Branson v. Port of Seattle

Sanders, J.

(dissenting) — The Port of Seattle’s (Port) practice of charging rental car companies doing business at Seattle-Tacoma International Airport (Airport) a concession fee as a percentage of each company’s gross receipts forces those customers to pay widely varying and inflated charges for essentially identical use of the Airport. This nonuniform fee denies the public equal and uniform use of the Airport in direct violation of the 1945 Municipal Airports Act (Revised Airports Act), chapter 14.08 RCW, a statute intended to protect captive consumers from potential abuse of a coercive government monopoly.

The Revised Airports Act permits port districts to charge fees for use of airport property, see RCW 14.08.120(6), *884however, they are subject to specific limitations to protect captive consumers from unfair airport price gouging:

PROVIDED, That in all cases the public is not deprived of its rightful, equal, and uniform use of the property. Charges shall be reasonable and uniform for the same class of service and established with due regard to the property and improvements used and the expense of operation to the municipality.

Id. (emphasis added). The Revised Airports Act therefore specifically prohibits the Port from depriving the public of “equal” and “uniform” use of the Airport. Id. It also requires fees be “reasonable and uniform for the same class of service,” taking into consideration the Port’s cost of operating the Airport. Id.

The trial court granted summary judgment of dismissal to the Port. Therefore we must view all facts and reasonable inferences in the light most favorable to Douglas Branson, the nonmoving party. City of Lakewood v. Pierce County, 144 Wn.2d 118, 125, 30 P.3d 446 (2001). The evidence in this case, largely undisputed, establishes the Port’s practice of charging a concession fee to rental car companies doing business at the Airport based on a percentage of those companies’ gross receipts.

A somewhat frequent traveler to and from the Airport, Branson rented a car on several occasions from November 1998 to December 2000. Because the rental car companies he frequented were limited service companies, his use of the Airport was essentially the same every time: he exited the plane, made his way to the courtesy shuttle staging area outside the terminal, took a shuttle to an off-Airport location and picked up his rental car. Nonetheless he never paid the same amount for the Port’s concession fee. Indeed the fee he paid varied greatly based on the period of time he rented each car and its quality, from as low as $8.76 to as high as $25.53 per day. Clerk’s Papers (CP) at 364-65.

Such lack of uniformity in airport fees was addressed directly in a 1992 attorney general opinion. See 1992 Op. Att’y Gen. No. 18. While attorney general opinions are not *885binding, they are persuasive authority to which we give “great weight.” Thurston County ex rel. Bd. of County Comm’rs v. City of Olympia, 151 Wn.2d 171, 177, 86 P.3d 151 (2004); Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 63, 847 P.2d 440 (1993). But see Amalgamated Transit Union Legislative Council v. State, 145 Wn.2d 544, 554, 40 P.3d 656 (2002). There the Attorney General interpreted RCW 14.08.120(6) and concluded charges based on a user’s gross receipts would fail to comply with the statutory requirements of RCW 14.08.120(6). See 1992 Op. Att’y Gen. No. 18 at 5-7.

The Attorney General reasoned:

Charges based on the user’s gross receipts are likely to result in different charges for businesses that use airport property in the same way and to the same extent. Calculated in this way, charges would not be uniform, and would bear no relationship to the cost or operation of the property.

Id. at 5. The opinion cited the following example, mirroring the case at bar:

This point can be illustrated by the following example. It is our understanding that rental car companies are among the businesses that use airport property. These rental car companies maintain offices in other locations, and use the airport’s property by driving courtesy vans to and from passenger terminals to pick up and deliver their customers. Assume that the charge is to be based on a rental car company’s gross receipts from customers who arrive at the airport, are transported off the airport grounds in vans operated by the company, and rent a car from the company within 24 hours of arrival. Assume further that the charge is 10 percent of these gross receipts.
Company A picks up one customer at the airport on a given trip. When the customer arrives at Company A’s office, she rents a car for one day at a rate of $100. The port district will charge Company A $10 for using airport property.
Company B also picks up one customer at the airport on a given trip. When the customer arrives at Company B’s office, however, he rents a car for ten days at a rate of $100 per day, *886or $1,000 total. Company B will be charged $100, or 10 times the amount charged to Company A, by the port district for its use of airport property. Presumably, the expense to the port district of owning and operating the property used would be the same in both cases. Yet the charges assessed the two companies would differ greatly.

Id. at 5-6. The opinion also referenced a 1961 opinion, see id. at 6, wherein the Attorney General concluded a municipal authority operating an airport could not, consistent with RCW 14.08.120(6), charge a fee to only those passengers boarding an airplane but not those disembarking. 1961-1962 Op. Att’y Gen. 100 at 3. The opinion emphasized RCW 14.08.120(6)’s requirement that “ ‘in all cases the public is not deprived of its rightful, equal, and uniform use of the [airport] property.’ ” 1992 Op. Att’y Gen. at 5 (quoting RCW 14.08.120(6)).

The majority attempts to distinguish the 1992 opinion on specious grounds. According to the majority because the opinion refers to fees levied on rental car companies, rather than their customers, “it is unclear how the opinion relates to Branson’s current argument that the concession fees are not uniform with regard to individual customers.” Majority at 874. However, it is absolutely clear that the rental car companies do pass on the fee directly to their customers. Thus, the Attorney General’s conclusion that such a nonuniform fee would violate RCW 14.08.120(6) if rental car companies were forced to pay applies with equal force here, where it is the customers who are forced to bear the cost.

A customer such as Branson who rents a car for a longer period of time from a company doing business at the Airport, or who rents a car of higher quality, pays more for the same use of the Airport than does a customer who rents a car for a shorter period of time or who rents a less expensive car. The customer’s use of the airport is the same but the fee varies substantially. This deprives the public of “equal and uniform use,” which RCW 14.08.120(6) expressly prohibits.

*887Nonetheless the majority baldly asserts a rental car customer’s payment of the concession fee is not for his or her use of the Airport but instead for use by the rental car companies. Majority at 872-73. As a result, according to the majority, RCW 14.08.120(6)’s requirement that airport fees must not deprive the public of equal and uniform use of airport property is not implicated in this case. Id. at 873. To get there the majority makes much of the fact that the Port does not require rental car companies to pass the concession fee on to their customers. This assertion is, however, an exercise in self-delusion which ignores the reality that it is the customers and not the rental car companies who ultimately pay the Port’s fee, as it is the consumer who pays for the product. This fee simply inflates the cost of rental cars for airport vendors above the cost for nonairport vendors. And the Port gets away with it because its monopolistic and coercive exclusive control of the airport venue makes it impractical for consumers to seek more reasonably priced alternatives at less convenient locations.

Contrary to the majority’s analysis, this fee must be analyzed in the context of those who actually pay it. The statute in effect protects these consumers from the evils of government-coerced, monopolistic price gouging. That the fee calculation results in widely varying charges demonstrates the fee is not uniform and thereby violates RCW 14.08.120(6).

Additionally, the majority mistakenly asserts the Port’s concession fee “in no way” limits the public’s use of the Airport. Majority at 875. This belies the fact that every traveler who seeks to rent a car from a limited service car rental company doing business at the Airport finds the service marginally less available because of higher cost of the rental due to this airport fee at this controlled venue. Travelers who use the Airport in much the same way but are marginally forced to rent cars elsewhere to avoid the added expense pay no such fee; however, their choice is limited by the hassle of traveling to a remote location to seek a vendor who does not do business at the airport. This *888loss of convenience is considerable. Obviously the public’s use of the Airport to reñt a car is limited by payment of the Port’s fee as some marginal customers are priced out of the market.

Branson has established the Port’s rental car concession fee deprives the public of equal and uniform use of the Airport because of the unreasonable manner in which widely varying charges are calculated. This nonuniform fee deprives the public of “equal and uniform use” of the Airport, which RCW 14.08.120(6) prohibits. The trial court’s grant of summary judgment on this issue was therefore improper.

The majority’s attempt to dispose of Branson’s claims under the “reasonable and uniform” provision of RCW 14.08.120(6) on standing is equally unpersuasive. RCW 14.08.120(6) is designed to protect members of the public. RCW 14.08.120(6) (“PROVIDED, That in all cases the public is not deprived of its rightful, equal, and uniform use of the property.” (emphasis added)). This protection is not somehow limited to the one sentence where the word “public” appears, contra majority at 876, but rather applies by its plain language to the entire proviso. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (courts must construe statutes consistent with their purpose to achieve the legislature’s intent, avoiding strained or absurd results in so doing). Furthermore the Revised Airports Act applies by its express terms to port districts but not to privately operated rental car companies. See RCW 14.08.010, .120. As a result Branson, and other similarly situated travelers forced to pay the Port’s fee, cannot sue the rental car companies directly for allegedly violating the statute. The only way the public can challenge the Port’s fee under the statute is to do exactly what Branson has done here, pay the fee and sue the Port. He is entitled to the protections of this statute although the majority turns its back on consumers in favor *889of unfair and unreasonable charges by (now unrestrained) government monopolies.

I dissent.

Johnson and Madsen, JJ., concur with Sanders, J.