Shim v. City of Tukwila, No. 62377-0-I (Wash. App. 4/20/2009)
| Decision Date | 20 April 2009 |
| Docket Number | No. 62377-0-I.,62377-0-I. |
| Court | Washington Court of Appeals |
| Parties | JAY SHIM and ERICA SHIM, husband and wife, Appellants, v. CITY OF TUKWILA, a municipality of the state of Washington; and KEITH HAINES and JANE DOE HAINES, husband and wife, Respondents, PERTEET, INC., f/k/a PERTEET ENGINEERING, INC., a Washington corporation, Defendant. |
Appeal from King County Superior Court. Docket No: 07-2-19673-1. Judgment or order under review. Date filed: 08/29/2008. Judge signing: Honorable Deborah Fleck.
Counsel for Appellant(s), Warren M L Chinn, Chinn Law Offices, PLLC, 600 N 85th St Ste C101, Seattle, WA, 98103-3870.
Counsel for Defendant(s), Douglas J. Green, Green & Yalowitz, 1420 5th Ave Ste 2010, Seattle, WA, 98101-4087.
Counsel for Respondent(s), Mary Ann Mcconaughy, Keating Bucklin & Mccormack, 800 5th Ave Ste 4141, Seattle, WA, 98104-3175.
UNPUBLISHED OPINION
The Shims appeal the trial court's order dismissing on summary judgment their claims against the City of Tukwila and its former chief of police for their efforts to convince the Shims to stop selling glass smoking pipes at their grocery store. Because the Shims failed to offer any evidence of a violation of any constitutional right, the trial court properly rejected their challenge to RCW 69.50.4121 on constitutional grounds and dismissed their claim for damages under 42 U.S.C. § 1983. Because they failed to present any evidence that their decision to stop selling the pipes resulted from any impropriety on the part of city officials, the trial court also properly dismissed their tort claim. We affirm.
In January 2003, the Highway 99 Action Committee sent a letter to the owners of the Stop By Corner Grocery, Jay and Erica Shim. The letter indicated that the committee, funded by the City of Tukwila and staffed by the Chamber of Commerce, represented businesses and residents of the Highway 99 corridor.
The committee urged the Shims to "cooperate and adopt the attitude of a responsible citizen" and to stop selling drug paraphernalia, particularly "crack pipes." Tukwila Chief of Police Keith Haines, also sent a letter, in January 2003, stating that the Shims "may be subject to criminal penalties" for selling drug paraphernalia and that "[t]his community will not tolerate this situation and will take necessary action to stop the sale of these smoking pipes." Chief Haines also sent the Shims a copy of RCW 69.50.4121, which provides that a person selling drug paraphernalia, including glass pipes, commits a civil infraction.
Sometime over the next year, two members of the committee went to the Shims' store to discuss the sale of glass pipes. Chief Haines also went to the store on at least three occasions and spoke with Mr. Shim about the glass pipes.
In March 2004, the committee sent another letter to the Shims stating that the citizens on the committee were "prepared to begin picketing" the store to convince them that the "decision to sell drug paraphernalia and pornography are unwise financial decisions" and urge their "customer base to shop with a more supportive merchant" with greater regard for the community.
At one of Chief Haines's visits, Mr. Shim stated that he would not purchase any more glass pipes after selling his remaining inventory. On June 8, 2004, Chief Haines returned to the store and purchased the remaining inventory of glass pipes for $705.06.
The Shims filed suit against the City of Tukwila and Haines, seeking damages under 42 U.S.C. § 1983 for violation of their civil rights and for a claim of tortious interference with a business expectancy. The City and Haines moved for summary judgment, arguing that Haines was entitled to qualified immunity and that the Shims could not establish a violation of any civil right or present a prima facie case of their tort claim. The trial court granted summary judgment dismissal, but allowed the Shims "to address the issue of the constitutionality of RCW 69.50.4121" for the first time in a motion for reconsideration. After the parties submitted briefing, the trial court denied reconsideration.
The Shims appeal.
The Shims begin their argument with the claim that RCW 69.50.4121 is the statute in question in this case. They argue, apparently in the alternative that (1) the sale of new glass pipes is legal under RCW 69.50.4121, such that they have a constitutional right to sell them; and (2) RCW 69.50.4121 is unconstitutionally overbroad and vague.
To support their claim of a legal right to sell glass pipes, the Shims rely on (1) a statement ascribed to Chief Haines at a meeting indicating that a glass pipe is not considered drug paraphernalia unless it has drug residue; and (2) the fact that Chief Haines wrote "legally purchased from Stop Buy Corner on 6/8/04" on the bottom of the receipt when he bought the Shims' remaining inventory.
But, these facts do not create a genuine issue of material fact as to the plain language of the statute. RCW 69.50.4121(1) states that "[d]rug paraphernalia" includes objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.
The statute provides that "[e]very person who sells . . . any drug paraphernalia in any form commits a class I civil infraction."1 Contrary to the Shims' claim, there is nothing in RCW 69.50.4121 providing a legal right to sell new glass pipes.
With regard to their challenge to RCW 69.50.4121 on constitutional grounds, the Shims have not alleged that they were charged with a civil infraction under RCW 69.50.4121. Although the Shims have not included their complaint in the record on appeal, it appears from the briefing that the complaint did not include any allegations of damage or injury resulting from the application of RCW 69.50.4121 or seek injunctive or declaratory relief. A litigant does not have standing to challenge a statute on constitutional grounds unless that litigant has suffered actual damage or injury under the statute. Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992).
Moreover, while it is by no means clear that the Shims have properly raised a pre-enforcement facial challenge to RCW 69.50.4121 on constitutional grounds, they have completely failed in their burden to prove the statute is unconstitutional beyond a reasonable doubt. Yow v. Wash. State Dept. of Health Unlicensed Practice Program, 147 Wn. App. 807, 824-25, 199 P.3d 417 (2008). In considering a facial challenge to a statute as overbroad and vague, the court must first determine whether the law reaches a substantial amount of constitutionally protected conduct. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). If it does not, the overbreadth challenge must fail. Id. Because the Shims have not identified any constitutionally protected conduct reached by RCW 69.50.4121, their overbreadth challenge must fail.2 As the Supreme Court noted, "[a] retailer's right to sell smoking accessories, and a purchaser's right to buy and use them, are entitled only to minimal due process protection." Hoffman Estates, 455 U.S. at 497 n.9.
Assuming the statute implicates no constitutionally protected conduct, a facial vagueness challenge will succeed only if the law is impermissibly vague in all of its applications. Hoffman Estates, 455 U.S. at 494-95. A plaintiff cannot successfully challenge a statute for vagueness when it clearly applies to his conduct, because he must prove the law is vague "`not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'" Hoffman Estates, 455 U.S. at 495 n.7 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971)). RCW 69.50.4121 clearly and specifically prohibits the sale of glass pipes and the Shims were selling glass pipes. To the extent that the Shims are complaining that RCW 69.50.4121 inhibits innocent uses of items listed in the statute, i.e., the use of glass pipes to smoke tobacco, they are complaining of a denial of substantive due process, not a lack of clarity in the law. Hoffman Estates, 455 U.S. at 497 n.9. The Shims cannot succeed in a facial challenge for vagueness.3
Summary judgment is appropriate if there is no genuine issue of material fact and moving party entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We review summary judgment de novo and engage in the same inquiry as the trial court, viewing the facts of the case and reasonable inferences drawn therefrom in the light most favorable to nonmoving party. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). The nonmoving party must set forth specific facts to defeat a motion for summary judgment. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). We will affirm the trial court's judgment on any theory established by pleadings and supported by proof.
Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984).
To sustain a cause of action under 42 U.S.C. § 1983,4 a plaintiff must establish that a federally protected constitutional or statutory right has been violated by state action or persons acting under state law. Van Blaricom v. Kronenberg, 112 Wn. App. 501, 508, 50 P.3d 266 (2002) (citing Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990); Torrey v. City of Tukwila, 76 Wn. App. 32, 37, 882 P.2d 799 (1994)). Government officials are entitled to qualified immunity from...
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