AGO 2012 No. 1 - Feb 9 2012
CITIES—LAW AGAINST DISCRIMINATION—PREEMPTION—Whether State Law Requiring Food Establishments To Accommodate Trained Guide Dogs And Miniature Horses Preempts An Ordinance Of A First Class City Requiring Accommodation Of A Broader Class Of Animals
An ordinance of a first class city that prohibits food establishments from treating people differently based upon the use of additional types of service animals is not preempted by a state law prohibiting different treatment based only on the use of trained guide dogs and miniature horses.
February 9, 2012
The Honorable Deborah Eddy
Dear Representative Eddy:
By letter previously acknowledged, you have requested an opinion on a question that we have paraphrased as follows:
Does RCW 49.60.218 preempt a first class city from enacting a local ordinance requiring food establishments to accommodate certain types of animals in addition to accommodating trained guide dogs and miniature horses?
A local ordinance is preempted by state law only when the legislature has clearly demonstrated intent to occupy the field addressed by the statute, or the local ordinance directly conflicts with the state law. The legislature has not expressed clear intent to occupy the field of access to food establishments by individuals who use service animals to assist with a disability. Nor would an ordinance of the type you ask about create a direct conflict with state law. An ordinance that prohibits a wider scope of activity than that prohibited by state law does not create a conflict for preemption purposes. Accordingly, an ordinance that goes further than the state statute to prohibit food establishments from treating people differently based on the use of additional types of service animals would not be preempted by state law.
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The Washington Law Against Discrimination generally prohibits excluding or providing different treatment to persons based on their use of a trained guide dog or service animal in a wide range of establishments that are open to the public. RCW 49.60.215.  The term “service animal” is broadly defined to include any animal trained to assist or accommodate a sensory, mental, or physical disability. RCW 49.60.040(24). In 2011, the legislature enacted Substitute House Bill 1728, narrowing the definition of “service animal” applicable to food establishments. Laws of 2011, ch. 237 (amending RCW 49.60.215 and enacting RCW 49.60.218). The bill amended RCW 49.60.215 to state that the general prohibition against treating people differently based upon a person’s use of a service animal “does not apply to food establishments.” RCW 49.60.215(2) (Laws of 2011, ch. 237, § 1). In the same bill, the legislature set forth a separate provision applicable only to food establishments. Laws of 2011, ch. 237, § 2 (codified as RCW 49.60.218). Rather than requiring food establishments to accommodate all service animals, RCW 49.60.218 requires accommodation only with respect to the use of dogs and miniature horses trained to assist with an individual’s disability.
You point out in your question that, by local ordinance, at least one city prohibits food establishments from treating individuals differently based on use of a broader set of service animals than state law currently includes. While state law requires food establishments to accommodate trained guide dogs and miniature horses, the local ordinance requires similar treatment for individuals using additional types of animals as service animals. 
You ask whether RCW 49.60.218 preempts an ordinance of a first class city that defines service animals more broadly than trained guide dogs and miniature horses. We conclude that it does not.
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RCW 49.60.218 states:
(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any food establishment, except for conditions and limitations established by law and applicable to all persons, on the basis of the use of a dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.
(2) A food establishment shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability in accordance with subsection (1) of this section if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a facility, a food establishment shall act in accordance with all applicable laws and regulations.
(3) For the purposes of this section:
(a) “Service animal” means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Except as provided in subsection (2) of this section, other species of animals, whether wild or domestic, trained or untrained, are not service animals. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence
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and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.
(b) “Food establishment” means a place of business that sells or serves food for human consumption with a North American industry classification system code within “445110,” “445120,” “445210,” “445220,” “445230,” “445291,” “445292,” “445299,” “452910,” “722110,” “722211,” “722212,” “722213,” or “722410.” 
You have asked whether RCW 49.60.218 would preempt a first class city’s local ordinance requiring accommodation of additional types of animals in food establishments. Consideration of this question begins with the principle that first class cities may make laws “consistent with and subject to the Constitution and laws of this state[.]” Const. art. XI, § 10. Cities have constitutional authority to enact “local police, sanitary and other regulations as are not in conflict with general laws.” Const. art. XI, § 11. This constitutional grant of authority “‘is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.’” Lenci v. City of Seattle, 63 Wn.2d 664, 667, 388 P.2d 926 (1964) (quoting Detamore v. Hindley, 83 Wash. 322, 326, 145 P. 462 (1915)).
Ordinances are presumed valid and grants of municipal power are liberally construed. Heinsma v. City of Vancouver, 144 Wn.2d 556, 561, 29 P.3d 709 (2001). An ordinance will be deemed invalid if (1) the legislature expressed an intent to occupy the field addressed by the ordinance or (2) the ordinance conflicts with a statute. State v. Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009). If the legislature has expressed its intention to occupy an entire field or if such intent is necessarily implied, ordinances enacted on the same topic are preempted. Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010). If the legislature has not expressed an intent to occupy an entire field, the purpose of the statute and the facts and circumstances to which the statute was intended to apply must be considered. Id. The Washington Supreme Court “‘will not interpret a statute to deprive a municipality of the power to legislate on a particular subject unless that clearly is the legislative intent.’” Kirwin, 165 Wn.2d at 826 (quoting HJS Dev., Inc. v. Pierce Cnty., 148 Wn.2d 451, 480, 61 P.3d 1141 (2003)).
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RCW 49.60.218 does not express an intent to occupy the entire field. RCW 49.60.218 provides that all food establishments are prohibited from treating individuals differently than others based on the use of a trained guide dog or miniature horse to assist with a disability. But it does not expressly bar local governments from requiring food establishments to accommodate the use of additional service animals. Nor does the legislative history indicate an intent to occupy the field. The Final Bill Report on Substitute H.B. 1728 indicates that the law is intended to define a service animal similarly to the definition in the federal Americans With Disabilities Act, which defines a “service animal” to include a dog trained to assist an individual with a disability, or in some circumstances, a miniature horse. Final Bill Report on Substitute H.B. 1728, 62d Leg., Reg. Sess. (Wash. 2011).
When the legislature has not preempted a field, a city may enact an ordinance on the same subject, unless the ordinance directly and irreconcilably conflicts with the statute. Heinsma, 144 Wn.2d at 563-64. In determining whether an ordinance conflicts with the law, the test is whether the ordinance “permits what is forbidden by state law or prohibits what state law permits.” Entm’t Indus. Coal. v. Tacoma-Pierce Cnty. Health Dep’t, 153 Wn.2d 657, 663, 105 P.3d 985 (2005) (ordinance prohibiting smoking in all businesses conflicted with state law expressly allowing certain businesses to designate smoking areas). RCW 49.60.218 prohibits discrimination against an individual with a disability who uses a guide dog or miniature horse to assist with the disability. A local ordinance that permitted discrimination against a disabled individual receiving assistance from a guide dog or miniature horse would conflict with the statute and be invalid.
An ordinance may, however, prohibit a wider scope of activity than is prohibited by state law without creating a conflict in the sense the term is used in considering preemption questions. City of Seattle v. Eze, 111 Wn.2d 22, 33, 759 P.2d 366 (1988) (no conflict where ordinance goes farther in its prohibition—without countering the prohibition under the statute). For example, a state law setting forth minimum standards for fireworks regulation does not conflict with a city ordinance placing additional limitations on fireworks. Brown v. City of Yakima, 116 Wn.2d 556, 562, 807 P.2d 353 (1991). “Where both the ordinance and the statute are prohibitory, and the difference between them is that the ordinance goes further in its prohibition, they are not deemed inconsistent[.]” Id. at 562. Similarly, an ordinance imposing a criminal sanction for littering does not conflict with a state law that provides only a civil sanction for littering. Kirwin, 165 Wn.2d 818. “Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail.” City of Bellingham v. Schampera, 57 Wn.2d 106, 111, 356 P.2d 292 (1960) (quoting Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671 (1939)).
RCW 49.60.218 addresses service animals only by prohibiting different treatment of people who use trained guide dogs and miniature horses as service animals. A local ordinance that prohibits different treatment of people who use a broader range of service animals, therefore, does not conflict with RCW 49.60.218 for preemption purposes. See City of Seattle, 111 Wn.2d at 33 (an ordinance may prohibit a broader scope of activity than state law without conflicting with state law). Our conclusion would be different if the statute either expressly permitted food
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establishments to exclude or provide different treatment to persons using animals other than guide dogs and miniature horses, or if it expressly prohibited such animals in food establishments.
We trust the foregoing will be of assistance.
ROBERT M. MCKENNA
ANNE E. EGELER
Deputy Solicitor General
an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability[.]
 Although your question was prompted by a specific city’s ordinance, we analyze your question more broadly because the same considerations would apply to any first class city. We do not, by this opinion, seek to address any specific dispute regarding a specific city’s ordinance.
 According to the Final Bill Report (at page 2) accompanying Laws of 2011, ch. 237, the numerical references used to define “food establishment” refer to:
super markets and other grocery stores; convenience stores; meat markets; fish and seafood markets; fruit and vegetable markets; baked goods stores; confectionary and nut stores; specialty food stores; warehouse clubs and supercenters; full-service restaurants; limited service restaurants; cafeterias, grill buffets, and buffets; snack and non-alcoholic beverage bars; and drinking places.