IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

RELATIVE MOTION, LLC, dba KITSAP 

CROSSFIT,

No. 54464-4-II

Appellant,

v.

DEPARTMENT OF REVENUE OF THE 

STATE OF WASHINGTON,

UNPUBLISHED OPINION

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. 

Filed

Washington State

Court of Appeals

Division Two

September 28, 2021
No. 54464-4-II

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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. 
No. 54464-4-II

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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. 
No. 54464-4-II

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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. 
No. 54464-4-II

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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.
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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).
No. 54464-4-II

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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 
No. 54464-4-II

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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.”
No. 54464-4-II

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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 

estopped3from “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.
No. 54464-4-II

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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 
No. 54464-4-II

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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.
No. 54464-4-II

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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
No. 54464-4-II

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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 
No. 54464-4-II

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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. 
No. 54464-4-II

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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. 
No. 54464-4-II

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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 
No. 54464-4-II

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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. 
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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 selfdescribed 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 
No. 54464-4-II

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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 
No. 54464-4-II

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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.
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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 weightlifting 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, 
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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 
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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, 
No. 54464-4-II

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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 
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25

[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 
No. 54464-4-II

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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.
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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.