2.5 Discipline, Unprofessional Conduct, Appeals & Penalties

2.5 Discipline, Unprofessional Conduct, Appeals & Penalties

[!CAUTION] Get the citations right. A widespread error in commercial study material attributes the Department of Licensing's disciplinary power - and a supposed $1,000-per-violation civil penalty - to RCW 46.82.380. RCW 46.82.380 reads, in full: "Any action or decision of the director may, after a hearing is held as provided in this chapter, be appealed by the party aggrieved to the superior court of the county in which the place of business is located or where the aggrieved person resides." It is a one-sentence appeal provision. Disciplinary causes are in RCW 46.82.350 and RCW 46.82.360; sanctions come from RCW 18.235.110; the hearing procedure is RCW 46.82.370; and the criminal penalty is RCW 46.82.390.

---

The framework: the Uniform Regulation of Business and Professions Act

RCW 46.82.285 applies the Uniform Regulation of Business and Professions Act, chapter 18.235 RCW, to this chapter. That has three consequences an instructor should know:

1. "Unprofessional conduct" for driver training purposes is defined by RCW 18.235.130, a list that includes incompetence, negligence or malpractice resulting in unreasonable risk of harm, misrepresentation, and failure to cooperate with the disciplining authority.
2. The menu of available sanctions is the one in RCW 18.235.110: revocation, suspension, restriction or limitation of practice, remedial education, monitoring, censure or reprimand, probation conditions, denial of an application, corrective action, and "payment of a fine for each violation found by the disciplinary authority, not to exceed five thousand dollars per violation," with aggravating and mitigating circumstances to be considered.
3. Because it is an administrative framework, discipline runs in parallel with, and independently of, any criminal case.

The nine causes in RCW 46.82.350

The director may suspend, revoke, deny, or refuse to renew an instructor's licence or a driver training school licence, or impose other discipline authorised under RCW 18.235.110, on a determination that the applicant, licensee or owner has engaged in unprofessional conduct as defined by RCW 18.235.130 or for any of the following causes:

Cause 8 is the disciplinary hook for the driving-record screens covered in section 1.1: a clean abstract is a continuing condition of licensure, not a one-time entry test.

RCW 46.82.280(10) supplies a statutory definition of "fraudulent practices" that fills out cause 6. It includes: inducing anyone to believe a licence may be obtained by means other than those prescribed by law, or collecting money for that purpose; operating a school without a licence, providing instruction without an instructor's licence, or verifying enrollment prior to being licensed; misleading or false statements on applications or records; failing to fully document and maintain all required records of instruction, school operation and instructor training; and issuing a driver training course certificate without requiring completion of the necessary behind-the-wheel and classroom instruction.

That final item is the one an instructor is most likely to encounter. Certifying six hours of behind-the-wheel when five were driven is, by definition in Washington statute, a fraudulent practice.

The business practices in RCW 46.82.360

RCW 46.82.360 is a second, independent list. Its opening line states that a licence "may be suspended, revoked, denied, or refused renewal, or such other disciplinary action authorized under RCW 18.235.110 may be imposed, for failure to comply with the business practices specified in this section." Those practices, covered throughout this chapter, include the 1,000-foot rule (1); vehicle equipment and signage (2); the under-15 and permit-possession limits on instruction (3); the prohibition on advertising that a licence is guaranteed (4); truthful advertising using the school's full legal name (5); the established-place-of-business and branch rules (6); the prohibition on training on a DOL test course (7); records and retention (8); display of the required curriculum (9); and submission to periodic inspections (10).

Subsections (4) and (5) deserve a note because they are the marketing rules. No school or instructor "shall advertise or otherwise indicate that the issuance of a driver's license is guaranteed or assured as a result of the course of instruction offered," and advertising must use the school's full legal name and identify it as a driver training school, with the vehicles, equipment, classrooms, simulators, materials and services advertised actually available "in a manner as might be expected by the average person reading the advertisement."

---

Hearings, emergency suspension and appeal

RCW 46.82.370 governs process:

• On notification of suspension, revocation, denial or refusal to renew, the school or instructor "shall have the right to appeal the action being taken." The appeal is made to the director, who "shall cause a hearing to be held in accordance with chapter 34.05 RCW" - the Administrative Procedure Act.
• Filing an appeal stays the action pending the hearing and the director's decision. This is a meaningful protection: ordinary discipline does not take effect while a timely appeal is pending.
• Emergency suspension. A licence "may, however, be temporarily suspended by the director without notice pending any prosecution, investigation, or hearing where such emergency action is warranted." This is the exception to the automatic stay.
• Notice by registered mail to the last known address in accordance with chapter 34.05 RCW is deemed due notice.
• The director or the director's authorised representative presides, with power to subpoena witnesses, administer oaths, take testimony and cause depositions to be taken.

RCW 46.82.380 then provides the judicial step: after a hearing held as provided in the chapter, any action or decision of the director may be appealed by the aggrieved party to the superior court of the county where the place of business is located or where the aggrieved person resides.

Public notice of discipline

WAC 308-108-180(2) requires that the original or a facsimile of each final order imposing disciplinary action issued to a school or any of its instructors "shall be conspicuously displayed immediately adjacent to the driver training school's license." The display period is "not less than the duration of the sanction period plus the next sixty days, or for one year, whichever is less."

WAC 308-108-180(1) states the underlying responsibility plainly: school owners and instructors "are responsible for knowing and complying with the requirements of chapter 46.82 RCW and rules promulgated under that chapter," and any failure to comply "may lead to disciplinary action."

The criminal penalty

RCW 46.82.390: "A violation of any provision of this chapter shall be a misdemeanor." Not a gross misdemeanor. Criminal prosecution is separate from and additional to administrative discipline; the department disciplines the licence, and a prosecutor charges the offence.

---

Worked enforcement analysis

Facts. During an audit, a DOL reviewer finds that twelve student files show five logged behind-the-wheel hours but the school issued course completion certificates stating six. The owner says the sixth hour was waived because the students drove well.

Analysis.

• Substantive breach. WAC 308-108-160(1)(a) fixes the behind-the-wheel minimum. Nothing in chapter 46.82 RCW or chapter 308-108 WAC authorises a school to waive statutory instruction hours for competence.
• Characterisation. Issuing a course certificate without requiring completion of the necessary behind-the-wheel instruction is a fraudulent practice under RCW 46.82.280(10)(d), which triggers cause 6 of RCW 46.82.350. Cause 1 may also apply to any false statement in records, and cause 9 to the underlying rule breach.
• Sanctions available. The full RCW 18.235.110 menu, including suspension or revocation of the school and instructor licences and a fine not to exceed $5,000 per violation - with each falsified certificate capable of being treated as a separate violation.
• Process. The department issues its notice; the licensee may appeal to the director, which stays the action pending hearing under chapter 34.05 RCW unless the director makes an emergency suspension; the director's decision is appealable to superior court under RCW 46.82.380.
• Criminal exposure. Separately, RCW 46.82.390 makes the underlying violation a misdemeanor.
• Aftermath. Any final order must be displayed next to the school's licence for the sanction period plus sixty days, or one year, whichever is less.

[!WARNING] Exam traps in this section

• $5,000 per violation under RCW 18.235.110, not $1,000.
• RCW 46.82.380 is the superior court appeal, not the disciplinary grant.
• Misdemeanor, not gross misdemeanor, under RCW 46.82.390.
• Filing an appeal stays the action, except where the director orders emergency suspension without notice.
• Display the final order for the sanction period plus 60 days, or one year, whichever is less.