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HomeMy WebLinkAbout08-31-2020 - HEX RHI TestimonyAppendix A -- CODE20-000321 Testimony Note: This hearing summary is provided as a courtesy to those who would benefit from a general overview of the public testimony of the hearing referenced above. The summary is not required or necessary to the recommendation issued by the Hearing Examiner. No assurances are made as to completeness or accuracy. Nothing in this summary should be construed as a finding or legal conclusion made by the Examiner or an indication of what the Examiner found significant to his decision. City of Renton Opening Leslie Clark, Asst. Renton City Attorney, presented the City’s position. She identified that the Finding of Violation names three responsible parties – the Downtown Emergency Services Center (DESC), the operator of the shelter; Renton Hotel Investors (RHI), t he owner of the property, which licensed with King County to provide the hotel, the contract is COR 10; and King County, which is the sponsor of the shelter. These parties are identified as “persons in control” in city code enforcement regulations. The City requests the Examiner find that the shelter is not an allowed use in the Commercial Arterial (CA) zone. Second, the City requests that the Examiner find that the persons in control are operating without a required business license. Third, the City requests that the Examiner impose a fine of $250 per day of continuing violation. No objections have been made to any of the declarations submitted into the record. The City has never taken the position that the shelter would not be allowed anywhere i n the City of Renton. It’s unlawful in the CA zone. The City has a fundamental interest in compliance with its zoning code. The CA zone is a commercial zone intended to evolve from strip commercial development to business areas characterized by enhanced site planning. In COR 8, Vanessa Dolbee, planning manager, declared that the Red Lion was lawfully established and operated as a hotel use allowed in the CA zone. The only established use on the property is a hotel. Since April 2020, the property has no longer been occupied as the Red Lion or a hotel land use. On April 9, 2020 DESC began operating a de-intensification shelter. These operations are mainly a relocation DESC’s main shelter in downtown Seattle. A deintensification shelter is a shelter designed to reduce the density of existing homeless shelters pursuant to local public health order COR3. DESC, RHI and the County have not sought permits from the City for the shelter. Ms. Clark read the zoning code definition of hotel. She emphasized that the key elements of the definition are transient use, that the purpose of the stay is sleeping and that the use be open to the public. She noted there’s no transient use. The City position is that transient rental is no more than 30 days for person’s whose use is in passing, based upon the IBC definition of transient and hotel tax laws distinguishing based upon transient accommodations. Ms. Clark pointed out that RHI is not currently renting out its hotel to the general public as noted in COR 5. Its own website confirms that all rooms are sold out as shown in Ex. A to COR 11. King County and its (inaudible) are the only tenant per the licensing agreement between the County and RHI. The license agreement requires that the County cover the signage of the hotel for the duration of the agreement. Ex. B to COR 11 shows websites of other hotel sites showing the RHI site as closed. King County is not a transient renter. It’s renting all the rooms and its licensing agreement starts with a 90 day stay and from there goes month to month. The tenancy has already exceeded one month. King County is the only entity paying on the property’s rooms. The facility is only occupied by DESC staff and its nonpaying residents who have made this location their only residence. That was confirmed by members of the Renton Police Department in COR 12 as well as the testimony of DESC Daniel Malone in COR 20. DESC is also not a transient tenant. DESC is King County’s intended operator of the shelter. King County found the RHI location for DESC as shown in the Hague declaration, COR 17 and the Malone declaration in COR 20. DESC’s use already exceeds four months and there is no indication that the tenancy will end until the COVID emergency is over according to the sole decision of King County. DESC calls the residents of the RHI facility throughout its correspondence its clients, not its tenants or guests. The Malone declaration calls them clients, COR 20, as does Duchen in COR 3, and Flor, COR 21. This is a term most often used for persons receiving professional services as opposed to hotel guests. The clients do not rent rooms, they do not self-select. The clients are selected by DESC based upon DESC’s own vulnerability assessment tool, which is in the record as Ex. H to COR 11. The RHI facility is not focused just upon sleeping , but upon housing. DESC clients use the RHI rooms as their homes as they seek more permanent housing as confirmed by Malone in DOR 20. He states that residents stay for days to months, even beyond a year. DESC provides living full wrap around services at the shelter such as social services, social distancing education, mail, medicine, laundry, food, permanent housing, meals at no cost, medical and professional behavioral health services. All of these exceed the scope of what is traditionally ancillary to hotel use. See COR 20, COR 11 Ex. C, COR 11 Ex. E and COR 12 Ex. A. DESC physically secures the property in a way that a hotel does not. It has fencing around the property that limits access. It implements other security services as documented in COR 12 and COR 11, Ex C. Ms. Clark identified that DESC’s use is not an authorized use in the CA zone. The RMC does not have any use identified in its zoning code that specifically addresses the type of use being operated by DESC at the RHI facility. City staff have examined every possible analogous use to determine what use definition most closely matches the use operated by DESC. Staff only found six possible analogous uses to the de-intensification use. Those uses are congregate residences, group home I, group home II, diversion facilities, diversion interim service facilities, and other government offices/facilities. None of those uses is allowed outright in the CA zone. Vanessa Dolbee in COR 8 noted that based upon operations of the DESC operation it doesn’t meet any land uses recognized in the RMC. When a use is not recognized, it needs to go through an unclassified use process governed by RMC 4-2-050.C.6. Under that process the proposed use is authorized where the most analogous use is authorized. Ms. Dolbee found that the proposed use is most analogous to one of three uses. A congregate residence or a diversion facility or a diversion interim service facility. The City would have gone through this process if King County had applied before leasing the RHI facility or anytime in the past four months since using that facility. None of the responsible parties has approached the City about undergoing this unclassified use process. The shelter would have been allowed where any of those three analogous uses would be located. Congregate residences are conditionally permitted in the R14 zone and are permitted in the Center Village zone and above the first floor in the Center Downtown zone. They’re prohibited in the CA zone. Diversion facilities are allowed south of 405 by conditional use permit in both the medium and heavy industrial zones. They’re prohibited in the CA zones. Diversion interim service facilities are allowed in the same areas as diversion facilities and are prohibited in the CA zone. In conclusion, the DESC shelter use is unlawful in the CA zone, it is not unlawful everywhere else in the City. With respect to obtain a business license, it is a crime to engage in business without a business license. The business license issued for the Red Lion does not cover the DESC use. See COR 9. This is because the shelter is a different business with a different primary operator. Business licenses are nontransferable under City code. DESC’s nonprofit status and King County’s government status don’t exempt them from business license requirements as found in the definitions of persons engaging in business of the business license regulations. The City’s zoning and licensing laws are not preempted due to the King County pandemic. The City disputes that King County can do whatever it chooses in the name of the pandemic, including violating city laws. King County relies upon a local public health order first issued on March 31 and later amended. See COR 3, att. A and B. The order encourages the establishment of deintensification centers. However, the order only authorizes the use of legally available resources. The order makes no reference to the RHI property or any other. The property is not legally available due to its CA zoning. King County argues that the City’s zoning laws are pre- empted. Neither conflict nor field preemption apply. As to field pre-emption, no statute gives local health officials any authority over zoning or business licensing regulations. A local health official cannot be said to occupy the field, which is what field preemption requires. The statutes granting authority to local health officials says nothing about preempting local laws. There is no conflict preemption. Municipalities must comply with each other’s regulations unless there is legislative intent at the state level to the contrary. The municipality arguing conflict preemption has a heavy burden to establish a statutory conflict that cannot be harmonized. The laws in this situation can be easily harmonized. The deintensification center can be relocated to a property that is a legally available property and the responsible parties can obtain a business license for such operations. Difficulty in finding a lawful location does not create conflict preemption. The location of the facility is about convenience and cost. The County has stated that it chose the RHI location because it was offered at a price the County was willing to pay. See COR 17 and COR 21. The County still maintains that relocation would be expensive and inconvenient. See COR 21. In its own briefing at page 8, the County has recognized it has appropriation authority and take the property it needs. The County could also hire more staff to make the relocation more convenient. COR 16, Ex. A shows that the County has sufficient funding to engage in additional effort to find a more suitable location. There’s sufficient funding to relocate. The County’s preference to not relocate does not justify preemption. The responsible parties are also not excused from code compliance due to alleged discrimination. RHI asserts disability discrimination on the sole basis that residents have disabilities. The City’s laws and actions have been neutral. The City would have taken the same action if the shelter had people with disabilities or without. The City’s reasons for enforcement are because there is a residential use of more than 200 people in a commercial zone that doesn’t allow large residential uses. COR 14 and 15 shows that the City has not allowed any similar uses to be established in the CA zone. In addition, even though the responsible parties never requested an accommodation for shelter residents, the City could have denied such a request because it would not be a reasonable accommodation under the ADA or the Rehabilitation Act. An accommodation is only required it necessary to avoid discrimination and an alteration to zoning rules that would be convenient or helpful does not make the change necessary. There is no failure to accommodate if the use would be prohibited regardless of disability. There is no question that the deintensification center is the only residential use being operated in the CA zone in the city. The City would have taken enforcement action against such a residential use regardless of whether any residents had a disability. In response to Examiner questions, Ms. Clark noted that there are three primary differences between hotel use and deintensification center. Those three are transient use, the fact that the guests aren’t paying for the rooms (related to hotels being open to the general public) and the fact that hotels are focused upon being used for sleeping purposes. Hotels do provide ancillary services, but the extensive nature of the social services provided at the deintensification center are not ancillary. The wrap around services are not attributable to the disabilities of the guests, but rather are due to their homelessness status. Full wrap around services are necessary regardless of the disabilities of the guests. As to the imposition of daily future fines and the applicability of Post v. City of Tacoma, the Examiner can require the City to make additional, appealable findings for future fines. Lisa Chaiet Rahman appeared on behalf of DESC. The Examiner asked if there were any objections to her appearance and none were expressed. RHI Presentation Sumeer Singla, counsel for RHI, noted he identify that the RHI site still meets the definition of a hotel and it is not a former site. He would also address ADA issues. The RHI site was a hotel, is a hotel and will continue to operate as a hotel. The RHI facility meets the hotel definition to a T. It’s undisputed that it’s a structure over two stories in height with lodging spaces above the first floor with rooms accessible from a common hallway. There’s a central kitchen and dining room and accessory shops and services catering to the general public that may be provided by the facility. The focus on transient rental definition advocated by the City relies upon wording that isn’t in the definition. The City reads the requirement that transient stays be for sleeping purposes as exclusively for that purpose. The definition authorizes transient rentals for sleeping purposes, the purpose isn’t limited to that. There is also no definition of transient that limits the term to 30 days. No Renton municipal code provision limits the meaning of transient to 30 days. There are hotels in the City that have rented rooms for over 30 days. Guests are currently staying at the RHI facility until they can find housing or until the pandemic is over. That is the type of purpose for which hotels exist. People come, they stay until it’s time for them to leave. A wedding party or a convention could book an entire hotel and then also have to stay for an extended period of time in a hotel due to a disaster such as the pandem ic. That type of use should be considered transient. They’re staying at the hotel due to an emergency and once the emergency is over they would leave. That could be 60 or 90 days. The reason why the City has issued the FOV is because of the population of the hotel. The City agrees that zoning enforcement is subject to the ADA and the Rehabilitation Act. The City also agrees that persons recovering from alcohol and substance abuse are disabled. The City was aware that residents are disabled as asserted in the second Locher declaration. In point of fact, the press release issued on the same day identifies that the deintensification center population has extraordinary needs including mental health and substance abuse counseling. Further, disability for substance and alcohol abuse is a spectrum and the disability doesn’t disappear once you start using again. The wrap around services provided by DESC are not being provided to people without disabilities. Mental health services, medical services and substance abuse counseling is being provided to people with disabilities. There is also selective enforcement. That is occurring here. There is no on-going investigation of other hotels to determine if people are staying there longer than 30 days, who was paying for the rooms etc. The only reason for the FOV was issued was, because as alleged in Mr. Levy’s declaration, when RHI stepped up to authorize use of its premises to address pandemic issues, political pressure came to bear to shut it down. Under such circumstances cities will use its zoning code to throw out undesirable populations. The courts have ruled that using zoning laws in a supposed neutral fashion to remove protected populations such as the disabled is unconstitutional. The City’s argument that there are other zones that can accommodate the deintensification facility is a red hearing. As Mr. Malone and Mr. Flore have pointed out in their declarations, during a pandemic it would be nearly impossible to sight needed facilities in appropriate zones. In response to Examiner questions, Mr. Singla noted that the wrap around services are not just limited to helping the homeless find homes, but are also directed at disability such as mental health and substance abuse counseling. King County Presentation Howard Schneiderman, Deputy King County Prosecuting Attorney, noted that hotels are commonly understood to be used for vacations, travel and business trips. But there are other uses for hotels that are completely appropriate depending upon the circumstances. Sometimes people who do have a regular place to stay cannot return in a short period of time because it would be unsafe, such as in cases of disaster like hurricanes, fire, landslides or river flooding where people have to rebuild their home. It’s perfectly acceptable in times such as that for people to stay in a hotel or a motel. The residents of the deintensification facility are also living there because of a disaster, the pandemic, a 100-year public health crisis. Whether or not the City’s enforcement action is reasonable or not is dependent upon the circumstances. The City has not presented any good reason for its code enforcement action. The City wasn’t compelled to initiate the enforcement action. The administrator has the authority to rescind a warning of violation based upon good cause. This action should be dismissed for good cause, as there’s no justification for the City’s actions in obstructing actions necessary to control the pandemic and plenty of good cause for that reason to dismiss it. The City is making a narrow, restrained interpretation of the hotel definition that isn’t consistent with typical hotel use today. Hotels are used for far more than just sleeping purposes. Mr. Schneiderman was married in a hotel as were his parents, that’s not unusual. Hotels and CLE courses are held in hotels. Hotels also provide food service, room service, bars, gyms, swimming pools, hot tubs, saunas, exercise rooms. More upscale hotels may offer spas, exercise classes, massage and yoga classes. Some have waterparks. These types of amenities have nothing to do with sleeping, but they are there for the people staying there. Other services include shuttle service, babysitting services and laundry. The hotel definition doesn’t have any requirement as to who pays for the rooms. Having a single payer is a hotel owner’s dream. The City ordinarily wouldn’t have a problem with that. Would the City have had a problem if the Red Cross or FEMA had bought up all the rooms to take house middle-class persons who lost their homes? The deintensification guest stays are transient. The residents are transients by definition. They’re not going to stay in the RHI facility forever. The Malone declaration outlines that nobody intends this to be forever. DESC provides permanent housing solutions to move people when housing is available. As Flore stated in his declaration, this is a temporary action to control COVID. There’s nothing in the record to suggest that this is to be a permanent residence. The meal service provided to deintensification guests is also not counter to the hotel definition. What hotel doesn’t offer meal services of some kind? Only basic hotels. Also, who hasn’t had food delivered to their hotel room? Providing meals during this time so residents don’t have to go out looking for it furthers CDC recommendations to avoid unnecessary contact with other people. Providing meals helps stop the spread of COVID by making it easier for clients to avoid going to restaurants and stores to get food. The City has complained about fencing. There’s nothing in the code that prohibits fencing around a hotel. The Sorrento hotel may have fencing around it. Fencing is irrelevant. The fact that all the rooms are rented is also irrelevant, as hotels often have no vacancies. Having all rooms booked is also a hotel owner’s dream. The covering of signage is also irrelevant. The sign isn’t necessary because the hotel is fully occupied. It’s still the Red Lion. It’s still a hotel and i s still being used as a hotel. The fact argues that the hotel isn’t open to the general public. Any time a hotel is fully booked it’s not open to the general public. The residents staying there now are part of the general public. It’s not an exclusive club. It’s members of the public with significant needs that other shelters often won’t accept. As to security, there’s nothing about in the code that prohibits hotels from having security. Large hotels have their own security detail. That’s not unusual. If DESC stopped providing its wrap around services the City would be up in arms that the County isn’t helping the homeless population and thereby preventing disturbances. The only reason that the City has undertaken this code enforcement action is because of the population involved. If the RHI residents were middle class homeowners displaced by a landslide, the City would not be concerned about the length or character of the hotel stay. As noted by Dr. Duchen in his declaration, using hotels for quarantining people at risk of getting an infectious disease is a long-established public health practice as well. There wasn’t a good reason for the City start its code enforcement action for these reasons at this time to frustrate the efforts of the health department in its efforts to control the pandemic. As to the business license requirement, the County is providing funding to the DESC by renting the hotel. It’s not operating a business. The City’s reading of its business license standards could apply to a lemonade stand or to someone making sandwiches for the homeless as charity. The City is focusing on RMC 5-5-2, the definition of business, which if read literally would apply to anything. The definition defines business as any activity conducted for gain or benefit or advantage to the taxpayer or another person. Taken literally, this would apply to a lemonade stand or making sandwiches for homeless persons. That is an overly constrained interpretation. The code also defines a place of business as a temporary or permanent location where business is conducted. Neither King County nor DESC are conducting business. If the County has to get a business license then the City would have to have all its agencies that provide service to get business licenses since they work for the benefit of others. On the authority issue, the City relied upon preemption cases. It’s not the best choice of words. Preemption applies to when statutes are in conflict. In this situation it’s t wo separate actions by two separate government entities that have parallel authority. The City has a right to enforce zoning and land use but the County and local health authority have parallel authority to control disease. They exist simultaneously. The real question is whether during a pandemic can use its zoning authority to hinder and frustrate the efforts of the local health department protect the public from the virus. Case law recognizes that local health officials have exceptional power to control disease. The most recent case on the subject is Spokane County Health District v. Brockett, which held that protecting and preserving health is an important governmental function and therefore public health statutes and the actions of local public health boards administering those statutes are liberally construed. The legislatively delegated authority to cities and health boards gives them extraordinary power that may be unreasonable in another context. So due to the 100-year pandemic, the health department has extraordinary power to address the disease in ways that might be found unreasonable absent the crises. The actions of the health department and the local health officer’s order must be liberally construed. As noted by the Brockett court, 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 the defendants of that case. The City of Renton does not have a constitutional right to enforce its zoning code in all contexts. A superior court ruling in the City of Kent addressed similar issues. In that case, the City of Kent tried to stop the public health department from opening the first isolation and quarantine site in a motel. The City sought a temporary restraining order and then a preliminary injunction. The City claimed that it was necessary for the County to first obtain approval from the City by going through their permitting process. Judge Shah addressed the conflict between the efforts of the City to hinder the efforts of the county to open the facility and found the authority of the public health department to be superior. Judge Shah relied upon the Brockett case and RCW 70.05.030 granted the health officer broad powers to contain infectious disease within his or her jurisdiction and that the actions of the officers will be liberally construed. RCW 70.05.070 authorizes the local health officer to take a broad range of actions to contain COVID. Using a motel to quarantine persons who have nowhere else to go is a reasonable action taken by a local health officer. Absent reckless or completely unreasonable conduct the actions of the health officer should be given deference. The statutory scheme of RCW 70.05 grants specific authority specifically to the health officer. The City does not have the right to regulate dangerous disease. Judge Shah concluded that the City had not shown a clear legal or equitable right to infringe upon the authority of the local health officer to utilize the motel as an isolation and quarantine facility for COVID. The City is asking for a very strained reading of the local health officers order. The order requires the use of legally available locations. It didn’t say that King County must first consult with the cities and apply for permits or make sure that the location doesn’t conflict with zoning laws. There’s nothing illegal about renting space. In response to examiner questions, Mr. Schneiderman identified that the County would have to be pretty far out of line for the local health officer to be found to have exceeded its powers. It’s reasonable for the County to use the RHI site even if such a site did violate the zoning code and the use were allowed in other parts of the city. This is because there aren’t other sites available for the use. The City is talking about long term, permanent solutions, about constructing new facilities. There isn’t that kind of time to address the urgencies of the crises. The Brockett case lays out the legal standard. The County has acted reasonably in trying to find a suitable site. As laid out in the declaration from Brian Hague, the County looked all over the County. The County used its leasing agents and hired a private firm to help them search for available hotels and motels and there was very little available. There were very few hotel owners willing to allow the use of their hotels and motels for a homeless population. The County believes that even if the use is prohibited by the zoning code, it should be allowed under the authority of the local health officer. City Rebuttal Ms. Clark identified that the record doesn’t establish that there were no other available sites. The amended declaration of Flore at COR 21 and the declaration of Hague at COR 17 shows that in March and April when initial siting decisions were made that the Renton site was not the only available site. There were two themes for siting at the Renton site. One was other sites were more expensive. The other was that other sites didn’t have as many rooms. There is no testimony in the record that establishes that the Renton site was the only available site. The RHI site was the only available site that was palatable to King County. There’s no evidence in the record that no other site was available for the duration of the RHI use. The City took is enforcement action after the use had been at the site for nearly three months. It may be that emergency actions taken by the County in its initial siting decision didn’t give the County a reasonable opportunity to fully research the availability of alternative sites. But in the four months since, it should have been able to conduct a more thorough assessment. The County has been awarded CAREs action funding and could have put more staff on this issue. It could have put its funding towards appropriating property. On the issue of preemption, the County’s preference are not a preempt ion theory. The County has backed away from arguing preemption because it knows it loses on that argument. The county’s preferences don’t supersede the constitutional rights of the City. The constitution grants the City police powers to zone property and enforce its zoning regulations. There is no legally recognized right for local health officers to supersede the constitutional right of cities to enforce their zoning regulations. The Kent case is inapposite for two primary reasons. First, Kent wanted the County to go through a temporary use permit for the use of the hotel. That was purely a process question, specifically what process to use before the siting of a facility. The City’s position is based upon substantive compliance with its zoning code. The City offered a temporary use permit to enable the County to place its illegal use in the CA zone for a temporary amount of time and the County refused this process. The Kent case is also inapposite because it came out in late March, before the local health officer order at issue in this case. The local health officer order explicitly limits the siting of deintensification centers to legally available resources. The County has argued that legal just means that a contract has been acquired for the property under consideration. The order doesn’t say that. It says legally available, which means consistent with whatever laws apply to it. It’s unquestionable that the City’s zoning laws apply within the City. The property is not legally available for anything other than a hotel use. The local health officers order confirms this by concluding that it does not authorize illegal means or behavior. RCW 70.05.070 undisputedly grants the local health officer to address the pandemic. It was not the local health officer or King County Public Health that chose to site the deintensification center at the RHI facility. The actors are King County DCHS and DESC and RHI. The actors are not public health. On discrimination issues, it is undisputed that there has been no similar use in the City as identified in the declarations of City staff in COR 14 and 15. The City did not target the shelter because of persons with disability. The City enforced its code on this project because of the large number of persons who lived there. This is a large residential use in a zone on a property where it is illegal to operate any large residential use. That is the reason for enforcement as outlined in the city staff declarations and that reason is undisputed. RHI also alleged disproportionate impact. There is no question that persons with disabilities live at the shelter. RHI suggests that mere fact alone means the City can’t enforce its zoning laws. That issue could have been addressed if the responsible parties had applied for the required permits, at which point the City could have then considered whether its exercise of authority would create disproportionate impacts. At the least there should have been coordination with the City. No such coordination or permit applications were involved in this case. The deintensification use was initiated practically overnight. The City was not presented with multiple choices amongst multiple scenarios and then selected the one choice that had disproportionate impact. This was not such a situation. It’s a situation where a use was established without required permits and the City accordingly enforced its code as it would with any other unlawful business or developer. RHI Closing Argument Mr. Singla noted that even in the rebuttal testimony the City had no choice but to concede that there were people with disabilities living at the RHI facility. The City has also argued that no similar use has been allowed. That’s not what the declarations are saying. The declaratio ns are saying that there’s been no similar use discovered. There’s no declaration that identifies whether the City has done an active investigation to see if there are any similar uses around. The City’s actions are dangerous. They will adversely affect persons with disability, some to the point of death. Where will the occupants the facility go if they are displaced? If the City prevails on its FOV, the RHI facility will be asked to remove the residents and there is no guaranty that the occupants will leave the city limits. More likely than not the occupants will simply disperse into the Renton community and further exacerbate the pandemic crisis. The City has simply determined that it doesn’t want this class and group of people within its limits and wants to expel them for the City. King County Closing Mr. Schneiderman urged the application of the standard outlined in Brackett. The City does not have a constitutionally guaranteed right to enforce its zoning code in all circumstances at all times. It cannot at this time during the pandemic frustrate the efforts of the health department to mitigate the pandemic. Dr. Duchen’s order should be read liberally as required and not be read to comply with zoning. City Closing This is not a hotel use. In totality, the multiple uses integrated into the deintensification center do not amount to a hotel. Also, the City disagrees with the position that its code doesn’t define transient. The International Building Code, adopted into the RMC, has a def inition of transient that limits stays to 30 days. The laundry list of uses incorporated into the deintensification use does not meet the three pertinent criteria for qualify as a hotel, specifically transient use for sleeping purposes available to the general public. It is recognized that there are ancillary services to hotels that go beyond just sleeping. However, when considering the full list of services provided by DESC, it is clear that the “ancillary” uses go well beyond what is traditionally provided by hotels. It is a residential use, not a hotel use. The only remaining way to authorize the use is via preemption by local health officer order, but as previously argued there is no conflict or field preemption that applies. The Brockett case makes passing comments about authority, but those must be considered in light of the regulatory context of the case. The issue in that case was whether a needle exchange program could operate in light of possibly conflicting statute level public health measures. The City is not attempting to regulate local health. The City defers to local health officials and agencies on matters of local health. The City is regulating per its zoning and extensive licensing laws period. On the discrimination question, this isn’t a question where an applicant came to the City and was told it couldn’t locate in a certain location. This is a circumstance where the city was presented with a use that was summarily dropped onto city property in violation of city laws. It cannot be said that the City was targeting this use while ignoring other uses. It didn’t go looking for this use. This use presented itself to the City. The City didn’t take action for nearly three months before taking action. The responsible parties have had four months to relocate to a legal location, none of them have done that and the record says nothing about the impossibility to do so. The Examiner posed a hypothetical to Ms. Clark. Google rents out all the rooms of the RHI facility to relocate some of its San Francisco employees for 60 days to collaborate with tech employees in Renton on a major project. Would that still qualify as hotel use, and if not, would the City enforce? Ms. Clark responded that she couldn’t speculate on the City’s exercise of discretionary enforcement authority by its code enforcement staff. Further, the City is not in a position to police the interior operations of any business and can’t possibly always know when hotels are not engaged in hotel use. If enforcement staff were presented with complaints of nonhotel use, then it’s very possible they would act on those complaints.