Opinion
No. 62377-0-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-19673-1, Deborah D. Fleck, J., entered August 29, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Dwyer, A.C.J., and Leach, J.
UNPUBLISHED OPINION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.
FACTS
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.
DISCUSSION
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." Contrary to the Shims' claim, there is nothing in RCW 69.50.4121 providing a legal right to sell new glass pipes.
RCW 7.80.120(1)(a) provides a penalty of $250 for a class I civil infraction.
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. 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.
See, e.g., Hoffman Estates, 455 U.S. at 496-97 (rejecting pre-enforcement facial challenge to ordinance regulating drug paraphernalia as overbroad, because ordinance did not infringe on First Amendment right to free speech as claimed, and overbreadth doctrine does not apply to commercial speech); Stoianoff v. State of Mont., 695 F.2d 1214, 1218 (9th Cir. 1983) (rejecting pre-enforcement facial challenge to Montana criminal statute prohibiting sale of drug paraphernalia as overbroad infringement on plaintiff's "constitutionally protected right to operate a business and to earn a livelihood," because overbreadth doctrine is only applied in a facial review where First Amendment rights are at stake and any commercial speech that might arguably be implicated by statute is not constitutionally protected).
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.
See, e.g., Stoianoff, 695 F.2d at 1220 (single clear application of the challenged statute to the appellant, specifically the sale of a roach clip, an item specified in the statute and sold by appellant falls within core conduct prohibited and obviates any facial vagueness challenge).
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, 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 liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). To determine whether qualified immunity applies, courts consider (1) whether the plaintiff has alleged a violation of a constitutional right, and (2) whether the right at issue was "clearly established" at the time of the defendants' alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 1251, L. Ed. 2d 272 (2001). In deciding whether qualified immunity applies in a particular case, courts have discretion to decide which of these two prongs to address first. Pearson v. Callahan, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009).
42 U.S.C. § 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Relying on Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000), the Shims contend that the City and Chief Haines violated their equal protection rights. To establish such a claim, they must prove that they were "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id.
The Shims contend that they produced evidence to raise a genuine issue of fact as to whether they were treated differently from other business owners in the area. In particular, Shim testified at his deposition that he reported to police that a customer used money he supplied to purchase a glass pipe from a neighboring store. According to Shim, a police detective told him that based on his report, officers visited the store but did not find any glass pipes for sale.
Even assuming that the Shims could establish these facts with admissible evidence, they are entirely consistent with City officials treating other businesses similarly. After receiving Shim's tip, police detectives visited the store in question to determine whether it sold glass pipes, just as Chief Haines and committee members had visited the Shims' store. Because the officers did not find glass pipes for sale in the store, it cannot be said that it was similarly situated to the Shims' store or that committee members and Chief Haines intentionally treated other store owners differently.
Moreover, even assuming there was different treatment here, the Shims fail to present any evidence that the decision by the committee members and Chief Haines to continue urging the Shims to quit selling glass pipes until they acquiesced was irrational or discriminatory. In their initial letters and visits, the committee members and Chief Haines communicated that the Shims' sale of glass pipes was contributing to the illegal use of drugs in the area and constituted a violation of RCW 69.50.4121. In response, Shim indicated that he intended to continue selling the glass pipes. After a second letter from the committee and additional visits by Chief Haines, Shim agreed to stop selling the pipes when his inventory was sold. Because they have not raised a question of fact as to irrational or discriminatory treatment, the Shims have not alleged a violation of equal protection or any other constitutional right. Therefore, Chief Haines is entitled to qualified immunity and the Shims' claim under 42 U.S.C. § 1983 cannot succeed. Summary judgment was proper.
See, e.g., Fishing Co. of Alaska v. U.S., 195 F. Supp. 2d 1239, 1254 (W.D. Wash. 2002) (where commercial fishing company presented no evidence that federal agency's decision to assess civil penalties on its vessel and no other vessel was irrational or motivated by discriminatory purpose, agency was entitled to summary judgment on company's "class of one" equal protection claim), aff'd, 333 F.3d 1045 (9th Cir. 2003).
The Shims also challenge the trial court's summary judgment dismissal of their claim of tortious interference with a business expectancy. The Shims claim that the City intentionally interfered with a business expectancy by improper means.
To establish tortious interference with a business expectancy, a plaintiff must prove:
(1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damage.
Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 288 (1997). All the essential elements must be established to support a claim of tortious interference. See Young, 112 Wn.2d at 225 (if the nonmoving party fails to make a sufficient showing to establish each element essential to that party's case and on which it will bear the burden at trial, the trial court should grant summary judgment).
The Shims do not explain their claim of the existence of a valid business expectancy in light of the clear prohibition of RCW 69.50.4121 against the sale of glass pipes. Instead, the Shims focus on the fourth element, contending that the committee members and Chief Haines used improper means to interfere with their glass pipe sales, specifically by (1) falsely alleging that their sales were illegal; and (2) by threatening to picket the store. But exercising one's legal interests in good faith is not improper interference. Schmerer v. Darcy, 80 Wn. App. 499, 506, 910 P.2d 498 (1996). Chief Haines sent the Shims a copy of RCW 69.50.4121. The Committee sent letters to the Shims indicating that its members would begin "exercising [their] rights as citizens" by picketing the store "for a lack of support for the people of Tukwila" and "to convince [the Shims'] customer base to shop with a more supportive merchant." The Shims fail to explain or establish any falsehood or impropriety in any of these actions. Moreover, Shim testified in his deposition that he agreed to stop ordering the glass pipes. Under these circumstances, the trial court correctly dismissed the claim of tortious interference with a business expectancy.
Finally, the Shims contend that the trial court erred by denying their motion for reconsideration challenging RCW 69.50.4121 on constitutional grounds. We review the denial of a motion for reconsideration for abuse of discretion. Rivers v. Wash. State Conf. of Mason Contrs., 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). Because the Shims' constitutional challenge had no merit, the trial court properly denied reconsideration.
Affirmed.
WE CONCUR: