Marysville Taping Co. v. Department Of Labor & Industries ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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MARYSVILLE TAPING COMPANY, No. 69735-8-1 2 —♦<=
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Appellant,
"T1_ ' Tl
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CO ".l-ci
DEPARTMENT OF LABOR UNPUBLISHED OPINION
—133 Wash. App. 403, 411, 136 P.3d 760 (2006). The
Board both possessed and exercised its authority to enter findings of fact. See
RCW 34.05.464(4); RCW 19.28.131: Tapper v. State Emp't Sec. Dep't, 122Wn.2d397,
405-06, 858 P.2d 494 (1993).
5 Macevv. Dep't of Emp't Sec. 110 Wash. 2d 308, 313, 752 P.2d 372 (1988).
No. 69735-8-1/5
doing the electrical installation hold themselves out as engaged in the
trade or business of electrical installations.
As a threshold matter, MTC argues that because the Department raised the
householder exemption in earlier proceedings, it is estopped from arguing that the
exemption is inapplicable. We disagree. The Department raised the householder
exemption below, but has argued from the outset that the exemption does not apply in
these circumstances.
The householder exemption is expressly limited to RCW 19.28.161-.271 and
does not shield a householder or an assistant for violating RCW 19.28.010, which
requires all electrical installations to conform with the applicable laws, regulations, and
approved methods of construction for safety to life and property. MTC does not dispute
that its work did not conform to these standards. Accordingly, the householder
exemption does not apply to citation EMUTR00587 issued for violation of
RCW 19.28.010.
As to the two remaining citations, MTC does not establish that the householder
exemption applies to MTC. Because "householder" is not defined by statute, we discern
the statute's plain meaning from the ordinary meaning of the language used, the context
ofthe statutory provision, related provisions, and the statutory scheme as a whole.6
MTC asserts that Gilbertson was a householder because he owned the
residence and purportedly intended to live there. But MTC failed to obtain any finding
that Gilbertson occupied or dwelled in this particular house or that he intended to live
there. And the record supports the determination that he did not. The ALJ's undisputed
6 State v. Engel. 166 Wash. 2d 572, 578, 210 P.3d 1007 (2009).
No. 69735-8-1/6
findings state that "the citations at issue emanated from work done at a residential
property . . . owned by Gilbertson Construction."7 This unchallenged finding indicates
that Gilbertson's general contracting business owned the site, not Gilbertson
individually. The record also includes permit applications in which Gilbertson listed a
different address as his residence.
The Department cites dictionary definitions that a "householder" is one who
"occupies a house . . . alone or as the head of a household."8 MTC provides no
contrary definition. The Department argues that "householder" in RCW 19.28.261(6)
must be distinguishable from an "owner" as used in a related subsection,
RCW 19.28.261(1). RCW 19.28.261(1) exempts from permit and license requirements
certain work performed at a person's "residence or farm or place of business or on other
property owned by him or her." RCW 19.28.261(1) repeatedly refers to such a person
as "the owner." MTC cites no rule of construction or authority rebutting the
Department's argument.
Further, even assuming Gilbertson was a "householder," MTC was hired as a
subcontractor to perform paid work under contract and was not a "friend, relative,
neighbor, or other person" assisting a householder as contemplated by the statutory
exemption. Under the ejusdem generis rule,9 the phrase "or other person" must be read
7 Clerk's Papers at 104 (emphasis added).
8 Appellant's Br. at 22 (emphasis omitted).
9 City of Seattle v. State. 136 Wash. 2d 693, 699, 965 P.2d 619 (1998) ("The
ejusdem generis rule requires that general terms appearing in a statute in connection
with specific terms are to be given meaning and effect only to the extent that the general
terms suggest items similar to those designated by the specific terms.'") (quoting Dean
v. McFarland. 81 Wash. 2d 215, 221, 500 P.2d 1244 (1972)).
No. 69735-8-1/7
consistently with the more specific preceding words, "friend, neighbor, relative," to mean
a person with an analogous relationship to the householder. A subcontractor paid to
perform work for a general contractor is significantly different from a friend, relative or
neighbor helping out. MTC cites no authority or rule of construction supporting a
contrary interpretation.
In context, the exemption recognizes a householder's private interest in
performing work on their own residence. Exempting work by subcontractors on property
owned by general contractors would raise the risk of hazardous electrical installations
on new home construction sites. This is inconsistent with the obvious intent underlying
the statutes: to protect the public and workers, including unlicensed subcontractor
employees pressured to install electrical equipment.
The trial court's conclusion that MTC committed the violations and that the
householder exemption did not apply is consistent with the plain meaning of the statutes
and is amply supported by the undisputed factual findings.
MTC's assertion that it did not conduct an "electrical installation" is not
persuasive. "[Installation" is defined in WAC 296-46B-100(37) as "the act of installing,
connecting, repairing, modifying, or otherwise performing work on an electrical system,
component, equipment, or wire." MTC does not dispute that it connected an electrical
wire and provides no authority that this act was not an electrical installation.
MTC argues that it did not violate RCW 19.28.041 because it did not hold itself
out as being engaged in the electrical trade and was thus not an electrical contractor
subject to the statute. But RCW 19.28.006(8) defines an "electrical contractor" as a
"person . . . corporation, or other entity that. . . undertakes ... the work of installing . ..
No. 69735-8-1/8
wires or equipment that convey electrical current." MTC provides no authority that it did
not act as an electrical contractor when it installed wires that convey electrical current.
MTC asserts that the Department's investigation was negligent because it did not
determine whether the exemption applied. However, the uncontested facts do not
support the conclusion that the investigation was negligent, that a more thorough
investigation was called for, or that further investigation would have demonstrated that
the exemption applies.
MTC argues for the first time on appeal that the citations violated article I, section
7 of the Washington Constitution, which provides that "[n]o person shall be disturbed in
his private affairs, or his home invaded, without authority of law." MTC contends that
Gilbertson had the "constitutional right to perform electrical work on his own property"
and therefore, Moen's actions "as his agent" are "also constitutionally protected."10 But
where a party fails to raise a constitutional issue below, an appellate court will consider
the argument under RAP 2.5(a) only ifthe party demonstrates a manifest error affecting
a constitutional right.11 A "manifest error" is shown where the error is obvious and had
practical and identifiable consequences.12 MTC's argument is merely conclusory.
Because MTC makes no showing of a manifest constitutional error, the issue is waived.
MTC contends that the Department's action was arbitrary and capricious. MTC
has the burden of proving its assertion that an agency's action was arbitrary and
10 Appellant's Br. at 31.
11 State v. Gordon. 172 Wash. 2d 671, 676, 260 P.3d 884 (2011).
12 Id.
8
No. 69735-8-1/9
capricious13 and that the agency action was willful and unreasoning, taken in plain
disregard of the factual circumstances.14 MTC makes no such showing.
Affirmed.
WE CONCUR:
)rQje 2^0 0,'
13RCW34.05.570(1)(a).
14 Citv of Redmond v. Cent. Puqet Sound Growth Mqmt. Hearings Bd., 136
Wash. 2d 38, 46-47, 959 P.2d 1091 (1998).