Eric Rootvik, Appellant V. Dept Of Labor And Industries, Respondent

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UNPUBLISHED OPINION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

No. 73828-3-1/2
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."

No. 73828-3-1/3
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.
-4

No. 73828-3-1/5
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 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 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 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 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 Wn.2d 801,
809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. Elliott,
114 Wn.2d 6, 	15, 	785 	P.2d 440 (1990) (insufficient argument); 	Saunders v.
Lloyd's 	of 	London. 	113 	Wn.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
Wn.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.
-8-

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 Wn. 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
9

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 Wn.2d 322, 333, 899
P.2d 1251 (1995). 	It is the appellant's burden to demonstrate a basis for review
10

No. 73828-3-1/11
under RAP 2.5(a). 	State v. Grimes, 165 Wn. 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 	Wn.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 	Wn.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.
11

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.
7
rv<
12