CITY OF DUVALL v. COPE, 120 Wn. App. 1011 (2004)

No. 51866-6-I.The Court of Appeals of Washington, Division One.
Filed: February 9, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-2-29682-3. Judgment or order under review. Date filed: 01/24/2003.

Jeff W. Cope (Appearing Pro Se), P.O. Box 485, Duvall, WA 98019, Counsel for Appellant(s).

Bruce Laurence Disend, Attorney at Law, Kenyon Law Firm, 11 Front St. S, Issaquah, WA 98027-3820, Counsel for Respondent(s).

Stephen R King, Attorney at Law, 11 Front St. S, Issaquah, WA 98027-3820.

PER CURIAM.

The dismissal on procedural grounds of the City of Duvall’s attempt to enforce its business license ordinance against Jeffrey W. Cope does not result in Cope’s perpetual exemption from the ordinance as a matter of res judicata. And because merely requiring the purchase of a business license does not impermissibly regulate an occupation, the City does not have to demonstrate that Cope’s picture framing shop endangers the public in order to enforce its ordinance. We affirm the superior court’s order requiring Cope to obtain a business license.

Cope operates a picture framing business in the City of Duvall. In June 2001, the Duvall City Clerk sent a letter to Cope notifying him of the City’s business license requirement. Cope did not respond, and did not respond to a second letter sent the following month. The City filed suit in superior court in October 2002, seeking to compel Cope’s compliance with the business licensing requirements. The court granted the City’s motion for summary judgment. Cope appeals.

Summary judgment is proper when there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.[1] This court conducts the same inquiry as the trial court in reviewing a summary judgment order, reviewing it de novo and viewing all evidence in the light most favorable to the nonmoving party.[2] Cope acknowledges that he would be subject to the ordinance if it could be lawfully enforced. He contends, however, that the ordinance cannot be lawfully enforced against him for two reasons: the res judicata effect of an earlier district court proceeding; and that the ordinance exceeds the City’s police powers.

Res Judicata
Res judicata, or claim preclusion, bars the relitigation of claims and issues that were litigated, or might have been litigated, in a prior action. For res judicata to apply, a prior judgment must be identical with a subsequent action in “(1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made.”[3] The party asserting res judicata bears the burden of establishing that the subsequent action was decided in the prior adjudication.[4]

Cope contends that res judicata bars the City’s suit because he prevailed in a Northeast District Court action the City filed in 2000. The record of the Northeast District Court proceedings shows the City attempted to enforce its business license ordinance by filing a complaint for a civil infraction for Cope’s failure to obtain a business license in 2000.[5] The court docket recites that Cope brought a motion to dismiss that the judge granted on procedural grounds.[6]

Cope’s res judicata claim fails for want of identity of the cause of action. The district court lawsuit involved license fees the City sought to collect during the taxable year 2000. The present suit involves only fees the City sought to collect in 2001 and thereafter. Suits in different tax years do not provide the same cause of action for res judicata purposes.[7] Cope’s claim therefore fails.

And while the doctrine of collateral estoppel can give preclusive effect to a court’s determination regarding an ordinance even when the cause of action is not the same, that doctrine requires that the issues actually were litigated and resolved in the earlier action.[8] Cope contends the district court granted his motion on the grounds that the City had no authority to enforce the ordinance against him because his business constituted no threat to the public. But while the docket shows Cope moved to dismiss on those grounds, it also shows that the court actually granted the motion for procedural reasons: `case not timely filed. The City has the authority to tax but should have pursued in a more timely fashion.’[9] Cope argues that the docket is wrong and the court actually agreed with him. He submits an affidavit to that effect signed by a friend who claims he was present at the hearing. But the affidavit is not properly before this court, as it was not filed in the superior court.[10] And while Cope also charges that the City somehow destroyed the district court’s taped record, his contention is based only upon speculation insufficient to defeat summary judgment.[11]

The only competent evidence shows that the district court lawsuit was dismissed because of the City’s untimely attempts to collect the fee. Accordingly, even interpreting Cope’s arguments as a claim of collateral estoppel, the district court order did not bar the City’s 2002 suit to enforce the ordinance.

Invalidity of Duvall’s Business License Ordinance Cope’s second argument is that because his business is conducted by private means on private property and poses no extraordinary risk to public safety, any attempt to regulate it exceeds the police power of the State or its subsidiary governments. A municipal ordinance is presumed constitutional, however, and a heavy burden rests upon the challenger to establish unconstitutionality.[12]

Cope relies upon In re Aubrey,[13] a 1904 case in which the Supreme Court held that a legislative act requiring horseshoers to pass an examination was beyond the scope of the State’s police power.[14]
Cope’s argument fails because a business license of the type at issue here is not an attempt to license a trade by establishing standards for its practice that can be justified solely by the authority contained in the police power of the State, as was the case in Aubrey.[15] The ordinance in question, codified at Chapter 5.01 of the Duvall Municipal Code, requires a $55 fee from all businesses and sets no particular standards for the practice of any type of business.[16] Because this kind of ordinance serves the purpose of raising revenue,[17] it `is not an act solely to be sustained as an exercise of the police power. The fact that there are some elements of police power connected with it will not affect the validity of the act.’[18] And to the extent Cope relies upon RCW Chapter 18.118, his claim fails because the City does not regulate picture framing as a business profession. Cope has not sustained his burden of showing that the City’s ordinance is invalid. Summary judgment was appropriate. We also deny Cope’s conclusory claims for compensation, as they are unsupported by citation to authority or argument.

Affirmed.

COLEMAN and BAKER, JJ., concur.