Eric Rootvik v. Dept Of Labor And Industries ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ERIC ROOTVIK,
No. 73828-3-
Petitioner,
DIVISION ONE
UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent. FILED: January 17, 2017
Appelwick, J. ~ Rootvik seeks discretionary review of an infraction and
penalty for advertising his closet system services without first registering as a
contractor under RCW 18.27.010, .020, and .200(1 )(a). We deny discretionary
review.
FACTS
In October 2013, the Department of Labor and Industries (Department)
learned that Rootvik, operating under the business name "Eric the Closet Guy,"
had posted custom closet ads online without registering as a contractor. In a
Craigslist ad, Rootvik stated in part:
I have been building customer closet[s] for homes all over the
Seattle area.
Unlike most of my competitors, I actually have the skill and
resources to create a one of a kind closet organization system for
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you. Equally important and often overlooked would be the
engineering of your cabinetry. After all, I would think the second
most important thing would be never having the need to call me
unless you are looking for more closet work in other areas. In other
words, you will never need to call me back on warranty.
[I] cannot wait to hear from you.
The ad had a reply button that allowed consumers to respond directly to Rootvik.
Department Inspector Terri Zenker clicked on a link in the Craigslist ad
that said "Visit Eric the Closet Guy." This took her to Rootvik's business website,
www.erictheclosetguy.com. A photograph on that website showed a large walk-
in closet with tall shelving units, cabinets, and a central island with drawers. The
homepage described Rootvik's work as "Custom Closets, Closet Shelving, Home
Office, Pantry Shelving." Under the "About Us" tab, Rootvik stated,
I have many years of remodeling and remodeling related business
experience starting in 1980. . . .
I specialize in custom one of a kind closet systems, office spaces,
pantries, storage shelves, and garage systems for a very
competitive price. No one beats my quality. Additionally, my many
years of experience in the remodeling industry has taught me a
great many lessons about the correct way to install things.
The website also stated that Rootvik's business was "featured on houzz,"
a business promotional website. On www.houzz.com, Rootvik said that "more
and more I'm being asked to put my custom carpentry and artisan design abilities
to work in closets that are more elaborate. As a result, I am inspired by many
styles from French design to contemporary, utilizing green materials and LED
[(light-emitting diode)] lighting."
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Zenker also viewed Mr. Rootvik's Linkedln1 profile. It stated that he
"designs, engineers, and installs custom closet systems" and had "greatly
reduc[ed] call-backs compared to his competitors."
Zenker informed Rootvik that under RCW 18.27.200(1) (a)2, he needed to
register as a contractor to advertise his services. Rootvik told her he was exempt
from registration under RCW 18.27.090(5).3 The Department disagreed and
issued him an infraction and a $1,000 penalty. Rootvik filed an administrative
appeal.
At the administrative hearing, Rootvik testified that he uses vertical and
horizontal panels of different widths and lengths in his closet shelving work. A
single 84-inch vertical partition can weigh between 12 and 30 pounds. To install
1www.linkedin.com is a business and employment oriented social
networking service that operates via a website.
2 RCW 18.27.200(1) provides in part:
It is a violation of this chapter and an infraction for any contractor
to:
(a) Advertise, offer to do work ... or perform any work as
a contractor without being registered as required by this chapter.
3 RCW 18.27.090(5) provides:
The registration provisions of this chapter do not apply to:
(5) The sale of any finished products, materials, or articles of
merchandise that are not fabricated into and do not become a part
of a structure under the common law of fixtures.
No. 73828-3-1/4
these, Rootvik installs a hang rail, securing it to the wall studs with drywall
screws. He then hangs the closet panels on the rail and installs the shelves,
which are fit to length, in the closet panels. He warrants his work and does
repairs if requested.
The administrative law judge (ALJ) ruled that Rootvik's advertised services
came within the definition of contractor in RCW 18.27.010 and the specialty
contractor classification for closets under WAC 296-200A-016(7). Having
concluded that Rootvik's services came within the definition of a contractor, the
ALJ concluded he violated RCW 18.27.200(1 )(a) when he advertised those
services without registering. The ALJ's decision stated in part:
6.11 .... The actions Mr. Rootvik offers to perform, the installation
of custom closet systems that hang from a rail that is screwed
into wall studs, comes within the definition of "contractor" as
set forth in RCW 18.27.010. The removability of Mr. Rootvik's
custom closet systems does not alter the nature of the work
performed to install them in the first place. ...
6.12. RCW 18.27.090(5) exempts from contractor registration
requirements], the sale of any finished products, materials, or
articles of merchandise that are not fabricated into and do not
become a part of a structure under the common law of
fixtures. However, because the work performed by Mr.
Rootvik includes the installation of closet systems, the current
statutory exemption for the sale does not apply to Mr.
Rootvik's work. . . . The former statutory exemption ... for
the installation of any finished products, materials, or articles
of merchandise that are not fabricated into and do not
become a part of a structure under the common law of
fixtures, was removed by the legislature in 2007 (Laws of
2007, Chapter 436, Section 6), thereby evidencing a clear
legislative intent that such installation work not be exempted
from contractor registration requirements.
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The ALJ affirmed the infraction and penalty. Rootvik appealed to superior court,
which affirmed.
Rootvik then filed a notice of discretionary review in this court. He also
filed a "Request for appointment of counsel and ADA[, 42 U.S.C. §§ 12101-
12213,] accommodations" in the Washington State Supreme Court. The
Supreme Court denied Rootvik's request "because [his] claim that he has a
disability . . . was not substantiated and the record suggests that [he] has a
capacity to present his case . . . that is equal to the capacity and opportunity of
pro se appellants without disabilities."
In June 2016, this court returned Rootvik's opening brief for failure to
comply with the Rules of Appellate Procedure. We directed Rootvik to file a
corrected brief in compliance with an enclosed checklist.
In July 2016, Rootvik filed an opening brief with a motion "to deviate from
the standard briefing format." A commissioner of this court denied the motion,
stating in part that Rootvik
appears to disagree with the Supreme Court's decision denying his
request for accommodations ....
The appellant's brief filed on July 19, 2006 is accepted as his
opening brief. However, this does not mean that this Court will
disregard any deficiency in the content of the brief."
(Emphasis added.) Rootvik moved to modify this ruling and a panel of this court
denied the motion.
No. 73828-3-1/6
STANDARDS OF REVIEW
By statute, Rootvik's infraction and penalty are reviewable only via
discretionary review under RAP 2.3. RCW 18.27.310(4) ("The decision of the
superior court is subject only to discretionary review pursuant to Rule 2.3 of the
Rules of Appellate Procedure"); Dep't of Labor & Indus, v. Davison. 126 Wn.
App. 730, 735, 109 P.3d 479 (2005). Rootvik contends discretionary review is
warranted under RAP 2.3(b) and (d).
Under RAP 2.3(b), this court accepts discretionary review in the following
circumstances:
(1) The superior court has committed an obvious error
which would render further proceedings useless;
(2) The superior court has committed probable error and
the decision of the superior court substantially alters the status quo
or substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such a departure by an inferior court or administrative
agency, as to call for review by the appellate court.
(4) The superior court has certified, or all the parties to
the litigation have stipulated, that the order involves a controlling
question of law as to which there is substantial ground for a
difference of opinion and that immediate review of the order may
materially advance the ultimate termination of the litigation.
RAP 2.3(b) (emphasis added). Subsection (3) is arguably applicable here. RAP
2.3(d), on the other hand, is arguably not applicable since it expressly applies
only to "review of a superior court decision in a proceeding to review a decision
No. 73828-3-1/7
of a court of limited jurisdiction."4 A court of limited jurisdiction is a "court organized
under Titles 3, 35, or 35A RCW." RCW 3.02.010.
In reviewing an administrative action, we sit in the same position as the
superior court and review the administrative law judge's decision under the
Administrative Procedure Act, chapter 34.05 RCW. Davison, 126 Wash. App. at
737. Because Rootvik has not assigned error to the ALJ's findings, they are
verities on review. Mercer Island Sch. Dist. v. Office of the Superintendent of
Pub. Instruction, 186 Wash. App. 939, 960, 347 P.3d 924, review denied. 184
Wash. 2d 1024, 361 P.3d 746 (2015).
DISCUSSION
Our review is governed by Rules of Appellate Procedure (RAP) and
substantive law that apply equally to litigants represented by counsel and those
who proceed pro se. Westberg v. All-Purpose Structures. 86 Wash. App. 405, 411, 936
P.2d 1175 (1997) ("[P]ro se litigants are bound by the same rules of procedure and
substantive law as attorneys."). Failure to comply with these rules can preclude
4 RAP 2.3(d) allows review of "a decision of a court of limited jurisdiction":
(1) If the decision of the superior court is in conflict with a
decision of the Court of Appeals or the Supreme Court; or
(2) If a significant question of law under the Constitution
of the State of Washington or of the United States is involved; or
(3) If the decision involves an issue of public interest
which should be determined by an appellate court; or
(4) If the superior court has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such a departure by the court of limited jurisdiction, as
to call for review by the appellate court.
No. 73828-3-1/8
appellate review. State v. Marintorres. 93 Wash. App. 442, 452, 969 P.2d 501
(1999) (declining to consider arguments where pro se brief did not comply with
RAP); Atkinson v. Estate of Hook. 193 Wash. App. 862, 873, 374 P.3d 215, review
denied sub nom. In re Estate of Hook. 186 Wash. 2d 1014, 380 P.3d 483 (2016)
(declining to address discretionary review where parties did not discuss RAP
2.3(b)).
Despite this court's repeated warnings regarding deficiencies in Rootvik's
briefing, his briefs in support of discretionary review violate a number of rules and
principles of review. His opening brief contains no statement of the case as
required by RAP 17.3(b)(5). Many of his contentions lack citation to pertinent
authority or references to the record and thus need not be considered. RAP
17.3(b)(3)-(6); see Cowiche Canyon Conservancy v. Boslev. 118 Wash. 2d 801,
809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. Elliott,
114 Wash. 2d 6, 15, 785 P.2d 440 (1990) (insufficient argument); Saunders v.
Lloyd's of London. 113 Wash. 2d 330, 345, 779 P.2d 249 (1989) (issues
unsupported by adequate argument and authority); State v. Camarillo, 54 Wn.
App. 821, 829, 776 P.2d 176 (1989) (references to the record), aff'd by. 115
Wash. 2d 60, 794 P.2d 850 (1990). And, while Rootvik recognizes his burden to
establish grounds for discretionary review under RAP 2.3, he fails to explain how
any of the criteria in the rule are satisfied. Taken together, these deficiencies are
fatal to his motion for discretionary review. A review of his main arguments
supports this conclusion.
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No. 73828-3-1/9
Rootvik's principal argument is that the ALJ's statutory interpretation
conflicts with the decision in Davison. But, as discussed below, Davison is
distinguishable and Rootvik fails to support his interpretation of the statutes and
their post-Davison amendments with adequate analysis or authority.
In Davison, an ALJ concluded that a custom cabinet maker's manufacture
and installation activities were exempt from contractor registration requirements.
126 Wash. App. at 732-33. The superior court reversed, but the Court of Appeals
reversed the superior court and affirmed the ALJ. Id at 741. Applying former
RCW 18.27.090(5) (2003), the court concluded that "substantial evidence
supported the ALJ's finding that the cabinets were not permanently secured to
the homeowner's walls and that therefore [appellant] was exempt from contractor
registration requirements." Id. at 733.
The version of RCW 18.27.090(5) applied in Davison, however, exempted
"[t]he sale or installation of any finished products, materials or articles of
merchandise that are not actually fabricated into and do not become a
permanent fixed part of a structure." Former RCW 18.27.090(5) (Laws of 2003,
ch. 399, § 401) (emphasis added). Following Davison, the legislature removed
the words "or installation" from the exemption statute. Laws of 2007, ch. 436, §
6. At the same time, the legislature added the words "cabinet or other similar
installation" to the statutory definition of "contractor." Former RCW 18.27.010(1)
(Laws of 2007, ch. 436, § 1) ("Contractor includes any person, firm . . . or other
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No. 73828-3-1/10
entity who or which . . . offers to undertake . . . to . . . add to [or] improve . . . any
building .. . including . . . cabinet or similar installation." (emphasis in original)).
The Department argues, and the ALJ and superior court agreed, that the
2007 amendments demonstrated a legislative intent to remove the contractor
registration exemption for installation of products like Rootvik's. In support of its
position, the Department provides a thorough analysis of the statutes, including
the definition of "contractor" in RCW 18.27.010(1), the purposes of the
registration statutes as expressed in RCW 18.27.140, the specialty contractor
regulation applicable to closet work, WAC 296-200A-016(7), and the statute
containing exemptions to the contractor registration requirements, RCW
18.27.090(5). Although Rootvik disagrees with the Department's and the ALJ's
reasoning, he neither cites nor adequately applies the relevant rules of statutory
construction. He thus fails to carry his burden of demonstrating that the ALJ's
statutory interpretation warrants discretionary review.
For the first time on appeal, Rootvik contends RCW 18.27.310(2)
unconstitutionally shifts the burden of proof in proceedings under chapter 18.27
RCW. But, this court does not review constitutional errors raised for the first time
on appeal absent a showing of "manifest" error affecting a constitutional right.
RAP 2.5(a). This requires the appellant to identify a constitutional error and
demonstrate actual prejudice. State v. McFarland, 127 Wash. 2d 322, 333, 899
P.2d 1251 (1995). It is the appellant's burden to demonstrate a basis for review
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No. 73828-3-1/11
under RAP 2.5(a). State v. Grimes, 165 Wash. App. 172, 185-86, 267 P.3d 454
(2011). Rootvik's opening brief makes no mention of RAP 2.5(a) and fails to
demonstrate actual prejudice. He thus fails to carry his burden.
For the first time in his reply brief, Rootvik argues, without citation to
relevant authority, that the proceedings below were quasi-criminal and that "[a]s
soon as I said I was exempt ... I negated the charge and the burden shifted
back to the department." These arguments fail because they are raised for the
first time in a reply brief, are not supported by authority, and are insufficiently
argued. Cowiche Canyon. 118 Wash. 2d at 809 (court need not consider
arguments raised for first time in reply brief); Peste v. Mason County, 133 Wn.
App. 456, 469 n.10, 136 P.3d 140 (2006) (we do not address constitutional
arguments that are not supported by adequate briefing); City of Spokane v.
Taxpayers of City of Spokane. 111 Wash. 2d 91, 96, 758 P.2d 480 (1988)
("Constitutional arguments should not be addressed when they have not been
adequately briefed.").
Rootvik also contends that the Department failed to establish jurisdiction
because it did not prove that the internet server containing his webpage was
located in Washington State. But, he cites no statutes or pertinent case authority
supporting his assertions regarding jurisdiction in general, or his claim regarding
server location in particular. We decline to consider his claim.
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No. 73828-3-1/12
Finally, Rootvik challenges the ALJ's alternative holding that he also
qualifies as a contractor under the "closet" specialty defined in WAC 296-200A-
016(7). The regulation states that "[a] contractor in this specialty installs, repairs,
and maintains the lateral or horizontal shelving systems, racks, rails, or drawers
involved in a closet or storage system." WAC 296-200A-016(7). Although
Rootvik claims no evidence showed that he repairs and maintains his closet
systems, the record belies his claim. As the Department notes, there was
evidence that Rootvik warranties his work and claims to have reduced "call
backs" compared to competitors.
We decline to consider the other arguments raised for the first time in
Rootvik's reply brief.
Review is denied.
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