Gca Production Services, Inc., V. Abdik Adir Hassan ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ABDIKADIR HASSAN, ADEN
YUSUF, AMAN ADAM, AMINA No. 80542-8-I
AHMED, ANAB ALI, ASHA ALI,
ASHWANI BHARDWAJ, BINH LE, DIVISION ONE
CHINDERPAL SINGH, FADUMO
MOHAMED, FARDOUS ORDER GRANTING MOTION
HUSSEIN, FARHIA ADAM, FELIX TO PUBLISH OPINION, AND
GARCIA, GURMAIL SINGH, HAI WITHDRAWING AND
PHAM, HAMZA ADEN, HANI SUBSTITUTING OPINION
OSMAN, HARINDER NAHAL,
JASWINDER GREWAL,
JASMINDER SINGH GILL,
JOGGIT SINGH BHULLAR,
MACARIO ESPINOZA, MALKIT
SINGH, MURAYO GULED,
RESHAM SINGH GILL, SALADO
KHALIF ALI, SURINDER SINGH,
THU THI NGUYEN, UBAH SHEIK,
VALENTIN GALLETA, YASIN
ABDULLAHI, ABDIHAKIM
RASHID, ADEN JAMA, AHMED
ADAM, ALI ALI, AYAAN NUUR,
BASRA BASHIR, BURHAN
FARAH, DALJINDER SINGH,
FARHIO GURHAN, FARHIYO
HUSSIEN, GURJIT SINGH,
HARLIN KAUR, HASSAN ABDI,
HUSSEIN ADEN MOLAMED,
HUSSEIN ALI, ISHMAHAN MUSE,
KULDIP SINGH, LARRY TULLIS,
LAYLA YUUSUF, MINO YUSUF,
MOHAMED WARE, MOHAMUD
MOALIN, MUJHTAAR ALI,
MUHUBO BARQADLE,
MUHYADIIN ALI, MULKI ABDI,
NAIMA AHMED and SADIA
ADAN,
Appellants,
No. 80542-8-I/2
v.
GCA PRODUCTION SERVICES,
INC.,
Respondent.
Respondent GCA Production Services, Inc., has filed a motion to publish the
unpublished portion of the opinion filed on April 5, 2021. Appellants Abdikadir Hassan,
et al., have filed an answer to respondent’s motion to publish. The court has
determined that said motion to publish should be granted. Now, therefore, it is hereby
ORDERED that respondent’s motion to publish the opinion in full is granted. It is
further
ORDERED that the opinion filed on April 5, 2021, is withdrawn and a substitute
published opinion be filed.
WE CONCUR:
2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ABDIKADIR HASSAN, ADEN
YUSUF, AMAN ADAM, AMINA No. 80542-8-I
AHMED, ANAB ALI, ASHA ALI,
ASHWANI BHARDWAJ, BINH LE, DIVISION ONE
CHINDERPAL SINGH, FADUMO
MOHAMED, FARDOUS PUBLISHED OPINION
HUSSEIN, FARHIA ADAM, FELIX
GARCIA, GURMAIL SINGH, HAI
PHAM, HAMZA ADEN, HANI
OSMAN, HARINDER NAHAL,
JASWINDER GREWAL,
JASMINDER SINGH GILL,
JOGGIT SINGH BHULLAR,
MACARIO ESPINOZA, MALKIT
SINGH, MURAYO GULED,
RESHAM SINGH GILL, SALADO
KHALIF ALI, SURINDER SINGH,
THU THI NGUYEN, UBAH SHEIK,
VALENTIN GALLETA, YASIN
ABDULLAHI, ABDIHAKIM
RASHID, ADEN JAMA, AHMED
ADAM, ALI ALI, AYAAN NUUR,
BASRA BASHIR, BURHAN
FARAH, DALJINDER SINGH,
FARHIO GURHAN, FARHIYO
HUSSIEN, GURJIT SINGH,
HARLIN KAUR, HASSAN ABDI,
HUSSEIN ADEN MOLAMED,
HUSSEIN ALI, ISHMAHAN MUSE,
KULDIP SINGH, LARRY TULLIS,
LAYLA YUUSUF, MINO YUSUF,
MOHAMED WARE, MOHAMUD
MOALIN, MUJHTAAR ALI,
MUHUBO BARQADLE,
MUHYADIIN ALI, MULKI ABDI,
NAIMA AHMED and SADIA
ADAN,
Appellants,
No. 80542-8-I/2
v.
GCA PRODUCTION SERVICES,
INC.,
Respondent.
SMITH, J. — This case revolves around the interpretation of SeaTac
Municipal Code (SMC) 7.45.010(M)(2) (ordinance), which requires defined
transportation employers, including those that provide or operate rental car
services, to pay employees $15 per hour. In 2009, GCA Production Services Inc.
(GCA) contracted with Avis Budget Car Rental LLC to shuttle Avis’s rental cars to
and from its Seattle-Tacoma International Airport (Sea-Tac Airport) location in
SeaTac, Washington. In 2014, after SeaTac residents voted to raise the
minimum wage for certain, but not all, employees, the city of SeaTac enacted
SMC 7.45.050. When GCA failed to pay its employees $15 per hour, a number
of employees filed a complaint in the United States District Court for the Western
District of Washington, and others filed wage complaints with the Washington
Department of Labor and Industries (DLI). The employees alleged—and allege
here—that GCA is a transportation employer subject to the ordinance. The
district court and DLI concluded that the ordinance did not apply to GCA.
Later, many of the same employees filed a complaint in superior court,
which is the subject of this appeal. GCA moved to dismiss the lawsuit based on
the doctrines of claim preclusion and collateral estoppel. On December 11,
2018, in its order on GCA’s motion to dismiss (2018 Order), the court addressed
the motion as a summary judgment motion and concluded that claim preclusion
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No. 80542-8-I/3
barred 13 employee-plaintiffs who had filed complaints with DLI from relitigating
their claim. GCA then moved for summary judgment, this time arguing that it was
not subject to the ordinance. On September 4, 2019, the superior court granted
GCA’s motion and concluded that GCA was not a transportation employer under
the ordinance (2019 Order).
The employees appeal both orders. First, we review the issue of claim
preclusion and GCA’s appeal of the 2018 Order. Because an additional 37
plaintiffs had filed wage complaints with DLI, claim preclusion also bars their
claims. Therefore, we reverse the 2018 Order as to those 37 employees and
dismiss their complaints. With regard to the 2019 Order and the remaining 9
employees, because the ordinary meaning of providing or operating rental car
services does not include the services that GCA provided to Avis, the trial court
did not err when it concluded that GCA was not subject to the ordinance.
Therefore, we reverse in part the 2018 Order, but we affirm the 2019 Order. We
thereby dismiss the complaint in its entirety.
FACTS
In September 2009, GCA and Avis entered into the “Master Supplier
Agreement” (MSA). Pursuant to the MSA, GCA managed and operated “the on-
airport shuttling and off-airport shuttling duties for” Avis as an independent
contractor. Specifically, GCA transported Avis’s rental cars between various Avis
locations in Seattle, Everett, Tukwila, and Tacoma, Washington.
In 2013, by voter initiative, SeaTac voters passed Proposition 1, which
required a $15 minimum hourly wage for defined transportation and hospitality
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No. 80542-8-I/4
employers. Subsequently, SeaTac enacted the proposition as
chapter 7.45 SMC, which took effect on January 1, 2014.
In 2016, a group of GCA employees filed a complaint against GCA
Services Group Inc.1 (GSG) in the District Court for the Western District of
Washington.2 The plaintiffs sought payment of wages from GCA in accordance
with the ordinance. They argued that GSG was a transportation employer under
SMC 7.45.010(M)(1),3 because it provided baggage handling, ground
transportation management, and customer service in SeaTac. GSG moved for
summary judgment, which the court granted, finding that GSG was not a
transportation employer under SMC 7.45.010(M)(1). After the court denied the
plaintiffs’ motion for reconsideration, the plaintiffs amended their complaint.
However, the parties stipulated to dismissal with prejudice a few months later.
The plaintiffs did not appeal.
In February 2017, DLI sent GCA a letter, asserting that it had received
wage complaints from 93 GCA employees (complainants) and that it would
begin an investigation into those claims. Some complainants filed “minimum
wage not paid claims,” while others asserted that GCA violated the ordinance,
specifically. However, DLI’s letter indicated that the “complaints focus on
[GCA’s] failure to pay minimum wage set forth in” SMC 7.45.050. GSG, on
1 GCA Services Group Inc. is GCA’s parent company.
2 The plaintiffs included Abdikhadar Jama, Aneb Abdinor Hirey, Rogiya
Digale, Abdisalam Mohamed, Jashir Grewal, Udham Singh, Sukdev Singh Basra,
Khalif Mahamad, Jama Diria, Ahmed F. Gelle, and Lul Salad.
3 SMC 7.45.010(M)(1)(a) provides one definition for transportation
employer under the ordinance.
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No. 80542-8-I/5
behalf of GCA, responded, contending that it had “already been held as a matter
of law to not be covered under the relevant SeaTac ordinance.”
On July 21, 2017, DLI issued a “Determination of Compliance.” DLI
concluded that GCA did “not meet the definition of a ‘Transportation Employer’
for the purpose of Ordinance SMC 7.45.” Seven complainants appealed to the
Office of Administrative Hearings (OAH), which affirmed DLI’s order.
On May 7, 2018, 32 employees filed the complaint in this case. They
alleged that GCA was a transportation employer under SMC 7.45.010(M)(2)
because it provided rental car services. A week later, the employees amended
the complaint, adding 28 plaintiffs but asserting the same claim.
GCA answered the complaint and asserted that the complaint was barred
“in whole or in part” because of claim preclusion or collateral estoppel. It filed a
motion to dismiss, arguing that among other lawsuits and complaints,4 the DLI
investigation constituted a final judgment on the merits for the purpose of claim
preclusion and collateral estoppel. GCA provided the court with a letter from DLI,
which certified that there were no records found for nine plaintiffs.
The court granted in part and denied in part GCA’s motion to dismiss but
“consider[ed] the motion as one for summary judgment.” It concluded that the
DLI order and the doctrine of issue preclusion barred 13 plaintiffs’ claims. Thus,
the court allowed the remaining 46 plaintiffs’ claims to go forward.
4 Specifically, below, GCA contended that the district court case, Jama v.
GCA Servs. Grp., Inc., No. C16-0331 RSL, 2017 WL 1397692, at *1 (W.D. Wash.
Jan. 4, 2017) (court order), and the OAH’s initial order on summary judgment
barred the plaintiffs’ claims. However, GCA abandons these arguments on
appeal.
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No. 80542-8-I/6
Following the court’s order, the plaintiffs moved for summary judgment,
and GCA filed a cross motion for summary judgment. GCA asserted that it was
not a transportation employer and again asserted that the appellants’ claims
were “barred under the doctrines of claim and issue preclusion.” The trial court
granted GCA’s motion, concluding that GCA did not fall under the ordinance’s
definition of transportation employer. The remaining employees (appellants)
appeal both trial court orders.
ANALYSIS
Under CR 56(c), “summary judgment is appropriate where there is ‘no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d
157, 164, 273 P.3d 965 (2012) (alteration in original). “We review rulings on
summary judgment and issues of statutory interpretation de novo.” Am. Legion
Post No. 149 v. Dep’t of Health, 164 Wn.2d 570, 584, 192 P.3d 306 (2008).
Claim Preclusion
GCA contends that the trial court erred in its 2018 Order because “[a]ll
[a]ppellants’ claims are barred on the basis of collateral estoppel” and “[a]ll
[a]ppellants who participated in proceedings before DLI should have their claims
dismissed on the basis of claim preclusion.” With regard to collateral estoppel,
we decline to address the issue because GCA failed to adequately brief its
analysis thereof.5 With regard to claim preclusion, 37 appellants sought relief
5 For example, GCA does not discuss the standard that we must apply to
discern whether an administrative hearing has preclusive effect. Similarly, GCA’s
briefing below lacked an adequate analysis regarding the preclusive effect of the
6
No. 80542-8-I/7
from DLI. Accordingly, claim preclusion bars those 37 appellants from relitigating
their claim.
“‘The doctrine of res judicata [or claim preclusion] rests upon the ground
that a matter which has been litigated, or on which there has been an opportunity
to litigate, in a former action in a court of competent jurisdiction, should not be
permitted to be litigated again.’” Ensley v. Pitcher, 152 Wn. App. 891, 899, 222
P.3d 99 (2009) (italics omitted) (internal quotation marks omitted) (quoting
Marino Prop. Co. v. Port Comm’rs of Port of Seattle, 97 Wn.2d 307, 312, 644
P.2d 1181 (1982)). Because it is a question of law, we review a determination
that claim preclusion applies de novo. Weaver v. City of Everett, 194 Wn.2d 464,
473, 450 P.3d 177 (2019). “‘The threshold requirement of [claim preclusion] is a
valid and final judgment on the merits in a prior suit.’” In re Marriage of Weiser,
14 Wn. App. 2d 884, 903, 475 P.3d 237 (2020) (quoting Ensley, 152 Wn. App. at
899). And claim preclusion “applies in the administrative setting only where the
administrative agency ‘resolves disputed issues of fact properly before it which
the parties have had an adequate opportunity to litigate.’” Stevedoring Servs. of
Am., Inc. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996) (quoting Texas
Emp’rs Ins. Ass’n v. Jackson, 862 F.2d 491, 501 (5th Cir. 1988)). Courts also
consider “‘(1) whether the agency[,] acting within its competence[,] made a
factual decision; (2) agency and court procedural differences; and (3) policy
OAH’s or DLI’s orders. And “[w]e will not consider arguments that a party fails to
brief.” Sprague v. Spokane Valley Fire Dep’t, 189 Wn.2d 858, 876, 409 P.3d 160(2018) (refusing to address the plaintiff’s claims, because he did not adequately
brief the claims and cited no law establishing them).
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No. 80542-8-I/8
considerations.’” Eggert, 129 Wn.2d at 40 (quoting Shoemaker v. City of
Bremerton, 109 Wn.2d 504, 508, 745 P.2d 858 (1987)).
Here, “[DLI] shall investigate . . . wage complaint[s].” RCW 49.48.083(1).
A wage complaint is “a complaint from an employee to the department that
asserts that an employer has violated one or more wage payment requirements.”
RCW 49.48.082(11). And a wage payment requirement includes statutory
minimum wage requirements. See RCW 49.48.082(12) (“‘Wage payment
requirement’ means a wage payment requirement set forth in RCW 49.46.020,
49.46.130, 49.48.010, 49.52.050, or 49.52.060, and any related rules adopted by
the department.”). In particular, RCW 49.52.050(2) provides that an employer is
guilty of a misdemeanor if it “[w]ilfully and with intent to deprive the employee of
any part of [their] wages, shall pay any employee a lower wage than the wage
such employer is obligated to pay such employee by any statute, ordinance, or
contract.” (Emphasis added.) More broadly, however, DLI is tasked with
investigating wage complaints under the Washington Minimum Wage Act (MWA),
chapter 49.46 RCW. The MWA establishes “minimum standards for wages, paid
sick leave, and working conditions of all employees in this state, unless
exempted herefrom, and is in addition to and supplementary to any other federal,
state, or local law or ordinance.” RCW 49.46.120. In short, DLI has authority to
investigate whether an employer meets the minimum wage requirements based
on the MWA or local ordinance. Thus, when DLI determined that GCA did not
violate the ordinance, it resolved disputed issues of fact properly before it, and
claim preclusion applies to DLI’s determination as final judgment on the merits.
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No. 80542-8-I/9
Next, the “party seeking to apply [claim preclusion] must establish four
elements as between a prior action and a subsequent challenged action:
‘concurrence of identity . . . (1) of subject-matter; (2) of cause of action; (3) of
persons and parties; and (4) in the quality of the persons for or against whom the
claim is made.’” Weaver, 194 Wn.2d at 480 (alteration in original) (quoting N.
Pac. Ry. Co. v. Snohomish County, 101 Wash. 686, 688, 172 P. 878 (1918)).
The appellants do not challenge the third or fourth elements, so our focus is on
concurrence of identity of subject matter and cause of action. With regard to
subject matter, “[c]ourts generally focus on the asserted theory of recovery rather
than simply the facts underlying the dispute.” Marshall v. Thurston County, 165
Wn. App. 346, 353, 267 P.3d 491 (2011). And
[t]o determine whether causes of action are identical, courts
consider whether (1) prosecuting the second action would destroy
rights or interests established in the first judgment, (2) the evidence
presented in the two actions is substantially the same, (3) the two
actions involve infringement of the same right, and (4) the two
actions arise out of the same transactional nucleus of facts.
Marshall, 165 Wn. App. at 354.
In Marshall, G. Eldon and Geraldine Marshall first filed suit against
Thurston County, alleging negligence, trespass, and inverse condemnation for
the flooding of their property caused by the county’s installation of a storm water
diversion device and failure to provide for adequate runoff. 165 Wn. App. at 349.
The Marshalls settled the lawsuit and released the county from future liability.
Marshall, 165 Wn. App. at 349. After their property flooded again, the Marshalls
filed a new lawsuit against the county, again alleging negligence, trespass, and
inverse condemnation. Marshall, 165 Wn. App. at 349-50. The trial court
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No. 80542-8-I/10
granted the county’s motion for summary judgment, and on appeal, the court
concluded that claim preclusion barred the Marshall’s claims. Marshall, 165 Wn.
App. at 350, 352. The court held that there was subject matter concurrence
because the underlying facts were identical in each lawsuit, i.e., the county’s
installation of a diversion device, and that there was cause of action concurrence
because the evidence, rights, and transactional nucleus of facts were identical in
both lawsuits. Marshall, 165 Wn. App. at 354-55. The court noted that “some
differences in the legal theory asserted or in the facts alleged to support recovery
do not necessarily rob a prior adjudication of preclusive effect.” Marshall, 165
Wn. App. at 356.
Similarly, here, the appellants propose that they are entitled to a minimum
wage of $15 per hour, and the facts for both the DLI investigation and the instant
complaint are identical. Moreover, the appellants assert the same rights—the
right to back pay for wages not paid in accordance with the ordinance. And the
transactional nucleus of facts for both actions is the same—GCA’s failure to pay
the appellants $15 per hour. Cf. Weaver, 194 Wn.2d at 482 (holding that claim
preclusion did not bar plaintiff’s permanent disability claim because the claim did
not exist at the time of his previous claim for temporary disability). And though
37 of the appellants did not allege that GCA violated the ordinance, specifically,
parties are precluded from bringing “entire claims when those claims either were
brought or could have been brought in a prior action.” Weaver, 194 Wn.2d at
481. Therefore, the subject matter and cause of action for the appellants that
filed wage complaints are the same. See Weaver, 194 Wn.2d at 480 (holding
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No. 80542-8-I/11
that the causes of action were the same where the plaintiff’s two cases involved
“compensation for work-related illness or injury”).
Given that DLI’s judgment binds all 37 appellants who filed wage
complaints with DLI, those appellants are barred from relitigating their claim that
GCA violated the ordinance. However, because the remaining 9 appellants did
not bring a complaint to DLI, their claims are not barred by claim preclusion.
Thus, the trial court erred in concluding that claim preclusion did not bar those 37
plaintiffs’ claims.
The appellants assert that the complainants who filed only a minimum
wage not paid complaint are not barred because they did not claim that GCA
violated the ordinance. We disagree for a number of reasons, but most
importantly because the resolution of a minimum wage not paid complaint
necessarily required DLI to determine whether GCA was subject to the
ordinance. Thus, DLI had authority to investigate the ordinance’s applicability as
to GCA with regard to all complainants. The appellants’ assertion is without
merit. For these reasons, we reverse the 2018 order and grant summary
judgment in favor of GCA on the basis of claim preclusion as to the 37 appellants
who filed wage complaints with the DLI.
SMC 7.45.010(M)(2)
The appellants contend that the trial court erred when it concluded in its
2019 Order that GCA was not a transportation employer. Because GCA did not
provide or operate rental car services under the ordinary meaning of the terms,
we disagree.
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No. 80542-8-I/12
“We . . . construe a municipal ordinance according to the rules of statutory
interpretation.” Seattle City Light v. Swanson, 193 Wn. App. 795, 810, 373 P.3d
342 (2016). In statutory interpretation, our main “‘objective is to ascertain and
carry out the Legislature’s intent.’” Seattle Hous. Auth. v. City of Seattle, 3 Wn.
App. 2d 532, 538, 416 P.3d 1280 (2018) (quoting Citizens All. for Prop. Rights
Legal Fund v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015)).
“‘[I]f the statute’s meaning is plain on its face, then the court must give effect to
that plain meaning as an expression of legislative intent.’” Seattle Hous. Auth., 3
Wn. App. 2d at 538 (alteration in original) (quoting Citizens All., 184 Wn.2d at
435). Statutory analysis “begins with the text and, for most purposes, should end
there as well.” Maylon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272(1997).
Similarly, “[i]nitiatives will be interpreted from their plain language, if
possible. However, when an initiative is susceptible to multiple interpretations,
we employ the standard tools of statutory construction to aid our interpretation.”
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 670,
72 P.3d 151 (2003). And “[t]he words of an initiative will be read ‘as the average
informed lay voter would read [them].’” Parents Involved in Cmty. Sch., 149
Wn.2d at 671 (second alteration in original) (quoting W. Petrol. Imps., Inc. v.
Friedt, 127 Wn.2d 420, 424, 899 P.2d 792 (1995)).
Under SMC 7.45.010(M)(2)(a)-(b), a “transportation employer” is “any
person who: . . . [o]perates or provides rental car services utilizing or operating a
fleet of more than one hundred (100) cars [and] . . . [e]mploys twenty-five (25) or
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No. 80542-8-I/13
more nonmanagerial, nonsupervisory employees in the performance of that
operation.” The parties stipulated that GCA employed a workforce of 25 or more
nonmanagerial, nonsupervisory employees and that Avis’s fleet at Sea-Tac
Airport included more than 100 rental cars. And the appellants do not appear to
assert that GCA operated rental car services. Accordingly, the issue is whether
GCA provided rental car services. But the ordinance does not define those
terms. And when an ordinance does not define a term, we utilize the dictionary
definition to inform the ordinance’s plain meaning. See Lyft, Inc. v. City of
Seattle, 190 Wn.2d 769, 781, 418 P.3d 102 (2018) (defining a term by “its usual
and ordinary dictionary definition” where the statute provided no definition);
Seattle Hous. Auth., 3 Wn. App. 2d at 539-40 (using the dictionary definition to
define a term, which the at-issue ordinance did not define).
First, the dictionary defines (1) “rental” as “something rented,” (2) “rent” as
“a piece of property that the owner allows another to use in exchange for a
payment in services, kind, or money,” and (3) “services” as “to perform any of the
business functions auxiliary to production or distribution of.” W EBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1923, 2075 (2002). The dictionary defines
“provide” as “to fit out or fit up : EQUIP” or “to supply for use.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY at 1827. The average informed lay voter likely
understands “provides” to mean “to supply for use.” And “our focus must be on
reading the language of the ordinance in a commonsense manner.” Faciszewski
v. Brown, 187 Wn.2d 308, 320, 386 P.3d 711 (2016).
Given the dictionary definitions, the ordinance’s ordinary meaning is an
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No. 80542-8-I/14
employer that supplies vehicles to renters in exchange for a payment or fee.
More specifically, a transportation employer that provides rental car services is a
business that supplies individuals with the possession and enjoyment of cars in
exchange for payments. GCA does not receive a rental fee for its services to
Avis, and it does not own the vehicles that Avis rents to individuals in exchange
for payment. Indeed, GCA provides nothing in exchange for rent. Therefore,
based on the plain meaning, we conclude that GCA is not a transportation
employer for purposes of SMC 7.45.010(M)(2) and was not required to pay its
employees $15 per hour.
This interpretation is supported by other sections of the ordinance.
Specifically, when the ordinance intends to include subcontractors, like GCA, it
does so expressly. That is, the definition of “hospitality employer” states that a
hospitality employer “shall include . . . subcontractor[s].” SMC 7.45.010(D). The
ordinance does not include similar language in the definition of transportation
employer. And where a statute or ordinance explicitly omits a provision, the court
must “give weight and significance to th[e] . . . vacancy.” State v. Swanson, 116
Wn. App. 67, 76-77, 65 P.3d 343 (2003) (holding that where the statute does not
include a particular requirement for the reinstatement of an individual’s firearm
rights, no requirement exists). In this context, this principle indicates that,
because SMC 7.45.010(M)(2) does not include subcontractors in its definition of
transportation employer, it does not apply to subcontractors. Thus, as a
subcontractor to Avis, GCA is not subject to the ordinance.
The appellants disagree and contend that we must define “provides”
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No. 80542-8-I/15
differently than “operates.” While we agree, defining the terms differently does
not affect our conclusion that the ordinance does not apply to GCA. Specifically,
the average informed lay voter likely understands “operate” to mean to “put or
keep in operation.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 1581.
And the definition of “operation” is “the quality or state of being functional.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 1581. A common example is
that someone “operated a grocery store.” W EBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY at 1581 (italics omitted). Thus, given the ordinary meaning of
“operates,” a transportation employer who operates rental car services keeps a
rental car business functioning. This is distinct from the ordinary definition of
“provides” and therefore satisfies the statutory construction rule that “[w]hen the
legislature employs different terms in a statute, we presume a different meaning
for each term.” Koenig v. City of Des Moines, 158 Wn.2d 173, 182, 142 P.3d 162(2006).
Additionally, “or” is an inclusive disjunctive because it would lead to a
strained result if “or” created an exclusive disjunctive. Specifically, the dictionary
defines “‘or’ as a ‘function word’ indicating ‘an alternative between different or
unlike things.’” Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 528,
243 P.3d 1283 (2010) (quoting W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
at 1585). When used as an alternative, “or” is an “inclusive disjunctive—one or
more of the unlike things can be true.” Lake, 169 Wn.2d at 528 (emphasis
omitted). However, “or” also can mean “a ‘choice between alternative things,
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No. 80542-8-I/16
states, or courses,’”6 creating an “exclusive disjunctive—one or the other can be
true, but not both.” Lake, 169 Wn.2d at 528 (emphasis omitted). We look to “the
surrounding context” to determine which meaning is intended. Lake, 169 Wn.2d
at 528 (“Usually, the intended meaning is apparent from the surrounding
context.”). Here, if “or” was an exclusive disjunctive, it would mean that if a
business provides rental car services, it cannot also operate a rental car services
business. The court should “avoid an interpretation that results in unlikely or
strained consequences.” Swanson, 193 Wn. App. at 811. Therefore, we
conclude that the “or” here connects two different verbs, either or both of which
may be true.
The appellants also contend that, because SMC 7.45.010 is a remedial
ordinance, we must construe it liberally. To this end, they contend that by
concluding that employers like GCA are not subject to the ordinance, we would
“eviscerate the ordinance.” The ordinance’s explanatory statement provides that
the ordinance will require “certain hotels, restaurants, rental car businesses,
shuttle transportation businesses, parking businesses, and various airport related
businesses, including temporary agencies or subcontractors operating within the
City,” to provide employees a $15 per hour wage, “a living wage.” But, as
discussed, the ordinary definition of transportation employer does not apply to
GCA as a matter of law. That is, a liberal construction does not change the
commonsense understanding of rental car services, which do not include shuttle
Lake, 169 Wn.2d at 528 (emphasis omitted) (quoting W EBSTER’S THIRD
6
NEW INTERNATIONAL DICTIONARY at 1585).
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driving services like those offered by GCA. Therefore, the appellants’ contention
fails.
Next, the appellants assert that because Avis’s new subcontractor, Fleet
Logics, pays its employees $15 per hour, GCA was required to do so. Fleet
Logics’ decision to pay its employees $15 per hour does not control this court’s
decision. It also is not persuasive. Specifically, there is no basis to conclude
that, because Fleet Logics pays its employees $15 per hour, either it or GCA is
legally required to do so. Therefore, the appellants’ assertion fails.
Finally, the appellants contend that the trial court erred because it failed to
view the evidence in the light most favorable to them. To this end, they cite
GCA’s “admissions” that it provides rental car services.7 However, any factual
evidence does not affect our interpretation of the ordinance.8 And the appellants
do not dispute the services that GCA provided to Avis. Our analysis focuses on
the undisputed factual evidence regarding those services, and GCA’s
characterization does not change our determination. In short, no inferences were
drawn to conclude that GCA does not provide rental car services. Therefore, this
contention is without merit.
We reverse in part the 2018 Order and affirm the 2019 Order, dismissing
7GCA’s PowerPoint presentation states that it provides “rental car
outsource services” and that a GCA employee is a “Rental Car Services Driver
(a.k.a. Shuttler).”
8 When discussing “reasonable inferences,” courts generally refer to the
evidence and the fact-finding process. See, e.g., State v. Kaiser, 161 Wn. App.
705, 723-24, 254 P.3d 850 (2011) (separating its discussion of substantial
evidence from its discussion of questions of law). Thus, the logical conclusion is
that a court does not draw inferences when it considers questions of law.
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No. 80542-8-I/18
the complaint in its entirety.
WE CONCUR:
18