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Avarice Inc. v. City of Federal Way

March 3, 1997

AVARICE, INC., RESPONDENT,
v.
CITY OF FEDERAL WAY, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 94-2-29485-7. Date filed: 11/22/95. Judge signing: Hon. Anthony P. Wartnik.

PER CURIAM. -- Avarice, Inc. appeals the superior court's decision affirming a Federal Way hearing examiner's (Examiner) decision to revoke Avarice's business license, contending the evidence does not support the Examiner's decision. The Examiner determined that revocation was appropriate because, among other things, Avarice failed to obtain an adult entertainment registration for the business. We affirm, finding that the Examiner's decision is supported by substantial evidence.

FACTS

On July 27, 1994, Luwanus Stone submitted a business registration application with the City of Federal Way, registering a tanning and lingerie modeling showroom to do business in Federal Way. The business name was listed as "Avarice, Inc." The City issued a business registration to Avarice in August of 1994.

A short time later, the City discovered that a business named Exotic Tan was conducting its business at Avarice's registered business address.

The City obtained copies of Exotic Tan's advertisements in which the business was described as "Gentlemen's entertainment and has an all female staff featuring lingerie modeling." The police also informed the City that Exotic Tan's business was that of adult entertainment and later sent the City a report confirming that fact. Exotic Tan is owned by Avarice.

On September 2, 1994, the City Clerk sent Avarice a Notice of Revocation of Business Registration. Revocation was based on the following reasons: (1) the business activity described in Avarice's application was not the activity being conducted at the business location; (2) Avarice failed to comply with federal, state or local laws or regulations, (3) Avarice failed to operate the business activity in accordance with such orders, rules and regulations; and (4) Avarice had conducted a business activity in a manner which endangers "public health, welfare and safety[.]"

Avarice appealed and a hearing was held before the Examiner.

Employees of Exotic Tan testified that lingerie is not sold at the premises. Three undercover agents working for the King County police department described the activities at Exotic Tan. They testified that they were taken to a small back room and that a female employee would perform a "couch dance". Wearing only a bra and underpants, the employee would dance resting her knees on the couch with her body sometimes as close as four inches to the officer's face. The same employee would also lie on the floor, spread her legs and simulate self stimulation and masturbation.

During the dance, the officers either removed all of their clothing or remained only partially clothed.

Based on the evidence, the Examiner concluded that Avarice had "failed to comply with the business registration laws of Federal Way by failing to obtain an adult entertainment registration; by registering in fact as a modeling showroom; and by registering under what is the corporate ownership name as opposed to the name it is doing business under." Conclusion of law

2. The Federal Way City Counsel upheld the Examiner's determination and amended the Examiner's Conclusions of Law by adding citations to specific sections of the Federal Way City Code. Avarice filed a writ of certiorari in the superior court, which affirmed the Examiner's decision. Avarice appeals that decision.

DECISION

Standard of Review

In this setting, we review legal issues de novo under the contrary to law standard. *fn1 We review the Examiner's factual determinations under the substantial evidence test of RCW 7.16.120(5). "Substantial evidence" is defined as "evidence which 'would convince an unprejudiced, thinking mind of the truth of the declared premise.'" *fn2 "This factual review is deferential[.]" *fn3 Under this standard, we are required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority, a process that ...


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