WSR 08-22-079



[ Filed November 4, 2008, 11:07 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-19-027.

     Title of Rule and Other Identifying Information: Amending WAC 230-17-025 Appointment of administrative law judge or "presiding officer" and new WAC 230-17-137 Adjudicative proceedings -- Consideration of aggravating and mitigating circumstances.

     Hearing Location(s): Holiday Inn, 1 South Grady Way, Renton, WA 98057, (425) 226-7700, on January 9, 2009, at 9:00 a.m.

     Date of Intended Adoption: January 9, 2009.

     Submit Written Comments to: Susan Arland, P.O. Box 42400, Olympia, WA 98504-2400, e-mail, fax (360) 486-3625, by January 1, 2009.

     Assistance for Persons with Disabilities: Contact Gail Grate, executive assistant, by January 1, 2009, TTY (360) 486-3637 or (360) 486-3453.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The coalition for responsible gaming and regulation ("coalition") has submitted a petition for rule change. The coalition is a group that includes manufacturers, distributors, charitable/nonprofit organizations, and commercial operators. Beginning in the fall of 2006, staff had several meetings with the coalition. During these meetings, the parties discussed the coalition's concerns about some aspects of the administrative case process and worked on a rules proposal. However, an agreement satisfactory to both parties was not reached.

•     WAC 230-17-025: The coalition proposes adding language to clarify that the "presiding officer" (which would be the administrative law judge (ALJ) or the commissioners if hearing a case on appeal) has the authority to modify sanctions sought by commission staff. Some coalition members previously told staff that they believe the ALJ's are hesitant to impose penalties that are different than those recommended by staff. Although staff does not share this perception, this addition makes it clear that the presiding officer can impose the penalty they feel is appropriate. Staff does not object to this particular concept.

•     WAC 230-17-137: This new rule would require that, upon the request of any party, the presiding officer (which would be the ALJ or the commissioners if hearing a case on appeal) consider a list of aggravating and mitigating factors (included in the rule) when determining whether to modify a penalty sought by commission staff.

     Staff does not support this new rule. It would extend the hearings because it creates a "sentencing/penalty" phase to the hearings. In addition, it would take the focus away from whether there was a violation.

     Statutory Authority for Adoption: RCW 9.46.070.

     Statute Being Implemented: Not applicable.

     Name of Proponent: Coalition for Responsible Gaming and Regulation, private.

     Name of Agency Personnel Responsible for Drafting: Susan Arland, Rules Coordinator, Lacey, (360) 486-3466; Implementation: Rick Day, Director, Lacey, (360) 486-3446; and Enforcement: Mark Harris, Assistant Director, Lacey, (360) 486-3579.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement has not been prepared pursuant to RCW 19.85.025 because the change would not impose additional costs on businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. The Washington state gambling commission is not an agency that is statutorily required to prepare a cost-benefit analysis under RCW 34.05.328.

October 14, 2008

Susan Arland

Rules Coordinator


AMENDATORY SECTION(Amending Order 615, filed 10/24/07, effective 1/1/08)

WAC 230-17-025   Appointment of administrative law judge or "presiding officer."   (1) The commissioners hereby appoint the office of administrative hearings to assign an administrative law judge (ALJ), called the "presiding officer," to preside at all hearings which result from administrative charges, unless:

     (a) The commissioners, by their own order, declare their intent to preside at a specific proceeding; or

     (b) The proceeding is an appeal of an initial order issued by an ALJ.

     (2) All hearings must be conducted in compliance with TITLE 230 WAC and chapter 34.05 RCW.

     (3) The presiding officer is authorized to modify an administrative penalty sought by commission staff against the applicant, licensee, or permittee.

[Statutory Authority: RCW 9.46.070. 07-21-156 (Order 615), § 230-17-025, filed 10/24/07, effective 1/1/08.]


WAC 230-17-137   Adjudicative proceeding -- Consideration of aggravating and mitigating circumstances.   At the request of any party, the presiding officer or the commissioners shall consider one or more of the following nonexclusive aggravating and mitigating circumstances to determine whether to modify a penalty sought by commission staff:

     (1) The risk posed to the public health, safety, or welfare by the violation;

     (2) Whether the applicant, licensee, or permittee:

     (a) Knew, or reasonably should have known, the action complained of was a violation of any law, regulation, or condition of their license;

     (b) Previously received a verbal warning, written warning, notice of infraction, notice of violation and settlement (NOVAS), or administrative charges from the commission for similar violations;

     (c) Made, or attempted to make, a financial gain from the violation;

     (d) Had an existing compliance program related to the violation; or

     (e) Has subsequently initiated remedial measures to prevent similar violations from reoccurring.

     (3) Whether requiring the applicant, licensee or permittee to implement a written self-enforcement and compliance program would assist in ensuring future compliance with relevant laws, regulations, and license conditions;

     (4) If the violation was caused by an officer or employee of the applicant, licensee, or permittee:

     (a) Whether the individual who caused the violation acted within the scope of authority granted to him or her by the applicant, licensee or permittee; or

     (b) Whether the individual violated company policies, procedures, or other standards.

     (5) The adequacy of any relevant training programs the applicant, licensee or permittee previously offered or made available to its employees;

     (6) Whether and the extent to which the applicant, licensee or permittee cooperated with the commission staff during the investigation of the violation; and

     (7) The penalties imposed on other applicants, licensees or permittees for similar violations;

     (8) Whether the applicant, licensee, or permittee reasonably relied upon professional advice from an accountant or other recognized professional, which was relevant to the conduct or action resulting in the violation; or

     (9) Any other aggravating or mitigating circumstances the commissioners deem relevant.


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