Rootvik v. Dep't of Labor & Indus.

ERIC ROOTVIK, Petitioner, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 73828-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 17, 2017

UNPUBLISHED OPINION

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 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."

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 installthese, 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 requirement[s], 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.

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.

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 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 Wn. 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 Wn. App. 939, 960, 347 P.3d 924, review denied, 184 Wn.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 Wn. 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 precludeappellate review. State v. Marintorres, 93 Wn. 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 Wn. App. 862, 873, 374 P.3d 215, review denied sub nom. In re Estate of Hook, 186 Wn.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...