Here is my Appeal Brief as promised Part 2 (Side By Side Constitutional Analysis)

This is part of my brief as well, or rather my Exhibits but it also stands alone in describing the flaws in the codes vs the state laws. It is indicative of the disregard that the city has for state, federal or Constitutional law. This is how they operate & if there was in fact an internal audit of most of their codes you would probably find disparities in a good deal of them. Please note that I wrote all of this myself so it may seem rather infantile to a seasoned attorney, & they may be able to state the same thing more eloquently then myself.. atleast I would hope so.

Again the link will let you download the actual form to get the proper format.

Side by side Analysis Appendix A


  1. The only place for hearing in EMC 6.04 is for denial of kennel license, EMC 6.04.060 otherwise noted there is no provision for a fair hearing to be held at a meaningful time regarding impound or destruction of animals.

  2. EMC 6.04.070(C)(10) provides for notice ONLY when the animal has been abandoned, and gives no clear time limit, where as RCW 16.52 gives the time limit of 36 hours and provides for Notice of Legal Remedies 16.52.085(3)

6.04.070 Prohibited conduct.

C. Offenses Relating to Cruelty. It shall be unlawful for any person to:

10) Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205, confine an animal within or on a motor vehicle at any location under such conditions as may endanger the health or well-being of the animal, including but not limited to extreme temperatures, lack of food or water, or confinement with a dangerous animal. Any animal control or peace officer is authorized to remove any animal from a motor vehicle, at any location, when he/she reasonably believes it is confined in such conditions as described above. Any animal so removed shall be delivered to the animal control shelter after the removing officer leaves written notice of such removal and delivery, including the officer’s name, in a conspicuous, secure location on or within the vehicle;

16.52.085 Removal of animals for feeding and care — Examination — Notice — Euthanasia.
(3) Any owner whose domestic animal is removed pursuant to this chapter shall be given written notice of the circumstances of the removal and notice of legal remedies available to the owner. The notice shall be given by posting at the place of seizure, by delivery to a person residing at the place of seizure, or by registered mail if the owner is known. In making the decision to remove an animal pursuant to this chapter, the officer shall make a good faith effort to contact the animal’s owner before removal.

3) RCW 16.52.011(K) clearly states an animal is to have “Necessary” water, EMC 6.04.00(C)(2) states the animal must have “Constant” water. In direct conflict with Washington state laws

16.52.011 Definitions — Principles of liability.
“Necessary water” means water that is in sufficient quantity and of appropriate quality for the species for which it is intended and that is accessible to the animal.

6.04.070 Prohibited conduct. C. Offenses Relating to Cruelty. It shall be unlawful for any person to:

(2) Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205, fail to provide an animal with sufficient good and wholesome food and a constant source of clear potable water, proper shelter and protection from the weather, veterinary care when needed to prevent suffering, and with humane care and treatment;

  1. RCW 16.52.207 Offers an affirmative defense EMC 6.04 Offers none in these times of economic hardships. When one reads and prescribes to state law, and believe that they are following the law these types of codes do nothing more than confound honest citizens and criminalize them. The Washington State Constitution clearly states the purpose of laws in harmony is to make sure they don’t make criminals of honest citizens

16.52.207 Animal cruelty in the second degree — Penalty.
(a) Fails to provide the animal with necessary shelter, rest, sanitation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result of the failure;
In any prosecution of animal cruelty in the second degree under subsection (1) or (2)(a) of this section, it shall be an affirmative defense, if established by the defendant by a preponderance of the evidence, that the defendant’s failure was due to economic distress beyond the defendant’s control.

5) RCW 16.52.085(4) Clearly provides remedies of Permanent deprivation or taking of the Govt, forfeiture is never favored by the law, and no where in EMC does it give any owner a time or place or way to be heard in a meaningful manner, the remedy implied is so vague that it can’t be surmised what it actually means and then to add to the confusion the shelter manager has supreme discretion over the whole matter, giving her absolute power

6) RCW 16.52.085(5) Offers remedies for a hearing on forfeiture, and gives time to be heard in a meaningful manner. EMC 6.04 offers no such protection on due process

16.52.085 Removal of animals for feeding and care — Examination — Notice — Euthanasia.

(4) The agency having custody of the animal may euthanize the animal or may find a responsible person to adopt the animal not less than fifteen business days after the animal is taken into custody. A custodial agency may euthanize severely injured, diseased, or suffering animals at any time. An owner may prevent the animal’s destruction or adoption by: (a) Petitioning the district court of the county where the animal was seized for the animal’s immediate return subject to court-imposed conditions, or (b) posting a bond or security in an amount sufficient to provide for theanimal’s care for aminimum of thirty days from the seizure date. If the custodial agency still has custody of the animal when the bond or security expires, the animal shall become the agency’s property unless the court orders an alternative disposition. If a court order prevents the agency from assuming ownership and the agency continues to care for the animal, the court shall order the owner to renew a bond or security for the agency’s continuing costs for the animal’s care. When a court has prohibited the owner from owning, caring for, or residing with a similar animal under RCW 16.52.200(4), the agency having custody of the animal may assume ownership upon seizure and the owner may not prevent the animal’s destruction or adoption by petitioning the court or posting a bond.
(5) If no criminal case is filed within fourteen business days of the animal’s removal, the owner may petition the district court of the county where the animal was removed for the animal’s return. The petition shall be filed with the court, with copies served to the law enforcement or animal care and control agency responsible for removing the animal and to the prosecuting attorney. If the court grants the petition, the agency which seized the animal must deliver the animal to the owner at no cost to the owner. If a criminal action is filed after the petition is filed but before the animal is returned, the petition shall be joined with the criminal matter.
(6) In a motion or petition for the animal’s return before a trial, the burden is on the owner to prove by a preponderance of the evidence that the animal will not suffer future neglect or abuse and is not in need of being restored to health.

7) EMC 6.04.090 Gives Constitutional and Statutory powers to a shelter manager to be used under their own discretion, thereby creating a very dangerous precedent for the destruction, permanent deprivation of property and rights, furthermore the administrative decisions can not super cede the laws of Washington State. They can chose to release an animal or destroy an animal at their whim, not according to law. RCW 16.52.210 provides at the very least notification of destruction of an animal so the owner is afforded an opportunity to contest. The shelter manager has discretion in a criminal case to “decide” if they will let a veterinarian come in to examine the animals thereby destroying any meaningful defense an accused person may have when the taking of one’s property automatically triggers due process.

6.04.090 Shelter operation—Impoundment procedures—Release and disposal.

G. Impoundment and Disposition of Animals.

1. Any impounded animal shall be released to the owner upon payment of impoundment, care and license fees unless in the discretion of the manager or his/her designee there is an ongoing investigation of a violationof thischapter or state law. The manager or his/her designee may release the animal to the owner’s authorized representative; full identification of the owner and their authorized representative must be provided to animal control prior to release.

6. The owner of any animal retained at the shelter pending legal action pertaining to violations of this chapter and/or other judicial actions or hearings, pertaining to his/her ownership/responsibilities regarding the animal, shall be liable for all fees prescribed by fee schedule, upon conviction.

7. The manager shall dispose of animals held for the prescribed period without redemption or adoption only by means of euthanasia; provided, however, that irrespective of any prescribed holding period the manager, upon advice of a licensed veterinarian, may immediately dispose of any sick or injured impounded animal by euthanasia.

16.52.210 Destruction of animal by law enforcement officer — Immunity from liability.

This chapter shall not limit the right of a law enforcement officer to destroy an animal that has been seriously injured and would otherwise continue to suffer. Such action shall be undertaken with reasonable prudence and, whenever possible, in consultation with a licensed veterinarian and the owner of the animal. Law enforcement officers and licensed veterinarians shall be immune from civil and criminal liability for actions taken under this chapter if reasonable prudence is exercised in carrying out the provisions of this chapter.

6.04.110 Administration and enforcement by manager.

C The manager shall be empowered to exercise the authority of peace officers to extent necessary to enforce this chapter, which powers shall include issuance of citations, seizure and impoundment of animals subject to this chapter, including pursuit onto city-owned property, vacant property and unenclosed private property and subsequent impoundment.

8) RCW 16.52.200 Specifically states an animal may only be ordered forfeited by the courts at the time of trial IF an animal has died because of the mistreatment or upon a second conviction. EMC 6.04 remains silent on this stating only in EMC 6.04.090 that an owner shall be responsible for shelter fees upon conviction.

16.52.200 Sentences Forfeiture of animals Liability for costs Penalty Education, counseling.
(3) In addition to the penalties imposed by the court, the court shall order the forfeiture of all animals held by law enforcement or animal care and control authorities under the provisions of this chapter if any one of the animals involved dies as a result of a violation of this chapter or if the defendant has a prior conviction under this chapter. In other cases the court may enter an order requiring the owner to forfeit the animal if the court deems the animal’s treatment to have been severe and likely to reoccur. The court may delay its decision on forfeiture under subsection (3) of this section until the end of the probationary period.

6.04.090 Shelter operation—Impoundment procedures—Release and disposal.

G. Impoundment and Disposition of Animals.

6. The owner of any animal retained at the shelter pending legal action pertaining to violations of this chapter and/or other judicial actions or hearings, pertaining to his/her ownership/responsibilities regarding the animal, shall be liable for all fees prescribed by fee schedule, upon conviction.

For statutory provisions concerning animals generally, see RCW Title 16; for statutory provisions concerning prevention of cruelty to animals, see Ch. 16.52 RCW; for provisions on the animal shelter advisory committee, see Ch. 2.99 of this code.


1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted?

2. Was the state law intended expressly or impliedly to be exclusive in the field?

3. Does the subject matter reflect a need for uniformity?

4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?

5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature

It would be too confusing & contradictory to a citizen to have to decipher between 2 different laws which are dis-similar in language in order to be put on notice which conduct is prohibited. Petitioner thought she was well within her legal duty to the State of Washington, and was in no way disturbing any public codes of conduct as defined by Washington State Statutes. This case is especially disturbing in the fact that it is not simply a matter of a question of 1 code conflict but that it encompasses the entire ordinance as a whole. How can one Municipality create codes that in essence make them a nation unto themselves? Ms Taamu understands that it is imperative that cities be able to make & create codes that ensure public peace, but to disregard the very tenets of the laws that this great Nation was built upon is nothing more than pomp and total disregard for the people, whom the city owes it’s very existence to. In looking to State Appellate and Supreme Court Rulings it is apparent that the city of Everett has lost every case concerning the taking of property. Isn’t this enough to put the city on notice that they should re-examine their policies in regard to the wonton destruction of people’s civil liberties or are we to believe that in the face of a 10 million dollar budget shortfall that the City of Everett unlimited legal resources at their disposal to continue this behavior?

Under the side by side analysis it is readily apparent that RCW 16.52 preempts EMC 6.04 At a minimum, the plain language declares the State’s intention that the statute constitute the exclusive law in this area.

Perhaps more importantly, however, is the danger that the procedural features of a municipal ordinance would conflict with the dictates of the statute–as they did in this case–thus inevitably leading to confusion among the parties and the inefficient enforcement of the Act. A servant can serve but one master; in this case, that master is the Legislature.

As the statute makes no provision for initiating an action by any means other than impoundment of the dog, it is clear that the City of Everett did not proceed in accordance with the Act. Neither did the municipal court require the City of Everett to comply strictly with the statute’s procedural demands. The court had ample opportunity to address this issue, by refusing to entertain proceedings on this matter until an action was initiated The court also should have found that RCW 16.52 preempted any Everett ordinance which dealt with this subject. As further example 16.52.085 (c) requires confiscating officer to leave notice of impound & legal remedies by posting and by certified mail, the city’s ordinance provide no such procedures & in conflict with state law

By failing to take any action to cure these jurisdictional deficiencies, the municipal court deprived itself of the legal authority to hear this case and make any rulings therein. This court therefore holds that the municipal court did not have the subject matter jurisdiction to hear this case.

I would beg the courts forgiveness if I am wrong but I am merely a Citizen, I am not a member of the bar, and it would seem to the lay person that this whole case is wrong in every moral sense of the way, as well as in any legal way that makes any sense. It would seem the scheme of the city of Everett Ordinances are set up to confound it’s citizens and the citizens of the state of Washington and we beg for relief from the oppression and deprivation of out basic civil and human rights

Addendum to Analysis:

In further research of state codes I would submit that the State of Washington by omission never intended for City of the First Class to have Supreme ruling over animal control matters, that it in fact intended to have sole discretion over Animal Laws to prevent lawsuits against the state. 2nd Class cities and towns both have provisions for Poundkeepers & Estrays, no where in Washington state RCW’s does any First Class City even mention any of the above. The ONLY provision in State RCW’s for First Class Cities are their Nuisance laws, but again even in those no mention of Animal Welfare or Control is mentioned, not even a mention of barking dogs or dogs running at large.

35.23.440 Specific powers enumerated.

The city council of each second-class city shall have power and authority:

(11) Stock pound: To establish, maintain, and regulate a common pound for estrays, and to appoint a poundkeeper, who shall be paid out of the fines and fees imposed and collected of the owners of any animals impounded, and from no other source; to prevent and regulate the running at large of any and all domestic animals within the city limits or any parts thereof, and to regulate or prevent the keeping of such animals within any part of the city.

35.27.370 Specific powers enumerated.

The council of said town shall have power:

(1) To pass ordinances not in conflict with the Constitution and laws of this state, or of the United States;

(9)To license, for purposes of regulation and revenue, all and every kind of business, authorized by law and transacted and carried on in such town; and all shows, exhibitions and lawful games carried on therein and within one mile of the corporate limits thereof; to fix the rate of license tax upon the same, and to provide for the collection of the same, by suit or otherwise; to regulate, restrain, or prohibit the running at large of any and all domestic animals within the city limits, or any part or parts thereof, and to regulate the keeping of such animals within any part of the city; to establish, maintain and regulate a common pound for estrays, and to appoint a poundkeeper, who shall be paid out of the fines and fees imposed on, and collected from, the owners of any impounded stock. A city may not require a business to be licensed based solely upon registration under or compliance with the streamlined sales and use tax agreement;

35.22.280 Specific powers enumerated.

Any city of the first class shall have power:

(30) To declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create, continue, or suffer nuisances to exist;

(33) To regulate the carrying on within its corporate limits of all occupations which are of such a nature as to affect the public health or the good order of said city, or to disturb the public peace, and which are not prohibited by law, and to provide for the punishment of all persons violating such regulations, and of all persons who knowingly permit the same to be violated in any building or upon any premises owned or controlled by them;

(34) To restrain and provide for the punishment of vagrants, mendicants, prostitutes, and other disorderly persons;

  1. To provide for the punishment of all disorderly conduct, and of all practices dangerous to public health or safety, and to make all regulations necessary for the preservation of public morality, health, peace, and good order within its limits, and to provide for the arrest, trial, and punishment of all persons charged with violating any of the ordinances of said city. The punishment shall not exceed a fine of five thousand dollars or imprisonment in the city jail for three hundred sixty-four days, or both such fine and imprisonment. The punishment for any criminal ordinance shall be the same as the punishment provided in state law for the same crime. Such cities alternatively may provide that violations of ordinances constitute a civil violation subject to monetary penalties, but no act which is a state crime may be made a civil violation;

Upon further examination of the Everett Municipal Code there are several other matters which are unethical, illegal and unconstitutional as well. Municipal Code can NOT be more restrictive than state law. The premise that my animals were removed for was that I did not have a CONSTANT source of water for the animals, which would not have been feasible in my situation at that time, bordering on economic discrimination to which a homeless defense would prevail.Chapter 35.27. Towns. 35.27.370. Specific powers enumerated Everett Municipal Code 6.04.070 (c)(2)Prohibited conduct. C. Offenses Relating to Cruelty. It shall be unlawful for any person to: Revised Code of Washington RCW 16.52.310 The Everett Municipal Code is in direct conflict with the Revised Code of Washington

It is the City of Everett’s custom and practice under its animal ordinances to not provide a notice of seizure and legal remedies to owner, or a pre-deprivation or post-deprivation hearing concerning the owner’s property interests in pets and perhaps disposal of them. The City of Everett ordinances must provide an owner notice of seizure under RCW 16.52.085 and his or her legal remedies. (Please See Exhibits Side By Side Analysis of EMC v RCW)

EMC states that an animal may be euthanized immediately at the shelters discretion, RCW 16.52.085(4) states nearly the same but prescribes remedies which are available when proper notice is given, which was never the case nor was it required in my case according to Everett Municipal Code. Further RCW 16.52.210 clearly states an owner must be notified and prudence used in the process which was never the case, as a matter of fact the euthansia of one of my animals was withheld for several weeks and the body of said animal has supposedly been lost. It should be noted that when I called the shelter after finding out her animals had been euthanized, I was laughed at by the acting manager Shannon Delgado, which was cruel and unusual, and unbecoming a public servant. Again showing the malicious intent with which I have always been treated by Everett Animal Services EMC 6.04.070(7) RCW16.52.085(4) RCW 16.52.210

On its face, EMC Title 6.04 et seq. and the City’s custom and practice does not provide an owner with a notice of seizure, his/her legal remedies, or a hearing to challenge the legality of the seizure or the reasonableness of incurred boarding expenses. Or, whether the owner is able to care properly for her own animals after a determination by her own veterinarian at the time of impound. EMC Title 6.04 requires that the owner “pay the expenses incurred” in order to redeem his animal. Further more EMC 6.04.110 gives SUPREME power to the shelter manger to decide law, & gives them discretion to use or abuse (as is the case here) at their whim, & to basically change the rules as they see fit.

The Everett Municipal Ordinances under Title 6 above do not include any language from which we could infer that the ordinances authorize officials to provide an opportunity for a hearing t o challenge the legality of the seizure, or the reasonableness of the boarding charge.

Finally, I would argue that RCW 16.52.085 et seq., which provides that a person whose property was seized with or without a warrant may “Petition” for its return in the District Court for the county in which the property was seized, gave the City of Everett authority to provide me with opportunity for notice of the seizure, my legal remedies, and right to petition for the animals return through a hearing to contest the seizure. This statute relates to the City’s seizure and/or disposal of animals seized on the basis of neglect. RCW 16.52.085 purports to establish procedural safeguards for the City’s determination of an owner’s rights in his pets.

Thus, state statute can be interpreted as requiring the City of Everett municipal ordinances to provide for notice and an opportunity for a hearing following seizure to determine defendant’s property interest in his seized animals, reasonableness of boarding charges, and possible termination of defendant’s property interest. However, the City of Everett ignored this procedure, denying defendant appropriate due process safeguards.

In this case, I am left with the conclusion that the City of Everett ordinances under Title 6.04 et. seq., under which my pets were seized and the information was filed, fails to require that animal owners be provided notice of seizure, his/her legal remedies concerning such a seizure, and an opportunity to “Petition” and have a hearing to determine ownership rights, boarding fees, condition of the pets at seizure and impound, whether the owner or a representative can adequately care for the animals, etc.

The City of Everett ordinances under EMC 6.04 et. seq., nowhere provide for a hearing to defendant regarding the lawfulness of seizure and impound of her pets. Nothing in these statutes legitimizes the City’s actions to deny my procedural due process safeguards. I have already claimed ownership of my seized pets and has vigorously contested the seizure under Washington State statutes by demanding a hearing – to no avail. Decisions construing the federal and state due process guarantees generally require that an individual receive notice and some form of hearing before he is deprived of his property or liberty. Fuentes v. Shevin, supra, 407 U.S. 67, 81-82, 92 S.Ct. 1983,1994-1995, 32 L.Ed.2d 556. The constitutionality of the Everett ordinance or statute justifying seizure rests upon its provision for notice of seizure and a prompt post-seizure hearing to defendant. I have filed NUMEROUS Motions to dismiss and petitions for the return of my pets, which have all been ignored even though I pointed out the Constitutional disparities in the Municipal Codes

The requirement for notice of seizure and a hearing cannot be implied from the Everett municipal ordinance. In fact, quite the contrary. Here the City of Everett Municipal ordinances do not provide for any pre- or post-seizure hearing, and there is no room to imply the necessity of notice and a hearing under its construction.

It is well established that the statute or ordinance itself must provide for notice and a hearing and that a gratuitous hearing does not cure a deficient law. Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027. Any hearing granted as a matter of discretion is no substitute for due process. ‘It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard.‘ ” Coe v. Armour Fertilizer Works, supra, 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027.

The rule is well settled that to constitute due process of law in regard to the taking of property, the statute or ordinance should give the parties interested some adequate remedy for the vindication of their rights. A provision in the statute or ordinance providing for notice of seizure, and the owner’s legal remedies after confiscation and a hearing, ensures that the response of the administrative entity will be a settled and uniform, and not an haphazard, procedure.

The City of Everett municipal ordinances under which my pets were seized is unconstitutional for failure to provide for notice, defendant’s legal remedies following a seizure of pets, and a hearing either before or after the seizure of pets pursuant to RCW 16.52.085 et seq. The ordinance in question here should end, “not with a bang but a whimper.” 1 The ordinances at issue for seizing and impounding animals are unconstitutional. I am entitled not only to the immediate return of my pets, but to dismissal of the information against me. Alternatively the search should be invalidated and any evidence derived from the search and seizure of her pets 1. See The Hollow Men (1925), with apologies to T.S. Eliot.

“In determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N. E. 519 [(1923)]. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits]..]’ State v. Carran, 133 Ohio St. 50, 11 N. E. 2d 245, 246 [(1937)].

The federal judiciary has many examples of jurists holding a constitutional view toward “The People’s” rights, as in Racine v. California, 342 US 165, 72 S.Ct. 205 (1952): There is no justification for the knowing and deliberate violation of the rights of individuals.” Art. XI, § 11 is a direct delegation of legislative power. Under article 11, section 11, cities have the right to enact ordinances prohibiting the same acts state law prohibits so long as the state enactment was not intended to be exclusive and the city ordinance does not conflict with the general law of the state. [City of] Bellingham v. Schampera,57 Wn.2d 106, 109, 356 P.2d 292, 92 A.L.R.2d 192 (1960). Thus, the ordinance must yield to a statute on the same subject either if the statute preempts the field, leaving no room for concurrent jurisdiction, Diamond Parking, Inc. v. [City of] Seattle, 78 Wn.2d 778, 781, 479 P.2d 47 (1971), or if a conflict exists such that the two cannot be harmonized. [City of] Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 730, 585 P.2d 784 (1978).

Brown, 116 Wn.2d at 559. Thus, an ordinance is not in conflict with general law for purposes of art. XI, § 11 unless (1) the state has expressly or impliedly preempted the field, or (2) the ordinance permits what state law forbids, or vice versa. The appeal presents four issues: whether the Ordinance (1) conflicts with RCW or various other “general laws.” such that it violates article XI, section 11 of the Washington Constitution;

(2) is an unreasonable exercise of City of Everett’s power;

(3) is violative of substantive due process; or

(4) is unconstitutionally vague. In essence, the trial court found that the Ordinance forbid an activity the statute impliedly allowed. “A law is a reasonable regulation if it promotes public safety, health or welfare and bears a reasonable and substantial relation to accomplishing the purpose pursued.” Montana, 129 Wn.2d at 592;

Const. art. XI, § II,«4» in that it conflicted with state law. Substantive Due Process [27] In the final prong of our analysis, we must examine whether the Ordinance violates substantive due process. We ask whether the enactment is “unduly oppressive.” This inquiry “lodges wide discretion in the court and implies a balancing of the public’s interest against those of the [person regulated].” Presbytery of Seattle v. King County, 114 Wn.2d 320, 331, 787 P.2d 907 (1990). The purpose of this analysis is to prevent excessive police power regulations that would require an individual ” ‘ to shoulder an economic burden, which in justice and fairness the public should rightfully bear.” Orion Corp. v. State, 109 Wn.2d 621, 648-49, 747 P.2d 1062 (1987); see also Guimont v. Clarke, 121 Wn.2d 586, 610-11, 854 P.2d 1 (1993); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 22, 829 P.2d 765 (1992); Robinson v. City of Seattle, 119 Wn.2d 34, 55, 830 P.2d 318 (1992). In Presbytery, we listed several nonexclusive factors relevant in determining whether an ordinance restricting property rights was unduly oppressive. These included “the nature of the harm sought to be avoided; the availability and effectiveness of less drastic protective measures; and the economic loss suffered by the property owner.” Presbytery, 114 Wn.2d at 331 (citing Orion Corp., 109 Wn.2d at 655 n.24).

In this context the entire EMC is unconstitutional overbroad and vague. “We will hold an ordinance to be unconstitutionally vague if a challenger demonstrates the ordinance either

(1) fails to define the criminal offense “with sufficient definiteness that ordinary people can understand what conduct is proscribed,” or

(2) does not provide “ascertainable standards of guilt to protect against arbitrary enforcement. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).

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