IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE MARYSVILLE TAPING COMPANY, Appellant, No. 69735-8-1 o 2**—♦<=**
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DEPARTMENT OF LABOR AND INDUSTRIES, UNPUBLISHED OPINION FILED: April 28, 2014 ~o
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—<o Respondent. Verellen, A.C.J.

—The householderexemption of RCW 19.28.261(6) does not allow a subcontractorto perform unlicensed electrical work on a residential construction site owned by the general contractor. We affirm and uphold the three citations issued 

### by the Department ofLabor and Industries (Department) to Marysville Taping Company (MTC). FACTS A general contractor on a residential construction project, Gilbertson Construction, employed MTC for sheetrock services. Brooks Gilbertson instructed MTC
owner Ronald Moen to install wires connecting an electrical pole to a portable heater inside the house. No MTC employee was certified to do electrical work. Department inspector Ron Mutch was on-site and discovered wiring MTC installed. Mutch cited MTC for violating RCW 19.28.2041, installing cables that conveyNo. 69735-8-1/2
electric current without a valid license; RCW 19.28.271, employing an individual for 

### electrical work who is not certified to do such work; and RCW 19.28.010, installing wires that convey electrical current without conforming to statutes, rules, and approved methods ofconstruction for safety to life and property. Moen appealed the citations to the Department's Office ofAdministrative Hearings. Moen asserted that Gilbertson owned and planned to live inthe residence and that MTC was assisting Gilbertson by installing the heater. Moen also argued that Gilbertson had a contractual duty to provide the heating necessary for MTC to complete 

### its work, but refused to install the heater. According to Moen, Gilbertson provided the wire and instructed him to connectthe heaterto the electrical pole. The administrative lawjudge (ALJ) made the following factual findings: 2. Ronald Moen is not a certified electrician and MTC is not an electrical contractor. MTC is a sheet rock installation contractor.

4. All the citations at issue emanated from work done at a 

### residential property . . . owned by Gilbertson Construction. 7. On July 14, 2009, Mr. Mutch wentto [the property] to perform a requested inspection on an established permit.... 8. As Mr. Mutch approached the new house, he noticed thatthe 

### temporary electrical service pole in front ofthe driveway had its cover 

### removed with a piece ofnon-metallic sheathed cable coming out of it, 

### laying on the ground. The cable ran across the driveway, intothe house, to an electric heater laying on the floor ofthe house. 9. The circuit was energized and the heaterwas on. The cable was connected to two different circuit breakers inthe temporary panel. One breakerwas rated 20 amps and the other 50 amps. The cable had a 

### maximum ampacity of 25 amps, which means the maximum breaker size this cable could safely handle was 20 amps.No. 69735-8-1/3


### 10. The heaterwas rated at 5760 watts, which requires a cable with an ampacity ofat least 31 amps. 

### 11. Further, the equipment grounding conductorwas not connected to the electrical panel, creating a potential shock hazard. 

### 12. The manner in which the heaterhad been energized
.. . 

### created a very hazardous situation, which could have resulted ininjury through electrical shock or sparks leading to fire. 13. Mr. Mutch called the general contractor and ownerfor the property, Brooks Gilbertson, and asked who connected the heater. Mr. Gilbertson stated that MTC had connected the heater.

17. Mr. Gilbertson directed Mr. Moen to install the heater. Mr. Gilbertson instructed Mr. Moen to connectthe heaterto the power source .

. . [and] provided the cable for Mr. Moen to complete the task. 18. Mr. Moen never involves himself, and MTC never involves itself, in electrical work when performing sheet rock contracting. Mr. Moen did not offerto connectthe heaterto the power source and did notwant to do so, as he has no expertise in electrical contracting. 19. Mr. Moen reluctantly connected the heaterto the heat source [sic] atthe instruction and request of Mr. Gilbertson.
24. Appellant argued that it did not offerto perform any electrical 

### work and only did so at the request and direction ofgeneral contractor.111 The ALJ held that the Department had not proved that MTC's actions were violations in light ofthe RCW 19.28.261 exemption available to householders undertaking electrical work on their own property. The Department appealed to theWashington State Electrical Board (Board). The Board adopted the ALJ's factual findings, but determined thatthe householder exemption did not apply and upheld the Department's citations.


### 1Clerk's Papers at 104-06.No. 69735-8-1/4
MTC appealed to Snohomish County Superior Court. The superiorcourt affirmed, concluding thatthe householderexemption did not apply. MTC appeals. ANALYSIS MTC contends thatthe superior court erred by determining thatthe householder exemption was inapplicable. MTC also asserts thatthe Board's actions violated article I, section 7 ofthe Washington Constitution and were arbitrary and capricious. This appeal is subjectto Washington's Administrative Procedure Act (APA), 

### chapter 34.05 RCW.2 Under the APA,the burden ofdemonstrating the invalidity of 

### agency action is on the partyasserting invalidity.3 This court reviews the decision of the highestforum that exercised fact-finding authority—the Board—and reviews those 

### findings in the lightmost favorable to the prevailing party—theDepartment.4 This court reviews questions of lawde novo, according deference to an agency's interpretation of 

### law inareas within the agency's expertise.5 MTC contends thatthe householderexemption of RCW 19.28.261(6) precludes 

### the Departmentfrom citing MTC. RCW 19.28.261(6) provides: 

### Nothing in RCW 19.28.161 through 19.28.271 shall be construed to restrictthe right ofany householderto assist or receive assistance from a friend, neighbor, relative, or otherperson when none ofthe individuals 2See RCW 19.28.131; RCW 19.28.271(2) (appeals from citations are governed by RCW 34.05). 3RCW 34.05.570(1 )(a). 4Johnson v. Dep't of Health. 133 Wn. App. 403, 411, 136 P.3d 760 (2006). The 

### Board both possessed and exercised its authorityto enterfindings of fact. See RCW 34.05.464(4); RCW 19.28.131: Tapperv. State Emp't Sec. Dep't, 122Wn.2d397, 405-06, 858 P.2d 494 (1993). 5Macevv. Dep't of Emp't Sec. 110Wn.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 

### householderexemption inearlierproceedings, it is estopped from arguing thatthe 

### exemption is inapplicable. We disagree. The Department raised the householder 

### exemption below, but has argued from the outsetthatthe exemption does not apply in these circumstances. 

### The householderexemption is expressly limited to RCW 19.28.161-.271 and does not shield a householder or an assistantfor violating RCW 19.28.010, which 

### requires all electrical installations to conform with the applicable laws, regulations, and 

### approved methods ofconstruction for safety to life and property. MTC does not dispute that its work did not conform to these standards. Accordingly, the householder 

### exemptiondoes not apply tocitation EMUTR00587 issued forviolation of RCW 19.28.010. 

### As to the tworemaining 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 

### ofthestatutoryprovision, related provisions, and thestatutoryscheme as awhole.6 MTC asserts that Gilbertson was a householder because he owned the 

### residence and purportedly intended tolivethere. ButMTC failed to obtain anyfinding that Gilbertson occupied or dwelled in this particular house or that he intended to live 

### there. And the recordsupports the determination that he did not. The ALJ's undisputed

6State v. Engel. 166 Wn.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 inwhich 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 MTCprovides 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 ofconstruction or authority rebutting the Department's argument. Further, even assuming Gilbertson was a "householder," MTC was hired as a subcontractorto perform paid work under contract and was not a "friend, relative, 

### neighbor, or otherperson" assisting a householder as contemplated by the statutory 

### exemption. Under the ejusdem generis rule,9 the phrase "orotherperson" must be read
7Clerk's Papers at 104 (emphasis added). 

### 8Appellant's Br. at 22 (emphasis omitted). 9City of Seattle v. State. 136 Wn.2d 693, 699, 965 P.2d 619 (1998) ("The 

### ejusdem generis rule requires that general terms appearing in a statute inconnection with specific terms are to be given meaning and effect only to the extentthatthe general 

### terms suggest items similar to those designated bythe specific terms.'") (quoting Dean v. McFarland. 81 Wn.2d 215, 221, 500 P.2d 1244 (1972)).No. 69735-8-1/7 

### consistentlywith the more specific preceding words, "friend, neighbor, relative," to mean 

### a person with an analogous relationship to the householder. Asubcontractorpaid to perform work for a general contractor is significantly differentfrom a friend, relative or 

### neighbor helping out. MTCcites no authority or rule ofconstruction supporting a contrary interpretation. Incontext, the exemption recognizes a householder's private interest in 

### performing work on theirown 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 inconsistentwiththe obvious intent underlying the statutes: to protectthe 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 householderexemption did not apply is consistentwith the plain meaning ofthe 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 ofinstalling, connecting, repairing, modifying, orotherwise performing work on an electrical system, component, equipment, or wire." MTC does not dispute that itconnected an electrical wire and provides no authority thatthis 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 inthe electrical trade and was thus not an electrical contractor 

### subjectto the statute. But RCW 19.28.006(8) defines an "electrical contractor" as a "person
. . . corporation, or otherentitythat.
. . undertakes
... the work ofinstalling
. ..No. 69735-8-1/8 

### wires orequipmentthat convey electrical current." MTC provides no authority that itdid not act as an electrical contractorwhen itinstalled wires that convey electrical current. 

### MTCasserts thatthe Department's investigation was negligent because it did not 

### determinewhetherthe exemption applied. However, the uncontested facts do not 

### support the conclusion that the investigation was negligent, that a more thorough investigation was calledfor, or that further investigation would have demonstrated that the exemption applies. 

### MTC argues for the first time on appeal that the citations violated articleI, section 

### 7 of the Washington Constitution, which provides that "[n]o person shall be disturbed in his privateaffairs, or his home invaded,without authority oflaw." MTC contends that Gilbertson had the "constitutional right to perform electrical work on his own property" 

### andtherefore, Moen's actions "as his agent" are "alsoconstitutionally protected."10 But where a partyfails to raise a constitutional issue below, an appellate courtwill consider the argument underRAP 2.5(a) only ifthe partydemonstrates a manifest erroraffecting a constitutional right.11 A"manifesterror" is shown where the error is obvious and had practical and identifiable consequences.12 MTC's argument is merelyconclusory. 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 ofproving itsassertion that an agency's action was arbitrary and

10Appellant's Br. at 31. 11 State v. Gordon. 172 Wn.2d 671, 676, 260 P.3d 884 (2011). 12Id.

8No. 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 2^00,'

13RCW34.05.570(1)(a). 14Citv of Redmond v. Cent. Puqet Sound Growth Mqmt. Hearings Bd., 136 Wn.2d 38, 46-47, 959 P.2d 1091 (1998).