Sunrise Group Homes, Inc. v. Ferguson, s. 22294-5-

• Decision Date: 14 August 1989
• Docket Number: 22390-9-I,Nos. 22294-5-,s. 22294-5-
• Citation: 55 Wn.App. 285,777 P.2d 553
• Parties: SUNRISE GROUP HOMES, INC., a Washington corporation, Respondent, v. Bernice FERGUSON, Appellant. Frances M. FERGUSON, guardian of Bernice Ferguson, Appellant, v. SUNRISE GROUP HOMES, INC., a Washington corporation and Washington Department of Social and Health Services, Respondents.
• Court: Washington Court of Appeals

Page 285

55 Wn.App. 285

777 P.2d 553

SUNRISE GROUP HOMES, INC., a Washington corporation, Respondent, v.Bernice FERGUSON, Appellant.

Frances M. FERGUSON, guardian of Bernice Ferguson, Appellant, v.SUNRISE GROUP HOMES, INC., a Washington corporation andWashington Department of Social and Health

Services, Respondents.

Nos. 22294-5-I, 22390-9-I.

Court of Appeals of Washington Division 1.

Aug. 14, 1989.

Lonnie Davis, Seattle, for appellant, Bernice Ferguson.

Deane Minor, Tuohy, Hammer & Minor, Everett, for respondent, Sunrise Group Homes, Inc.

COLEMAN, Chief Judge.

Frances Ferguson, as guardian for Bernice Ferguson, appeals from the trial court's finding of unlawful detainer.Ferguson argues that the trial court erred by finding that the Residential Landlord-Tenant Act of 1973 did not apply to the action, thus precluding her from raising the affirmative defenses available under that act.

Bernice Ferguson is developmentally disabled and has lived in the Olivia Park Group Home in Everett for many years.Sunrise Group Homes owns the Olivia Park facility and operates the home under a contract with DSHS, which pays Sunrise a per diem fee for each resident in return for Sunrise's residential services.The residential clients also pay Sunrise a fee in return for living there.

In 1986, pursuant to a provision in the parties' contract allowing Sunrise to have residents removed by DSHS if Sunrise could not meet the client's needs, or the removal would be in the client's best interests, or the client had failed to make proper payments, Sunrise asked DSHS to remove Bernice from the home.The contract further provided that if the client refused to leave the home, it would be Sunrise's responsibility to effect removal by means of civil litigation.

In December 1985, DSHS granted Sunrise's request to have Bernice removed.Ferguson pursued administrative review of the decision to remove Bernice, culminating in a decision of the trial court on May 6, 1988, affirming the decision to remove Bernice from the facility, but requiring Sunrise to do so by way of the contractually required unlawful detainer action.The court specifically noted that RCW 59.18, the Residential Landlord-Tenant Act of 1973 (RLTA), does not apply to the Olivia Park Group Home agreement.

Sunrise filed an unlawful detainer action on May 6, 1988.The trial court granted Sunrise's motion for a writ of restitution on May 18, 1988.The trial court again held that the RLTA did not apply to the Olivia Park facility and thus did not consider Ferguson's claim that the eviction was in retaliation for a complaint Ferguson had filed against the facility.Ferguson seeks review of the administrative and unlawful detainer actions.The appeals have been consolidated because they present the same issue.Ferguson has posted a bond staying the writ of restitution pending the outcome of this appeal.

We first address appellant's argument that the trial court erred when it held that the RLTA did not apply to the Olivia Park Group Home, thereby depriving appellant of the opportunity to raise the statutory affirmative defense of retaliation in the unlawful detainer action.

The RLTA excludes from the application of its provisions, among other situations,

[r]esidence at an institution, whether public or private, where residence is merely incidental to detention or the provision of medical, religious, educational, recreational, or similar services, including but not limited to correctional facilities, licensed nursing homes, monasteries and convents, and hospitals ...

RCW 59.18.040(1).

The Olivia Park facility is a congregate care facility.¹Under the regulatory provisions of the Washington Administrative Code, a congregate care facility is defined as "a boarding home licensed under chapter 18.20 RCWandRCW 74.08.044, or a licensed private establishment as defined by chapter 71.12 RCW, which has entered into a congregate care contract with the department."WAC 388-15-560(1).In order for Bernice Ferguson to be eligible for DSHS sponsored congregate care living, she has to meet the following eligibility criteria:

(a) Be age eighteen or older;

(b) Be a recipient of:

(i) Supplemental Security Income,

(ii)Continuing general assistance, or

(iii)Title XIX categorically relatable to SSI;

(c) Be unable to maintain a safe environment in an independent living arrangement or require personal care and supervision, assistance with activities of daily living and/or health-related services;

(d) Not require nursing care in excess of that described in RCW 18.20.160 and the provisions of WAC 248-16-228; ...

WAC 388-15-562(1).

Under these criteria, a client at the Olivia Park facility has less supervision and assistance with daily living than does a client in a nursing home or hospital, WAC 388-15-562(1)(c)(d), yet the Olivia Park client still has a more structured environment and has more services provided than does the tenant in a traditional rental situation.Congregate care facilities, while not among the named living arrangements explicitly excluded from the RLTA such as licensed nursing homes, convents, and hospitals, RCW 59.18.040, do fall within the broader language of the exclusion for "[r]esidence at an institution, ... where residence is merely incidental to detention or the provision of medical, religious, educational, recreational, or similar services ..."RCW 59.18.040(1).This exclusion applies to any living arrangement where the tenant has a purpose for living there independent and apart from the basic requirements of shelter and amenities.

Appellant argues that the RLTA focuses on whether the provision of room and board is incidental to some other service or activity, and then stresses that Bernice's room and board at Olivia Park are not incidental but are the very reason she lives there.Appellant misconstrues the word "incidental" as used in the exclusion.It does not mean that room and board must be...