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HomeMy WebLinkAboutItem 14 - 08-05-2020 - COR - Opening Brief In Support of Finding of Violation Regarding Red Lion De-Intensification ShelterITEM NO. 14 HEX-000101 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 1 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN PROCEEDINGS BEFORE THE CITY OF RENTON HEARING EXAMINER IN RE THE MATTER OF THE REQUEST FOR HEARING BY RENTON HOTEL INVESTORS, LLC AND KING COUNTY NO. CODE-20-000321 CITY OF RENTON’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION REGARDING RED LION DE-INTENSIFICATION SHELTER I. INTRODUCTION AND RELIEF REQUESTED On June 30, 2020, the City of Renton (the “City”) issued a Finding of Violation (the FOV”) to three entities associated with operating a “de-intensification shelter” out of the former Red Lion Hotel & Conference Center, located at 1 South Grady Way (the “Property”). See COR 11 and COR 7 (FOV and the Declaration of Donna Locher). The three entities are King County (“King County”), the Downtown Emergency Service Center (“DESC”) which operates the 1 All references to “COR #” in this document refer to the numbering of the exhibits that the City offers in this matter, as further described and produced in the City’s Witness and Exhibit List disclosures. HEX-000102 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 2 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 de-intensification shelter, and Renton Hotel Investors, LLC (“RHI”) which owns the Property. Collectively, the three entities are the “Persons in Control” as that term is used in RMC 1-3- 2.B.7.) King County and RHI requested a hearing; DESC did not. Consistent with past practice for administrative code enforcement hearings, the Acting Community and Economic Development Administrator (“CED Administrator”) designated the Hearing Examiner to act on behalf of the CED Administrator to make a final determination. Now, the City requests that the Hearing Examiner make a final determination consistent with the FOV that: 1) The de-intensification shelter operating at the Property is a land use not allowed by the Property’s zoning designation under RMC 4-2-060; 2) The de-intensification shelter at the Property is operating without a required City business license in violation of RMC 5-5-3.E.5; and 3) Starting on August 9, 2020, daily fines shall accrue in the amount of $250 for each day any or all of the Persons in Control continue to operate the de-intensification shelter at the Property.2 III. STATEMENT OF FACTS A. The Property Is Being Operated As A “De-Intensification Shelter” Contrary To The Property’s Established Land Use As A “Hotel.” 1. The Property’s only lawfully-established land use is “Hotel,” and the de- intensification shelter is not a Hotel land use. 2 The requested fines pursuant to RMC 1-3-2.D.2.c are remedial in nature and do not preclude the City from separately pursuing criminal penalties and/or injunctive relief from a court of competent jurisdiction. See RMC 1- 3-2.B.5 and RCW 1-3-2.F. HEX-000103 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 3 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Property is located at 1 S Grady Way, Renton Washington; King County Parcel No. 3340401630. See COR 8 (Declaration of Vanessa Dolbee), ¶4. The City zoned the Property and many of the nearby properties as Commercial Arterial (“CA”). COR 8, Exh. A (zoning map). The CA zone is envisioned as a commercial zone subject to intentional, integrated business and mixed-use development. See RMC 4-2-020.M (“The purpose of the Commercial Arterial Zone CA) is to evolve from ‘strip commercial’ linear business districts to business areas characterized by enhanced site planning and pedestrian orientation, incorporating efficient parking lot design, coordinated access, amenities and boulevard treatment with greater densities”). Consistent with the Red Lion’s CA zoning and with its development as a Red Lion Hotel & Conference Center, the Property has been designated by the City as a “Hotel” land use. COR 8, ¶6. In the City of Renton, a Hotel land use is: 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 (emphasis added). While the Property was operated as the Red Lion Hotel & Conference Center, it was in compliance with the land use provisions of RMC 4-2-060 which allow a Hotel land use on CA- zoned properties. COR 8, ¶7. But the Property is no longer operated as the Red Lion Hotel & Conference Center. RHI asserts that its hotel business generation dissipated almost immediately after the State and County issued emergency orders in March 2020 due to the pandemic. COR 5, ¶ 6 HEX-000104 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 4 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Declaration of Dayabir “Pintu” Bath). When RHI lost its hotel revenue, it was willing to obtain an alternative revenue source. See COR 5, ¶8. Accordingly, on April 2, 2020, RHI entered into an agreement with King County (the “Agreement”) under which King County agreed to pay RHI 330, 750 per month to rent the entire Property. COR 10, §6a (the Agreement). Under the Agreement, King County rented from RHI the entire Property and all of its rooms for an initial 90-day period. Id., §§2, 3. Although King County titled the Agreement a “license,” the Agreement conveys to King County sole control for perpetual use of the Property and seizes from RHI (the owner) the ability to hold out hotel rooms to the general public. Id. King County turned over operation of the Property to DESC. Just one week after the Agreement’s effective date, DESC began operating a de-intensification shelter at the Property, on April 9, 2020. COR 2, ¶47 (Declaration of Daniel Malone). The term “de-intensification shelter” originates, at least in part, with a Local Health Officer Order issued by Seattle & King County Public Health (“Public Health”). Specifically, on March 31, 2020, Jeff Duchin, who is the Local Health Officer for King County, issued a Local Health Officer Order authorizing local governments to use legally available resources to “de-intensify or reduce the density of existing homeless shelters and encampments” in response to COVID-19: THEREFORE, as the Local Health Officer for King County, I further hereby ORDER that King County, through the Executive or his designee, as well as the local cities and towns, are authorized to use legally available resources to: de-intensify or reduce the density of existing homelessness shelters and encampments, as well as other essential programs such as food services and sobering centers; address hygiene needs of homeless individuals, such as washing, showers, and toilets, and for increased sanitation services such as garbage removal, pumping out of septic containers, and collection of sharps, since normal public and non-profit services are closed or have reduced offerings; disinfecting facilities used for and by the public; and, provide support for services, such as public supportive HEX-000105 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 5 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 housing providers and shelter services, who have had enhanced cleaning needs, personal protective equipment (PPE), supplies, and staffing needs since their clients are at a higher risk category and need increased support to understand social distancing, for the purpose of further reducing the spread of COVID-19, and for those enumerated purposes only; and Local Health Officer Order, March 31, 2020 (emphasis added). COR 3, Attachments A and B. Not only did the Local Health Officer Order pertaining to de-intensification efforts limit such efforts to “legally available resources,” the Local Health Officer Order expressly advises that T]his Order [does not] authorize illegal means or behavior.” Id. Despite the Local Health Officer Order’s limitation to using only “legally available resources” without “illegal means or behavior,” in early April 2020, King County peremptorily facilitated the relocation of DESC’s main shelter from downtown Seattle across from the King County courthouse to the Property within the City for use as a de-intensification shelter, without engaging in any City permitting process. COR 8, ¶8. The location of the main shelter across the street from the King County Courthouse was associated in the press with repeated emergency calls. See COR 11, Exh. D (DESC admitted in response to a KOMO news piece: “Yes, there [were] lots of emergency calls to this location”). By the end of 2019, the King County courthouse temporarily closed to protect the safety of the court’s employees and guests. COR 11, Exh. G (Seattle Times article titled “Unprovoked street attack becomes ‘catalyst’ to address crime, security outside King County Courthouse”). Consistent with that reputation, the City and Renton Regional Fire Authority’s first responders have experienced extraordinary growth in calls to the property and surrounding area. COR 13, ¶13 (Declaration of Doug Levy). County representatives insist its use of the Property will continue until King County determines, in its sole discretion, the COVID-19 emergency has ended. Id., ¶¶7, 9, 14, and 15. HEX-000106 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 6 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The operation of the de-intensification shelter out of the same physical structure as the former Red Lion Hotel & Conference Center does not mean that the new shelter use is also a Hotel land use. In fact, despite the Agreement’s “contemplation” that the Property would be used for “temporary lodging” (COR 10, §6c), the following list of facts proves that the de- intensification shelter that actually operates at the Property is nothing like a Hotel land use: 1) RHI now has a single payor for the entire property, rather than offering for rent individual rooms or blocks of rooms. COR 10, §2 (Agreement rents “all of the Rooms” to King County); COR 12, ¶3 (Declaration of Sergeant Russell R. Radke). 2) The shelter’s clients live at the shelter, exceeding the “transient” nature of a Hotel See COR 2, ¶53 (DESC’s Daniel Malone acknowledges that this housing is part of DESC’s “efforts to assist people with permanent housing acquisition”). 3) The shelter’s clients receive meal services, medical services, mental health services, behavioral control services, mail services, and laundry services, exceeding the limited “sleeping purposes” of a Hotel: COR 2, ¶51 (DESC’s Daniel Malone: “We deliver pre-packaged meals to clients in their rooms to minimize the need for clients to go out and seek food”). COR 2, ¶52 (DESC’s Daniel Malone: “The entire staff team from DESC’s main shelter in Seattle has been relocated to the Red Lion for the duration of our stay there, which includes on-site medical care and case management”). COR 4, ¶32 (King County’s Leo Flor: “Harborview Medical Center continues to provide integrated physical healthcare for Red Lion clients”). HEX-000107 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 7 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COR 11, Exh. E (DESC describes its services as including “mental health counseling and chemical dependency counseling”); COR 11, Exh. F (DESC provides “survival services”). COR 2, ¶57 (DESC’s Daniel Malone: “DESC communicates to clients expectations of behavior in the neighborhood surrounding the Red Lion via a good neighbor agreement,’ which includes prohibitions against unlawful behavior and also lawful behavior that causes community concerns such as panhandling”). COR 12, Exh. A (DESC’s Client Rules and Expectations: “Mail: Use the mailing address found on your DESC card. Mail will be delivered Tuesdays and Thursdays”.) COR 12, Exh. A (DESC’s Client Rules and Expectations: “Personal laundry: Will be done weekly. You will be given a laundry bag to put things in. You will be assigned a pickup day.”) 4) The Property has been fenced off, and access is restricted. COR 4, ¶34; COR 11, Exh. C (Operations Plan, §§3 and 7); COR 12, ¶4. 5) The Red Lion Hotel & Conference Center is listed as “sold out” on its website and closed” on hotel booking websites. COR 11, Exhs. A and B. 6) The outward indication of the former Red Lion Hotel & Conference Center business at the Property is gone as a result of the Agreement’s requirement that all Red Lion signage “remain completely covered” for the duration of the Agreement. COR 10, 6e. HEX-000108 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 8 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7) Unlike a Hotel, the Property is not offered to the general public; DESC hand-selects who lives in the shelter as its clients based upon its assessment of their vulnerability. COR 11, Exh. H (detailing DESC’s Vulnerability Assessment Tool, which is designed to ensure it only serves the most vulnerable, many who cope with mental illness and substance use disorders). The selectivity is so restrictive and the Persons in Control use of the Property are so exclusive that the Persons in Control denied access to the City’s own homeless population when the City asked whether the shelter would accommodate such individuals. COR 13, ¶8. 2. The de-intensification shelter is not an allowed use in the CA zone. The Persons in Control did not seek any use permit from the City for the de- intensification shelter. COR 8, ¶8 (Declaration of Vanessa Dolbee). Even when a property proposes to change from one land use allowed outright in a zone to another land use allowed outright in the zone, a change of use permit from the City may be required. COR 8, ¶9. However, here, a “de-intensification shelter” is not a use found anywhere in the Renton Municipal Code, whether as a use allowed outright, or as a use subject to conditional use permitting. See RMC 4-2-060 (listing all recognized uses in the City, and not listing a “de- intensification shelter” or a “congregate shelter” as the Persons in Control have also labeled the de-intensification shelter). Moreover, all of the other even potentially relevant land uses are either not allowed in the CA zone or are not allowed without undergoing a conditional use permit process that the Persons in Control have never pursued. This is illustrated in the following excerpted zoning use table which lists the potentially relevant land uses and whether each is allowed outright HEX-000109 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 9 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 designated by a “P” or “P#”), conditionally allowed (designated by an “AD” or “H), or prohibited (designated by a blank). 4-2-060 Zoning Use Table – Uses Allowed in Zoning Designations (EXCERPTED): LEGEND] Blank = Not Allowed P = Permitted Use P# = Permitted provided condition can be met AD = Administrative Conditional Use H = Hearing Examiner Conditional Use AC = Accessory Use Condition(s) USES: CA ZONE: D. OTHER RESIDENTIAL, LODGING AND HOME OCCUPATIONS Congregate residence3 [Blank]4 Group Homes I AD Group Homes II for 7 or more H G. OTHER COMMUNITY AND PUBLIC FACILITIES Diversion facility and diversion interim service facility [Blank] Other government offices and facilities H The de-intensification shelter does not meet any of the above uses’ definitions. (See attached Appendix for the Renton Municipal Code definition of each of those uses.) For that reason, the only option for lawfully locating the shelter within the limits of the City of Renton 3 Definition for each land use in this table is found in the attached Appendix. 4 A blank in the zoning use table means that the land use at issue is prohibited in the zone. See Legend, above, and RMC 4-2-060. HEX-000110 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 10 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would have been to follow the “unclassified use” process in which the de-intensification shelter would be matched to the most similar land use recognized by the Renton Municipal Code and then would be subject to that use’s zoning standards. See RMC 4-2-050.C.6 (Unclassified Use process).5 From the information available to the City to date, of the land uses recognized in the Renton Municipal Code, the de-intensification shelter is most similar to a “congregate residence,” “diversion facility,” or a “diversion interim service facility.” COR 8, ¶10. Therefore, the outcome of the Unclassified Use process would have been to categorize the de- intensification shelter as one of those three uses. See COR 8, ¶11. Importantly, none of those uses is allowed in the CA zone, not even with a conditional use permit. See RMC 4-2-060 congregate residence” only allowed in Center Village and Center Downtown zones and conditionally in R-14 zones; “diversion facility” and “diversion interim service facility” only allowed in Medium Industrial and Heavy Industrial zones if south of I-405). In sum, the de-intensification shelter cannot lawfully operate at the Property due to the Property’s CA zoning. B. The Persons In Control Failed To Obtain A Business License For The De- Intensification Shelter. In the City of Renton, it is unlawful for any person to operate a business without a City business license: It shall be illegal for any person and/or license holder to fail to obtain or maintain a general business license and yet engage in business within City limits. Each 5 The Persons in Control could also have sought a temporary use permit, but King County refused to do so. See discussion in the Declaration of Doug Levy, COR 13, ¶¶ 3–5. HEX-000111 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 11 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 business enterprise, its owner or agent who fails to obtain or maintain a general business license, in addition to the fines/penalties contained in subsections 5-5- 3.E.1 or 2 as they exist or may be amended, shall be guilty of a misdemeanor, and subject to the penalties of RMC 1-3-1, as it exists or may be amended.” RMC 5-5-3.E.5. None of the Persons in Control sought a business license to operate the de- intensification shelter at the Property. COR 9, ¶4 (Declaration of Nate Malone). DESC did not and still has not applied for a business license to operate its shelter in Renton. COR 9, ¶ 4. Notably, DESC does have a state business license and business license in the City of Seattle. COR 9, ¶5. As to RHI, it has a business license to operate the prior Hotel use at the property. COR 9, Exh. A. RHI did not and still has not applied for a business license for the new shelter operation. COR 9, ¶4. It asserts that it is continuing under its former business license. COR 5, 18 (Declaration of Dayabir “Pintu” Bath). City business licenses are non-transferable, and that license was issued to a different primary operator for a different business. COR 9, ¶7. Finally, King County did not and still has not applied for a business license for the new shelter operation. COR 9, ¶4. C. For Months, The City Attempted To Gain Voluntary Compliance From The Persons In Control Before The City Was Compelled To Issue The FOV. The City advised King County and RHI of the illegality of converting the Hotel to an unpermitted land use promptly upon learning of such conversion. COR 13, ¶3. However, rather than immediately commence formal code enforcement; the City sought voluntary compliance by King County to relocate the shelter within the initial 90-day term of the Agreement. Id., ¶2-7. It did so first by offering the opportunity for a temporary use permit with Mayoral emergency HEX-000112 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 12 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 waivers of certain requirements. Id., ¶¶3-4. When King County declined to apply for such permit, the City offered a memorandum of understanding by which the City would agree to temporarily refrain from commencing code enforcement in order to allow King County and DESC to search for alternative lawful locations. Id., ¶¶5-7. King County refused the City’s offers and would not agree to search for alternative legal locations. Id., ¶¶7, 9, 14-15. In sum, the City issued the FOV only after unsuccessfully exhausting attempts to gain King County’s agreement to voluntarily work on relocation plans where the shelter could be legally located for the remaining duration of the COVID-19 emergency. Id., ¶16. D. In Response To The FOV, King County And RHI Timely Requested A Hearing. DESC Did Not. The City issued the FOV on June 30, 2020. COR 1. King County and RHI requested a hearing on July 15, 2020. COR 7, ¶6. DESC never requested a hearing. See id. III. EVIDENCE RELIED UPON The City will submit a witness and exhibit list on August 5, 2020, and again on August 12, 2020. The City relies on the witness testimony and other documentary evidence disclosed in those lists and contemporaneously produced. IV. AUTHORITY A. Violation 1: The Shelter Is A Land Use Not Allowed In The CA Zoning Designation . 1. The de-intensification shelter operations do not meet the RMC definition of a hotel” use. The de-intensification shelter is not a Hotel use. Hotels offer rooms for transient rental for sleeping purposes. RMC 4-11-080. Although the term “transient” is not defined in the City HEX-000113 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 13 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 code, the term “transient rental” should be read in the context of both how hotels are commonly understood to operate and as those terms are used under related state law. In Smith v. Dorchester Hotel Co., 145 Wash. 344, 259 P. 1085 (1927), the court construed the word transient to distinguish between guests and lodgers, noting that the term transient is used to denote guests and guests have a home elsewhere and do not have a special contract for their stay. In the court’s words: The facts in this case clearly demonstrate to our minds that the respondent was a lodger. If it be conceded that, when he left the family residence on November 2, 1925, it was still his home because he might return there at any time prior to the divorce, still he did not have any home after the divorce decree of January 22, 1926, except the home which he maintained at the hotel of appellants. His stay was not transient in the sense that it is ordinarily used to denote a guest. He was stopping at the hotel, making it his home until such time as he should, for any reason, determine to move to another place. He had a special contract for his room paying therefor at a weekly rate less than the day rate. He lodged at the hotel for a period of approximately four months. 145 Wash. at 347 (emphasis added). The City’s use of “transient rental” is consistent with RCW 19.48.010’s tie to the common law distinction that hotels are held out to the public for rent to transient guests. RCW 19.48.010 defines hotel as follows: Any building held out to the public to be an inn, hotel or public lodging house or place where sleeping accommodations, whether with or without meals, or the facilities for preparing the same, are furnished for hire to transient guests, in which three or more rooms are used for the accommodation of such guests, shall for the purposes of this chapter and chapter 60.64 RCW, or any amendment thereof, only, be defined to be a hotel, and whenever the word hotel shall occur in this chapter and chapter 60.64 RCW, or any amendment thereof, it shall be construed to mean a hotel as herein described. HEX-000114 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 14 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Emphasis added. The Persons in Control are not holding out the de-intensification to be available to the public for “hire” or for “rental.” In addition, although RHI understandably asserts that its hotel business generation dissipated due to the pandemic, economic hardship is irrelevant to defining the nature of the use. The only thing that looks the same is the physical structure of the building: hotel structures are divided into segregated rooms that mimic living spaces without significant tenant significant work required. But the convenience of a de-intensification shelter using a former hotel building does not render the de-intensification shelter a Hotel land use. The operation of the de-intensification shelter out of the same physical structure as the former Red Lion Hotel & Conference Center is nothing like a Hotel use. See discussion in the Statement of Facts, above. 2. The de-intensification shelter’s operations conflict with a Hotel’s economic development purposes. For purposes of collecting various forms of hotel taxation – which the City is reliant upon for general revenue, economic development, and the promotion of tourism – the Washington Department of Revenue defines the term “transient tenant” in the following context: Transient tenant defined. The term "transient tenant" as used in this rule means any guest, resident, or other occupant to whom lodging and other services are furnished under a license to use real property for less than one month , or less than thirty continuous days if the rental period does not begin on the first day of the month. Providing lodging for a continuous period of one month or more to a guest, resident, or other occupant is a rental or lease of real property. It is presumed that when lodging is provided for a continuous period of one month or more, or thirty continuous days or more if the rental period does not begin on the first day of the month, the guest, resident, or other occupant purchasing the lodging is a nontransient upon the thirtieth day without regard to a specific lodging unit occupied throughout the continuous thirty-day period. An occupant who contracts in advance and remains in continuous occupancy for the initial HEX-000115 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 15 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thirty days will be considered a nontransient from the first day of occupancy provided in the contract. WAC 458-20-166 (emphasis added). Here, King County rented all rooms on the Property for an initial 90-day period, but this has been extended with King County reserving the right to extend indefinitely pursuant to the Agreement. King County can perpetually use the Property for exclusive use, depriving the owners of the Property from holding hotel rooms out to rent to the general public. As a result, despite the property being established in City records as a Hotel land use, the Property is not generating sales tax or hotel lodging tax in the way that a hotel would. This form of “rental” is not a transient hotel room rental within the context of City of Renton or Washington law. 3. The de-intensification shelter does not fit the definition of any land use allowed in the CA zone. As described above in the Statement of Facts, the de-intensification shelter does not meet the definition of a “Hotel” land use which is the only legally established use on the Property. The Persons in Control label the shelter use as a “congregate shelter” and “de- intensification” facility (See, e.g., COR 4, passim (Declaration of Leo Flor)), but as explained above in the Statement of Facts these are not uses recognized in the City, and none of the potentially analogous uses are allowed in the CA zone. B. The De-Intensification Shelter Operates Without A City Business License, In Violation Of The Renton Municipal Code. The City of Renton requires all businesses physically conducting business within the City to first apply for a business license. COR 9, ¶ 8. Applications are required even if the business may be exempt from taxation or application fees. Id. HEX-000116 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 16 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Business licenses and registrations are used by the City for many purposes. COR 9, ¶9. One purpose is to allow the City to know what businesses are operating within the City and to assist in determining whether such businesses are subject to the City’s business and operations tax. Id. One of the regulatory purposes of this requirement is to allow the City to check to see if the business’ planned use of property complies with City zoning and building regulations. Id. By failing to seek a business license for the de-intensification shelter, the Persons in Control are operating in violation of RMC 5-5-3.E.5 and thwarting the City’s business licensing purposes. C. The FOV Is a Final Determination as to DESC. Because DESC failed to request a hearing in response to the FOV served on DESC, the FOV is final as to DESC. See RMC 1-3-2.C.2.b. To the extent that the Hearing Examiner might take a different view, the City incorporates as to DESC all statements and arguments presented in this brief. V. CONCLUSION For the reasons set forth above, the City respectfully requests that the Hearing Examiner, acting on designation on behalf of the CED Administrator, issue a final determination that the Red Lion Shelter (1) is a land use not allowed in the CA zoning designation and (2) operates without a Renton business license contrary to RMC 5-5-3.E.5. Consistent with the FOV, the City requests the Hearing Examiner issue an order imposing $250 daily fines against each Person in Control separately for each day the Property operates as a shelter starting on August 9, 2020 (the compliance date set in the FOV). This is the only remedy sought by the City from the Hearing Examiner through confirmation of the HEX-000117 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 17 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOV. The City reserves the right to pursue all other remedies and penalties available to it separately from the FOV. Respectfully submitted this 5th day of August, 2020. By: /s/ Shane Moloney Shane Moloney City Attorney City of Renton Attachments: Declaration of Service Appendix HEX-000118 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 18 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF SERVICE I declare under penalty of perjury under the laws of the State of Washington that on August 5, 2020, a true and correct copy of the foregoing document was served upon the parties listed below via the method indicated: Renton Hotel Investors, LLC: Sumeer Singla Williams, Kastner & Gibbs PLLC ssingla@williamskastner.com X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service King County: Howard Schneiderman Senior Deputy Prosecuting Attorney Howard.Schneiderman@kingcounty.gov Youn-Jung Kim Deputy Prosecuting Attorney Jina.Kim@kingcounty.gov Lena Madden Deputy Prosecuting Attorney Lena.Madden@kingcounty.gov X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service HEX-000119 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 19 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DESC: Daniel Malone Downtown Emergency Service Center (DESC) dmalone@desc.org X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service DATED this 5th day of August, 2020, at Renton, Washington. s/ Stephanie Rary Stephanie Rary, Paralegal HEX-000120 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 20 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPENDIX Potentially Relevant Land Use Definitions (Source: Renton Municipal Code ch. 4-11) Presented in the Order Listed in RMC 4-2-060 CONGREGATE RESIDENCE: Any building or portion thereof that contains facilities for living, sleeping and sanitation and may include facilities for eating and cooking for occupancy for other than a family. A congregate residence may include a boarding house, but does not include a group home I or II, convalescent center, jail, hotel, motel or secure community transition facility GROUP HOME I (REHABILITATION): A facility or dwelling unit housing persons, unrelated by blood or marriage and operating as a group facility household. A rehabilitative group home may include halfway houses and substance abuse recovery homes. This definition does not include congregate residential or secure community transition facilities. GROUP HOME II (PROTECTIVE RESIDENCY): A facility or dwelling unit housing persons, including resident staff, unrelated by blood or marriage and operating as a group family household. Staff persons provide care, education, and participation in community activities for the residents with the primary goal of enabling the resident to live as independently as possible. A protective residency may include disabled (mentally and physically) persons, foster child care, abused women shelter, orphanages and other uses where residents are deemed vulnerable and/or disabled and are not a threat to self or to public health or safety. This definition does not include congregate residential or secure community transition facilities. DIVERSION FACILITY: A facility which provides community crisis services, whereby individuals are diverted from jails, hospitals or other treatment options due to mental illness or chemical dependency. DIVERSION INTERIM SERVICE FACILITY: A facility which provides interim or respite services, such as temporary shelter, medical/mental health treatment, case management or other support options such as transportation arrangements for patients referred to such a facility from a diversion facility. GOVERNMENT FACILITIES, OTHER: Facilities of any unit of county, state, federal, or special district government. Types of facilities include community centers, vehicle and drivers licensing offices, public works maintenance facilities, courts of law, school support facilities, and other types of county, state, school district, special district, or federal facilities. This definition excludes offices, jails, parks, transit centers, park & rides, sewage treatment plants, schools, municipally owned golf courses or airports, and libraries. HEX-000121 CITY’S OPENING BRIEF IN SUPPORT OF FINDING OF VIOLATION – Page 21 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HOTEL: 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. HEX-000122