HomeMy WebLinkAbout09-21-2016 HEARING EXAMINER AGENDA PACKET
HEARING EX AM INER
September 21, 2016
5:30 p.m.
Location - City Hall Annex Conference Room 2
Located on the 2nd floor of One Main Professional Plaza, One East Main Street
Case No: APL16-0002
Applicant/
Agent: Mark D. Nelson, PLLC
7901 Skansie Ave., Suite 240
Gig Harbor, WA 98335
Applicant: GREEN SOLUTION PLACE
PRELUDIO MAN AGEMENT LLC d/b/a/
GREEN SOLUTION PLACE, a
Washington limited liability company,
And STANLEY LOHNSON, an
Individual
Request: Appellant Green Solution Place Preludio Management LLC d/b/a
Green Solutions Place and Stanley Johnson opportunity to re-argue
the City of Auburn Motion to Dismiss the Appeal of Partial Denial of
Business License Application for Green Solution Place (Reference No.
BUS-31559) issued June 6, 2016.
The hearing is limited to consideration of the appeal arguments only. Interested persons may
attend to express comments related to the appeal arguments or provide written comments
specif ically related to the appeal arguments up to and at the public hearing to Jeff Dixon, Planning
Services Manager, Community Development & Public W orks Department, Mailing address: 25 W est
Main Street, Auburn, W A 98001-4988. Physical address: 1 East Main Street, Auburn W A 98001.
For comments or questions, please contact jdixon@auburnwa.gov or (253) 804-5033.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 1 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
GREEN SOLUTION PLACE PRELUDIO
MANAGEMENT LLC d/b/a GREEN
SOLUTION PLACE, a Washington limited
liability company, and STANLEY JOHNSON,
an individual,
Appellants,
v.
CITY OF AUBURN, a municipal corporation
Respondent.
MOTION TO DISMISS APPEAL OF
PARTIAL DENIAL
COMES NOW Respondent, the City of Auburn, by and through its undersigned
counsel, and moves for an Order dismissing the above-captioned matter because Appellants’
fail to state a claim for which relief can be granted. Appellants rely on irrelevant provisions of
prior law, unrelated City code titles, and different business classifications. Irrelevant, unrelated
and different matters do not meet Appellants’ burden of proof to entitle them to the issuance of
a City business license to engage in federally criminalized activities. Likewise, Appellants
ignore established law regarding the authority of the City to deny business licenses, the narrow
scope of nonconforming use status and the presumed validity of local law and ask this hearing
examiner to contradict a superior court order. The law supports dismissal of this appeal.
Additionally, Appellants’ requested relief violates the superior court’s injunction issued on
May 10, 2016. This motion is supported by the following Memorandum of Points and
Authorities, together with the entire record of this matter incorporated herein by this reference.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 2 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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Memorandum of Points and Authorities
“Appellants appeal the Notice of Partial Denial of Business License Application for
Green Solution (City of Auburn Reference No. BUS-31559) issued June 6 2016.” Appeal, ¶ 6.
The Notice of Partial Denial of Business License contested by Appellants was issued on June
6, 2016. A copy of the Notice of Partial Denial is attached as Exhibit A. This appeal must be
dismissed because appellants have not stated a claim for which relief can be granted.
Appellants raise three arguments in support of their appeal: (1) that “ordinance no. 6595 should
not be applied retroactively,” (2) that “appellants’ use is a non-conforming use under Auburn
City [Zoning] Code,” and (3) that the existence of other, similar businesses without a business
licenses violates their right to equal protection. Appeal ¶¶ 30-3.
Appellants’ arguments are inapposite, ignore established law, and ask this hearing
examiner to contradict a superior court order. Auburn City Code 2.46.120(A) provides that
appellants “shall have the burden of proof, by a preponderance of the evidence, as to material
factual issues except where applicable city code provisions or state law provides otherwise.”
ACC 2.46.120(A) (emphasis added). Appellants have not asserted any facts to carry the
required burden of proof. Dismissal is, therefore, appropriate.
1. Appellants’ argument regarding retroactive application of Ordinance No. 6595 is
inapposite, ignores established law, and contradicts the superior court because
Ordinance No. 6595 is not being applied retroactively and is not the only
applicable law.
Existing businesses must comply with newly adopted business licensing requirements.
See, e.g., World Wide Video, Inc. v. City of Tukwila, 117 Wn. 2d 382, 819 P.2d 18 (1991)
(upholding a city licensing ordinance adopted approximately one year after the regulated
business commenced operation). Appellants have not been cited for lacking a business license
prior to the adoption of Ordinance No. 6595. The City’s enforcement actions apply to
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 3 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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Appellants’ conduct after the adoption of Ordinance No. 6595. There is no retroactive
application.
Consequently, it is irrelevant that “on December 31, 2015, a business license was not
required in the City of Auburn for any person who has a valid, lawful license from the state of
Washington to sell marijuana in conformance with WSLCB regulations and state law.”1
Appeal, ¶ 12. The only relevant provisions are the eight (8) grounds for denial of a business
license specified by the City’s Code. There is no basis for overturning the City’s denial of
Appellants’ business license to sell cannabis if it is authorized by any of the provisions of ACC
5.15.050.
Examining the eight provisions of ACC 5.15.050 reveals that the City’s denial of
Appellants’ application to sell cannabis conforms to the plain language of ACC 5.15.050(B)
and ACC 5.15.050(H). The Notice of Partial Denial prohibits the sale of any cannabis
products. Exhibit A, p. 4. The possession, sale, or distribution of cannabis violates the federal
Controlled Substances Act. 21 U.S.C. §§ 841(a)(1), 802(6), and 812. The Notice of Partial
Denial explicitly states that violation of the Controlled Substances Act is a basis for the denial
1 Insofar as the requirements of local law on December 31, 2015, have any relevance at all, that relevance
pertains to whether Appellants must obtain any business license, not the validity of the City’s denial. In
fact, any argument that Appellants are not required to obtain a business license is self-defeating. If no
business license is required, denial of an application therefore accomplishes the same objective: no
business license. More importantly, whether the Appellants must obtain any business license is a legal
question of statutory interpretation the hearing examiner is not empowered to decide. In fact, Appellants
have already raised this claim in superior court. A copy of Appellants’ counterclaim is attached as Exhibit
B. Consideration of public records does not convert the City’s Motion to Dismiss into one for summary
judgment. Loger v. Washington Timber Products, Inc., 8 Wn. App. 921, 924, 509 P.2d 1009
(1973); See also Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.
2001); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276 (11th Cir.1999); Sebastian v. United
States, 185 F.3d 1368, 1374 (9th Cir.1999); General Elec. Capital Corp. v. Lease Resolution Corp., 128
F.3d 1074, 1080 (7th Cir.1997).This hearing examiner should reject Appellants’ request to issue a
decision of statutory interpretation that is in conflict with the superior court.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 4 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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of a city-issued business license to sell cannabis. Exhibit A, p. 2. Violation of federal law is a
clearly established basis for denial of a business license. ACC 5.15.050(B).2
Appellants have not, and cannot, assert any facts to dispute that possession, sale or
distribution of cannabis violates federal law. Substantively, the analysis begins and ends here.
Failure to comply with federal law is, by itself, sufficient to deny a business license for the sale
of cannabis. Denial of the portion of Appellants’ business license that pertains to the sale of
cannabis is justified on this basis alone, but the City provided additional bases for denial.
Notwithstanding the sufficiency of the violation of federal law as a basis for denial of a
business license to sell cannabis, the City is authorized to deny a business license whenever it
is determined that the business activity imperils the public health, safety, and welfare. ACC
5.15.050(H). The City’s Notice of Partial Denial explicitly states that City issuance of a
business license to sell cannabis subjects City employees to risk of federal prosecution, as
recognized by the Washington Supreme Court, which endangers public health, safety and
welfare. Exhibit A, p. 2; Cannabis Action Coalition v. City of Kent, 183 Wn. 2d 218, 22, ¶ 7,
351 P.3d 151 (2015). Appellants allege no facts to contradict the City’s conclusion and ignore
this 2003 code provision.3 Consequently, there is no basis for overturning the Notice of Partial
Denial.
Finally, neither the City’s business license manager, nor this hearing examiner have the
authority to permit what the Superior Court has already prohibited through injunction. A copy
of the court’s injunction is attached as Exhibit C. Appellants are subject to an injunction
2 Critically, compliance with federal law as a criterion for denial of a business license has been in City
code since 2003. Ordinance No. 5754. Appellants’ exclusive focus on Ordinance No. 6595 attempts to
ignore long-standing applicable law.
3 In fact, the City’s established record, in Ordinance No. 6525, Resolution No. 5194, Resolution No.
5215, and Ordinance No. 6595, on risk to public health, safety and welfare created by widespread sale of
cannabis is entitled to significant deference. Seeley v. State, 132 Wn. 2d 776, 795, 940 P.2d 604
(1997); Amunrud v. Board of Appeals, 124 Wn. App. 884, 888, 103 P.3d 257 (2004); State v.
Melcher, 33 Wn. App. 357, 655 P.2d 1169 (1982). Appellants cannot overcome this burden.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 5 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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prohibiting “causing allowing, permitting to occur, or failing to prevent, the continued
operation of any retail marijuana business.” Exhibit C, p. 3. Despite this, Appellants ask this
hearing examiner to direct the City to issue “any permit or license required by the City for
Appellants’ business activities in the City.” Appeal, ¶ 28. It defies logic to assert that this
hearing examiner or the City has any basis for issuing a business license to engage in business
activities already prohibited by the superior court. Paradise, Inc. v. Pierce County, 124 Wn.
App. 759, 775, ¶ 46, 102 P.3d 173 (2004) (quotation omitted). Dismissal is, therefore,
appropriate because it avoids a contradictory result between the hearing examiner and the
superior court.
2. Appellants’ argument regarding nonconforming status is inapposite, ignores
established law, and contradicts the superior court because business licensing
requirements are not zoning provisions and legal nonconforming status is
disfavored.
Appellants extend their argument beyond retroactivity and imply they are exempt from
business license requirements because their business is a nonconforming use. Appeal, ¶ 31.
This argument suffers the same infirmities as the first. “A nonconforming use is a use which
lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the
effective date of the ordinance, although it does not comply with the zoning restrictions
applicable to the district in which it is situated.” Rhod-A-Zalea & 35th, Inc. v. Snohomish
County, 136 Wn. 2d 1, 6, 959 P.2d 1024 (1998); ACC 18.04.650. Whether Appellants’
business is a nonconforming use is irrelevant.
Even if Appellants’ business existed prior to the adoption of prescriptive zoning
requirements, business licensing is not a “zoning restriction applicable to the district in which it
is situated.” Id. Moreover, denial of a business license to engage in federally criminalized
activity pertains to conduct that could occur anywhere, and makes no reference to the City’s
zoning code. “Nonconforming uses are uniformly disfavored and this court has repeatedly
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 6 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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acknowledged the desirability of eliminating such uses.” Id, at 8 (citation omitted);
McMilian v. King County, 191 Wn. App. 581, 592, ¶ 17, 255 P.3d 739 (2011). Despite the
desirability of eliminating nonconforming uses, Appellants urge this hearing examiner to
significantly expand nonconforming use so that a zoning code provision paralyzes all other
laws. Appellants cite to no authority for such an unjustified expansion because there is none.
In fact, the assertion that a zoning code provision paralyzes the operative effect of
business licensing requirements in a wholly separate Title of the City’s Code ignores
established doctrines of statutory interpretation. Unrelated statutes are not a mechanism for
interpreting the effect of a particular statute. Key Bank v. Everett, 67 Wn. App. 914, 919,
841 P.2d 800 (1992), review denied, 121 Wn. 2d 1025, 854 P.2d 1085 (1993); Chamberlain
v. Department of Transp., 79 Wn. App. 212, 217-18, 901 P.2d 344 (1995). The zoning code
provisions for nonconforming uses do not apply to business licensing requirements or to the
authority of the City to deny the portion of Applicants’ business license which seeks to engage
in federally prohibited activities.
Finally, the injunction against Appellants prevents the continued operation of any retail
marijuana business. Exhibit C, p. 3. An irrelevant provision of the City’s zoning code is no
basis for this hearing examiner to contradict the superior court and order the City to issue a
business license without the limitation that cannabis not be sold within the City. Dismissal is,
therefore, appropriate because it avoids a contradictory result between the hearing examiner
and the superior court.
3. Appellants’ argument regarding other marijuana retailers is inapposite, ignores
established law, and contradicts the superior court because the conduct of others’
does not entitle Appellants to a license to engage in said conduct and Appellants
cannot meet the beyond a reasonable doubt burden of proof required to invalidate
the City’s disparate treatment of different classes of businesses.
Appellants lastly rely on the existence of other marijuana retailers within the City as a
basis for overturning the City’s denial of the portion of their business license that prohibits
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 7 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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criminal activity: the sale of cannabis products.4 Appeal, ¶ 32. This assertion is wholly without
merit and amounts to little more than a speeder arguing he should not receive a traffic ticket
simply because other drivers were also speeding. More importantly, Appellants’ argument has
already been rejected by the Superior Court during oral argument on May 10, 2016, when the
court issued the current injunction.
A lack of enforcement against one person or entity violating a local law “does not
preclude its enforcement against others.” State ex rel. Miller v. Cain, 40 Wn. 2d 216, 225,
242 P.2d 505 (1952) (citations omitted). The operation of two other marijuana retailers in the
City of Auburn does not entitle Appellants to a City-issued business license authorizing
federally prohibited activities. Like the speeder who attempts to evade a traffic ticket on the
basis that other drivers were also speeding: Appellants’ argument is irrelevant. The City’s
denial of the business portion of the business license authorizing sale of cannabis was a proper
exercise of the discretion vested in the City under ACC 5.15.050.
Not only is the status of the other marijuana retailers irrelevant, Appellants’ argument
regarding the other retailers ignores established law regarding equal protection. Defendants
allege that the City is “treating them differently from other local business owners without
rational basis.” Appeal, ¶ 32. Defendants’ allegations are legal conclusions not entitled to a
presumption of truth. Haberman v. Wash. Pub. Power Supply, 109 Wn. 2d 107, 120, 744
P.2d 107 (1987) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) stating that courts “are
not bound to accept as true a legal conclusion couched as a factual allegation”). More
importantly, Defendants’ allegations are incorrect.
4 The City received more than 20 complaints the City received regarding Appellants’ activities during a
public hearing before the City Council on February 16, 2016. A copy of the minutes of that hearing is
attached as Exhibit D. Appellants do not allege any similar complaints for other marijuana retailers that
would typically trigger City investigation and/or enforcement.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 8 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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Defendants attempt to identify all marijuana retailers as a single class, but the
Washington State Liquor and Cannabis Board does not. Marijuana retailers fall into two
separate classes: those authorized by I-502 and those authorized by S.B. 5052. Resolution No.
5215.5 As Appellants acknowledge, at paragraph 32, the separation of I-502 retailers and S.B.
5052 retailers is subject to the rational basis test. Ventenbergs v. City of Seattle, 163 Wn. 2d
92, 103, 178 P.3d 960 (2008); See Andersen v. King County, 158 Wn.2d 1, 18-19, 138 P.3d
963 (2006), abrogated on other grounds, Obergefell v. Hodges, 135 S.Ct. 2584 (2015). The
City has simply followed the State’s lead and acknowledged class differences between
marijuana retailers authorized by differing legislative acts.
The City’s duplication of the State’s retailer classifications plainly meet the rational
basis test. “When determining if a rational relationship exists, “the court may assume the
existence of any necessary state of facts which it can reasonably conceive.” Seeley, 132 Wn.
2d at 795. “Moreover, the statute does not need to be logically consistent with is purpose in
every respect.” Amunrud, 124 Wn. App. at 888. Appellants have not, and cannot, plead facts
sufficient to negate the classification created by the State and followed by the City. In fact, the
City is entitled to dismissal not only because the City has satisfied the rational basis test but
also because Appellants cannot meet the beyond a reasonable doubt burden of proof required
to find a local law in conflict with Article I, Section 12 of the Washington State
Constitution. Melcher, 33 Wn. App. at 359.
Finally, the superior court has already considered Appellants’ equal protection
argument at oral argument on May 10, 2016, rejected Appellants’ argument, and enjoined the
continued operation of any retail marijuana business by appellants. Exhibit C, p. 3. Dismissal
5 As referenced in Resolution No. 5215, the City received written communication from the Washington
State Liquor and Cannabis Board that retailers approved under I-502 are distinguished from those
approved under SB 5052. A copy of the written communication referenced in Resolution No. 5215 is
attached as Exhibit E.
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 9 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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is, therefore, appropriate because it avoids a contradictory result between the hearing examiner
and the superior court.
Conclusion
Appellants irrelevant arguments do not meet the burden of proof required to entitle
them to a City business license to engage in federally criminalized activities. Likewise,
Appellants cannot ignore established law that supports dismissal of this appeal. Finally, this
hearing examiner has no authority to order the City to issue a business license for conduct
already prohibited by the superior court’s injunction. For the foregoing reasons, the City is
entitled to dismissal of the above-captioned matter.
RESPECTFULLY SUBMITTED this 1st day of July, 2016.
/s/ Jessica Leiser__________________
Daniel B. Heid, WSBA #8217
Jessica Leiser, WSBA #49349
Attorneys for City of Auburn
City of Auburn City Attorney’s Office
25 West Main Street, Auburn, WA 98001
(253) 931-3030
dheid@auburnwa.gov
jleiser@auburnwa.gov
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 10 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of
Washington that on the date set forth below, I served copies of this document on the following
persons via electronic mail:
Mark D. Nelson
Law Office of Mark D. Nelson, PLLC
7901 Skansie Avenue, Suite 240
Gig Harbor, WA 98335
mark@markdnelsonlaw.com
Counsel for Appellants
Signed this 1st day of July, 2016.
/s/ Jessica Leiser ____________
Jessica Leiser
MOTION TO DISMISS APPEAL OF PARTIAL DENIAL
Page 11 of 11
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
GREEN SOLUTION PLACE PRELUDIO
MANAGEMENT LLC d/b/a GREEN
SOLUTION PLACE, a Washington limited
liability company, and STANLEY JOHNSON,
an individual,
Appellants,
v.
CITY OF AUBURN, a municipal corporation
Respondent.
ORDER ON THE CITY’S MOTION TO
DISMISS APPEAL OF PARTIAL
DENIAL
THIS MATTER having come before the Hearing Examiner on Respondent’s Motion to
Dismiss, the Hearing Examiner has considered the arguments of the parties, and does HEREBY
ORDER:
Respondent’s Motion to Dismiss is GRANTED.
Respondent’s Motion to Dismiss is DENIED and Respondent is ordered to
respond to Appellants’ appeal by _________________.
DATED this ____ day of __________________, 2016.
_________________________________
Hearing Examiner
Presented by
/s/ Jessica Leiser____________
Daniel B. Heid, WSBA #8217
Jessica Leiser, WSBA #49349
Attorneys for The City of Auburn
City of Auburn City Attorney’s Office
25 West Main Street, Auburn, WA 98001
(253) 931-3030
dheid@auburnwa.gov
jleiser@auburnwa.gov
Counsel for Respondent
APPELLANTS’ RESPONSE TO CITY’S MOTION TO
DISMISS APPEAL OF PARTIAL DENIAL- Page 1 of 3
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BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
GREEN SOLUTION PLACE
PRELUDIO MANAGEMENT LLC d/b/a
GREEN SOLUTION PLACE, a
Washington limited liability company,
and STANLEY JOHNSON, an
individual.
Appellant,
and
CITY OF AUBURN, a municipal
corporation.
Respondent.
APPELLANTS’ RESPONSE TO
CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
COMES NOW Appellants in response to Respondent City of Auburn’s Motion to
Dismiss Appeal of Partial Denial dated July 1, 2016. The City’s motion requests
dismissal of the Green Solution Place’s (“GSP”) appeal of the City’s denial of its
business license. No authority under Auburn’s City Code exists for such a motion. The
Hearing Examiner has not promulgated rules or regulations which allow for such a
motion. Per the Auburn City Code, GSP is entitled to a public hearing. Accordingly, the
City’s motion must be denied.
Authority and Argument
Appellant GSP appeals the June 6. 2016 “Notice of Partial Denial of Business
License Application for Green Solution (City of Auburn Reference No. BUS -31559)” The
APPELLANTS’ RESPONSE TO CITY’S MOTION TO
DISMISS APPEAL OF PARTIAL DENIAL- Page 2 of 3
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Auburn City Code (“ACC”) provides for the appeal of such a notice. ACC 5.15.070
provides in relevant part,
A. The city hearing examiner is designated to hear appeals by applicants or
licensees aggrieved by actions of the mayor, or designee, pertaining to any
denial, civil penalty suspension, or revocation of business licenses, in
accordance with Chapter 1.25 ACC; provided, that the hearing examiner may
adopt reasonable rules and regulations for conducting such appeals. Copies of
all rules and regulations so adopted shall be filed with the business license clerk,
who shall make them freely accessible to the public.
C. As soon as practicable after receiving the written appeal, the business license
clerk shall fix a date, time, and place for the hearing of the appeal by the hearing
examiner. Written notice of the time and place of the hearing shall be given at
least 10 days prior to the date of the hearing by the business license clerk, by
mailing a copy thereof, postage prepaid, by certified mail with return receipt
requested, addressed to each appellant at his or her address shown on the
notice of appeal.
D. At the hearing, the appellant or appellants shall be entitled to appear in
person, and to be represented by counsel and to offer such evidence as
may be pertinent and material to the denial or to the notice and order. The
technical rules of evidence need not be followed.
ACC 5.15.070 (A), (C), and (D)(emphasis added). The ACC does not provide any
procedure by which an appellant’s right to hearing may be circumvented.
The Auburn’s City Council has not given the Hearing Examiner authority to
dismiss an appellant’s appeal request without hearing. The hearing examiner only has
the power to receive and examine available information, conduct public hearings,
prepare a record thereof and enter findings of fact, conclusions based upon those facts
and enter decisions as provided by ordinance. ACC 2.46.035. The Hearing Examiner's
authority is limited to that granted by the creating body. Chausee v. Snohomish County
Council, 38 Wn. App. 630, 636, 689 P.2d 1084 (1984). As the power to dismiss is not
granted, the Hearing Examiner may not deprive an appellant of a hearing.
APPELLANTS’ RESPONSE TO CITY’S MOTION TO
DISMISS APPEAL OF PARTIAL DENIAL- Page 3 of 3
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Conclusion
The City argues that Appellants’ appeal should be dismissed because
“Appellants fail to state a claim for which relief can be granted.” (City’s Motion to
Dismiss at p. 1, ln 15). However, the City Council has not authorized the Hearing
Examiner to dismiss a matter on such grounds without a hearing. Seemingly, the City
seeks to invoke the authority of CR 12(b)(6). However, CR 12 is not applicable to a
Hearing Examiner proceeding. Nor does the administrative procedure act does apply.
RCW 34.04.010; See Andrew v King County., 21 Wn. App. 566, 586 P.2d 509 (1978).
Nor has the Hearing Examiner propounded rules or procedures to address such a
motion. Without authority to grant a motion to dismiss, the City’s request must be
denied.
In the alternative, Appellants request that the Hearing Examiner schedule a pre-
hearing conference such that the Examiner may articulate where the authority to grant a
motion to dismiss derives from, and what the applicable bu rden of proof would be.
SIGNED this 19TH day of JULY 2016.
LAW OFFICE OF MARK D. NELSON, PLLC
/s/Mark D. Nelson
Mark D. Nelson WSB# 37833
7901 Skansie Ave, Suite 240
Gig Harbor, WA 98335
T: (253) 858-8985
F: (253) 780-8066
mark@markdnelsonlaw.com
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 1 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
GREEN SOLUTION PLACE PRELUDIO
MANAGEMENT LLC d/b/a GREEN
SOLUTION PLACE, a Washington limited
liability company, and STANLEY JOHNSON,
an individual,
Appellants,
v.
CITY OF AUBURN, a municipal corporation
Respondent.
REPLY IN SUPPORT OF THE CITY’S
MOTION TO DISMISS APPEAL OF
PARTIAL DENIAL
COMES NOW Respondent, the City of Auburn (the City), by and through its
undersigned counsel, and makes this Reply in support of the City’s Motion to Dismiss. The
Response provided by Appellants is unpersuasive because (1) it misconstrues the only
authority cited to assert that this Hearing Examiner has no authority to consider the City’s
motion, and (2) because it defines “hearing” in an over-inclusive manner to obscure the fact
that Appellants have been heard. Contrary to Appellants unpersuasive arguments, the City is
entitled to dismissal of this appeal because there are no disputed facts and the City is
authorized to deny business licenses requesting City authorization to engage in federally
criminalized activity. Consequently, the City requests that its motion be granted and this appeal
be dismissed.
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 2 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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I. Appellants arguments belie the fact that Chausee supports the City’s position.
Appellants rely solely on Chausee v. Snohomish County Council, but Chausee actually
supports the City’s position in both fact and law. 38 Wn. App. 630, 689 P.2d 1084 (1984).
A. Chausee stands for the position that this Appeal is improper and supports the
City’s motion to dismiss.
Appellants cite to Chausee for the proposition that this Hearing Examiner has no
authority to consider a procedural, pre-hearing motion. Appellants’ Response, p. 2. Appellants’
reliance on Chausee misconstrues the Court’s opinion. In Chausee, the hearing examiner
denied an appeal, in part, because “the appellant’s issues of due process, effective date of
ordinance, adoption of road standards, and estoppel are… beyond the scope of his authority
and are not decided.” Chausee, 38 Wn. App. at 636 (quotation omitted). The court agreed with
the hearing examiner regarding the scope of his authority. “The interpretation by the hearing
examiner that he was without jurisdiction to consider the issue of equitable estoppel is
supported by the relevant statutory and code provisions.” Id, at 638. The Chausee court went
on to state that the hearing examiner is “strictly limited to determine whether [an ordinance]…
was applicable” and that the hearing examiner “had no discretion to exempt a landowner” from
an ordinance. Id.
Contrary to Appellants’ assertion, Chausee stands for the exact position the City has
taken in its motion to dismiss. Appellants requested this Hearing Examiner issue a decision
directing the City to issue a business license to engage in federally criminalized conduct: the
sale of marijuana. Appeal of Green Solution Place, ¶ 28. Appellants base this request on a
series of legal arguments, including Washington’s vesting doctrine, retroactivity of an
ordinance, non-conforming doctrine, equal protection, and due process. Appeal of Green
Solution Place, ¶¶ 29-33. These arguments share a crucial similarity to those in Chausee: they
are legal arguments. The purpose of this Hearing Examiner is to address “material factual
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 3 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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issues.” ACC 2.46.120(A).1 The legal arguments raised both in Chausee and by Appellants in
this matter are properly considered by the superior court, a process already occurring.2 As a
result, this Hearing Examiner should follow Chausee and dismiss this matter.
Appellants’ citation to Chaussee not only obscures the court’s support of the City’s
motion to dismiss, but it also omits the entirety of the court’s statement. “[A] administrative
agencies are creatures of the legislature without inherent or common-law powers and may
exercise only those powers conferred either expressly or by necessary implication.” Id, at 636
(quotation omitted) (emphasis added). It is illogical to argue, as is implied by Appellants, that
the ability to consider procedural matters are not necessarily implied from the City’s grant of
authority in Auburn City Code Chapter 2.46.
Appellants’ assertion that this Hearing Examiner has no authority to make a
preliminary determination as to whether a particular appeal meets the form and substance
prescribed by City Code requires the conclusion that this Hearing Examiner must provide a
public hearing on the merits for any appeal. It would frustrate the purpose of the office of the
hearing examiner to provide a hearing on the merits for every appeal filed, no matter how
meritless or frivolous. The purpose of the office of the hearing examiner is to correct factual
errors, not to serve as a mechanism to superimpose the whims of individual business owners
onto the City. Appellants’ position that this Hearing Examiner must provide a public hearing
on the merits for any appeal no matter how meritless or frivolous creates an absurd result;
something anathema to sound legal reasoning. Prekeges v. King County, 98 Wn. App. 275,
282, 990 P.2d 405 (1999). The City’s motion to dismiss is the proper mechanism for a
1 Appellants’ request for “a pre-hearing conference such that the Examiner may articulate… what the applicable
burden of proof would be” ignores the language of ACC 2.46.120(A). The City’s mot ion is based on Appellants’
inability to demonstrate, by a preponderance of the evidence, that there are material facts which would somehow
entitle Appellants to a city-issued business license to engage in criminal activity.
2 The Court has already preliminarily rejected Appellants arguments and issued a temporary injunction. The Court
fill further consider the merit of Appellants arguments upon consideration of the City’s motion to dismiss
Appellants’ counterclaim on August 12, 2016.
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 4 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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procedural determination that this appeal does not meet the City Code requirement that an
appeal challenge material facts, not raise legal arguments.
B. A public hearing on the merits of a matter does not include public input and
evidence regarding preliminary, procedural matters for which Appellants have
been heard.
Appellants further challenge the City’s motion to dismiss by asserting that “Auburn’s
City Council has not given the Hearing Examiner authority to dismiss an appellant’s appeal
request without hearing.” Appellants’ Response, p. 2. While the City agrees that Appellants are
entitled to be heard, “hearing” does not exclusively mean “hearing on the merits.” Appellants
stretch the meaning of the word “hearing” too far. A public hearing on the merits is one
wherein Appellants “may be represented by counsel and… offer such evidence as may be
pertinent and material to the denial.” ACC 5.15.070(D). At a public hearing on the merits,
Appellants “shall have the burden of proof, by a preponderance of the evidence, as to material
factual issues except where applicable city code provisions or state law provides otherwise.”
ACC 2.46.120(A) (emphasis added). The public hearing on the merits in ACC 5.15.070(D), by
operation of the Code’s plain language, is limited to factual disputes. The City’s motion does
not challenge any facts. Consequently, the requirement for a public hearing on the merits is not
triggered unless the Hearing Examiner denies the City’s motion to dismiss because that is the
point at which factual disputes become relevant.
Appellants’ opposition to the City’s motion is entitled to be heard insofar as the word
“heard” not meaning “public hearing on the merits” but instead meaning conformity to basic
constitutional requirements. When “hearing” means something other than “public hearing on
the merits” it is self-evident that Appellants have been heard. Appellants provided a “Response
to City’s Motion to Dismiss Appeal of Partial Denial.” By virtue of Appellants’ Response, they
have been heard as to the City’s motion. See, e.g., Allen v. Allen, stating that due process is not
met where “appellant was afforded neither the opportunity to prepare a response to the
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 5 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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motion…”12 Wn. App. 795, 797, 532 P.2d 623 (1975). Consequently, this Hearing Examiner
is empowered to consider, and grand, the City’s motion to dismiss because Appellants have
been adequately heard.
II. City Code permits denial of a business license when the conduct is federally
criminalized.
Finally, because this Hearing Examiner is empowered to determine procedural matters
and Chausee supports dismissal where an appeal exceeds the authority of the hearing
examiner, the validity of this appeal turns solely on questions of law. On this singular question,
the City is entitled to dismissal. The possession, sale, or distribution of cannabis violates the
federal Controlled Substances Act. 21 U.S.C. §§ 841(a)(1), 802(6), and 812. Violation of
federal law is a clearly established basis for denial of a business license. ACC 5.15.050(B).
Appellants allege no facts to contradict the City’s conclusion and ignore this 2003 code
provision. Consequently, there is no basis for overturning the Notice of Partial Denial and this
appeal should be dismissed.
CONCLUSION
For the foregoing reasons, the City is entitled to dismissal of the above-captioned
matter.
RESPECTFULLY SUBMITTED this 26th day of July, 2016.
/s/ Jessica Leiser__________________
Daniel B. Heid, WSBA #8217
Jessica Leiser, WSBA #49349
Attorneys for City of Auburn
City of Auburn City Attorney’s Office
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 6 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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25 West Main Street, Auburn, WA 98001
(253) 931-3030
dheid@auburnwa.gov
jleiser@auburnwa.gov
REPLY IN SUPPORT OF THE CITY’S MOTION TO DISMISS
APPEAL OF PARTIAL DENIAL
Page 7 of 7
CITY OF AUBURN
City Attorney’s Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of
Washington that on the date set forth below, I served copies of this document on the following
persons via electronic mail:
Mark D. Nelson
Law Office of Mark D. Nelson, PLLC
7901 Skansie Avenue, Suite 240
Gig Harbor, WA 98335
mark@markdnelsonlaw.com
Counsel for Appellants
Signed this 26th day of July, 2016.
/s/ Jessica Leiser ____________
Jessica Leiser
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ORDER GRANTING MOTION TO DISMISS - 1
BEFORE THE HEARING EXAMINER FOR THE CITY OF AUBURN
RE: Green Solutions Place
Appeal of Business License Denial
BUS-31559
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ORDER REQUIRING HEARING “IN
PERSON” OR WAIVER
WHEREAS, on June 24, 2016 the Appellant, Green Solutions Place, filed an appeal of a Notice of
Partial Denial of Business Application for Green Solution, issued June 6, 2016, and
WHEREAS, on July 1, 2016 the City of Auburn filed a Motion to Dismiss the appeal, and
WHEREAS, a hearing on the motion to dismiss was heard by the examiner by phone conference
on August 10, 2016, and
WHEREAS, the examiner considered the briefing on the motion to dismiss referenced above, with
all attachments, as well as the June 24, 2016 appeal filed by the appellant and the August 10, 2016
oral argument to render this order, NOW, THEREFORE,
1. Order. Due to some peculiarities in the Auburn City Code, the Appellant must be given
the opportunity to re-argue the City’s Motion to Dismiss “in person”. The Appellant has
a right to be physically present for the hearing on the Motion to Dismiss, as opposed to
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ORDER GRANTING MOTION TO DISMISS - 2
participating by phone conference. If the Appellant wishes to re-argue the motion, oral
argument will be scheduled for the date originally scheduled for the hearing on the merits,
September 21, 2016. September 21, 2016 will be limited to a hearing on the City’s
Motion to Dismiss and the current due dates for witness and exhibit lists are stricken.
The Appellant may waive the right to be present “in person”, in which case the Examiner
will issue a ruling on the Motion to Dismiss forthwith based upon the written materials
and oral argument provided to the date of this order. If the Appellant elects to waive its
right to be present “in person”, it must do so by email to the Examiner
(olbrechtslaw@gmail.com) and City (jleiser@auburnwa.gov) by 5:00 pm, August 22,
2016.
2. Basis. The reason that the Appellant is entitled to be physically present for argument on
the City’s Motion to Dismiss is ACC 5.15.070(D), which provides that “[a]t the hearing,
the appellant or appellants shall be entitled to appear in person….” The mandates for a
hearing imposed by ACC 5.15.070 would otherwise be squarely met by the August 10,
2016 phone conference in which the Appellant was given the opportunity to argue against
the City’s Motion to Dismiss. However, the “in person” requirement of ACC
5.15.070(D) requires more than just a hearing. As defined by the Cambridge dictionary,
“in person” means “meeting with someone rather than talking on the phone, e-mailing or
writing in person.”
Principles of statutory construction also mandate an interpretation that affords the right of
physical presence. Ordinances must be interpreted and construed so that all the language
used is given effect, with no portion rendered meaningless or superfluous. G-P Gypsum
Corp. v. State, Dept. of Revenue, 169 Wn.2d 304 (2010). The ACC 5.15.070 requirement
for a hearing already incorporates the concept that a business license appeal cannot be
limited to written argument. The additional requirement for “in person” participation, to
have any meaning at all, must be construed as requiring something beyond the
opportunity for oral argument. The only way to give meaning to the added “in person”
term is to construe it as requiring physical presence.
It is acknowledged that physical presence, as opposed to participation by phone, makes
little difference in a motion concerning uncontested facts. The primary benefit in
requiring physical presence would be to facilitate the evaluation of contested facts by
observing the demeanor of witnesses or perhaps enabling guidance as to what portions of
complicated exhibits to focus upon. However, the plain meaning of “in person” doesn’t
provide the flexibility to manufacture exceptions for motions based upon uncontested
facts. The Auburn City Council went out of its way in requiring business license appeals
to be heard “in person.” The Council did not adopt any exceptions for this requirement
and none will be implied by this decision.
3. Hearing Date. It is recognized that the parties may wish to consolidate the final decision
of this appeal into its current superior court litigation on the same issues. If the Appellant
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ORDER GRANTING MOTION TO DISMISS - 3
chooses to not waive its right to argue “in person” and the September 21, 2016 “re-argue”
will cause difficulties with consolidation, the parties are invited to email requests for
alternative scheduling.
DATED this 19th day of August, 2016.
City of Auburn Hearing Examiner