EAST DOWNTOWN COMM. v. DOWNTOWN E.S.C., 52101-2-I (Wash.App. 7-7-2003)

No. 52101-2-IThe Court of Appeals of Washington, Division One.
Filed: July 7, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 02-2-35727-0 Judgment or order under review Date filed: 03/20/2003

Counsel for Appellant(s), John Richard Aramburu, Attorney at Law, 505 Madison St. Ste 209, Seattle, WA 98104-1138.

Counsel for Respondent(s), Kelly M Mann, Graham and Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.

Larry John Smith, Graham Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.

ELLINGTON, J.

East Downtown Community Association (EDCA) appeals from the trial court order dismissing its complaint for declaratory and injunctive relief against Downtown Emergency Service Center and DESC 1811 Associates (referred to collectively as DESC). Because EDCA has failed to allege any facts that would merit relief, the trial court properly dismissed EDCA’s complaint under CR 12(b)(6). Accordingly, we affirm.[1]

Standard of Review

We review de novo the trial court’s dismissal for failure to state a claim upon which relief can be granted.[2] Dismissal under CR 12(b)(6) is appropriate only if `it appears beyond a reasonable doubt that no facts exist that would justify recovery.’[3] We must accept as true the allegations in EDCA’s complaint and any reasonable inferences therefrom.[4]

Facts
The allegations in EDCA’s complaint establish the following facts for purposes of this appeal. The Downtown Emergency Services Center is a non- profit corporation that plans to build and operate a four-story residential building at 1811 Eastlake Avenue in Seattle (the 1811 Project). DESC 1811 Associates is the owner of the property on which the 1811 Project is to be built. The cost of the building’s construction and ongoing operations will be financed primarily through public funds.

The 1811 Project will provide permanent housing for about 75 formerly homeless persons, at least 50 of whom will be `pre-recovery chronic public inebriates,’ that is, chemically dependent persons `who are not interested in pursuing treatment.’[5] The first floor of the building will include a dormitory for 26 persons; the upper floors will consist of small private individual studio-type rooms with cooking facilities. A full-time staff will provide security and services for the residents, including some meals, healthcare, and chemical dependency counseling. Residents will be permitted to possess and consume alcohol in the private rental units.

EDCA, a non-profit corporation that consists of several owners of nearby properties, filed this action for injunctive and declaratory relief against DESC on December 17, 2002. EDCA alleged (1) that DESC proposed to operate the 1811 Project as an unlicensed `alcohol treatment facility,’ in violation of RCW 71.12.460; (2) that the 1811 Project was a nuisance because it lacked the Department of Health license required by RCW 71.12.460; and (3) that the 1811 Project was a nuisance under RCW 7.48.240 (`Certain places of resort declared nuisances’). EDCA requested a declaratory judgment enjoining construction and operation of the 1811 Building until DESC obtained a DOH license. EDCA also sought abatement of the 1811 Project as a nuisance under RCW 7.48.240.

DESC moved to dismiss EDCA’s complaint under CR 12(b)(6), arguing that EDCA had failed to allege a justiciable controversy and lacked standing to challenge the applicability of the licensing requirements of RCW 71.12.460 to the 1811 Project. DESC further maintained that RCW 7.48.240
did not apply to facilities such as the 1811 Project. On March 5, 2003, the trial court granted DESC’s motion and dismissed EDCA’s complaint with prejudice.

Analysis
EDCA first contends that construction of the 1811 Project should be enjoined until DESC obtains the DOH license required by RCW 71.12.460. We agree with DESC that EDCA lacks standing to challenge the applicability of RCW 71.12.460 to the 1811 Project.

The Supreme Court has established a two-part test to determine standing under the Uniform Declaratory Judgments Act, RCW 7.24: (1) whether the interest the complainant seeks to protect is `arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee’;[6] and (2) whether the challenged action has caused `injury in fact’ to the complainant.[7] RCW 71.12.460 provides in part:

No person, association, county, municipality, public hospital district, or corporation, shall establish or keep, for compensation or hire, an establishment as defined in this chapter without first having obtained a license therefor from the department of health, complied with rules adopted under this chapter, and paid the license fee provided in this chapter.

RCW 71.12.455 defines `establishment’ and `institution’ to mean and include every private or county or municipal hospital, including public hospital districts, sanitarium, home, or other place receiving or caring for any mentally ill, mentally incompetent person, or chemically dependent person. (Emphasis added.) The remaining provisions of RCW 71.12
address fire regulations, inspection procedures, regulations imposed by local authorities, patient rights, and the procedure for the suspension and revocation of a license.[8] Individuals or corporate officers who conduct an establishment without a license or otherwise violate the provisions of RCW 71.12 are guilty of a misdemeanor.[9] Under RCW 71.12.640, the county prosecuting attorney `shall . . . institute and conduct the prosecution of any action brought for the violation within his county of any of the provisions of this chapter.’

EDCA alleges, and DESC does not dispute for purposes of this appeal, that the 1811 Project will receive and care for chemically dependent persons and therefore constitutes an `establishment’ that is subject to the DOH licensing requirement of RCW 71.12.460. Nor does DESC dispute EDCA’s claim that as an establishment under RCW 71.12.455, the 1811 Project would be subject to the regulations adopted in accordance with RCW 71.12 that govern the construction and operation of `alcohol treatment facilities.’[10] EDCA does not identify any specific provisions in RCW 71.12 to support its contention that a neighboring property owner is within the zone of interests to be protected by the licensing requirement of RCW 71.12.460. Rather, EDCA cites RCW 74.50.010, in which the legislature found that there was `a need for reevaluation of state policies and programs regarding indigent alcoholics and drug addicts’[11] and that ‘[t]he state must modify its policies and programs for alcoholics and redirect its resources in the interests of these individuals, the community and the taxpayers.’[12] But RCW 74.50.010 is part of the Alcoholism and Drug Addiction Treatment and Support Act, enacted in 1987. RCW 74.50 directs the Department of Social and Health Services to develop and provide treatment and shelter assistance programs.[13] EDCA has not presented any relevant argument suggesting how the alleged legislative intent underlying RCW 74.50 can simply be transferred to the Department of Health licensing provisions in RCW 71.12. EDCA’s general invocation of laws forbidding public drunkenness and imposing liability for those who supply alcohol to inebriated persons is equally misplaced.

Finally, EDCA relies on the detailed regulations governing the licensing of alcohol treatment facilities set forth in WAC 246-326, which encompass the qualifications of operators and treatment providers, minimum building and fire safety standards, standards governing security, the admission and discharge of patients, and fire safety regulations. But we agree with DESC that the purpose of such regulations, as well as the provisions in RCW 71.12, is to protect the patients who are to be treated in the facility, not the economic interests of adjoining landowners.[14] But even if we assume that EDCA has satisfied the `zone of interests’ test for purposes of CR 12(b)(6), the allegations in the complaint do not satisfy the `injury-in-fact’ test.[15] The injury in fact test focuses on whether the plaintiff has suffered an actual injury. Consequently, EDCA must allege that it has suffered a specific and perceptible injury arising from the challenged action.[16] To support its contention that it has satisfied the actual injury test, EDCA relies on cases in which adjoining property owners have experienced a diminution in property value resulting from the defendant’s action.[17] EDCA maintains that ‘[t]he congregation of 50-75 [chronic public inebriates] in the vicinity of plaintiffs’ properties will create similar problems and depreciate property values.’[18] EDCA further asserts that the effect on the quality of life of the presence of chronic public inebriates is well known and that `the exportation of these individuals to a location adjacent to EDCA’s members can create these same impacts in a new setting.’[19] It is therefore apparent that EDCA’s alleged injuries are unrelated to the absence of a DOH license and in fact arise from the presence of the 1811 Project itself and its planned residents. EDCA does not allege any facts, hypothetical or otherwise, supporting an inference that the alleged diminution in property value results from the absence of a Department of Health license or that the issuance of the license required by RCW 71.12.460 would eliminate or ameliorate the problems caused by the presence of the 1811 Project in EDCA’s neighborhood. Nor has EDCA alleged that laws governing public drunkenness or off-premise liability will be enforced differently in the area of the 1811 Project, with or without a DOH license.

In sum, EDCA has failed to allege specific and perceptible harm arising from the absence of a DOH license. Consequently, EDCA has failed to satisfy the actual injury test and therefore lacks standing to challenge the applicability of RCW 71.12.460. Accordingly, the trial court properly dismissed EDCA’s complaint under CR 12(b)(6). DESC also maintains that EDCA failed to allege a justiciable controversy.

A justiciable controversy is:

(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.[20] But because we have concluded that EDCA lacks standing to challenge the 1811 Project, we need not resolve the parties’ conflicting claims regarding justiciability.

EDCA contends that DESC’s failure to secure a license creates a nuisance per se that is subject to injunction. For this contention, EDCA relies on the general proposition that `engaging in any business or profession in defiance of the law is a nuisance per se and subject to injunction.’[21] But EDCA may maintain such an action only if it can establish a `special injury,’ that is, one that is distinct in degree and kind from that suffered by the public in general.[22] But because EDCA fails to allege such special injuries, this claim also fails.

Finally, EDCA contends that the 1811 Project is a statutory nuisance under RCW 7.48.240, which provides:

Certain places of resort declared nuisances.

Houses of ill fame, kept for the purpose, where persons are employed for purposes of prostitution; all public houses or places of resort where gambling is carried on, or permitted; all houses or places within any city, town, or village, or upon any public road, or highway where drunkenness, gambling, fighting or breaches of the peace are carried on, or permitted; all opium dens, or houses, or places of resort where opium smoking is permitted, are nuisances, and may be abated, and the owners, keepers, or persons in charge thereof, and persons carrying on such unlawful business shall be punished as provided in this chapter. (Emphasis added). EDCA alleges that the `mixture of chronic inebriates and availability to alcohol will produce drunkenness,’ and that for purposes of CR 12(b)(6), it has established that the 1811 Project is a place where drunkenness will be `carried on, or permitted’ and therefore may be abated under RCW 7.48.240.[23]

Only two Washington decisions, both criminal prosecutions, have addressed RCW 7.48.240, which was enacted in 1875. In State v. Brown,[24]
the court construed an earlier version of RCW 7.48.240, which declared as nuisances `all houses . . . where women are employed to draw custom [and] dance.’ In rejecting the sufficiency of the charging document, the court concluded that the purpose of the statute was to punish all persons engaged in any business which openly outrages decency and tends to corrupt the public morals, and not to condemn the employing of women, in all cases, even for the purpose of drawing custom and dancing, regardless of the effect thereof upon the community.[25] The court stressed that if taken literally, the statute would have declared as a nuisance any public performance of a dance, `yet no one would for a moment consider that such was the intention of the legislature.’[26] A sufficient charging document would have to allege, among other things, that the challenged behavior `was such as tended to draw together crowds of disorderly persons, or to debauch the morals of those resorting to this place.’[27] The court reviewed a similar charging document in State v. Clancy:

There is no allegation that the character of the women was bad; that their deportment was bad; that the quality and character of their conversation was bad; or that their conduct tended to collect crowds of disorderly persons to the place. It cannot be said as a matter of law that women who are merely engaged upon a commission basis to draw custom for the sale of soft drinks, or for dancing, are engaged in immoral business or creating a common nuisance.[28]

When interpreting a statute, our primary objective is to ascertain and give effect to the legislature’s intent.[29] But we will avoid a literal reading of a statute that results in unlikely, absurd, or strained consequences.[30]

As EDCA correctly notes, the provision of RCW 7.48.240 at issue in Brown and Clancy was deleted in 1973.[31] But both decisions nonetheless provide support for DESC’s contention that the legislative intent in enacting RCW 7.48.240 was to eliminate any business that `openly outrages decency and tends to corrupt the public morals.’ Moreover, both courts declined to apply the statute literally and suggested that an alleged nuisance under RCW 7.48.240 required some evidence of public disorder.

Under the circumstances, we agree with DESC that RCW 7.48.240 was not intended to permit abatement of a residential facility before it is even built. A determination of whether, or to what extent, the 1811 Project could be said to constitute a place where drunkenness `is carried on, or permitted,’ in violation of RCW 7.48.240, must deferred until a later date. Accordingly, the trial court did not err in dismissing EDCA’s claim based on RCW 7.48.240.

Affirmed.

SCHINDLER and COX, JJ., concur.