Householder Exemption Does Not Excuse Subcontractor Performing Unlicensed Electrical Work on a Residential Project Owned by General Contractor

On April 28, 2014, Division I of the Washington Court of Appeals held that the householder exception of RCW 19.28.261(6) does not permit a subcontractor to perform unlicensed electrical work on a residential project owned by a general contractor.

In Marysville Taping Company v. Department of Labor and Industries, a general contractor, Gilbertson Construction (“Gilbertson”), employed Marysville Taping Company (“MTC”) for sheetrock services.[i]  Gilbertson instructed MTC to install wires connecting an electrical pole to a portable heater inside the house.  No MTC employee was certified to do electrical work.

The Department of Labor and Industries cited MTC for violating RCW 19.28.2041 for installing cables that convey electric current without a valid license; RCW 19.28.271 for employing an individual for electrical work who is not certified to do such work; and RCW 19.28.010 for installing wires the convey electrical current without conforming to statutes, rules, and approved methods of construction for safety of life and property.

MTC appealed the citations to the Department’s Office of Administrative Hearings.  MTC asserted that the owner of Gilbertson’s planned to live in the residence, and that MTC was assisting Gilbertson by installing the heater.  MTC 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.  MTC contended that Gilbertson provided the wire and instructed him to connect the heater to the electrical pole. 

The Office of Administrative Hearings agreed with MTC, finding that the Department failed to show MTC’s actions were violations in light of the householder exemption. The Department appealed to the Washington State Electrical Board, which disagreed and determined that the householder exemption did not apply.  MTC then appealed to the Snohomish County Superior Court and, when that was unsuccessful, to the Court of Appeals.

The householder exemption of RCW 19.28.261(6) provides:

Nothing in RCW 19.28.161 through 19.28.271 shall be construed to restrict the right of any householder to assist or receive assistance from a friend, neighbor, relative, or other person when none of the individuals doing the electrical installation hold themselves out as engaged in the trade or business of electrical installations.

Division I of the Washington Court of Appeals affirmed the Snohomish County Superior Court and Washington State Electrical Board’s holding that the householder exemption did not apply. 

The Court of Appeals first found that the householder exemption is expressly limited to RCW 19.28.161-.271, and does not shield a householder or an assistant from violating RCW 19.28.010, which requires all electrical installations to conform to the applicable law, regulations, and approved methods of construction for safety of life and property.

The Court further found that MTC did not establish the householder exemption applied to it.  MTC failed to obtain a finding that Gilbertson occupied or dwelled in the house or that he intended to live there.  In fact, the records supported the determination that he did not.

Furthermore, even assuming that Gilbertson was a “householder,” MTC was hired as a subcontractor to perform paid work under contract and not a “friend, relative, neighbor, or other person” assisting a householder.  Under the ejustem jeneris rule, the phrase “or other person” must be read consistently with the more specific words, “friend, neighbor, relative,” to mean a person with an analogous relationship to the householder.  A subcontractor paid to perform work for a general contractor is significantly different than a friend, relative, or neighbor helping out.

[i]__ P.3d, __, 2014 WL 1711423 (April 28, 2014) (Unpublished Opinion).  

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