Harvest House Restaurant, Inc. v. City of Lynden

• Decision Date: 16 August 1984
• Docket Number: No. 50312-5,50312-5
• Citation: 102 Wn.2d 369,685 P.2d 600
• Parties: HARVEST HOUSE RESTAURANT, INC., d/b/a Harvest House Restaurant, a Washington corporation, and Richard De Golier, individually, Appellants, v. CITY OF LYNDEN, a municipal corporation.
• Court: Washington Supreme Court

Page 369

102 Wn.2d 369

685 P.2d 600

HARVEST HOUSE RESTAURANT, INC., d/b/a Harvest House Restaurant, a Washington corporation, and Richard De Golier, individually, Appellants, v. CITY OF LYNDEN, a municipal corporation.

No. 50312-5.

Supreme Court of Washington,

En Banc.

Aug. 16, 1984.

Dennis Hindman, Bellingham, for appellants.

Simonarson, Visser, Zender, Brandt, Thurston & Miller, Peter J. Visser, Lynden, for respondent.

UTTER, Justice.

This action was brought to challenge the constitutionality of RCW 66.28.080 and Lynden city ordinance 633, § 5.04.035, each of which set some limitations on the right of persons to dance on premises licensed to serve alcoholic beverages. After we had accepted review and scheduled the action for oral argument, a motion to dismiss was filed alleging that the case is now moot. We postponed judgment on the motion pending a hearing on the merits and now dismiss.

Appellant, Harvest House Restaurant, Inc., operated as a restaurant and lounge in the City of Lynden, Whatcom County, with a Class H liquor license. In late February 1981, appellant instituted live music and dancing. The music and dancing continued at Harvest House for almost a month.

On March 16, 1981, in response to the dancing at Harvest House, the Lynden City Council passed ordinance 633, pursuant to the enabling statute, RCW 66.28.080. ¹

Ordinance 633 provides, in pertinent part:

5.04.035 Dancing Prohibited--When. Dancing, either singly, or in groups of two (2) or more persons, is prohibited in any establishment where beer, wine or other intoxicating beverages are sold for on-premises consumption.

5.32.120 Penalty for Violation. Any person or corporation found guilty of a violation of any provision of this chapter shall be guilty of a misdemeanor and shall be punished as set forth in Section 1.24.010 of the Lynden City Code.

Appellants challenged the constitutional validity of ordinance 633, § 5.04.035, in superior court on grounds that it unduly restricted protected expressive conduct under U.S. Const. amend. 1. After considering appellants' arguments, the court noted that the City could reasonably conclude that "[a]llowing dancing at [appellant's restaurant and] cocktail lounge could cause police related problems in addition to the police problems currently handled by the City of Lynden Police Department." Clerk's Papers, at 6. It then held the ordinance valid due to the power given the City by RCW 66.28.080 to regulate dancing at licensed premises. Appellants appealed the decision to the Court of Appeals which certified the case to this court on February 6, 1984. After we had accepted certification, respondent filed a motion to dismiss alleging that the case was moot.

The supporting affidavit established that appellant Harvest House had leased the subject restaurant and transferred Appellants responded to the motion by submitting the affidavit of an officer of Harvest House and the affidavits of two owners of a Lynden tavern. Harvest House's officer stated that it retained a sufficient interest in the present case to avoid mootness because, if the Inland Fish Company were unsuccessful, Harvest House would retake the license and premises. At that time it would, again, want the right to permit dancing. This statement is insufficient to contradict respondent's allegation of mootness. The effect that a determination of this case might have upon appellant Harvest House is vague and uncertain. This court cannot rely on appellant's speculation that it might have a sufficient interest to raise this issue in the future. The question as to Harvest House Restaurant, Inc.'s right to permit dancing at its former restaurant and lounge in Lynden is purely academic and we need not pass upon it. Grays Harbor Paper Co. v. Grays Harbor Cy., 74 Wash.2d 70, 442 P.2d 967 (1968).

                its liquor license to the Inland Fish Company, Inc. on October 7, 1983.   Appellant does not now hold a license to sell liquor by the drink in any Lynden establishment
                

The two tavern owners stated, by affidavit, that they, too, would like the right to permit dancing in their premises. Yet, because these persons were never joined as parties to the suit, there are no facts in the record which might enable us to determine the ordinance's validity as to them.

Although counsel for Harvest House has not addressed the issue whether appellant, Richard De Golier, has a sufficient interest to withstand the mootness challenge, we are compelled to do so. Appellant De Golier was included as a plaintiff in the original motion for temporary injunction and declaratory relief against respondent. We can find no subsequent mention of him in the record, other than as a nominal party. The complaint alleged that he was manager of the Harvest House Restaurant and desired to dance to the music played there. He alleged that ordinance 633 unconstitutionally prohibited him from engaging in protected activity. The trial court made no finding with regard "It is a general rule that, where only moot questions or abstract propositions are involved, or where the substantial questions involved in the trial court no longer exist, the appeal ... should be dismissed." Sorenson v. Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). An exception to this rule exists where we determine the moot issue to be of substantial or continuing public interest. Sorenson, at 558, 496 P.2d 512. The governing criteria in this determination are whether: (1) the issue presented is of a public or private nature, (2) it is desirable to provide guidance to public officers, and (3) the issue is likely to recur. Sorenson, at 558, 496 P.2d 512.

                to Richard De Golier.   He did not appear at trial and the record is unclear as to whether he was represented by counsel for Harvest House.   Assuming his allegations to be true and that he appeared through counsel at trial, there is nothing in the record to save his suit from mootness.   He alleged only that he desired to dance at the Harvest House Restaurant.   Because the restaurant no longer exists, his suit must also fail.   State v. Turner, 98 Wash.2d 731, 658 P.2d 658 (1983);  Grays Harbor Paper Co. v. Grays Harbor Cy., supra
                

The instant issue, although of notable academic interest, does not meet this test. Appellants admit that Lynden is the only city in Washington state to prohibit ballroom dancing where liquor by the drink is sold. Although the issue is undoubtedly of great interest to its residents, it is not of sufficient importance to the public at large to warrant our review under these circumstances.

The appeal is dismissed.

BRACHTENBACH, DOLLIVER, DIMMICK and PEARSON, JJ., and CUNNINGHAM, J., Pro Tem, concur.

WILLIAMS, Chief Justice (dissenting).

I disagree that the issue in this case is moot, or of purely academic interest. Had the case become moot, the issue presented is one of substantial public interest, capable of recurring. I would reach the question of the validity of the City of Lynden's ordinance

                633 which prohibits all dancing in establishments where alcoholic beverages are sold.   In resolution of that issue, the ordinance is not valid
                

I.

Generally, we do not review moot cases or proceedings. Leonard v. Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976); Grays Harbor Paper Co. v. Grays Harbor Cy., 74 Wash.2d 70, 442 P.2d 967 (1968). The term "moot" is generally applied to cases where the determination does not rest on existing facts or rights, cases in which no judgment rendered could be carried into effect, or cases in which no actual controversy exists. 5 Am.Jur.2d Appeal and Error § 762 (1962). The majority's position is that the case has become moot because appellant, Harvest House Restaurant, Inc. (Harvest House), has leased the restaurant, and has no existing rights or interest.

Harvest House retains a sufficient interest in the licensed premise to withstand dismissal for mootness. Appellant submitted an affidavit stating that it had an obligation under the lease to the current proprietors to take back the lease and the liquor license should the existing business fail. In that event, or at the expiration of the lease, Harvest House would again want to resume dancing there. While Harvest House's interest is less immediate than when this litigation began, it is nonetheless real. Property rights include future obligations and the right to operate a lawful business. Lee & Eastes, Inc. v. Public Serv. Comm'n, 52 Wash.2d 701, 328 P.2d 700 (1958). Harvest House has an existing property interest in the business, and the validity of the statute is not academic to it. At some point in the future, either at the expiration of the lease or sooner, if the current business fails, the judgment in this case will have a direct impact on the appellant. In the interest of judicial economy, we should decide the case now, rather than require appellants to begin the litigation anew.

As an exception to the general rule of declining to decide moot cases, this court will review a case which has substantial public interest. Criteria for determining whether such a public interest exists includes: (1) the public nature of the The enacted ordinance has immediate applicability to the residents of Lynden. But beyond its impact on this small community, the case questions the extent of police power authorized to municipalities under our state laws controlling liquor, and is thus of importance to other officials in other municipalities. In addition, the owners of a tavern in Lynden submitted an affidavit stating that they, too, are desirous of obtaining permission to allow dancing on their premises. The majority's dismissal of their interest because there are no facts from which to determine the ordinance's applicability to them, ignores that this case presents issues of law only. We are not asked to direct the issuance of a permit to allow dancing, but to determine the validity of the ordinance in question.

                question, (2) the desirability of a

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