This chapter applies to all adjudicative proceedings under the jurisdiction of the department of licensing or the director of the department of licensing, provided that the rules shall not apply to adjudicative proceedings held pursuant to chapters 46.20, 46.25 and 46.65 RCW, except for hearings held pursuant to RCW 46.20.329 as provided in WAC 308-08-600 through 308-08-660.

Except as they may be inconsistent with the rules in this chapter, the department adopts the model rules of procedure as set forth in chapter 10-08 WAC.

No former employee of the department or member of the attorney general's staff may at any time after severing his employment with the department or the attorney general appear in a representative capacity on behalf of other parties in a formal proceeding wherein he previously took an active part as a representative of the department as provided by RCW 42.22.040.

No former employee of department, board or commission shall at any time after severing his employment with the state of Washington appear, except with the written permission of the agency, as an expert witness on behalf of other parties in a formal proceeding wherein he previously took an active part in the investigation as a representative of department, board or commission.

(1) All applications requesting that the department of licensing conduct an adjudicative proceeding, including but not limited to requests for a hearing in a proceeding initiated by the department shall be made on the form provided by the department or in a form which is substantially similar.

(2) Applications to the department for an adjudicative proceeding shall be made within the following time limitations:

(a) Within twenty calendar days of service upon the applicant of a written notice of an opportunity to request a hearing on the agency action.

(b) Within twenty calendar days of notice to the applicant from any source of agency action by the department which the applicant believes has or will adversely affect the applicant.

(c) For purposes of this subsection, the time limitations begin upon actual notice, personal service or deposit in the U.S. mail, whichever occurs first.

(3) Failure of an applicant to file an application for an adjudicative proceeding within the time limits set forth in subsection (2) of this section, constitutes a default and results in the loss of the applicant's right to an adjudicative proceeding. The department may proceed to resolve the case pursuant to RCW 34.05.440(1).

(4) The department shall not grant any request for an adjudicative proceeding to an applicant who is not aggrieved or adversely affected by the agency action as defined by RCW 34.05.530.

(5) The department shall process applications for adjudicative proceedings as provided in RCW 34.05.416 and 34.05.419.

Witnesses summoned before the department, commission or board shall be paid by the party at whose instance they appear the same fees and mileage that are paid to witnesses in the superior courts of the state of Washington.

Upon application and for good cause shown, the department will seek judicial enforcement of subpoenas issued to parties and which have not been quashed.

Except as may be otherwise provided, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for use as evidence in the proceeding, except that leave of the presiding officer must be obtained if notice of the taking is served by a proponent within twenty days of the date of hearing. The attendance of witnesses may be compelled by the use of a subpoena.

Unless otherwise ordered, the deponent may be examined regarding any matter not privileged, which is relevant to the subject matter involved in the proceeding.

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice of not less than five days in writing to the agency and all parties. The notice shall state the time and place for taking the deposition, the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of a party upon whom the notice is served, the presiding officer may for cause shown, enlarge or shorten the time. If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used as other depositions.

After notice is served for taking a deposition, upon its own motion or upon motion reasonably made by any party or by the person to be examined and upon notice and for good cause shown, the department or its designated presiding officer may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed, the deposition shall be opened only by order of the department or that business secrets or secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents, or information enclosed in sealed envelopes to be opened as directed by the affected agency or the agency may make any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the department, or its designated presiding officer may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as above provided. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the department. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

Examination and cross-examination shall proceed as at an oral hearing. In lieu of participating in the oral examination, parties may serve written interrogatories in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

The officer before whom the deposition is to be taken shall put the witness on oath and shall personally or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by other means as stipulated to by the parties, if requested by one of the parties, the testimony shall be transcribed. Objections to the notice, qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented or to the conduct of the officer, or of any party, shall be noted by the officer upon the deposition. All objections by any party not so made are waived.

(1) When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress, the department holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(2) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. The officer shall then securely seal the deposition in an envelope indorsed with the title of proceeding and marked "Deposition of (here insert name of witness)" and shall promptly serve it on the person who ordered the transcript. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

Subject to rulings by the presiding officer upon objections a deposition taken as provided in this rule will not become a part of the record in the proceeding until received in evidence by the presiding officer upon his own motion or the motion of any party. Except by agreement of the parties or ruling of the presiding officer, a deposition will be received only in its entirety. A party does not make a party, or the privy of a party, or any hostile witness his witness by taking his deposition. Any party may rebut any relevant evidence contained in a deposition whether introduced by him or any other party.

Deponents whose depositions are taken and the officers taking the same shall be entitled to the same fees as are paid for like services in the superior courts of the state of Washington, which fees shall be paid by the party at whose request the depositions are taken.

Where the deposition is taken upon written interrogatories, the party offering the testimony shall separately and consecutively number each interrogatory and serve them with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom they are to be taken. Within 10 days thereafter a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five days thereafter, the latter may serve redirect interrogatories upon the party who served cross-interrogatories.

Where the interrogatories are forwarded to an officer authorized to administer oaths the officer taking the same after duly swearing the deponent, shall read to him seriatim, one interrogatory at a time and cause the same and the answer thereto to be recorded before the succeeding interrogatory is asked. No one except the deponent, the officer and the court reporter or stenographer recording and transcribing it shall be present during the interrogation.

The officer before whom interrogatories are verified or answered shall (1) certify under his official signature and seal that the deponent was duly sworn by him, that the interrogatories and answers are a true record of the deponent's testimony, that no one except deponent, the officer and the stenographer were present during the taking, and that neither he nor the stenographer, to his knowledge, is a party, privy to a party, or interested in the event of the proceedings, and (2) promptly send by registered or certified mail the original copy of the deposition and exhibits with his attestation to the department, or its designated presiding officer, one copy to the counsel who submitted the interrogatories and another copy to the deponent.

The presiding officer, upon request made before or during a hearing, will officially notice:

(1) Federal law. The Constitution; congressional acts, resolutions, records, journals and committee reports; decisions of federal courts and administrative agencies; executive orders and proclamations; and all rules, orders and notices published in the Federal Register;

(2) State law. The Constitution of the state of Washington, acts of the legislature, resolutions, records, journals and committee reports; decisions of administrative agencies of the state of Washington, executive orders and proclamations by the governor; and all rules, orders and notices filed with the code reviser.

(3) Governmental organization. Organization, territorial limitations, officers, departments, and general administration of the government of the state of Washington, the United States, the several states and foreign nations;

(4) Agency organization. The department, administration, officers, personnel, official publications, and practitioners before its bar.

In the absence of controverting evidence, the department and its presiding officers, upon request made before or during a hearing, may officially notice:

(1) Department proceedings. The pendency of, the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the department.

(2) Business customs. General customs and practices followed in the transaction of business;

(3) Notorious facts. Facts so generally and widely known to all well-informed persons as not to be subject to reasonable dispute, or specific facts which are capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer, department, or agency;

(4) Technical knowledge. Matters within the technical knowledge of the agency involved as a body of experts, within the scope or pertaining to the subject matter of its statutory duties, responsibilities or jurisdiction;

(5) Request or suggestion. Any party may request, or the presiding officer or the department may suggest, that official notice be taken of a material fact, which shall be clearly and precisely stated, orally on the record, at any prehearing conference or oral hearing or argument, or may make such request or suggestion by written notice, any pleading, motion, memorandum, or brief served upon all parties, at any time prior to a final decision;

(6) Statement. Where an initial or final decision of the department rests in whole or in part upon official notice of a material fact, such fact shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the presiding officer may consult any source of pertinent information, whether or not furnished as it may be, by any party and whether or not admissible under the rules of evidence:

(7) Controversion. Any party may controvert a request or a suggestion that official notice of a material fact be taken at the time the same is made if it be made orally, or by a pleading, reply or brief in response to the pleading or brief or notice in which the same is made or suggested. If any decision is stated to rest in whole or in part upon official notice of a material fact which the parties have not had a prior opportunity to controvert, any party may controvert such fact by appropriate exceptions if such notice be taken in an initial or intermediate decision or by a petition for reconsideration if notice of such fact be taken in a final report. Such controversion shall concisely and clearly set forth the sources, authority and other data relied upon to show the existence or nonexistence of the material fact assumed or denied in the decision:

(8) Evaluation of evidence. Nothing herein shall be construed to preclude the department or its authorized agents from utilizing their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.

Upon proof of the predicate facts specified in the following six subdivisions hereof without substantial dispute and by direct, clear, and convincing evidence, the department, with or without prior request or notice, may make the following presumptions, where consistent with all surrounding facts and circumstances:

(1) Continuity. That a fact of a continuous nature, proved to exist at a particular time, continues to exist as of the date of the presumption, if the fact is one which usually exists for at least that period of time;

(2) Identity. That persons and objects of the same name and description are identical;

(3) Delivery. Except in a proceeding where the liability of the carrier for nondelivery is involved, that mail matter, communications, express or freight, properly addressed, marked, billed and delivered respectively to the post office, telegraph, cable or radio company, or authorized common carrier of property with all postage, tolls and charges properly prepaid, is or has been delivered to the addressee or consignee in the ordinary course of business;

(4) Ordinary course. That a fact exists or does not exist, upon proof of the existence or nonexistence of another fact which in the ordinary and usual course of affairs, usually and regularly coexists with the fact presumed;

(5) Acceptance of benefit. That a person for whom an act is done or to whom a transfer is made has, does or will accept same where it is clearly in his own self-interest so to do;

(6) Interference with remedy. That evidence, with respect to a material fact which in bad faith is destroyed, eloigned, suppressed or withheld by a party in control thereof, would if produced, corroborate the evidence of the adversary party with respect to such fact.

The existence or nonexistence of a material fact, as made or agreed in a stipulation or in an admission of record, will be conclusively presumed against any party bound thereby, and no other evidence with respect thereto will be received upon behalf of such party, provided:

(1) Upon whom binding. Such a stipulation or admission is binding upon the parties by whom it is made, their privies and upon all other parties to the proceeding who do not expressly and unequivocally deny the existence or nonexistence of the material fact so admitted or stipulated, upon the making thereof, if made on the record at a prehearing conference, oral hearing, oral argument or by a writing filed and served upon all parties within five days after a copy of such stipulation or admission has been served upon them:

(2) Withdrawal. Any party bound by a stipulation or admission of record at any time prior to final decision may be permitted to withdraw the same in whole or in part by showing to the satisfaction of the presiding officer of the department that such stipulation or admission was made inadvertently or under a bona fide mistake of fact contrary to the true fact and that its withdrawal at the time proposed will not unjustly prejudice the rights of other parties to the proceeding.

The director will not consider petitions to stay the effectiveness of final orders. Any such request should be made in connection with a petition for judicial review under chapter 34.05 RCW.

Pursuant to RCW 34.05.470, a petition for reconsideration of a final order must be filed in the Office of the Director, Department of Licensing, Highways-Licenses Building, Olympia, Washington, within ten days of service of the final order. No matter will be reconsidered unless it clearly appears from the petition for reconsideration that there is material clerical error or specific material error of fact or law in the final order. Any response to the petition shall be filed with the office of the director within ten days of the date of service of the petition.

When portions only of a document are to be relied upon, the offering party shall prepare the pertinent excerpts, adequately identified, and shall supply copies of such excerpts, together with a statement indicating the purpose for which such materials will be offered, to the presiding officer and to the other parties. Only the excerpts, so prepared and submitted, shall be received in the record. However, the whole of the original document shall be made available for examination and for use by all parties to the proceeding.

Pursuant to RCW 34.05.437, pleadings, briefs, and motions must be made in writing, and must be served on all other parties. This rule does not apply to matters that properly arise during a hearing.

(1) At least five days before the scheduled brief adjudicative proceeding, any party, including the department, may file a written objection to resolution of a matter by a brief adjudicative proceeding and may request that a matter be converted to a formal adjudicative hearing. Upon receiving a timely written objection, the presiding officer shall determine whether the matter should be converted. Regardless of whether any party files a timely objection, the presiding officer may convert any brief adjudicative proceeding to a formal adjudicative hearing whenever it appears that a brief adjudicative proceeding is insufficient to determine the issues pending before the agency.

(2) In determining whether to convert a proceeding, the presiding officer may consider the following factors:

(a) Whether witness testimony will aid the presiding officer in resolving contested issues of fact;

(b) Whether the legal or factual issues are sufficiently complex to warrant a formal adjudicative proceeding, including whether there are multiple issues of fact or law;

(c) Whether a brief adjudicative proceeding will establish an adequate record for further agency or judicial review;

(d) Whether the legal issues involved in the proceeding present questions of legal significance or are being raised for the first time before the agency;

(e) Whether conversion of the proceeding will cause unnecessary delay in resolving the issues; and

(f) Any other factors that the presiding officer deems relevant in reaching a determination.

(1) The director adopts RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings conducted at the discretion of the director. Brief adjudicative proceedings can be used in place of formal adjudicative hearings whenever the department issues a statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleging that an applicant or licensee's conduct, act(s), or condition(s) constitute unlicensed practice or unprofessional conduct as that term is defined under chapter 18.235 RCW, the Uniform Regulation of Business and Professions Act. Brief adjudicative proceedings can also be used whenever the statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleges violations of any statute or rule that specifically governs disciplinary actions within a profession for which the applicant seeks a license or from which the licensee holds a license.

(2) Brief adjudicative proceedings may be used to determine the following issues, including, but not limited to:

(a) Whether an applicant has satisfied terms for reinstatement of a license after a period of license restriction, suspension, or revocation;

(b) Whether an applicant is eligible to sit for a professional licensing examination;

(c) Whether an applicant or licensee has satisfied financial security requirements by providing adequate proof of surety bonds or other proof of financial security, as required by law;

(d) Whether a sanction proposed by the department is appropriate based on the stipulated facts;

(e) Whether an applicant meets minimum requirements for an initial or renewal application;

(f) Whether an applicant has failed the professional licensing examination;

(g) Whether a licensee has sufficient continuing education credits when the licensee submits a renewal application;

(h) Whether an applicant or licensee failed to cooperate in an investigation by the department;

(i) Whether an applicant or licensee was convicted of a crime that should disqualify the applicant or licensee from holding the specific license sought or held;

(j) Whether an applicant or licensee has violated the terms of a final order issued by the director or director's designee;

(k) Whether a licensee has committed recordkeeping violations;

(l) Whether a licensee has committed trust account violations;

(m) Whether an applicant or licensee has engaged in false, deceptive, or misleading advertising; or

(n) Whether a person has engaged in unlicensed practice.

(3) In addition to the situations enumerated in subsection (2) of this section, the department may conduct brief adjudicative proceedings instead of formal adjudicative hearings whenever the parties have stipulated to the facts and the only issues presented are issues of law, or whenever issues of fact exist but witness testimony is unnecessary to prove or disprove the relevant facts.

(1) At least five days before the scheduled issuance of either an initial or a final order, any party, including the department, may file a written objection to resolution of a matter by a brief adjudicative proceeding and may request that it be converted to a formal adjudicative proceeding. Upon receiving a timely written objection, the presiding officer or reviewing officer, shall determine whether the matter should be converted. Regardless of whether any party files a timely objection, the presiding or reviewing officer may convert any brief adjudicative proceeding to a formal adjudicative proceeding whenever it appears that a brief adjudicative proceeding is insufficient to determine the issues pending before the agency.

(2) In determining whether to convert a proceeding, the presiding officer may consider the following factors:

(a) Whether witness testimony will aid the presiding or reviewing officer in resolving contested issues of fact;

(b) Whether the legal or factual issues are sufficiently complex to warrant a formal adjudicative proceeding, including whether there are multiple issues of fact or law;

(c) Whether a brief adjudicative proceeding will establish an adequate record for further agency or judicial review;

(d) Whether the legal issues involved in the proceeding present questions of legal significance or are being raised for the first time before the agency;

(e) Whether conversion of the proceeding will cause unnecessary delay in resolving the issues; and

(f) Any other factors that the presiding or reviewing officer deems relevant in reaching a determination.

To what do they apply? The department of licensing, dealer and manufacturer services section, adopts the provisions of RCW 34.05.482 through 34.05.494 for the matters listed in this section. The department may use brief adjudicative proceedings (BAPs) where their use will not violate any provisions of law, and where protection of the public interest does not require the department to give notice and an opportunity to participate to persons other than the parties.

The department may use BAPs including, but not limited to, the following matters:

(1) Whether a surety bond (or insurance) has been exhausted or cancellation pursuant to RCW 46.70.070, 46.80.070, 46.55.030 or 88.02.060, or the insurance required in RCW 46.55.030;

(2) Whether the licensee has failed to maintain an established place of business pursuant to RCW 46.70.023, WAC 308-66-140, RCW 46.80.130, WAC 308-63-070, RCW 46.55.060, WAC 308-61-108, RCW 88.02.078, 46.79.030, or WAC 308-65-030;

(3) Whether a person has failed to comply with an order or to pay a previously assessed fine, pursuant to RCW 46.70.101, 46.55.200, 46.80.110, or 88.02.188;

(4) Whether a licensee has been selling, exchanging, offering, brokering, auctioning, soliciting, advertising new or current model vehicles without a service agreement with a manufacturer, pursuant to RCW 46.70.101 or 46.70.041;

(5) Whether a licensee had failed to promptly transfer title, pursuant to RCW 46.70.122, WAC 308-66-190, 308-56A-420, or 308-90-150;

(6) Whether a licensee had failed to notify the department of a fact in which the licensee is required to timely notify the department (e.g., WAC 308-66-210 or 308-61-108);

(7) Whether a licensee has failed to have a current certificate or registration with the department of revenue pursuant to RCW 46.70.101;

(8) Whether the applicant whose license was suspended for cause and the terms of the suspension have not been fulfilled pursuant to RCW 46.70.101;

(9) Whether the applicant having been adjudged guilty of a crime which directly relates to the business of a vehicle dealer and the time elapsed since the adjudication is less than ten years, or suffering any judgment within the preceding five years in any civil action involving fraud, misrepresentation, or conversion pursuant to RCW 46.70.101 or 46.80.110 in the case of vehicle wreckers, or RCW 46.79.070 in the case of hulk haulers or scrap processors;

(10) Whether the applicant knowingly or with reason to know made a false statement of a material fact in his or her application for license or any data attached thereto pursuant to RCW 46.70.101;

(11) Whether an applicant or licensee has sufficient education credits as required by RCW 46.70.079;

(12) Whether a person is engaging in or about to engage in the business of a licensee as referenced in RCW 46.70.115, 46.80.180, or 46.55.210;

(13) Whether an applicant or licensee is solvent within the meaning of RCW 46.70.101;

(14) Whether a licensee has failed to maintain records as required by RCW 46.70.120, WAC 308-66-180, RCW 46.55.150 or 46.80.080.

The sole issue to be heard at the adjudicative proceedings shall be whether the applicant is in compliance with the requirements set forth in subsections (1) through (14) of this section.

The following rules numbered WAC 308-08-610 through 308-08-660 shall apply only to formal hearings held pursuant to RCW 46.20.329. They shall not apply to hearings held pursuant to chapter 308-103 WAC (implied consent revocations) or hearings under the provisions of chapter 308-102 WAC (the Financial Responsibility Act).

All formal hearings held pursuant to RCW 46.20.329 shall be conducted by a department hearing officer, who is appointed a referee for such purposes. In addition to the referees appointed by this section the director may from time to time appoint additional referees or may revoke the authority of any referee appointed by this section, but a record of such appointment or revocation of appointment shall be kept in the order registry in the director's office and may be examined at any time by any interested person.

At the outset of a formal hearing the referee shall advise the licensee of those matters contained in the department's records upon which the department's intended action is based. He shall judicially notice the files and records of the department which may be examined by the licensee or his attorney. The referee shall examine all witnesses including the licensee but nothing herein shall be construed as prohibiting the licensee from offering additional relevant testimony nor shall this be construed as prohibiting the examination of witnesses by the licensee or his attorney.

At the conclusion of the hearing the referee shall announce his decision or what his recommended action will be if then known to him. He shall prepare a written summary of his findings together with a recommendation for departmental action unless he is a person authorized to make final decisions on behalf of the department, in which case he shall make a written summary of his findings together with his decision concerning departmental action to be taken.

In all cases not heard by a person authorized to make final decisions on behalf of the department, the file, summary of the findings, and recommendation shall be forwarded to the administrator of the hearings and interviews section or, in his absence, the assistant director for driver services, for review. If there was a substantial issue of fact resolved at the hearing this shall be noted in the summary and the tape transcription of the proceeding shall be forwarded for review. The administrator of the hearings and interviews section, or in his absence, the assistant director for driver services, shall review the file, summary of findings, recommendation, and if necessary, the tape transcription of the evidence. The reviewer may either accept the recommendation by marking the word "approved" on the findings and recommendations together with his signature, or he may reject the recommendation in which case he shall append the action he deems appropriate to the summary and recommendation. In all cases the action of the reviewer shall be final.

In all cases not heard directly by the director of the department of licensing and determined by a person having authority to make final decisions following a formal hearing pursuant to WAC 308-08-660 the aggrieved person may pursue his remedies pursuant to RCW 46.20.334, or, he may prior to the effective date of the department action petition the director for reconsideration of the action taken by the department. The director, upon review of the records, evidence, and of the findings after a formal hearing, shall promptly render his decision sustaining, modifying or reversing the departmental order.

The administrator of the hearings and interviews section, the assistant director for driver services, and such other persons as the director may from time to time appoint by administrative order filed in the registry maintained in his office shall have authority to render final decisions on behalf of the department on all matters heard by formal hearing pursuant to RCW 46.20.329.