Labor & Employment Law

Failure to exercise discretion is an abuse of discretion

A recent opinion from the Washington Court of Appeals provides an interesting teaching point. In Brunson v. Pierce County, No. 37094-8-II (Wash. App. Apr. 21, 2009), the Court of Appeals overturned three occupational license suspensions.

Facts: On January 20, 2006, three Pierce County detectives participated in an undercover sting operation at Fox?s Adult Nightclub. Brunson, Johnson, and Tucker performed lap dances for the detectives, touched the detectives, and received money from the detectives. Two of the dancers allowed the detectives to touch them. After the detectives received their dances, several police officers entered Fox?s and arrested Brunson, Johnson, and Tucker for violations of the county code.

The county code prohibited, inter alia, dancing within ten feet of a patron. The penalty was:
The Auditor shall revoke or suspend, for a specified period of not more than one year, any dancer [...] license if he/she determines that the licensee or applicant has: [...] violated or permitted violation of any provisions of this Chapter. [Ellipsis in original.] The ladies' occupational licenses were suspended for one year, the maximum allowed. On appeal, the suspensions were upheld by a hearing examiner and the county superior court.

Here was the problem: The recording licensing lead at the Auditor's office, Jill Munns, testified that it was her decision to issue the one-year suspensions. She testified that the [county code] provided the sole basis for her decision.

Munns stated that she understood that the [county code] allowed her to impose a sentence of less than one year, but that in these cases, she based her decision on the fact that the dancers had multiple code violations, including dancing away from the stage, having physical contact with patrons, and accepting money from patrons. She did not consider any of the women?s personal situations or prior criminal history.

Munns stated that she could not think of a situation where a violation of less than a year would be appropriate because any violation of the ordinance is a serious matter. When asked if she considered a suspension of less than a year, she stated, "any violation of the code is serious." ... When asked again, Munns could not describe a situation that, in her opinion, would warrant a suspension of less than one year.

The Court of Appeals points out that when the law grants discretion, it must be exercised. The decision maker cannot set a flat policy of maximum sentences without considering the facts of each case. In this case, the dancers testified as to the need to support their families, that they didn't know what they did violated the law, and other mitigating facts. The county code, as written, provided for a range of suspensions reflecting a range of circumstances. It was necessary for the decision maker to evaluate the facts of each case to arrive at the appropriate length of suspension for that case.

Thanks to the Legal Profession Blog for the pointer.

Edward M. McClure

Full post as published by New York Public Personnel Law on April 28, 2009 (boomark / email).