INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON JOHN URQUHART, inhis capacity as KingCounty sheriff; and KINGCOUNTY SHERRIFF'S OFFICE , Respondents,
$6,510.00 CASH AND ALL NONCONTRABAND SEIZED ITEMS, Defendant In Rem, and RICHARD MENDALL, Appellant. No. 75026-7- DIVISION ONE UNPUBLISHED OPINION

FILED: December27, 2016 Appelwick, J. — Mendall seeks return of property on the basis that the forfeiture hearing was untimely. The hearing examiner did not abuse her 

### discretion by granting continuances for a medical emergency and a preplanned vacation. The hearing was not untimely. We affirm. FACTS King County Sheriff's Deputies seized weapons, drugs, and cash from Richard Mendall during a trafficstop. On June 9, 2014, the King County Sheriff's Office (KCSO) mailed a notice of seizure and intended forfeiture to Mendall. In

### INTHE COURT OF APPEALS OF THE STATE OFWASHINGTON JOHN URQUHART, in his capacity as 

### King Countysheriff; and KING COUNTY SHERRIFF'S OFFICE , Respondents,
$6,510.00 CASH AND ALL NONCONTRABAND SEIZED ITEMS, Defendant In Rem, and RICHARD MENDALL, Appellant. No. 75026-7-I DIVISION ONE UNPUBLISHED OPINION

FILED: 

### Appelwick, J. —Mendall seeks return of property on the basis that the 

### forfeiture hearing was untimely. The hearing examiner did not abuse her discretion by granting continuances for a medical emergency and a preplanned vacation. The hearing was notuntimely. We affirm. FACTS 

### King County Sheriff's Deputies seizedweapons, drugs, and cash from Richard Mendallduring atrafficstop. On June 9,2014, the King CountySheriffs 

### Office (KCSO) mailed a notice of seizure andintended forfeiture toMendall. InNo. 75026-7-1/2


### response, on July 3, 2014, Mendall mailed a notice of claim and request for a hearing regarding theforfeiture. On September 22, 2014, KCSO sent Mendall a notice of hearing set for September 30, 2014. On September 27, 2016, the hearing examiner granted KCSO a continuance to "the first week of December" due to a serious health 

### emergency involving counsel's family. KCSO's counsel was not available until October 22, 2014. The hearing examiner had previously advised that her first availabilities after October 22 would be December 2-3, December 8-11, or December 16-18. On November 17, 2014, KCSO e-mailed Mendall, stating that 

### the hearing examinerwould not be available untilthe secondweek of December. 

### Citing due process, Mendall objected to the hearing being set beyond the first week ofDecember. 

### The hearing occurred on December9, 2014. The hearing examinerruled inKCSO's favor, and Mendallthereforeforfeited the property. The superiorcourt 

### affirmedthe hearing examiner. Mendall sought direct review fromthe Supreme 

### Court. The SupremeCourt denied thatrequestand transferred the appealto this

court. DISCUSSION 

### Mendallmakes twoarguments. First, he acknowledges that the timing of the forfeiture hearing complied with existing precedent. But, he argues that we should overturn that precedent. Second, he argues that the hearing examiner abused her discretion bygranting two continuances without good cause.No. 75026-7-1/3

I. Timely Hearing 

### Mendall's firstargument is straightforward. He asks this court to overturn its own precedenton civilforfeiture procedure. 

### Mendall believes that his due process rights were violated, because the 

### forfeiture hearing was scheduled over 90 days from the date of seizure. KCSO responds that the hearing needs to be scheduled within 90 days ofMendall's claim challenging the seizure. This presents a question oflaw, that this court reviews de novo. Escamilla v. Tri-Citv Metro Drug Task Force, 100 Wn. App. 

### 742, 747, 999 P.2d 625 (2000), abrogated on other grounds byIn reForfeitureof One 1970 ChevroletChevelle, 166Wn.2d 834, 215 P.3d 166 (2009). 

### Under both Washington and federal law, a lawenforcement agency must 

### give an individual notice ofits intent to permanently seize property, and that individual must have the opportunity to be heard. RCW 69.50.505(3); United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L 

### Ed. 2d 490(1993). Within45 days of service ofnoticethat personalpropertyhas been seized, the person must respond with notice that he or she intends to contest the seizure. RCW 69.50.505(5). This response triggers a right to a 

### forfeiture hearing within 90 days. In re the Forfeiture of One 1988 Black Chevrolet Corvette, 91 Wn. App. 320, 323, 963 P.2d 187 (1997). The Administrative Procedure Act, chapter 34.05 RCW, and Washington case law 

### govern forfeiture proceedingsin Washington. See Black ChevroletCorvette, 91 Wn. App. at 323.No. 75026-7-1/4


### Two Supreme Court cases clarify this statutory scheme, Tellevik v. 31641 West Rutheford Street, 120 Wn.2d 68, 838 P.2d 111, 845 P.2d 1325 (1992) 

### (TellevikI), and Tellevik v. 31641 West Rutheford Street, 125 Wn.2d 364, 884 

### P.2d 1319 (1994) (Tellevik II). In Tellevik I, the claimants alleged that RCW 69.50.505 contained insufficient procedural safeguards and thus was unconstitutional. 120 Wn.2d at 77. The Supreme Court read a 90 day time limitation into RCW 69.50.505 "in order to preserve the constitutionality of the statute." Id at 85-86. Specifically, it held that due process entitles claimants "to


### a full adversarial [forfeiture] hearing within 90 days." jd, at 86. Tellevik II solidified this principle two years later. There, the Supreme Court found that an 

### agency's failure to even provide a hearing date for nearly six months violated claimants' due process rights. TellevikII, 125 Wn.2d at 372-73. The Court noted 

### that "the 90-day hearing requirement articulated in Tellevik Iis not dicta, but is, instead, centralto its holding." \_± at 372 (emphasis in original). Tellevik Iand Tellevik II leftopen the question ofwhat eventtriggers the 

### 90 day hearing window. As Mendall notes, the plain language of RCW 69.50.505(3) states that "proceedingsfor forfeiture shall be deemed commenced by the seizure." (Emphasis added.) But, in BlackChevrolet Corvette, this court 

### held that the right to a hearing within 90 days is triggered bvthe claimantgiving notice of a claim contesting the seizure. 91 Wn. App. at 322-24. The court reasoned that that 

### The applicable provisions of the Administrative Procedure Act 

### (APA) require that hearing commence within 90 days, RCW 34.05.419, and further provide that the hearing commences whenNo. 75026-7-1/5 

### the agency or hearing officer notifies a party that some stage of the hearing will be conducted. \± at 322; see also RCW 34.05.413(5). Therefore, because a hearing will only "be conducted" if a claimant serves a notice ofclaim, that notice ofclaim triggers 

### the 90 day window. Black Chevrolet Corvette, 91 Wn. App. at 324; Escamilla, 

### 100 Wn. App. at 749 "[Proceedings must be commenced within 90 days of the date a claimantnotifies the seizing agency of a claim."). Mendall concedes that the hearing was scheduled within 90 days of his 

### notice of claim and that the hearing examiner properly applied Black Chevrolet 

### Corvette. But, he explicitly asks us to overturn this court's decisions in Black Chevrolet Corvette and Escamilla. Mendall argues that this is warranted in light ofthe "plainlanguage of69.50.505(3)." 

### Although RCW 69.50.505(3) statesthat "proceedingsforforfeiture shall be deemed commenced bv the seizure," there is no indication that the right to a 

### hearingwithin 90days also commences on that date. Rather, the 90 daywindow 

### is governed by the APA. Black Chevrolet Corvette, 91 Wn. App. at 323-24. RCW 69.50.505(5) states that a "hearing before the seizing agency and any 

### appeal therefrom shall be under Title 34 RCW," whichcontains the APA. And, the APAexplicitly states that "within 90 days after receipt of [an] application
... 

### the agency shall . . . [c]ommence an adjudicative proceeding." RCW 34.05.419(1)(b) (emphasis added). In the context of forfeiture, the claimant's notice of claim serves as the "application," because the notice of claim is the 

### documentthattriggers theforfeiture hearing. This sound reasoning governedthe resultin Black ChevroletCorvette. 91 Wn. App. at 324. Italso governs here.No. 75026-7-1/6 

### We hold that the KCSO properly scheduled Mendall's hearing within 90 days of Mendallserving his notice of claimagainstthe seizure. II. Good Cause for Continuance 

### Mendall also argues that the hearing examiner improperly granted two continuances. As an initial matter, these continuances moved the hearing date 

### beyond the 90 day window. However, continuances that move a timely scheduled hearing date beyond 90 days after the seizure do not violate Tellevik or its progeny. See City of Pes Moines v. Pers. Prop. Identified as $81,231 in 

### U.S. Currency, 87 Wn. App. 689, 698, 943 P.2d 669 (1997). Thus, the remaining question iswhetherthe hearing examinerproperlygranted these continuances. A hearing examinerhas the authorityto grantcontinuances. WAC 10-08- 090(1). The hearing examiner may order a continuance if a party shows good
cause and mayconsidermanyfactors, including whetherthere is prejudiceto the defendant's presentation of his case. ]d\; Statev. Chichester, 141 Wn. App. 446, 459-60, 170 P.3d 583 (2007). This court reviews a grant of a continuance for abuse ofdiscretion. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995). 

### An abuse of discretion occurs when a decision is manifestly unreasonable or rests on untenable reasons. Davis v. Globe Mach. Mfg. Co.. 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Here, the hearing examiner originally continued the hearing until "the first 

### week of December." She then set it for the Monday following that week, December9, 2014, based on two conflicts. First, KCSO's counselfaced a family health emergency. She was not available forthe hearing from September26 toNo. 75026-7-1/7
October 22. Second, the hearing examiner had a prescheduled vacation that overlapped with KCSO's counsel's absence. Atthe time, the hearing examiner's
next available dates after KCSO's counsel's return were December 2-3 or 

### December8-11. Mendalldoes notarguethat he was prejudiced.1 Thus, the only issue is whether the hearing examiner abused her discretion in finding good
cause supported the continuances based on a family health emergency and then
a preplanned vacation. First, Washington courts routinely find good cause for illness. See, e.g., State v. Ruud, 6 Wn. App. 57, 59, 491 P.2d 1351 (1971) (finding good cause when "counsel became ill"). Mendall does not dispute the existence of a family 

### health emergency. No published Washington decision explicitly endorses 

### counsel's family health emergency as "good cause," but neitherdoes one reject it. We decline to hold that the trial court abused its discretion in granting a 

### continuance for a family health emergency. This is especially true in light of the
case law on continuances for vacations, which may have planning and cost implications but lack the immediacy of a family health emergency. See, e.g.. State v. Jones. 117 Wn. App. 721, 729, 72 P.3d 1110 (2003) ("[A]ttorney's prescheduled vacation is an adequate basisto justify a continuance.").

1 Mendall's briefing contains no discussion of how the two month delay prejudiced his case. Instead, Mendall asserts that he "need not show prejudice here." Granted, prejudice is only a factorthatthe hearing examinerconsiders in determining whether to grant a continuance. Chichester. 141 Wn. App. at 459- 60. But, the lack of prejudice further shows that the hearing examiner did not abuse herdiscretion ingranting a continuance.No. 75026-7-1/8 Second, Washington courts have also found that prescheduled vacations constitute good causeforthe purposes of a continuance. See Statev. Grillev. 67 Wn. App. 795, 800, 840 P.2d 903 (1992) ("[T]he District Court did not abuse its discretion in granting a continuance where the investigating officers were unavailable due to theirscheduled vacations."); Statev. Selam, 97 Wn. App. 140, 143, 982 P.2d 679 (1999) ("[W]ecannotsaythetrial courtabused its discretion in granting a briefcontinuance while the defense counsel was on vacation."); State
v. Heredia-Juarez. 119 Wn. App. 150, 155, 79 P.3d 987 (2003) (holding that prosecutor's vacation warranted continuance, and that reassignment to an available prosecutorwas not necessary). Granting the continuances based on a preplanned vacation and a family medical emergency was not an abuse of discretion. We affirm.

WE CONCUR:

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