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HomeMy WebLinkAboutItem 01 - 07-15-2020 - KC - Appeal of Finding of ViolationITEM NO. 1 HEX-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 1 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 BEFORE THE CITY OF RENTON COMMUNITY AND ECONOMIC DEVELOPMENT In re the matter of the Appeal by Renton Hotel Investors, LLC, Downtown Emergency Services Center, King County Appellants. Case No. CODE20-000321 APPEAL OF FINDING OF VIOLATION I. INTRODUCTION Pursuant to his statutory authority and consistent with established public health practice to limit spread of a highly contagious disease, King County’s Local Health Officer Dr. Jeffrey Duchin issued an order mandating the de-intensification of homeless shelters. To implement Dr. Duchin’s order King County transferred clients of a homeless shelter operated by Downtown Emergency Services Center (DESC) to a hotel in Renton. On June 30, 2020 Renton issued a Finding of Violation (FOV) citing violations of its zoning code and the lack of a business license for the hotel use. The FOV seeks to prevent King County from temporarily housing homeless shelter clients as part of a county-wide strategy to mitigate community spread of a highly infectious, deadly virus HEX-000002 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 2 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 during a global pandemic. For the reasons outlined below, Appellants respectfully request the Administrator to find no violations have occurred and dismiss the Finding of Violation. II. FACTS On February 29, 2020, Governor Inslee proclaimed a public health state of emergency in Washington due to COVID-19. The King County Executive proclaimed a county public health emergency on March 1, 2020, and on March 11, 2020 the World Health Organization declared a state of pandemic due to COVID-19. This declaration was followed by a National Emergency declaration on March 13, 2020. The King County Executive’s proclamation authorized the county to exercise emergency powers enumerated in RCW 35.52.070(2), including entering into contracts and incurring obligations necessary to combat the public health threat. Since the governor’s initial proclamation, state and local governments have been battling a public health crisis without modern precedent. With no known cure or effective treatment or a vaccine available anytime soon, prevention and mitigation of disease spread has been a critical component of the crisis response. To date, the governor, local jurisdictions and public health officials have issued numerous orders to slow community spread of the deadly virus and avoid overwhelming hospitals and health care facilities. Orders limiting business operations and gatherings of people, restricting visits to long- term care facilities, maintaining physical distancing and wearing face coverings are just some of the measures currently under effect. On March 31, 2020 King County’s Health Officer Dr. Jeffrey Duchin issued an order which included mandates to “de-intensify or reduce the density of existing homelessness shelters” to reduce community spread of COVID-19. Declaration of Dr. Jeffrey Duchin (“Duchin Dec.”) Exhibit A at p. 3. Individuals in homeless shelters are at higher risk of contracting and dying from COVID-19 and are hampered in their ability to comply with public health guidelines such as HEX-000003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 3 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 maintaining physical distancing and practicing safe hygiene. Preventing and reducing outbreaks among people in congregate settings such as homeless shelters, jails and long-term care facilities is critical to controlling community spread of COVID-19. Duchin Dec. at p. 2, ¶ 11. Recognizing the potential for the deadly outcomes experienced by some nursing homes and long-term care facilities, King County officials developed strategies to secure placement options for individuals in homeless shelters to be temporarily moved to safer environments. One of those strategies has been to lease hotel space to temporarily move shelter residents, a practice known as de-intensification” and implemented by various jurisdictions throughout the country. Declaration of Youn-Jung Kim (“ Kim Dec.”) Exhibit A. Strategies such as de-intensification of homeless shelters is a “crucial component” of the county’s COVID-19 response and recommended by the Centers for Disease Control and Prevention. Duchin Dec. at p. 4, ¶ 21. To implement this strategy, King County eventually secured agreements with hotels in Bellevue, Renton, SeaTac and Seattle. Kim Dec. Exhibit A. The hotel in Renton is the focus of this appeal. DESC has operated its main shelter in downtown Seattle since 1979. The shelter’s population are particularly vulnerable, a large percentage are disabled, many with mental health conditions. The shelter accepts homeless individuals upon discharge from area hospitals and jails as well as first responder referrals. Given the level of their chronic needs, DESC’s clients are provided with medical, behavioral and other social services by a dedicated staff as well as medical professionals. Malone Dec. at p. 3, ¶ 15. Despite its long-term operation in downtown Seattle, DESC’s main shelter receives clients from throughout King County and serves as a regional resource within the county-wide crisis care system. Malone Dec. p. 3, ¶¶ 17-19. Given the extremely crowded conditions at the shelter and its high-risk population, remaining at the downtown building would have likely led to a major COVID-19 outbreak. HEX-000004 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 4 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 Pursuant to Dr. Duchin’s order, King County entered into a lease agreement with the owners of the Red Lion to temporarily house DESC’s main shelter clients. DESC’s staff also relocated to efficiently provide continuity of care. Declaration of Leo Flor (“Flor Dec.”) at p. 5, ¶ 21. In addition, DESC’s Mobile Crisis Team, half of which focuses on south King County and operates out of Kent, also relocated to provide their services from the Red Lion. The Mobile Crisis Team’s work includes responding to requests from first responders throughout the county to help with people having a behavioral health crisis Malone Dec. at p. 7, ¶¶ 54-56. The Red Lion was the only hotel within the county that could accommodate DESC’s main shelter clients given the cost, size and willingness to make itself available for this need. Flor Dec. at pp. 4-5, ¶¶ 20-24; Bath Dec. at p. 1, ¶ 8. By moving DESC’s main shelter clients to the Red Lion, the county has so far avoided a potentially dire scenario and is also protecting the broader community more effectively. The shelter clients were moved into the hotel in early April and have all tested negative for COVID-19. The clients are provided with masks and education regarding the need to comply with public health guidelines and refrain from unlawful or unwanted behavior. DESC also took steps to reduce possible negative impacts to the local community by delivering pre- packaged meals to minimize the need to seek food outside of the hotel, sharing contact information with nearby businesses to report concerning behavior and maintaining regular communications with local first responders. Malone Dec. at p. 7, ¶¶ 49-51. Other security measures have been taken to accommodate the city’s requests. Flor Dec. at 6, ¶¶ 33-35. III. EVIDENCE RELIED UPON 1. Declaration of Dan Malone, Executive Director of Downtown Emergency Services Center 2. Declaration of Dr. Jeffrey Duchin, King County Local Health Officer, and attached exhibits HEX-000005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 5 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 3. Declaration of Leo Flor, Director of King County Department of Community and Human Services 4. Declaration of Dayabir Bath, Owner of Renton Hotel Investors, LLC 5. Declaration of Youn-Jung Kim, and attached exhibits IV. ARGUMENT A. The Use of the Red Lion to Temporarily House DESC’s Clients as Part of King County’s De-Intensification Strategy is Consistent with Hotel Use as Defined in the Renton Municipal Code. The FOV cites King County’s use of the Red Lion as exceeding the defined use of a “hotel” under the Renton Municipal Code (RMC). The RMC defines a hotel as follows: A building or portion thereof designed or used for transient rental for sleeping purposes. Hotel structures are at least two (2) stories in height, with lodging space above the first floor. Lodging space may also be located on the first floor. Individual rooms are typically accessed from a common hallway. A central kitchen and dining room and accessory shops and services catering to the general public may be provided. Not included in this definition are multi-family dwellings, bed and breakfasts, or motels. RMC 4-11-080. In particular, the FOV noted that the duration of stay exceeded “transient rental for sleeping purposes” because the temporary hotel accommodations have been in place since April of 2020. However, the RMC does not define the term “transient” or limit the duration of temporary accommodations. The code simply refers to the frequency in which those accommodations may be made. In fact, the Red Lion hotel has rented rooms in the past for several weeks to several months without objection from the city. Bath Dec. at p. 3, ¶ 18. Washington case law does not provide much guidance on what length of stay at a hotel exceeds a “transient rental” period. However, other jurisdictions have analyzed this issue in the context of landlord tenant law. For example, in Bourque v. Morris, 190 Conn. 364, 460 A.2d 1251 1983), the Connecticut Supreme Court found that a guest’s three-month stay at a hotel paid for by the city with no other housing options available was a transient occupancy rather than a tenant with HEX-000006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 6 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 protections against evictions. The court noted that the guest knew he was staying in a hotel and, even though the City made arrangements for the room, there was no evidence that the parties could reasonably expect that the city would pay for the room indefinitely. Id. at 369-70. Similar to Bourque, in this case there is no evidence that the hotel guests reasonably expect King County to pay for these hotel rooms indefinitely. DESC’s clients’ stay at the Red Lion is temporary, just as it would be at its downtown shelter location. Malone Dec. at p. 4, ¶ 30. The clients understand it’s a temporary arrangement and efforts to find permanent housing continue. Malone Dec. at p. 7, ¶ 53. The FOV also noted that the use exceeds “sleeping purposes” of a hotel use because DESC staff is on-site and medical care is being provided. Washington case law is again limited in guidance on this issue but in a similar analysis of transient versus tenant, a Michigan appellate court found homeless individuals staying at a YMCA to be a hotel guests rather than tenants even with on-site services available. Ann Arbor Tenants Union v. Ann Arbor YMCA, 229 Mich. App. 431, 581 N.W.2d 794 (1998). Thus, the fact that DESC staff and other services are being provided on-site does not in and of itself exceed the use as a hotel. Renton also concluded that the use is a “de-intensification shelter” rather than a hotel and that such use is not a recognized land use under the Renton Code. However, “de-intensification” is a public health strategy to slow the spread of COVID-19 rather than a use category for zoning purposes. Duchin Dec. p. 4, ¶¶ 21-28. The use, which is temporary sleeping accommodations consistent with a hotel use, helps to implement this strategy. The FOV also cites the lack of a business license for the de-intensification shelter operations. The hotel is operated pursuant to a business license. Bath Dec. at p. 3, ¶ 18. It is also unclear what “business” the city is requiring a license for, in light of the assertion that a de- intensification shelter is not a recognized use under its code. As explained above the county’s use of HEX-000007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 7 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 the hotel is consistent with a hotel use as permitted under Renton’s zoning code, and the Red Lion hotel holds a business license to run the hotel. No additional business license is required. Thus, the City’s FOV for failure to obtain a business license should be dismissed. B. State Public Health and Emergency Authority Preempts Application of Renton’s Zoning Code to Force King County to Move DESC’s Clients from The Red Lion. Local Health Officers are responsible for responding to the most critical of public health crises. To satisfy this responsibility, state law grants local health officers exceptionally broad authority to act to protect the public health. Among those, RCW 70.05.070 broadly mandates, without limitation, that the local health officer shall: 2) Take such action as is necessary to maintain health and sanitation supervision over the territory within his or her jurisdiction; 3) Control and prevent the spread of any dangerous, contagious or infectious diseases that may occur within his or her jurisdiction; … 9) Take such measures as he or she deems necessary in order to promote the public health …. In addition to the authority under RCW 70.05.070, a local health officer, when necessary, may institute disease control and containment control measures, including physical distancing measures he or she deems necessary based on professional judgment. WAC 256-100-036. The Washington Supreme Court has recognized a local health officer’s broad authority to protect the public from contagious diseases. See Spokane County Health District v. Brockett, 120 Wn.2d 140, 149, 839 P.2d 324 (1992); State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 P. 973 (1918). The Court in Brockett considered a health district’s needle exchange program to curb the spread of HIV. The program’s opponents argued that it violated a state statute prohibiting distribution of drug paraphernalia. Brockett, 120 Wn.2d at 148. In finding the needle exchange program to be a valid public health measure which preempted the drug paraphernalia statute, the Court concluded: HEX-000008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 8 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 Because protecting and preserving the health of its citizens from disease is an important governmental function, public health statutes and the actions of local health boards implementing those statutes are liberally construed…The legislatively delegated power to cities and health boards to control contagious diseases gives them extraordinary power which might be unreasonable in another context… Indeed, we have said the subject matter and expediency of public health disease prevention measures are ‘beyond judicial control, except as they may violate some constitutional right guaranteed to defendants.’ Id. at 149 (internal citations omitted). The court in Brockett recognized the power of the local health district to act to control disease within its jurisdiction, over the opposition of officials and agencies. The court held that the constitutional grant of authority to local health officials to make and enforce rules and regulations may prevail over other statutes, so long as the local regulations do not conflict with other public health statutes. Id. at 148. The City of Renton does not have a constitutional right to force the county to cease using the Red Lion to house DESC’s shelter clients in contravention of the Local Health Officer’s order. Such an application of Renton’s zoning code while the public health officer’s order is in effect would impermissibly conflict with his authority under state law. “Municipal police power is as extensive as that of the legislature, so long as the subject matter is local and the regulation does not conflict with general laws.” State v. City of Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980) (citation omitted). A local regulation conflicts with general law if it permits what state law forbids or forbids what state law permits. Cannabis Action Coalition v. City of Kent, 180 Wn. App. 455, 482, 322 P.3d 1246 2014). Here the subject matter is not local to the City of Renton. The county public health department’s jurisdiction is county-wide. See KCC 2.35A.010. Enhanced isolation, quarantine, and de-intensification practices are all vital components of the county, state and national strategy to slow the spread of COVID-19 and Dr. Duchin has ordered such measures to be carried out. Duchin Dec. Exhibit A. Where application of Renton’s zoning code irreconcilably conflicts with the mandates of HEX-000009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 9 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 the Local Health Officer’s order, it is preempted. See Brown v. City of Yakima, 116 Wn.2d 556, 561, 807 P.2d 353 (1991) (a city’s ordinance “must yield” to state law “if a conflict exists such that the two cannot be harmonized) (citation omitted). The Administrator can avoid such an irreconcilable conflict by finding that the DESC’s clients’ use of the Red Lion is consistent with the hotel use contemplated by Renton’s code. In a similar zoning code challenge by the City of Kent for the county’s use a motel for isolation and quarantine purposes, a King County Superior Court judge has found that the authority to regulate dangerous, contagious or infectious diseases rests solely with the Local Health Officer. Kim Dec. Exhibit B. While acknowledging that the superior court’s order does not bind Renton, Judge Shah’s reasoning is sound and the Administrator is urged to give it weight. In addition to the clear legal framework for recognizing the Health Officer’s superior authority in matters of public health, important policy considerations support reaching the same conclusion. An overly strict application of Renton’s zoning code will undermine the Health Officer’s efforts to protect the public from a deadly virus with no known cure or vaccine to date. Measures intended to reduce community spread of the virus by temporarily moving people out of crowded shelters would be rendered ineffective if local jurisdictions could invoke their ordinances to prevent such measures from being implemented. V. CONCLUSION For the foregoing reasons, Appellants respectfully request the Administrator to find no violations of the Renton Municipal Code and dismiss the Finding of Violation as to all named parties. HEX-000010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 APPEAL OF FINDING OF VIOLATION - 10 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 DATED this 15th day of July, 2020. DANIEL T. SATTERBERG King County Prosecuting Attorney By: s/ Youn-Jung Kim YOUN-JUNG KIM, WSBA #23516 Deputy Prosecuting Attorney By: s/ Lena Madden Lena Madden, WSBA # 41246 Deputy Prosecuting Attorney Attorneys for King County HEX-000011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NOTICE OF APPEARANCE - 1 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION W400 King County Courthouse 516 Third Avenue Seattle, Washington 98104 206) 477-1120/FAX (206) 296-0191 CERTIFICATE OF FILING AND E-SERVICE I declare under penalty of perjury under the laws of the State of Washington that on July 15, 2020, I caused the foregoing document(s) to be electronically filed with the Department of Community & Economic Development for the City of Renton by email to cityclerk@rentonwa.gov, as well as served upon the following parties at the email addresses listed below: Chip Vincent, Administrator Dept. of Community & Economic Development 1055 South Grady Way Renton, WA 98057 cvincent@rentonwa.gov Sumeer Singla Williams Kastner 601 Union Street, Suite 4100 Seattle, WA 98101-2380 ssingla@williamskastner.com Daniel Malone Executive Director 515 Third Ave. Seattle, WA 98104 dmalone@desc.org DATED this 15th day of July, 2020 s/ Monica Erickson__________ MONICA ERICKSON, Legal Assistant to YOUNG-JUNG KIM and LENA MADDEN King County Prosecuting Attorney’s Office HEX-000012