747, by August 1, 1997.

Date of Intended Adoption: August 7, 1997.

June 18, 1997

Toni Ortiz

Program Coordinator

PRIVATE ((DETECTIVE)) INVESTIGATIVE AGENCIES AND PRIVATE ((DETECTIVES)) INVESTIGATORS

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-010 Promulgation--Authority. The director of the department of licensing, state of Washington, pursuant to the authority vested in the director by RCW 18.165.170, does hereby promulgate the following rules and regulations relating to the licensing of private ((detective)) investigative agencies, private ((detectives,)) investigators and armed private ((detectives)) investigators.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-010, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-020 Organization. The principal location of the private detective licensing program is at ((2424 Bristol Court)) 405 Black Lake Boulevard SW, Olympia, Washington 98504. The department of licensing administers the Washington private ((detective)) investigator license law, chapter 18.165 RCW. Submissions and requests for information regarding private ((detective)) investigative agency licenses, private ((detective)) investigator licenses, and armed private ((detective)) investigator licenses may be sent in writing to the Private ((Detective)) Investigator Program, Department of Licensing, P.O. Box 9045, Olympia, Washington 98507-9045.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-020, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-030 Definitions. (1) Words and terms used in these rules shall have the same meaning as each has under chapter 18.165 RCW unless otherwise clearly provided in these rules, or the context in which they are used in these rules clearly indicates that they be given some other meaning.

(2) "Principal owner" means the sole owner of a private ((detective)) investigative agency.

(3) "Principal partner" means the partner who exercises operational control over a private ((detective)) investigative agency.

(4) "Certified trainer" means a principal or a licensed private ((detective)) investigator or armed private ((detective)) investigator who has fulfilled the requirements of WAC 308-17-320.

(5) "Company identification" in RCW 18.165.160(6), shall include the license card issued by the director to a private ((detective)) investigator or armed private ((detective)) investigator.

(6) "Fire investigator or arson investigator" is anyone who qualifies for certification and has certification by the International Association of Arson Investigators; the National Association of Fire Investigators; or any organization or government body that has a certification program that meets all the requirements of NFPA 1033.

(7) "Address of record" is a physical street address.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-030, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-100 Agency applications--Conditions. Any person desiring to be licensed as a private ((detective)) investigative agency must substantiate the experience requirements in RCW 18.165.050, or pass an examination as provided in this chapter. Persons meeting the experience requirements shall make application for a license on a form prescribed by the director. Persons who do not meet the experience requirements shall make application for an examination and for a license on a form prescribed by the director. Concurrently, the applicant shall:

(1) Pay a nonrefundable fee or fees as prescribed by WAC 308-17-150.

(2) If the applicant is the qualifying agent of a corporation, he or she shall furnish a certified copy of its articles of incorporation, and a list of its officers and directors and their addresses. If the applicant is the qualifying agent of a foreign corporation, he or she shall furnish a certified copy of certificate of authority to conduct business in the state of Washington, a list of its officers and directors and their addresses, and evidence of current registration with the secretary of state. If the applicant is a partnership or limited partnership, each partner shall apply and furnish their addresses.

(3) When a license is issued to a principal owner he or she shall act as the principal of the agency without the payment of additional license fees. When a license is issued to a corporation the qualifying agent shall act as the principal of the agency without the payment of additional fees. When a license is issued to a partnership the principal partner shall act as the principal of the agency without the payment of additional fees.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-100, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-105 Branch office notification--Conditions. A principal of a private ((detective)) investigative agency shall notify the director of the addresses of all branch offices under the same name as the main office as a part of the agency application. The director shall issue a duplicate license for each of the branch offices showing the location of the main office and the particular branch. Each duplicate license shall be prominently displayed in the office for which it is issued. The principal shall notify the director by mail, within thirty days, of any changes to branch office addresses to include additions or deletions of branches.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-105, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-110 Private ((detective)) investigator applications--Conditions. Any person desiring to be a private ((detective)) investigator shall make application for a license on a form prescribed by the director and pay a nonrefundable fee as prescribed by WAC 308-17-150. ((Applicants who are employed by private detective agencies whose agency license was issued prior to January 1, 1992, shall make application during the time period as follows:

(1) Applicants whose last name begins with A through F shall apply during the month of February 1992.

(2) Applicants whose last name begins with G through L shall apply during the month of March 1992.

(3) Applicants whose last name begins with M through R shall apply during the month of April 1992.

(4) Applicants whose last name begins with S through Z shall apply during the month of May 1992.

Applicants need not fulfill the preassignment training requirements specified in WAC 308-17-300 if he or she, prior to June 30, 1992, provides proof to the director that he or she previously has met the training requirements and passed the preassignment training test or has been employed as a private detective or armed private detective continuously since January 1, 1991. The agency principal or a certified trainer shall attest on the application that the applicant has passed the preassignment training test or has been continuously employed since January 1, 1991.))

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-110, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-120 Armed private ((detective)) investigator applications--Conditions. Any person desiring to be an armed private detective shall obtain a firearms certificate from the criminal justice training commission, make application on a form prescribed by the director, and pay a nonrefundable fee as prescribed by WAC 308-17-150.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-120, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-130 Application for private ((detective)) investigator and armed private ((detective)) investigator license, licensed in another state--Conditions. Any person applying for a private ((detective)) investigator or armed private ((detective)) investigator license who holds a valid license, registration, identification, or similar card issued by another state that the director has determined has selection, training, and other requirements at least equal to those required by chapter 18.165 RCW shall make application on a form prescribed by the director, pay the fee as prescribed by WAC 308-17-150 for a private ((detective)) investigator or armed private ((detective)) investigator license, and submit evidence of licensure in another state by a license verification form completed by an administrative officer of the licensure authority of such state.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-130, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-140 Comments by chief law enforcement officers and employers. If comments required by RCW 18.165.070(3), are not received by the department within ten working days from the forwarding date, the permanent license for a private ((detective)) investigator shall be issued if he or she is otherwise qualified.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-140, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 93-16-060, filed 7/29/93, effective 9/1/93)

WAC 308-17-150 Private ((detective)) investigative agency, private ((detective)) investigator, and armed private ((detective)) investigator fees. The following fees for a one-year period shall be charged by professional licensing services of the department of licensing:

Title of Fee Fee

Private ((detective)) investigative agency:

Application/examination $350.00

Reexamination 25.00

License renewal 275.00

Late renewal with penalty 350.00

Certification 25.00

Private ((detective)) investigator:

Original license 75.00

Transfer fee 25.00

Certified trainer examination/

reexamination 25.00

Certified trainer renewal 15.00

License renewal 75.00

Late renewal with penalty 100.00

Certification 25.00

Armed private ((detective)) investigator:

Original license 50.00

Transfer fee 25.00

Certified trainer examination/

reexamination 25.00

Certified trainer renewal 15.00

License renewal 75.00

Late renewal with penalty 100.00

Certification 25.00

[Statutory Authority: RCW 18.165.170(1). 93-16-060, 308-17-150, filed 7/29/93, effective 9/1/93. Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-150, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-160 Expiration and renewal of licenses. Licenses issued to private ((detectives)) investigators and armed private ((detectives)) investigators expire one year from the date of issuance which date will be the renewal date. Licenses issued to private detective agencies expire one year from the date of issuance which date will be the renewal date, except that if the corporation registration or certificate of authority filed with the secretary of state expires, the agency license issued to the corporation shall expire on that date. Licenses must be renewed each year on or before the date established herein and a renewal license fee as prescribed by the director in WAC 308-17-150 must be paid.

If the application for a renewal license is not received by the director on or before the renewal date, a penalty fee as prescribed by the director in WAC 308-17-150 shall be paid. Acceptance by the director of an application for renewal after the renewal date shall not be a waiver of the delinquency.

The license of any person whose license renewal fee is not received within one year from the date of expiration shall be cancelled. This person may obtain a new license by satisfying the procedures and qualifications for initial licensing, including the successful completion of any applicable training and examination requirements.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-160, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-165 Private ((detective)) investigator and armed private ((detective)) investigator--Termination of services. A person licensed as a private ((detective)) investigator or armed private ((detective)) investigator may perform duties and activities as licensed only under the direction and supervision of a licensed agency principal and as a representative of such principal. This relationship may be terminated unilaterally by either the company principal or private ((detective)) investigator or armed private ((detective)) investigator. Notice of such termination shall be by the agency principal to the director without delay and such notice shall be accompanied by, and include the surrender of, the private ((detective)) investigator or armed private ((detective)) investigator license held by the agency. Notice of termination shall be provided by signature of the agency principal, or a person authorized by the principal to sign for such principal, on the surrendered license. The termination date shall be the postmark date or date the license is hand delivered to the department. If the license held by the agency cannot be surrendered to the department because the license has been lost, the agency principal or authorized representative shall complete and submit an affidavit of lost license on a form provided by the department.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-165, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-170 Inactive license. (1) Any license issued under chapter 18.165 RCW and not otherwise revoked or suspended shall be deemed "inactive" at any time it is delivered to the director. Until reissued, the holder of an inactive license shall be deemed to be unlicensed.

(2) An inactive license may be placed in an active status upon completion of an application as provided by the director and upon compliance with the rules adopted pursuant to chapter 18.165 RCW.

(3) An inactive license may not be renewed. The inactive license will be cancelled if not activated ((by)) and renewed within one year of the expiration date. To obtain a new license the person must satisfy the procedures and qualifications for initial licensing, including the successful completion of any applicable training and examination requirements.

(4) The provisions of chapter 18.165 RCW relating to the denial, suspension, and revocation of a license shall be applicable to an inactive license as well as an active license, except that when proceedings to suspend or revoke an inactive license have been initiated, the license shall remain inactive until the proceedings have been completed.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-170, filed 11/6/91, effective 12/7/91.]

NEW SECTION

WAC 308-17-180 Application of brief adjudicative proceedings. The director adopts RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings conducted by request, and/or at the discretion of the director pursuant to RCW 34.05.482 for the categories of matters set forth below. Brief adjudicative proceedings will be limited to a determination of one or more of the following issues:

(1) A determination whether an applicant for a license meets the minimum criteria for a license to practice as a private investigator in this state and the department proposes to deny the application;

(2) A determination whether a person is in compliance with the terms and conditions of a final order or agreement previously issued by the department;

(3) A determination whether an education course or curriculum meets the criteria for approval when approval by the department is required or authorized by statute or rule;

(4) A determination whether a license holder requesting renewal has submitted all required information and meets minimum criteria for renewal; and

(5) A determination whether a license holder has been certified by a lending agency and reported for nonpayment or default on a federally or state-guaranteed student loan or service-conditional scholarship.

[]

NEW SECTION

WAC 308-17-185 Preliminary record in brief adjudicative proceedings. (1) The preliminary record with respect to an application for an original or renewal license or for approval of an education course or curriculum shall consist of:

(a) The application for the license, renewal, or approval and all associated documents;

(b) All documents relied upon by the program in proposing to deny the application, renewal, or approval; and

(c) All correspondence between the applicant for license, renewal, or approval and the program regarding the application.

(2) The preliminary record with respect to determination of compliance with a previously issued final order or agreement shall consist of:

(a) The previously issued final order or agreement;

(b) All reports or other documents submitted by, or at the direction of, the license holder, in full or partial fulfillment of the terms of the final order or agreement;

(c) All correspondence between the license holder and the program regarding compliance with the final order or agreement; and

(d) All documents relied upon by the program showing that the license holder has failed to comply with the previously issued final order or agreement.

(3) The preliminary record with respect to the determination of nonpayment or default by the license holder on a federally or state-guaranteed student loan or service-conditional scholarship shall consist of:

(a) Certification and report by the lending agency that the identified person is in default or nonpayment on a federally or state-guaranteed student loan or service-conditional scholarship; or

(b) A written release, if any issued by the lending agency stating that the identified person is making payment on the loan in accordance with a repayment agreement approved by the lending agency.

[]

NEW SECTION

WAC 308-17-190 Conduct of brief adjudicative proceedings. (1) Brief adjudicative proceedings shall be conducted by a presiding officer for brief adjudicative proceedings designated by the director. The presiding officer for brief adjudicative proceedings shall have agency expertise in the subject matter but shall not have personally participated in the decision to issue the initiating document.

(2) The parties or their representatives may present written documentation. The presiding officer for brief adjudicative proceeding shall designate the date by which written documents must be submitted by the parties.

(3) The presiding officer for brief adjudicative proceedings may, in his or her discretion, entertain oral argument from the parties or their representatives.

(4) No witnesses may appear to testify.

(5) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

(6) The presiding officer for brief adjudicative proceedings shall not issue an oral order. Within ten days of the final date for submission of materials or oral argument, if any, the presiding officer for brief adjudicative proceedings shall enter an initial order.

[]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-205 Filing of licenses. Licenses of all private ((detectives)) investigators and armed private ((detectives)) investigators shall be on file in the office located at the address appearing on the individual license.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-205, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-210 Change of office location. The principal of a private ((detective)) investigative agency shall notify the department of the change of location and mailing address of the agency office within ten working days by filing a completed change of address application with the department.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-210, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-230 Complaint notification. Every licensee shall, within twenty days after service or knowledge thereof, notify the private ((detective)) investigator program manager of any criminal complaint, information, indictment, or conviction (including a plea of guilty or nolo contendere) in which the licensee is named as a defendant.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-230, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-240 Required records. The minimum records the principal of a private ((detective)) investigative agency shall be required to keep are preassignment training and testing records for each private ((detective)) investigator. These records shall be retained and available for inspection by the director or the director's authorized representative for a minimum of three years.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-240, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-300 Minimum preassignment training and testing requirements. (1) The preassignment training required by RCW 18.165.090, shall include as a minimum four hours of training covering the following areas:

(a) Legal powers and limitations.

(i) Representation and misrepresentation.

(A) How to properly identify yourself.

(B) Misrepresentation defined.

(C) Problems/liability arising out of misrepresentation.

(ii) Powers of arrest.

(A) Laws pertaining to arrest by private citizen.

(B) Probable cause.

(C) Potential liability resulting from false arrest claim.

(b) Evidence.

(i) Definition.

(A) Written.

(B) Recorded.

(C) Material.

(ii) Marking.

(iii) Storage.

(iv) Chain of custody documentation.

(c) Report writing.

(i) Elements of a report.

(ii) Fact versus opinion or assumption.

(iii) Penmanship.

(d) Courtroom testimony.

(i) Expert witnesses.

(ii) Manufacturing evidence.

(iii) Perjury.

(iv) Discovery.

(e) Confidentiality/privilege.

(f) Federal, state, county, and municipal court systems.

(g) Common sources of public information.

(i) Court docket information.

(ii) U.S. Postal Service.

(iii) Voter registration.

(iv) Credit reporting agencies.

(v) Department of licensing.

(vi) Private sources.

(h) Frequent activities in violation of criminal statutes.

(i) Privacy laws: Electronic surveillance.

(i) Chapter 9.73 RCW privacy violations.

(ii) U.S. Code violations.

(iii) Appellate court decisions.

(A) Explanation of privacy.

(B) Video/photography.

(C) Tracking transmissions.

(j) Fair Credit Reporting Act.

(i) Permissible purposes of reports.

(ii) Obtaining information under false pretenses.

(2) The minimum time each private detective candidate must spend in preassignment training is four hours. The time spent on each required topic may vary providing the time for all required topics totals four hours and the four hours is devoted solely to the topics designated.

(3) All private ((detective)) investigator applicants, after receiving preassignment training and prior to receiving their license, must successfully complete a test designed to demonstrate their understanding and retention of the information learned in the training course. This test shall consist of a minimum of thirty multiple questions based on the training topics outlined above. Test results must be verified and signed by a certified trainer. All applicants must answer all questions correctly on the private ((detective)) investigator preassignment training test. Questions incorrectly answered initially must be reviewed to insure the applicant's understanding and then initialed by both the applicant and the certified trainer verifying knowledge of the correct answer(s).

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-300, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-310 Private ((detective)) investigative agency principal examination requirements. (1) All principals of an agency who do not meet the experience requirements required by RCW 18.165.050, must pass an examination demonstrating their knowledge and proficiency in the following areas:

(a) All topics contained in the private detective preassignment training course.

(b) Washington state law as it applies to private detective licensing and regulation.

(c) Legal liability for employee actions pertaining to the private detective industry.

(d) The Federal Freedom of Information Act (5 U.S.C. 552).

(e) The Federal Privacy Act (5 U.S.C. 522A).

(f) The Washington state Public Disclosure Act (chapter 42.17 RCW).

(g) Communication skills.

(2) The examination shall consist of a minimum of fifty questions based on information in the above required areas. A score of eighty-five percent must be achieved in order to pass the examination. Applicants who fail to achieve an eighty-five percent score will be required to wait a minimum of seven days before reexamination.

[Statutory Authority: RCW 18.165.170. 91-22-111, 308-17-310, filed 11/6/91, effective 12/7/91.]

AMENDATORY SECTION (Amending WSR 91-22-111, filed 11/6/91, effective 12/7/91)

WAC 308-17-320 Certification of preassignment training trainers. An individual must successfully score at least ((eighty-five)) ninety percent on the agency principal examination and have three years investigative experience to become a certified trainer. Individuals who fail to obtain ((an eighty-five)) a ninety percent score will be required to wait a minimum of seven days before reexamination. There is no limit on the number of certified trainers an individual private detective agency may have certified.