Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-23-095.

     Title of Rule and Other Identifying Information: New WAC rules regarding no trespass warnings for Washington state ferries' (WSF) terminals, vessels or other WSF facilities, WAC 468-300-800 Authority to issue no trespass warnings/definitions, 468-300-805 No Trespass warnings, 468-300-810 Administrative appeal, and 468-300-815 Administrative hearing.

     Hearing Location(s): WSF, 2901 Third Avenue, Suite 500, Seattle, WA 98121-3014, on Wednesday, July 10, 2013, at 1:00 p.m. - 2:00 p.m.

     Date of Intended Adoption: July 10, 2013.

     Submit Written Comments to: Helmut Steele, Company Security Officer, WSF, 2901 Third Avenue, Suite 500, Seattle, WA 98121-3014, e-mail SteeleH@wsdot.wa.gov, fax (206) 515-3473, by July 9, 2013.

     Assistance for Persons with Disabilities: Contact WSF by July 9, 2013, TTY 711 connect to (206) 515-3600 or (206) 515-3601.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed new WAC rules is to establish procedures governing issuance of no trespass warning notices for WSF's terminals, vessels and any other WSF operated facility. The proposed rules also specify the appeal process to contest such notices.

     The anticipated effects of this proposal are to: Reduce the risk of damage to WSF property; reduce harassment of, and possible injury to, WSF customers and employees; and reduce violation of state, local, or federal regulation, law, or ordinance including, but not limited to, the city of Seattle pedestrian interference law and any law as set forth under Title 9A RCW.

     Reasons Supporting Proposal: The new WAC rules will provide WSF with enforcement options to enhance the safety of WSF terminals, vessels and other WSF facilities, all to benefit WSF customers and employees.

     Statutory Authority for Adoption: RCW 47.56.030 and 47.60.010.

     Statute Being Implemented: RCW 47.56.030 and 47.60.010.

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

     Name of Proponent: Washington state department of transportation, ferries division, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Helmut Steele, 2901 Third Avenue, Suite 500, Seattle, WA 98121-3014, (206) 515-3474.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Pursuant to RCW 19.85.030, the proposed rules will not impose more than minor costs on businesses in an industry.

     A cost-benefit analysis is not required under RCW 34.05.328. WSF has determined that the probable benefits of the rules (e.g., safety enhancement) are greater than the probable costs (e.g., administrative appeals), taking into account both the qualitative and quantitative benefits and costs and the directives in the statutes being implemented regarding the operation of WSF.

Kathryn W. Taylor

Chief of Staff

OTS-5163.2

NEW SECTION
WAC 468-300-800   Authority to issue no trespass warnings/definitions.   The definitions used in chapters 47.56 and 47.60 RCW and chapter 468-300 WAC, shall apply to this section, as well as those additional definitions set forth herein.

     (1) "WSF property" shall mean any property real or otherwise, owned or leased by the WSF and includes, but is not limited to, any property which comprises a WSF terminal including access thereto, to any WSF vessel, or other WSF operated facility.

     (2) "Authorized officer" shall mean a member of the Washington state patrol (WSP), a law enforcement officer or agency of local jurisdiction, a ferry vessel captain, a port captain, or other designated WSF director or employee.

     (3) "Good cause" means facts and circumstances which leads an authorized officer to believe that a person:

     (a) Has violated, or through his or her actions or behavior, intends to violate any state, local, or federal regulation, law, or ordinance including, but not limited to, the city of Seattle pedestrian interference law and any law as set forth under Title 9A RCW;

     (b) Has disrupted, or through his or her actions or behavior, intends to disrupt WSF operations;

     (c) Has harassed, or through his or her actions or behavior, intends to harass or otherwise interfere with a WSF employee or passenger;

     (d) Has injured himself, herself or others, or through his or her actions or behavior, intends to injure himself, herself or others, or otherwise takes actions which place persons or WSF property in peril;

     (e) Has damaged, defaced, or destroyed WSF property, or through his or her actions or behavior, intends to damage, deface, or destroy WSF property.

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     (2) An authorized officer may issue a no trespass warning notice, which shall be valid and enforceable for a period of sixty days from the date of its issuance, to any individual when he or she has good cause to issue such a no trespass warning notice, which shall conform to the requirements of subsection (4) of this section. Violation of any term of a no trespass warning notice shall constitute the crime of criminal trespass under chapter 9A.52 RCW.

     (3) Should an individual:

     (a) Violate the terms of the no trespass warning notice; or

     (b) Receive two no trespass warning notices within a one-year period, then the individual shall be issued a third no trespass warning notice by an authorized officer, which shall be valid and enforceable for a period of one year from the date of the issuance of the third no trespass warning notice.

     (4) A no trespass warning notice shall:

     (a) Be in writing and signed by the individual authorized officer issuing it;

     (b) Contain the date of issuance, the violation that the person is alleged to have committed, and a citation to the code, statute, or rule violated;

     (c) Specify the places where the individual will be expelled from and the length during the period in which the no trespass warning notice is valid and enforceable;

     (d) Set out the method for appealing the notice, which shall also include the address where the appeal should be sent;

     (e) Prominently display a warning of the consequences for failure to comply with the notice and state that a violation of the terms of the notice will constitute criminal trespass under chapter 9A.52 RCW.

     (5) The person being expelled need not be charged, tried, or convicted of any crime or be issued an infraction or have an infraction found committed in order for a no trespass warning notice to be issued or effective. The authorized officer need only establish that good cause existed to support the issuance of the no trespass warning notice.

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     (2) The appeal must be in writing, provide the appellant's current address, and shall be accompanied by a copy of the no trespass warning notice that is being appealed.

     (3) The written notice of appeal must be sent to the WSF company security officer at the WSF mailing address specified on the following WSF web site: www.wsdot.wa.gov/ferries/infodesk/contact.htm. You may also contact WSF at 206-515-3400 for information concerning the WSF mailing address. The written notice must be postmarked no later than seven calendar days after the issuance of the no trespass warning notice.

     (4) The terms of the no trespass warning notice shall remain in effect during the pendency of any administrative or judicial proceeding.

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     (a) Notify the appellant of the hearing date, time, and location;

     (b) Conduct a hearing within ten business days of receipt of the notice of appeal; and

     (c) Issue a written ruling upholding, rescinding, or modifying the no trespass warning notice no later than five business days after the hearing. The written ruling shall conform to the requirements of the Washington Administrative Procedure Act, chapter 34.05 RCW.

     (2) The hearing official shall consider a sworn report or a declaration under penalty of perjury as authorized by RCW 9A.72.085, written by the individual who issued the no trespass warning notice, without further evidentiary foundation. This evidence creates a rebuttable presumption that the violation occurred and the burden thereafter rests with the appellant to overcome the presumption.

     (3) The hearing official shall consider the no trespass warning notice and may consider any written or oral sworn testimony of the appellant or witnesses, as well as pictorial or demonstrative evidence offered by the appellant that the hearing official considers relevant and trustworthy. The hearing official may consider information that would not be admissible under the evidence rules in a court of law.

     (4) The hearing official may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer individual oaths to witnesses. The hearing official shall not issue a subpoena for the attendance of a witness at the request of the appellant unless the request is accompanied by the fee required by RCW 5.56.010 for a witness in district court. The appellant shall be responsible for serving any subpoena issued at the appellant's request.

     (5) If, after the hearing, the hearing official is persuaded on a "more probable than not" basis that the violation did occur, the no trespass warning notice shall be upheld. However, if the appellant can establish that he or she necessarily requires access to the WSF property from which he or she is expelled for purposes of commuting to and from work, school, or necessary medical treatment, the hearing officer shall:

     (a) Modify the terms of the no trespass warning notice to allow for travel at specified times only insofar as to limit the specific hardship caused by the expulsion; and

     (b) Fine the individual two hundred fifty dollars for the first offense and five hundred dollars for each offense thereafter.

     If, however, the violation is not proven on a "more probable than not" basis, then the hearing official shall rescind the no trespass warning notice. If the hearing official rescinds a no trespass warning notice, the no trespass warning notice shall not be considered a prior no trespass warning notice for purposes of WAC 468-300-806(3).

     (6) The decision of the hearing official is final. Any appeal of the hearing official's decision may be made in conformance with the Washington Administrative Procedure Act, chapter 34.05 RCW.

     (7) No determination of facts made by the hearing official under this section shall have any collateral estoppel effect on a subsequent criminal prosecution or civil proceeding and shall not preclude litigation of those same facts in a subsequent criminal prosecution or civil proceeding.

     (8) In no event shall the hearing official be a person who is subordinate to the person who issued the no trespass warning notice.

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