Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

DODGE CITY SALOON, INC.,                                         No.  41454-6-II

                             Petitioner,

       v.

WASHINGTON STATE LIQUOR                                     PUBLISHED OPINION
CONTROL BOARD,

                             Respondent.

       Quinn-Brintnall, J.   --     Dodge City Saloon, Inc. appeals a Washington State Liquor 

Control Board's (Liquor Board) final order finding that it allowed an underage person into an 

area off limits to persons under the age of 21.  Dodge City asserts that because the Liquor 

Board's compliance checks are administrative inspections subject to U.S. Const. amend. IV and 

Wash. Const. art. I, § 7 warrant requirements, the administrative law judge (ALJ) should have 

suppressed all evidence discovered as a result of the Liquor Board's warrantless inspection of 

Dodge City.  Dodge City further argues that the ALJ should have dismissed the Liquor Board's 

complaint under the doctrines of entrapment and outrageous conduct and that the ALJ erred when 

it denied its motion for continuance.  Last, Dodge City asserts it is entitled to attorney fees.   We 

hold that because the Liquor Board's compliance check in this case was not a search, Dodge City  

No. 41454-6-II

cannot challenge it under either U.S. Const. amend. IV or Wash. Const. art. I, § 7.  We also hold 

that Dodge City may not assert an entrapment or outrageous conduct defense in a civil 

administrative proceeding and that the ALJ did not err when it denied Dodge City's motion for 

continuance.  We deny Dodge City's request for attorney fees and affirm.

                                            FACTS

       On October 10, 2008, the Liquor Board filed a complaint alleging that Dodge City, a 

nightclub in Vancouver, Washington, "allowed a person under the age of twenty-one to remain in 

a licensed premise off-limits to persons under the age of twenty-one, contrary to [former] RCW 

66.44.310(1)(a)  [(2007)]  and WAC 314-11-020(2)."1       Administrative Record (AR) at 551.  

Generally, the Liquor Board issues licenses to businesses throughout Washington in accord with 

ch. 66.24 RCW.  The Liquor Board monitors its licensees through a program of compliance 

checks wherein investigatory aides under the age of 21 attempt to enter a licensed establishment 

and make a controlled liquor purchase from the bar.  A commissioned liquor enforcement officer 

supervises the compliance checks.  

       The basis of the Liquor Board's complaint at issue arose during a series of compliance 

checks of several establishments that began on May 16.  On that evening, C.M., an investigative 

aide then 17 years old, carried his Washington State identification card and his vertical driver's 

license.2 Both cards showed his date of birth as in October 1990.  Liquor enforcement officer 

1 Former RCW 66.44.310(1)(a) provides that it is a misdemeanor "[t]o serve or allow [a minor] to 
remain in any area classified by the board as off-limits to any person under the age of twenty-one 
years."
       WAC 314-11-020(2) provides that "licensees or employees may not allow persons under 
twenty-one years of age to remain in any premises or area of a premises classified as off-limits to 
persons under twenty-one."

2 Washington State issues vertical licenses to individuals under 21 years old.  
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No. 41454-6-II

Marc Edmonds searched C.M.         before the compliance check, mistakenly saw only the 

identification card, and allowed C.M. to proceed.  Under the supervision of several liquor 

enforcement officers, including liquor enforcement officer Diana Peters, who was waiting inside 

the bar to observe in an undercover capacity, C.M. presented his identification card to Dodge 

City's bouncer, Jeffrey Hilker.  Hilker inspected the card with a black light, told C.M. to pay a 

five dollar cover fee, and stamped C.M.'s hand.  C.M. entered Dodge City and remained inside 

for three minutes.  

       After C.M. left Dodge City, liquor enforcement officer Almir Karic went inside to serve an 

administrative violation notice (AVN) on the bartender, Erick Gill.  The AVN charged Hilker 

with violating former RCW 66.44.310(1)(a), which prohibits allowing a person under 21 years old 

into an area considered off limits.  Karic noted in the AVN summary that Hilker stated he thought 

C.M.'s identification card was a horizontal license and had a different birthday.  

       Dodge City made pretrial motions to suppress all evidence and testimony by the Liquor 

Board, to dismiss the Board's entire case, and to continue.  The ALJ denied the motions.  During 

the Liquor Board's formal hearing, Dodge City argued that C.M. looked "deceptively mature"

and that "the [Liquor] Board was essentially attempting to entrap the Licensee." AR at 503.  The 

ALJ rejected Dodge City's entrapment argument, reasoning that 

       [C.M.'s] firsthand testimony was that Mr. Hilker not only looked at his valid 
       identification card, but also placed it under the black light of a machine especially 
       designed to read such identification.  The fulcrum point upon which the [Liquor] 
       Board's key argument rests is that card itself stated clearly when [C.M.] would 
       turn 18, which also clearly meant that at the time he was not 21 either.  
       Irrespective of how [C.M.] looked, his valid identification card indicated that he 
       was too young to be granted admittance.

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No. 41454-6-II

AR at 505.  The ALJ then entered an initial order in favor of the Liquor Board, concluding that 

the Liquor Board had met its burden to "establish by a preponderance of the evidence that:  a) the 

Licensee or an employee, b) allowed, c) a person under the age of twenty-one, d) to remain, e) in 

an off-limits section of the premises." AR at 504.  The ALJ affirmed the AVN, sustained the 

complaint, and suspended Dodge City's license for seven days.  

       Dodge City timely appealed, but the Liquor Board Enforcement Division did not timely 

respond.  Thus, in making its determination, the Liquor Board's appellate division relied on the 

Liquor Board's briefing submitted before entry of the initial order.  On December 29, 2009, the 

Liquor Board's appellate division issued a final order affirming and adopting the ALJ's initial 

order, except to correct apparent scrivener's errors.  The Liquor Board suspended Dodge City's 

liquor license privileges for seven days, from February 16, 2010 until February 23, 2010.  

       Dodge City appealed the Liquor Board's final order in Clark County Superior Court, 

which affirmed on October 14, 2010.  Dodge City timely appeals.  

                                         DISCUSSION

       Dodge City argues that because the Liquor Board's May 16, 2008 compliance check 

violated the Fourth Amendment and article I, section 7, the ALJ erred in denying its motion to 

suppress all evidence and testimony from state actors.  Dodge City further argues that the ALJ 

erred in denying its motions to dismiss the Liquor Board's complaint under the doctrines of 

entrapment and outrageous conduct, and its motion for continuance.  Last, Dodge City asserts 

that the trial court erred in denying its request for attorney fees under RCW 4.84.350.  We affirm.

       Under the Administrative Procedures Act (APA), ch. 34.05 RCW, Dodge City bears the 

burden of demonstrating the final order's invalidity. RCW 34.05.570(1)(a).  We sit in the same 

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No. 41454-6-II

position as the superior court when reviewing an agency action.  Valley Fruit v. Dep't of 

Revenue, 92 Wn. App. 413, 417, 963 P.2d 886 (1998) (citing Tapper v. State Emp't Sec. Dep't, 

122 Wn.2d 397, 402, 858 P.2d 494 (1993)), review denied, 137 Wn.2d 1017 (1999).  We review 

the record before the reviewing administrative agency that issued the final order, here the Liquor 

Board; we do not consider the record before the superior court.  Valley Fruit, 92 Wn. App. at 

417 (citing Inland Empire Distribution Sys., Inc. v. Utils. & Transp. Comm'n, 112 Wn.2d 278, 

282, 770 P.2d 624 (1989)).  Because Dodge City does not challenge the Liquor Board's findings, 

they are verities.  Bullseye Distrib. LLC v. Wash. State Gambling Comm'n, 127 Wn. App. 231, 

236, 110 P.3d 1162 (citing Hertzke v. Dep't of Ret. Sys., 104 Wn. App. 920, 927, 18 P.3d 588 

(2001)),  review denied, 155 Wn.2d 1027 (2005).  We review conclusions of law de novo.  

Bullseye, 127 Wn. App. at 237 (citing RCW 34.05.570(3)(d)).  

       In a de novo review of an agency decision, we may reverse the Liquor Board's final order 

only if the order, or the statute or rule on which the order is based, is in violation of constitutional 

provisions on its face or as applied, the agency has erroneously interpreted or applied the law, or 

the order is arbitrary or capricious.  RCW 34.05.570(3)(a), (d), (i).  If Dodge City is entitled to 

relief, we may order the Liquor Board to take action required by law or set aside, enjoin, or stay 

the final order.  RCW 34.05.574(1)(b).  Generally, we must remand to an administrative agency's 

board for modification of the final order, unless remand is inappropriate or would cause 

unnecessary delay.  RCW 34.05.574(1)(b).  

Compliance Checks

       Dodge City asserts that the ALJ should have suppressed all of the Liquor Board's 

evidence because the compliance checks violate constitutional protections against unreasonable 

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No. 41454-6-II

searches and seizures.  U.S. Const. amend. IV; Wash. Const. art. I, § 7.  Specifically, Dodge City 

argues that (1) the compliance check constituted a Fourth Amendment "search" and was therefore 

an administrative inspection, and (2)  such search violated the Fourth Amendment warrant 

requirement.  See Camara v. Mun. Court of City & County of San Francisco, 387 U.S. 523, 534, 

87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).  The Liquor Board asserts that the compliance checks 

fall "squarely within the [Liquor] Board's authority to enforce liquor laws and to regulate those 

who voluntarily engage in the pervasively regulated liquor sales industry."  Br. of Resp't at 9.  

The Liquor Board argues that because it conducts compliance checks in areas open to the public 

for business, e.g., the front door and bar, Dodge City cannot have any expectation of privacy in 

those areas.  Because the Liquor Board's compliance check was not a search under the meaning 

of either the Fourth Amendment or article I, section 7, we hold that Dodge City cannot challenge 

the compliance check at issue here.

       Generally, the presiding officer of a hearing has discretion to admit evidence, including 

hearsay evidence, if the evidence "is the kind of evidence on which reasonably prudent persons are 

accustomed to rely in the conduct of their affairs." RCW 34.05.452(1).  The presiding officer 

must, however, exclude evidence "excludable on constitutional or statutory grounds."       RCW 

34.05.452(1).  The Fourth Amendment and article I, section 7 protections against unreasonable 

searches and seizures extend to administrative or regulatory searches of commercial property.  

State v. Browning, 67 Wn. App. 93, 95, 834 P.2d 84 (1992) (citing Camara, 387 U.S. at 534).  In 

the absence of a Gunwall3 analysis, Washington courts view these provisions of the state and 

3 State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986) (setting forth criteria to determine
if a state constitutional provision is more protective than its federal counterpart). 

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No. 41454-6-II

federal constitutions as being co-extensive in the context of administrative searches.  Seymour v. 

Wash. State Dep't of Health, Dental Quality Assurance Comm'n, 152 Wn. App. 156, 165 n.4, 

216 P.3d 1039, 1044 (2009) (citing Centimark Corp. v. Dep't of Labor & Indus., 129 Wn. App. 

368, 375, 119 P.3d 865 (2005)).  Thus, here, we must determine whether the Liquor Board's 

conduct was a "search" under the Fourth Amendment.  

       Dodge City contends that the Liquor Board's compliance check constituted a "search"

and that the Liquor Board violated Dodge City's subjective privacy interest in excluding persons 

under 21 years old from its premises.  The Liquor Board responds that the compliance check did 

not constitute a search because the law enforcement officers did not violate any privacy interest; 

the officers neither viewed beyond what would be observable by the public nor entered areas of 

the premises not open to the public.  We agree with the Liquor Board.

       A Fourth Amendment search occurs where (1) there is a subjective manifestation of 

privacy in the object searched, and (2) society recognizes that privacy interest as reasonable.  

Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).  Where there 

is no privacy interest there is no search and constitutional considerations are not implicated.  See 

Centimark Corp., 129 Wn. App. at 375.  

       The United States Supreme Court has explicitly recognized that "[a]n owner or operator 

of a business . . . has an expectation of privacy in commercial property, which society is prepared 

to consider to be reasonable."  New York v. Burger, 482 U.S. 691, 699, 107 S. Ct. 2636, 96 L. 

Ed. 2d 601 (1987).  "This expectation exists not only with respect to traditional police searches 

conducted for the gathering of criminal evidence      but also with respect to administrative 

inspections designed to enforce regulatory statutes."  Burger, 482 U.S. at 669-700.  But the 

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No. 41454-6-II

Court has also recognized that regulatory inspections of commercial premises held open to the 

public, as opposed to commercial premises or portions of such premises restricted to all but 

employees or owners, is not a search and does not require a warrant.  See, e.g., See v. City of 

Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967) ("administrative entry,

without consent, upon the portions of commercial premises which are not open to the public may 

only be compelled through prosecution or physical force within the framework of a warrant 

procedure") (emphasis added); see also Marshall v. Barlow's Inc., 436 U.S. 307, 315, 98 S. Ct. 

1816, 56 L. Ed. 2d 305 (1978) ("[w]hat is observable by the public is observable, without a 

warrant, by the Government inspector as well"). 

       In this case, the Liquor Board's actions did not constitute a search for Fourth Amendment 

purposes because the Liquor Board did not violate Dodge City's privacy interests.  Dodge City 

had no reasonable privacy interest in areas of its licensed premises that it actively invites the public 

to enter.  Barlow's Inc., 436 U.S. at 315.  Even if, as Dodge City argues, it had a subjective 

reasonable expectation of privacy to exclude persons under 21 years old,4 which it did not, Dodge 

City lost that interest when it voluntarily admitted C.M. onto the premises.  United States v. 

Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) ("Once consent has been obtained from one with 

4 At oral argument, Dodge City argued that it had a subjective reasonable expectation of privacy 
in excluding persons under the age of 21 because former RCW 66.24.310(1)(a) prohibits persons 
under 21 years old from entering its premises.  We disagree.  Although it is true that "one who 
owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation 
of privacy by virtue of this right to exclude," the right to exclude, alone, does not confer a 
"privacy protected by the Fourth Amendment."  Compare Rakas v. Illinois, 439 U.S. 128, 143
n.12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), with Oliver v. United States, 466 U.S. 170, 183-84 
n.15, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) ("The law of trespass recognizes the interest in 
possession and control of one's property and for that reason permits exclusion of unwanted 
intruders.  But it does not follow that the right to exclude conferred by trespass law embodies a 
privacy interest also protected by the Fourth Amendment."). 
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No. 41454-6-II

authorityto give it, any expectation of privacy has been lost.").  Thus, the Liquor Board's officers 

did not conduct a "search" when they entered the public portions of Dodge City's premises and 

observed only what members of the public could also observe.  Likewise, the Liquor Board's 

officers did not conduct a "search" when they observed C.M.'s entry into Dodge City from a 

public street.  Accordingly, because there was no "search" in this case, the Liquor Board's actions 

do not implicate constitutional considerations and Dodge City has no "search" on which to base a 

Fourth Amendment or article I, section 7 unreasonable search and seizure claim.  Centimark 

Corp., 129 Wn. App. at 375.  

Entrapment and Outrageous Conduct

       Next, Dodge City argues that the ALJ erred in denying its motions to dismiss the Liquor 

Board's complaint under the doctrines of entrapment and outrageous conduct.  But Dodge City 

may not assert either an entrapment or an outrageous conduct defense in the administrative 

proceeding in this case; the defenses are available as affirmative defenses in criminal proceedings 

only.  See State v. O'Neill, 91 Wn. App. 978, 987-88, 967 P.2d 985 (1998).  RCW 34.05.586(1) 

provides that in an administrative proceeding governed by the APA, a respondent may assert as a 

defense only the following: 

              (a) That the rule or order is invalid under RCW 34.05.570(3) (a), (b), (c), 
       (d), (g), or (h), but only when the respondent did not know and was under no duty 
       to discover, or could not reasonably have discovered, facts giving rise to this issue;
              (b) That the interest of justice would be served by resolution of an issue 
       arising from:
              (i) A change in controlling law occurring after the agency action; or
              (ii) Agency action after the respondent has exhausted the last foreseeable 
       opportunityfor seeking relief from the agency or from a reviewing court;
              (c) That the order does not apply to the respondent or that the respondent 
       has not violated the order; or
              (d)  A defense specifically authorized by statute to be raised in a civil 
       enforcement proceeding.

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No. 41454-6-II

(Emphasis added.)  Here, the legislature has not provided entrapment or outrageous conduct as 

defenses in civil enforcement proceedings and no Washington court has ever recognized the right 

of a respondent in such a proceeding to assert such defenses.  Accordingly, we hold that the ALJ 

did not err because Dodge City may not present either defense in this case.  RCW 

34.05.570(3)(d).

       Moreover, even if Dodge City could raise such defense, the claims would fail.  First, 

entrapment occurs not when the police resort to subterfuge in apprehending a criminal after the 

fact, but when they induce a law-abiding person to engage in criminal conduct that he would not 

otherwise have committed.  RCW 9A.16.070.  Assuming arguendo that allowing C.M. to enter 

the premises was a criminal act, nothing in the record supports a finding that the Liquor Board 

and its officers induced Dodge City to invite the underaged aide into the bar.  C.M. used his own 

identification card on which his birthdate clearly showed he was under the age of 21.  Nothing in 

the record shows that Dodge City would not have invited any other person under the age of 21 to 

enter, regardless of whether that person was an investigative aide.  See State v. Gray, 69 Wn.2d 

432, 435, 418 P.2d 725 (1966) (use of a decoy to present an opportunity for commission of a 

crime does not constitute entrapment).   Accordingly, even if Dodge City were permitted to 

present an entrapment affirmative defense, the defense would fail because Dodge City cannot 

show that it would have not otherwise engaged in the prohibited conduct.  RCW 9A.16.070.

       Second, "[g]overnmental misconduct must somehow impact the defendant's own rights 

before it rises to the level of outrageousness that will justify dismissing a prosecution."  State v. 

Rundquist, 79 Wn. App. 786, 797, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).  

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No. 41454-6-II

"'Such conduct must be so outrageous that it violates the concept of fundamental fairness 

inherent in due process and shocks the sense of universal justice mandated by the due process 

clause.'"  Rundquist, 79 Wn. App. 794 (quoting State v. Pleasant, 38 Wn. App. 78, 82, 684 P.2d 

761, review denied, 103 Wn.2d 1006 (1984)).  "But no Washington decision has dismissed a 

prosecution for outrageous conduct by government agents."  Rundquist, 79 Wn. App. 794; see 

also State v. Athan, 160 Wn.2d 354, 377, 158 P.3d 27 (2007) (although police misconduct was 

deceitful, it was not so outrageous as to warrant dismissal of an entire case); State v. Myers, 102 

Wn.2d 548, 689 P.2d 38 (1984), overruled on other grounds by State v. Lively, 130 Wn.2d 1, 

921 P.2d 1035 (1996).  Washington courts reject the outrageous conduct defense even in cases 

where the police are engaged in illegal activities.  See, e.g., State v. Jessup, 31 Wn. App. 304, 312-

14, 641 P.2d 1185 (1982) (no outrageous conduct where police informants engaged in acts of 

prostitution and attempted to recruit new prostitutes).

       Here, the liquor enforcement officers sent an underage investigative aide to attempt to 

enter Dodge City using his own identification card.  The compliance check did not constitute a 

"search" interfering in any of Dodge City's expectations of privacy.  And Dodge City cannot 

allege that the Liquor Board or its enforcement officers violated its due process rights as required 

to establish an outrageous conduct affirmative defense.  Rundquist, 79 Wn. App. 794.  

Accordingly, Dodge City's outrageous conduct affirmative defense, even if permitted, would fail 

as a matter of law.  

Motion for Continuance

       Next, Dodge City asserts that  the ALJ erred in denying its motion for continuance.  

Hilker, Dodge City's bouncer who allowed C.M. to enter the bar, invoked his privilege against 

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No. 41454-6-II

self-incrimination and declined to testify at the hearing.  Dodge City moved for a continuance on 

that basis but the ALJ denied the motion.  Dodge City asserts that  the ALJ denied it the 

opportunity to "respond, present evidence and argument, conduct cross-examination, and submit 

rebuttal evidence." Br. of Appellant at 38; see RCW 34.05.449(2).  

       Generally, a presiding officer may order a continuance at a party's request if the party 

shows good cause.  WAC 10-08-090.  There is no mechanical test for determining when the 

denial of a continuance violates due process, inhibits a defense, or conceivably projects a different 

result.  State v. Eller, 84 Wn.2d 90, 96, 524 P.2d 242 (1974).  Instead, the determination is made 

on a case-by-case basis.  Eller, 84 Wn.2d at 96.  We will affirm the ALJ's denial of Dodge City's 

motion unless Dodge City can show that it was prejudiced or the result of the proceedings would 

have likely been different had the continuance been granted.  State v. Tatum, 74 Wn. App. 81, 86, 

871 P.2d 1123 (citing Eller, 84 Wn.2d at 95-96), review denied, 125 Wn.2d 1002 (1994).

       Here, Dodge City claimed that it could not proceed without testimony from its "most 

important witness."  Br. of Appellant at 38.  But Hilker had the right to refrain from giving 

testimony tending to incriminate himself.  U.S. Const. amend. V; State v. Lougin, 50 Wn. App. 

376, 379-80, 749 P.2d 173 (1988) (privilege against self-incrimination includes the right of a 

witness not to give incriminatory answers in any proceeding).  It does not appear from the record 

that Dodge City stated when in the future or under what different circumstances Hilker would 

ever agree to give the testimony Dodge City claimed it could not proceed without.  Dodge City 

did not attempt to subpoena Hilker.  To the extent Hilker was willing to testify without 

incriminating himself, his written voluntary statement was already included in the administrative 

record.  Lougin, 50 Wn. App. at 381 (claim of privilege may be raised only against specific 

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No. 41454-6-II

questions, not as a blanket foreclosure of testimony).  

       On appeal, Dodge City does not argue with any specificity that it has been prejudiced or 

that the proceedings below would have substantially differed if the ALJ had granted its motion.  

Rather, Dodge City, without citation to legal authority or relevant portions of the administrative 

record, vaguely asserts the ALJ's denial of its motion violated its due process rights.  RAP 

10.3(a)(6).  Because Dodge City has failed to show good cause for why the ALJ should have 

granted its motion for continuance, we hold that the ALJ did not err in denying the motion.

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No. 41454-6-II

Attorney Fees

       Last, Dodge City asserts it is entitled to attorney fees under RCW 4.84.350 and RAP 

18.1.  RCW 4.84.350(1) provides that 

       a court shall award a qualified party that prevails in a judicial review of an agency 
       action fees and other expenses, including reasonable attorneys' fees, unless the 
       court finds that the agency action was substantially justified or that circumstances 
       make an award unjust.  A qualified party shall be considered to have prevailed if 
       the qualified party obtained relief on a significant issue that achieves some benefit 
       that the qualified party sought.

An agency action is "substantially justified" if it  "'has a reasonable basis in law and fact.'"  

Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wn.2d 868, 892, 154 P.3d 891 (2007) (quoting 

Cobra Roofing Serv., Inc. v. Dep't of Labor & Indus., 122 Wn. App. 402, 420, 97 P.3d 17 

(2004)).  Here, Dodge City cannot challenge a search that did not occur.  The Board's 

compliance check was substantially justified and Dodge City is not a prevailing party.  

Accordingly, we hold that Dodge City was not entitled to attorney fees from the superior court 

and we deny its request for an award on appeal.  RAP 18.1.  

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, P.J.

HUNT, J.

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