Relative Motion LLC, V. State Of Washington, Department Of Revenue ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
September 28, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RELATIVE MOTION, LLC, dba KITSAP No. 54464-4-II
CROSSFIT,
Appellant,
v.
DEPARTMENT OF REVENUE OF THE UNPUBLISHED OPINION
STATE OF WASHINGTON,
Respondent,
LEE C.J. — Relative Motion, LLC, dba Kitsap CrossFit, appeals the superior court’s order
granting summary judgment, which dismissed its tax refund action. Kitsap CrossFit argues that
the superior court erred in granting summary judgment because the statutory provision at issue and
its related regulation are unconstitutionally vague. Kitsap CrossFit also argues that the superior
court erred in granting summary judgment because reasonable minds can differ as to whether its
CrossFit classes were properly classified as “physical fitness services.”
We hold that Kitsap CrossFit’s unconstitutionally vague challenge fails because the statute
and regulation at issue do not require action or impose sanctions, provide fair notice, and do not
invite arbitrary enforcement. We also hold that the superior court did not err in granting summary
judgment because no genuine issue of material fact exists as to whether Kitsap CrossFit’s classes
were properly classified as “physical fitness services,” and the superior court did not err in
concluding that Kitsap CrossFit’s classes were “physical fitness services” as a matter of law.
Accordingly, we affirm the superior court’s order granting summary judgment.
No. 54464-4-II
FACTS
A. KITSAP CROSSFIT’S CLASSES
Kitsap CrossFit began operating as a licensed affiliate of CrossFit, Inc., in Poulsbo,
Washington, in 2009. As a licensed affiliate, Kitsap CrossFit provides its members with classes
on CrossFit, Inc.’s specialized approach to fitness and mastery of techniques. In order to
participate in its classes, Kitsap CrossFit requires members to sign a membership agreement.
Members also pay a monthly fee to attend classes, which varies based on how many classes per
week the member desires.
Kitsap CrossFit’s classes are taught at its own facility. As a requirement to teach CrossFit
classes, the instructors must be certified by CrossFit, Inc.
Kitsap CrossFit instructors employ a three-step method to implement the goals of CrossFit.
First, instructors teach a specific movement to members by demonstrating and breaking the
movement into simple steps. Second, instructors see the movement by evaluating the member’s
mechanics discussed in step one. Third, instructors correct the movement by identifying flaws and
instructing the member on how to fix it. This instructional methodology is important to ensure
members utilize proper form in executing movement and to prevent injury. This instructional
method is also used by Kitsap CrossFit’s instructors throughout a typical class.
Kitsap CrossFit’s curriculum provides three different classes depending on a member’s
abilities. The first class is for “all skills levels,” which is the “daily programming that anybody
could participate in.” Clerk’s Papers (CP) at 157. The second class is the “skills class,” which
focuses on common movements, isolating them, and “spend[ing] additional time learning
technique.” CP at 157. The third class is the “competitor’s class,” which is for advanced athletes.
2
No. 54464-4-II
CP at 157. In the competitor’s class, members are taught techniques which can be used in
competition. During the relevant tax period, the “all skills levels” class was the most frequently
offered class by Kitsap CrossFit. Members would generally attend Kitsap CrossFit’s classes three
to four times per week.
Prior to enrolling in one of Kitsap CrossFit’s classes, prospective members were required
to attend an introductory session. The instructors would inquire about the prospective member’s
goals in joining Kitsap CrossFit’s classes. Members joined with the goal of losing weight, getting
fit, learning new things, and overcoming fears. Members also joined for a source of consistent
exercise, to reduce stress, to develop strength, flexibility, and endurance, to adopt a healthier
lifestyle, to “do something besides running,” and to reduce body fat. CP at 537.
Kitsap CrossFit also required prospective members to attend a fundamentals course prior
to enrolling in one of the three classes. The fundamentals course consisted of three one-hour long
sessions which focused on mastering the nine foundational CrossFit movements. At the
fundamentals classes, one or two instructors would explain and demonstrate the movements to the
prospective members. The prospective members would then execute the movement with the
instructors employing the three-step methodology explained above. After completing the
fundamentals course, an individual is eligible to enroll in one of Kitsap CrossFit’s CrossFit classes.
Every CrossFit class is taught according to a written lesson plan with specific exercises
that are the focus for that day’s instruction. The typical CrossFit class includes a warmup exercise,
a skills portion, a “workout of the day,” and a cool down exercise. CP at 168. In the warmup
portion of a typical lesson, instructors discuss the rationale behind the movements being taught
that day.
3
No. 54464-4-II
During the skills portion, an instructor would first demonstrate a specific movement to
attending members. The members would replicate the movement and the instructors would “walk
around and individually watch and instruct and cue each of the members of the class.” CP at 173.
For example, if members were learning how to perform a “clean,” they would first learn on a PVC
pipe. CP at 172. Then members would perform the movement on a light barbell under the
instructor’s direction. The instructor would observe to ensure members “are doing each movement
under instruction and progressing to where they need to be for that skill.” CP at 173.
After the skills portion, the members would go through the “workout of the day.” CP at
173. The “workout of the day” is a group activity. During the “workout of the day,” “[e]veryone
is doing the same thing . . . at the same time.” CP at 174. The “workout of the day” is also a timed
activity. There is a list of specific exercises prescribed during the “workout of the day” and
members would have 20 minutes to “get as much work done as possible.” CP at 174. “[M]embers
write down what they are doing, and they track their performance” during the workout. CP at 174.
Amy Hollingsworth, the co-owner of Kitsap CrossFit, described the “workout of the day” as the
“program to work out that we do in every single class.” CP at 170. Members even called the
“workout of the day” “the actual workout” and described its goal as to “improve our functional
fitness.” CP at 479, 629.
Kitsap CrossFit provided its members with a variety of exercise equipment for its CrossFit
classes.1 Kitsap CrossFit provided barbells, free weights, and squat racks, which were used to
perform “big lifts” such as the snatch, clean and jerk, dead lift, back squat, and bench press. CP
1
During the relevant tax period, Kitsap CrossFit did not offer open gym times or open access to
its gym equipment.
4
No. 54464-4-II
at 135. Kitsap CrossFit also provided kettlebells, which were used for swings and farmer’s carries.
Kitsap CrossFit also provided rowing machines, which were used for cardio and metabolic
training. A pull-up rig, which is “a big rig where people can hang and do pull-ups” and perform
“a variety of gymnastic movements,” was also provided. CP at 136. Additionally, medicine balls,
boxes for box jumps, and ropes for rope climbs, were provided.
Members stated that instruction is the primary benefit of Kitsap CrossFit’s classes and that
fitness is a secondary benefit. Members based their opinion on the fact that the philosophy of
CrossFit is to ensure “people are getting the proper instruction in technique body position and
movement.” CP at 590.
B. CROSSFIT IS DESCRIBED AS A PHYSICAL FITNESS PROGRAM
The description, methodology, and goal of CrossFit Inc.’s fitness program is explained in
the CrossFit Training Guide. CrossFit is described as a “core strength and conditioning program.”
CP at 305. CrossFit aims to “forge a broad, general, and inclusive fitness” based on “constantly
varied, high-intensity, functional movement.” CP at 300. To achieve the goal of “broad, general,
and inclusive fitness,” CrossFit emphasizes three key standards. The first standard announces
competence in ten general physical skills: cardiovascular and respiratory endurance, stamina,
strength, flexibility, power, coordination, agility, balance, and accuracy. The second standard is
the ability to perform all ten physical skills in constantly changing combinations. The third
standard is competency in metabolic conditioning through high, moderate, and low-powered
activities. Members also describe CrossFit as a method of exercise designed to improve strength,
flexibility, and mobility.
5
No. 54464-4-II
Under its Affiliate Agreement with CrossFit, Inc., Kitsap CrossFit agreed that “CrossFit
provides a fitness program for strength and conditioning.” CP at 260. Specifically, Kitsap
CrossFit could use the CrossFit name only “in connection with certain fitness, strength and
conditioning training, nutritional practices and related services consistent with the principles of
CrossFit.” CP at 261 (emphasis added).
Kitsap CrossFit’s membership agreement includes a liability release form. In relevant part,
the liability release form states that the “programs purchased hereunder includes participation in
strenuous physical activities, including, but not limited to, running, weight training, stationary
bicycling, gymnastic movements, various aerobic conditioning machinery and various nutritional
programs offered by Kitsap CrossFit (the ‘physical activities’).” CP at 284 (emphasis omitted).
Kitsap CrossFit required members to complete a Physical Activity Readiness
Questionnaire/Waiver form prior to enrolling in classes. The form emphasized the risks of
physical training and repeatedly described Kitsap CrossFit’s classes as a fitness and exercise
program. Specifically, the form stated in relevant part that
I willingly assume full responsibility for any and all risks that I am exposing myself
to as a result of my participation in Kitsap CrossFit programs/classes and accept
full responsibility for any injury or death that may result from participation in any
activity, class or physical fitness program. I hereby certify that I know of no
medical problems that would increase my risk of illness and injury as a result of
participation in a fitness program designed by Kitsap CrossFit.
CP at 287 (emphasis added). The form also stated that “[b]y signing this document, I acknowledge
that I have voluntarily chosen to participate in a program of progressive, physical exercise” and “I
acknowledge being informed of the strenuous nature of the program.” CP at 287 (emphasis added).
6
No. 54464-4-II
C. ADMINISTRATIVE APPEAL
In April 2013, Kitsap CrossFit filed an amended tax return with the Department of Revenue
(DOR), requesting a tax credit because it had inadvertently reported under the retailing
classification during the fourth quarter of the 2012 tax season. The DOR requested additional
information from Kitsap CrossFit, including a description of its business activities, income it had
reported under the retailing classification, and a copy of its membership agreement. In addition to
the materials Kitsap CrossFit provided, the DOR also reviewed Kitsap CrossFit’s website and past
tax returns.
The DOR performed a desk examination of Kitsap CrossFit’s account for the period of
October 1, 2009, through September 30, 2013. The DOR concluded that Kitsap CrossFit’s classes
constituted physical fitness services and were therefore retail sales under Washington’s business
and occupation (B&O) tax statute. Accordingly, the DOR issued a tax assessment against Kitsap
CrossFit for $51,810.00 for tax period at issue. The DOR also issued an additional tax assessment
totaling $5,630.37 for the last quarter of 2013.
Kitsap CrossFit appealed the DOR’s tax assessment through the DOR’s administrative
review process, which was upheld. Kitsap CrossFit appealed the determination to the Board of
Tax Appeals. Found. Kitsap CrossFit, LLC, dba Kitsap CrossFit, v. Dep’t of Revenue, Nos. 88703
(Wash. Bd. of Tax Appeals Aug. 2, 2019). On August 2, 2019, the Board of Tax Appeals affirmed
the tax assessment. Id.
D. TAX REFUND ACTION
On April 22, 2015, Kitsap CrossFit paid the tax assessment for the period between October
2009 and September 2013, in the amount of $57,906.95, including penalties and interest. And on
7
No. 54464-4-II
June 23, 2017, Kitsap CrossFit paid the tax assessment for the fourth quarter of 2013 in the amount
of $5,630.37, including penalties and interest. Kitsap CrossFit then filed this tax refund action in
Thurston County Superior Court under RCW 82.32.180.2
Kitsap CrossFit and the DOR filed cross motions for summary judgment. Both parties
moved for summary judgment on the issue of whether former RCW 82.04.050(3)(g) (2008) and
former WAC 458-20-183(2)(1) (2009) were unconstitutionally vague. The DOR argued that the
statute and regulation are not subject to a vagueness challenge because they do not prohibit conduct
or impose sanctions. In the alternative, the DOR argued that the statute and regulation were not
unconstitutionally vague because the provisions provide fair notice and adequate standards to
protect against arbitrary enforcement. Kitsap CrossFit argued that the term “physical fitness
services” in the statute and its definition under the regulation are unconstitutionally vague. Kitsap
CrossFit asserted that the statute and regulation do not give fair notice as to what constitutes a
“physical fitness service.” Kitsap CrossFit also asserted that the statute and regulation do not
prevent arbitrary enforcement..
The DOR also moved for summary judgment on the issue of whether Kitsap CrossFit’s
classes were properly classified as “physical fitness services,” which are subject to the retail sales
tax. The DOR argued that Kitsap CrossFit’s classes qualified as “physical fitness services” under
the statute’s plain language, the regulation, and related excise tax advisories. In response, Kitsap
CrossFit argued that the superior court should find the phrase “physical fitness services”
2
RCW 82.32.180 provides that “[a]ny person . . . having paid any tax as required and feeling
aggrieved by the amount of the tax may appeal to the superior court of Thurston county . . . . In
the appeal the taxpayer shall set forth the amount of the tax imposed upon the taxpayer which the
taxpayer concedes to be the correct tax and the reason why the tax should be reduced or abated.”
8
No. 54464-4-II
ambiguous and construe it strongly against the DOR. Kitsap CrossFit contended that the facts
heavily favored instruction over fitness and therefore did not qualify as “physical fitness services”
under the statute and regulation. Kitsap CrossFit also argued that the DOR should be equitably
estopped3 from “changing its definition of ‘physical fitness services’ for the tax period.” CP at
1357.
The superior court denied Kitsap CrossFit’s motion for partial summary judgment, granted
the DOR’s motion for summary judgment, and dismissed Kitsap CrossFit’s tax refund action. In
issuing its ruling, the superior court “adopt[ed] many of the rationales the [DOR] put forth.”
Verbatim Report of Proceedings at 47.
Kitsap CrossFit appeals.
ANALYSIS
A. UNCONSTITUTIONAL VAGUENESS CHALLENGE
Kitsap CrossFit argues that the statutory and regulatory scheme defining “physical fitness
services” is unconstitutionally vague. We disagree.
1. Legal Principles
a. Constitutional vagueness
Under the Fourteenth Amendment to the United States Constitution, a statute may be void
for vagueness if it is framed in terms so vague that persons of common intelligence must guess at
its meaning and cannot agree on its application. Voters Educ. Comm. v. Pub. Disclosure Comm'n,
161 Wn.2d 470, 484, 166 P.3d 1174 (2007), cert. denied, 553 U.S. 1079 (2008). The doctrine has
3
On appeal, Kitsap CrossFit does not assign error related to equitable estoppel and only mentions
equitable estoppel in passing.
9
No. 54464-4-II
two goals: (1) to provide fair notice as to what conduct is proscribed and (2) to protect against
arbitrary enforcement. State v. Evergreen Freedom Found., 192 Wn.2d 782, 797, 432 P.3d 805,
cert. denied, 139 S. Ct. 2647 (2019). An unconstitutionally vague challenge, however, only applies
to statutes and regulations that prohibit certain types of conduct and impose sanctions for violation
of their standards. Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 465, 722 P.2d 808 (1986);
Natural Resources v. Thurston County, 92 Wn.2d 656, 667, 601 P.2d 494 (1979), , cert. denied,
449 U.S. 830 (1980).
We review whether a statute or administrative rule is unconstitutionally vague de novo.
See Campbell v. Tacoma Public Schools, 192 Wn. App. 874, 882, 370 P.3d 33, review denied, 186
Wn.2d 1015 (2016). “We have a duty to construe an administrative rule or statute to avoid
constitutional questions where such construction is reasonably possible.” Id. at 883. “When
construing an undefined term in a rule, we give the term its ordinary, common, everyday meaning.”
Id.
In construing a statute, we look at the entire context of the statute where the provision is
found, related provisions, amendments to the provision, and the statutory scheme as a whole.
Evergreen Freedom Found., 192 Wn.2d at 789. A statute is not invalid simply because it could
have been drafted with greater precision. Am. Legion Post #149 v. Dep’t of Health, 164 Wn.2d
570, 613, 192 P.3d 306 (2008). A statute's language is sufficiently clear when it provides explicit
standards for those who apply them and provides a person of ordinary intelligence a reasonable
opportunity to know what is prohibited. See Voters Educ. Comm., 161 Wn.2d at 488.
Statutes are presumed to be constitutional. Id. at 481. The party asserting that a statute is
unconstitutionally vague must prove its vagueness beyond a reasonable doubt. Id. The asserting
10
No. 54464-4-II
party may allege that a statute is either facially invalid or invalid as applied. See Am. Legion, 164
Wn.2d at 612. “In an as applied challenge, the statute must be considered in light of the facts of
the specific case before the court.” Evergreen, 192 Wn.2d at 796.
b. Statutory and regulatory scheme
“Washington imposes a B&O tax on persons engaged in the business of making ‘sales at
retail’ in this state.” Gartner, Inc. v. Dep’t of Revenue, 11 Wn. App. 2d 765, 774, 455 P.3d 1179(2020); RCW 82.04.250(1). “The retail sales tax is to be collected by the seller on each “retail
sale” in this state.” Gartner, 11 Wn. App. 2d at 774; RCW 82.08.050(1). During the relevant tax
period, the term “retail sale” included “the sale of or charge made for personal, business, or
professional services . . . received by persons engaging in . . . [p]hysical fitness services.” Former
RCW 82.04.050(3)(g) (2007).
The term “physical fitness services” is not further defined by the statute. See former RCW
82.04.050. The term is, however, defined by a DOR regulation which provides that
“[p]hysical fitness services” include, but are not limited to: All exercise classes,
whether aerobic, dance, water, jazzercise, etc., providing running tracks, weight
lifting, weight training, use of exercise equipment, such as treadmills, bicycles,
stair-masters and rowing machines, and providing personal trainers (i.e., a person
who assesses an individual’s workout needs and tailors a physical fitness workout
program to meet those individual needs).
Former WAC 458-20-183(2)(l) (2009) (Former Rule 183). Former Rule 183 also recognized
instructional lessons as a category of activities not included as physical fitness activities:
“Physical fitness services” do not include instructional lessons such as those for
self-defense, martial arts, yoga, and stress-management. Nor do these services
include instructional lessons for activities such as tennis, golf, swimming, etc.
“Instructional lessons” can be distinguished from “exercise classes” in that
instruction in the activity is the primary focus in the former and exercise is the
primary focus in the latter.
11
No. 54464-4-II
Former Rule 183.
2. Neither Statute nor Regulation Are Unconstitutionally Vague
Here, neither former RCW 82.04.050(3)(g) nor Former Rule 183 prohibit any conduct.
The statute and regulation at issue also did not impose sanctions or penalize taxpayers. See Ass’n
of Wash. Bus. v. Dep’t of Revenue, 155 Wn.2d 430, 447, 120 P.3d 46 (2005) (“The public cannot
be penalized or sanctioned for breaking [DOR interpretive rules].”). Rather, Former Rule 183
conferred the benefit of a retail sales tax exemption to taxpayers who fell within its narrowly
defined scope. To the extent that Kitsap CrossFit argues that the tax assessment against it included
a penalty, neither the language of former RCW 82.04.050(3)(g) nor Former Rule 183 impose any
penalty. Because statute and regulation at issue do not prohibit taxpayers to act a certain way or
impose sanctions, it is not the proper subject of a constitutional vagueness challenge. See Hi-Starr,
106 Wn.2d at 465.
Moreover, any vagueness challenge fails because the statutory and regulatory scheme
defining “physical fitness services” is not unconstitutionally vague.
a. Former Rule 183 provided fair notice
Kitsap CrossFit argues that statutory and regulatory scheme is unconstitutionally vague
because it does not provide a person of ordinary intelligence fair notice that CrossFit constitutes a
“physical fitness service.” We disagree.
Although “physical fitness services” is not statutorily defined, Former Rule 183 states that
“‘physical fitness services’ include, but are not limited to: All exercise classes, whether aerobic,
dance, water, jazzercise, etc.” Former Rule 183(emphasis added). “[I]n both normal English usage
12
No. 54464-4-II
and textual decision-making, the word include does not ordinarily introduce an exhaustive list.”
State v. S.G., 11 Wn. App. 2d 74, 78–79, 451 P.3d 726 (2019). Because “exercise classes” is not
further defined by the regulation, we must give the phrase its ordinary meaning. Campbell, 192
Wn. App. at 883. “Exercise” is defined as “bodily exertion for the sake of developing and
maintaining physical fitness.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 795 (2002).
“Class” is defined as “a course of instruction.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY at 416 (2002). Taken together, the ordinary, everyday meaning of “exercise class”
means a course of instruction for the sake of developing and maintaining physical fitness.
Here, Former Rule 183 gives people of common intelligence fair notice that the term
“physical fitness services” applies to Kitsap CrossFit’s classes because they fall within the plain
meaning of “all exercise classes.” Members joined Kitsap CrossFit’s classes with the goal of
losing weight and getting fit. Members also joined for a source of consistent exercise, to reduce
stress, to develop strength, flexibility, and endurance, to adopt a healthier lifestyle, and to reduce
body fat. The evidence also demonstrates that Kitsap CrossFit employed instructors to teach
CrossFit techniques to its members in order to meet these goals. Because Kitsap CrossFit’s classes
fall within the broad definition of “all exercise classes,” a person of common intelligence would
have fair notice that Kitsap CrossFit’s classes constitute a “physical fitness service” under the
regulatory definition.
Also, Former Rule 183 specifically identified “weight training, weight lifting, [and] use of
exercise equipment” as activities that fall within the definition of “physical fitness services.” Here,
Kitsap CrossFit offered its members access to weight training, weight lifting, and exercise
equipment in its classes. Such equipment included barbells, free weights, kettlebells, medicine
13
No. 54464-4-II
balls, rowing machines, a pull up rig, squat racks, boxes, and ropes. Furthermore, Kitsap
CrossFit’s membership agreement described its CrossFit services to include weight training.
Given the services that Kitsap CrossFit provided to its members, a person of common intelligence
would have fair notice that Kitsap CrossFit’s classes fall within the regulatory definition of
“physical fitness services.” Accordingly, Kitsap CrossFit’s unconstitutionally vague challenge
fails.
b. Former Rule 183 did not invite arbitrary enforcement
Kitsap CrossFit argues that Former Rule 183 is unconstitutionally vague because it did not
have sufficiently clear standards to prevent subjective, arbitrary enforcement. We disagree.
As discussed above, a statute or regulation must be sufficiently clear by providing explicit
standards to prevent arbitrary enforcement. See Voters Educ. Comm., 161 Wn.2d at 488, 502. In
State v. Wallmuller, our Supreme Court addressed whether a community custody condition which
prohibited a defendant from frequenting “places where children congregate” was
unconstitutionally vague. 194 Wn.2d 234, 236, 245, 449 P.3d 619 (2019). The community
custody condition at issue provided that “‘[t]he defendant shall not loiter in nor frequent places
where children congregate such as parks, video arcades, campgrounds, and shopping malls.’” Id.
at 237 (emphasis added). The court held the condition was not unconstitutionally vague because
the phrase “places where children congregate” was followed by an illustrative, non-exhaustive list.
Id. at 244-45.
Here, Former Rule 183 states that “physical fitness services” “include, but are not limited
to: All exercise classes.” Former Rule 183 (emphasis added). Following the phrase “all exercise
classes” is an illustrative, non-exhaustive list of examples of “exercise classes.” Former Rule 183.
14
No. 54464-4-II
Because illustrative and non-exhaustive lists following a broad term provide sufficiently clear
standards to foreclose a constitutional vagueness challenge, Former Rule 183 did not invite
subjective and arbitrary enforcement. See Wallmuller, 194 Wn.2d at 244-45.
The statutory and regulatory scheme defining “physical fitness services” is not
unconstitutionally vague. Thus, Kitsap CrossFit’s unconstitutional vagueness challenge fails.
B. KITSAP CROSSFIT’S CLASSES ARE “PHYSICAL FITNESS SERVICES”
Kitsap CrossFit argues the superior court erred in granting summary judgment, which
dismissed its tax refund action. We disagree.
1. Legal Principles
This matter is on review of a summary judgment decision. A grant of summary judgment
is reviewed de novo, and we engage in the same inquiry as the trial court. Wash. Imaging Servs.,
LLC v. Dep’t of Revenue, 171 Wn.2d 548, 555, 252 P.3d 885 (2011). Summary judgment is proper
if there are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id.; CR 56(c). Where there are no disputed issues of material fact and the issue is
how the B&O tax statutes and regulations apply to the facts of the case, we treat the issue as a
question of law, which is reviewed de novo. Wash. Imaging, 171 Wn.2d at 555. “[S]ummary
judgment should be granted in favor of the moving party only if reasonable minds could reach but
one conclusion from all the evidence.” Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d
439, 452, 842 P.2d 956 (1993).
This matter also involves an issue of statutory interpretation, which we review de novo.
Matter of Dependency of E.M., 197 Wn.2d 492, 499, 484 P.3d 461 (2021). The primary goal of
statutory interpretation is to determine and implement the legislature’s intent. Tesoro Ref. & Mktg.
15
No. 54464-4-II
Co. v. Dep’t of Revenue, 173 Wn.2d 551, 556, 269 P.3d 1013 (2012). To determine the
legislature’s intent, this court first looks to the plain language of the statute to discern its plain
meaning. Id. If the plain language of the statute is subject only to one interpretation, it is
unambiguous and this court will give effect to the statute’s plain meaning as an expression of
legislative intent. Id.; Skagit County Pub. Hosp. Dist. No. 1 v. Dep’t of Revenue, 158 Wn. App.
426, 437, 242 P.3d 909 (2010).
“‘[A]n undefined term should be given its plain and ordinary meaning unless a contrary
legislative intent is indicated.’” Solvay Chemicals, Inc. v. Dep’t of Revenue, 4 Wn. App. 2d 918,
926, 424 P.3d 1238 (2018) (quoting In re Dependency of A.P., 177 Wn. App. 871, 877, 312 P.3d
1013 (2013), review denied, 179 Wn.2d 1026 (2014)). To determine the plain meaning of an
undefined term, we look to the dictionary. HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444,
451, 210 P.3d 297 (2009). We also consider how a statutory term is commonly understood. See
Bowie v. Dep't of Revenue, 171 Wn.2d 1, 12-13, 248 P.3d 504 (2011). “‘[E]ach word of a statute
is to be accorded meaning.’” HomeStreet, 166 Wn.2d at 452 (quoting State ex rel. Schillberg v.
Barnett, 79 Wn.2d 578, 584, 488 P.2d 255 (1971)).
In Washington, persons who charge for services defined as retail sales are required to
collect and remit retail sales tax, and pay retailing B&O tax. See RCW 82.08.020(1); RCW
82.08.050(1), (2); RCW 82.04.250(1). In contrast, persons who charge for services not otherwise
classified for B&O tax purposes, pay service and other activities B&O tax and are not required to
collect and remit retail sales tax on those receipts. See RCW 82.04.290(2)(a), (b).
“Washington imposes a B&O tax on persons engaged in the business of making ‘sales at
retail.’” Gartner, 11 Wn. App. 2d at 774; RCW 82.04.250(1). “The retail sales tax is to be
16
No. 54464-4-II
collected by the seller on each “retail sale” in this state.” Gartner, 11 Wn. App. 2d at 774; RCW
82.08.050(1). During the relevant tax period, the term “retail sale” included “the sale of or charge
made for personal, business, or professional services . . . received by persons engaging in . . .
[p]hysical fitness services.” Former RCW 82.04.050(3)(g).
As noted above, the term “physical fitness services” is not further defined in the statute but
is defined in Former Rule 183. See former RCW 82.04.050(3)(g); Former Rule 183.
2. Kitsap CrossFit Provided Physical Fitness Services Under Statute’s Plain Meaning
Kitsap CrossFit argues that the superior court erred in concluding that former RCW
82.04.050(3)(g) is unambiguous. We disagree.
As discussed above, when conducting a plain language analysis, each word in a statute
must be accorded meaning. HomeStreet, Inc., 166 Wn.2d at 452. This court also considers how a
statutory term is commonly understood. Bowie, 171 Wn.2d at 12-13. The dictionary defines the
adjective “physical” as “of or relating to the body <~ strength>.” WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY at 1706 (2002). “Fitness” is defined as “the quality or state of being
fit or fitted.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 860 (2002). The noun
“services” is defined as “action or use that furthers some end or purpose : conduct or performance
that assists or benefits someone or something : deeds useful or instrumental toward some object .
. . professional or other useful ministrations . . . supply of needs.” WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY at 2075 (2002). Taken together, the plain language of “physical
fitness services” under former RCW 82.04.050(3)(g) means any action, conduct, or deed that
assists, benefits, or is useful to someone making their body fit.
17
No. 54464-4-II
Here, Kitsap CrossFit contends that the phrase “physical fitness services” is ambiguous
and should be interpreted in their favor. But Kitsap CrossFit offers no other reasonable
interpretation of the phrase “physical fitness services.” Instead, Kitsap CrossFit contends that we
should find the phrase ambiguous because the DOR has offered multiple, changing interpretations
of the phrase “physical fitness services” in this litigation. Specifically, Kitsap CrossFit contends
that the DOR’s plain language argument and alternative argument under the regulatory definition
are evidence of ambiguity. But Kitsap CrossFit fails to demonstrate how the DOR’s interpretations
of “physical fitness services” under the statute and regulation are inconsistent such that they create
an ambiguity. Because Kitsap CrossFit fails to demonstrate that the phrase “physical fitness
services” is subject to more than one reasonable interpretation, this court should hold that “physical
fitness services” is unambiguous. See Tesoro, 173 Wn.2d at 556. Accordingly, we apply the plain
meaning of “physical fitness services” discussed above.
Here, in determining whether Kitsap CrossFit’s services fit under the classification of
“physical fitness services,” the undisputed evidence demonstrates that Kitsap CrossFit is self-
described as a program to help achieve physical fitness. For example, under the affiliate
agreement, Kitsap CrossFit agreed to use the CrossFit name only “in connection with certain
fitness, strength and conditioning training, nutritional practices and related services consistent
with the principles of CrossFit.” CP at 261 (emphasis added). Additionally, the CrossFit Training
Guide describes CrossFit as a “core strength and conditioning program.” CP at 305. Even the
waiver form described CrossFit as a program of “progressive, physical exercise.” CP at 287.
The evidence also demonstrates that members attended Kitsap CrossFit’s classes to
improve their physical fitness. Specifically, members joined Kitsap CrossFit for the purpose of
18
No. 54464-4-II
losing weight and getting fit. Members also joined Kitsap CrossFit classes for a consistent source
of exercise and to develop strength, flexibility, and endurance. In fact, members attended Kitsap
CrossFit’s classes multiple times per week, with the recommended frequency depending on their
individual fitness goals.
Moreover, the undisputed evidence demonstrates that Kitsap CrossFit provided instructors
for its classes. Throughout a typical class, Kitsap CrossFit’s instructors would guide and coach
members in proper technique for the various exercises performed during the class.
Kitsap CrossFit’s classes meet the plain meaning of “physical fitness services” because
those classes involved action, conduct, or deeds that assisted, benefitted, or were useful to
members in making their body fit. And because “physical fitness services” are subject to retail
sales tax, the superior court did not err in denying Kitsap CrossFit’s tax refund request under the
statute’s plain language and granting summary judgment.
3. Kitsap CrossFit Provided “Physical Fitness Services” Under the Regulation and
Excise Tax Advisories
Kitsap CrossFit argues that the superior court erred in granting summary judgment because
“there were facts from which a reasonable factfinder could infer that the primary focus of Kitsap’s
lessons was instruction.” Br. of Appellant at 38. We disagree.
We give “‘great weight to the statutory interpretation laid down by the executive agency
charged with [a statute's] enforcement.’” Solvay Chemicals, 4 Wn. App. 2d at 927 (quoting
Blueshield v. Office of Ins. Comm'r, 131 Wn. App. 639, 646, 128 P.3d 640 (2006)). However, the
“agency's interpretation is not conclusive because ‘it is ultimately for the court to determine the
purpose and meaning of statutes, even when the court's interpretation is contrary to that of the
19
No. 54464-4-II
agency charged with carrying out the law.’” Puget Sound Med. Supply v. Dep't of Soc. & Health
Servs., 156 Wn. App. 364, 369, 234 P.3d 246 (2010) (quoting Overton v. Econ. Assistance Auth.,
96 Wn.2d 552, 555, 637 P.2d 652 (1981)). “We apply normal rules of statutory construction to
administrative rules and regulations.” Solvay Chemicals, 4 Wn. App. 2d at 927.
As discussed above, Former Rule 183 defines “physical fitness services” as including, but
not limited to: “All exercise classes, whether aerobic, dance, water, jazzercise, etc., providing
running tracks, weight lifting, weight training, use of exercise equipment, such as treadmills,
bicycles, stair-masters and rowing machines, and providing personal trainers.” (Emphasis added).
But it also states that “‘[p]hysical fitness services’ do not include instructional lessons such as
those for self-defense, martial arts, yoga, and stress-management. Nor do these services include
instructional lessons for activities such as tennis, golf, swimming, etc.” Former Rule 183. Former
Rule 183 further states that “‘[i]nstructional lessons’ can be distinguished from ‘exercise classes’
in that instruction in the activity is the primary focus in the former and exercise is the primary
focus in the latter.”
The term “exercise classes” is not further defined by the regulation; therefore, we must
give the phrase its ordinary meaning. Campbell, 192 Wn. App. at 883. “Exercise” is defined as
“bodily exertion for the sake of developing and maintaining physical fitness.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY at 795 (2002). “Class” is defined as “a course of instruction.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 416 (2002). Taken together, the ordinary,
everyday meaning of “exercise class” means a course of instruction for the sake of developing and
maintaining physical fitness.
20
No. 54464-4-II
The DOR also issued Excise Tax Advisory 3104.2009 (ETA 3104), which further clarified
the distinction between “physical fitness services” and “instructional lessons.” Excise tax
advisories are interpretive statements authorized by RCW 34.05.230. DOR has authority to adopt
interpretive regulations; however, they are not binding on reviewing courts. Ass'n of Wash. Bus.,
155 Wn.2d at 445, 447. Unlike legislative rules, interpretive rules “are afforded no deference other
than the power of persuasion.” Id. at 447.
ETA 3104 provides that
Physical fitness services also include but are not limited to:
• Providing access to equipment or facilities at which a person can engage in
physical fitness activities;
• Conducting an exercise class at which someone leads a group of persons
through a physical fitness routine or regimen. These classes may or may
not involve a specialized exercise or conditioning program such as Body
Pump, Jazzercise, Pilates, Power Sculpting, and Neuromuscular Integrative
Action ("Nia"); and
• Providing one-on-one personal training services to assess individual
workout needs and/or tailor a physical workout program to meet those
individual needs.
CP at 911-912.
ETA 3104 further provides specific examples of when the primary focus of an activity is exercise:
[I]t is likely that some varying degree of instruction or guidance will be provided
to the participant. As examples:
• A person who is working out in a weight room may ask an employee of the
facility for tips on the proper use of a particular apparatus;
• A person leading an exercise class often demonstrates proper techniques for
various movements used in the class; and
• Personal trainers demonstrate and provide guidance as to proper weight-
lifting techniques.
In such cases, however, the instruction or guidance is not the primary focus. The
primary focus is for the participant to improve or maintain his or her general fitness,
21
No. 54464-4-II
strength, flexibility, conditioning, and/or health. Such instruction or guidance does
not in itself result in that service being an "instructional lesson" subject to the
service and other activities B&O tax.
CP at 912.
ETA 3104 includes the following characteristics as indicative of instructional lessons:
teaching the participant how to perform certain activities, generally following a
specific curriculum that includes the study of the underlying philosophy of the
activity . . . the participant obtaining certification as a physical fitness trainer or
group fitness instructor, or mastery of the techniques and philosophy with possible
advancement in levels of achievement.
CP at 912.
In contrast, “[i]f the class or activity is primarily to improve flexibility, strength, or general fitness
for the participant, the charge for participation is a retail sale.” CP at 912 (ETA 3104).
Here, Kitsap CrossFit’s classes meet the plain meaning of “exercise classes” under Former
Rule 183. There is no dispute that Kitsap CrossFit provided a curriculum of instruction for their
members during the relevant tax period. There is also no dispute that members described CrossFit
as a method of exercising designed to improve strength, flexibility, and mobility. Even the
CrossFit Training Guide described CrossFit as a “core strength and conditioning program,” which
aims to “forge a broad, general, and inclusive fitness.” CP at 305, 300. The record also repeatedly
demonstrates that members joined Kitsap CrossFit for the purpose of losing weight, to get fit, to
have a source of consistent exercise, to develop strength, flexibility, and endurance, to adopt a
healthier lifestyle, and to reduce body fat.
Because the record shows that Kitsap CrossFit’s classes were a course of instruction for
the sake of developing or maintaining physical fitness, no reasonable factfinder can conclude that
Kitsap CrossFit’s classes are not “exercise classes.” See Our Lady of Lourdes Hosp., 120 Wn.2d
22No. 54464-4-II
at 452. And because Kitsap CrossFit’s classes are “exercise classes,” they constitute “physical
fitness services” under Former Rule 183.
Additionally, Kitsap CrossFit’s classes constitute “physical fitness services” under Former
Rule 183 because they provided “weight lifting, weight training, [and] use of exercise equipment”
in their classes. For example, Kitsap CrossFit provided barbells, squat racks, kettlebells, rowing
machines, a pull up rig, medicine balls, boxes for box jumps, and ropes for rope climbs. Because
Former Rule 183 states that providing “weight lifting, weight training, [and] use of exercise
equipment” fall within the definition of “physical fitness services,” and because Kitsap CrossFit
provided such equipment in its classes, no reasonable factfinder could conclude that Kitsap
CrossFit did not provide “physical fitness services” within the meaning of the regulatory
definition. See Our Lady of Lourdes Hosp., 120 Wn.2d at 452.
Kitsap CrossFit advances several other arguments as to why summary judgment was
improper. First, Kitsap CrossFit argues that the superior court erred in granting summary judgment
because genuine issues of material fact remain as to whether the primary focus of its classes were
“instructional.” We disagree.
Here, Kitsap CrossFit relies on witness testimony and declarations that baldly assert
CrossFit is primarily an instructional activity in order to create a genuine dispute of material fact.
But a party must present more than “‘[u]ltimate facts’” or conclusory statements in order to defeat
summary judgment. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014) (quoting
Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Because the
issue of whether Kitsap CrossFit’s classes were “instructional” is the ultimate fact to be decided,
23
No. 54464-4-II
the declarations submitted by Kitsap CrossFit are insufficient to create a genuine issue of material
fact to defeat summary judgment. See id.Next, Kitsap CrossFit argues that reasonable minds can differ as to whether the primary
focus of its classes were instructional because its classes are taught at a standalone facility
dedicated to CrossFit, which is indicative of an “instructional lesson.” We disagree.
Kitsap CrossFit’s argument relies on the language of Excise Tax Advisory 3003.2009
(ETA 3003), which “explain[ed] the tax reporting responsibilities of persons providing Yoga, Tai
Chi, and Qi Gong classes.” CP at 908. But ETA 3003 is directed to persons providing yoga, tai
chi, and qi gong classes, not CrossFit classes. See CP at 908 (ETA 3003) (“The purpose of this
excise tax advisory is to explain the tax reporting responsibilities of persons providing Yoga, Tai
Chi, and Qi Gong classes.”). Because ETA 3003 limits its applicability to the tax reporting
responsibilities of persons providing yoga, tai chi, and qi gong, we are not persuaded by Kitsap
CrossFit’s argument.
Kitsap CrossFit also argues that reasonable minds can differ as to whether the primary
focus of its classes are instructional because its classes consist of a “‘specific curriculum that
includes the study of the underlying philosophy of the activity.’” Br. of Appellant at 44. Kitsap
CrossFit further argues that reasonable minds can differ on whether its classes are instructional in
nature because of the fact that it “provides two programs designed to help its students obtain
certification as CrossFit instructors” and “every lesson aims to teach mastery of CrossFit
techniques [which] includes instruction in the underlying philosophy.” Br. of Appellant at 46, 47.
We disagree with both arguments.
Kitsap CrossFit’s argument relies on a portion of ETA 3104 which states that
24
No. 54464-4-II
[i]nstructional lessons for activities such as Body Pump and Pilates are generally
characterized as teaching the participant how to perform certain activities, generally
following a specific curriculum that includes the study of the underlying philosophy
of the activity. The purpose of the instruction includes the participant obtaining
certification as a physical fitness trainer or group fitness instructor, or mastery of
the techniques and philosophy with possible advancement in levels of achievement
usually associated with martial arts.
CP at 912.
Kitsap CrossFit’s reliance on the above quoted language is unpersuasive because it ignores the rest
of ETA 3104. See Cannabis Action Coal. v. City of Kent, 180 Wn. App. 455, 477, 322 P.3d 1246(2014) (“[this court] construe[s] an act as a whole, giving effect to all the language used.”) (quoting
C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 708, 985 P.2d 262 (1999)), aff’d,
183 Wn.2d 219 (2015).
ETA 3104 specifically contemplates “that some varying degree of instruction or guidance
will be provided to the participant.” CP at 912. ETA 3104 goes on to state that if a “person leading
an exercise class . . . demonstrates proper techniques for various movements used in the class,”
then instruction is not the primary focus. CP at 912. ETA 3104 also states that if “[p]ersonal
trainers demonstrate and provide guidance as to proper weight-lifting techniques,” then instruction
is not the primary focus. CP at 912.
Here, the undisputed evidence demonstrates that Kitsap CrossFit instructors demonstrated
proper techniques for the various exercises used in class. The undisputed evidence also shows that
Kitsap CrossFit’s instructors would demonstrate and provide guidance on proper weight lifting
techniques during a typical class. Although Kitsap CrossFit emphasizes the instructional aspect
of its classes, “[s]uch instruction or guidance does not in itself result in that service being an
‘instructional lesson.’” CP at 912 (ETA 3104). Because Kitsap CrossFit’s classes were conducted
25
No. 54464-4-II
in a manner where its instructors would demonstrate and correct exercise technique, and because
ETA 3104 states that the primary focus of such activities is not instruction, reasonable minds
cannot conclude that Kitsap CrossFit’s classes are instructional. See Our Lady of Lourdes Hosp.,
120 Wn.2d at 452. Accordingly, Kitsap CrossFit’s argument fails.
While instruction in movement and technique were a part of Kitsap CrossFit’s classes,
reasonable minds cannot conclude that the primary focus of Kitsap CrossFit’s classes were
instructional. See id. Instead, the undisputed evidence demonstrates that Kitsap CrossFit’s classes
were “exercise classes,” which fall within the broad definition of “physical fitness services” in
Former Rule 183. Therefore, the superior court did not err in granting summary judgment and
dismissing Kitsap CrossFit’s tax refund request because, based on the undisputed evidence, Kitsap
CrossFit’s classes were properly classified as “physical fitness services” as a matter of law.
CONCLUSION
We hold that Kitsap CrossFit’s unconstitutionally vague challenge fails and that the
superior court did not err in granting summary judgment. Accordingly, we affirm the superior
court’s order granting summary judgment.
26
No. 54464-4-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Maxa, J.
Sutton, J.
27