       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PASSION WORKS, LLC and            )
ERIC ROOTVIK,                     )               No. 79296-2-I
                                  )               (consolidated with 79297-1-I)
               Appellants/        )
               Cross-Respondents, )               DIVISION ONE
                                  )
          v.                      )               UNPUBLISHED OPINION
                                  )
STATE OF WASHINGTON,              )
DEPARTMENT OF LABOR AND           )
INDUSTRIES,                       )
                                  )
               Respondent/        )
               Cross-Appellant.   )
                                 )

       SMITH, J. — The Washington Department of Labor and Industries

(Department) issued two infractions with civil penalties of $1,000 each against

Eric Rootvik for violation of statutory contractor registration requirements.

Rootvik appealed to the Office of Administrative Hearings, which affirmed the

infractions and the civil penalties. The superior court also affirmed the infractions

but reduced the civil penalties to a total of $1,000. On appeal, Rootvik seeks

discretionary review of the superior court’s order affirming the infractions.

Because he does not satisfy the standards under RAP 2.3, we deny discretionary

review. The Department cross appeals the superior court’s order reducing the

civil penalties assessed to Rootvik. Because the superior court acted without

statutory authority and thus substantially departed from the usual course of

judicial proceedings, we grant review and reverse the superior court’s reduction



  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79296-2-I/2


of the penalties.

                                      FACTS

       Rootvik is “the manager of Passion Works, LLC,” doing business as Eric

the Closet Guy. He “design[s], engineer[s,] and install[s]” custom closets and

shelving. In May 2016, the Department received an anonymous tip that Rootvik

was offering these services without a contractor license. Department compliance

investigator Terri Zenker began reviewing Rootvik’s website in accordance with

customary investigation procedure. She discovered that Rootvik was advertising

on Craigslist.org and through his company website, Erictheclosetguy.com. The

company website showed pictures of significant cabinetry in a walk-in closet.

Additionally, the website and advertisement on Craigslist.org directed viewers to

third-party reviews on Yelp.com, Houzz.com, and MerchantCircle.com. The

reviews discussed installing custom-made closets and shelving. For example,

one review stated, “[H]e does everything himself. Designs, measures, builds and

installs.” Another review said, “[H]e delivered and then installed our new

beautiful closets.” And finally, a review on Yelp.com stated that the client

scheduled an “install date” with Rootvik for custom closets.

       Also in May 2016, Ursula Haigh responded to Rootvik’s Craigslist.org

advertisement and began working with Rootvik to secure a proposal for custom

cabinetry in her laundry room.1 In e-mails to Haigh, Rootvik stated that the

“[i]n stall [sic] will probably take four days.” When Haigh discovered that Rootvik




       1The revised drawing that Rootvik provided to Haigh shows substantial
cabinetry.
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No. 79296-2-I/3


was not a licensed contractor, she submitted a complaint to the Department and

attempted to cancel her contract with Rootvik. Zenker investigated this complaint

as well.

       In July and August 2016, following review of both the anonymous tip and

Haigh’s complaint, Zenker issued two infractions under RCW 18.27.010(1)(a).2

Zenker issued the first infraction (Infraction 1) based on her review of Eric the

Closet Guy’s websites and advertisements and the references therein to

“installation of a product that requires contractor registration,” specifically, custom

closets. Zenker issued the second infraction (Infraction 2) “[p]rimarily based off

the notification by the contractor to the consumer that he was going to install this

product, along with [Haigh] confirming what their project was.” The Department

issued the minimum $1,000 fine for each infraction.

       Rootvik formally appealed both infractions to the Office of Administrative

Hearings (OAH). Separate Administrative Law Judges (ALJs) from OAH were

assigned to the appeals.

       During the hearing for Infraction 1, Rootvik presented a small model as an

example of “the way [the closets] can be installed.” He testified that

       [the closet shelving] really can be installed anywhere. And that
       what it’s comprised of -- in this mock wall we have a metal rail,
       which I call a hang rail. It has a screw hole every inch, and these
       are attached to the wall with drywall screws where the studs are.
       And that’s the sole connection to the property, the house, or
       wherever it might be that there is.

When asked by the Department whether the model represented the way in which



       2 RCW 18.27.010(1)(a) provides the definition for a contractor subject to
the statutory registration requirements.
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No. 79296-2-I/4


Rootvik installed the closets, Rootvik refused to answer and objected to the

question. The ALJ overruled his objection and insisted that Rootvik answer.

Rootvik responded, “I’m not going to answer it.”

       The ALJ found that Rootvik had not satisfied his burden of proof. The ALJ

thus concluded that “[o]n or about May 13, 2016, [Rootvik] advertised to perform

contractor work when not registered as a contractor in violation of

RCW 18.27.200(1)(a).” Specifically, she found that “[c]learly when viewing all the

websites as a whole, Passion Works LLC dba Eric the Closet Guy, was

advertising to design, build and install custom closets.” Additionally, the ALJ

drew adverse inferences from Rootvik’s refusal to answer whether or not his

model represents the way in which he installs shelving. The ALJ found no merit

in Rootvik’s argument that he was exempt from registering under

RCW 18.27.090(5).3 She therefore affirmed the infraction and $1,000 civil

penalty issued by the Department.

       During the hearing for Infraction 2, Haigh testified that Rootvik said “[t]hat

he was going to build [the cabinets] and then place them in the house, install

them.” Zenker testified that she received information that Rootvik was “going to

install the project that” Rootvik agreed to complete for Haigh. Mike Vines, a

witness for Rootvik, testified that the cabinets Rootvik installed in Vines’ home

could be picked up and moved. Rootvik used the same model that he presented




       3  RCW 18.27.090(5) provides that the registration provisions do not apply
to “[t]he 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.”
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No. 79296-2-I/5


at the hearing for Infraction 1 as an example and testified that “[e]verything

comes in finished pieces, flat form, and then it’s assembled, put the verticals on,

attach the horizontals, and in the case of Haigh[,] attach the doors, slide in the

drawers. . . . But the only attachment to the building is [a] metal rail.”

       Following the hearing, the ALJ found that “Rootvik posted an

advertisement on [C]raigslist.org . . . . He submitted a bid, or estimate to design,

build and install a custom closet system for Ursula Haigh.” (Emphasis omitted.)

The ALJ further concluded that “[t]he 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.” She found that the exemption under

RCW 18.27.090(5) did not apply. Thus, the ALJ concluded that “[b]ecause Eric

Rootvik advertised, submitted a bid, offered and agreed to perform contractor

work, when he was not registered as a contractor under RCW Chapter 18.27, he

was in violation of RCW 18.27.200(1)(a) as alleged in the infraction.” She

affirmed the infraction and monetary penalty of $1,000.

       Rootvik appealed both final orders to the superior court, which

consolidated the appeals. A hearing took place in November 2018, and the

superior court affirmed the infractions but reduced the total amount of the civil

penalties from $2,000 to $1,000. Rootvik appeals the infractions, and the

Department cross appeals, arguing that the trial court erred in reducing the civil

penalties.




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                                    ANALYSIS

                               Discretionary Review

       The superior court’s decision affirming Rootvik's infractions and reducing

the penalty amount is reviewable only via discretionary review under RAP 2.3.

RCW 18.27.310(4). The parties contend that discretionary review is warranted

under RAP 2.3(b)(1)-(3).4 These rules provide that this court accept 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.

RAP 2.3(b). For the reasons discussed below, we deny review of the superior

court’s decisions affirming the infractions. But we grant review of and reverse the

superior court’s decision to reduce the penalty amount.

   Discretionary Review of the Superior Court’s Order Affirming the Infractions

       Rootvik contends that the superior court improperly concluded that he

violated RCW 18.27.200(a)(1). Rootvik fails to satisfy RAP 2.3(b) with regard to

this contention, and we therefore decline to review it.

       Chapter 18.27 RCW governs the registration of contractors. A contractor




       4 We acknowledge that Rootvik does not specifically address the merits of
discretionary review under RAP 2.3 in his opening brief. However, the brief
provides sufficient insight into what he believes were the court’s errors warranting
discretionary review.
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No. 79296-2-I/7


includes a person or entity that “offers to undertake, or submits a bid to,

construct, alter, repair, add to, subtract from, improve, develop, move, wreck, or

demolish any building, . . . or other structure, project, development, or

improvement attached to real estate or to do any part thereof including . . .

cabinet or similar installation.” RCW 18.27.010(1)(a) (emphasis added). And “[i]t

is a violation of [chapter 18.27 RCW] and an infraction for any contractor to . . .

[a]dvertise, offer to do work, submit a bid, or perform any work as a contractor

without being registered as required by [chapter 18.27 RCW].”

RCW 18.27.200(1)(a). To establish the commission of an infraction under

chapter 18.27 RCW, “[t]he burden of proof is on the [D]epartment . . . , unless the

infraction is issued against an unregistered contractor in which case the burden

of proof is on the contractor.” RCW 18.27.310(2) (emphasis added).

       Here, Rootvik admits that he was not a registered contractor. Accordingly,

he had the burden to establish by a preponderance of the evidence that he did

not violate the registration statute. RCW 18.27.310(2). But Rootvik admitted to

installing the custom closets and cabinetry which he advertises for, designs, and

builds. And those installations fall within the definition of contractor. The

cabinetry installation is “cabinet or similar installation,” RCW 18.27.010(1)(a), and

the closet installation is “similar installation” or its own specialty under

Department regulation. See WAC 296-200A-016(7) (“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.”). Thus, Rootvik




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No. 79296-2-I/8


has neither shown that it was an obvious5 or probable error6 nor that it was the

sanction of a substantial departure from the usual course of proceedings 7 for the

superior court to have affirmed the ALJs’ determinations that Rootvik violated

RCW 18.27.200(1)(a) by failing to register as a contractor.

       Rootvik disagrees and contends that he is subject to the exemption under

RCW 18.27.090(5). RCW 18.27.090(5) exempts a potential contractor from

registration for “[t]he 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.” (Emphasis added.) Rootvik did not sell

finished products; he installed them. Given the plain language of the statute,

Rootvik failed to show that the superior court committed error in affirming the

ALJs’ conclusions that the exemption did not apply.8

       Rootvik cites RCW 7.80.050 for the proposition that the Department must

actually witness him performing contractor work. But RCW 7.80.050 does not




       5  Cf. Dep’t of Labor & Indus. v. Davison, 126 Wn. App. 730, 735-37, 109
P.3d 479 (2005) (concluding that discretionary review under RAP 2.3(b)(1) was
warranted where the trial court failed to follow case law in reaching its conclusion
of law).
        6 See State v. Howland, 180 Wn. App. 196, 205, 321 P.3d 303 (2014)

(concluding that because the trial court did not abuse its discretion, “there was no
probable error”).
        7 Cf. In re Marriage of Folise, 113 Wn. App. 609, 613, 54 P.3d 222 (2002)

(holding that “the trial court has ‘departed from the accepted and usual course of
judicial proceedings’ by ignoring unambiguous language in the statutory scheme
and case law on the subject”).
        8 Rootvik’s focus on “the common law of fixtures,” RCW 18.27.090(5), is

misplaced. The dispositive issue is whether Rootvik was selling his cabinets or
installing them. Because he installs them, the exception does not apply, whether
or not the cabinets or closets would be considered fixtures under common law.
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apply to this proceeding.9 Instead, RCW 18.27.370 provides the standard for

issuance of an infraction under chapter 18.27 RCW. And it requires only that the

Department “reasonably believe[ ]” that Rootvik advertised or offered to install the

cabinetry and closets in violation of RCW 18.27.200(1)(a). RCW 18.27.230. The

Department viewed Rootvik’s websites, the reviews left by those who had hired

Rootvik, and the e-mails between Rootvik and Haigh, which provide evidence

that Rootvik advertised and offered to install cabinetry or closets. Thus, this

contention does not support discretionary review.

       Rootvik additionally contends that the contractor registration law violates

his right to free speech. But “[t]he government may ban . . . commercial speech

related to illegal activity.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n

of New York, 447 U.S. 557, 563-64, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

And here, as discussed, Rootvik engaged in illegal activity by advertising and

offering to do work that falls within chapter 18.27 RCW without registering as a

contractor. And had Rootvik completed the work for which he advertised, it also

would have been illegal because he is not a registered contractor.

RCW 18.27.200(1)(a). Therefore, Rootvik’s asserted First Amendment violation

does not support accepting review under any of the standards set forth in

RAP 2.3.

       Finally, Rootvik contends that the ALJ presiding over the hearing for

Infraction 1 violated his right against self-incrimination when she drew negative




       9
      The legislature enacted chapter 7.80 RCW to decriminalize some
misdemeanors and impose civil infractions instead. RCW 7.80.005.
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No. 79296-2-I/10


inferences from his refusal to answer questions during cross-examination.

Because the Fifth Amendment does not attach to testimony in a civil proceeding,

we decline to review this argument. See Ikeda v. Curtis, 43 Wn.2d 449, 458, 261

P.2d 684 (1953) (“When a witness in a civil suit refuses to answer a question on

the ground that his answer might tend to incriminate him, . . . the trier of facts in a

civil case is entitled to draw an inference from his refusal to so testify.”).

       In short, the superior court’s decision finding that Rootvik violated

RCW 18.27.200(1)(a) was neither an obvious or probable error nor the sanction

of a departure from the accepted and usual course of administrative hearings.

Therefore, we deny discretionary review of the superior court’s order affirming

the Department’s issuance of the infractions.

    Discretionary Review of the Superior Court’s Reduction of Civil Penalties

       The Department contends that the superior court committed obvious error,

warranting discretionary review, when it reduced the civil penalty imposed on

Rootvik from $2,000 to $1,000. Because the superior court acted without legal

authority and inconsistent with the statutory language under which the

Department imposed the civil penalty, we agree and accept discretionary review

of the Department’s contention. See Folise, 113 Wn. App. at 613 (granting

discretionary review under RAP 2.3(b)(3) where the trial court “ignor[ed]

unambiguous language in the statutory scheme”).

       Rootvik, having been “found to have committed an infraction under

RCW 18.27.200 for failure to register[,] shall be assessed a fine of not less than

one thousand dollars, nor more than five thousand dollars.” RCW 18.27.340(3).



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However, the Department’s “director may reduce the penalty for failure to

register, but in no case below five hundred dollars, if the person becomes

registered within ten days of receiving a notice of infraction and the notice of

infraction is for a first offense.” RCW 18.27.340(3) (emphasis added).

       Here, the Department issued a civil penalty of $1,000 for each infraction.

The Department’s director did not exercise discretion to reduce the penalty

because there is no evidence that Rootvik registered within 10 days of receiving

notice of the infractions and there are two infractions in this appeal. But the

superior court nevertheless reduced the penalty for both infractions to a total of

$1,000. The superior court cited no authority to support its decision to reduce the

fine below the statutory minimum, and we have found none that would. Thus, the

superior court erred.

       We deny discretionary review of the superior court’s decision affirming the

infractions issued by the Department. We grant discretionary review as to the

superior court’s reduction of the civil penalty, and we reverse that decision. We

remand to the superior court with instructions to reinstate the full $2,000 penalty.




WE CONCUR:




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