HomeMy WebLinkAbout07-15-2020 - County - Appeal of Finding of Violation 1
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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.
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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
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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
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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.
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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
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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
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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
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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:
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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
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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.
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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
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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