Licensing & Administrative Law

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Overview:

The Licensing and Administrative Law Division (LAL) comprises of 22 attorneys and 15 professional staff in Olympia and Seattle. Its work touches the lives of all Washingtonians and focuses on promoting public safety, protecting the economy, and preserving public integrity and trust. LAL prides itself as an inclusive, energetic, collegial, and high-performing team of professionals who provide high-quality, ethical legal services. The division handles litigation and advice for the Department of Licensing (including its regulation of drivers, professionals, and businesses in roughly 35 occupations), Employment Security Department (unemployment programs, paid family and medical leave, and long-term services and supports trust program — aka WA Cares Fund), Liquor and Cannabis Board, Board of Registration for Professional Engineers and Land Surveyors, Lottery Commission, Board of Accountancy, Commission on Judicial Conduct, Public Records Exemption Accountability Committee (Sunshine Committee), Consumer Directed Employer Rate Setting Board, Certified Professional Guardianship and Conservatorship Board, Interpreter Commission, Board of Industrial Insurance Appeals, Environmental and Land Use Hearings Office, and Columbia River Gorge Commission. Our work includes litigation before various tribunals, including the Office of Administrative Hearings, professional licensing boards, Washington superior and appellate courts, and federal courts. Cases and advice range from routine to high profile and cutting-edge.

LAL attorneys are called upon daily to provide legal advice to agency clients, and also regularly respond to constituent inquiries. LAL members have considerable legal and practical expertise in administrative and appellate procedure, responsibilities under the public records and open public meetings acts, due process under the state and federal constitutions, regulatory enforcement of professional licensing standards, licensing of drivers and vehicles, and tribal/state licensing, regulatory authority, and tax issues.

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Legal Services Provided:

LAL provides option-based advice on a variety of issues, including rulemaking, conforming agency policy to law, proposed legislation, and contracts. LAL litigates in administrative tribunals, representing client agencies that determine benefit eligibility, issue assessments to businesses and employers, and initiate licensing and disciplinary proceedings against regulated individuals and businesses. LAL also defends appeals of final agency orders in the superior and appellate courts, and defends actions against client agencies and their employees in state and federal courts. Much of LAL’s litigation practice is appellate.

Steady litigation handled by the division includes:

Employment Security Department: Appeals in administrative tribunals, superior, and appellate courts seeking review of decisions granting or denying unemployment and/or paid family and medical leave benefits, and relating to WA Cares Fund exemptions or to assessments of employer taxes for these programs.

Department of Licensing: Appeals in superior and appellate courts where drivers challenge the suspension or revocation of their license after they were arrested for driving under the influence of alcohol or drugs, or where suspension or revocation is required by law.

Disciplinary cases brought before regulatory boards or administrative law judges against professional licensees, such as real estate licensees and vehicle dealers, and tax assessment matters involving motor vehicle fuel distributors.

Liquor and Cannabis Board: Assistance with entering final orders of the Board in administrative litigation regarding the production, distribution, and sale of marijuana and liquor, and defense of actions against the Board or its employees or members or challenging Board rules or policies.

Significant Cases & Issues:

LAL advised the Employment Security Department on implementing federal and state pandemic unemployment benefit programs, responding to an organized imposter fraud attack, and options for overpayment waivers and collections. ESD paid more than $23 billion in unemployment benefits to more than 1.3 million Washingtonians in 2020-23. LAL defended ESD against lawsuits relating to timeliness of benefits payments and a putative class action asserting due process claims. LAL—along with the AGO Complex Litigation Division—secured $42 million from banks relating to unemployment benefits imposter fraud, in a novel use of state forfeiture law. Washington was more successful than other states in preventing and recovering imposter fraud losses. LAL also helped ESD to implement the paid family and medical leave program by advising on rules and processes, and handling appeals by individuals and employers. In 2020-23, the paid family and medical leave program paid more than $3.4 billion in benefits.

LAL advised the Department of Licensing on breath test admissibility and implications for driver license suspensions, after a criminal state district court case found that the Draeger machine’s calculation method was contrary to the state toxicologist’s rule. LAL wrote briefing and argued as amicus in the Washington State Supreme Court’s review of the criminal case, achieving a result supporting the validity of the suspensions. LAL also advised the DOL fuel tax program on fuel tax assessments against a tribal member-owned business, as to fuel taken at Washington terminal racks. In 2019, the United States Supreme Court ruled that the Yakama Treaty right to travel provision preempted taxes on fuel imported to the state by the tribal member-owned business by public highway. Ongoing litigation concerns the scope of the treaty right.

LAL has advised the Liquor and Cannabis Board on implementing Washington’s social equity in cannabis programs, and has represented the Board in novel litigation. That litigation includes: a case challenging restrictions on marijuana advertising at Seattle’s Hempfest—where the Washington State Court of Appeals applied intermediate scrutiny to the commercial speech at issue and upheld LCB’s restrictions; and, being the first state in the nation to successfully defend a social equity in cannabis program from a challenge to its residency requirements brought under the dormant Commerce Clause. The federal district court denied an injunction and dismissed the complaint, finding the dormant Commerce Clause does not apply to interstate markets that Congress declared illegal.

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