Plumbing v. Washington State Department of Labor and Industries
| Decision Date | 31 July 2018 |
| Docket Number | 51767-1-II |
| Citation | 4 Wn.App.2d 1065 |
| Court | Washington Court of Appeals |
| Parties | HARBOR PLUMBING, Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
UNPUBLISHED OPINION
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 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.
FACTS[2]
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 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).
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.
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.
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 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.
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.
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:
"(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.
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,...
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