Potelco, Inc. & Jeff Lampman v. L&i ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
January 9, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
POTELCO, INC.; JEFF LAMPMAN, No. 49716-6-II
Appellants,
v.
WASHINGTON STATE DEPARTMENT OF
LABOR AND INDUSTRIES, UNPUBLISHED OPINION
Respondent.
WORSWICK, P.J. — The Department of Labor and Industries issued Potelco Inc. a citation
for violating an electricians and electrical installations regulation. Specifically, the citation
alleged that Potelco failed to comply with WAC 296-46B-901(9)(a), which requires that an
electrical contractor request an inspection after the contractor completes or energizes an
electrical project. The Department also issued a citation to Potelco’s site administrator, Jeff
Lampman, for failing to comply with RCW 19.28.061(5)(b), which requires that a site
administrator ensure all electrical work complies with the electrical laws and rules of the State.
Potelco and Lampman now appeal the superior court’s order affirming the Washington State
Electrical Board’s decision affirming the Department’s citation and penalty assessment.
Potelco and Lampman argue that (1) the Board’s order is not supported by substantial
evidence, (2) Lampman did ensure compliance as required under RCW 19.28.061(5)(b), and (3)
the Board’s affirmation of Lampman’s citation improperly transformed RCW 19.28.061(5)(b)
into a strict liability statute. We affirm the Board’s order.
No. 49716-6-II
FACTS
I. BACKGROUND
The White River School District hired Potelco to replace underground power cables at a
school in Buckley. The project required Potelco to install high-voltage wires between a utility
pole and the school’s transformer. This type of project required a permit from the Department of
Labor and Industries and also required a final inspection by a Department inspector to ensure
compliance with the National Electrical Code and related Washington statutes and Department
regulations.
On July 17, 2013, while Potelco’s crew worked to complete the installation project,
Department inspector John Boespflug was in the area on other business. After seeing a Potelco
truck parked behind the school, Boespflug decided that it would “be a good time to go over [to
the work site].” Clerk’s Papers (CP) at 45. The installation was not complete because the
Potelco crew had not installed connectors to the high-voltage wires to connect them to the
transformer. Boespflug spoke to the linemen at the work site and told them that “everything
looked good.” CP at 583. Potelco’s crew did not energize or complete the project while
Boespflug was at the site, but the crew energized the project the next day.
In October 2013, Boespflug reviewed the Department records to see if Potelco had
requested a final inspection for the project and discovered that Potelco had not. Boespflug then
called Lampman and informed him that Potelco needed to request an inspection for the project.
Potelco then requested a final inspection, and Boespflug later gave final approval on the project.
The Department subsequently issued Potelco a citation for failing to request an inspection
within three business days after completion of the installation or within one day after energizing
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No. 49716-6-II
the project pursuant to WAC 296-46B-901(9)(a).1 The citation included a penalty in the amount
of $250. The Department also issued Lampman, as the administrator, a citation for failing to
ensure that Potelco complied with the electrical laws of Washington State pursuant to
RCW19.28.061(5)(b).2 Lampman’s citation included a penalty in the amount of $100.
II. PROCEDURAL AND ADMINISTRATIVE HISTORY
Potelco and Lampman appealed the citations to the Office of Administrative Hearings
(OAH). The issues before the OAH were whether Potelco failed to request an inspection within
three business days after completion of the installation or one business day after energizing,
whichever occurred first, as required by WAC 296-46B-901(9)(a), and whether Lampman failed
to ensure all electrical work complied with the electrical laws and rules of the State, as required
by RCW19.28.064(5)(b).
An OAH administrative law judge (ALJ) held a hearing on the matter. Boespflug,
Lampman, Potelco manager John Gower, foreman Mark Langberg, and lineman Kevin Hudson,
among others, testified at the hearing. Glen Thomas, an employee of Potelco who had obtained
the initial permit for the project, did not testify.
1
WAC 296-46B-901(9)(a) provides:
(9) Requests for inspections.
(a) Requests for inspections must be made no later than three business days
after completion of the electrical/telecommunications installation or one business
day after any part of the installation has been energized, whichever occurs first.
2
RCW 19.28.061(5)(b) provides:
(5) The designated master electrician or administrator shall:
(b) Ensure that all electrical work complies with the electrical installation
laws and rules of the state.
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No. 49716-6-II
Boespflug testified that he “expected” that the Potelco crew would complete the project
on the day he was at the work site. CP at 583. Boespflug also testified that he told the crew that
they needed to make sure the project was “called in and requested for inspection.” CP at 583.
Boespflug testified that if he had completed an inspection the day he went to the work site, the
permit would have been signed off and the electronic system would reflect that he had conducted
an inspection. Boespflug stated that he did not complete any documentation at the work site the
day he was there because the project was not complete and because he had not received
information as to whether the connectors Potelco was using were appropriate. Boespflug further
testified that he did not know of any statute or regulation that allows a final inspection to be
conducted when a project is “almost completed” and that the law is very specific and required
that a request for inspection be made when the project is complete. CP at 665.
Langberg testified that the project was completed within an hour of Boespflug being at
the work site. Langberg also stated that it was his understanding that Boespflug conducted an
inspection while he was at the site. Langberg testified that he personally did not call in any
inspection but that it was his assumption that Thomas was the person who would have called.
Langberg added that he did not recall if Boespflug informed the crew that they needed to request
an inspection.
Hudson testified that Boespflug told the crew that they could “heat up the wire” which
Hudson interpreted to mean that the crew could energize the wires. CP at 635. Hudson also
testified that he assumed Boespflug was there for an inspection and that he personally did not
call in for the inspection and did not know if anyone else called in for an inspection.
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No. 49716-6-II
Lampman testified as to his role as site administrator, and explained that he was
responsible for ensuring that the company complies with all the rules and regulations of electrical
laws. Lampman stated that he ensures that Potelco complies with electrical laws by offering
training sessions for employees and by forwarding electrical newsletters by e-mail to managers
about rule and regulation changes. Lampman also testified that he reviewed contracts for
Potelco’s projects as part of his duties. Lampman agreed that it was a requirement that an entity
that obtains a permit for electrical work must also request an inspection upon completion of the
work.
Lampman then explained that after a project’s completion, he sometimes requests an
inspection and at other times it is the person who obtained the permit for the project who
requests an inspection. Lampman testified that sometimes he contacts the person who obtained
the permit to get a verbal confirmation that the request for inspection had been made, but at other
times he simply “trust[s]” that the person who obtained the permit also requested final
inspection. CP at 654.
Lampman testified that he spoke with Glen Thomas before the White River School
District project commenced and discussed the need to obtain a permit, which Thomas later
obtained. Lampman was aware that a final inspection would need to be requested. Lampman
did not believe that anyone called the Department requesting an inspection for the project, he did
not know whether Thomas ever requested an inspection for the project, and he never discussed
the request for inspection with Thomas after the project’s completion. Also, Lampman did not
check to see whether a request for inspection was made before Boespflug contacted him in
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No. 49716-6-II
October 2013. Lampman testified that either he or another Potelco employee made a request for
inspection after Boespflug contacted him.
The ALJ entered an order affirming both citations. The ALJ entered the following
findings of fact:
4.9. The electrical work performed by Potelco at the job site was completed on
July 17, 2013.
4.10. The electrical work performed by Potelco at the job site was energized on or
before July 18, 2013.
4.11. As of October 9, 2013, prior to a telephone call from John Boespflug to Jeff
Lampman, no request had been made for a final inspection of the electrical
work performed by Potelco at the job site.
....
4.13. Jeff Lampman has been the electrical administrator for Potelco since 2005.
On August 31, 2010, Mr. Lampman conducted an Electrical Safety
Presentation for Potelco. Mr. Lampman circulates at Potelco the periodic
electrical newsletter produced by the Electrical Division of the Department.
4.14. Generally at Potelco, the person who obtains an electrical permit is
responsible for requesting a final inspection. Sometimes it is the
responsibility of the electrical administrator. The electrical administrator will
usually contact the person who obtained the electrical permit and get a verbal
confirmation that a request for a final inspection request was put in. Other
times, the electrical administrator will trust that the inspection request will be
handled by the person who obtained the electrical permit.
4.15. In the present case, Potelco employee Glen Thomas obtained the permit for
the electrical work performed by Potelco at the job site. Jeff Lampman did
not know whether Mr. Thomas requested a final inspection. Mr. Lampman
did not check to see if an inspection had been requested until after he had been
contacted by John Boespflug on October 9, 2013.
4.16. After being advised on October 9, 2013, that no inspection had been requested
for the electrical work performed by Potelco at the job site, someone at
Potelco requested an inspection. A final inspection took place and no
corrective actions were requested.
CP 553-54. The ALJ entered the following conclusions of law:
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No. 49716-6-II
5.4. In the present case, Potelco completed its electrical work at the job site on
July 17, 2013; the installation was energized no later than July 18, 2013.
Potelco did not request an inspection of the electrical work at the job site until
after October 9, 2013, more than two months after the electrical work was
completed and energized. Therefore, the Department has proven Potelco
failed to request an inspection within three business days after the completion
of the installation or one business day after energizing, whichever occurred
first, which failure was a violation of RCW 19.28.101, as alleged by the
Department in its Non-Compliance Citation No. EMOES00792.[3]
5.6. As electrical administrator, Jeff Lampman was responsible for ensuring all
electrical work performed by Potelco complied with the electrical installation
laws and rules of the state, including requesting inspections within the
required time frames under WAC 296-46B-901(9). In the present case, an
inspection of the electrical work performed by Potelco at the job site was not
requested until more than two months after the work was completed and
energized. Jeff Lampman did not know whether Glen Thomas requested a
final inspection of Potelco’s electrical work at the job site, and Mr. Lampman
did not check to see if final inspection had been requested until after he had
been contacted by John Boespflug on October 9, 2013 Mr. Lampman’s
minimal actions taken to ensure a timely final inspection of Potelco’s
electrical work at the job site were insufficient to ensure the electrical work
by Potelco complied with the electrical installation laws and rules of the state.
Therefore, Mr. Lampman is liable for a failure to ensure all electrical work
done by Potelco at the job site complied with the electrical laws and rules of
the state, which failure was a violation of RCW 19.28.061(5)(b), as alleged
by the Department in its Non-Compliance Citation No. EMOES00793.[4]
5.10. The statutory requirement for strict conformity with applicable statutes and
regulations, the absence of statutory or regulatory language providing for
discretionary enforcement of applicable statutes and regulations, and the
threat to the health, safety and welfare of the general public posed by
unpermitted electrical work, all support the imposition of strict liability for a
3
The OAH’s findings of fact, conclusions of law, and initial order mistakenly noted the citation
number EBOES00792 as citation number EMOES00792. This mistake was rectified by the
Board in its final order.
4
The OAH’s findings of fact, conclusions of law, and initial order mistakenly noted the citation
number EBOES00793 as citation number EMOES00793. This mistake was rectified by the
Board in its final order.
7
No. 49716-6-II
failure to obtain required electrical permits prior to commencing electrical
work.[5]
CP 555-56. The ALJ also concluded that the Department’s imposition of penalties for both
citations was correct.
Potelco and Lampman timely appealed the ALJ’s decision to the Board. Although five
members of the Board considered that Potelco properly requested an inspection, a majority of the
Board, by a vote of 7 to 5, concluded that Potelco did not request a final inspection and that
Lampman did not ensure that Potelco’s work complied with electrical laws. In its final order, the
Board adopted the ALJ’s initial order in major part but struck conclusion of law 5.10 and
adopted the following language:
“The statutory requirement of strict conformity contained in RCW 19.28.010(1)
addresses technical requirements and does not require strict liability for electrical
administrator.”
CP at 789.
Potelco and Lampman then sought review in the Pierce County Superior Court. The
superior court affirmed the Board’s order and concluded that the Board’s findings of fact were
supported by substantial evidence and that the conclusions of law were not erroneous. The
superior court also awarded the Department $200 in statutory attorney fees. Potelco and
Lampman appeal.
5
Although the ALJ’s order mentions “failure to obtain required electrical permits prior to
commencing electrical work,” the order, read in its entirety, is clearly referring to the failure to
request an inspection.
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No. 49716-6-II
ANALYSIS
Potelco and Lampman argue that the Board erred in concluding that Potelco failed to
request an inspection within three days of completing electrical work, or within one day of
energizing electrical lines under WAC 296-46B-901(9)(a). Potelco and Lampman also argue
that the Board erred in concluding that Lampman failed to ensure that all electrical work
complied with electrical installation laws under RCW 19.28.061(5)(b). We disagree with these
arguments and affirm the Board’s order.
I. GENERAL LEGAL PRINCIPLES
Under the Washington Administrative Procedure Act, chapter 34.05 RCW, we directly
review the Board’s decision based on the record before the agency to determine whether
substantial evidence supports the Board’s decision. Pilchuck Contractors, Inc. v. Dep’t of Labor
& Indus., 170 Wn. App. 514, 517, 286 P.3d 383 (2012). Substantial evidence is evidence in
sufficient quantum to persuade a fair-minded person of the truth of the declared premise.
Pilchuck Contractors, 170 Wn. App. at 517. We do not reweigh the evidence. See Harrison
Mem’l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002).
Our review is limited to examining the record to see whether substantial evidence
supports the findings of fact and whether the Board’s conclusions of law flow from these
findings. Nelson v. Washington State Dep’t of Labor & Indus., 175 Wn. App. 718, 723, 308 P.3d
686 (2013). Unchallenged findings of fact are verities on appeal. Mid Mountain Contractors,
Inc. v. Dep’t of Labor & Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006).
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No. 49716-6-II
II. THE BOARD’S FINDINGS OF FACT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
Although Potelco and Lampman argue that the Board’s findings of fact are not supported
by substantial evidence, it appears that they are actually arguing that the Board’s conclusions of
law are not supported by substantial evidence. They argue that because Potelco’s crew
interpreted their conversation with Boespflug to be a request to inspect their final work, they, in
fact, requested an inspection. This argument is unpersuasive. Instead, we apply the appropriate
standard of review and hold that the Board’s findings are supported by substantial evidence and
that the Board’s conclusions of law are supported by those findings.
An appellant must separately assign error to each finding of fact he challenges on appeal
and must identify each challenged finding by number. RAP 10.3(g)-(h). Liberally interpreting
RAP 10.3, we may in our discretion review findings to which the appellant fails to properly
assign error as long as the appellant has identified those findings and the nature of his challenges
to them elsewhere in the brief. See Bircumshaw v. State, 194 Wn. App. 176, 198-99, 380 P.3d
524 (2016).
Here, Potelco and Lampman fail to expressly assign error to any findings of fact, which
begin at paragraph 4.1 and end at paragraph 4.16 of the initial order. Rather, Potelco and
Lampman assign error to paragraphs 2.1 and 2.2 of the summary section of the initial order.
However, we exercise our discretion to review the statements contained in these summaries as
findings of fact. See Bircumshaw, 194 Wn. App. at 198-99. Paragraph 2.1 states:
2.1. Potelco failed to request an inspection within three business days after the
completion of the installation or one business day after energizing, whichever
occurred first, as alleged by the Department in its Non-Compliance Citation
No. EMOES00792, and therefore is liable for a civil monetary penalty in the
amount of $250.00 based upon that citation.
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No. 49716-6-II
CP at 155. Paragraph 2.2 states:
2.2. Jeff Lampman failed to ensure all electrical work complied with the electrical
laws and rules of the state, as alleged by the Department in its Non-
Compliance Citation No. EMOES00793, and therefore is liable for a civil
monetary penalty in the amount of $100.00 based upon that citation.
CP at 156.
Regarding paragraph 2.1, substantial evidence exists to support the finding that “Potelco
failed to request an inspection within three business days after the completion of the installation
or one business day after energizing, whichever occurred first.” The record shows that no
Potelco employee made a request for inspection at any time prior to October 9, 2013, when
inspector Boespflug contacted Lampman for failing to request an inspection. Boespflug testified
that he did not conduct an inspection while he was present at the work site and that no employee
requested an inspection while he was at the work site. Further, Lampman testified that he or
another employee requested an inspection only after Boespflug had contacted him in October
2013. Thus, the Board’s finding in paragraph 2.1 is supported by evidence sufficient to persuade
a fair-minded person of the truth or correctness of the finding. See Pilchuck Contractors, 170
Wn. App. at 517.
Regarding paragraph 2.2, substantial evidence exists to support the finding that “Jeff
Lampman failed to ensure all electrical work complied with the electrical laws and rules of the
state.” Lampman testified that after a project’s completion, he sometimes requests an inspection
and at other times the person who obtained the permit for the project requests the inspection.
Lampman also testified that sometimes he contacts the person who obtained the permit to get a
verbal confirmation that the request for inspection had been made, but at other times he simply
“trusts” that the person who obtained the permit also requested final inspection.
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No. 49716-6-II
As to the specific project at issue, Lampman testified that he was aware that a final
inspection would need to be requested. Lampman also testified that he did not believe that
anyone called the Department requesting an inspection, he did not know whether Glen Thomas
ever requested an inspection, and he never discussed the request for inspection with Thomas
after the project’s completion. Lampman further testified that he did not check to see whether a
request for inspection was made before Boespflug contacted him in October 2013. This
evidence is sufficient to persuade a fair-minded person of the truth of the finding that Lampman
did not ensure that all electrical work complied with the applicable laws and rules of the State.
Thus, sufficient evidence supports the Board’s finding.
Evidence exists in a sufficient quantum to persuade a fair-minded person of the truth of
the challenged findings. Thus, Potelco and Lampman’s challenges to the findings of fact fail.
III. THE BOARD’S CONCLUSIONS OF LAW ARE CORRECT AND ARE SUPPORTED BY THE
FINDINGS OF FACT
Potelco and Lampman argue that the Board erred in adopting conclusion of law 5.4.,
which states that Potelco failed to request an inspection under WAC 296-46B-901(9)(a). Potelco
and Lampman also argue the Board erred in adopting conclusion of law 5.6., which states that
Lampman did not fulfill his duties as required under RCW 19.28.061(5)(b). We disagree.
A. Legal Principles
We review the Board’s conclusions of law de novo. Whatcom Cty. v. Hirst, 186 Wn.2d
648, 667, 381 P.3d 1 (2016). An appellant is entitled to relief if the Board erroneously
interpreted or applied the law, if the conclusions are not supported by the findings, or if the
decision is inconsistent with an agency rule. Clausing v. State, 90 Wn. App. 863, 870, 955 P.2d
394, review denied, 136 Wn.2d 1020 (1998). We give substantial weight to an agency’s
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No. 49716-6-II
interpretation of regulations and statutes within its area of expertise and we uphold that
interpretation if it is a plausible construction of the regulation and not contrary to legislative
intent. J&S Servs., Inc. v. Dep’t of Labor & Indus., 142 Wn. App. 502, 506, 174 P.3d 1190(2007).
In determining legislative intent, we first examine the plain language of the statute or
regulation. State v. K.L.B., 180 Wn.2d 735, 739, 328 P.3d 886 (2014). If a statute or regulation
is unambiguous, meaning it is subject to only one reasonable interpretation, our inquiry ends.
K.L.B., 180 Wn.2d at 739. We determine the plain language of the statute or regulation from the
ordinary meaning of the language, the general context of the statute or regulation, the related
provisions, and the statutory or regulatory scheme as a whole. State v. Budik, 173 Wn.2d 727,
733, 272 P.3d 816 (2012). We may consult a dictionary to determine the plain meaning of an
undefined term. HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297(2009). Where a term is not defined in a statute, it is presumed that the legislature intended it to
mean what it did at common law. State v. Torres, 151 Wn. App. 378, 384, 212 P.3d 573 (2009).
An ambiguity exists if there is more than one reasonable interpretation of the regulation.
Columbia Physical Therapy, Inc. v. Benton Franklin Orthopedic Assocs., 168 Wn.2d 421, 433,
228 P.3d 1260 (2010).
B. Potelco Failed To Request Final Inspection Under WAC 296-46B-901(9)(a)
Without expressly asserting that the Board incorrectly interpreted WAC 296-46b-
901(9)(a), Potelco and Lampman argue that the regulation provides no guidance on the method
or procedure for requesting an inspection and that the regulation only requires that a request for
inspection be made within a certain time frame. We hold that under the regulation’s plain
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No. 49716-6-II
language, a request for a final inspection is valid if made only after a project is energized or is
completed.6
The purpose of chapter 19.28 RCW is to safeguard the public from dangerous electrical
installations and unscrupulous electrical contractors. Nat’l Elec. Contractors Ass’n, Cascade
Chapter v. Riveland, 138 Wn.2d 9, 17, 978 P.2d 481 (1999). When certain electrical work is
conducted, installers must comply with WAC 296-46B-901(9)(a). That regulation provides:
(9) Requests for inspections.
(a) Requests for inspections must be made no later than three business days
after completion of the electrical/telecommunications installation or one business
day after any part of the installation has been energized, whichever occurs first.
WAC 296-46B-901(9)(a). The plain language of the provision states that a request for
inspection must be after one of the two triggering events occurs. Webster’s defines “after” as
“later than a particular time or period of time: following the expiration of.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY at 38 (2002).
The use of the word “after” in the regulation means that a request for inspection must
occur following either the completion of the project or the energizing of the project. WAC 296-
46B-901(9)(a). Therefore, to find that Potelco committed the infraction, the Department had to
6
Potelco and Lampman argue, for the first time in their reply brief, that a reasonable
interpretation of the regulation simply requires that the work site be inspected upon completion
of the project and that here, Potelco properly requested an inspection because Boespflug
inspected the work site as the crew was completing the project. We do not consider issues
argued for the first time in the reply brief. Ainsworth v. Progressive Cas. Ins. Co., 180 Wn. App.
52, 78 n.20, 322 P.3d 6 (2014). Even if we were to consider it, this argument in not persuasive.
As discussed below, the regulation plainly requires that a request for inspection must be made
“after” completion of the project. The plain language of the statute does not support the
interpretation that a request for inspection can be made prior to completion or prior to energizing
the project.
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No. 49716-6-II
establish that Potelco failed to request an inspection no later than three days following the
completion of the project or within one day following the project becoming energized. See
WAC 296-46B-901(9)(a). WAC 296-46B-901(9)(a) is not ambiguous and there is no need for
judicial interpretation beyond its plain language.
Here, the Board correctly interpreted the regulation as requiring Potelco to request an
inspection following either the completion or energizing of the project. It is clear from findings
of fact that Potelco made no request for an inspection following the completion of the project or
after the project became energized. Consequently, the Board’s findings support its conclusion
that Potelco failed to request an inspection as required in WAC 296-46B-901(9)(a).
Potelco and Lampman make additional arguments regarding the validity of their request
for inspection. They argue that because Potelco’s crew interpreted the conversation with
Boespflug as a request to inspect their final work, that Potelco properly requested an inspection
as required by WAC 296-46B-901(9)(a). But this case does not turn on Potelco’s crew’s
subjective understanding of their conversations with Boespflug.
Here, while the Potelco crew may have believed that their conversations with Boespflug
constituted a request for inspection, WAC 296-46B-901(9)(a) requires that a request for
inspection be made within three days after completion of a project or within one day of
energizing a project. The conversations between the Potelco crew members and Boespflug took
place before completion and before energization of the project. The Board found that Potelco
made no request for inspection until over two months after Potelco’s crew completed and
energized the project. Accordingly, Potelco and Lampman’s argument that the crew’s belief that
its conversations with Boespflug constituted a request for inspection fails.
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Potelco and Lampman further assert that five members of the Board agreed that Potelco
made a final request for inspection under the circumstances present in this case. However, the
fact that the Board’s decision was not unanimous has no bearing on our review. See Snohomish
Cty. v. Hinds, 61 Wn. App. 371, 384, 810 P.2d 84, 90 (1991) (holding that isolated comments by
individual board members do not invalidate a board’s factual findings so long as those findings
are supported by substantial evidence). The Board determined that Potelco did not make a
request for inspection after the project was completed or after it was energized as required under
WAC 296-46B-901(9)(a). That conclusion is supported by the findings of fact. It is of no
consequence that some individual board members had a differing opinion.
WAC 296-46B-901(9)(a) is not ambiguous, and the Board correctly interpreted its
meaning. The Board’s interpretation is plausible and consistent with the legislative purpose to
safeguard the public from dangerous electrical installations. See J&S Servs., Inc., 142 Wn. at
506; see also Nat’l Elec. Contractors, 138 Wn.2d at 17. The Board’s findings of fact support its
conclusion that Potelco failed to request an inspection within three days after the installation was
completed or within one day after the installation became energized. Accordingly, the Board
properly interpreted and applied WAC 296-46B-901(9)(a) in affirming the Department’s citation
issued to Potelco.
C. Lampman Failed To Ensure Compliance Under RCW 19.28.064(5)(b)
Potelco and Lampman also argue that Lampman took all reasonable steps to ensure
Potelco’s compliance with electrical rules, and therefore, the Board erred in affirming the
Department’s citation against Jeff Lampman for failing to ensure that all electrical work
complied with electrical installation laws. This argument suggests that the Board misinterpreted
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No. 49716-6-II
RCW 19.28.061(5)(b) in concluding that Lampman failed to ensure that Potelco complied with
electrical law. We hold that the Board correctly interpreted and applied RCW 19.28.061(5)(b) in
this case.
The statute provides:
(5) The designated master electrician or administrator shall:
(b) Ensure that all electrical work complies with the electrical installation
laws and rules of the state.
RCW 19.28.061(5)(b).
This statute is unambiguous and its meaning is readily apparent from its language.
“Ensure” is not defined in chapter 19.28. Nor have Washington cases interpreted the meaning of
“ensure” for purposes of RCW 19.28.061(5)(b). Webster’s defines “ensure” as “to make sure,
certain, safe: Guarantee.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 756 (2002).
Webster’s defines “certain” as “given to or marked by complete assurance and conviction, lack
of doubt, reservation, suspicion, or wavering through, or as if through infallible knowledge or
perception.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 367 (2002).
From these definitions, it follows then that, a site administrator must make certain that all
electrical work complies with the electrical installation laws and rules of the State. It then also
follows that a site administrator must make sure and make certain that a request for inspection is
made as required by WAC 296-46B-901(9)(a), being that WAC 296-46B-901(9)(a) is an
electrical law of this state.
Here, the Board concluded that Lampman, as the electrical administrator, was responsible
for ensuring all electrical work performed by Potelco complied with the electrical installation
laws and rules. The Board’s findings support its conclusion.
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No. 49716-6-II
The Board found that Lampman did not know whether Glen Thomas requested a final
inspection and that Lampman did not check to see if a final inspection had been requested until
after Boesfplug contacted him in October 2013. The Board also found that Lampman took
“minimal actions” to ensure that the electrical work complied with electrical laws. CP at 159.
Consequently, the Board’s findings support the Board’s conclusion that Lampman did not make
sure or provide complete assurance that Potelco complied with the specific electrical law
requiring Potelco to request an inspection after completing or after energizing the project.
Potelco and Lampman make additional arguments regarding Lampman’s duties under
RCW 19.28.061(5)(b). Potelco and Lampman argue that Lampman fulfilled his duty to ensure
compliance with electrical laws under RCW 19.28.061(5)(b) because he conducted electrical
safety presentations, instructed employees to follow electrical laws, provided compliance
training, reminded employees through e-mails and online updates of compliance requirements,
and reviewed contracts. Although Lampman made some efforts to ensure that Potelco complied
with electrical laws, under the plain meaning of the statute, the term “ensure” does not mean that
a site administrator fulfills his duty to make certain that all electrical work complies with
electrical laws by giving presentations and trainings, or sending e-mail updates. Thus, this
argument fails.
The Board correctly interpreted RCW 19.28.061(5)(b). The Board’s interpretation is
plausible and consistent with the legislative purpose to safeguard the public from dangerous
electrical installations. See J&S Servs., Inc., 142 Wn. at 506; see also Nat’l Elec. Contractors,
138 Wn.2d at 17. The Board’s findings of fact support the Board’s conclusion that Lampman
did not ensure compliance with electrical laws as required by RCW 19.28.061(5)(b).
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No. 49716-6-II
Accordingly, we hold that the Board properly interpreted and applied RCW 19.28.061(5)(b) in
affirming the Department’s citation issued to Lampman.7
IV. UPHOLDING LAMPMAN’S CITATION DID NOT SUBJECT HIM TO STRICT LIABILITY
Potelco and Lampman also argue that the Board’s conclusion that Lampman failed to
ensure that Potelco’s work complied with electrical laws improperly subjected Lampman to strict
liability for all mistakes made on work sites and that the legislative history of the statute does not
support holding a site administrator strictly liable for the mistakes of other employees. We
disagree.
To support their argument, Potelco and Lampman cite only criminal cases in what
appears to be an attempt to show that the Board’s decision to affirm Lampman’s citation unfairly
subjects a site administrator to strict liability for all mistakes, even those made by other
employees. Potelco and Lampman’s arguments misconstrue the Board’s order.
Here, the Board explicitly determined that RCW 19.28.061(5)(b) was not to be
interpreted as a strict liability statute. After its review of the ALJ’s initial order, which
concluded that RCW 19.28.061(5)(b) did act as a strict liability statute, the Board struck that
conclusion and adopted the following language:
The statutory requirement of strict conformity contained in RCW 19.28.010(1)
addresses technical requirements and does not require strict liability for electrical
administrators.
7
Potelco and Lampman also contest the Board’s conclusions 5.11-5.15 as to penalties but make
no argument as to how the Board erred in imposing the penalties. We therefore do not address
this argument. See West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012)
(holding that courts will not consider conclusory arguments that do not cite factual and legal
authority).
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No. 49716-6-II
CP at 789. Therefore, the Board did not interpret or apply RCW 19.28.061(5)(b) as imposing
strict liability on Lampman for the mistakes of other employees. Rather, the Board, under the
specific facts of this case, held Lampman liable for his own failure in ensuring that Potelco’s
electrical work complied with all electrical laws, namely requesting an inspection, as he was
required to do as a site administrator under RCW 19.28.061(5)(b).
Because the Board upheld Lampman’s citation due to his minimal actions to ensure
Potelco’s compliance with electrical installation laws, the Board did not improperly interpret or
apply RCW19.28.061 as a strict liability statute. Accordingly, we hold that Potelco and
Lampman’s strict liability arguments fail.
V. STATUTORY ATTORNEY FEES
The superior court awarded the Department, as the prevailing party $200 in statutory
attorney fees. Potelco and Lampman assert that the superior court erred in granting statutory
attorney fees, but they do not provide any argument as to how the court erred in granting the
fees. RCW 4.84.0308 allows the superior court to award costs to the prevailing party, and under
RCW 4.84.080,9 those costs include a nominal statutory attorney fee award of $200. The record
8
RCW 4.84.030 provides:
In any action in the superior court of Washington the prevailing party shall be
entitled to his or her costs and disbursements; but the plaintiff shall in no case be
entitled to costs taxed as attorneys’ fees in actions within the jurisdiction of the
district court when commenced in the superior court.
9
RCW 4.84.080 provides:
When allowed to either party, costs to be called the attorney fee, shall be as follows:
(1) In all actions where judgment is rendered, two hundred dollars.
(2) In all actions where judgment is rendered in the supreme court or the
court of appeals, after argument, two hundred dollars.
20
No. 49716-6-II
shows that the Department was the prevailing party below. Thus, we affirm the superior court’s
award of costs in the form of statutory attorney fees to the Department.
We affirm the Board’s order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Lee, J.
Sutton, J.
21