Mark C. Iden & Vicki Winston v. Dept Of L & I

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARK C. IDEN and VICKI WINSTON, )
) No. 74727-4-1
Appellants, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
WASHINGTON STATE DEPARTMENT)
OF LABOR AND INDUSTRIES, )
ELEVATOR SECTION, )
)
Respondent. ) FILED: February 27, 2017

TRICKEY, A.C. J. — Mark lden and Vicki Winston access their home via an
incline elevator. They appeal a decision by the Washington State Department of

Labor /and Industries (the Department) to put their elevator out of service based

on the Department's determination that the elevator was unsafe and violated

Washington's safety regulations. An administrative law judge (AU) and the

superior court affirmed the Department's determination. !den and Winston argue

that their elevator is safe and that the Department issued a variance for the

elevator in 1989. Substantial evidence supports the AL's findings, adopted by

the superior court, that the elevator is unsafe and that the Department never

granted a variance for the elevator.

Iden and Winston also argue that the doctrines of equitable estoppel and

!aches bar the Department from currently asserting that the elevator is unsafe or

violates safety regulations. Because lden and Winston have not shown that

allowing the Department to enforce its safety regulations would create a manifest

injustice and have not shown they were prejudiced by the Department's delay,

we affirm.
 No. 74727-4-1 /2

FACTS'

In 1992, !den and Winston, a married couple, purchased a house in

Burien, Washington from Robert Roblee and his wife (the Roblees). The house

is at the bottom of a very steep slope. The only two ways to reach the house

from the parking area are a "treacherous footpath" with several switchbacks and

a Rehmke Mark 12 tram incline elevator.2 The house is "practically inaccessible"

without the elevator.3

The Roblees installed the Rehmke elevator in 1989. The Department

completed an inspection of the elevator after its installation. The Department

issued a temporary operating permit but warned the owners that they would need

to secure a variance because the elevator did not meet the standards for several

Washington safety regulations.4

The primary issue with the elevator is that it uses a Rehmke hook as a

safety in case the cable that lifts the car breaks. Since 1987, the American

Society of Mechanical Engineers has required elevators to have either a Type A

safety, which stops the elevator car immediately, or a Type B safety, which stops

the car in less than 15 inches. When it works, the Rehmke hook stops the car

'These facts rely heavily on the All's findings of fact, which were incorporated into the
superior court's order. Iden and Winston have not complied with the RAP 10.3(g), (h)
requirement to specify by number any findings of fact they contest. Unchallenged
findings of fact are verities on appeal. In re Marriage of Akon, 160 Wn. App. 48, 57, 248
P.3d 94 (2011). In light of the liberal policies of RAP 1.2, we do not treat as verities any
of the All's or the superior court's findings that !den and Winston clearly challenge. See
Ferry County v. Growth Mgmt. Hearings Bd., 184 Wn. App. 685, 725, 339 P.3d 478
(2014).
2 Clerk's Papers(CP) at 13-14 (Findings of Fact(FF)4.1,4.6).
3 CP at 14(FF 4.6).
4 "(A) WAC 296-94-110 #1;(B) WAC 296-94-120 #2, #3, #4;(C) WAC 296-94-170 #3."
CP at 14(FF 4.4).
2
No. 74727-4-1 /3

within four feet, but causes metal fatigue and damage. Unfortunately, sometimes

the Rehmke hook does not work, and the runaway elevator car gains speed and

momentum.

The Roblees requested a variance, explaining the design of the Rehmke

hook. According to the Department, it never granted the Roblees a variance to

use a Rehmke hook instead of a Type A or Type B safety. Nevertheless, the

Department issued the Roblees a permanent operating permit.

!den and Winston relied on the permit as proof that the elevator was safe

and legally operable without upgrades or replacements. Without the permit, they

would not have agreed to purchase the house at the same price.

In June 1993, the Department inspected the elevator again. The

Department demanded that the owners correct several deficiencies within 90

days, including that the safety did not comply with WAG 296-94-170.

In August 1994, Iden and Winston scheduled a new inspection but

cancelled it.

In November 1997, the Department sent a letter to check the status of the

elevator and schedule a new inspection. It noted that the elevator had not

passed its last inspection and enclosed a copy of the 1993 inspection report.

There was no inspection for the next decade.

In 2005, the Department determined that the Rehmke hook was not only

out of compliance with the Washington regulations, but posed "a very real and

very immediate danger" to users.5 The Department warned the companies that

maintained the elevators about the dangers but did not immediately contact the

5 CP at 121 (FF 4.21).
3
No. 74727-4-1 / 4

homeowners. Because 'den and Winston performed their own maintenance and

repairs, they did not learn about the Department's concerns at that time.

In June 2008, the Department sent letters to all Rehmke elevator owners,

notifying them that the Department believed that the Rehmke hook was

dangerous. The letter suggested that owners of elevators using a Rehmke hook

attempt to upgrade their elevators to "current standards" and advised that the

Department would "take further steps to bring these lifts into compliance."6

In January'2013, the Department inspected Iden and Winston's elevator

and determined that it was unsafe. The Department "red tagged" the elevator,

making it illegal to operate. In February, the Department removed the red tag,

giving Iden and Winston until May 2013 to work out a plan and timeline for

bringing the elevator into compliance.

There is essentially no way to bring !den and Winston's current elevator

into compliance without replacing the elevator. The estimated cost to replace the

elevator ranges from $80,000 to $125,000.

!den and Winston requested a hearing to contest the Department's

determination. An AU affirmed the Department's decision. Iden and Winston

sought judicial review of the All's decision. The superior court affirmed the

AL'S decision. !den and Winston appeal.

ANALYSIS

As a preliminary matter, !den and Winston have not properly supported

many of their arguments with citation to legal authority, in violation of RAP

10.3(a)(6). Moreover, although Iden and Winston provide some record citations

6 Administrative Record (AR)at 145.
No. 74727-4-1/ 5

in their statement of the case, they do not provide adequate record citations in

their argument section. We acknowledge that [den and Winston are representing

themselves. But self-represented litigants are "expected to comply" with the

rules of appellate procedure. State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn.

App. 299, 310, 57 P.3d 300(2002).

We elect to review the issues 'den and Winston raise, despite the

inadequate briefing, but note that the absence of citations makes our review

difficult.

The Washington Administrative Procedure Act (WAPA), chapter 34.05

RCW,governs judicial review of agency actions. City of Seattle v. Swanson, 193

Wn. App. 795, 810, 373 P.3d 342 (2016). The superior court may overturn an

agency decision only if the "decision is based on an error of law, the order is not

supported by substantial evidence, or the order is arbitrary and capricious."

Campbell v. State Emp't Sec. Depl, 180 Wn.2d 566, 571, 326 P.3d 713 (2014).

The Court of Appeals sits in the same position as the superior court. Swanson,

193 Wn. App. at 810.

Compliance with Safety Regulations

!den and Winston argue that the All and the superior court erred by

determining that 'den and Winston's elevator was unsafe and ordering them to

discontinue its use. Because substantial evidence supports the AL's and the

superior court's decisions, we disagree.

We will uphold the AL's findings of fact as long as they are supported by

substantial evidence. Campbell, 180 Wn.2d at 571. Substantial evidence is that
No. 74727-4-1/6

which is sufficient to persuade a fair-minded person of the truth of the declared

premise. Sprint Spectrum, LP v. State Dep't of Revenue, 174 Wn. App. 645,

653, 302 P.3d 1280 (2013). "We review the evidence in the light most favorable

to the party who prevailed in the highest administrative forum to exercise fact-

finding authority." Sprint, 174 Wn. App. at 654. "We do not reweigh the

evidence." Univ. of Wash. Med. Ctr. v. State Dep't of Health, 164 Wn.2d 95, 103,

187 P.3d 243(2008).

Here, the Department had the authority to inspect private elevators and

red tag any that it determined were unsafe. RCW 70.87.120(4), .145(5). An

elevator is unsafe if it does not have a Type A or Type B safety, or a Department

approved substitute. WAG 296-96-07170(1)(a). These safety rules were in

effect in 1989 when [den and Winston's elevator was installed.7 WAG 296-96-

00650.

It does not appear that lden and Winston challenge these legal

conclusions or a finding that, without a variance, their elevator does not conform

to these standards. Most of lden and Winston's arguments on this point are

challenges to the All's finding that the Department did not grant lden and

Winston a variance.

lden and Winston were able to produce some evidence that their elevator

had received a variance. The Department issued the Roblees an operating

permit, and sent the Roblees an "acceptance letter" after the Roblees' engineer

applied for a variance on their behalf.8 But the Department had an employee

7 See former WAG 296-94-170(2)(1986).
8 AR at 173, 259.

6
No. 74727-4-1 / 7

testify that issuing an operating permit would not necessarily have meant that the

Department had concluded the elevator was "in compliance with the law."9 And

the Roblees' engineer's letter requested variances for a variety of deficiencies,

including, for example, the height of the cars' enclosures. Even assuming the

Department was accepting some of the requests for variances, it is not clear

which requests the Department was accepting.

Moreover, Iden and Winston did not produce a variance or a witness who

could testify from personal knowledge that the Department issued a variance for

this elevator. Iden testified that he was never able to "provide the Department

with any documentation supporting [his] belief that there was a variance

granted."19

!den and Winston argue that it was the Department's duty to maintain

records of variances. But they cite no authority for the position that the

Department has the burden to prove that it did not issue a variance or that the

Department's failure to produce a record of a variance is evidence that a

variance was granted."

We conclude that substantial evidence supports the All's finding that the

Department never affirmatively granted the Roblees a variance for this elevator.

!den and Winston also raise several challenges to the AL's finding that

9 AR (Jan. 6, 2015) at 106-107.
10 AR (Jan. 29, 2015) at 361.
11 !den and Winston argue that the Department improperly destroyed evidence of the
variance. "Spoliation" is "R]he intentional destruction of evidence." Henderson v. Tyrrell,
80 Wn. App. 592, 605, 910 P.2d 522(1996)(alteration in original)(quoting BLACK'S LAW
DICTIONARY 1401 (6th ed. 1990)). The Department contends that !den and Winston
cannot raise this issue on appeal because they did not raise it to the All. Accordingly,
we do not reach this issue. See RAP 2.5(a).
7
No. 74727-4-1/ 8

the Rehmke hook is not as safe as a Type A or Type B safety. Their concerns

include that the Department's employee did not provide a report for the accident

involving an elevator with a Rehmke hook that she witnessed, that a video

showing how a Rehmke hook could cause accidents was not reliable, that the

Department's concerns about the dangers of the Rehmke hook were not credible

because it waited three years before alerting homeowners, and that there have

been no accidents involving elevators with Rehmke hooks in Washington.

Their challenges ask us to reweigh evidence and assess the credibility of

the Department's witnesses. Essentially, it appears that !den and Winston would

like us to conduct a de novo review of the Department's determination that the

Rehmke hook was unsafe. That is not appropriate at this stage of review.

Additionally, even if a Rehmke hook provides a comparable level of

protection as a Type A or Type B safety, !den and Winston would still need to

receive a variance in order to be in compliance with the regulations. Therefore,

the Department would be within its authority to red tag !den and Winston's

elevator. The Department suggests that 'den and Winston are currently seeking

a variance or are seeking a holding that the Rehmke hook should qualify for a

variance. If that is true, lden and Winston must apply to the Department for that

variance; this court does not have the authority to decide that question in the first

instance.

We conclude that the All and the superior court did not err by concluding

that the Department properly red tagged Iden and Winston's elevator.

8
No. 74727-4-1/9

Equitable Estoppel

!den and Winston argue that the Department should be equitably

estopped from enforcing Washington's safety regulations. Specifically, 'den and

Winston argue that they purchased their house at a greater price than they would

otherwise have paid in reliance on the Department's issuance of the operating

permit. Because !den and Winston cannot show that there would be a manifest

injustice if the Department is not estopped, we disagree.

To show that a government entity is equitably estopped from taking a

position, the person asserting estoppel must prove the following elements by

clear, cogent, and convincing evidence:

(1) a statement, admission, or act by the party to be estopped,
which is inconsistent with its later claims;
(2) the asserting party acted in reliance upon the statement or
action;
(3) injury would result to the asserting party if the other party were
allowed to repudiate its prior statement or action;
(4) estoppel is "necessary to prevent a manifest injustice"; and
(5)estoppel will not impair governmental functions.

Silverstreak, Inc. v. Washington State Dep't of Labor & Indus., 159 Wn.2d 868,

887, 154 P.3d 891 (2007)(quoting Kramarevcky v. Dep't of Soc. & Health Servs.,

122 Wn.2d 738, 743, 863 P.2d 535 (1993)).

Here, the All found that there would be no manifest injustice if the

Department were allowed to proceed with this action. From at least 1993

onward, 'den and Winston were on notice that the Department considered their

elevator to be out of compliance. The All concluded that, "[a]mortized over 21

years, the large present expense [of replacing the elevator] is relatively small."12

12 CP at 22(Conclusion of Law 5.14).
9
No. 74727-4-1 /10

Moreover, within a month of red tagging the elevator, the Department was willing

to allow !den and Winston to continue to use their elevator as they worked out a

plan and timeline to replace it. We cannot say the AL's conclusion that there

was no manifest injustice was erroneous. Because [den and Winston cannot

prove that enforcing the Department's rules would be a manifest injustice, their

equitable estoppel argument fails.

Laches

!den and Winston argue that the doctrine of laches bars the Department's

attempt to enforce the safety regulations against them because of the

Department's unreasonable delay. Because !den and Winston were not

prejudiced by the delay, we disagree.

The party asserting the doctrine of laches must prove two elements: "`(1)

inexcusable delay and (2) prejudice to the other party from such delay."

Automotive United Trades Orp. v. State, 175 Wn.2d 537, 542, 286 P.3d 377

(2012)(quoting State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d

226, 241, 88 P.3d 375 (2004)).

There is no denying that the Department was slow to enforce its rights.

From 1989 to 2013, the Department knew that Iden and Winston's elevator was

out of compliance but took little action to force Iden and Winston to bring the

elevator into compliance. But the record demonstrates that the Department

became much more concerned about the safety of elevators with the Rehmke

hooks in 2005 and communicated its concerns to the professionals who serviced

those elevators at that time. Three years later, the Department issued a serious

10
No. 74727-4-1 / 11

warning to lden and Winston about the safety of the Rehmke hook. Given the

Department's preference, stated in its 2008 letter, for the homeowners to mitigate

the issues with the Rehmke hook, we cannot say that the Department's delay

between was inexcusable.

Even if the delay were inexcusable, !den and Winston cannot show

prejudice. A defendant cannot prove damage or prejudice "simply by showing he

is having to do now what he has been legally obligated to do for years." In re

Marriage of Capetillo, 85 Wn. App. 311, 318, 932 P.2d 691 (1997). lden and

Winston's elevator has never been in compliance with applicable Washington

safety regulations. They have known since at least 1993 that they were legally

obligated to bring the elevator into compliance, and received another two

warnings about the elevator over the last 20 years. They are not prejudiced by a

requirement to finally fulfill their legal obligation. lden and Winston's argument

that the doctrine of laches bars the Department's claim fails.

We affirm the order of the superior court.

T A3
WE CONCUR:

11