Update | Maple Valley Hearing Examiner upholds citation against Green Society Group, dismisses others
By TJ MARTINELL
Covington Reporter Reporter
August 22, 2012 · Updated 2:06 PM
The Maple Valley Hearing Examiner upheld the city’s stop work order to a medical marijuana business, but dismissed nine others.
According to the finding of fact released by Hearing Examiner Gary McLean, all but one of the citations issued against Green Society Group — which concerned the stop work order — “failed to establish violations of the specific codes” dealing with a do not occupy notice.
Concerning the stop work order, “The City of Maple Valley proved by the preponderance of the evidence that the specific violation…occurred at the property leased by the GSG appellants. In short, GSG had substantial tenant improvement construction work performed on its leased space
without first obtaining any city permits.”
Five others citations McLean ruled he did not have jurisdiction over. GSG first received a stop work order and do not occupy notice in May. Jay Berneberg, attorney for its owner Chris Schoonover, appealed to the hearing examiner later that month. Meanwhile, the business remained open. The hearing examiner proceedings were in late July.
GSG is located at 22210 S.E. 272nd Street in Frontier Square near the intersection of Kent-Kangley Road and Witte Road.
Although the city’s motion to include an additional citation failed, McLean wrote “the evidence presented at the hearing was sufficient to establish a prima facie case for violations of specific city codes and orders not specifically cited in the defective citations.” This means the city will be able to amend or reissue citations with correct city code.
City Manager David Johnston stated the city intends to reissue the citations.
“We’re fairly pleased with the hearing examiner decision upholding our stop work order and his decisions on most of the citations,” he said. “We felt it was good…that the third party said we did our job well. So now we got to this stage we are looking at our criminal and civil options and all that. It’s really nice the stop work order is valid and they should not be open.”
Johnston added, “there are some criminal options that I am not privileged to talk about this time but we are seeing if we should do this as well. We were just waiting to get this finding from the hearing examiner so we could examine which ways to proceed.”
In a statement sent via email by Berneberg Tuesday, the attorney for GSG said a decision from a second hearing examiner proceeding is still pending and there are a number of other issues which still need to be sorted out.
“My client is happy that GSG prevailed on all but one of the citations filed by the city so far,” Berneberg wrote. “But, we still have a long way to go — one case pending with the hearing examiner, an injunction case pending in Superior Court, potentially an appeal from the first hearing and a potential lawsuit against the city based upon facts which we know but which have yet to be proven in court.”
DO NOT OCCUPY NOTICE UPHELD
Ruling in favor of the city in regard to the do not occupy notice, McLean concluded that although the city refused to accept GSG’s permit applications for a short period of time, GSG had the time before it opened to obtain the necessary permits and only afterward attempted to comply.
“The preponderance of the evidence supports the Building Official’s determination that the GSG offices were/are ‘Unsafe’ and that the space should not be occupied and/or open for business,” he wrote.
According to the findings, $35,000 of construction work was done prior to its April 20 opening. On April 20, several city staffers, including Building Inspector KC Ellis, visited GSG and “through discussions and observations learned of the extensive tenant improvement work that had been performed on the site without permits or inspections.”
On April 23, according to the findings, Berneberg, several of GSG’s owners and city staff met at City Hall to discuss the situation. On April 30, Community Development Director Ty Peterson sent an email to his staff telling them not to “accept any applications for development review or building permits from or for gSg Gardens.”
“While there was testimony from city witnesses as to the intent of this email…the common sense reading of the message and its subject must be recognized,” McLean wrote. “In this case, testimony provided by the city witnesses established that the message was read to say what it means and mean what it says….city staff read the message to mean that they should not accept permit applications from GSG. Whether that was Mr. Peterson’s intent is irrelevant.”
According to GSG owner, Schoonover, an official from the city posted the unsafe, do not occupy and stop work order notices to the entrance of his business May 3 after his permit was allegedly denied by the city due to the moratorium on medical marijuana gardens and dispensaries.
In his findings, McLean concluded city staff did in fact reject permit application materials from Schoonover when he tried to file them May 1. During the hearing, Schoonover stated that he had attempted to turn in his materials April 30, the day before, but no one was available to accept them.
McLean, however, concluded that Schoonover’s account of the events were “imprecise, inconsistent and not as credible as his other testimony.”
According to the findings, Peterson sent out another email May 8 instructing staff to accept an application from GSG, but that it would need to be reviewed for compliance with city requirements. On May 9, the materials were submitted and accepted by the city.
During the hearing, Ellis testified that building permits take three to four weeks to be issued and another week for other departments to review them. Based on that, McLean wrote that even if Peterson’s emails impacted GSG’s ability to file a permit, it lasted only a week, an impact he considered to be “small” compared to the overall amount of time needed.
Additionally, McLean wrote GSG received a contractor bid on March 9, and based on that it had sufficient amount of time to submit its plans for improvement permits and comply with city code before its grand opening on April 20.
“There is nothing in the record to show why GSG did not or could not have initiated their permit application process long ago. If they intended to comply with the law, they should have had no reservations in submitting their application.”
STOP WORK ORDER CITATIONS DISMISSED
With the stop work order violations, however, McLean dismissed all the citations, writing that the city failed to prove GSG had continued improvement work after the order had been posted, the exact text of the order was too ambiguous and the subsequent citations referred to a separate municipal code violation.
The stop work order notice was posted after it was found GSG had not filed for tenant improvement permits for work done inside the premises. According to the findings of fact, the stop work order notice forbade GSG from “any work or activity that is causing or contributing to the violation on the property where the violation has occurred or is occurring.”
Only one of the subsequent citations did not stem from the original stop work order. Although McLean wrote that it was clear GSG offices were occupied by GSG staff and owners and conducted business during the time when the citations for violating the stop work order were issued, he added that the order “says nothing about occupant or continued operation of a business open to the public. Instead, it appears to only address ‘work’ that would be considered ‘tenant improvement,’ i.e. construction work.”
During the hearings, the city attorney argued the stop work order was intended to prohibit continued occupancy of the space and conducting of businesses in the GSG offices. Berneberg, on the other hand, asserted that the order inferred that only improvement work should cease at GSG and did not state specifically which work it referred to.
McLean ultimately sided with GSG, writing, “clearly the city could have crafted a better Stop Work Order, such that the terms of any order and the notice issued and posted with the tag were sufficient to place the Persons Responsible on notice as to precisely what sort of ‘work’ and/or ‘activity’ that they should immediately stop or cease. A simple explanation…should have been included. It was not.”
In the end, McLean wrote the order was open to “broad interpretations” or “extremely narrow reading.”
“Even though there was testimony that ‘boiler-plate’ language works most of the time, this is a case where it does not,” McLean wrote.
A writing is considered ambiguous if it is susceptible to two different, reasonable interpretations. McLean ruled that the citations also referenced the do not occupy notice, rather than stop work order.
“None of the follow-up Stop Work Citations describe any allegations of construction work at the GSG site,” he wrote. “Instead, they only describe circumstances where the GSG offices continued to be occupied.”
McLean did rule, however, that the city’s actions were not “arbitrary and capricious.”
Contact Covington Reporter Reporter TJ Martinell at firstname.lastname@example.org or 425-432-1209 ext. 5052.