                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                            July 31, 2018




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    HARBOR PLUMBING,                                               No. 51767-1-II

                               Appellant,

          v.                                                 UNPUBLISHED OPINION

    WASHINGTON STATE DEPARTMENT OF
    LABOR AND INDUSTRIES,

                               Respondent.


         MAXA, C.J. – Harbor Plumbing appeals the trial court’s dismissal under CR 12(b)(6) and

CR 12(c) of Harbor’s complaint against the Department of Labor and Industries (DLI). Harbor’s

complaint challenged the constitutionality of RCW 18.106.020(1), which provides that DLI may

require by rule that plumbers wear and visibly display a competency certificate or temporary

permit. The complaint requested relief under the Uniform Declaratory Judgments Act (UDJA),

chapter 7.24 RCW. Harbor also alleged that WAC 296-400A-024(3), which states that plumbers

are “encouraged” to wear their certificates, was invalid because DLI failed to comply with the

rulemaking procedures under the Administrative Procedure Act (APA).1

         We hold that (1) Harbor’s UDJA claim regarding RCW 18.106.020(1) is not justiciable

because the statute does not directly affect Harbor and because DLI has not exercised its



1
    Ch. 34.05 RCW.
No. 51767-1-II


authority under the statute to require plumbers to wear a certificate, and (2) the provision in

WAC 296-400A-024(3) encouraging plumbers to wear their certificates does not constitute a

“rule” because it relates to voluntary conduct and therefore is not subject to the APA’s

rulemaking procedures. Accordingly, we affirm the trial court’s order dismissing Harbor’s

complaint.

                                              FACTS2

Adoption of WAC 296-400A-024

       In 2009, the legislature amended RCW 18.106.020(1), which addresses competency

certificates for plumbers, to include a provision stating that DLI “may establish by rule a

requirement that [a plumber] wear and visibly display his or her certificate or permit.” LAWS OF

2009, ch. 36, § 2. DLI did not adopt such a rule at that time.

       In June 2015, DLI filed a preproposal statement of inquiry, providing initial notice that it

was considering adopting new rules based on the authority granted in chapter 18.106 RCW.

Wash. St. Reg. 15-13-099, at 5 (June 16, 2015). The inquiry stated three possible changes under

consideration: amending the rules to be consistent with chapter 18.106 RCW, “[d]isplaying valid

plumber certificate of competency,” and making general housekeeping changes. Wash. St. Reg.

15-13-099, at 5 (June 16, 2015).

       In October 2015, DLI filed a notice of proposed rules in which it proposed to amend

certain sections and adopt new sections in chapter 296-400A WAC. Wash. St. Reg. 15-20-124,

at 151 (Oct. 7, 2015). The notice stated that one of the changes included “[e]stablishment of a




2
  Briefing by both parties references facts not contained in the complaint. But under CR 12(b)(6)
or CR 12(c), this court generally may not look beyond the complaint. Jackson v. Quality Loan
Serv. Corp., 186 Wn. App. 838, 844, 347 P.3d 487 (2015). Therefore, we do not reference those
facts.


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No. 51767-1-II


requirement for display of valid plumber certificate of competency.” Wash. St. Reg. 15-20-124,

at 151 (Oct. 7, 2015). The notice proposed a new rule, WAC 296-400A-024, which included a

requirement that individuals in the plumbing trade wear their relevant plumbing certificate:

       To work in the plumbing trade, an individual must possess, wear, and visibly
       display on the front of the upper body a current, valid plumber certificate of
       competency, medical gas endorsement, or plumber trainee card.

Wash. St. Reg. 15-20-124, at 155 (Oct. 7, 2015) (emphasis added). The same subsection also

included additional detail about how to wear the certificate. Two other subsections in the

proposed rule required that the certificate be immediately available for examination at all times

and that individuals have in their possession governmental issued photo identification. Wash. St.

Reg. 15-20-124, at 155 (Oct. 7, 2015).

       DLI adopted permanent regulations relating to chapter 296-400A WAC in April 2016.

Wash. St. Reg. 16-08-100, at 101 (Apr. 5, 2016). In the permanent version of WAC 296-400A-

024, DLI changed the provision regarding plumbers wearing their certificate from mandatory to

voluntary. Wash. St. Reg. 16-08-100, at 107 (Apr. 5, 2016). As adopted, the permanent version

of WAC 296-400A-024(3) stated: “To work in the plumbing trade, an individual must possess,

and is encouraged to wear, and visibly display on the front of the upper body a current, valid

plumber certificate of competency.” (Emphasis added.) The other portions of the regulation

were adopted as proposed. See Wash. St. Reg. 16-08-100, at 107 (Apr. 5, 2016). The permanent

version of WAC 296-400A-024 became effective in May 2016. Wash. St. Reg. 16-08-100, at

101 (Apr. 5, 2016).

Complaint and Motions to Dismiss

       Harbor filed a complaint challenging RCW 18.106.020(1) and the proposed version of

WAC 296-400A-024 before the permanent regulation had been adopted.




                                                 3
No. 51767-1-II


       After the permanent version of WAC 296-400A-024 was adopted, Harbor filed a second

amended complaint.3 Harbor alleged causes of action under the UDJA and RCW 34.05.570(2),

the APA provision addressing the validity of agency rules. First, Harbor requested declaratory

relief on the basis that RCW 18.106.020(1) was unconstitutional for violating rights of equal

protection, privacy, speech, bodily autonomy, and choice of appearance. Second, Harbor

petitioned for judicial review of WAC 296-400A-024 on the basis that DLI failed to comply with

the APA’s rulemaking requirements by providing insufficient notice of the proposed changes.

       DLI filed a motion to dismiss Harbor’s compliant. For Harbor’s challenge to RCW

18.106.020, DLI requested dismissal under CR 12(c) on the basis that the claim was not

justiciable. For Harbor’s challenge to WAC 296-400A-024, DLI requested dismissal under CR

12(b)(6) on the basis that the provision encouraging plumbers to wear their certificates did not

meet the APA’s definition of a “rule” and therefore was not subject to the APA’s rulemaking

procedures. The trial court granted both motions.

       Harbor appeals the trial court’s order dismissing its complaint.

                                            ANALYSIS

A.     STANDARD OF REVIEW

       The trial court applied both CR 12(b)(6) and CR 12(c) in dismissing Harbor’s claims.

Under CR 12(b)(6), a complaint may be dismissed if it fails to state a claim upon which relief

can be granted. CR 12(c) allows parties to move for judgment on the pleadings. When ruling on

a motion to dismiss, generally the trial court may consider only allegations contained in the




3
  Harbor also filed a motion to join an additional plaintiff, an electrical contractor, in an attempt
to challenge a similar regulation, WAC 296-46B-940, which mandated that electricians wear
their certificates. The trial court denied joinder. Harbor does not appeal the trial court’s order
denying joinder, so any issues regarding WAC 296-46B-940 are not before us.


                                                  4
No. 51767-1-II


complaint and may not look beyond the face of the pleadings. Jackson v. Quality Loan Serv.

Corp. of Wash., 186 Wn. App. 838, 844, 347 P.3d 487 (2015).

       Our analysis is the same under both CR 12(b)(6) and CR 12(c). Wash. Trucking Ass’ns v.

Emp’t Sec. Dep’t, 188 Wn.2d 198, 207, 393 P.3d 761, cert. denied 138 S. Ct. 261 (2017). We

review the trial court’s dismissal de novo. Id. Dismissal is appropriate when it appears beyond

doubt that a plaintiff will be unable to prove any set of facts that would justify recovery. Id. We

assume the truth of the allegations in the plaintiff’s complaint and may consider hypothetical

facts not included in the record. Id.

B.     JUSTICIABILITY OF CHALLENGE TO RCW 18.106.020(1)

       Harbor argues that its challenge to RCW 18.106.020(1) raised a justiciable controversy,

and therefore the trial court erred in dismissing that challenge under CR 12(c). We disagree.

       1.    Legal Background

       The portion of RCW 18.106.020(1) challenged by Harbor authorizes DLI to engage in

rulemaking requiring plumbers to wear their competency certificates. The relevant language

provides, “The department may establish by rule a requirement that the person also wear and

visibly display his or her certificate or permit.” RCW 18.106.020(1).

       Harbor asserted its challenge to RCW 18.106.020(1) under the UDJA, which provides

courts with the authority to declare rights, status, and other legal relations through a declaratory

judgment. RCW 7.24.010; League of Educ. Voters v. State, 176 Wn.2d 808, 816, 295 P.3d 743

(2013). For a court to hear a case under the UDJA, a justiciable controversy must exist or the

case must present an issue of major public importance. League of Educ. Voters, 176 Wn.2d at

816.

       The test for a justiciable controversy includes four elements:




                                                  5
No. 51767-1-II


       “(1) . . . an actual, present and existing dispute, or the mature seeds of one, as
       distinguished from a possible, dormant, hypothetical, speculative, or moot
       disagreement, (2) between parties having genuine and opposing interests, (3) which
       involves interests that must be direct and substantial, rather than potential,
       theoretical, abstract or academic, and (4) a judicial determination of which will be
       final and conclusive.”

Lee v. State, 185 Wn.2d 608, 616, 374 P.3d 157 (2016) (quoting Diversified Indus. Dev. Corp. v.

Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)). A plaintiff must satisfy all four elements to be

entitled to relief under the UDJA. Lawson v. State, 107 Wn.2d 444, 460, 730 P.2d 1308 (1986).

If these elements are not satisfied, we would be issuing a prohibited advisory opinion if we

addressed the claim. Lewis County v. State, 178 Wn. App. 431, 437, 315 P.3d 550 (2013).

       The justiciability elements incorporate the traditional doctrines of standing, mootness,

and ripeness, as well as the federal case-or-controversy requirement. City of Longview v. Wallin,

174 Wn. App. 763, 778, 301 P.3d 45 (2013). The first element concerns ripeness and mootness.

Lee, 185 Wn.2d at 617. The third element encompasses standing. Id. at 618.

       When the facts are not disputed, whether a claim is justiciable is a question of law that we

review de novo. Wallin, 174 Wn. App. at 777.

       2.    First Justiciability Element – Ripeness

       Harbor argues that its challenge to RCW 18.106.020(1) satisfies the first justiciability

element because the statute delegated authority to DLI to engage in rulemaking and DLI

exercised that authority, even though the regulation adopted did not impose a mandatory

requirement. We disagree.

       To satisfy the first justiciability element, a plaintiff must show that the case involves an

actual dispute rather than a possible, dormant, hypothetical, speculative one. Lee, 185 Wn.2d at

616. Courts have concluded that a claim is not justiciable under the first element when the

plaintiff is seeking a declaration of rights and liabilities regarding an event that has not occurred



                                                  6
No. 51767-1-II


and may never occur. See Lawson, 107 Wn.2d at 460; Diversified Indus. Dev., 82 Wn.2d at 814-

15; Lewis County, 178 Wn. App. at 437-38.

        In Lawson, the Supreme Court considered a challenge to a statute that authorized

conversion of a railroad right of way to a non-railroad use without compensation to property

owners who held a reversionary interest in the right of way. 107 Wn.2d at 446. The court held

that a claim by plaintiffs who owned land bisected by a right of way did not satisfy the first

justiciability element because nothing in the record indicated that the right of way would be

abandoned or that the local government would acquire it. Id. at 460. Until such an action

occurred, the claim was premature and lacked any “actual, present and existing dispute, []or the

mature seeds of one.” Id.

        In Diversified Industries Development, the lessor of residential property sought a

declaration regarding whether the lessee was liable in connection with a visiting child’s injury on

the property. 82 Wn.2d at 812-13. The court emphasized that the child had not asserted a claim

for her injuries and whether she would ever assert a claim was speculative. Id. at 814. The court

concluded that “until the projected claim for or on behalf of the . . . child becomes something

more discernable than an unpredictable contingency, the cause is not ripe for declaratory relief.”

Id. at 815.

        In Lewis County, the county sought a declaration that the state rather than the county was

civilly liable for conduct of the judicial branch. 178 Wn. App. at 433. This court held that the

county could not satisfy the first justiciability element because there were no pending claims

against the county based on judicial branch conduct. Id. at 437. The county could not “show

that its case presents an actual, present, and existing dispute or even the mature seeds of such a

dispute.” Id.




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No. 51767-1-II


       Here, as in Lawson, Harbor’s challenge to RCW 18.106.020(1) is premature because

there are no facts that would trigger application of the statute. DLI has not implemented its

statutory authority to require plumbers to wear their certificates. And DLI may never adopt a

mandatory rule. Until DLI takes that action, the authorization in RCW 18.106.020(1) is dormant

and any dispute between Harbor and DLI is hypothetical and speculative.

       As in Diversified Industries Development and Lewis County, DLI’s adoption of a rule

requiring plumbers to wear their certifications under the authority of RCW 18.106.020(1) has not

yet occurred and may never occur. Even though it is possible that DLI could adopt a mandatory

rule, whether DLI actually will adopt such a rule is undetermined. Therefore, adoption of such a

rule is an “unpredictable contingency” that is not ripe for a declaratory action. Diversified Indus.

Dev., 82 Wn.2d at 815.

       Harbor argues that its claim is ripe because the authorization in RCW 18.106.020(1) was

invoked when DLI proposed the rule requiring plumbers to wear their certifications. Harbor

claims that once DLI began the rulemaking process, an actual, present, and existing dispute

arose. However, although the proposed rule may have created a potential dispute, no actual

dispute arose because the proposed mandatory rule was not adopted.

       Harbor cites two cases that it claims supports considering hypothetical future events. See

Wash. State Coal. for the Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 949 P.2d

1291 (1997); Benton County v. Zink, 191 Wn. App. 269, 361 P.3d 801 (2015). But in Coalition

for the Homeless, which concerned the Department of Social and Health Services’ (DSHS)

statutory duty to provide services to homeless children, it was “undisputed by the parties that

homelessness is a serious, widespread problem.” 133 Wn.2d at 900-01. On that basis, a ripe

dispute existed as to DSHS’s obligations to homeless children regarding foster care placements.




                                                 8
No. 51767-1-II


Id. at 918. And in Zink, the court addressed only whether the county had standing to seek a

declaratory judgment concerning its obligations to respond to a Public Records Act request. 191

Wn. App. at 279. Even though the court did not address ripeness, the dispute was clearly ripe

because the records request had been filed. Id. at 273.

        Because DLI has not exercised the authority granted by RCW 18.106.020(1) to impose a

mandatory obligation on Harbor, Harbor has not demonstrated that the dispute is actual, present,

and existing, as opposed to possible, hypothetical, or speculative. Accordingly, we hold that

Harbor’s challenge to RCW 18.106.020(1) does not satisfy the first justiciability element, and on

that basis is not justiciable.4

        3.   Exception for Issues of Major Public Importance

        Harbor argues that even if its claim is not justiciable under the standard criteria, we

should apply the exception for issues of major public importance. We disagree.

             a.    Legal Background

        When a plaintiff’s claim fails to meet the four justiciability elements, we may issue an

opinion regarding that claim only on the rare occasion that the public’s interest in resolution of

an issue is overwhelming. To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 416, 27 P.3d 1149

(2001). The public importance exception applies if (1) an issue is of great public interest, (2) the

issue has been adequately briefed, and (3) resolution would be beneficial to the public and other

branches of government. Walker v. Munro, 124 Wn.2d 402, 414, 879 P.2d 920 (1994).

        However, the public importance exception cannot apply if a dispute is not ripe. Id. The

court in Walker explained that, “even if we do not always adhere to all four requirements of the




4
 Because of our holding, we do not address the mootness aspect of the first justiciability element
or the third justiciability element (standing).


                                                  9
No. 51767-1-II


justiciability test, this court will not render judgment on a hypothetical or speculative

controversy, where concrete harm has not been alleged.” Id. at 415.

       The Supreme Court has applied the ripeness requirement to deny consideration in cases

of otherwise apparent public importance. In Walker, the plaintiffs challenged an initiative that

limited state revenue, limited state expenditures, and required approval by both the voters and a

supermajority of the legislative houses to increase expenditures. Id. at 405-06. The claim was

not ripe because at the time most of the initiative’s provisions were not in effect, making it

possible that many of the alleged harms would never occur. Id. at 412-13. The public

importance doctrine could not apply when “concrete harm has not been alleged.” Id. at 415.

       In DiNino v. State ex rel. Gorton, a woman challenged the constitutionality of a statute

that allowed a person to execute a medical care directive to withhold life-sustaining procedures if

the person was terminally ill, but precluded operation of the directive if the person was pregnant.

102 Wn.2d 327, 328, 684 P.2d 1297 (1984). The plaintiff’s own directive stated that life-

sustaining procedures should be withheld regardless of pregnancy and that any pregnancy should

be terminated if she was terminally ill. Id. at 328-29. The court held that because the plaintiff

was neither dying nor pregnant, the alleged violations – inhibiting her right to an abortion and to

forego medical treatment – were not ripe. Id. at 331-32. For that same reason, the case could not

be reviewed under the public interest exception. Id. at 332. The court later reaffirmed its

holding in DiNino “[d]espite the obviously important constitutional rights involved.” Walker,

124 Wn.2d at 415.

       And in League of Education Voters, an initiative required that any bill that would

increase spending beyond a limit be referred to the voters. 176 Wn.2d at 812. Even though the

case arguably raised an issue of public importance regarding the legislature’s ability to increase




                                                 10
No. 51767-1-II


state spending, the court refused to apply the public interest exception because the referendum

requirement had never been triggered or impacted any legal interests. Id. at 820.

            b.   Public Importance Analysis

       Here, as in prior cases, the public importance exception does not apply because the

claimed violation is speculative. RCW 18.106.020(1) does not require a mandatory rule

regarding the wearing of certificates and WAC 296-400A-024(3) is voluntary, and therefore

Harbor has not alleged a “concrete harm” and its claim is not ripe. Walker, 124 Wn.2d at 415.

Therefore, even if Harbor’s claim was a matter of public importance, the exception cannot apply.

Id.

       In addition, there is no indication that the public has an overwhelming interest in

resolving this issue. The courts that have applied the public importance exception have done so

where the issue, left unresolved, would have a direct and substantial public impact. See, e.g.,

Lee, 185 Wn.2d at 618-19 (considering challenge to initiative that would either result in an

immediate and yearly reduction in the state’s operating budget of $1.4 billion or amend the

Washington Constitution); Farris v. Munro, 99 Wn.2d 326, 328-30, 662 P.2d 821 (1983)

(considering challenge to prevent enforcement of an act creating the state lottery, passed in

response to a “fiscal and budgetary crisis”); Wallin, 174 Wn. App. at 782-83 (considering

challenge to proposed initiative claiming that initiative was beyond local initiative power).

       Accordingly, we hold that the exception for issues of major public importance does not

apply to Harbor’s claim.

       4.   Summary

       By allowing but not requiring DLI to adopt a rule regarding the wearing of plumbing

certificates, RCW 18.106.020(1) does not impose any requirement on Harbor. And DLI has not




                                                11
No. 51767-1-II


adopted such a rule. For those reasons, Harbor’s challenge is hypothetical and speculative and as

a result is not ripe. In addition, the exception for issues of major public importance does not

apply.

         Accordingly, we hold that Harbor’s UDJA claim regarding RCW 18.106.020(1) is not

justiciable, and we affirm the trial court’s dismissal of that claim.

C.       APA CHALLENGE TO WAC 296-400A-024(3)

         Harbor argues that the trial court erred in dismissing its challenge to WAC 296-400A-

024(3) under CR 12(b)(6) despite Harbor’s allegation that DLI failed to follow the required APA

rulemaking procedures. We hold that the rulemaking procedures are inapplicable because WAC

296-400A-024(3) does not meet the definition of “rule” under RCW 34.05.110(16).

         1.   Legal Background

              a.   APA Rulemaking Requirements

         The APA provides specific requirements before an agency may promulgate a rule,

including notice requirements under RCW 34.05.320. The agency must publish in the state

register specified information including a description of the rule’s purpose and an explanation of

the rule, its purpose, and its anticipated effects. RCW 34.05.320(1)(a), (c). Harbor’s complaint

alleged that DLI had failed to comply with the rulemaking procedures in RCW 34.05.320 in

adopting WAC 296-400A-024.

         However, rulemaking procedures apply only if an agency action meets the APA

definition of a rule. Budget Rent A Car Corp. v. Dep’t of Licensing, 144 Wn.2d 889, 895, 31

P.3d 1174 (2001). RCW 34.05.010(16) defines “rule” as “any agency order, directive, or

regulation of general applicability” that falls within one of five categories. One category is when

violation of a regulation “subjects a person to a penalty or administrative sanction.” RCW




                                                  12
No. 51767-1-II


34.05.010(16)(a). Other categories include when a regulation establishes, alters, or revokes any

qualifications for the enjoyment of benefits, RCW 34.05.010(16)(c), or establishes, alters, or

revokes the issuance, suspension, or revocation of a license. RCW 34.05.010(16)(d).

       RCW 34.05.570(2) provides for the judicial review of agency rules. RCW

34.05.570(2)(b)(i) provides that “[t]he validity of any rule may be determined upon petition for a

declaratory judgment” when the rule appears to interfere with the plaintiff’s legal rights or

privileges. The plaintiff may petition the trial court without first requesting review by the

agency. RCW 34.05.570(2)(b)(i). One basis for the court to declare a rule invalid is if the rule

was adopted without compliance with statutory rulemaking procedures. RCW 34.05.570(2)(c).

Harbor’s complaint stated that its challenge to WAC 296-400A-024 was asserted under RCW

34.05.570(2).

            b.    Plumbing Certificate Requirements

       DLI’s proposed WAC 296-400A-024 would have required individuals working in the

plumbing trade to possess, wear, and visibly display a valid certificate of competency, and

contained specific instructions regarding how the certificate could be worn. Wash. St. Reg. 15-

20-124 (Oct. 7, 2015) at 155. The proposed rule also required that the certificate be immediately

available for examination and that the individual be in possession of government-issued photo

identification. Wash. St. Reg. 15-20-124 (Oct. 7, 2015) at 155.

       The permanent rule adopted by DLI maintained all of those same requirements except for

wearing the certificate of competency, which was only encouraged rather than required. WAC

296-400A-024(3). However, WAC 296-400A-024 still contains mandatory provisions. WAC

296-400A-024(1) states that the certificate must be immediately available for examination at all

times. WAC 296-400A-024(2) requires that an individual have governmental issued photo




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No. 51767-1-II


identification in his or her possession. And WAC 296-400A-024(3) requires plumbers to possess

a current, valid certificate of competency. All of these mandatory requirements also are

contained in RCW 18.106.020(1).

       If a person fails to follow plumber certification requirements, WAC 296-400A-300(1)

requires DLI to issue a notice of infraction. WAC 296-400A-300(2) specifically lists several

bases for an infraction, including the failure to have a department-issued certification card and

governmental photo identification on the job site. WAC 296-400A-300(2)(d). Failing to wear a

competency certificate is not a basis for an infraction under WAC 296-400A-300(2). A person

cited for an infraction is assessed a monetary penalty that increases with each successive

infraction. WAC 296-400A-400(1).

             c.   Principles of Statutory Interpretation

       Interpretation of whether WAC 296-400A-300 qualifies as a rule under the APA is a

question of law that we review de novo. See Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d

1003 (2014). The primary goal of statutory interpretation is to determine and give effect to the

legislature’s intent. Id. at 762. To determine legislative intent, we look first to the plain

language of the statute. Id. We consider the language of the provision at issue, the context of the

statute in which the provision is located, and related statutes. Protect the Peninsula’s Future v.

Growth Mgmt. Hr’gs Bd., 185 Wn. App. 959, 969, 344 P.3d 705 (2015). We give words their

usual and ordinary meaning. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243

P.3d 1283 (2010). We may refer to a dictionary to determine the plain meaning of an undefined

statutory term. Nissen v. Pierce County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015).

       If the plain meaning of a statute is unambiguous, we apply that plain meaning as an

expression of legislative intent without considering extrinsic sources. Jametsky, 179 Wn.2d at




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No. 51767-1-II


762. We will not rewrite unambiguous statutory language or add language to an unambiguous

statute under the guise of interpretation. Protect the Peninsula’s Future, 185 Wn. App. at 970.

       2.    Challenged Provision of WAC 296-400A-024(3)

       Harbor argues that only the portion of WAC 296-400A-024(3) regarding the wearing of

certificates is invalid: “To work in the plumbing trade, an individual . . . is encouraged to wear,

and visibly display on the front of the upper body a current, valid certificate of competency.”

This portion of WAC 296-400A-024(3) does not meet the definition of “rule” in RCW

34.05.010(16).

       There is no question that the certificate wearing provision is voluntary. WAC 296-400A-

024(3) encourages but does not require plumbers to wear their certificates. As a result, none of

the five categories in the statutory definition of a rule applies. A voluntary provision does not

subject a person to a penalty or sanction for failing to comply. RCW 34.05.010(16)(a). A

voluntary provision does not establish, alter, or revoke any qualifications for the enjoyment of

benefits or for the issuance, suspension, or revocation of a license. RCW 34.05.010(16)(c), (d).

       Harbor suggests that we imply a requirement under RCW 34.05.010(16) that any

regulation that is proposed, promulgated, and codified in the WAC should be treated as a rule.

But the plain language of RCW 34.05.010(16) does not include any such requirement, and we

will not add language to a statute under the guise of interpretation. Protect the Peninsula’s

Future, 185 Wn. App. at 970.

       Harbor also suggests that we treat the certificate wearing provision as an amendment to

an existing rule. RCW 34.05.010(16) states that a rule includes the amendment of a prior rule.

But WAC 296-400A-024 was promulgated as a new regulation and clearly is not an amendment.




                                                 15
No. 51767-1-II


       Finally, Harbor argues that WAC 296-400A-024(3) is a rule because even though the first

part of the subsection states that plumbers are only encouraged to wear their certificates, the

remainder of the subsection outlines detailed methods of compliance. According to Harbor,

those methods of compliance seem more mandatory than voluntary. But under the plain

language of WAC 296-400A-024(3), those methods of compliance are not mandatory.

       We hold that under the plain language of RCW 34.05.010(16), the portion of WAC 296-

400A-024(3) that Harbor challenges does not constitute a “rule” under the APA. Therefore, we

hold that the APA rulemaking procedures are inapplicable to WAC 296-400A-024(3).

       3.   WAC 296-400A-024 as a Whole

       Harbor briefly suggests that WAC 296-400A-024 viewed as a whole constitutes a rule

under RCW 34.05.010(16) because even though the certificate wearing provision is voluntary,

the regulation contains several other mandatory provisions. Harbor apparently claims that WAC

296-400A-024 as a whole was subject to the APA rulemaking requirements even if WAC 296-

400A-024(3) standing alone was not.

       However, Harbor did not argue in the trial court that the focus should be on the entire

regulation rather than only the provision encouraging plumbers to wear their certifications in

determining the applicability of the APA rulemaking requirements. We generally do not

consider arguments raised for the first time on appeal. Kave v. McIntosh Ridge Primary Rd.

Ass’n, 198 Wn. App. 812, 823, 394 P.3d 446 (2017).

       In addition, even on appeal Harbor does not provide any detailed argument on this issue.

Harbor states that “perhaps” the existence of the mandatory provisions of WAC 296-400A-024

means that the regulation as a whole must be treated as a rule. But Harbor presents no further




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argument. We generally do not consider issues not supported by meaningful argument. Shelcon

Constr. Grp., LLC v. Haymond, 187 Wn. App. 878, 889, 351 P.3d 895 (2015).

       Accordingly, we decline to consider Harbor’s suggestion that WAC 296-400A-024

viewed as a whole constitutes a rule.

       4.   Additional Arguments by Harbor

       Harbor asserts several other arguments to support its challenge to WAC 296-400A-

024(3) even if the challenged provision does not constitute a rule under the APA. We reject all

of these arguments.

       First, Harbor argues that although DLI ultimately adopted a regulation that did not

constitute a rule, that regulation should be invalid because DLI initially proposed a rule and

failed to follow the APA rulemaking requirements. But Harbor sought to invalidate WAC 296-

400A-024(3) under RCW 34.05.570(2), which provides judicial review regarding agency rules.

Therefore, even if DLI initially violated the APA regarding the proposed rule, Harbor cannot

challenge WAC 296-400A-024(3) under RCW 34.05.570(2) because the regulation ultimately

adopted did not meet the APA’s rule definition.

       In addition, any violation of APA rulemaking requirements regarding a proposed rule

would become moot if no rule was adopted. We generally will not consider a case that is moot

or presents abstract questions. 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195 Wn. App. 423,

433, 382 P.3d 1 (2016), review denied 187 Wn.2d 1003 (2017). An allegation that an agency

would be required to follow rulemaking procedures if it had enacted a rule presents a

hypothetical issue.

       Second, Harbor argues that even if WAC 296-400A-024(3) is not a rule, Harbor should

still be able to challenge the provision on grounds other than RCW 34.05.570(2). Harbor argues




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that although its complaint stated that it was challenging WAC 296-400A-024(3) based only on

RCW 34.05.570(2), limiting the claim to a RCW 34.05.570(2) challenge would improperly

impose a code pleading requirement.

       However, notice pleading under CR 8 does not allow a plaintiff to allege only the factual

basis in its pleading, leaving the plaintiff unrestricted as to any particular legal theory. See Pac.

Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006). A

complaint is insufficient if it fails to give opposing parties fair notice of the claims asserted. Id.

The Supreme Court explained the rule in reference to a plaintiff’s late attempt to raise a claim

under the Consumer Protection Act (CPA):

       To give effect to . . . CR 8 . . . , a litigant must plead more than general facts in a
       complaint to properly allege a CPA cause of action. If no reference is required to
       the CPA, a litigant would not have to amend its complaint to assert a violation. If
       this were the rule, a litigant could simply await trial and surprise its adversary with
       a CPA claim so long as enough facts were intermixed in the complaint. In hindsight
       it is easy to view facts and agree they support a CPA claim. It is a much more
       difficult, if not an impossible task, to predict whether a plaintiff will raise such a
       claim when it is not alleged in the complaint.

Trask v. Butler, 123 Wn.2d 835, 846, 872 P.2d 1080 (1994). Harbor cannot now argue a cause

of action not alleged in its complaint, which in this case is limited to challenging WAC 296-

400A-024 under RCW 34.05.570(2).

       Third, and similarly, Harbor argues that we should treat WAC 296-400A-024 as a statute.

RCW 35.04.570(4) allows a party to challenge an “other agency action,” and RCW 34.05.010(3)

defines “agency action” to include implementation or enforcement of a statute. Therefore, if

WAC 296-400A-024 was a statute, Harbor could challenge its implementation under RCW

35.04.570(4). But Harbor cites no authority for the proposition that an agency regulation can

qualify as a statute. In addition, as discussed above, Harbor’s complaint alleges only that DLI

violated RCW 34.05.570(2), not RCW 35.04.570(4).



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       Fourth, Harbor argues that the version of WAC 296-400A-024(3) adopted by DLI is

invalid because it is substantially different than the proposed version. Under RCW 34.05.340(1),

an agency may not adopt a rule that is substantially different from the proposed rule published in

the agency’s notice without commencing a new rulemaking proceeding. But as with the other

rulemaking provisions, RCW 34.05.340(1) applies only to “rules.” As discussed above, the

certificate wearing provision in WAC 296-400A-024(3) does not constitute a rule. Therefore,

RCW 34.05.340(1) is inapplicable to that provision.

       Fifth, Harbor argues that the trial court erred in characterizing the certificate wearing

provision as a policy statement. But the trial court did not characterize the provision as a policy

statement. See Report of Proceedings (RP) at 18 (“I’m not saying that’s what this is.”). And in

any event, our analysis does not depend on a finding that WAC 296-400A-024(3) constituted a

policy statement.

       Sixth, Harbor argues that by passing a regulation that is not a rule, DLI has improperly

created an “exception” to judicial review. But a regulation still can be subject to judicial review

even if it does not constitute a rule. As discussed above, a party can challenge a regulation that

does not constitute a rule as an “other agency action” under RCW 34.05.570(4).

D.     ATTORNEY FEES

       Harbor argues that if we reverse the trial court’s ruling, we also reverse the trial court’s

award of statutory attorney fees of $200 to DLI. Because we affirm the trial court’s dismissal,

we do not reverse the trial court’s statutory attorney fee award.

       Harbor also requests attorney fees and costs on appeal under RCW 4.84.350 and RAP

14.2. But because Harbor has not prevailed on appeal, it is not entitled to attorney fees or costs.




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                                         CONCLUSION

        We affirm the trial court’s order dismissing Harbor’s complaint.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    MAXA, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




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