Southwick, Inc., V State Dept Of Licensing Business & Professions Div
49691-7
| Wash. Ct. App. | Oct 17, 2017Background
- Southwick operated Forest Memorial Cemetery; in relocating an urn garden (to remove encroachments over a city water‑main easement) it removed and reinterred 37 urns containing cremains about 9 feet away without notifying families.
- Department of Licensing charged Southwick with unprofessional conduct under RCW 18.235.130 based on alleged violations of statutes governing moving human remains and amending cemetery plats.
- A presiding officer granted partial summary judgment for the Department (citing violations including RCW 68.50.140 and RCW 68.24.060); the matter was referred to the Board for sanctions.
- Southwick sought reconsideration before the Board; the Board allowed briefing and argument on RCW 68.50.140, concluded Southwick violated RCW 68.50.140 and RCW 68.24.060, and imposed sanctions ($7,500, notification efforts, and newspaper notice).
- Thurston County Superior Court affirmed; on appeal the Court of Appeals reviewed the Board’s final order, treated undisputed facts as verities, and evaluated statutory interpretation de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural due process: Was Southwick denied notice/opportunity to be heard on RCW 68.50.140? | Presiding officer introduced RCW 68.50.140 without prior notice; early hearing denied opportunity to address it. | Board allowed full reconsideration briefing and argument on RCW 68.50.140, curing notice defects. | Board’s final order satisfied due process because Southwick had meaningful opportunity to brief and argue the legal issue before the Board. |
| Whether removal/reinterment violated RCW 68.50.140 (unlawful disturbance without authority of law) | Southwick: its conduct was not removal from a “place of interment” or was authorized by its internal rules/statutory authority. | Department/Board: statute broadly prohibits removal from a place of interment (plot) absent statutory authority; exceptions in RCW 68.50.200/220 don’t apply here. | Held: RCW 68.50.140 applies to moving remains between plots; Southwick acted without authority of law and violated RCW 68.50.140. |
| Whether Southwick violated RCW 68.24.060 (resurveying/amending plat) | Southwick: did not resurvey, alter mapped plots, file an amended plat, or take actions the statute describes; findings don’t support violation. | Department/Board: relocating plots effectively amended plot locations and constructively amended the map. | Held: Board erred — findings/facts do not support conclusion that Southwick violated RCW 68.24.060. |
| Attorney fees on appeal under RCW 4.84.350 | Southwick: sought fees as prevailing party. | State: agency action was substantially justified; Southwick not prevailing party. | Held: Southwick not substantially prevailing; no attorney fees awarded. |
Key Cases Cited
- Olympic Healthcare Servs. II, LLC v. Dep’t. of Soc. & Health Servs., 175 Wn. App. 174 (administrative review standard; review of agency final order) (2013)
- Steven Klein, Inc. v. Dep’t of Revenue, 183 Wn.2d 889 (standard: review of findings of fact/substantial evidence and conclusions of law) (2015)
- Porter Law Ctr., LLC v. Dep’t of Fin. Insts., Div. of Consumer Servs., 196 Wn. App. 1 (unchallenged agency findings are verities on appeal) (2016)
- Alvarado v. Dep’t of Licensing, 193 Wn. App. 171 (procedural due process requires meaningful notice and opportunity to be heard) (2016)
- Svengard v. Dep’t of Licensing, 122 Wn. App. 670 (due process must be meaningful and appropriate) (2004)
- Jametsky v. Olsen, 179 Wn.2d 756 (statutory interpretation reviewed de novo) (2014)
- Gray v. Suttell & Assocs., 181 Wn.2d 329 (statutory interpretation principles; ascertain legislative intent) (2014)
- Lenander v. Dep’t of Ret. Sys., 186 Wn.2d 393 (read related statutes together; give effect to specific statute over general) (2016)
- ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm’n, 151 Wn. App. 788 (attorney fees on judicial review; prevailing party analysis) (2009)