Edmonds Shopping Center Associates v. City of Edmonds

71 P.3d 233, 117 Wash. App. 344, 2003 Wash. App. LEXIS 1224
CourtCourt of Appeals of Washington
DecidedJune 23, 2003
DocketNo. 50815-6-I
StatusPublished
Cited by20 cases

This text of 71 P.3d 233 (Edmonds Shopping Center Associates v. City of Edmonds) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edmonds Shopping Center Associates v. City of Edmonds, 71 P.3d 233, 117 Wash. App. 344, 2003 Wash. App. LEXIS 1224 (Wash. Ct. App. 2003).

Opinion

Cox, A.C.J.

Edmonds Shopping Center Associates, MBPH, Inc. d/b/a Marty’s Public House, and Albert Dykes and Margaret Ryan-Dykes (collectively Dykes) appeal the trial court’s grant of summary judgment substantially in favor of the city of Edmonds concerning its adoption of Ordinance 3328. The ordinance prohibits cardrooms and addresses other issues that we describe later in this opinion.

We hold that section 1 of the ordinance is a proper exercise of the police power of the city. Moreover, state law preempts the field of the other activities that the ordinance purports to affect. The city’s exercise of its police power divested Dykes of the claimed vested right to operate a cardroom. The ordinance does not operate to take property in the constitutional sense, and there were no violations of substantive or procedural due process rights. Accordingly, we affirm the trial court’s decision as to section 1 of the [350]*350ordinance, but reverse the decision to the extent that it validates portions of section 2.

Albert Dykes and Margaret Ryan-Dykes own and operate Marty’s Public House (Marty’s). Marty’s is a restaurant, bar, and cardroom facility located in Edmonds. Marty’s has an E-5 gambling permit from the Washington Gambling Commission. This authorizes social card games as “commercial stimulants” to the selling of food and drink for consumption on the premises, as provided by law.1

In September 1998, Dykes applied to the commission for an E-15 gambling permit to expand the cardroom to 15 tables. In order to obtain this license, Dykes needed to renovate Marty’s. Dykes applied to the city for a building permit in February 2000. The city granted the permit in March 2000.

In September 2000, citizens presented an initiative petition to the Edmonds City Council that called for a ban on cardrooms and further provided for a phaseout of existing cardrooms. The city council adopted the initiative without modification, enacting Ordinance 3328.

Dykes sued the city, seeking a declaratory judgment against the ordinance. Following cross motions for summary judgment, the trial court substantially granted the city’s motion. But the court also ruled that certain portions of the ordinance were invalid.

Dykes appeals and the city cross-appeals.

We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.2 We review questions of law de novo.3

Here, both sides expressly concede there are no genuine issues of material fact. We agree. Thus, our focus is on the [351]*351legal question of whether the city was entitled to a judgment as a matter of law.

ARTICLE XI, SECTION 11

Dykes argues that Ordinance 3328 conflicts with article XI, section 11 of the state constitution because it is not a reasonable exercise of the city’s police power. Because case and statutory authority is to the contrary, we reject this unpersuasive argument.

Section 1 of the Ordinance states:

Chapter 3.24 Taxation and Regulation of Gambling is hereby amended by the enactment of a new Section 3.24.015 Cardrooms Prohibited to read as follows:
3.24.015 Cardrooms Prohibited.
The conduct or operation of social card games as commercial stimulants as defined in RCW 9.46.0217 and 9.46.0282 shall be prohibited.

“Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”4 An ordinance is inconsistent with article XI, section 11 if (1) the ordinance conflicts with some general law; (2) the ordinance is not a reasonable exercise of the city’s police power; or (3) the subject matter of the ordinance is not local.5 “Whether an ordinance is reasonable, local, or conflicts with a general law for purposes of article XI, section 11 is purely a question of law subject to de novo review.”6 The second of the three above criteria is at issue here.

Reasonable Exercise of Police Power

Dykes argues that Ordinance 3328 is not a legitimate exercise of the city’s police power because the city has failed [352]*352to demonstrate that the ordinance was enacted to protect the health, safety, or general welfare of the public. Specifically, he contends there is no evidence in the record that licensed cardrooms negatively affect the community and there is no public policy to reduce or eliminate lawful gambling. We hold that the ordinance is a reasonable exercise of the city’s police power.

A two-part test applies to determine whether a law is a reasonable exercise of the police power. First, the regulation “must promote the health, safety, peace, education, or welfare of the people.”7 Second, the requirements of the regulation “must bear some reasonable relationship to accomplishing the purpose underlying the statute.”8 An ordinance may be struck down as beyond the police power only if it is shown that it is “ ‘clearly unreasonable, arbitrary or capricious.’ ”9

The first question is whether the ordinance promotes the health, safety, peace, education or welfare of the people. We resolve that question by comparing the ordinance in question with the provisions of article XI, section 11.10

Case law and statutes make clear that the regulation of gambling is a valid exercise of a municipality’s police power.* 11 Municipal police power is as extensive as that of the state.12 And there can be no doubt that the regulation of gambling, whether licensed or not, is within the police power specified in article XI, section 11. Furthermore, RCW 9.46.010 sets forth a legislative declaration of policy re[353]*353specting gambling. Among other things, it states the policy of this state is to limit the nature and scope of gambling activities and further states a policy of strictly regulating and controlling such activities.

Dykes cites no authority for the novel proposition that evidence in the record is required for a municipality to affect, within constitutional and statutory limitations, the business of gambling. Because he has cited no authority, we must presume he has found none.13

Because Dykes cannot and does not argue that his activity is exempted from regulation, and the case and statutory authority does not support his claim, he fails to demonstrate that he is entitled to relief under the first prong of the analysis.

We move to the second prong. Once we determine that an ordinance serves a legitimate public purpose, we must next examine whether the ordinance uses “ ‘means that are reasonably necessary to achieve that purpose.’ ”14

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EDMONDS SHOPPING CENTER ASS'N v. City of Edmonds
71 P.3d 233 (Court of Appeals of Washington, 2003)

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Bluebook (online)
71 P.3d 233, 117 Wash. App. 344, 2003 Wash. App. LEXIS 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmonds-shopping-center-associates-v-city-of-edmonds-washctapp-2003.